This is a guest post by James Flett of the European Commission. The views expressed are those of the author, not the EU, the EU Commission, or its Legal Service.
“Cyclical Stability”
Since we seem to be in a cyclical environment, we should perhaps consider whether or not we can envisage some kind of cyclical dispute settlement system, as a lesser evil, but (apparently the only other) way forward, at least at this time. Perhaps successive ABs could be appointed en bloc for a single (possibly extended) term. Past AB clarifications would continue to provide guidance in the meantime, but each new AB would constitute a re-set in which litigants would be entitled to re-litigate all or a certain number of past issues (if they really thought the effort was worth it), without the cogent reasons standard, leading to a new decision, or confirmation of the old. Perhaps temporary “(cyclical) stability” would be better than none at all, and perhaps that is all the world and its States (as well as the WTO) are ready for until such time as existing limitations can be rectified. Perhaps we are actually living through just such an organic (d)evolution.
Cases are actually, of course, decided on their facts, such that the line of jurisprudence is, in any event, never completely straight or “consistent” – it is rather a bit jagged, like the teeth of a saw, as it weaves back and forth over different cases and fact patterns and different judges (with all of their inevitable personal baggage). This reality is veiled by the technique of distinguishing cases on their facts, even when such factual distinction is somewhat doubtful. Bad cases are rather destined not to be followed or elaborated on – they just become dead-ends, and when litigants cite them, they are politely ignored. Good cases, on the other hand, become the ones that are generally cited with approval as a good basis to start from. This is the organic nature of the common law system. We can all identify cases that we might consider fall into one category or another.
If we cannot have real consistency over time, not least because the legal paradigm has now been well and truly jammed up by the power narrative – and taking into account that Members never vote, including on authoritative interpretation, because of the problem that all Members have one vote irrespective of relative size and trade – then what is the next best thing? No consistency, or “cyclical consistency”. With “cyclical consistency”, at least one would get eight years of one AB following itself, based on the cogent reasons standard. Subsequent ABs could then decide whether or not to follow past ABs. They probably would for most issues. Not everything would be re-litigated. Re-litigated issues are more likely to be confirmed than overturned. Maybe the US would get zeroing reversed. Some people would say that would be wrong in many ways. But maybe that would be better than no consistency at all.
Maybe “cyclical consistency” is a way of overtly (and perhaps honestly) recognising the “veiled politics” of adjudication inherent in a system replete with such attenuated constructive ambiguities, and a completely dysfunctional legislative branch, otherwise obscured in the reality of the jagged line of jurisprudence.
It would probably be possible without amending the DSU. Members could agree, in one step, to appoint and re-appoint seven AB Members for two periods of four years. The rule that three should expire after two years could be considered inapplicable since it only applies to the entry into force of the WTO Agreement. The re-set and intra-AB cogent reasons standard could be the subject of an exchange in the DSB, without any need for a DSB decision.
