Simon Lester's posts about Tom Graham's recent speech on the Appellate Body ("AB") reminded me the speech Graham gave back in 2013, which was "[s]oon after [he] joined the Appellate Body". When I re-read the 2013 speech entitled "It Sure Looks Different from the Inside: Deciding International Disputes at the WTO", I couldn't help but notice how things looked different back in 2013 and now. Below are a few examples:
Issue |
Graham in 2013 |
Graham in 2020 |
On the role of the AB and its Members |
“although they don’t call us that, we are in effect judges, on what is in effect the highest appeals court for the rules of global trade.” “We are judges, applying a legal craft.” |
He regards "that disdain as indicative of … an orthodoxy of viewpoint, about the role of the Appellate Body as a selfanointed international court” “The negotiating history strongly indicates that [the AB] was intended not as an international court, but as a check on occasional egregious mistakes by panels. It was intentionally not called a court. Members of the Appellate Body were not called 'judges.'” |
On the role of the AB Secretariat |
“The Appellate Body has its own staff: an outstanding group of young lawyers and assistants from all over the world. The staff serves the Appellate Body as a whole – that is, Members don’t have their own law clerks – which contributes to the sense of group commitment and collegiality that is part of our tradition.” “I would like to say, on the completion of my first year as a Member of the Appellate Body, that the sense of responsibility and dedication to the institution of my fellow Members have been enormously impressive, as has been the extraordinary ability and dedication of our truly great multinational staff.” |
“make sure the persons tasked with making the decisions -- the arbitrators, the deciders, the successors to Appellate Body Members -- control the consideration of appeals from beginning to end. Prohibit anyone other than the team -- deciders, and staff working directly on a case -- from discussing the case, either in meetings, or in unofficial side-bar chats, unless authorized by the deciders to do so. In others words, no partisan participation in team discussions, and no private lobbying of individual deciders, by staff leadership not part of the team on the case.” |
On whether the AB Members should have practical familiarity with trade rules or just legal rules |
“For we are not policymakers, and we are not negotiators. We are judges, applying a legal craft. It is as craftsmen—not statesmen -- that we work together to try to get it right.” |
“These things happened, I believe, in part because many Appellate Body Members -- and the staff leadership -- lacked practical familiarity with trade remedies or appreciation for their role in the WTO rules and system.” |
On whether there is one right answer to the meaning of specific WTO rules |
“Our unspoken mission is to get it right: to interpret and apply the WTO rules correctly. For, as I said, in the current WTO system we are the final arbiters of what the rules of international trade mean.” |
“Belief in a single, correct interpretation, and seeking it through extended analyses, encouraged gap filling and overreach. It made the Appellate body strain to look for that 'one correct' interpretation instead of asking whether the panel made a serious error, whether the challenged measure was prohibited by the rules as written.” “In other words, the question is not what is the ideal interpretation, it is whether the challenged action is permissible, that is, is not prohibited.” |
On “plain meanings” & “context” as per Article 31(1) of the Vienna Convention |
“‘Ordinary meaning’ has, well, a pretty clear ordinary meaning. The same should be case for interpreting terms ‘in their context’” |
“Each of the initial steps for treaty interpretation set out in Article 31 of the Vienna Convention -- plain meaning, in context, in light of object and purpose -- usually calls for a choice: which 'plain meaning?' What context?” |
On oversight on AB by WTO Members |
“No decision of the Appellate Body has ever been overturned by the WTO Dispute Settlement Body – the committee of the whole WTO membership that oversees us.” This made the WTO DSM “the most successful international dispute settlement system in the history of the world.” |
“Together, these characteristics amounted to the Appellate Body acting like a court that was not accountable to anyone. Not accountable to WTO member governments, because they had no means of correcting appellate decisions, and they could not agree on amendments to the rules. Not accountable to the Dispute Settlement Body, the committee-of-the-whole WTO membership, because Appellate Body decisions are automatically accepted unless a majority opposes them, and that turned the Dispute Settlement Body into a rubber stamp for Appellate Body decisions.” |
On the finality of AB’s decisions |
“in the current WTO system we are the final arbiters of what the rules of international trade mean.” “To paraphrase Harry Truman, for the rules of the World Trade Organization, the buck stops with us.” This shows “The respect for the institution of the Appellate Body; the sense of responsibility of everyone involved--Members and staff.” |
This creates “a sense of infallibility – ‘it's right because we say it’ -- and of entitlement, to stretch the words of agreed texts, and to stretch decisions beyond merely resolving a particular disputes, so as to create a body of jurisprudence, or to head off future disputes, matters that were beyond the Appellate Body's mandate” |
On the precedential value of AB’s decisions |
“As a practical matter, we have the final word not only in deciding cases but also in creating a body of jurisprudence for this global trade institution that is still new in the sense of the usual timeframe for creating international law.” |
“an undue adherence to precedent… bake in mistakes.” “They grew over decades and they became an integral part of what the appellate system was, and of the US-led critique.” |
On 90-day rule |
“The rules require us to issue our reports not later than 90 days after an appeal is filed. The last 20 of those 90 days are taken up with translation into the other official languages of the WTO, so in reality we have 70 days to [do so many things]”, which turns the 90-day rule into “very tight – sometimes impossible – time limits.” |
“The Appellate Body was expected to resolve appeals in 60 days, and was required to do so within 90 days.” |
On the scope of Appellate Review |
“the rules also require us to address every issue raised by the parties to the dispute.” |
“The AB was to consider only "legal" issues. And, the AB was only to "uphold, reverse, or modify" panel reports.” Therefore, the AB should “banish most Article 11 claims on appeal.” |
To be fair, notwithstanding the vehement disagreements between Graham 13’ and Graham 20’, he has remained consistent on some issues, such as the utility of “object and purpose” in treaty interpretation, whether the AB should fill in the gaps or defer to “creative ambiguity” when the text is unclear, and whether the WTO rules can accommodate different economic systems, etc.
I'm not saying that one can not change his views, but it is rather unusual that many of Graham's views seem to have shifted 180 degrees from when he first joined the AB. I wonder what was the reason, other than the quip (to borrow from Graham’s 2013 lecture) that “It Sure Looks Different from the Inside, especially when One is Now Outside?”