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WTO Dispute Settlement Mechanism(4)
Chapter IVFunction of Panels: Art. 11 of the DSU
OUTLINE
I Introduction
II Application of Art. 11 as a General Standard of Review
III Review in “neither de novo nor total defence”
IV Allegation against Panels’ Standard of Review
V Exercise of Judicial Economy
I Introduction
The function of panels is expressly defined in Art. 11 of the DSU, which reads as follows:
“The function of panels is to assist the DSB in discharging its responsibilities under this Understanding and the covered agreements. Accordingly, a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements. Panels should consult regularly with the parties to the dispute and give them adequate opportunity to develop a mutually satisfactory solution.”
This provision suggests that the function of panels is to make an objective assessment such as to assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements. However, how do panels fulfill their functions as provided in Art. 11 of the DSU? It is the issue that we will touch on in this chapter. In this chapter, the author explores on the standard of review issue under the WTO, i.e. “an objective assessment”; as well as on the exercised judicial economy principle developed in panel’s review.
With regard to the standard of review issue, the GATT/WTO dispute settlement procedures have increasingly confronted questions concerning the degree to which an international body, under the GATT/WTO, should “second guess” a decision of a national government agency concerning economic regulations that are allegedly inconsistent with an international rule. It seems clear that the international agreement doesn’t permit a national government’s determination always to prevail, otherwise the international rules could be easily evaded or rendered ineffective. But should the international body approach the issues involved without any deference to the national government? It has been argued in the GATT/WTO proceedings that panels should respect national government determinations, up to some point. That “point” is the crucial issue that has sometimes been labelled the “standard of review”.1
Of course, this issue is not unique to the GATT/WTO. Naturally, the standard-of-review issue is one that many legal systems face. “The standard-of-review question is faced at least implicitly whenever sovereign members of a treaty yield interpretive and dispute settlement powers to international panels and tribunals. Moreover, as national economies become increasingly interdependent, and as the need for international cooperation a
nd coordination accordingly becomes greater, the standard-of-review question will become increasingly important.” 2 And “it can be seen that the standard-of-review question is a recurring and delicate one, and one that to some extent goes to the core of an international procedure that must (in a rule-based system) assess a national government’s actions against treaty or other international norms”. 3
However, for the immediate purpose, we want to focus below on the more particular question of the proper standard of review for a WTO panel when it undertakes to examine a national government’s actions or rulings that engage the question of consistency with the various WTO agreements and are subject to the DSU procedures.
II Application of Art. 11 as a General Standard of Review
Under the WTO jurisprudence, it’s demonstrated that Art. 11 of the DSU has been applied as a general standard of review. Art. 11 suggests that the function of panels is to make “an objective assessment” so as to assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements.
For example, in US-Shirts and Blouses (DS33), the Panel rules that, “although the DSU does not contain any specific reference to standards of review, we consider that Article 11 of the DSU which describes the parameters of the function of panels, is relevant here”. 4
And the application of Art. 11 as a general standard of review under the DSU is analyzed systematically in EC-Hormones (DS26/DS48) where the Appellate Body rules that: 5
“The first point that must be made in this connection, is that the SPS Agreement itself is silent on the matter of an appropriate standard of review for panels deciding upon SPS measures of a Member. Nor are there provisions in the DSU or any of the covered agreements (other than the Anti-Dumping Agreement) prescribing a particular standard of review. Only Article 17.6(i) of the Anti-Dumping Agreement has language on the standard of review to be employed by panels engaged in the ‘assessment of the facts of the matter’. We find no indication in the SPS Agreement of an intent on the part of the Members to adopt or incorporate into that Agreement the standard set out in Article 17.6(i) of the Anti-Dumping Agreement. Textually, Article 17.6(i) is specific to the Anti-Dumping Agreement.
