Rules and Values in International Adjudication: The Case of the WTO Appellate Body

Current political challenges facing the WTO Appellate Body raise fundamental questions about the relationship between rules and values in international adjudication. This paper applies insights from legal philosophy to identify the role values should play in WTO adjudication. It argues that nothing about the specifics of WTO law would justify excluding values from adjudication; that the doctrinal, political and institutional context of WTO adjudication makes a positivist account of the role of values untenable; but an anti-positivist account requires complementing established economic accounts of WTO law’s purpose with an account of fairness and justice in trade and trade regulation.