The WTO appellate body needs remand authority

Journal of World Trade

Volumn 32, Issue 1, 1998, Pages 41-44

  Palmeter, David ^a,b  

^a District of Columbia Bars ^*

^b Texas and the District of Columbia   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0032387195     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: 10.54648/trad1998004     Document Type: Article

References (10)

1. Although the WTO Dispute Settlement Body has the formal legal authority not to adopt reports of the Appellate Body, this authority is all but illusory inasmuch as consensus is required not to adopt. Understanding on Rules and Procedures Governing the Settlement of Disputes, art. 17.14. The party prevailing before the Appellate Body will rarely agree to such a consensus.
2. AB-1996-1, WT/DS2/AB/R (29 April 1996) (adopted 20 May 1996).
3. AB-1997-2, WT/DS31/AB/R (30 June 1997) (adopted 30 July 1997).
4. As note 3, above, §VI.A, p. 25.
5. App. Rep. at 29.
6. AB-1997-1, WT/DS33/AB/R (25 April 1997) (adopted 23 May 1997).
7. As note 6, above, VI, p. 22.
8. The principle of judicial economy not only economizes on judicial resources, it also avoids deciding issues that do not have to be decided in order to reach a conclusion on the dispute before the panel. It is, therefore, a less expansive approach which seems appropriate to bodies reviewing the programmes and actions of sovereign governments. One recent panel, however, anticipated possible reversal and decided an issue it apparently would not have decided otherwise. "[W]e believe it necessary to make our findings clear on the issue of transparency in order to avoid a legal vacuum in the event that, upon appeal, the Appellate Body were to reverse our findings on Article 70.8." India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/R (5 September 1997) (para. 7.44).
9. The words of former US Supreme Court Associate Justice Robert H. Jackson are appropriate: "Whenever decisions of one court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts. However, reversal by a higher court is not proof that justice is thereby better done.... We are not final because we are infallible, but we are infallible only because we are final." Broun v. Allen, 344 U.S. 443, 540 (1953) (concurring).
10. Decision on the Application and Review of the Understanding on Rules and Procedures Governing the Settlement of Disputes.