By Marc Benitah in — 29 Jul 2009

Is there an Abuse of the Arguendo Technique in WTO Panel Reports?

I have just finished reading the panel report relating to CVDs imposed by Mexico on Olive Oil from the European Communities, and it strikes me that the arguendo technique has become pervasive in recent panel reports.

What panels are really doing through this technique (certainly out of fear of the appellate process) is to say 1) that they do not agree with a certain interpretation of a provision by the defending Member, but 2) nonetheless they are going to refute the arguments of this defending Member, assuming arguendo that this Member’s interpretation is right.

My impression is that this technique is confusing and more "diplomatic" that legal. If the panel does not agree with a certain interpretation of a provision, what is the point of using three of four pages of arguments to refute arguments based on an interpretation you don’t agree with? Is it the role of a panel to examine arguments based of an interpretation of a provision which is wrong in the panel’s view?

For example, in the Olive Oil report, the panel says clearly that it disagrees with the European Communities that the first clause of Article 13(b)(i) of the Agreement on Agriculture, is relevant to initiation of CVD investigations (in contrast with the imposition of CVDs) and underlines that “ the plain language at issue is expressly limited to the "imposition of countervailing duties”. Nonetheless, a few paragraphs later, the panel devotes three pages to refute certain EU arguments based specifically on the view that the panel has just rejected:

We will examine each of these specific circumstances to determine whether Economía's actions in the olive oil investigation evince such a lack of restraint as to fall short of the "due restraint" obligation of Article 13(b)(i) of the Agreement on Agriculture as interpreted above, again assuming arguendo that that obligation applied to the investigation.

Of course, one suspects that the arguendo technique is used as a front to discourage an appeal by a dissatisfied Member. In other words, it is a way of saying to this Member that even if the panel’s interpretation of a provision is wrong, this would have no effect in its specific case. Unfortunately, the Appellate Body also uses frequently this technique, although its role is to say in principle what the law means and not to avoid taking a position.