A disturbing and recurring theme in WTO Panel proceedings is the accusation that panelists are "making the case" for one of the parties. This is a serious accusation and panelists try to avoid it by repeating the mantra that they are aware of their limits. This mantra however cannot conceal the fact that panelists are confronted with two conflicting signals from the Appellate Body and that, at the moment, no one is able to say precisely what it means to "make the case" for a party.
On one hand, panelists are reminded by the Appellate Body that a panel is not obliged to limit its legal reasoning to arguments presented by the parties and that a panel can even develop its own legal reasoning to rule on a case. This is a very tempting signal for panels since they can gather much more information that the one provided by parties, first by themselves, but also through experts and now through amicus curiae briefs.
On the other hand, panelists are constantly reminded by parties that the Appellate Body bashed the Japan-Varietals panel for using expert information and advice as the basis for a finding of inconsistency with Article 5.6 of the SPS Agreement. According to the AB, the United States did not establish a "prima facie case of inconsistency with Article 5.6 based on claims relating to the determination of sorption levels". Moreover, according to the AB, the United States did not even argue that the "determination of sorption levels" is an alternative measure which meets the three elements under Article 5.6.
The words used by the Appellate Body in Japan-Varietals are so confusing that at the moment no one knows exactly what are the exact conditions in which a panel oversteps its limits and can be said to "make the case" for a party.
In Upland Cotton, Brazil argued that Japan Varietals stands for the proposition that not making the case for a party means only that a Panel cannot make a "claim" for a party, i.e., a legal claim that would be required to be set out in a request for the establishment of a panel. For Brazil, the fact that the United States had also not made "arguments" on its non-claim only reinforced the underlying reasoning of the Appellate Body.
However, the United States replied that Brazil’s position reveals a profound misunderstanding of the difference between a claim and an argument. For the US, there was no question that the United States advanced a legal claim that Japan's varietal testing measure was inconsistent with Article 5.6 of the SPS Agreement. Therefore the only issue was whether the United States had presented evidence and arguments relating to an alternative measure that satisfied its burden of making a prima facie case with respect to its Article 5.6 claim. In other words, for the US, panels "make a case" as soon as they use information in a context where a party has not presented enough facts and arguments relating to this information and therefore does not meet its burden of proof.
This divergence of opinions is aggravated by the fact that until now, the Appellate Body has refused to precise explicitly if "testing of the basis of sorption levels" was a claim or an argument.
My impression is that this state of affairs is very disturbing to say the least and that the Appellate Body should take the first opportunity to put an end to such a double bind.
