This is from a separate opinion by an Appellate Body Member in yesterday's EU - PET (Pakistan) report:
5.57. As I see it, the Panel's ruling on whether it needed to continue to make findings with respect to the claims challenging the expired measure at issue was essentially based on the possibility of re-imposition of the same or similar measure, as well as the fact that such investigations had been initiated in other jurisdictions, and that a wide range of Pakistani exports other than PET benefit from the MBS. In this regard, I consider that the Panel did not properly engage with the European Union's argument that the expired measure at issue could not be easily re-imposed. According to the European Union, the Commission would first need to initiate a new countervailing duty investigation on the MBS within the meaning of Article 11 of the SCM Agreement. This new countervailing duty investigation would necessarily cover a different investigation period from that covered by the countervailing duty investigation at issue. At the time when the European Union requested that the Panel cease its work on this dispute, the European Union had not received any application to initiate such an investigation.154 Moreover, as the European Union points out on appeal, the MBS Old Rules that the Commission examined in the context of the countervailing duty investigation at issue have since been replaced by the MBS New Rules.155 As such, any new investigation concerning the MBS would be focused on the MBS New Rules.156 Therefore, I consider the European Union's assertion – that there was no reasonable possibility for the European Union to affect Pakistan's imports of PET in the near future on issues involving the same or similar WTO inconsistencies that were alleged in the present dispute – to be prima facie credible. 157 The European Union's assertion, regarding the absence of a risk of re-imposition of the same measure, therefore warranted a detailed examination by the Panel. Yet the Panel dismissed this assertion summarily.
5.58. That said, I recognise that, as the majority seems to suggest, the Panel Report may be read as suggesting that the Panel was concerned with the correct interpretation of the relevant provisions of the SCM Agreement and the GATT 1994, and the conformity, with this correct interpretation, of the Commission's reasoning and findings underpinning the now expired measure. However, such a reading of the Panel Report is anchored in a single sentence in paragraph 7.13 of the Report by the Panel acknowledging the parties' disagreement "on a fundamental level" about the Commission's findings as to what extent duty drawback schemes like the MBS may constitute countervailable subsidies.158 As discussed at paragraph 5.19 above, among its inherent adjudicative powers is the authority of a panel to assess objectively whether the "matter" before it, within the meaning of Article 7.1 and Article 11 of the DSU, has been fully resolved or still requires to be examined, following the expiry of the measure at issue. A panel should make this assessment before undertaking its duty under Article 11 of the DSU to "make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements". Turning to the case before us, I do not see any reasoning in the Panel Report demonstrating an objective assessment by the Panel of whether the "matter" before it, within the meaning of Article 7.1 and Article 11 of the DSU, had been fully resolved or still required to be examined, following the expiry of the measure at issue.
5.59. Thus, in my view, none of the three considerations relied upon by the Panel, at paragraph 7.13 of its Report sufficiently demonstrates that the Panel objectively assessed whether the "matter" before it, within the meaning of Article 7.1 and Article 11 of the DSU, had been fully resolved or still required to be examined, following the expiry of the measure at issue in this dispute.
5.60. For these reasons, I disagree with the finding of the majority that the European Union has not demonstrated that in the circumstances of this case, the Panel failed to comply with its duty under Article 11 of the DSU, as informed by Article 3 of the DSU, by deciding, at paragraph 7.13 of its Report, to proceed to make findings on Pakistan's claims in this dispute, notwithstanding the expiry of the measure at issue.
And this is the part of para. 7.13 of the panel report that was in question:
7.13. ... Third, we consider it a reasonable possibility that the European Union could impose CVDs on Pakistani goods in a manner that may give rise to certain of the same, or materially similar, WTO inconsistencies that are alleged in this dispute.37 In particular, we note that Pakistan claims, not contested by the European Union, that a wide range of Pakistani exports benefit from the MBS38 and that the parties dispute, on a fundamental level, how investigating authorities should determine the extent to which duty drawback schemes like the MBS may constitute countervailable subsidies within the meaning of the SCM Agreement. Given such circumstances, we proceed with this dispute.39
I can understand the desire to encourage well-reasoned panel reports, and to have each issue addressed in depth. In my view, however, if the standard described in the separate opinion is used, panel reports would end up being three times as long as they are now, and they are already too long. Panels simply cannot engage in depth with every argument put forward by the parties. On appeal, it's easy for the Appellate Body to take the view that a particular issue is of great importance, and to think that the panel should have done more with it. But panels cannot anticipate which issues the Appellate Body will deem important, and therefore the only way they could follow such a standard is to treat every issue as equally important. This would overwhelm them.
More generally, as I've been reading the EC - Aircraft, Article 21.5 AB report from Tuesday, I've been thinking that there are too many findings of DSU Article 11 violations these days.
