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Precedent

25 posts

Exemplars vs. Precedents in WTO Law

As most of this blog's readers are aware, there has been controversy over the "permissible interpretation" language in the legal standard of review in AD Agreement Article 17.6(ii). The U.S. argued for years that this language should provide special deference to domestic investigating

The Role of WTO Case Law in a USMCA RRLM Proceeding

Here is an interesting exchange from last week's hearing in the USMCA San Martín mine labor dispute about the role of WTO case law in interpreting the USMCA provisions at issue: Panelist: Mexico raised the question that the United States has not provided any legal authorities for its

The Role of Past Determinations in U.S. DOC Proceedings

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

WTO Dispute Settlement Reform Proposals on the Role of Precedent

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

The MPIA: What’s New? (Part I)

On 21 December 2022, more than two and a half years after its creation, the World Trade Organization’s (WTO’s) Multi-Party Interim Appeal Arbitration Arrangement (MPIA) finally produced its first appellate award.[1] The inaugural MPIA award was issued in a dispute filed by the EU in November 2019

New Paper on "The Extension of Legal Precedent": How Much Reliance on Precedent Is Too Much?

Precedent in trade law is a hot topic these days. Jeffrey Kucik, Lauren Peritz, and Sergio Puig have a new article out called "Legalization and Compliance: How Judicial Activity Undercuts the Global Trade Regime." This is the abstract: The crisis facing the World Trade Organization illustrates the trade-off

The U.S. View of Precedent in Article 22.6 Proceedings

I was intrigued by this passage in the U.S. - Countervailing Measures (China) Article 22.6 Arbitration Decision circulated last week: 3.137. Basing our choice of the year-prior on the calendar year preceding the imposition of the preliminary CVDs would therefore secure a correct calculation, rather than, as

Fit for Whose Purpose?: How Panelists Interpret Labor Rights in Trade, and What That Tells Us about the Trade/Labor Relationship

While many of us were celebrating the holidays with family, an important law review article dropped silently and inconspicuously into the fray. That article, Fit for Purpose: The Extent and Enforcement of International Trade Agreement Labor Obligations After Guatemala – Labor Obligations Decision, was written by Professor Kevin Banks, who served

Binding Precedent and Precedential Value

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

Theorizing Precedent in International Law

In light of the discussions of precedent in the previous two posts, I thought it might be worth posting something from a piece by law professor Harlan Cohen entitled Theorizing Precedent in International Law (I think he has more coming on this issue): The ingredients discussed in Part III—sources,