[…]
We do not mean, however, to suggest that there is at present no standard of review applicable to the determination and assessment of the facts in proceedings under the SPS Agreement or under other covered agreements. In our view, Article 11 of the DSU bears directly on this matter and, in effect, articulates with great succinctness but with sufficient clarity the appropriate standard of review for panels in respect of both the ascertainment of facts and the legal characterization of such facts under the relevant agreements […]”
In sum, for all but one of the covered agreements, Art. 11 of the DSU sets forth the approp
riate standard of review for panels. As stated on more than one occasion, Art. 11 of the DSU, and, in particular, its requirement that “a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements”, sets forth the appropriate standard of review for panels examining the consistency or inconsistency of alleged measures under the WTO jurisprudence. And the only exception is the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, in which a specific provision, Art. 17.6, sets out a special standard of review for disputes arising under that Agreement（to be discussed in subsequent chapter）.6
III Review in “neither de novo nor total defence”
In EC-Hormones (DS26/DS48), in the view of the European Communities, “the principal alternative approaches to the problem of formulating the ‘proper standard of review’ so far as panels are concerned are two-fold. The first is designated as ‘de novo review’. This standard of review would allow a panel complete freedom to come to a different view than the competent authority of the Member whose act or determination is being reviewed. A panel would have to ‘verify whether the determination by the national authority was…correct (both factually and procedurally)’. The second is described as ‘deference’. Under a ‘deference’ standard, a panel, in the submission of the European Communities, should not seek to redo the investigation conducted by the national authority but instead examine whether the ‘procedure’ required by the relevant WTO rules had been followed”.7 In this respect, the Appellate Body rules that:8
“So far as fact-finding by panels is concerned, their activities are always constrained by the mandate of Article 11 of the DSU: the applicable standard is neither de novo review as such, nor ‘total deference’, but rather the ‘objective assessment of the facts’. Many panels have in the past refused to undertake de novo review, wisely, since under current practice and systems, they are in any case poorly suited to engage in such a review. On the other hand, ‘total deference to the findings of the national authorities’, it has been well said, ‘could not ensure an 'objective assessment' as foreseen by Article 11 of the DSU’.”
The ruling is confirmed on many other occasions. For example, the Panel on US-Underwear (DS24) finds that: 9
“In our opinion, a policy of total deference to the findings of the national authorities could not ensure an ‘objective assessment’ as foreseen by Article 11 of the DSU. This conclusion is supported, in our view, by previous panel reports that have dealt with this issue, and most notably in the panel report on the ‘Transformers’ case.
The panel in the ‘Transformers’ case was confronted with the argument of New Zealand that the determination of ‘material injury’ by the competent New Ze
aland investigating authority could not be scrutinized by the panel. The ‘Transformers’ panel responded to this argument as follows:
‘The Panel agreed that the responsibility to make a determination of material injury caused by dumped imports rested in the first place with the authorities of the importing contracting party concerned. However, the Panel could not share the view that such a determination could not be scrutinized if it were challenged by another contracting party. On the contrary, the Panel believed that if a contracting party affected by the determination could make a case that the importation could not in itself have the effect of causing material injury to the industry in question, that contracting party was entitled, under the relevant GATT provisions and in particular Article XXIII, that its representations be given sympathetic consideration and that eventually, if no satisfactory adjustment was effected, it might refer the matter to the CONTRACTING PARTIES, as had been done by Finland in the present case. To conclude otherwise would give governments complete freedom and unrestricted discretion in deciding anti-dumping cases without any possibility to review the action taken in the GATT. This would lead to an unacceptable situation under the aspect of law and order in international trade relations as governed by the GATT’.”
In short, for the panel to adopt a policy of total deference to the findings of the national authorities could not ensure an “objective assessment” as foreseen by Art. 11 of the DSU. This conclusion is supported, in our view, by previous panel reports that have dealt with this issue. However, panels do not see their review as a substitute for the proceedings conducted by national investigating authorities, either. For example, in Argentina-Footwear (DS121), the Panel doesn’t consider that they have the mandate to conduct a de novo review: 10
“This approach is consistent with the reports of panels reviewing national investigations… The panel on United States - Anti-dumping Duties on Import of Salmon from Norway concluded that it should not engage in a de novo review of the evidence examined by the national investigating authority.
The panel on United States - Underwear followed this approach by noting, however, that it did not see its ‘review as a substitute for the proceedings conducted by national investigating authorities or by the Textiles Monitoring Body (TMB). Rather…the Panel's function should be to assess objectively the review conducted by the national investigating authority, in this case the CITA. We draw particular attention to the fact that a series of panel reports in the anti-dumping and subsidies/countervailing duties context have made it clear that it is not the role of panels to engage in a de novo review. In our view, the same is true for panels operating in the context of the ATC, since they would be called upon, as in the cases dealing with anti-dumping and/or subsidies/counte
rvailing duties, to review the consistency of a determination by a national investigating authority imposing a restriction under the relevant provisions of the relevant WTO legal instruments, in this case the ATC. …’
Accordingly, the panel on United States - Underwear decided, ‘in accordance with Article 11 of the DSU, to make an objective assessment of the Statement issued by the US authorities … which, as the parties to the dispute agreed, constitutes the scope of the matter properly before the Panel without, however, engaging in a de novo review. … an objective assessment would entail an examination of whether the CITA had examined all relevant facts before it, whether adequate explanation had been provided of how the facts as a whole supported the determination made, and, consequently, whether the determination made was consistent with the international obligations of the United States’.
