Article: The Development of Standards of Appellate Review for Factual, Legal and Law Application Questions in WTO Dispute Settlement, 4(1) Trade, L. & Dev. 125 (2012) [available here]
Reply By Simon Lester
Let me start by saying thanks to the TLD editors who proposed doing this symposium. It was a great idea, and I’m happy to be able to facilitate it here on this blog. And now I’m happy to participate, as one of the authors being reviewed.
I confess that I was a bit nervous about writing on this topic. At first I thought it would be straightforward and easy, but as I dug further I couldn’t help thinking that someone with more background knowledge of standard of review issues -- in either the domestic or international arenas -- would do a better job. And then, as part of this symposium, I saw that Matthias Oesch would be reviewing my article, and he has written a whole book on the subject, which made me even more nervous! But apparently I didn’t botch the job too badly, because Matthias and I seem to agree on most points.
Let me offer the following responses to his comment, and some further thoughts.
First, I agree with Matthias that the standard is working pretty well right now, and it is probably not worth trying to negotiate a completely new set of rules in this area. In the article, I suggested that because the DSU Article 11 language existed prior to the WTO, it couldn’t have been meant for use as an appellate review standard. But regardless of whether the drafters had this in mind, the result has been a fairly good one, and is probably not much different from a situation where the Appellate Body had to start from scratch. If we are going to renegotiate some WTO rules, there are many others that are in more dire need of revision!
On the issue of how the Appellate Body treats questions involving the examination of domestic law, Matthias and I agree that the Appellate Body’s approach is the wrong one. But they have been very clear on this – it would be a big step to change the approach. Will Members argue for a change in some future case? Would the Appellate Body reverse itself? This remains to be seen.
Next up, I would like to see some clarification from somebody -- ideally the Appellate Body, but from scholarship or blog comments too! -- about the role of DSU Article 12.7 in all of this. How does Article 12.7 relate to Article 11? I’m still confused by this one.
Finally, on a more general point, one of my goals in this article was to emphasize the distinction between legal issues, factual issues, and issues of applying the law to the facts. It’s that last category that is often the problem. I think it’s always worth spelling out the issues clearly, so that the three categories are distinguishable when considering a specific claim. I would also say that “application of the law to the facts” is the clearest way of describing it; “legal characterization of the facts” is fine, but not quite as good; and “mixed question of law and fact” is confusing and should be avoided.
As a concrete example, take a look at yesterday’s China – GOES AB report, at paras. 183-184, where I think the AB does a pretty good job with this, in the context of explaining the difference between appeals of law application issues and appeals under DSU Article 11. (Although I did find the later discussion at para. 230 a little confusing.)
What does the future hold for DSU Article 11 appeals? The vast majority of them get rejected. Will that eventually lead to a reduction in their frequency? Or will they continue at their current pace? I have no prediction on the matter, but I'll be sure to blog about it if I see any trends emerge!