Stanford law prof Alan Sykes has posted a new paper entitled "The Utility of Appellate Review at the WTO and Its Optimal Structure." One part of the paper that I found particularly interesting was his call for any appeals body to have discretion over what appeals to hear:
C. Establishing a Discretionary (Certiorari-Like) Process
... But what about a possible alternative involving discretionary review – an appellate entity with the power to accept or reject appeals based on their perceived merit and importance? Such a system would mirror the jurisdiction of the U.S. Supreme Court, which selectively accepts appeals viewed as especially important through writs of certiorari, often reflecting significant legal conflicts in the decisions of lower courts. The great virtue of such a system, as I will elaborate below, is that it allows appellate review to be deferred until such time as issues are fully “ripe” for resolution, both jurisprudentially and politically.
...
2. The Advantages of Discretionary Appellate Jurisdiction
In contrast to the guaranteed right of immediate appeal in the existing DSU, the analysis to this point hints at some clear advantages to a system of discretionary appeals. First, it reduces the case load of the appellate tribunal. The tribunal can devote more attention to the hard cases, and ideally may allow it to hear cases en banc (like the U.S. Supreme Court), bringing to bear the broader perspective of a more diverse group of judges and the benefits of a larger deliberative body.
Second, the appellate tribunal can wait until issues have been confronted by multiple panels. Again with reference to the U.S. Supreme Court, certiorari is often denied until several lower courts have addressed a systemically important issue. And if all of them resolve the issue the same way, appellate review may ultimately prove unnecessary. Where conflicting decisions arise, the divergent opinions of adjudicators in the lower tribunals often aid in assessing the strength of the parties’ positions as a legal matter. Removing the time pressure from the appellate process and waiting for a broader collection of “inputs” from lower tribunals can reduce the risk of an appellate decision that clashes with the best interpretation of the treaty framework.
Finally, and perhaps most importantly, a discretionary system of appeals allows the Appellate Body time to gauge carefully the reaction of the membership to dispute panel decisions on difficult issues. Decisions are discussed at DSB meetings, and those debates can highlight issues that are politically destabilizing and may require artful compromise. Likewise, the flow of information from national capitals can sensitize the appellate tribunal to conflicts that may elicit systemically dangerous responses. Hard issues can be left unsettled until opinions among members coalesce on the best approach.
In short, a discretionary system of appeals enables the appellate tribunal to become more aware of, and sensitive to, institutional political pressures. Its interpretations of treaty text can then become savvier politically, and it can better avoid decisions that key players cannot accept, subject to the constraint that decisions must still be textually plausible. Where the membership seems hopelessly at odds, the appellate tribunal can simply duck the issues and allow disparate panel decisions to stand.
This approach, of course, is much like the approach to hard constitutional and statutory issues in the U.S. Supreme Court. The relevant legal texts are often hopelessly vague or incomplete (“due process,” “unreasonable search and seizure,” “equal protection,” “restraint of trade”…). Like the Appellate Body, the Supreme Court often pretends that correct answers can be found in text or prior precedent, but in reality, decisions take account of evolving politics on challenging issues.
Of course, under a discretionary appellate process, some challenging issues will remain unsettled for a long time. Panel decisions that are not accepted for appeal will become binding between the disputants, but the same issue may be relitigated several times before different panels with different results. This prospect is a virtue and not a vice in my view, however, as it enables disputants who believe deeply in their positions additional chances to vindicate them and makes it possible for rulings with systemically problematic political consequences to be revisited.
As far as I know, the issue of discretion on whether to hear appeals has not come up in the WTO dispute settlement reform discussions, but maybe it should, and maybe this call by Alan Sykes will get the negotiators thinking about it.
I was thinking along these lines myself when I suggested a while back that the Appellate Body does not have to weigh in on every appealed issue, but rather can just uphold panel rulings without further comment. Arguably, they could do that under existing rules, but if people aren't convinced the rules allow for that, the DSU could be amended to make it clear that the Appellate Body has this power.
In addition, and I'll have more to say about this at some point soon, having looked into the archives a bit, it's worth noting that discretion over which appeals would be heard was something that the Uruguay Round DSU negotiators talked about in some detail. Thus, having the current dispute settlement reform discussions delve into this would not be unprecedented.
If the dispute settlement reform negotiators do end up thinking about this, here are a couple issues they might want to consider:
- Who exactly gets to decide if the appeal will be heard? If it's a standing body, maybe it would be a certain number of the judges, just like under U.S. Supreme Court practice where 4 out of 9 is sufficient to grant certiorari. In the WTO context, maybe it could be 3 of the 7 Appellate Body Members or 4 of the 10 MPIA arbitrators. If it's an ad hoc body things are more complicated, but maybe if 3 judges were appointed to hear an appeal, at least 1 of the 3 would have to decide to grant the appeal.
- Is the discretion over the appeal as a whole, with the entire appeal accepted or rejected? Or is it over each individual point of appeal, so the judges can pick and choose which issues to hear?
