International Economic Law and Policy Blog

Panel Report on EU-Biotech: Politically Savvy yet Legally Ambivalent?

The final panel report on the EU-Biotech dispute has just been released. http://www.wto.org/english/news_e/news06_e/291r_e.htm   I found this report politically savvy but legally ambivalent.

First, a moratorium, whether de facto or de jure, is a "ban" or a "total import prohibition." In Thai Cigarette, the panel also constructed a similar de facto moratorium as a measure which would violate GATT Article XI. In Australian Salmon, the AB also ruled that the measure in that case was an import restriction, not a heat treatment. Second, the panel itself held that the EC’s approval legislation is an SPS measure. (para. 8.4) Then, the de facto moratorium was an outcome, i.e., application, of that approval legislation. Therefore, the moratorium could be an SPS measure on its own, i.e., "as applied." In other words, it is not that the moratorium affected the application of the EC’s approval procedures, as the panel viewed (para.8.6), but that the moratorium itself was an application of the procedures.

Perhaps, the panel’s nebulous position over the de facto moratorium might be understood by its subsequent findings. Since the panel ruled that the moratorium was not an SPS measure, the panel could effectively avoid the hot potato, i.e., its determination on whether such a moratorium ever violated various SPS provisions, such as art. 5.1 (risk assessment). Whatever ruling on this provision might have irked either the complainants (the U.S., Canada, and Argentina) or the defendant (the EC). Yet, since the panel ducked this issue, it could safely generated a presumption that the moratorium was still OK ("not inconsistent") in terms of major obligations under the SPS (a boon to the EC), while it did give something to the complainants as well by finding that the moratorium nonetheless violated procedural disciplines under art. 8 and Annex C of SPS ("undue delay").

Would this be a kind of (political) balancing act? Of course, the panel did find that some EC Member states’ domestic safeguard measures violated SPS art. 5.7, but such finding seems to be also politically safe since those states’ measures were any way rebellious to the EC’s original risk position. The panel simply sided with the EC (vis-à-vis some of its Member states). (Of course, even from a legal standpoint, it seems sound that the panel based its negative conclusion as to the insufficiency of scientific evidences, which eventually illegalized those provisional measures (safeguards), on the previous scientific conclusion in the EC context.)

However, the more problematic aspect of the panel’s ruling is its finding on the mootness. The EC argued that even if there was a moratorium between June 1999 to August 2003, this case was "moot" since the moratorium "ceased to exist" after the establishment of the panel. (para.7.1286) The panel rejected the EC’s argument and went ahead on the grounds that due to its murky and complex nature the moratorium might be re-imposed in the future and deciding on this issue here and now would "secure a positive solution" to this dispute. (paras. 7.1310-1311). That means the moratorium is potentially still in effect and thus does not cease to exist. Nonetheless, the panel refused to decide so. (para. 7.1319) This self-contradition led the panel to reach very ambivalent, contingent, and conditional recommendations on the moratorium. The panel recommended that the EC comply "if, and to the extent that, that measure has not already ceased to exist." (para.8.16). This hypothetical recommendation would be hardly a "positive" solution. The panel should have ruled either that this issue was moot since the moratorium ended because the EU did resume the approval process or introduced a new approval procedure, or that the moratorium did not cease to exist and thus still existed. This clear ruling might better contribute to the stability and predictability of the WTO dispute settlement system.

Yet, one laudable aspect of the panel report lies in its very helpful summary which the panel itself presented in the conclusion section. If you are too busy to embrace all the over 1000 pages report, you can just read paras. 8.1-8.10 (pp 1067-1069, two and half pages) http://www.wto.org/english/tratop_e/dispu_e/291r_conc_e.pdf.      But, it would have been better for the Secretariat to issue a nice 10 to 20 pages summary of the report, including the panel’s major findings on facts and law. But, it would have been best if the panel had written a much shorter report by minimizing its unnecessarily complicated reasoning (often based on overly textual interpretation) and more getting to the point by simpler logic.

Or, this case itself, or at least some issues in it, should not have brought to the panel in the first place. What kind of values or benefits do we get from this vague outcome (remedies)? Would this type of WTO adjudication be cost-effective? Even politically sound? Law is not a panacea and this is also true in the WTO. Parties concerned could have resolved this type of dispute in a more professional and incremental fashion through a regulatory dialogue among working-level officials and professionals, not necessarily among diplomats and politicians. The latter group often generates, not resolve, disputes.

