The WTO panel report in India - Sugar and Sugarcane, circulated earlier this week, has a number of interesting passages about the role of precedent. They are a bit disconnected, and for some of them all I have is the panel's summary rather than the full statement from the party's submission, but nevertheless I thought it was worth highlighting for people are in to this issue.
First up, we have this statement from India as summarized in fn. 200 of the panel report:
India argues that: there is no rule of binding precedent in WTO dispute settlement; the ruling of a WTO panel is based on the facts and issues presented before it and does not have any precedential value; ...
Then on p. 201 of the linked document, we have India's own statement in the executive summary of its arguments:
India submits that there is no rule of binding precedent or stare decisis within the WTO dispute settlement process ...
I'm interested in hearing more about the Indian government's position here. "the ruling of a WTO panel ... does not have any precedential value" is much stronger than "no rule of binding precedent." What exactly is their view on this?
Then in Costa Rica's executive summary of its arguments, on p. 225 of the linked document, we have the following:
While Costa Rica agrees with India that there is no rule of binding precedent or stare decisis within the WTO dispute settlement process, Costa Rica believes that previous WTO panel reports may provide valuable guidance in assessing the characterization of the measures in question ...
Costa Rica seems to recognize that there are different degrees of precedent.
And here's the EU from the executive summary of its third party submission, on p. 232 of the linked document:
The EU is aware that there is no formal rule of precedent under WTO law. However, that does not imply in any way that continuity and consistency in the jurisprudence is less important. Continuity and consistency in the jurisprudence serve to provide security and predictability to WTO Members and the multilateral trading system as a whole, which is key to the attainment of the objectives mentioned in the preamble of the Marrakesh Agreement establishing the WTO and the GATT (all the more so in this times of pandemic where certainties melts like ice under the sun). WTO Members have recognised in Article 3.2 of the DSU that the dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system and that it serves to clarify the existing provisions of the covered agreements. Therefore, departures from the legal clarifications contained in previous adopted reports should be avoided unless there are cogent reasons for doing so.
The EU also makes the distinction between different degrees of precedent, with a reference to the "cogent reasons" approach.
And then finally we have the U.S. third party submission:
61. India’s status vis-à-vis Article 3 of the SCM Agreement was confirmed by the panel in India – Export Related Measures. The panel in that dispute analyzed the text of Article 27 and Annex VII of the SCM Agreement, and “conclude[d] that India does not fall under Articles 27.2 and 27.7 any longer, because it has graduated from Annex VII(b) and Article 27.2(a) of the SCM Agreement, and because Article 27.2(b) expired on 1 January 2003.” Therefore, the Panel found that “Articles 3 and 4 of the SCM Agreement apply in the present dispute.”62 India has appealed this panel report, but that does not diminish its persuasive value for the Panel’s evaluation of the same issue in this dispute.63
63 The adoption of a report does not give the interpretation in that report some different or higher value for another adjudicator because the DSU does not assign precedential value to adopted WTO reports. Rather, under the DSU, a WTO adjudicator is to apply customary rules of interpretation of public international law to the text of the covered agreement so as to neither add to nor diminish the rights or obligations expressed in that text. The exclusive authority to adopt authoritative interpretations of the WTO agreements is expressly reserved to the Ministerial Conference or General Council acting under special procedures. WTO Agreement Art. IX:3; DSU Art. 3.9; see United States Trade Representative Report on the Appellate Body of the World Trade Organization, February 2020, pp. 55-64, available at
https://ustr.gov/sites/default/files/Report_on_the_Appellate_Body_of_the_World_Trade_Organization.pdf
So for the U.S., there is some persuasive value to panel reports, but that value does not depend on DSB adoption, because the DSU does not assign precedential value, and instead panels must apply the customary rules of interpretation of public international law. But my question for the U.S. is: When panels apply the customary rules of interpretation of public international law, how much precedential value do prior reports have?
If you were hoping for a resolution of all this, prepare to be disappointed. Here's the panel at para. 7.61:
For the purpose of resolving the present disputes, we do not consider it necessary to address as a general matter the precedential value of prior panel or Appellate Body reports.
Sometimes I wonder how much disagreement there really is here and how much is just semantics. No one really thinks precedent is "binding" do they, in the sense that future adjudicators have to follow it in all cases? I would guess that for just about everyone, this is really just about the degree of persuasiveness. Unfortunately, that's a difficult concept to assign a quantitative value to. I still think the "cogent reasons" approach is a pretty good one, but I'm open to alternatives if someone can articulate them.