The panel on United States - Shirts and Blouses also stated that ‘[t]his is not to say that the Panel interprets the ATC as imposing on the importing Member any specific method either for collecting data or for considering and weighing all the relevant economic factors upon which the importing Member will decide whether there is need for a safeguard restraint. The relative importance of particular factors including those listed in Article 6.3 of the ATC is for each Member to assess in the light of the circumstances of each case’.
These past GATT and WTO panel reports make it clear that panels examining national investigations in the context of the application of anti-dumping and countervailing duties, as well as safeguards under the ATC, have refrained from engaging in a de novo review of the evidence examined by the national authority.”
However, as emphasized by the Appellate Body, although panels are not entitled to conduct a de novo review of the evidence, nor to substitute their own conclusions for those of the competent authorities, this does not mean that panels must simply accept the conclusions of the competent authorities. In this respect, the phrase “de novo review” should not be used loosely. If a panel concludes that the competent authorities, in a particular case, have not provided a reasoned or adequate explanation for their determination, that panel has not, thereby, engaged in a de novo review. Nor has that panel substituted its own conclusions for those of the competent authorities. Rather, the panel has, consistent with its obligations under the DSU, simply reached a conclusion that the determination made by the competent authorities is inconsistent with the specific requirements of the covered Agreement. 11
Specifically, as to definition of the duties of panels in reviewing the investigations and determinations carried out by competent authorities, the Appellate Body in US-Combed Cotton Yarn (DS192) summarizes that, “[o]ur Reports in these disputes [Argentina-Footwear; US-Lamb Meat; US-Wheat Gluten] under the Agreement on Sa
feguards spell out key elements of a panel's standard of review under Article 11 of the DSU in assessing whether the competent authorities complied with their obligations in making their determinations. This standard may be summarized as follows: panels must examine whether the competent authority has evaluated all relevant factors; they must assess whether the competent authority has examined all the pertinent facts and assessed whether an adequate explanation has been provided as to how those facts support the determination; and they must also consider whether the competent authority's explanation addresses fully the nature and complexities of the data and responds to other plausible interpretations of the data. However, panels must not conduct a de novo review of the evidence nor substitute their judgement for that of the competent authority.” 19 “Nevertheless, the above principles concerning the standard of review under Article 11 of the DSU with respect to the Agreement on Safeguards apply equally, in our view, to a panel's review of a Member's determination under Article 6 of the ATC”. 12
And the author thinks it appropriate, with special cautiousness and specific examination to the factual or legal issues in particular cases, to extend the above principles to panels’ review under other covered agreements (other than the Anti-dumping Agreement).
In sum, panels should be cautious about the “activist” postures in the GATT/WTO context. Many panels have in the past refused to undertake de novo review, wisely, since under current practice and systems, they are in any case poorly suited to engage in such a review.
After all, the international system and its dispute settlement procedures, in stark contrast to most national systems, depends heavily on voluntary compliance among participating members. Inappropriate panel “activism” could well alienate members, thus threatening the stability of the GATT/WTO dispute settlement procedure itself. Moreover, panels are well advised to be aware also of the potential shortcomings of the international procedures, shortcomings that sometimes relate to a shortage of resources, especially (but not only) resources for fact finding, as well to the problems of the need for a very broad multilateral consensus. Furthermore, panels should also recognize that national governments often have legitimate reasons for decisions they take. And more generally, panels should keep in mind that a broad-based, multilateral international institution must contend with a wide variety of legal, political, and cultural values, which counsel in favor of caution toward interpreting treaty obligations that may be appropriate to one society but not to other participants.13
However, panels must understand the central role of GATT/WTO adjudicatory system plays in enhancing the implementation, effectiveness, and credibility of the elaborate sets of rules for which the WTO has been created. Successful cooperation among nationa
l authorities to a large extent rests with the institutions given the responsibility to help carry out the WTO dispute settlement procedures. Thus, when a particular national authority’s activity or decision would undermine the effectiveness of WTO rules, or would establish a practice that could trigger damaging activities by other member countries, panels will undoubtedly show less deference. 14
To sum up, with this articulation of the standard of review based on Art. 11 of the DSU, a de novo review would be inappropriate. However, to adopt a policy of total deference to the findings of the national authorities could not ensure an “objective assessment” as foreseen by Art. 11 of the DSU. The applicable standard is neither de novo review as such, nor “total deference”, but rather the “objective assessment”. However, when may a panel be regarded as having failed to discharge its duty under Art. 11 of the DSU to make an objective assessment? As is what to be discussed in more detail below.