After all, "Great cases, like hard cases, make bad law." (Holmes, dissenting in Northern Securities in 1904).

ILC Report on “Fragmentation” is Out and Favors Close WTO-International Law Link

Those interested in how WTO law interacts with the rest of international law may know that in 2002 the UN International Law Commission (ILC) set up a Study Group to examine the “fragmentation” of international law. Well, the final report and conclusions of this Study Group are now published. In July-August of this year, the entire ILC “took note” of these conclusions and “commended” them to the UN General Assembly.

As Panels and the WTO Appellate Body have frequently referred to the ILC in their past decisions (remember the ILC Articles on State Responsibility and the ILC preparatory work on the Vienna Convention on the Law of Treaties), this report might find its way in Appellate Body case law. This is all the more likely as the report deals extensively with the WTO.

There are really two documents. First, a 250 page analytical study “finalized” by the Chairman of the ILC Study Group (Prof. Martti Koskenniemi of Finland). Second, a set of 42 conclusions collectively adopted by the Study Group and “taken note of” and “commended” by the entire ILC. The Study Group “emphasized that these conclusions had to be read in connection with the analytical study … on which they are based”.

For WTO purposes, several findings are interesting and all go in the direction of more, rather than less, international law in WTO dispute settlement.

First, the ILC confirms a distinction that some of us have long advocated, namely that between jurisdiction and applicable law, and explicitly applies it to the WTO:

“A limited jurisdiction does not, however, imply a limitation of the scope of the law applicable in the interpretation and application of those treaties … While the WTO Dispute Settlement Understanding limits the jurisdiction to claims which arise under the WTO covered agreements only, there is no explicit provision identifying the scope of applicable law”. (para. 45)

“Even as it is clear that the competence of WTO bodies is limited to consideration of claims under the covered agreements (and not, for example, under environmental or human rights treaties), when elucidating the content of the relevant rights and obligations, WTO bodies must situate those rights and obligations within the overall context of general international law (including the relevant environmental and human rights treaties)”. (para. 170)

Second, the ILC addresses a long-standing debate of whether international law is “in” unless contracted out from in the WTO, or whether international law is “in” only if explicitly incorporated by the WTO treaty. It concludes as follows:

“There seems, thus, little reason of principle to depart from the view that general international law supplements WTO law unless it has been specifically excluded and that so do other treaties which should, preferably, be read in harmony with the WTO covered treaties”. (para. 169)

“It is in the nature of ‘general law to apply generally’ - namely inasmuch as it has not been specifically excluded”. (para. 185)

“It is sometimes suggested that international tribunals or law-applying (treaty) bodies are not entitled to apply the law that goes “beyond” the four corners of the constituting instrument or that when arbitral bodies deliberate the award, they ought not to take into account rules or principles that are not incorporated in the treaty under dispute or the relevant compromis. But if … all international law exists in systemic relationship with other law, no such application can take place without situating the relevant jurisdiction endowing instrument in its normative environment. This means that although a tribunal may only have jurisdiction in regard to a particular instrument, it must always interpret and apply that instrument in its relationship to its normative environment - that is to say “other” international”. (para. 423, emphasis in the original)

Third, the ILC accepts the legality of inter se agreements restricting trade as between some WTO members only, in deviation of WTO rules, for as long as third party rights are respected:

“the GATT treaty contains no rules that would apply should two or more members wish to conclude an inter se agreement to restrict trade between themselves. In the absence of such rules, there appears to be nothing to prevent members from concluding an inter se agreement to the effect that in their dealings with each other they will not invoke, say, articles III and XI of the GATT with respect to what they feel to be justified trade restrictions. Such an agreement would affect the rights and obligations of the other members of WTO but as it would do so beneficially, the condition set in article 41 [Vienna Convention] would be satisfied”. (para. 306)

Fourth, when it comes to treaty interpretation that takes account of “any relevant rules of international law applicable in the relations between the parties” (as directed in Article 31.3(c) of the Vienna Convention), the ILC openly disagrees with the Panel on EC – Biotech. In what is quite a remarkable critique (remember, this is only an interim report, supposed to be confidential), the ILC does not think that such outside treaties need to be adopted by, or express the common intentions of, all WTO members:

