International Economic Law and Policy Blog

Sign in Subscribe

Topic

Precedent

23 posts

Precedent in GATT Dispute Settlement

There has been a lot of talk recently about how the Appellate Body has elevated its past rulings to the level of "binding precedent," and this is in contrast to how things worked with GATT panels. Senator Hawley was picking up on that point when he said the

The Origins of the "Cogent Reasons" Approach to the Precedential Value of Appellate Body Reports

The United States has made it clear that it objects to the Appellate Body's view that a panel must follow a prior Appellate Body interpretation unless the panel has “cogent reasons” for departing from that interpretation. One of the longer U.S. explanations of its position is here.

The Role of Appellate Body Rulings as Precedent: Suggestions from Japan and Australia

This is from a communication from Japan and Australia: 2 DRAFT DECISION The Dispute Settlement Body, Having regard to paragraph 1 of Article 2 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Affirming that recommendations and rulings made by the DSB are

Toning Down WTO Precedent

This is from last week's China - TRQs panel report: 6.20. The United States requests that the reference to a "well-established principle in WTO case law" in paragraph 7.212 be deleted, since it could be "misunderstood as indicating that prior panel and appellate

The Evolving Role of Precedent in WTO Dispute Settlement

Here are some snippets from today's panel report in the DS534 case (report, addendum with interim review section): 7.56. .... We recall that the panel in US – Washing Machines concluded, relying on the definition of pattern as a regular and intelligible form or sequence, that prices that are

Persuasive Value vs. Precedent in Appellate Body Reasoning

At yesterday's DSB meeting, the U.S. had a 26 page statement (pp. 9-35) on "precedential value of panel or Appellate Body reports." You may need to read the whole thing to fully digest their argument, but here are some key portions: 10. The United States

What Is the Precedential Value of Appellate Body Reports?

This is from USTR's 2018 Trade Policy Agenda and 2017 Annual Report (p. 28), released yesterday: v. The Appellate Body claims its reports are entitled to be treated as precedent Without basis in the DSU, the Appellate Body has asserted its reports effectively serve as precedent and that

What Are the "Cogent Reasons" that Could Justify Not Following AB Precedent?

From yesterday's DS449 WTO panel report: 7.317. ... In our view, bearing in mind the Appellate Body's particular function in the WTO dispute settlement system, reasons that could support but would not compel a different interpretative result to the one ultimately adopted by the Appellate Body

The Aircraft Report: Debating the Role of Precedent

This is from the Interim Review section of the Aircraft report: 6.26 The United States requests that the first sentence of paragraph 7.248 of the Interim Report be modified to remove any suggestion that reports of the Appellate Body are binding except with respect to resolving the particular

Panels, the AB, and the Role of Precedent

From the recent EC appeal in the Continued Zeroing (DS350) case: First, if the Panel Report is construed as finding that a panel can invoke "cogent reasons" for departing from previous Appellate Body findings on the same issue of legal interpretation (paragraphs 7.180 and 7.182 of