In the hope of pushing the substantive discussion related to the Appellate Body crisis forward, here is a brief response to a couple points the U.S. made at the General Council meeting yesterday.
First up, the U.S. says the following about the issue of "precedent":
On so-called “cogent reasons”, the Facilitator’s Report suggests that Members agree that “precedent” is not created through WTO dispute settlement. If this is so, then why did some WTO Members advocate for the Appellate Body to assert that its interpretations must be followed by panels absent unidentified cogent reasons? And why then does the Appellate Body assert a precedential value for its reports like an authoritative interpretation that only WTO Members in the Ministerial Conference or General Council can give?
I've talked about this issue before, and I won't go through it all again, but let me just add this: If you look at the Appellate Body's reasoning on GATT Article III:4 over the years, it's pretty clear that the Appellate Body's view has evolved, and that it feels free not to follow its past reasoning.
Next is DSU Article 11:
With respect to the issue of appellate review of questions of fact, we are concerned that the Appellate Body would say it is already abiding by the text in the Facilitator’s Report, especially since the Appellate Body has interpreted DSU Article 11 to convert questions of fact into questions of law, and we hear WTO Members expressing different views on the meaning of Article 11 of the DSU.
I would really like to see the U.S. make the case that DSU Article 11 should not be the basis of an appeal. That would be an interesting debate. If they are not willing to go that far, maybe they would endorse the strict standard set out in Hormones? (And speaking of not following past cases, the Appellate Body's application of Article 11 seems to have gone back and forth as well).
Finally, the U.S. said this about AD Agreement Article 17.6(ii):
With respect to the issue of overreach, it is clear that the Appellate Body would say that it already abides by the text of Article 17.6 of the Anti-Dumping Agreement and, in turn, the text in the Facilitator’s Report. The problem is that the Appellate Body has adopted an erroneous interpretation of Article 17.6 that renders it inutile. We have not yet seen convergence on how to address this issue, or other instances in which the Appellate Body has departed from the plain text of other covered agreements.
On this provision, I had the following suggestion a while back for new text to clarify how this provision should work:
The redrafted Article 17.6(ii) text could look something like this:
(ii) the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations. As an illustration of a situation where more than one permissible interpretation exists, if the panel concludes that the interpretive approach set out in Article 31 of the Vienna Convention on the Law of Treaties leaves the meaning of a provision ambiguous or obscure, there shall be a presumption that the provision admits of more than one permissible interpretation, and the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.
I'm curious what the U.S. thinks of this idea.
The facilitator's report is here.
