A while back, I mentioned a discussion among the WTO Members, at a DSB meeting, on the role of precedent in WTO dispute settlement. This discussion was in the context of the U.S. - Stainless Steel (Mexico) dispute, where the AB made some statements that seemed to indicate a fairly strong view of the role of AB precedent (although just how strong was open to interpretation).
The full minutes of the DSB meeting in question are now available here: http://www.worldtradelaw.net/dsbminutes/m250.pdf I've excerpted the relevant bits below. To briefly (and very roughly) summarize the various views:
- The U.S. thinks prior AB (and panel) reports should create "legitimate expections," but not be binding.
- The EC seems to approve of AB reports being something close to binding.
- Japan, Hong Kong, India and Mexico seem to agree with the AB's concerns about panels departing from AB jurisprudence.
- Chile expresses some concerns about the AB's statements on this issue.
- Colombia seems to be worried that the AB overreached a bit.
Excerpts (with emphasis added):
What was more, WTO Members had made it clear – in fact, the DSU said it twice – that the findings of panels and the Appellate Body could not add to, or diminish the rights and obligations in the covered agreements. Perhaps unlike some other institutions, the WTO did not rely on adjudication to advance its objectives. However, this Appellate Body Report's approach, including its references to a "coherent and predictable body of jurisprudence", would appear to transform the WTO dispute settlement system into a common law system. But that was nowhere agreed among Members. ...
54. The United States did, of course, share the Appellate Body's interest in having similar cases treated similarly. The United States expected that all Members would do likewise. The United States did not, however, share this Report's view that this meant that panels must follow Appellate Body reports in different disputes. Rather, to cite again the "Japan – Alcoholic Beverages" Appellate Body Report, the United States would expect any panel to take account of any other relevant adopted report, whether authored by the Appellate Body or by a different panel. To take account of an adopted report, of course, did not mean to follow it without hesitation. To the contrary, to take account of such a report meant to examine it, to consider it, and to engage with its reasoning. The United States recalled that an objective assessment was one that was critical and searching. Such an assessment could lead, in fact, to further or greater clarification.
The EC particularly welcomed the clarifications from the Appellate Body to the effect that "absent cogent reasons, an adjudicatory body would resolve the same legal question in the same way in a subsequent case" (para. 160) and "the relevance of clarification contained in adopted Appellate Body reports is not limited to the application of a particular provision in a specific case" (para. 161). Whilst self-evident, these statements confirmed the rules-based nature of the WTO, and the multilateral aspects of dispute settlement.
Japan shared the concerns expressed by the Appellate Body in this Report about "the Panel's decision to depart from well-established Appellate Body jurisprudence clarifying the interpretation of the same legal issues".
Hong Kong, China shared the concern of the Appellate Body regarding the following of its jurisprudence on the same legal issues by subsequent panels. This was an important systemic issue with profound implications on the functioning of the WTO dispute settlement system, which was a central element in providing security and predictability of the multilateral trading system. Hong Kong, China was grateful for the clarifications and comments made by the Appellate Body in its Report. With these observations and comments, Hong Kong, China supported the adoption of the Report of the Appellate Body, and that of the Panel, as modified by the Appellate Body. Hong Kong, China encouraged all parties concerned to take prompt actions to bring any WTO-inconsistent practices and measures into compliance.
certain phrases in the Report gave Chile some cause for concern. According to paragraph 160, "[e]nsuring "security and predictability" in the dispute settlement system, as contemplated in Article 3.2 of the DSU, implied that, absent cogent reasons, an adjudicatory body would resolve the same legal question in the same way as had been done in previous cases. Paragraph 162 likewise stated as follows: "We are deeply concerned about the Panel's decision to depart from well-established Appellate Body jurisprudence clarifying the interpretation of the same legal issues." Such phrases could lead to unfortunate conclusions regarding the nature of the dispute settlement system, and Chile hoped that this would not become a trend likely to constrain panels in future disputes, and above all, that this would not alter the nature of the rights and obligations negotiated by the Membership. Chile believed that an interim report at the Appellate Body stage would have prevented the phrases in question from appearing in the final Report.
India believed that the legal interpretations embodied in the adopted Panel and Appellate Body Reports had become part and parcel of the acquis of the WTO dispute settlement system. Rejecting this prior jurisprudence by the Panel amounted to undermining the Member's faith that the adopted reports created legitimate expectations for the purpose of consistency and stability in the interpretation of their rights and obligations under the covered Agreements. The Panel in the present dispute, had bypassed and disregarded the conclusions of the Appellate Body in prior disputes that were directly on point.
Colombia wished to express its views on the systemic issue as to whether a panel may rely on the findings of previous panel reports that the Appellate Body had reversed, and in particular whether panels were required to follow the Appellate Body's findings. In this connection, Colombia agreed with the reasoning of the Panel that there was no provision in the DSU that required WTO panels to follow the findings of previous panels or of the Appellate Body on the same issues brought before them. In fact, a panel or Appellate Body decision bound only the parties to the relevant dispute. On the other hand, in compliance with the last sentence of Article 3.2 of the DSU: "recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements". While recognizing the need to provide security and predictability to the multilateral trading system through the development of a consistent line of jurisprudence, Colombia wished to recall that the Ministerial Conference and the General Council alone were empowered to adopt authoritative interpretations.
With regard to certain comments made by some delegations at the present meeting, Mexico pointed out that the decision by the Appellate Body should not be quoted out of its context. Panels must pay attention to the Appellate Body's findings particularly when dealing with the same legal questions. In this regard, Mexico did not share the concerns expressed by some Members at the present meeting. Mexico would have been very concerned if the Appellate Body had accepted a different approach concerning the question of zeroing.