As I tweeted earlier, a dramatic moment occured in the Seal Products hearing this morning, when the chair of the panel took the view that once a panel has been approved by the DSB whether the original request is defective is merely a matter of academic interest and of no concern for the panel. Now essentially 15 years of AB jurisprudence of course says the reverse. Here is EC-Bananas III: '[a]s a panel request is normally not subjected to detailed scrutiny by the DSB, it is incumbent upon a panel to examine the request for the establishment of the panel very carefully to ensure its compliance with both the letter and spirit of Article 6.2 of the DSU."(Para. 142)(emphasis added)
Anyone can get the law wrong on a specific complex point, and we have appellate review: but I still find it incredible that the Chair (!) of a panel would not know the fundamental requirement and duty that the panel establish that the basis for its jurisdiction is adequate. This goes to the fundamental legality and legitimacy of the panel's very existence. Not being aware of the basic requirements for the panel's jurisdiction brings in serious question whether the Chair has any credibility left to run the panel procedings and be responsible for its proper operation. I would appreciate the reaction of readers of this blog (and especially anyone else who witnessed the episode this morning)-is it going too far to suggest that he should withdraw and be replaced in order to protect the credibility and integrity of the panel.