“A better solution is to permit reference to another treaty provided that the parties in dispute are also parties to that other treaty. Although this creates the possibility of eventually divergent interpretations (depending on which States parties are also parties to the dispute), that would simply reflect the need to respect (inherently divergent) party will as elucidated by reference to those other treaties as well as the bilateralist character of most treaties underpinned by the practices regarding reservations, inter se modification and successive treaties, for example”. (para. 472)

The ILC Conclusions (nr. 22) are more ambiguous:

“Article 31 (3) (c) also requires the interpreter to consider other treaty-based rules so as to arrive at a consistent meaning. Such other rules are of particular relevance where parties to the treaty under interpretation are also parties to the other treaty, where the treaty rule has passed into or expresses customary international law or where they provide evidence of the common understanding of the parties as to the object and purpose of the treaty under interpretation or as to the meaning of a particular term”. (emphasis added)

Finally, the ILC defines “conflict” between norms broadly. Unlike some WTO decisions (Indonesia – Autos and, to some extent, US – Cotton), it holds that the criterion of “same subject matter” leads to a reductio ad absurdum (para. 22). To hold that there is no conflict between, say, Article III and the SCM Agreement or between a trade and an environmental agreement because the two do not exactly deal with the same subject matter is unsatisfactory. Rather, what the ILC calls for is to see, more specifically, whether the two rules in question “seem to point to different directions in their application by a party” (para. 23). The ILC “adopts a wide notion of conflict as a situation where two rules or principles suggest different ways of dealing with a problem” (para. 25).

ILC Conclusion Nr. 2 defines conflict as follows:

“Relationships of conflict. This is the case where two norms that are both valid and applicable point to incompatible decisions so that a choice must be made between them. The basic rules concerning the resolution of normative conflicts are to be found in the VCLT”.

The Role of Precedent in WTO Dispute Settlement

At this point, many people are probably zoning out while trying to read all the recent "zeroing" decisions. But buried in the latest panel decision (DS322) is an interesting question regarding the role of precedent in WTO dispute settlement.  Briefly, the Panel decided not to follow the approach of the Appellate Body in a previous case (DS294) in extending the "product as a whole" rationale for prohibiting zeroing beyond the "average-to-average" comparision method in AD Agreement Article 2.4.2.  In this regard, the Panel said in para. 7.99:

However, while we recognize the important systemic considerations in favour of following adopted panel and Appellate Body reports, we have decided not to adopt that approach for the reasons outlined below.733

It then explained its substantive disagreement with the Appellate Body's approach.  In addition, in Footnote 733 it further explained its view of the role of precedent:

It is well established that panel and Appellate Body reports are not binding, except with respect to resolving the particular dispute between the parties to the dispute, but that such reports create "legitimate expectations" among WTO Members and should therefore be taken into account where they are relevant to any dispute. Appellate Body Report, US – Softwood Lumber V, paras. 109-112; Appellate Body Report, Japan Alcoholic Beverages II, pp. 12-15; Appellate Body Report, US – Shrimp (Article 21.5 – Malaysia), para.109. The Appellate Body has stated that "...following the Appellate Body's conclusions in earlier disputes is not only appropriate, but is what would be expected from panels, especially where the issues are the same". Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 188. This notion of an "expectation" that panels will follow Appellate Body reports (as well as panel reports) is supported by important systemic considerations, including the objective, referred to in Article 3.2 of the DSU, of providing security and predictability to the multilateral trading system. At the same time, a panel is under an obligation under Article 11 of the DSU to "make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements..." Moreover, Article 3.2 of the DSU requires a panel "to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law" and provides that "[r]ecommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in covered agreements".

http://www.worldtradelaw.net/reports/wtopanels/us-zeroingjapan(panel).pdf#page=72

It appears that the Panel was suggesting that there could be a tension between following precedent and conducting a proper interpretation. I would be curious to see if others had thoughts on this.  What should panels do when confonted with a prior Appellate Body (or panel) intepretation they disagree with?  Similarly, what should the Appellate Body do when confronted with a prior Appellate Body interpretation it disagrees with?

