Activist is a loaded term, I know, and that's not really what I mean. What I have in mind is the Appellate Body's apparent willingness in China - Publications to address issues that it could have avoided, and its establishment of standards that make issue avoidance more difficult.
First, there was the issue of the use of arguendo assumptions to avoid difficult issues, in this case the question of whether GATT Article XX applies outside the context of claims under the GATT. The Panel had assumed arguendo that the Article XX defense was available in relation to claims under China's "trading rights commitments" in its Accession Protocol. Then, after finding that the substantive aspects of Article XX were not satisfied, it said there was no need to resolve the question of Article XX's availability. The Appellate Body itself had used this technique in a recent case (the Customs Bond case -- see paras. 308-310, 319), on a similar issue even, so it seemed likely that it would approve of the Panel's use of an arguendo assumption. Instead, the Appellate Body criticized the use of this technique here and put strict limits on the use of the technique generally. (See paras. 213-215) As a result, it seems to have made issue avoidance in this way more difficult (and setting an example for that here by addressing the issue in question).
Second, related to the first point, the Appellate Body then took on the issue of whether GATT Article XX applies to a claim outside the GATT context. This issue could be a very controversial one in some upcoming cases under the TBT Agreement if the defending party decides to invoke Article XX (for example, the EC - Seal Products case and the U.S. - Tuna case), so it would not have been surprising if the Appellate Body had decided to avoid the issue for now. Instead, it jumped right in. Well, maybe just dipped its toe in, but still, it addressed an issue it might have been expected to avoid.
Third, with regard to the Panel's "analytical approach" to "necessity" under GATT Article XX(a), the United States expressed "some concerns" regarding the Panel's approach. In response to questioning, the United States "clarified that it is not raising a claim of error with respect to the way in which the Panel applied the 'necessity' test" (and the Appellate Body noted that the United States "did not specifically identify this concern in its Notice of Other Appeal"), but rather "it would welcome clarification from the Appellate Body that an Article XX analysis should be approached in an integrated fashion," rather than the two-step approach used by the Panel. So did the Appellate Body tell the United States that it could only address allegations of error, and could not simply "clarify" any "concerns" participants might have? No, it went ahead and clarified the issue. (See paras. 237-249)
Finally, with regard to its interpretation of "Sound recording distribution services" in China's GATS Schedule, the Appellate Body said:
400. Having reached a conclusion on the interpretation of China's commitment on "Sound
recording distribution services" under Article 31 of the Vienna Convention, we observe that we would not need to proceed to an examination of supplementary means of interpretation pursuant to Article 32 of the Vienna Convention to decide this appeal. The Panel, however, considered that recourse to supplementary means of interpretation was useful to confirm its preliminary conclusion based on the application of Article 31 and proceeded to examine the preparatory work of the treaty and the circumstances of the conclusion of the GATS pursuant to Article 32 of the Vienna Convention. China has appealed the Panel's application of Article 32. We therefore address the issues raised by China in respect of the Panel's analysis of supplementary means of interpretation pursuant to Article 32 of the Vienna Convention.
So, even though it would not need to address Article 32 in order to decide the appeal, the Appellate Body did so anyway.
I'm not sure what all this means, if anything, for how the Appellate Body approaches cases in the future, but it certainly makes these reports more interesting!
