Dissent as dialectic: horizontal and vertical disagreement in WTO dispute settlement.

AuthorLewis, Meredith Kolsky

"Legal precedent in international dispute settlement is neither to be worshipped nor ignored."

Gilbert Guillaume, former President of the International Court of Justice (1)

  1. INTRODUCTION II. ARE DISSENTS DESIRABLE OR DISAGREEABLE? A. Beneficial Aspects of Dissent B. Criticisms of Dissent III. PARTICULARITIES OF WTO DISPUTE SETTLEMENT A. WTO Dispute Settlement Structure B. Nature of the Panels and the Appellate Body 1. Selection of Panelists and Appellate Body Members 2. Institutional Support for Dispute Settlement Panels and the Appellate Body 3. Different Strengths within the Hierarchy C. WTO Dispute Settlement and Disagreement therein as Dialectic IV. HORIZONTAL AND VERTICAL DISSENT IN WTO DISPUTE SETTLEMENT A. Revisiting the Question of Dissent Within WTO Dispute Settlement Panels or the Appellate Body 1. Necessity of Dissents/Separate Opinions 2. Correctness of Dissents and Concurrences 3. Utility of Panels 4. Benefits of Separate Opinions B. The Zeroing Cases as Horizontal and Vertical Disagreement 1. What is Zeroing, and Why is it so Controversial? 2. Degrees of Disagreement over Zeroing C. "Dissenting Panels"--Disagreement Between Panels and the Appellate Body 1. Unadopted GATT Panel Reports 2. Adopted GATT Panel Reports 3. Adopted WTO Panel Reports 4. Adopted WTO Appellate Body Reports V. SHOULD PANELS BE ABLE TO DIVERGE FROM PREVIOUS APPELLATE BODY JURISPRUDENCE? A. Guiding Provisions of the Dispute Settlement Understanding and Key Interpretive Principles B. Should panels be precluded from disagreeing with the Appellate Body? C. What Would Constitute "Cogent Reasons" to Disregard Precedent? 1. Where a textual interpretation either has not been conducted or has not yielded a clear and definitive result 2. Where the area under consideration has not crystallized into a definitive, accepted practice 3. Where the legal issue is likely to be subject to repeated consideration in a variety of contexts 4. Where the panel has a new argument to make or determines additional Appellate Body clarification is necessary VI. PUTTING THE DISSENTING PANELS TO THE TEST A. US--Zeroing (EC) B. US--Softwood Lumber V (21.5) C. US--Stainless Steel (Mexico) VII. CONCLUSION I. INTRODUCTION

    Since the creation of the World Trade Organization (WTO) in 1995, much has been written in praise of the WTO's dispute settlement system. WTO dispute settlement improves upon the system used by the General Agreement on Tariffs and Trade (GATT), (2) which the WTO subsumed. In particular, the WTO has a rule based structure in contrast to the GATT's more diplomatically oriented processes. The WTO system includes two-tiered dispute settlement, automatic adoption of panel and Appellate Body reports, and remedies in the event a losing party fails to comply with recommendations directed towards it. WTO members have embraced the new dispute settlement system, and have initiated several hundred disputes over the past sixteen years. However, a systemic review of WTO jurisprudence a few years ago (3) revealed a curious fact--that compared with other international tribunals, (4) there had been a decided lack of dissent in WTO dispute settlement proceedings, in a previous article focusing on this phenomenon, I determined that dissent was being actively discouraged, and argued that dissent should no longer be avoided at all costs, but should instead be aired, as it could serve useful functions. (5) More recently, a fascinating drama has played out whereby panels have not only featured dissents amongst the three panelists, but entire panels have disagreed with--in effect "dissented from"--Appellate Body reports. The present piece therefore revisits the issue of dissent in WTO dispute settlement, examining both the legal permissibility and normative desirability of horizontal and vertical disagreement. In so doing, it develops a theory of WTO dispute settlement reports, and disagreement therein, as a form of dialectic, or dialogue.

