From the periphery to the center? The evolving WTO jurisprudence on transparency and good governance

Journal of International Economic Law

Volumn 11, Issue 4, 2008, Pages 779-802

  Ala'i, Padideh ^a  

^a AMERICAN UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 57149104611     PISSN: 13693034     EISSN: 14643758     Source Type: Journal    
DOI: 10.1093/jiel/jgn027     Document Type: Article

References (190)

1. WTO, The Results of the Uruguay Round of Multilateral Trade Negotiations, the Legal Texts (Geneva 2003) 17.
2. Sylvia Ostry, 'China and the WTO: The Transparency Issue", 3 UCLA Journal of International Law and Foreign Affairs 1 (1998), at 2.
3. 5 United States Code (USC) ss 551-559.
4. WTO, above n 1, at 423.
5. Transparency is generally defined as 'sharing information or acting in an open manner', or 'a measure of the degree of which information about official activity is made available to an interested party'.
6. See William Mock, 'On the Centrality of Information Law: A Rational Choice Discussion of Information Law and Transparency', 17 John Marshall Journal of Computer and Information Law 1069, 1182 (1999).
7. In the legal context, the focus of transparency is on procedural due process: publication, access to and flow of information, and independent judicial review. This article is not concerned with the internal governance of the WTO or the external transparency of the WTO as it relates to public (non-state) participation.
8. In this article 'governance' is defined as the 'process of decision-making and the process by which decisions are implemented'.
9. See United Nations Economic and Social Commission for Asia and the Pacific (ESCAP), 'What is Good Governance?,' http://www.unescap.org/pdd/prs/ ProjectActivities/Ongoing/gg/governance.pdf (visited 16 May 2008). The term 'good governance' includes five basic characteristics: (1) participation, (2) transparency, (3) responsibility, (4) accountability, and (5) responsiveness; Commission on Human Rights, 'Role of Good Governance in the Promotion of Human Rights', UN. Doc. E/CN.4/RES/2000/64 (April 27, 2000). A strong argument can be made that the cumulative effect of the 'good governance' provisions of the WTO, for example requiring notification, publication, participation, responsiveness, and access to information, have potentially far greater impact on domestic governance of states than direct attempts at legal and institutional reform by the World Bank, the International Monetary Fund (IMF) and others. A prominent example of the influence of WTO's transparency and good governance provisions is seen in the case of China, where thousands of pieces of legislation were promulgated in connection with China's accession to the WTO.
10. In such cases, the panels' extensive discussion of Art. X provisions may nevertheless set the stage for the future where international review of domestic administrative regimes may be less politically controversial.
11. See below, Part VII.
12. WTO, above n 1, at 354.
13. WTO Appellate Body Report, European Communities - Selected Customs Matters (EC - Selected Customs Matters), WT/DS315/AB/R, Adopted on 11 December 2006;
14. WTO Panel Report, European Communities - Selected Customs Matters, WT/DS315/R, Adopted on 11 December 2006.
15. Ostry, above n 2, at 3.
16. Article X was also 'partially based on Articles 4 and 6 of the 1923 International Convention Relating to the Simplification of Customs Formalities'.
17. See GATT, Analytical Index: Guide to GATT Law and Practice, (6th ed, WTO & Bernan Press 1995) vol. I, at 309.
18. See also Padideh Ala'i, 'The Multilateral Trading System and Transparency, in Trends', in Alan S. Alexandroff (ed), World Trade: Essays in Honor of Sylvia Ostry (Durham, NC: Carolina Academic Press 2007) 105-132 at 105, 108-112 (discussing the history and evolution of the US APA and its relationship to Art. X of GATT 1947).
19. In fact, a senior Canadian negotiator is quoted as stating at the time of the original enactment of Art. X that it contained no additional substantive requirements and should therefore not be of any concern. Sylvia Ostry, 'Article X and the Concept of Transparency in the GATT/ WTO', in Alan S. Alexandroff, Sylvia Ostry and Rafael Gomez (eds), China and the Long March to Global Trade: The Accession of China to the World Trade Organisation (UK: Routledge 2002) 123-24.
