One of the issues that has come up in the Appellate Body appointments crisis is what exactly the Appellate Body's role should be. You can imagine a range of options here. At one extreme, it could be an arbitrator that decides the outcome without any reasoning at all. At the other extreme, it could be like a Supreme Court of International Trade which people rely on to establish binding constitutional principles. Most people probably want something in the middle, and that's where the Appellate Body was, although where exactly on the continuum it was is the subject of heated debate.
The possibility of issuing decisions with no reasoning at all seems like a non-starter, as the decisions just wouldn't have much credibility. So, the Appellate Body has to say something about the basis for its decisions. And if the Appellate Body is offering any reasoning at all, the interpretations in past cases are going to have some impact on how the parties argue future cases and how the Appellate Body rules in those cases. But the precise role those interpretations play still needs to be decided. If the WTO Members don't make the answer to that question clear, the Appellate Body will end up deciding the question on its own.
As part of its argument that the Appellate Body has overreached, one of the points the U.S. has made is that the Appellate Body is not following the rules as agreed in 1995. That raises the question of what exactly was intended by the drafters for the role of the Appellate Body. There were a lot of drafters, and it's hard to track them all down and quiz them about what they were thinking at the time. Even within a government, there might have been a range of views. The U.S. government is made up of many people, and they may not all have agreed on what they wanted from the Appellate Body.
Nonetheless, it's interesting to note what was said in the Statement of Administrative Action submitted by the Clinton administration as part of the Uruguay Round Agreements Act:
[DSU] Article 17 creates another new procedure, appellate review of panel decisions, which should help ensure uniform interpretation of Uruguay Round Agreements.
Based on the term "uniform," it seems as though the administration had in mind a role for the Appellate Body as providing a set of interpretations that would offer some consistency. GATT panels had sometimes put forward competing interpretations of provisions, which was a problem. The Appellate Body could put an end to that by offering a more definitive conclusion that would generally be followed. There's no reference to the specific role of precedent here, but I can imagine that the drafters of the SAA were thinking of a weak form of precedent, involving a departure from past decisions if there were good reasons to do so.
Now, this is just one sentence, and it's kind of vague, and governments can certainly rethink their policies. But as we debate the future role of appellate review in WTO dispute settlement, it's worth taking into account what the U.S. government's Uruguay Round drafters thought the DSU provisions meant.
Under Lighthizer, the U.S. seemed to be pushing away from the ideal of "uniform interpretation" when it said this:
Articles 17.6 and 17.13 of the DSU do not “vest” the Appellate Body with broad authority to develop “a coherent and predictable body of jurisprudence.”
What exactly is the difference between "uniform interpretation" and “a coherent and predictable body of jurisprudence”? I'm not sure, but it will be interesting to see if the Biden administration's USTR team can come up with a proposal here that can stay true to the SAA guidance and make all the various players happy.
