Last week, I posted about the Inside US Trade summary of Tom Graham's remarks on the Appellate Body (entitled "The Rise (and Demise?) of the WTO Appellate Body"). I now have the full text, which is here. Here is one part:
Soon after I joined the Appellate Body I was struck by several things:
First, the degree of control by the Appellate Body staff leadership, compared with the control that one would think should have been coming from Appellate Body
Members;Second, an over-emphasis on "collegiality" that shaded into peer pressure to conform, together with
Third, an excessive striving for consensus decisions coupled with a discouragement of dissents. This led to excessively long and unclear compromise
reports. It also encouraged over-reach, gap filling, and advisory opinions, as way of accommodating conflicting views.Fourth, 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, I believed.
Fifth, an undue adherence to precedent -- and don't let anyone tell you that was not the case -- precedent not only as to outcomes, but also as to reasoning, definitions, and obiter dicta. What this did was to bake in mistakes. And it made it more important to know the past than to think anew. It empowered those who best knew the past, such as staffs, and it incentivized litigators to argue the past, at the expense to all of openly considering whether the past should be reconsidered.
