Reflections on the Appellate Body of the WTO

Journal of International Economic Law

Volumn 6, Issue 3, 2003, Pages 695-708

  Ehlermann, Claus Dieter ^a  

^a WILMER CUTLER PICKERING HALE AND DORR LLP   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0041376571     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/6.3.695     Document Type: Review

References (33)

1. Claus-Dieter Ehlermann, '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(4) JWT 605-39 (2002).
2. See also the view expressed by my former colleague Florentino Feliciano who said at the same swearing-in ceremony: [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 further the address given by the actual Chairman of the Appellate Body, James Bacchus, at an IBA conference in Genevas, on 20 March 2003 ('"Woulda, Coulda, Shoulda": The Consolations of WTO Dispute Settlement', 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 the trading system. We are always independent. We are always impartial. We will always be.
3. Appellate Body, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5 April 2001, paras 149-54.
4. Donald M. McRae, The WTO in International Law: Tradition Continued or New Frontier?', 3(1) JIEL 27-41 (2000) at 39.
5. John Greenwald, 'WTO Dispute Settlement: an Exercise in Trade Law Legislation?', 6(1) JIEL 113-24 (2003) at 123.
6. See the speculations of Daniel K. Tarullo, 'The Hidden Cost of International Dispute Settlement: WTO Review of Domestic Anti-dumping Decisions', Law and Policy in International Business (Winter 2003, forthcoming).
7. See the publication of Ernst-Ulrich Petersmann referred to by DanielK. Tarullo, above, n 6, at n 167.
8. Donald McRae, above, n4.
9. For the following discussion see in particular Michael Lennard, 'Navigating by the Stars: Interpreting the WTO Agreements', 5(1) JIEL 17-89 (2002), and Eric Canal-Forgues, 'Sur l'interprétation dans le droit de l'OMC', RGDIP 5-23 (2001).
10. For the following discussion see in particular Michael Lennard, 'Navigating by the Stars: Interpreting the WTO Agreements', 5(1) JIEL 17-89 (2002), and Eric Canal-Forgues, 'Sur l'interprétation dans le droit de l'OMC', RGDIP 5-23 (2001).
11. See in particular the conclusion of Lennard, above, n 9, 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 sage approach that may help bind together the economic aspects of the WTO Agreements and the wider development of international law, infusing each with each.
12. Paul C. Rosenthal and Jeffrey S. Beckington, 'Dispute Settlement Before the World Trade Organization in Antidumping, Countervailing and Safeguard Actions: Effective Interpretation or Unauthorized Legislation?', paper given at the already-mentioned IBA Conference in Geneva on 21 March 2003) on file with the author.
13. 82(1) Foreign Affairs 130-40 (2003) at 139.
14. Daniel K. Tarullo, above, n 6.
15. See the remark in my earlier paper (n 1) at 620: '[P]anels and the Appellate Body have certainly to be more reserved and restrained than an internal jurisdiction like the ECJ.'
16. Appellate Body, Korea - Definitive Safeguard Measures on Imports of Certain Dairy Products, WT/DS98/AB/R, adopted 14 December 1999, at paras 78-90 and 151.
17. Marco C. E. J. Bronckers is one of the authors who had argued that injury need no longer be attributable to unforeseen developments. See his contribution 'Voluntary Export Restraints and the GATT 1994 Agreement on Safeguards', in Jacques H. J. Bourgeois, Frédéric Berrod, and Eric Gippini Fournier, The Uruguay Round Results, (European Interuniversity Press, 1995) at 275.
18. Appellate Body, United States - Lamb Meat from New Zealand and Australia, WT/DS177 &178/AB/R, adopted 16 May 2001, at para 177.
19. Paul C. Rosenthal and Jeffrey S. Beckington, above, n 11.
20. Appellate Body, United States - Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan, WT/DS192/AB/R, adopted 5 November 2001, paras 73 and 78.
21. See the already-mentioned articles and papers by John Greenwald, above, n 5, Daniel K. Tarullo, above, n 6, and Paul C. Rosenthal and Jeffrey S. Beckington, above, n 11.
22. See the already-mentioned articles and papers by John Greenwald, above, n 5, Daniel K. Tarullo, above, n 6, and Paul C. Rosenthal and Jeffrey S. Beckington, above, n 11.
23. See the already-mentioned articles and papers by John Greenwald, above, n 5, Daniel K. Tarullo, above, n 6, and Paul C. Rosenthal and Jeffrey S. Beckington, above, n 11.
24. 6(1) JIEL (2003) 125-53
25. Ibid, n 4, at 29.
26. 23 Daniel K. Tarullo, above, n 6.
27. See http://docsonline.wto.Org/DDFDocuments/t/tn/ds/W52.doc
28. Claus-Dieter Ehlermann, 'Tensions between the Dispute Settlement Process and the Diplomatic and Treaty-Making Activities of the WTO', 1(3) World Trade Review (2002).
29. See Claude Barfield, Free Trade, Sovereignty, Democracy: The Future of the World Trade Organisation (Washington DC: American Enterprise Institute, 2001).
30. Claus-Dieter Ehlermann, 'Experiences from the WTO Appellate Body', forthcoming in 38 Texas International Law Journal (2003).
31. WT/DS 126/RW.
32. See in particular Daniel K. Tarullo, above, n 6.
33. Above, n 1, at 639