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I've now had a chance to review the paper. There is excellent research on the negotiating history, and good insight overall on where things stand. There are curious omissions as @JamesLockett1 identified below. There are observations that clashed somewhat with experience. 1/
@JamesLockett1 A minor quibble to begin with.
I'm not sure why the paper begins with "three". For me - and under the DSU - the magic number would have been four: this is the threshold below which the AB can't rotate and is therefore noncompliance with 17.1. 2/
I'm not sure why the paper begins with "three". For me - and under the DSU - the magic number would have been four: this is the threshold below which the AB can't rotate and is therefore noncompliance with 17.1. 2/
@JamesLockett1 Another minor quibble: is this really true?
We know the legal status of an *appealed* panel report: the DSB may not adopt it until there is an Appellate Body report (or the appeal is withdrawn). this is perfectly predictable, hence workarounds proposed (and already agreed). 3/
We know the legal status of an *appealed* panel report: the DSB may not adopt it until there is an Appellate Body report (or the appeal is withdrawn). this is perfectly predictable, hence workarounds proposed (and already agreed). 3/
@JamesLockett1 And the workarounds - whether no-appeal agreements or Article 25 arbitration appeals - are trying to address the concern about a return to the GATT regime by setting out the post-panel governing regime *in advance*. 4/
@JamesLockett1 Turning to the subject matter of the paper, I was struck by the observation of the authors concerning DSU Article 3.7. Curious because, of course, the *principal* US critique of the AB is in respect of Article *3.2*, with dollops of added context in DSU 17 and IX:2 of the MA. 5/
@JamesLockett1 The paper then moves on to the negotiating history. The first section is the "statutory role" of the AB in the WTO.
The first observation was somewhat challenging. The observation about standard of review is correct of course, but incomplete and thus questionable. 6/
The first observation was somewhat challenging. The observation about standard of review is correct of course, but incomplete and thus questionable. 6/
@JamesLockett1 Incomplete because it ignores a) the rest of the DSU *as drafted*, specifically 17.6 and 11 (The AB's mandate was limited to law and not facts), and b) the judicial commonplace that for appeals of *law*, the standard of review is correctness (except for ADA 17.6). 7/
@JamesLockett1 The rest of the section - ostensibly trying to locate the AB in the statutory scheme of the DSU - focuses inordinately on DSU 3.7 (rather than the structure of the DSU overall against the history of GATT dispute settlement) and goes off the rails. 8/
@JamesLockett1 First, role of the judge.
Article 3.7 does not say much on this because ... other provisions do. And because international agreements do not always set out judicial commonplaces that are the bedrock of institutions they create: the DSU makes no mention of due process either. 9/
Article 3.7 does not say much on this because ... other provisions do. And because international agreements do not always set out judicial commonplaces that are the bedrock of institutions they create: the DSU makes no mention of due process either. 9/
@JamesLockett1 Second, "internal coherence".
a) I am not at all sure why the authors consider that mediation is relegated to a "second order option": it comes right after Consultations and before Establishment of Panels.
b) "ex aequo et bono" because its better for compromise? 10/
a) I am not at all sure why the authors consider that mediation is relegated to a "second order option": it comes right after Consultations and before Establishment of Panels.
b) "ex aequo et bono" because its better for compromise? 10/
@JamesLockett1 And why should it matter if a dispute is in good faith or bad to determine whether a provision needs to be renegotiated?
In what way does it help to bring "property" and "liability" concepts to explain WTO dispute settlement - where the *agreed* framework is compliance? 11/
In what way does it help to bring "property" and "liability" concepts to explain WTO dispute settlement - where the *agreed* framework is compliance? 11/
@JamesLockett1 The article then discusses the positions of various major participants in respect of binding dispute settlement. This is very useful history. I was struck by this nugget in the *original* Canadian proposal: fast appeals would discourage routine recourse to appeals. 12/
@JamesLockett1 The last section substantive analyses US complaints "in light of the final UR text".
