Having failed to promote the de-judicializing ideas included in its 2003 proposal on DSU review (jointly with Chile), calling for increased Member "review", "control" and "guidance" to/of the dispute settlement process, the US has recently introduced some new ideas to DSU review that generally seem to be aimed at curtailing the normative power of the dispute settlement system. There may be an additional, more specific though unstated aim, however: making Section 301 and its special- and super-sized versions WTO-kosher, or at least more difficult to attack in WTO dispute settlement.
First, under the proposal, Panels would be obliged to first determine whether a challenged measure actually does what the complainant claims it does (a factual determination, in the US view), before analyzing whether that outcome would be inconsistent with a covered agreement. This stipulation is justified, according to the proposal, by the understanding that the "purpose of the dispute settlement system is not to produce reports or to "make law," but rather to help Members resolve trade disputes among them", limiting panels and the AB from making findings that are not aimed at resolving the dispute. I wonder, to what extent this is an overture to rewriting Article 3.8 DSU, ie, violation complaints would first be required to show nullification and impairment, before violation. If applied to 301, this would mean that a technical foul would not be enough to call it out of the game.
Second, the proposal includes a half-hearted attempt to limit the meaning of the all-important (or meaningless, depending on one's perspective) of "measure", by excluding legislative history, statements without independent effect, and obiter dicta in court decisions. This seems to be aimed at restricting recourse to context in interpreting the meaning of measures. What springs to mind, among other cases, is the 301 Panel's reference to congressional hearings for interpretative purposes.
Third, the proposal explicitly seeks to restrict panels from finding that discretionary measures are inconsistent with covered agreements, if those measures allow compliance. I think there is a non sequitur in the way this idea is presented in the proposal: the idea that panels should not "presume" that a member will choose to violate a covered agreement does not mean that discretionary measures that allow both compliance and violation do not of themselves have trade restrictive "chilling" effects, as the (unappealed) 301 Panel found.
The common denominator of these proposals seems to be the Section 301 family, but surely this doesn't mean that the US actually intends to make use of it. Like Abe said, "Man, you must be putting me on...".
With apologies to Robert Zimmerman, the US proposal, TN/DS/W/82/Add.2, can be downloaded here.
T.
