I'm pleased to introduce a debate on the issue of dissents in WTO dispute settlement decisions. Those of you who read the JIEL regularly may have seen two articles setting forth different views on the proper role of dissents. In 2006, Meredith Kolsky Lewis of Victoria University of Wellington, in "The Lack of Dissent in WTO Dispute Settlement," argued for more dissents; in the upcoming June 2010 issue, James Flett, in "Collective Intelligence and the Possibility of Dissent: Anonymous Individual Opinions in WTO Jurisprudence," responds to Meredith's piece by saying that dissents should remain exceptional.
As background, the DSU does not explicitly refer to "dissents," but does state that individual panelists or Appellate Body members hearing a particular dispute may express a view that differs from the others serving with them. With regard to panels, DSU Article 14.3 states:
Opinions expressed in the panel report by individual panelists shall be anonymous.
And for Appellate Body Members, DSU Article 17.11 states:
Opinions expressed in the Appellate Body report by individuals serving on the Appellate Body shall be anonymous.
Individual panelists, Appellate Body Members and arbitrators (there is no parallel provision for arbitrators, but it appears that it has been presumed that similar rules apply) have issued separate opinions (either in dissent or concurrence) in 14 instances.
In this post, I'll set out a brief summary of the views of Meredith and James as expressed in their articles, and then turn it over to them. They will each do an initial post setting forth their basic position, and then do a follow-up post responding to the other's points. I'm sure they would be interested to hear people's comments, either in the comments feature of this blog or by contacting them directly (meredith.lewis{at}vuw.ac.nz and james.flett{at}ec.europa.eu).
Meredith published her piece first, so I'll start with her. At the time she wrote her article, Meredith was concerned that the lack of dissents so far was bad for the WTO legal system. In this regard, she argued that "the seeming unanimity of the decisions should be a cause for concern rather than celebration." She worried that "[k]eeping the lid on dissents may ultimately erode the strength of the dispute settlement system and hinder the ability of the WTO Members to make appropriate changes to the Agreements." One point she made was as follows:
WTO Members … benefit from having serious differences of opinion or interpretation made transparent. Members would then have the opportunity to consider the competing views and to determine whether the majority interpretation is the preferred outcome. Although Members have the ability to amend WTO Agreements to in essence overrule panel or Appellate Body reports, their impetus and ability to do is impaired without ready access to alternative visions of the same issue.
By contrast, James is skeptical of the value of dissents, and hopes they remain the exception. He notes that "the system can and should generally expect individual panellists to find common ground, just as the negotiators must have managed to find common ground when they framed the treaty." After analyzing the individual opinions that have been put forward in WTO dispute settlement decisions, he concludes that most of them have been "incorrect" or "unnecessary." He thus argues that:
Individuals involved in dispute settlement should therefore not dwell on the reasons they might find to disagree, but rather make a supreme effort to assimilate the reasoning of their colleagues, even if it is not their initial preference. This is a particularly virtuous type of judicial restraint, and would imply that individual opinions should be a truly exceptional last resort.
I'll leave things there, and turn the debate over to Meredith and James!
