Today's India - Solar Cells Appellate Body report is the second report in a row with a separate opinion (could be a record -- I'll have to check). This separate opinion is a little different, as it does not relate to a particular legal finding, but rather to the scope of the Appellate Body's authority in relation to the exercise of judicial economy. Here's the relevant excerpt (footnotes omitted), starting with the decision to exercise judicial economy on certain issues, and then going to the separate opinion:
5.155. Given these findings, we do not consider it necessary further to examine India's claims on appeal pertaining to the Panel's "limited review and analysis" of whether the DCR measures are "essential" to the acquisition of solar cells and modules for the purpose of Article XX(j), or whether they are "necessary" within the meaning of Article XX(d). Nor do we consider it necessary to examine India's arguments as they relate to the requirements of the chapeau of Article XX of the GATT 1994.
5.5 Separate opinion of one Appellate Body Member
5.156. Having upheld the Panel's findings under Article III:8(a), Article XX(j) and Article XX(d) of the GATT 1994, the Division hearing this appeal has determined that it is not necessary further to address India's claims regarding the remaining legal elements under those provisions. While fully agreeing with my colleagues in this regard, I wish to offer some remarks regarding why I consider that it was appropriate to end our analysis, without further disposing of the other issues raised by India on appeal. My remarks relate mainly to the adjudicatory function of the Appellate Body in general, and I begin therefore by reflecting on the Appellate Body's function as contemplated under the DSU.
5.157. Article 17.1 of the DSU describes the Appellate Body's function in broad terms: to "hear appeals from panel cases". In particular, Article 17.12 of the DSU provides that the Appellate Body "shall address" each of the issues raised by the parties to a dispute during an appellate proceeding, and Article 17.6 delineates the scope of appeals as "issues of law covered in the panel report and legal interpretations developed by the panel". Thus, the Appellate Body is called upon to review any aspect of a panel's analysis, including a panel's legal reasoning, provided that it has been properly raised by the parties on appeal in accordance with Article 17.6. This language in the DSU limits the scope of appellate review to the issues raised by the parties in the context of a given dispute. Once raised by the parties on appeal, however, it is the legal "duty" of the Appellate Body to "address" each of those issues.
5.158. In deciding how to "address" each of the issues raised by the parties, the Appellate Body is guided by certain overarching principles. First, the Appellate Body, as a part of the WTO dispute settlement mechanism, contributes to the objectives of the "prompt settlement" of a dispute or "positive solution to a dispute", which are enunciated in the DSU. Thus, the Appellate Body may, for example, decline to make specific findings regarding an issue raised on appeal, and "address" the issue only to the extent necessary to ascertain that, in light of the other rulings under a different, but related, claim on appeal that resolve the dispute, there was no need to rule on that particular additional issue in question. Whether making such an additional finding would serve the goal of facilitating the prompt settlement and effective resolution of a dispute is a matter for the Appellate Body to decide in light of the particular circumstances of each case, including the nature of, and relationship between, the relevant claims on appeal, as well as their implications for implementation.
5.159. In addition, a necessary incident of the adjudicative function conferred upon the Appellate Body is that it must ensure that the parties have the opportunity fully to present their arguments and evidence, and that they enjoy "due process" throughout the appellate proceeding. Thus, the need to safeguard the due process rights of the parties in cases where, for example, a particular issue has not been sufficiently explored before the panel is an important constraint on the Appellate Body's ability to rule on particular issues raised on appeal.
5.160. That said, the Appellate Body's decision on how to "address" each of the issues on appeal should be understood as an extension of its duty to properly exercise its adjudicative function. Given the express language contained in Article 17.12 of the DSU, i.e. "shall address", the Appellate Body is not required to provide reasons as to why it adjudicates a particular issue properly raised by the parties on appeal in accordance with Article 17.6 of the DSU. However, when the Appellate Body considers, for example, that further findings on issues appealed are not necessary in order to facilitate the prompt settlement and effective resolution of the dispute, it will explain this in its report.
5.161. This brings me to Article 3.2 of the DSU, which provides that the "dispute settlement system of the WTO … serves … to clarify the existing provisions of [the covered] agreements in accordance with customary rules of interpretation of public international law". As the Appellate Body has noted, there is nothing in Article 3.2 that would encourage "the Appellate Body to 'make law' by clarifying existing provisions of the WTO Agreement outside the context of resolving a particular dispute." The Appellate Body cannot be expected to offer interpretative guidance regarding provisions of the covered agreements in an abstract manner beyond the scope of what is required in a particular dispute. To do so would go beyond the Appellate Body's adjudicatory function as contemplated under the DSU.
5.162. At the same time, WTO Members including the third parties to a dispute have a systemic interest in receiving an Appellate Body report that properly clarifies the existing provisions of the covered agreements. Moreover, an Appellate Body report that appropriately disposes of the matter at issue, which ultimately serves to clarify the relevant provisions of the covered agreement, is not only required under the DSU, it is also important in that it allows the DSB to make sufficiently precise recommendations and rulings "in order to ensure effective resolution of disputes to the benefit of all Members".
5.163. Through this separate opinion, I hope to be able to shed light on how I view the Appellate Body's function, as well as its limits, both in the context of the present appeal, as well as others on which I have been working with my distinguished colleagues at the Appellate Body.
To those who follow these things, this separate opinion obviously seems addressed to the U.S. concern about Appellate Body reports overreaching and making findings on issues they don't need to. Does this statement by one Appellate Body member help clarify things? Does it make you wonder what the rest of the Appellate Body members think? Should this kind of general clarification of the DSU be offered by the Appellate Body in the context of a particular dispute?
