I know the Panel Report in Saudi Arabia - Measures Concerning the Protection of Intellectual Property Rights (DS567) came out way back in June, but I am only getting to it, and it is interesting at many levels.
The issue I'd like to flag today is how the Panel relied upon Russia - Traffic in Transit with regards to its interpretation of the TRIPs security exception. As far as I can tell, the Panel noted that the parties and a "majority of third parties" agreed with the "general interpretation and analytical framework" of that panel for interpreting Article XXI, remarked that Article 73(b)(iii) of the TRIPs Agreement used identical language, and proceeded to restate and apply the interpretation of the prior Panel. Am I missing something?
I understand that a panel might well find the reasoning of a prior panel convincing, and adopt is as its own. I also understand that a panel might conclude that if the parties agreed on a legal interpretation, it might proceed on an assuming arguendo basis to apply that interpretation. Here, however, it is not clear which, if either, of these approaches the Panel is taking. The panel never explicitly states that it agrees with and adopts the interpretation of Russia - Traffic in Transit. It just re-states in some detail what that Panel held. Nor does it ever say that it is simply applying the interpretation developed in that dispute because the parties agreed it should, without endorsing it.
I don't mean to quibble, but the decision of the Panel to apply the Russia - Traffic in Transit interpretation has implications. Even the Appellate Body, if it were still around, would probably agree that adopted Panel reports need not be followed in subsequent disputes, but the fact is that future panels will be less likely to deviate from an interpretation that has been followed in a series of disputes. Thus, clarity about what the Panel thought it was doing is important.
Don't get me wrong. I'm not disagreeing with this interpretation of Article XXI. In fact, I find it rather elegant, balanced and at least not, in my view, inconsistent with the text. I just wish the Panel had been clearer, one way or the other, about what it was doing here.
