The newly-released Panel Report in US – Solar Safeguard (WT/DS562/R) is of course notable in that, for the first time, a global safeguard measure challenged in WTO dispute settlement has fully survived panel review. A longstanding practice of imposing standards so high that they could never be satisfied has perhaps been breached. Maybe if this type of standard had been applied earlier, and safeguards had been reasonably available as the parties to the Uruguay Round negotiations anticipated, we would not be plagued with the effectively unbounded Section 232 measures applied by the Trump Administration?
The Report is however notable in other ways. The first thing that struck me was its style. It is a relatively short report by WTO standards, almost readable. The report’s legal analysis tends to focus on treaty text, rather than prior decisions, and avoids lengthy quotations from Appellate Body decisions. Where it does refer to prior decisions, it refers to “previous DSB reports”, not differentiating between adopted AB and panel reports, and tends to drop the references to those reports to footnotes. And when referring to such decisions, the Report carefully notes that the panel “agrees” with the findings, rather than simply treating them as a source of law in themselves.
Substantively, the Report’s approach to “unforeseen developments” and “the effect of WTO obligations” is also interesting. Regarding the latter point, it is enough that the Member “identifies a WTO obligation that would have prevented it from raising tariffs on the product at issue” (para. 7.52). Regarding the former, the Panel accepted the proposition that “China’s industrial policies, five-year plans and other government support programs” were a development that could not have been foreseen by US negotiators (para. 7.26). Although the Panel did not specifically reference this, the US had argued that WTO Members had “committed to open, market-oriented policies” (para. 7.24).
These comments just skim the surface of the Report. I’d be very interested to hear the reaction of other readers ….
