Hot on the heels of Joost's insightful summary and assessment of the Hormones II AB Report, and before more detailed discussion of the particular issues soon ensues, I would like to put forward a general assessment of this Report. A deliberately general assessment of the Report, as a judicial decision. While I have much to say about the Report's specifics, both in substance and procedure, I would like to first see the forest in spite of the trees.
To some extent this might be an (incomplete) turning point in WTO jurisprudence. While it is perhaps too early to write the annals of the AB, I will venture this: in the past we have seen AB decisions that were cautiously creative. Then we saw Reports that were confusedly cautious. In Hormones II, perhaps preceded by DS344, I believe we see an Appellate Body that is confidently consistent. This is an institutionally mature AB, capable of both coping with (if not settling!) a difficult case, and yet producing good law.
The Hormones II Panel failed on many fronts, but the worst of these related to legal, logical and political (in)consistency. The Panel Report was a non-Solomonic compromise in a dispute that crosses regulatory autonomy/health concerns with institutional compliance concerns with the Trans-Atlantic context. A hard case destined to make bad law. But the AB in this Report (not say that it has no faults) has stayed the course of consistency (also with respect to the burden of proof - but that would merit a new post), without compromise, and with great, non-authoritarian confidence.
Setting aside specific criticisms, at first blush I see this case as a resounding consolidation of the institutional role of the AB. Where would the law be had we been left with the first instance? At the same time, however - as a reverse echo to Joost's question "who will still want to be a panelist in the future..."? - I see it as a confirmation of the need for a standing "Panel Body" that could reach decisions like this, leaving little cause for appeal.
T.