20. See also Ostry, above n 2, at 4.
21. Article X of the GATT, above n 1 (emphasis added).
22. See John H. Jackson, Wbrld Trade and the Law of GATT (Charlottesville, Virginia: The Michie Company 1969) 461-64.
23. See Ala'i, above n 12, at 109-12 (noting that while the APA may have been an attempt to limit executive discretion it also led to the rise of the administrative state with the proliferation of agencies under the executive branch of government).
24. Prior to the formation of the WTO, the GATT dispute settlement panel was driven by consensus that required agreement of all parties for the formation or adoption of panel decisions. The result of this consensus-driven approach was few adopted decisions, and even fewer dealing with controversial issues that may have threatened the legitimacy of the system. This may have included avoiding Art. X transparency claims.
25. These issues were addressed more frequently through other mechanisms. For example, in 1977 the United States passed the Foreign Corrupt Practices Act, 15 USC § 78m(b)(2)(B).
26. See e.g. GATT Panel Report, Japan - Trade in Semi-Conductors (Japan - Semi-Conductors), L/6309, Adopted on 4 May 1988;
27. GATT Panel Report, Japan - Restrictions on Imports of Certain Agricultural Products (Japan - Agricultural Products I), L/6253, Adopted on 2 March 1988;
28. GATT Panel Report, Japanese Measures on Imports of Leather (Japan - Leather II (US)), L/5623, Adopted on 15 May 1984.
29. GATT Panel Report, United States - Countervailing Duties on Non-Rubber Footwear from Brazil (US - Non-Rubber Footwear), SCM/94, Adopted on 13 June 1995;
30. GATT Panel Report, Canada - Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies (Canada - Provincial Liquor Boards (US)), DS17/R, Adopted on 18 February 1992;
31. GATT Panel Report, European Economic Community - Regulation on Imports of Parts and Components (EEC - Parts and Components), L/6657, Adopted on 16 May 1990;
32. GATT Panel Report, Canada - Import Restrictions on Ice Cream and Yoghurt (Canada - Ice Cream and Yoghurt), 176568, Adopted on 5 December 1989;
33. GATT Panel Report, European Economic Community - Restrictions on Imports of Apples - Complaint by the United States (EEC - Apples (US)), L/6513, Adopted on 22 June 1989;
34. GATT Panel Report, European Economic Community - Restrictions on Imports of Dessert Apples - Complaint by Chile (EEC - Dessert Apples), L/6491, Adopted on 22 June 1989;
35. GATT Panel Report, Republic of Korea - Restrictions on Imports of Beef - Complaint by the United States (Korea - Beef (US)), L/6503, Adopted on 7 November 1989;
36. GATT Panel Report, Japan - Semi-Conductors, above n 19;
37. GATT Panel Report, Japan - Agricultural Products I, above n 19;
38. GATT Panel Report, Japan - Leather II (US), above n 19.
39. Out of the seven cases initiated by the United States three were against Japan.
40. See GATT Panel Report, Japan - Semi-Conductors, above n 19;
41. GATT Panel Report, Japan - Agricultural Products I, above n 19;
42. GATT Panel Report, Japan - Leather II (US), above n 19. Two were against Canada.
43. See GATT Panel Report, Canada - Provincial Liquor Boards (US), ibid;
44. GATT Panel Report, Canada - Ice Cream and Yoghurt, ibid. One was against Korea: GATT Panel Report, Korea - Beef (US), ibid.
45. See GATT Panel Report, US - Non-Rubber Footwear, above n 20.
46. Although not an official third party, the measure at issue was related to US actions forcing Japan to limit its exports to the European market.
47. See GATT Panel Report, Japan - Semiconductors, above n 19, para 4 (acknowledging the special nature of the matter and providing for an adequate opportunity for the United States to participate).
