,
12 tweets,
2 min read
Read on Twitter
Jim Bacchus and I have a short @CatoTrade paper out today on the WTO Appellate Body and the role of precedent: cato.org/sites/cato.org… Here's a thread. /1
Relying on past cases as precedent is a core feature of domestic legal systems. The Appellate Body was aware from the outset, however, of the sensitivity of the issue in international law. /2
An early Appellate Body decision said that previous reports "create legitimate expectations" and "should be taken into account where they are relevant to any dispute” ... /3
… but it also said, such reports “are not binding, except with respect to resolving the particular dispute between the parties to that dispute.” /4
Controversy arose in 2008 when, in another case, the Appellate Body said, "absent cogent reasons, an adjudicatory body will resolve the same legal question in the same way in a subsequent case." /5
In our view, “absent cogent reasons” was essentially a restatement of the position previously expressed by the Appellate Body, that, where the legal issues are the same, it is appropriate and to be expected that panels will rely on Appellate Body rulings in previous disputes. /6
Of course, panels are free to ignore these rulings. But a panel can be overturned by the Appellate Body, so it is to be expected that when panels depart from previous rulings, they will try their best to explain their reasons in order to prevent a quick reversal on appeal. /7
The US objects to the "cogent reasons" standard, saying it acts as "a common law-like system of precedent.” Instead, the US says, the use of past Appellate Body interpretations should be based on their "persuasiveness." /8
In our view, the US concerns are overstated. We are not convinced that a change from "cogent reasons" to "persuasiveness" would have much, if any, difference in outcomes. /9
In fact, a recent WTO panel applied the "cogent reasons" approach in a way that allowed it to depart from past Appellate Body reasoning. /10
Nevertheless, we are fine with incorporating an explicit reference to "persuasiveness" in the DSU. /11
Our conclusion: "The issue of the role of past cases has been vexing .. , but the differences .. between cogent reasons and persuasiveness are not actually all that large, and a compromise should be possible." /end
