This is from Friday's Shrimp and Saw Blades WTO panel report:
6.7 The United States considers that the quotations to two Appellate Body Reports contained in paragraph 7.29 do not adequately reflect the role that each panel plays in the dispute settlement process. The United States submits that the rights and obligations of WTO Members flow, not from panel or Appellate Body reports, but from the text of the covered agreements. The United States adds that while prior reports have an important place in the dispute settlement process, Article 11 of the DSU defines a panel's responsibility to carry out its own objective examination of the matter before it, including the "applicability of and conformity with the covered agreements". Further, Article 3.2 of the DSU directs a panel to make that examination through an interpretation of the relevant treaty provisions in accordance with the customary rules of interpretation of public international law. The United States considers that a concern over consistency with a prior report adopted by the DSB should not and cannot override these provisions, which do not direct a panel to apply or defer to previously adopted reports. The United States adds that paragraph 7.29 is, in any event, not essential to the Panel's analysis. The United States therefore requests that we delete paragraph 7.29. China does not comment on this request for review. The United States has not convinced us that the reference to the two Appellate Body statements at issue in paragraph 7.29 is inappropriate or that the Appellate Body has erred in making these statements. In consequence, we decline the United States' request and have not deleted paragraph 7.29.
Here's what was in paragraph 7.29:
7.29 Moreover, while prior panel or Appellate Body reports are not, strictly speaking, binding upon panels, the Appellate Body has indicated that "[f]ollowing the Appellate Body's conclusions in earlier disputes is not only appropriate, it is what would be expected from panels, especially where the issues are the same" and that "[t]his is also in line with a key objective of the dispute settlement system to provide security and predictability to the multilateral trading system". In addition, the Appellate Body has in the past cautioned that the failure by a panel to follow previously adopted Appellate Body reports addressing the same issues undermined the development of a coherent and predictable body of jurisprudence clarifying Members' rights and obligations under the covered agreements as contemplated under the DSU.
This all sounds like an interesting debate, but I'm not sure exactly what it is we are debating. In particular, I don't fully understand the US position. Under the US view of things, what is the role of precedent? They say that prior reports have an "important place". But what is that place? It seems to me that if panels do not "apply or defer to previously adopted reports," we will end up with multiple conflicting reports. In that situation, WTO litigation will be subject to a great deal of unpredictability. Having said that, though, I'd like to hear more about how the US thinks that precedent should work in WTO dispute settlement.
