This time dissents at the domestic level. Here's a question from the Panel in the U.S. - Tyres Safeguards (DS399) WTO dispute:
Q8. What weight, if any, should the Panel give to the fact that there were two dissenting opinions within the USITC on causation?
As background, there are six ITC commissioners, and four voted affirmative, while two voted negative, in the tires case.
Here was the U.S. response to the question:
32. The Panel should give no weight to the fact that there were two dissenting Commissioners on the issue of causation. The separate views of any dissenting Commissioner are not part of the determination of the ITC majority that market disruption exists. It is the determination of the majority of Commissioners that forms the legally operative determination of the ITC, and the determination in front of this Panel. Accordingly, the United States submits that the dissenting views are not of legal consequence and, therefore, not pertinent to the Panel’s consideration of whether the determination of the ITC is consistent with the U.S. obligations under paragraph 16 of the Protocol of Accession.
33. We note in this regard that the Appellate Body has stated that WTO Members have considerable latitude in structuring the internal decision-making process of their competent authorities. The Appellate Body explained:
[W]e are not concerned with how the competent authorities of WTO Members reach their determinations in applying safeguard measures. The Agreement on Safeguards does not prescribe the internal decision-making process for making such a determination. That is entirely up to WTO Members in the exercise of their sovereignty. We are concerned only with the determination itself, which is a singular act for which a WTO Member may be accountable in WTO dispute settlement.44
34. The same reasoning applies to decisions under paragraph 16 of the Protocol of Accession. The Protocol also does not prescribe the internal decision-making process for making determinations of market disruption. Therefore, the Panel should address only the determination of the ITC, not the dissenting views.
35. Finally, the United States notes that China has cited the views of the dissenting Commissioners throughout its written submission on a number of issues. Although the majority and dissenting Commissioners may have come to different conclusions on certain issues, the fact that the majority and dissenting Commissioners both addressed these issues in detail only underscores that the Commission as a whole addressed the circumstances of the tires market in detail, and gave serious consideration to the arguments made by all parties before the Commission, including those parties who opposed any remedy.
The U.S. response seems right to me. Here's a harder question, though. Where the Commission vote is divided evenly (and thus there's no "majority" view), the determination is deemed to be affirmative. See 19 U.S.C. §1677(11). How would this situation be dealt with under WTO rules?
