The more I read Appellate Body Reports, the more I notice (not infrequently) that when really difficult interpretative issues are at stake, then don’t count on the Appellate Body to make things easier for you. In other words, my impression is that the Appellate Body has developed a series of silent "under the sleeves" techniques allowing it to escape adopting clear positions on hard issues. For example, a tendency of changing a jurisprudence without saying explicitly that it is doing so (See for example para 5.131 of the Feed-In report and compare to para 590 of the Boeing report.) Or, adopting an abstract definition of a “public body” based on governmental authority, without indicating what is exactly such authority. The favorite trick of the Appellate Body in such a kind of scenario is to fall back on the necessity of a “case by case” analysis. One of the most regrettable technique is to reject a claim on a hard issue (e.g. when a measure may fall under more than one financial contribution in Article 1/SCM), with a brief passage beginning by the phrase "we are not convinced by" without really detailing why it is not convinced (See para 5.131 of the Feed-In Report). Worse than that, there is no clear exposition of the doctrine behind the rejection of a claim on such a crucial issue.
In this post, I would like to ask three general questions:
1)First, are other rulings of international law tribunals also so hard to read when difficult interpretative issues are at stake? In other words, are other international tribunals more inclined to take clear positions on hard issues in their rulings?
2) Second, is my impression simply a reflection of the fact that some WTO provisions are badly written? In such a case, of course the Appellate Body would never recognize such a fact and instead would insist about the necessity of a literal interpretation where every word and every silence are supposed to have a meaning. As for the reader, he/she will be left to his/her own devices, wondering if a recognition that the texts are badly written is perhaps the most honest position.( See for example, how the Appellate Body tries to give at all costs a meaning to the phrase "which would normally be vested in the government and the practice, in no real sense, differs from practices normally followed by governments" in Article 1/SCM). The more honest position would be to recognize that this phrase is simply a copy/paste of previous texts and that it does not make sense in the new SCM. The same copy/paste technique is at the source of interpretive issues of the Illustrative List of Export Subsidies in the SCM. As we know, this List dates all the way back to the Tokyo Round Code on subsidies. The same thing could be said about the famous Article 11 of the DSU. As Simon underlines in its Article on Article 11 (Trade Law and Development, Summer, 2012, Vol. IV, No. 1), this Article is a copy/paste from the dispute settlement agreement in the Tokyo Round. This is one of the sources of why the Appellate Body has a hard time with Article 11.
3) Third, do Appellate Body Members, who are not full time, really have sufficient time for their rulings? Sometimes, you feel clearly that they will try everything in order to conclude that it is not necessary for them to pronounce on a difficult issue.