Here, I confess that I found the analysis impoverished in at least two ways.
First, "agreed text and function" of an adjudicative organ is a good starting point, but it is only that. 13/
Here, I confess that I found the analysis impoverished in at least two ways.
First, "agreed text and function" of an adjudicative organ is a good starting point, but it is only that. 13/
@JamesLockett1 The reason is that any adjudicative organ operates on the basis of underlying assumptions - commonplaces - that are often unstated. The reference to due process throughout the jurisprudence of the AB, or the rule in Wool Shirts about burden of proof, as such commonplaces. 14/
@JamesLockett1 And an *international* adjudicative organ also has to worry about legitimacy. It is not *enough* that the right organ has issued a report in accordance with the agreed text and function. 15/
@JamesLockett1 Second, the identification of the US complaints leaves something to be desired.
a) The reading out of Article 17.6(ii) was a huge interpretive and political problem independently of zeroing.
b) The "mischaracterization" of fact as law not in the abstract, but rather, 16/
a) The reading out of Article 17.6(ii) was a huge interpretive and political problem independently of zeroing.
b) The "mischaracterization" of fact as law not in the abstract, but rather, 16/
@JamesLockett1 as it relates to *municipal law*: who gets to interpret US law?
c) The US has repeatedly expressed concern that the AB addresses issues that are not necessary for the resolution of the dispute before it.
d) The deadline issue ... see the thread. 17/
c) The US has repeatedly expressed concern that the AB addresses issues that are not necessary for the resolution of the dispute before it.
d) The deadline issue ... see the thread. 17/
@JamesLockett1 Third, the discussion about jurisprudence-or "precedent"-is problematic. The authors correctly identify the challenge with over-reliance on consistency, and not just because I used identical words twenty years ago.
Rather, of concern is their exposition of "precedent". 18/
Rather, of concern is their exposition of "precedent". 18/
@JamesLockett1 The words "some" and "almost" are doing a lot of work to get to the binary choice offered at the end of that paragraph.
No one is arguing that the AB, or panels, should reinvent the interpretive wheel in each report, or meander around like a loose cannon. 19/
No one is arguing that the AB, or panels, should reinvent the interpretive wheel in each report, or meander around like a loose cannon. 19/
@JamesLockett1 And it is not all that clever to argue, as some have, that even the US cites past cases in support of its positions.
But from there to the type of ritual recitation of its own past wisdom in the guise of "precedential consistency" is a significant juridical step. 20/
But from there to the type of ritual recitation of its own past wisdom in the guise of "precedential consistency" is a significant juridical step. 20/
@JamesLockett1 All the more so where the AB has had a somewhat instrumental perspective on precedent to begin with: all you need to do is put the Article 11 findings in Hormones and Wheat Board side by side to see how much the AB respects its own "precedents". 21/
@JamesLockett1 Problem is, of course, that at no point did the AB signal that it was, in fact, changing its mind.
*This* is the crux of the problem of precedent in WTO jurisprudence. I have not done the research, but has there been an instance where the AB has tacked *and explained why*? 22/
*This* is the crux of the problem of precedent in WTO jurisprudence. I have not done the research, but has there been an instance where the AB has tacked *and explained why*? 22/
@JamesLockett1 And to the conclusion.
One of the richest litigation experiences I had was arguing before Mr. Ehlermann in the late 90s; since then, it has been an honour for me to count him he has been a friend and mentor. He was indeed prescient.
But it was not a "remote possibility." 23/
One of the richest litigation experiences I had was arguing before Mr. Ehlermann in the late 90s; since then, it has been an honour for me to count him he has been a friend and mentor. He was indeed prescient.
But it was not a "remote possibility." 23/
@JamesLockett1 In three papers between 1998 and 2001, I identified the challenges the Appellate Body faced in this respect. Going back to 1995 might well prove more challenging than the paper suggests. /fin
