In the U.S. - Ripe Olives from Spain, Article 21.5 panel report circulated last week, I was struck by the discussion of the role of previous Commerce Department determinations in deciding future cases, and the obvious parallels to how the ongoing DS reform negotiation are talking about the role of precedent:
7.19. The United States maintains that, as with other determinations made by the USDOC, prior Section 129 determinations are relevant and instructive for how the USDOC will evaluate and apply an applicable law in future proceedings. Furthermore, the United States submits that consistency is a fundamental principle that the USDOC follows, for purposes of the fair administration of the law, when interpreting statutes and regulations. According to the United States, the USDOC would not depart from prior interpretations or determinations absent a reasonable justification. ...
The U.S. replies to the panel's questions give us a little more detail. Here was the question the panel asked:
Question 2 (To the United States) In paragraph 18 of its second written submission, the European Union submits that the Section 129 ripe olives determination amounts to a "one -time" interpretation that "may at best be relevant for compliance with an 'as applied' violation but not for compliance with an 'as such' violation".
a. To what extent is the evaluation of Section 771B in the ripe olives Section 129 proceeding binding—if at all—on future assessments by the USDOC under Section 771B?
And here was the U.S. reply:
U.S. Response to Q2(a):
...
3. Prior determinations are relevant and instructive on how the USDOC would consider evaluating and applying Section 771B in future proceedings. Further, for purposes of fair administration of the law, consistency is a fundamental principle the USDOC follows when interpreting statutes and regulations. Thus, in future proceedings, the USDOC would consider the legislative interpretation and the analysis contained in the Section 129 determinations in its evaluation of whether, and how, to apply Section 771B in the future. As an administrative agency, the USDOC would not depart from prior interpretations or determinations unless there were a reasonable justification to do so.
In response to a later question, the U.S. said:
As we have explained, consistency is a fundamental principle the USDOC follows when interpreting statutes and regulations.4 Thus, the USDOC would seek consistency in its interpretation and application of Section 771B in the future.
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4 Prior determinations are relevant and instructive on how the USDOC would consider evaluating and applying Section 771B in future proceedings. For purposes of fair administration of the law, consistency is a fundamental principle the USDOC follows when interpreting statutes and regulations. See, e.g., Consol. Bearings Co. v. United States, 348 F.3d 997, 1007 (Fed. Cir. 2003) (holding that agency acts arbitrarily and capriciously when it “consistently followed a contrary practice in similar circumstances and provide[s] no reasonable explanation for the change in practice”). ...
Summing all this up, the panel was asking whether USDOC Section 129 determinations are "binding" on "future assessments." The U.S. responded by explaining that past determinations are "relevant and instructive," and that "the USDOC would not depart from prior interpretations or determinations unless there were a reasonable justification to do so." It also said that "consistency is a fundamental principle the USDOC follows when interpreting statutes and regulations."
That all leaves me with a question: Could these standards from U.S. administrative law help show the way on how past reports are treated in WTO dispute settlement?
