I agree with Henry’s comment that dissents are more easily justified at the panel stage, when they have the potential to provide additional information/arguments for the Appellate Body to review. However, I don’t agree that they should be forbidden at the Appellate Body level. While I think divisions of the Appellate Body should try to reach agreement, and AB members should not write separately lightly, if there is a true difference of opinion on an interpretive issue, I don’t see the harm in voicing the minority opinion along with the majority one. James argues that it is not necessary to have a dissenting opinion, for the dissenting view can be set out in the report. However, I don’t think this is the same as stating in the panel or AB report that a member is writing separately/dissenting. There is a difference between a unanimous opinion which addresses rejected arguments (which may well have been, or appear to have been, raised by one of the parties rather than one of the adjudicators) and a divided opinion. But does the difference matter? If interpretation of the covered agreements was always clear-cut, with “right” and “wrong” answers, perhaps the answer would be no. Indeed in James’s article, he categorizes the separate opinions to date as “correct” or “incorrect” and as “necessary” or “unnecessary”. This to me suggests a higher level of determinacy than I think exists in WTO treaty interpretation. Some cases as easier than others, but there aren’t always clearly “right” answers or “wrong” ones.
Not only aren’t there always determinable rights or wrongs, but interpretations may change over time. In the China – Audiovisual Products case, the Appellate Body rejected China’s argument that there was a single interpretation of its GATS commitments, and that determination had to be based on an interpretation of the commitments as they would have been understood at the time of accession. The AB stated (at para. 397): “We further note that interpreting the terms of GATS specific commitments based on the notion that the ordinary meaning to be attributed to those terms can only be the meaning that they had at the time the Schedule was concluded would mean that very similar or identically worded commitments could be given different meanings, content, and coverage depending on the date of their adoption or the date of a Member's accession to the treaty. Such interpretation would undermine the predictability, security, and clarity of GATS specific commitments, which are undertaken through successive rounds of negotiations, and which must be interpreted in accordance with customary rules of interpretation of public international law.” (references omitted).
Because, as the AB has explained, interpretation of the WTO agreements may evolve, panels and the AB may be faced with the same question numerous times, over many years. In such circumstances, airing differences of opinion may assist the AB in ultimately deciding the time has come to change its previous views. It is presumably an easier transition for an adjudicatory body to move from a previous 1-2 decision to a 2-1 decision on the same issue, than from a previous 0-3 decision to a 3-0 decision. An example when this could occur is in revisiting whether the precautionary principle has achieved the status of customary international law. The answer to this question may well be different in the future than it was in the original EC – Hormones case. Assume that each time the AB is faced with the question, the determination becomes a little harder because there is increasingly better support for the argument that the precautionary principle is now CIL. Perhaps there will be a time when one member feels it is CIL, but two don’t. And perhaps the time after that, two members will determine the precautionary principle has achieved the status of CIL, but one disagrees. It seems to me that in such circumstances, a dissent in the first instance would help the AB later reach the decision that times have changed, and that the treaty must now be interpreted differently.
Finally, I note that the WTO has sometimes been criticized for being insufficiently transparent. An honest airing of disagreements via the occasional separate opinion or dissent is more transparent – and frankly, honest – than presenting an illusion of perpetual unanimity. As disputes grow more complicated, it is foreseeable that panellists may disagree more than they did in earlier, easier disputes. The Appellate Body can benefit from seeing the different views expressed by the panellists themselves, rather than just by the parties. If the AB happens to disagree with such a panel, it would also appear somewhat less arbitrary if the panel had found 2-1 and been reversed, rather than 3-0. I therefore believe that dissents, when reflecting true and significant differences of opinion, can enhance rather than undermine legitimacy. Should there be frequent dissents? No. But we should not fear that when they occasionally occur, they will damage the dispute settlement system. To the contrary, they just might do some good.