48. See also GATT Panel Report, EEC - Parts and Components, above n 20.
49. Article XI: 1 of the GATT 1947 states: 'No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licenses or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party.'
50. See WTO, above n 1.
51. See GATT Panel Report, Japan - Semi-Conductors, above n 19;
52. GATT Panel Report, Japan - Agricultural Products I, above n 19;
53. GATT Panel Report, Japan - Leather II (US), above n 19.
54. See GATT Panel Report, Japan - Agricultural Products I, ibid, para 5.4.1.4 (finding that the practice of 'administrative guidance' is 'a traditional tool of Japanese Government policy based on consensus and peer pressure' and thus finding that under the special circumstances in Japan such administrative guidance could be considered a governmental measure).
55. See also GATT Panel Report, Japan - Semi-Conductors, above n 19, para 107 (clarifying the panel's analysis of 'administrative guidance' as a governmental measure in Japan - Agricultural Products I).
56. GATT Panel Report, Japan - Leather II (US), above n 19.
57. Ibid, para 16.
58. Ibid, para 28.
59. Ibid, paras 44, 57.
60. GATT Panel Report, Japan - Agricultural Products I, above n 19, para 3.1.1. The United States also argued that Japan had failed to meet the requirements of Arts X: 1 and 3 'in terms of transparency, specificity and timing of notice given', (para 3.5.1).
61. Ibid, para 3.5.2.
62. Ibid, paras 5.4.2 and 6.2.
63. See GATT Panel Report, Japan - Semi-Conductors, above n 19.
64. Ibid, para 35 (outlining the EC argument that Japan's administrative guidance controlled export prices, export volume, production volume and other aspects related to exports. It was also stated in Japan's Position Paper that 'Japan exercised administrative guidance to achieve production cutbacks').
65. Ibid, paras 35, 53, and 128. In that case, the Monitoring System had already been found to be inconsistent widi Art. XI:1 of the GATT 1947.
66. Ibid, para 107.
67. GATT Panel Report, Canada - Provincial Liquor Boards (US), above n 20.
68. Ibid, para 5.34 (emphasis added).
69. GATT Panel Report, EEC - Dessert Apples, above n 20.
70. Ibid, paras 12.29-30, (finding that minimal administrative differences by themselves could not constitute a violation of Art. X:3 and that the administration of the quotas was a violation of Art. XIII).
71. See GATT Panel Report, Canada - Ice Cream and Yoghurt, above n 20;
72. GATT Panel Report, Korea - Beef (US), above n 20.
73. GATT Panel Report, US - Non-Rubber Footwear, above n 20.
74. Ibid, para 6.2.
75. Paragraph 1 of the GATT 1994.
76. Under the GATT 1947, Contracting Parties could pick and choose which agreements they wanted to sign and ratify while still maintaining their membership in the GATT. This changed with the creation of the WTO, where Members are required to sign all of the relevant WTO agreements. The Covered Agreements are the Agreements on Agriculture, Sanitary and Phytosanitary Measures, Textiles and Clothing, Technical Barriers to Trade, Trade-Related Investment Measures, Anti-Dumping, Custom Valuation, Pre-shipment Inspection, Rules of Origin, Import Licensing Agreement, Subsidies and Countervailing Measures, and Safeguards.
77. WTO, above n 1, at 172.
78. Ibid, at 211.
79. Ibid, at 275.
80. Ibid, at 59.
81. Ibid, at 21.
82. Ibid, at 147.
83. Ibid, at 231.
84. Ibid, at 223.
85. Ibid, at 284. [Specifically, Art. III of the GATS (Transparency) largely follows the language of Art. X of the GATT 1994 and requires publication of all relevant measures including international agreements affecting trade in services. In addition, Art. III of the GATS requires that WTO members annually inform the WTO Council for Trade in Services of any changes made to the laws that affect trade in services and the commitments that each member has made on that agreement. It also requires all members to 'establish one or more enquiry point to provide specific information to other members'. Article VI of the GATS requires members to maintain 'judicial, arbitral or administrative tribunals' to review administrative decisions affecting trade in services.]
