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Reflections on the Appellate Body of the World Trade Organization (WTO)

Published online by Cambridge University Press:  05 April 2017

Claus-Dieter Ehlermann
Affiliation:
Wilmer Cutler & Pickering, Brussels

Abstract

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Type
Reflections on the Appellate Body of the World Trade Organization (WTO)
Copyright
Copyright © American Society of International Law 2003

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References

1 See Ehlermann, Claus-Dieter, Six Years on the Bench of the “World Trade Court”: Some Personal Experiences as Member of the Appellate Body of the World Trade Organization, 36 J. World Trade 605 (2002)CrossRefGoogle Scholar.

2 Julio Lacarte, Remarks at the Swearing-in Ceremony of-the WTO Appellate Body (Dec. 19, 2001) (transcript on file with author); see also Florentino Feliciano, Remarks at the Swearing-in Ceremony of the WTO Appellate Body (Dec. 19, 2001) (transcript on file with author):

[Independence] has at least two aspects: firstly, independence and impartiality need to be constantly felt and lived, and manifested in every adjudication rendered. A second aspect relates to the independence and impartiality of the institutions of dispute settlement themselves, the Appellate Body and panels. Institutional independence implies acceptance of some costs and some restraints on the part of all involved but it is entirely indispensable for the maintenance and development of the kind of dispute resolution institutions and processes you have put in motion.

See also James Bacchus, Address at the International Bar Association conference “Woulda, Coulda, Shoulda”: The Consolations of WTO Dispute Settlement (Mar. 20, 2003) (transcript on file with the author) : “In nearly eight years, there has never once been a suggestion by any Member of the WTO that the Appellate Body is anything but independent and impartial in reaching and rendering judgements in dispute settlement.” The WTO rules of conduct require the members of the Appellate Body to be both “independent” and “impartial.” The members of the WTO have put this important requirement in the rules of conduct in two separate places— perhaps as an accent for emphasis.

True to their trust in us, and true to our obligations to them, we have stressed what they have stressed in the rules of conduct. We perform for all the members of the WTO. We play for all aspects of the trading system. We are always independent. We are always impartial. We always will be.

3 See European Communities—Measures Affecting Asbestos and Asbestos-Containing Products, WTO Doc. WT/DS135/AB/R, paras. 149-54 (April 5, 2001), available at <http://www.ejil.org/journal/curdevs/srl3.html>.

4 McRae, Donald M., The WTO in International Law: Tradition Continued or New Frontier?, 3 J. Int’l Econ. L. 27, 39 (2000)CrossRefGoogle Scholar.

5 See Greenwald, John, WTO Dispute Settlement: An Exercise in Trade Law Legislation?, 6 J. Int’l Econ. L. 115, 123-24 (2003)Google Scholar.

7 See Tarullo, Daniel K., The Hidden Cost of International Dispute Settlement: WTO Review of Domestic Antidumping Decisions, 34 Law & Pol’y Int’l Bus. 109 (2002)Google Scholar.

8 See id. at 159 n.201 (referring to publications of Ernst-Ulrich Petersmann).

9 Ehlermann, supra note 1, at 615.

10 McRae, supra note 4, at 39.

11 See Lennard, Michael, Navigatingby the Stars: Interpreting the WTO Agreements, 5 J. Int’l Econ. L. 17 (2002)CrossRefGoogle Scholar; Canal-Forgues, Eric, Sur l’interprétation dans le droit de l’OMC, 105 Revue Générale de droit Int’l Publique 5 (2001)Google Scholar.

12 Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) art. 3, para. 2, available at <http://www.wto.org/english/tratop_e/dispu_e/dsu_e/htm#3>.

13 See Lennard, supra note 11, at 87:

By setting the textual approach as its North Star (or its Southern Cross) the Appellate Body has... paid due respect to the Uruguay outcomes and the WTO ‘constitution’ while instilling a disciplined approach to their interpretation by the less international law-oriented panels. It has taken a predictable and relatively safe approach that may help bind together the economic aspects of the WTO Agreements and the wider development of international law, infusing each with each.

14 DSU art. 3, para. 2, available at <http://www.wto.Org/english/tratop_e/dispu_e/dsu_e.htm#3>.

15 Paul C. Rosen that & Jeffrey S. Beckington, Dispute Settlement before the World Trade Organization in Antidumping, Countervailing and Safeguard Actions: Effective Interpretation or Unauthorized Legislation? (Mar. 21, 2003) (unpublished paper given at the IBA conference in Geneva, on file with the author).

16 Vienna Convention on the Law of Treaties, art. 32.

17 See Esserman, Susan & Howse, Robert, The WTO on Trial, 82 Foreign Aff. 130, 139 (2003)CrossRefGoogle Scholar.

18 See Tarullo, supra note 7, at 109.

19 See Ehlermann, supra note 1, at 620 (“[P]anels and the Appellate Body have certainly to be more reserved and restrained than an internal jurisdiction like the ECJ”).

20 Korea—Definitive Safeguard Measures on Imports of Certain Dairy Products, WTO Doc. WT/DS 98/Ab/R, paras. 78-90, 151 (Dec. 14, 1999), available at <http://www.worldtradelaw.com>.

21 Marco Ce. J. Bronckers is one of the authors who argued that injury no longer needs to be attributable to unforeseen developments. See Voluntary Export Restraints and the GATT 1994 Agreement on Safeguards, in the Uruguay Round Results 275 (Jacques H. J. Bourgeois et al. eds., 1995).

22 United States—Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia, WTO Doc. WT/DS177 &178/AB/R, para. 177 (May 16, 2001).

23 Agreement on Safeguards art. 4.2 (b), at 274, available at <http:www.wto.org/english/docs_e/legal_e/25-safeg.pdf>.

24 See United States—Transitional Safeguard Measure on Combed Cotton Yarn From Pakistan, WTO Doc. WT/DS192/AB/R, paras. 73, 78 (Nov. 5, 2001), available at <http://www.worldtradelaw.com>.

25 See Greenwald, supra note 5; Tarullo, supra note 7; Rosenthal & Beckington, supra note 15.

26 6 J. Int’l Econ. L. 125 (2003).

27 Id. at 146-47.

28 McRae, supra note 4, at 29.

29 Tarullo, supra note 6.

31 See Ehlermann, Claus-Dieter, Tensions Between the Dispute Settlement Process and the Diplomatic and Treaty-Making Activities of the WTO, 1:3 World Trade Review 301-08 (2002)CrossRefGoogle Scholar.

32 See Claude E. Barfield, Free Trade, Sovereignty, Democracy: the Future of the World Trade Organisation (2001).

33 WTO Dispute Settlement Body, WTO Doc. Tn/DS/W/52, Mar. 14, 2003, available at available at <http://www.jmcti.org/2000round/com/doha/tn/tn_ds_w_052.pdf>.

34 See Ehlermann, Claus-Dieter, Experiences from the WTO Appellate Body, 38 Tex. Int’l L.J. (forthcoming 2003)Google Scholar.

35 Supra note 33.

36 See Australia—Subsidies Provided to Producers and Exporters of Automotive Leather, WTO Doc. WT/DS 126/RW (Jan. 21, 2000), available at <http://www.worldtradelaw.net>.

37 See Tarullo, supra note 7.

38 Ehlermann, supra note 1, at 639.

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