This morning I watched a very interesting IIEL event on "Rethinking the WTO: Opportunities for Transatlantic Cooperation," moderated by Joost Pauwelyn, and featuring Sabine Weyand, Jennifer Hillman, Thomas Graham, and Henry Gao as panelists. (I think they will post the recorded video at some point.)
One thing Tom Graham said jumped out at me and I wanted to comment on it:
What Sabine said earlier, just very briefly, struck me as similar to what the EU has said for a long time, just tell us what you want, the US won't tell us what it wants. [But the] US has been painfully clear, including 121 pages recently, over the years on exactly what it wants, which is more fundamental than the EU has wanted to hear, rather than simply tinkering here and there with procedures and words.
The 121 pages is here. I've read those pages, and the statements by the U.S. at DSB meetings, and other comments by U.S. officials, and I will say that I have very little idea of what the U.S. wants on many of the issues it has raised. Let me illustrate this by focusing on one particular issue: DSU Article 11 appeals. During the event, Graham made reference to a recent piece by former U.S. Ambassador to the WTO Dennis Shea, where Shea said the following on Article 11:
2. The [EU] strategy states that WTO panels are the triers of fact and that the role of the Appellate Body is “strictly limited to addressing legal issues raised on appeal.” Does the European Union now reject the position it previously advanced that the Appellate Body had the right to review whether panels “made an objective assessment of the facts” under Article 11 of the Dispute Settlement Understanding? Even the Appellate Body complained that these “Article 11 appeals” encouraged parties to relitigate their cases at the appellate level.
From this statement, I gather that at least some people at USTR don't want DSU Article 11 appeals that cover "an objective assessment of the facts." But Article 11 is broader than just factual issues. Here's the relevant text:
The function of panels is to assist the DSB in discharging its responsibilities under this Understanding and the covered agreements. Accordingly, a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements. ...
Based on this language, I see three main possible subjects for appeal under Article 11: Did the panel make "an objective assessment of the matter before it"? Did the panel make "an objective assessment of the facts of the case"? Did the panel make "an objective assessment of ... the applicability of and conformity with the relevant covered agreements"?
So here's my question for Tom Graham, Dennis Shea, or any other former or current USTR official: Should there be DSU Article 11 appeals on any or all of the three issues noted above? And if so, what standard of review should be applied to each one?
(Just to remind everyone, as a matter of policy I'm against using Article 11 for appeals. Here I'm just trying to clarify the U.S. view of Article 11.)