86. Ibid, at 321 [Art. 63 of the TRIPS (Transparency) requires publication of all intellectual property related measures and notification to the WTO Council for TRIPS. In addition, Art. 63.3 allows Members to object to another Member's specific judicial and administrative rulings in the area of intellectual property and to request detailed written justification for the ruling].
87. Ibid, at 308. Part B of the TPRM states: Domestic Transparency-Members recognize the inherent value of domestic Transparency of government decision-making on trade policy matters for both Members' economies and the multilateral trading system, and agree to encourage and promote greater transparency within their own systems, acknowledging that the implementation of domestic transparency must be on a voluntary basis and take account of each Member's legal and political systems.
88. This is important not only within the context of Art. X, but also the other 'substantive' provisions of GATT 1994, including: Arts. I (most-favored-nation), II (tariff commitments), III (non-discriminatory application of internal measure), and Art. XI:1 (prohibition on quotas and NTBs).
89. WTO, above n 1, at 16.
90. WTO Appellate Body Report, EC - Selected Customs Matters, above n 10;
91. Panel Report, EC - Selected Customs Matters, above n 10; WTO Appellate Body Report, WTO Panel Report, United States - Measures Relating to Shrimp from Thailand, WT/DS343/R, circulated 29 February 2008;
92. WTO Panel Report, United States - Customs Bond Directive for Merchandise Subject to Anti-Dumping/Countervailing Duties (US - Customs Bond Directive), WT/DS345/R, circulated 29 February 2008;
93. WTO Appellate Body Report, United States - Customs Bond Directive for Merchandise Subject to Anti-Dumping/Countervailing Duties (US - Customs Bond Directive), WT/DS345/AB/R, circulated 16 July 2008;
94. WTO Panel Report, Turkey - Measures Affecting the Importation of Rice, WT/DS334/R, Adopted on 21 September 21 2007;
95. Mexico - Tax Measures on Soft Drinks and Other Beverages (Mexico - Taxes on Soft Drinks), WT/DS308/AB/R, Adopted on 24 March 2006);
96. WTO Panel Report, Mexico - Tax Measures on Soft Drinks and Other Beverages (Mexico - Taxes on Soft Drinks), WT/DS308/R, Adopted on 24 March 2006;
97. WTO Appellate Body Report, Dominican Republic - Measures Affecting the Importation and Internal Sale of Cigarettes (Dominican Republic - Import and Sale of Cigarettes), WT/DS302/AB/R, Adopted on 19 May 2005;
98. WTO Panel Report, Dominican Republic - Measures Affecting the Importation and Internal Sale of Cigarettes (Dominican Republic - Import and Sale of Cigarettes), WT/DS302/R, Adopted on 19 May 2005;
99. WTO Appellate Body Report, United States - Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina (US - Oil Country Tubular Goods Sunset Reviews), WT/ DS268/AB/R, Adopted on 17 December 2004;
100. WTO Panel Report, United States - Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina (US - Oil Country Tubular Goods Sunset Reviews), WT/DS268/R, Adopted on 17 December 2004;
101. WTO Appellate Body Report, United States - Continued Dumping and Subsidy Offset Act of 2000, WT/DS234/AB/R, Adopted on 27 January 2003;
102. WTO Panel Report, United States - Continued Dumping and Subsidy Offset Act of 2000, WT/DS234/R, Adopted on 27 January 2003;
103. WTO Panel Report, Egypt - Definitive Anti-Dumping Measures on Steel Rebar from Turkey, WT/DS211/R, Adopted on 1 October 2002;
104. WTO Appellate Body Report, United States - Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan (US - Hot-Rolled Steel), WT/DS184/AB/R, Adopted on 23 August 2001;
