In today's DS437 Appellate Body report, there was a separate opinion covering several issues. Here is one of the issues (footnotes omitted):
5.5.1 Public Body
5.242. I concur with the majority in: (i) rejecting China's interpretation of the term "public body" under Article 1.1.(a)(1) of the SCM Agreement; (ii) upholding the Panel's conclusion that China failed to demonstrate that the USDOC's public body determinations in the relevant Section 129 proceedings are inconsistent with Article 1.1(a)(1); and (iii) leaving intact the Panel's conclusion that China has not demonstrated that the Public Bodies Memorandum is inconsistent "as such" with Article 1.1(a)(1).
5.243. But I believe the majority has repeated an unclear and inaccurate statement of the criteria for determining whether an entity is a public body, and I disagree with the majority's implication that a clearer articulation of the criteria is neither warranted nor necessary.
5.244. I believe the continuing lack of clarity as to what is a "public body" represents an instance of undue emphasis on "precedent", which has locked in a flawed interpretation that has grown more confusing with each iteration, as litigants and Appellate Body Divisions repeated the original flaw while trying to navigate around it. That is what I believe the majority has done here.
5.245. The original mistake was the attempt, in US – Anti-Dumping and Countervailing Duties (China), to define the term "public body" as an entity that "possesses, exercises or is vested with governmental authority". Certainly that is one way to identify a public body. But it is not the only way to give meaning to a concept that must be flexible because it depends for its meaning on specific circumstances. In each subsequent appeal where the issue has been presented, the Appellate Body has treated the phrase "possesses, exercises or is vested with governmental authority" as a necessary element for determining whether an entity is a public body – albeit while adding criteria that seemed to undermine the role of that element. That has sown confusion as participants and the Appellate Body have struggled to show how situational criteria fit with a rigid and limiting phrase.
5.246. This case is the latest example. The participants and third participants all dutifully claimed that their positions fit the "possesses, exercises or is vested with governmental authority" criterion, while differing – sharply in the case of the two participants – in their understanding of what that criterion means. One participant, the United States, expressly asked us to clarify the meaning of the term "public body". For this reason, and for the other reasons given above, I believe a clarification of the criteria for determining whether an entity is a public body is both necessary and warranted.
5.247. The text of Article 1.1(a)(1) does not elaborate on the meaning of the term "public body". The only textual indication is the collective reference to "a government or any public body" as comprising the entity "government", which is the subject of the disciplines of the SCM Agreement. This text does not call for a single, abstract definition or basic criterion for the term "public body". Instead, Article 1.1(a)(1) calls for an examination of whether a transfer of financial value is "by a … public body" and can therefore be attributed to a government. As I see it, that examination involves an assessment of the relationship between the relevant entity and the government. When that relationship is sufficiently close, the entity in question may be found to be a public body and all of its conduct may be attributed to the relevant Member for purposes of Article 1.1(a)(1). The relationship between an entity and a government may take different forms, depending on the legal and economic environment prevailing in the relevant Member. Certainly, as noted above, an entity may be found to be a public body when it "possesses, exercises or is vested with governmental authority". But that is not, and should not be treated as, the essential criterion in every case. In my view, if a government has the ability to control the entity in question and/or its conduct, then the entity could be found to be a public body within the meaning of Article 1.1(a)(1). I do not believe the Appellate Body should elaborate on the meaning of the term "public body" in greater detail. Rather, it should leave space for domestic authorities to apply the criteria described above, and set forth in the paragraph immediately below, provided their decisions meet the requirements of objectivity, reasoned and adequate explanation, and sufficient evidence.
5.248. In the hope of providing clearer guidance to future litigants and panels, and of encouraging them not to feel unduly constrained by past statements on this subject, I offer the following restatement, which incorporates many of the concepts developed by the Appellate Body, while, I believe, clarifying the criteria properly:
Whether an entity is a public body must be determined on a case-by-case basis with due regard being had for the characteristics of the relevant entity, its relationship with the government, and the legal and economic environment prevailing in the country in which the entity operates. Just as no two governments are exactly alike, the precise contours and characteristics of a public body are bound to differ from entity to entity, State to State, and case to case. An entity may be found to be a public body when the government has the ability to control that entity and/or its conduct to convey financial value. There is no requirement for an investigating authority to determine in each case whether the investigated entity "possesses, exercises or is vested with governmental authority".
After the opinion's discussion of the third issue, the Appellate Body Member who wrote the opinion then stated:
5.5.4 Overall summary
5.281. I respectfully suggest that it would be beneficial for the dispute settlement system if future litigants, and panels in adherence to their mandate under Article 11 of the DSU, would continue to take into account separate opinions such as this along with relevant past Appellate Body reports, without regarding either as necessarily determinative.
Dissents and concurrences seem pretty natural to me, and I have no problem with them in WTO dispute settlement. I also think it makes sense to provide the name of the author of a separate opinion, although in some instance we can figure it out pretty easily without any explicit identification.
The recent U.S. effort to make slight changes to the importance of past Appellate Body reports, and the attempt in the case above to assign a particular role to majority and separate opinions ("without regarding either as necessarily determinative"), has been thought-provoking. I'm not sure there is much hope for providing additional clarity on these issues (it's just something courts have to muddle through), but it's interesting to watch people try.