IV Allegation against Panels’ Standard of Review
In EC-Hormones (DS26/DS48), the European Communities claims that the Panel failed to make an objective assessment of the facts as required by Art. 11 of the DSU, and asks the Appellate Body to reverse the findings so arrived at by the Panel. The Appellate Body finds concerning this appeal that:15
“[…] Clearly, not every error in the appreciation of the evidence (although it may give rise to a question of law) may be characterized as a failure to make an objective assessment of the facts. In the present appeal, the European Communities repeatedly claims that the Panel disregarded or distorted or misrepresented the evidence submitted by the European Communities and even the opinions expressed by the Panel's own expert advisors. The duty to make an objective assessment of the facts is, among other things, an obligation to consider the evidence presented to a panel and to make factual findings on the basis of that evidence. The deliberate disregard of, or refusal to consider, the evidence submitted to a panel is incompatible with a panel's duty to make an objective assessment of the facts. The wilful distortion or misrepresentation of the evidence put before a panel is similarly inconsistent with an objective assessment of the facts. ‘Disregard’ and ‘distortion’ and ‘misrepresentation’ of the evidence, in their ordinary signification in judicial and quasi-judicial processes, imply not simply an error of judgment in the appreciation of evidence but rather an egregious error that calls into question the good faith of a panel. A claim that a panel disregarded or distorted the evidence submitted to it is, in effect, a claim that the panel, to a greater or lesser degree, denied the party submitting the evidence fundamental fairness, or what in many jurisdictions is known as due process of law or natural justice”.
In short, “[a]n allegation that a panel has failed to conduct the ‘objective assessment of
the matter before it’ required by Article 11 of the DSU is a very serious allegation. Such an allegation goes to the very core of the integrity of the WTO dispute settlement process itself”. 16 “Only egregious errors constitute a failure to make an objective assessment of the facts as required by Article 11 of the DSU.”17
V Exercise of Judicial Economy
In this regard, what we will next discuss is the issue of whether Art. 11 of the DSU entitles a complaining party to a finding on each of the legal claims it makes to a panel. As is the core of so-called judicial economy principle derived from Art. 11 of the DSU. The principle of judicial economy is not explicitly provided in any articles of the DSU or any other covered agreements under the WTO. However, it is a fundamental principle under the WTO jurisprudence, which is more than one time exercised by panels and then upheld by the Appellate Body during the disputes settlement.
In US-Shirts and Blouses (DS33), the Panel states in paragraph 6.6 of the its Report: “Concerning India's argument that Article 11 of the DSU entitles India to a finding on each of the issues it raised, we disagree and refer to the consistent GATT panel practice of judicial economy. India is entitled to have the dispute over the contested ‘measure’ resolved by the Panel, and if we judge that the specific matter in dispute can be resolved by addressing only some of the arguments raised by the complaining party, we can do so. We, therefore, decide to address only the legal issues we think are needed in order to make such findings as will assist the DSB in making recommendations or in giving rulings in respect of this dispute.”18 As is appealed. And the Appellate Body make an detailed analysis on the principle of judicial economy from the provisions of the DSU as well as practice under the GATT 1947 and the WTO Agreement: 19
As provided in Art. 11 of the DSU, the function of panels is to assist the DSB in discharging its responsibilities under the DSU and the covered agreements. Nothing in this provision or in previous GATT practice requires a panel to examine all legal claims made by the complaining party.
Firstly, previous GATT 1947 and WTO panels have frequently addressed only those issues that such panels considers necessary for the resolution of the matter between the parties, and have declined to decide other issues. Thus, if a panel has found that a measure is inconsistent with a particular provision, it generally does not go on to examine whether the measure is also inconsistent with other provisions that a complaining party may have argued are violated. In recent WTO practice, panels likewise have refrained from examining each and every claim made by the complaining party and have made findings only on those claims that such panels conclude are necessary to resolve the particular matter. Although a few GATT 1947 and WTO panels have made broader rulings, by considering and deciding issues that are n
ot absolutely necessary to dispose of the particular dispute, there is nothing anywhere in the DSU that requires panels to do so.
