Legal Principles in WTO Disputes
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Order tracking. Search again here by Google! Compare Books. A tree for site navigation will open here if you enable JavaScript in your browser. However, complainants often allege that the challenged measure violates simultaneously a number of different WTO provisions in either the same or various covered agreements. In such cases, panels are not required to address all the legal claims that the complainant makes. It is sufficient for a panel to deal with the claims that are necessary to resolve the matter at issue in the dispute. If the panel has already found that the challenged measure is inconsistent with a particular provision of a covered agreement, it is generally not necessary to go on and to examine whether the same measure is also inconsistent with other provisions the complainant invokes.
The Appellate Body has cautioned that it would be false judicial economy to provide only a partial resolution of the matter at issue.
Where a panel dismisses a complaint, there is obviously no scope for the application of judicial economy. Each and every claim cited in the complaint must be addressed and rejected in such a case.
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Nevertheless, current anti-dumping law, including the WTO regime, is ill designed to identify and address predatory dumping At first sight then, it would seem to be a good thing to allow for the abovementioned specific statutes addressing only predatory dumping. However, the unilateral introducing or maintaining by one or more WTO members of the said type of specific antitrust legislation, seems not very effective in a context of international predatory practices, the proper assessment of which would seem to require an investigation of market conditions both in the import and the export market.
Indeed, it must be noted that most reform proposals stress the need of cooperative or multilateral efforts, ideally leading to the abolishment of anti-dumping laws and their replacement by appropriate multilateral antitrust or competition law tools to address cross-border predatory practices. All in all this case thus does not have much spillover effects to antitrust law. And the limited effects there are, seem not to be much regretted. This case was one of the many in the short history of WTO dispute settlement that arose from so called multiple complaints, i.
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This makes sense. Given the limited resources available for dispute settlement, it is efficient to have single proceedings for the settlement of sufficiently similar claims. Consolidation of such claims also assures coherence in reasoning and consistency in outcome In this case, not only the measure at issue was exactly the same, the claims put forward by Japan and the EC were virtually the same. Hence this could have been a textbook example of a situation where consolidation would be appropriate.
Dignity and end-of-life issues. Book Description Cambridge University Press , If the panel has already found that the challenged measure is inconsistent with a particular provision of a covered agreement, it is generally not necessary to go on and to examine whether the same measure is also inconsistent with other provisions the complainant invokes. Andrew D. Seller Image.
However such consolidation did not take place. The main reason seems to be the time gap of four months between the requests for panel establishment and three months between the actual establishment of a panel. This is indeed much longer than in most cases where consolidation took place , although it may be noted in a recent case, brought by the US and the EC against India a time gap of 5 months between both requests and more than three and a half months between panel establishment did not prevent consolidation This shows again the concern with efficiency and coherence.
In this case the Panels were indeed of the same composition but no harmonisation of timetables or concurrent deliberations took place. In the Japan panel report, it is explained that none of the parties requested harmonisation, that the US objected to concurrent deliberations and that the EC was in disfavor of delay of proceedings of its own complaint However, art. Hence a second opportunity to assure procedural efficiency and coherence in reasoning and outcome was only partially seized.
The status of third party of EC and Japan in each other proceedings could not make up for this loss of full connection between both proceedings One way to create a closer connection would have been for the panel to grant the enhanced third party rights the EC and Japan requested Since the AB report in the EC - Hormones case , it is clear that panels have the discretion under art. The Panel refused the request and the AB confirmed. As I understand the Panel's reasoning, the refusal seems to be largely due to a reluctance to blur the distinction between the respective rights of parties and third parties as laid down in the DSU.
I must admit that I have no clear-cut answer to the questions asked above.
And it must be said that the fear for incoherence proved to be largely unfounded in this case. Both panel reports are indeed very consistent. Equally, it may be argued that by not pushing the multiple complaints issue and its discretion too much, the panel may have eased procedural tension, thus creating a more settlement inducive atmosphere.
The primacy of the WTO dispute settlement system
But what a waste to have two proceedings The AB agreed with the panel that the US had raised its objection against jurisdiction at an unappropriately late stage interim review of the panel proceedings. Like the Panel it also pointed out that jurisdictional objections are not simply "procedural objections" to be raised as early as possible but that "[ t]he vesting of jurisdiction is a fundamental prerequisite for lawful panel proceedings". Of course, this holding is as such to be approved of. One can imagine the damage that would be done to the legitimacy of the WTO dispute settlement system if only one case were adjudicated on the basis of disputed jurisdiction.
As a practical matter, how should panels then go about addressing the jurisdiction issue, if the parties themselves have not addressed it in limine litis?
According to the AB, Panels should address the question apparently propriu motu. Of course, due process concerns would require Panels to open the issue for discussion by the parties. One way to proceed would then be that each panel at the earliest possible stage of the proceedings - i.
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In these cases the panels revisited the question of how to examine the domestic legislations the compatibility of which is to be reviewed. Remarkable is especially the methodology the panels set out for themselves as a preliminary matter.
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Two principles seem to be at the core of this methodological approach. However, even if this text would be found to be clear on its face, the panel must take into consideration the interpretation given by domestic courts and other authorities, in order to avoid developing an understanding of the law different from how it is actually applied.
The combination of both principles results in a balanced approach, showing on the one hand sensitivity to the competences of domestic interpreters second principle , without being entirely deferential to the interpretations made by those interpreters and especially to the presentations made by the respondent party before the panel second principle. The application the Panel made of these principles when it continued to determine the weight it would give to different secondary sources, such as case law legislative history, illustrates very well this balance. Also elucidating in this respect is a comparison to the approach taken in respectively the India Patents case and the Section case.
In formulating the first principle, the panels referred to the following statement of the AB in the India Patents case:. In reaching this conclusion, the panel showed very little consideration for the arguments based on interpretation of Indian constitutional law made as defence by India.
By contrast to India Patents and analogous to the Act cases, the second principle was also explicitly articulated and applied in the US - Section of the Trade Act of case, which was decided just before the panel reports discussed here were issued. The Panel applied the principle inter alia when it had to decide whether Section of the US Trade Act violated art.
Cambridge Core - International Trade Law - Legal Principles in WTO Disputes - by Andrew D. Mitchell. Principles play a crucial role in any dispute settlement system, and the World Trade Organization (WTO) is no exception. However, WTO Panels.
The panel found that although the statutory text constituted a prima facie violation, this inconsistency was removed by the aggregate effect of a Statement of Administrative Action SAA and US statements made before the panel. That a balanced approach does not necessarily leads to a deferential result and that such an approach not necessarily entails an important impact of extra-statutory sources, is illustrated by the - very conscientious - application by the panel of the methodology it set out when determining the applicability of art.