This Panel was fairly blunt about what it was doing.  Should it have tried to finesse the issue a bit more (e.g. try to distinguish the cases somehow)?  What will the Appellate Body have to say about this issue in the inevitable appeal?

It is of particular interest to note that one of the panelists in this case was David Unterhalter, who has just been appointed to the Appellate Body.

Call for Papers

Here is a call for papers from the Asian Journal of WTO & International Health Law and Policy (which is part of the Asian Center for WTO & International Health Law and Policy, National Taiwan University): http://www.law.ntu.edu.tw/center/wto/05publications.asp?tb_index=40

It's a relatively new journal. Here's a link to their first issue: http://www.law.ntu.edu.tw/center/wto/05publications.asp?tb_index=41

Recognition and Choice of Law

Congratulations to Ralf Michaels on a very interesting paper examining the relationship between traditional private international law principles and the principle of recognition in European Union law.  Here is the abstract:

EU Law as Private International Law? Re-Conceptualising the Country-of-Origin Principle as Vested Rights Theory

RALF MICHAELS
Duke University - School of Law

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August 2006

Duke Law School Legal Studies Paper No. 122

One of the most pertinent issues in contemporary European conflict of laws is the tension between Community law and traditional choice of law rules. The biggest problem comes not from the transposition of member state rules on choice of law into methodologically comparable EC Regulations, but rather from the so-called country-of-origin principle. This principle holds, broadly, that EU member states may not impose obligations on a provider of goods and services that go beyond the obligations imposed by the provider's home state. Originally conceived mainly with public law obligations in mind, the principle has an impact on choice of law insofar as it bars member states from applying their own law to the provider's conduct, even if they have the closest connections to this conduct.

The exact relationship between the so called country of origin principle, and private international law, has long puzzled scholars and courts. Yet attempts at explanation and reconciliation have so far been unsuccessful because they started from an inappropriately narrow understanding of private international law. Integrating comparative legal history, this paper proposes a broader understanding of private international law beyond the current post-Savignyan approach. Thus broader approach makes it possible to recognize how the country of origin principle is remarkably similar to an almost forgotten and universally rejected private international law approach - the vested rights theory. The article demonstrates the parallels between the country of origin principle and US, English, French and German historical versions theories of vested rights.

This insight presents an interesting challenge. The vested rights theory is now universally rejected because the criticism brought forward against it was and is felt to be irrefutable. One might think the same criticism would be able to bring the country of origin principle down, too. Indeed, the article shows how current criticism of the country of origin principle replicates to a large degree earlier criticism made against the vested rights theory. Remarkably, however, it shows also that the country of origin principle can refute the criticism.

The return of vested rights, and its regained ability to overcome seemingly irrefutable criticism, hold a broader lesson. The rise and fall (and rebirth) of private international law approaches depends less on abstract considerations and more on general ideas and ideologies of the times - in this case, economic liberalism.

Matching SOX

Today's FT has an editorial complaining about the extraterritorial inspections of Ernst & Young (in London) carried out recently by the Public Company Accounting Oversight Board under Sarbanes-Oxley (SOX).  The FT's point is that this work is duplicative of UK inspection, and imposes additional (and impliedly unnecessary) costs on UK audit offices.  The FT's recommendation is to reciprocate under the EU audit directive, by requiring EU inspection of U.S. audit offices.  The idea is to impose reciprocal pain in order to induce agreement to a regime of mutual recognition. 

While there might be more mature methods to deal with U.S. "extraterritoriality" in this context, it is also not clear that the UK inspection system meets the SOX standards.  So some degree of harmonization may need to precede mutual recognition.

It may be that the EU would have some legal rights under WTO law.  In 1998, the Committee on Trade in Services adopted the Disciplines on Domestic Regulation in the Accountancy Sector (the “Accountancy Disciplines”),[1]developed by the GATS Working Party on Professional Services (now the Working Party on Domestic Regulation).  These disciplines apply to all member states that have made specific commitments in accountancy (positive list) but do not apply to national measures listed as exceptions under Articles XVI and XVII (negative list).  They generally articulate further and tighten the principle of necessity:  that measures should be the least trade restrictive method to effect a legitimate objective.  In fact, these provisions replicate requirements that have been imposed in the EC pursuant to the ECJ’s single market jurisprudence. In particular, Member states are required to ensure that measures relating to licensing requirements and procedures, technical standards and qualification requirements and procedures are not prepared, adopted or applied with a view to or with the effect of creating unnecessary barriers to trade in accountancy services.  Such measures may not be more trade restrictive than necessary to fulfill a legitimate objective, including protection of consumers, the quality of the service, professional competence and the integrity of the profession.  This necessity requirement is substantially stronger than that contained in Article VI:5 of GATS.

