First I’d like to thank Simon for suggesting this dialogue, and also James, who was kind enough to share his article with me before it went to print. In keeping with the format agreed to with James and Simon, in this post I will make some opening remarks, and in a second post will respond to James’s opening remarks.
When I conducted the research for my original article, it was 2005 and there had been very, very few separate opinions or dissents at either the panel or Appellate Body level of WTO dispute settlement. In addition, the writings of former members of the Appellate Body suggested that members worked exceptionally hard to achieve consensus. Indeed, the impression I came away with was that writing separately, while technically allowed, was being discouraged. In the article, I argued that there might be good reasons at the inception of a new dispute settlement system to discourage dissent because unanimity would help cement the legitimacy of the new mechanism, while dissent might undermine it. However, I went on to argue that after (at that time) 10 years of existence, the WTO dispute settlement system was no longer in any serious jeopardy of being undermined as a result of a few shows of disagreement amongst panelists. I therefore said that while writing separately should not be done lightly, it should no longer be affirmatively discouraged. I argued that there were various positive aspects to the occasional dissent, including that for the majority, having to contend explicitly with the minority’s view leads to better, sharper majority opinions.
Fast forward to 2010, and there have now been far more dissents and separate opinions than there were in 2005. I am therefore less concerned now than I was in 2005 that panelists are being pressured not to write separately. I do still believe, however, that writing separately should not be discouraged. To be sure panelists should try to reach agreement, and often will be able to. However, when there is a genuine disagreement over treaty interpretation, I believe that sometimes compromise may not be feasible. In such instances, when there are strongly held views that result in different interpretations of the treaty, I think the minority viewpoint should be expressed. This gives the parties and the Appellate Body more information to consider in determining what the better approach is, and should lead to better reasoned Appellate Body reports. I don’t see any harm in airing these differing viewpoints, and indeed I think it is important to do so in the rare cases when agreement cannot be reached. I’ll offer a couple of examples of instances where I think writing separately has served a valuable function.
First is the evolution in the AB’s reasoning in the Zeroing cases. Its logic has evolved quite substantially since EC – Bed Linen. The AB’s reasoning in the US – EC Zeroing case was viewed by some as not particularly compelling, particularly as it did not seem to be applying the VCLT in interpreting the ADA but rather to be relying primarily on its own prior decisions. Subsequently, the US - Japan Zeroing panel conducted a thorough analysis of the issues, applying the VCLT. And thereafter in the appeal of that report, the AB employed more persuasive reasoning than it had in the US - EC case. Thus the panel’s suggestion that there was a better way to conduct the legal analysis did lead the AB to improve its legal analysis. Therefore even though the AB didn’t adopt the result of the panel, I’d argue that the panel’s disagreeing positions were still of value.
Second, even if a separate opinion is issued by an AB member – and therefore won’t be used as a data point again in that dispute – it can still have value. An example is the concurring opinion in the AB’s US-EC Zeroing II/Continuing Suspension case, which James identifies in his article as “unnecessary”. But the concurrence served an important function. It is highly likely that it was written by David Unterhalter, who had sat on one of the panels that found zeroing permissible prior to his being appointed to the AB. In his concurrence in the second US-EC Zeroing case, Unterhalter says, essentially, the two camps on zeroing will not agree with one another but it’s time to go with the AB and its precedents for the sake of the system. I suspect this will serve a better signal to future panelists that they should not re-fight the zeroing fight than if there hadn’t been that separate statement.
