The WTO has now posted a document with the DS reform text that will be discussed at the upcoming Ministerial Conference (see the Consolidated Text of a Ministerial Decision on Dispute Settlement in Annex 1 of the document). There's a lot in there, although nothing on appeal/review unfortunately. One thing that jumped out me was the part on precedent:
TITLE V
GUIDELINES FOR ADJUDICATORS...
Chapter III
No Precedential Value of Past Reports
1. Adjudicative reports shall have no precedential effect. This means that a previous report that interprets or applies a provision of the covered agreements does not have binding force in respect of a subsequent dispute. Each adjudicator bears the responsibility to develop its own interpretation of a provision of the covered agreements applying customary rules of interpretation of public international law as required by Article 3.2 of the DSU. Each adjudicator shall also apply relevant interpretations adopted by the Ministerial Conference or the General Council pursuant to Article IX:2 of the Marrakesh Agreement. An adjudicator may use a previous report in developing and explaining its own interpretation only to the extent the adjudicator determines the report to be relevant to a provision at issue in the dispute and to contain persuasive analysis of that provision under customary rules of interpretation of public international law, or to distinguish its interpretation from a previous report. Neither Members nor adjudicators may presume that an interpretation of the covered agreements contained in a WTO dispute settlement report is persuasive.
I'm not sure "no precedential value of past reports" is the best title for this provision, as it seems to be more about defining exactly what the precedential value of past reports is. The provision rejects the idea that precedent is binding, but makes clear that reasoning in past cases can be used if it is persuasive. Binding and persuasive are two types of precedent, so the provision is more about assigning a specific precedential value than it is about eliminating the role of precedent entirely.
But putting that aside, I'm trying to work out what practical impact this provision would have on how WTO adjudicators make use of past cases. At this point, to be honest, I am not at all certain about how things would play out. Here are two extreme scenarios I can envision:
- This new provision would have very little impact because what it describes is pretty close to how things actually operate now. Generally speaking, WTO adjudicators follow the reasoning in past reports when they deem it "to contain persuasive analysis" of the provision in question.
- It would change the WTO adjudication culture so as to discourage following precedent. This could mean that there would be fewer cites by parties and panels to past cases, which would create more work for parties and panels because they would have to reason through everything in each case when previously they could just cite a prior case as shorthand. In addition, it could lead to more divergences in interpretations of WTO obligations, as panelists take advantage of the ability to put their own stamp on things and feel less constrained by what others have said (e.g. on GATT Article III, where people's views continue to differ).
Maybe the most likely impact is somewhere in between these two extremes, but there's a lot of room in between, and I'm not sure about the landing point.
One complicating factor, of course, is whether there is going to be two-tier review going forward. In the past, you had the Appellate Body generally following the Appellate Body (although every now and then quietly changing course), and you had panels almost always following the Appellate Body (although on rare occasions they did not). But in a system with mostly panels, and sometimes the MPIA or ad hoc arbitration as the second tier (but probably no Appellate Body), how would adjudicators view all the past reports out there in terms of the degree of persuasiveness of the precedent they represent? For example, how would they view Appellate Body reports vs. MPIA awards vs. recent panel reports vs. old reversed panel reports etc. in terms of their relative persuasiveness?