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[1]   WTO, Disciplines on Domestic Regulation in the Accountancy Sector, S/L/64, 17 December 1998, reprinted in WTO Focus, December 1998, 10-11.   

Airbus-Boeing: Now It's A Bidding War

It's rare that the U.S. Department of Defense gets involved in trade disputes, but I guess Airbus-Boeing is such a big dispute that it's drawing everyone in.  According to Reuters, as part of the Air Force's "multibillion-dollar competition for aerial refueling tankers," Boeing is competing with the team of Northrop Grumman and EADS, the majority owner of Airbus.  In an initial "request for information" in April, the Air Force "asked the companies to identify any subsidies they received and explain any potential impact of the WTO dispute between Boeing and Airbus on their bids."  Reuters notes that "[a]nalysts have said the Pentagon's request could force Airbus, 80 percent owned by EADS, to yield information that could be used against it in the WTO complaint."

Senators McCain and Shelby are not happy about this request, and Shelby "said he told Deputy Defense Secretary Gordon England last week that it was 'unfair' to ask bidders about the dispute before the World Trade Organization, and said the Senate should hold hearings about the unprecedented move."

The Washington Post is also reporting on this, and has some additional background.

It's hard to say at this point whether this issue will blow over or blow up, but I'll update this post with further developments as they occur.

UPDATE: As explained here and here, the Northrop Grumman team has pledged to build a tanker assembly plant in Mobile, Alabama if they win at least part of the contract, hence the involvement of Senator Shelby. Several Alabama Congressmen, including Shelby, are scheduled to meet with Gordon England today.

UPDATE II: A few more details now that Shelby and others have met with Gordon England.

UPDATE III:  According to this report, the decision on whether to ask about the WTO issues has been put off until the final request for proposal is submitted:

The Air Force said the draft request for proposal doesn't directly ask companies to detail the effects of WTO disputes, as industry was asked in a request for information earlier this year. Instead, it asks companies "whether the final RFP should be modified" to include WTO concerns.

Hormones Panel Meetings

The current WTO panel proceedings in the Hormones Sanctions cases (DS320 and DS321) are noteworthy not just for the interesting issues under the SPS Agreement and the DSU, but also because this panel was the first to open its meetings with the parties to the public.  This took place in September of last year at the first set of meetings.  Another set of meetings is to take place soon, and these will be open to the public as well.  This will include the meeting with the parties and scientific experts on 27-28 September and the meeting with the parties on 2-3 October.

In anticipation of this, we have arranged with two people who were Joost's students recently in a class he taught at HEI to report on the meetings for posting on this blog.  They are:  Anna-Emilia Autio ([email protected]); and Petko Kantchevski, who is a second year law student at HEI ([email protected]).  They will attend the meetings and write up a quick summary of the events to be posted right after the meetings, with more detailed reports and impressions to follow later.  Thanks very much to both of them for agreeing to this.

So, for those of you following the case, check back around the time of the meetings to see what they have to tell us.

Trade and the Environment Report

Reuters is reporting on what they refer to as a "UN study" that argues "[t]he world needs clearer rules to judge when trade curbs on environmental or health grounds are justified or are simply protectionist."  It also "urged governments to work out a common threshold of acceptable risk or at least 'a common practice of risk assessment' to help tackle disputes."

I definitely agree with the need for clearer rules in this area.  With a topic this important, it would be nice to have more certainty as to what governments can and cannot do.

I'm a little confused about the reporting, though, because from what I can tell based on various web searches I've done, the "UN study" is actually this report, dated November 2005, sponsored by the UN University and co-authored by Sabrina Shaw and Risa Schwartz.  But perhaps Reuters is reporting on it in anticipation of the GMOs panel report being circulated to the public, which should happen soon.  Regardless of whether it's new, it is an important an issue (and Risa is an old friend of mine), so I thought I'd mention it.