Secondly, such a requirement for a panel as to address on all claims the complainant made is not consistent with the aim of the WTO dispute settlement system. Art. 3.7 of the DSU explicitly states: “The aim of the dispute settlement mechanism is to secure a positive solution to a dispute. A solution mutually acceptable to the parties to a dispute and consistent with the covered agreements is clearly to be preferred.” Thus, the basic aim of dispute settlement in the WTO is to settle disputes. This basic aim is affirmed elsewhere in the DSU. Art. 3.4, for example, stipulates: “Recommendations or rulings made by the DSB shall be aimed at achieving a satisfactory settlement of the matter in accordance with the rights and obligations under this Understanding and under the covered agreements.”
Furthermore, Art. 3.2 of the DSU states that the Members of the WTO “recognize” that the dispute settlement system “serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law”. Given the explicit aim of dispute settlement that permeates the DSU, the Appellate Body does not consider that Art. 3.2 of the DSU is meant to encourage either panels or the Appellate Body to “make law” by clarifying existing provisions of the WTO Agreement outside the context of resolving a particular dispute.
In sum, as ruled by the Appellate Body in India - Patent Protection (DS50), “[i]n United States - Shirts and Blouses, we said that ‘[a] panel need only address those claims which must be addressed in order to resolve the matter in issue in the dispute’. This means that a panel has the discretion to determine the claims it must address in order to resolve the dispute between the parties -- provided that those claims are within that panel's terms of reference”.20
However, is there any limits to such a discretion exercised as judicial economy? With regard to this issue, the Appellate Body in Australia-Salmon (DS18) finds that, the principle of judicial economy has to be applied by panels keeping in their mind the aim of the dispute settlement system, i.e, “to secure a positive solution to a dispute” as provided for in Art. 3.7 of the DSU and affirmed in Art. 3.4 of the DSU, which stipulates: “Recommendations or rulings made by the DSB shall be aimed at achieving a satisfactory settlement of the matter in accordance with the rights and obligations under this Understanding and under the covered agreements.” Therefore, to provide only a partial resolution of the matter at issue would be false judicial economy. A panel has to address those claims on which a finding is necessary in order to enable the DSB to make sufficiently precise recommendations and rulings so as to allow for pro
mpt compliance by a Member with those recommendations and rulings “in order to ensure effective resolution of disputes to the benefit of all Members”.21
To sum up, as ruled by the Appellate Body in US-Lamp Meat (DS177/DS178), “on the issue of panels' exercise of judicial economy, we have previously explained that panels ‘need only address those claims which must be addressed in order to resolve the matter in issue in the dispute’. At the same time, the ‘discretion’ a panel enjoys to determine which claims it should address is not without limits, as a panel is obliged ‘to address those claims on which a finding is necessary in order to enable the DSB to make sufficiently precise recommendations and rulings so as to allow for prompt compliance by a Member with those recommendations and rulings’”. 22
【NOTE】:
1. See, Steven P. Croley and John H. Jackson, ‘WTO Dispute Panel Deference to National Government Decisions. The Misplaced Analogy to the U.S. Chevron Standard-Of-Review Doctrine’, International Trade Law and the GATT/WTO Dispute Settlement System (Petersmann Ed.), Kluwer Law International, London, 1997, pp. 187-188.
2. Supra. note 1, p. 208.
3. Supra. note 1, p. 192.
4. See, WT/DS33/R/7.16.
5. See, WT/DS26/AB/R; WT/DS48/AB/R/114;116.
6. See also, WT/DS121/AB/R/118-120.
7. See, WT/DS26/AB/R; WT/DS48/AB/R/111.
8. See, WT/DS26/AB/R; WT/DS48/AB/R/117.
9. See, WT/DS24/R/7.10-7.11.
10. See, WT/DS121/R/8.118-8.121.
11. See, in detail, WT/DS177/AB/R; WT/DS178/AB/R/106-107.
12. See, WT/DS192/AB/R/76.
13. See, Mary E. Footer, ‘Some Aspects of Third Party Intervention in GATT/WTO Dispute Settlement Proceedings’, International Trade Law and the GATT/WTO Dispute Settlement System (Petersmann Ed.), Kluwer Law International, London, 1997, pp. 209-210.
14. Supra. note 13, p. 210.
15. See, WT/DS26/AB/R; WT/DS48/AB/R/133.
16. See, WT/DS69/AB/R/133.
17. See, WT/DS76/AB/R/141.
18. See, WT/DS33/R/6.6.
19. See, in detail, WT/DS33/AB/R/VI.
20. See, WT/DS50/AB/R/87.
21. See, in detail, WT/DS18/AB/R/223.
22. See, WT/DS177/AB/R; WT/DS178/AB/R/191.
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