While not ruling upon
a matter seems antithetical to any judicial body’s raison d’être,
operationalizing non liquet, we argue, has the potential to help address
certain criticisms of the World Trade Organization’s (WTO’s) highest judicial
chambers (the Appellate Body) that pertain to judicial overreach and a
subversion of a demarcated separation of powers. By first assessing the legal
acceptability of non liquet under public international law (PIL) at large and
WTO law in specific, the article argues that there is space for non liquet to
be legitimately used in WTO adjudication, so long as a principled approach
circumscribed by the fundamental prescription of the WTO ‘to not add to or
diminish the rights and obligations’of WTO members, is followed. As our risk
theory analysis then helps identify, non liquet would likely have a number of pitfalls
that would require ex ante guardrails to be prescribed by the membership. The
article concludes by proposing some options for WTO members to outline what non
liquet could entail, both substantively and procedurally, so as to insure
against various risks. More fundamentally, the article seeks to emphasize the
need to reconsider the role of WTO adjudication and its interaction with the
legislative wing in light of changing paradigms in the international trade law
order.