WTO at 10!

Here is a notice regarding the recently published papers from one of the "WTO at 10 conferences:

The WTO at Ten: The Contribution of the Dispute Settlement System", edited by Giorgio Sacerdoti, Alan Yanovich, and Jan Bohanes, assesses the first ten years of the World Trade Organization.  It brings together articles by some of the leading policy-makers, including previous WTO Director-Generals, practitioners, scholars of international trade law, government officials, international civil servants, members of the WTO Appellate Body, and judges from a number of international tribunals.

The book examines the relationship and balance between political governance and dispute settlement; the functioning of the dispute settlement procedures and various reform proposals; the contribution of the Appellate Body to the development of international trade law; and treaty interpretation in a number of international dispute settlement fora such as the WTO, the International Court of Justice, the European Court of Justice, and the Tribunal for the Law of the Sea. The book has its origins in a series of events commemorating the tenth anniversary of the creation of the Appellate Body.

Here is a list of contributors:

Contributors include Supachai Panitchpakdi, Renato Ruggiero, Enrique Barón Crespo, Giorgio Sacerdoti, Robert Howse, Susan Esserman, Alejandro Jara, Ernst-Ulrich Petersmann, Elissa Alben, Timothy Reif, Helène Ruiz Fabri, Francesco Francioni, Friedl Weiss, Valerie Hughes, Jacques Bourgeois, Daniel Brinza, Thomas Cottier, Pieter-Jan Kuijper, John Lockhart, Peter Van den Bossche, Gabrielle Marceau, Petros Mavroidis, Donald McRae, Brigitte Stern, Victoria Donaldson, Alan Yanovich, Jan Bohanes, Andreas Sennekamp, Georges Abi-Saab, Gilbert Guillaume, Paolo Mengozzi, Allan Rosas, Tullio Treves

The New Comparative Law: A Legacy of Hernando de Soto, and Laporta, Lopez, Schleifer, Vishny and Djankov

The World Bank has just published a new report on doing business in 175 countries, examining regulation and regulatory reform in a number of areas.  The central concern of the report is cost-benefit analysis of regulation:  what types of regulation that seem to provide little benefit are most costly?  This report is a legacy of the early ideas of Hernando de Soto to the effect that government regulation sometimes suppresses enterprise without a good rationale.  It is also a legacy of the self-styled "new comparative economics," pioneered by LaPorta, Lopez, Schleifer and Vishny, and now a number of co-authors.  This new comparative economics should be understood as a new comparative law.  This new comparative law, albeit with lots of methodological problems, is certainly worth examining.  It seems helpful in pointing to types of regulation that seem costly, and that seem not to provide great prudential-type benefits. 

Airbus-Boeing Legal Wrangling

A few weeks ago, Joel posted about how Airbus has filed a motion in DC Superior Court to enjoin Wilmer Hale and Marco Bronckers from representing Boeing in the WTO aircraft disputes, in light of Bronckers' earlier work for Airbus. Airbus later challenged Charlene Barshefsky's role in the case as well.

According to a news report, Judge Braman of the DC Superior Court has now ruled as follows:

At this month's hearing, Braman dismissed the complaint against Barshefsky. He said Airbus didn't have standing to complain about her involvement with Boeing in D.C. Court because the court isn't handling any other aspect of the trade battle.

With respect to Bronckers, Braman said he could not consider the complaint unless the WTO rules on whether it will consider pre-1992 aid in the trade battle. Bronckers stopped working for Airbus before the U.S. and Europe reached a 1992 agreement on civil aircraft subsidies that was in force until the latest round of trade litigation began.

If the WTO case is limited to post-1992 government aid, those limits also should apply to questions about legal counsel, Braman said. That would make any premature rulings on Bronckers "an instrument of injustice," Braman said, according to a transcript of the hearing.

I'm not quite sure I follow the court's reasoning on the Barshefsky issue as set out in the news report.  I'll update this post if other news reports clarify it, or if I can get hold of the opinion.

As for whether the issue would be raised before the WTO panels, Airbus had this to say:

Airbus said it is considering its options for how to proceed. The company could choose to ask the E.U. to bring up its complaint about Barshefsky at the WTO, although Boeing's choice of counsel has so far not been a topic of debate between U.S. and E.U. negotiators.