    Part II of this article discusses the utility of dissents in dispute settlement generally. Part III develops a theory of dissent in the WTO context. This latter Part first explains the structure of WTO dispute settlement; second, it notes unique attributes and competencies of WTO dispute settlement panels and the Appellate Body; and third, it postulates purposes of WTO dispute settlement, including its dialectical nature. As such, it suggests that disagreement in WTO dispute settlement should be viewed as a part of a dialectical process, rather than a mere desire to be disagreeable. In Part IV, I apply this theoretical framework to both horizontal and vertical disagreements in WTO dispute settlement, considering dissent or disagreement in each context. In the context of considering horizontal disagreement--dissents within dispute settlement panels or Appellate Body divisions--I respond to a recently published critique of my previous article on dissent in WTO dispute settlement. (6) This Part then uses the WTO's jurisprudence in a series of related cases (all dealing with the contentious issue of "zeroing" (7)) to illustrate how dissent can be both horizontal and vertical. In particular, I examine an unusual recent phenomenon whereby WTO dispute settlement panels (the arbiters at first instance) have reached unanimous decisions, but these decisions explicitly disagree with (or, I argue, in effect "dissent" from) previous decisions of the WTO Appellate Body (the tribunal of last instance). This Part concludes by examining the Appellate Body's pronouncements regarding the degree to which panels and the Appellate Body itself should feel compelled to follow precedents. In Part V, the article attempts to answer a question left open by the Appellate Body-namely, under what circumstances, if any, should panels be permitted to diverge from previous Appellate Body precedent. I assess this question both through the lens of statutory interpretation and through nonnative analysis. In Part VI, I apply the nonnative criteria identified ill Part V to the WTO's "dissenting" panels to assess the appropriateness of their failure to follow the Appellate Body's decisions. In Part VII, I conclude that raising points of difference can serve useful dialectical purposes in the context of both horizontal and vertical disagreement. In addition, I argue that the Appellate Body has wisely refrained from requiring panels to follow previous Appellate Body rulings.

  2. ARE DISSENTS DESIRABLE OR DISAGREEABLE?

    1. Beneficial Aspects of Dissent

      In the domestic common law context, judges and academics have advanced numerous arguments in support of the use of dissent in judicial decision. (8) First, dissents may lead to better overall opinions. If the majority knows that the minority will, or may, write its own decision, the majority is likely to work harder to reach a clearer, more thoroughly argued opinion that addresses the concerns of the minority. (9) Justice Brennan has applied the "marketplace of ideas" concept to dissent, arguing that the airing of opposing views will lead to better decisions: "the best way to find the truth is to go looking for it in the marketplace of ideas. It is as if the opinions of the Court--both the majority and the dissent--were the product of a judicial town meeting." (10)

      Second, dissents may serve signaling or corrective functions, including: providing litigants and lower courts with a roadmap for how to distinguish the majority's position; proposing an alternative approach for subsequent jurists to consider; spurring all members of the court to consider potential flaws in the majority's reasoning; and signaling to the legislature the need to respond to the majority's approach. In the words of Charles Evans Hughes: "la] dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed. (11) Third, the possibility of dissents helps observers reach conclusions as to the relative legitimacy of decisions. A decision without dissents (9-0 in the U.S. Supreme Court context, for example) may well seem more commanding and definitive than one with dissent. In addition, the 9-0 ruling would gain additional legitimacy because observers would understand that the adjudicators had the option of dissenting yet elected not to. As such, the unanimous opinion becomes more powerful, and is given a point of differentiation from more contentious cases. In the absence of a fight to dissent, these differences would be more difficult to discern. (12)

    2. Criticisms of Dissent

      Even the most ardent supporters of dissent tend to agree that dissents should be used sparingly. (13) Too much dissent can undermine the legitimacy of a court in a number of ways. First, it calls into question the enduring power of the judicial body's decisions if it regularly cannot reach consensus. Second, it can damage the collegiality amongst members, potentially causing instability on the bench. As Ruth Bader Ginsburg has explained, "[r]ule of law virtues of consistency, predictability, clarity, and stability may be slighted when a court routinely fails to act as a collegial body." (14) Third, dissent, particularly in a court of last instance, may reduce the influence of a given judicial decision. (15) If dissent is viewed as strong medicine that should only be resorted to in limited circumstances, even in a domestic judicial system with as lengthy a history as that of the United States, what role, if any, should it play in WTO dispute settlement? The WTO is a relatively young institution, with a dispute settlement system that can only be used by WTO members themselves, rather than by private actors. As such, it is necessary to consider the WTO's unique circumstances in evaluating to what degree arguments in favor of and opposed to dissent in the domestic judicial setting can be imported...

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