105. WTO Panel Report, United States - Anti-Dumping Measures on Certain HotRolled Steel Products from Japan (US - Hot-Rolled Steel), WT/DS184/R, Adopted on 23 August 2001 ;
106. WTO Panel Report, United States - Anti-Dumping Measures on Stainless Steel Plate in Coils and Stainless Steel Sheet and Strip from Korea (US - Stainless Steel), WT/DS179/R, Adopted on 1 February 2001 ;
107. WTO Panel Report, A rgentina - Measures Affecting the Export of Bovine Hides and the Import of Finished Leather (Argentina - Hides and Leather), WT/DS155/R, Adopted on 16 February 2001;
108. WTO Panel Report, United States - Anti-Dumping Duty on Dynamic Random Access Memory Semiconductors (DRAMS) of One Megabit or Above from Korea (US - DRAMS), WT/DS99/R, Adopted on 19 March 1999;
109. WTO Appellate Body Report, Japan - Measures Affecting Agricultural Products, WT/DS76/AB/R, Adopted on 19 March 1999;
110. WTO Panel Report, Japan - Measures Affecting Agricultural Products, WT/DS76/R, Adopted on 19 March 1999;
111. WTO Appellate Body Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products (US - Shrimp), WT/DS58AB/R, Adopted on 6 November 1998;
112. WTO Panel Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products (US - Shrimp), WT/DS58/R, Adopted on 6 November 1998;
113. WTO Appellate Body Report, European Communities - Measures Affecting Importation of Certain Poultry Products (EC - Poultry), WT/DS69/AB/R, Adopted on 23 July 1998;
114. WTO Panel Report, European Communities - Measures Affecting Importation of Certain Poultry Products (EC - Poultry), WT/DS69/R, Adopted on 23 July 1998;
115. WTO Panel Report, Indonesia - Certain Measures Affecting the Automobile Industry, WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, Adopted on 23 July 1998;
116. WTO Panel Report, Japan - Measures Affecting Consumer Photographic Film and Paper (Japan - Film), WT/DS44/R, Adopted on 22 April 1998;
117. WTO Panel Report, European Communities - Regime for the Importation, Sale and Distribution of Bananas (EC - Bananas III (Mexico)), WT/DS/27/R/MEX, 25 September 1997;
118. WTO Appellate Body Report, European Communities - Regime for the Importation, Sale and Distribution of Bananas (EC - Bananas III), WT/DS/27/AB/R, Adopted on 25 September 1997;
119. WTO Appellate Body Report, United States - Restrictions on Imports of Cotton and Man-Made Fibre Underwear (United States Underwear), WT/DS24/AB/R, Adopted on 25 February 1997);
120. WTO Panel Report, United States - Restrictions on Imports of Cotton and Man-Made Fibre Underwear (United States Underwear), WT/DS24/R, Adopted on 25 February 1997.
121. Panel Report, Argentina - Hides and Leather, ibid.
122. Appellate Body Report, Dominican Republic - Import and Sale of Cigarettes, above n 60.
123. Appellate Body Report, EC - Selected Customs Matters, above n 10.
124. Panel Report, US - Customs Bond Directive, above n 60.
125. Appellate Body Report, US - Underwear, above n 60, at 20 (emphasis added).
126. Appellate Body Report, US - Shrimp, above n 60.
127. Ibid, para 113.
128. Ibid, para 177.
129. Appellate Body Report, US - Shrimp, above n 60, para 182.
130. Ibid, para 183.
131. Articles X:1 and X:3(a) of the GATT 1994,
132. see WTO, above n 1.
133. Appellate Body Report, EC - Bananas III, above n 60;
134. Panel Report, EC - Bananas III, above n 60.
135. Panel Report, EC - Bananas III (Mexico), above n 60, para 7.206;
136. Appellate Body Report, EC - Bananas III, above n 63, para 70. Interestingly, the EC responded that Art. X 'only applies to internal measures and therefore not applicable in this case' at para 33).
137. Panel Report, Japan - Film, above n 60, paras 10.384-10.388.
138. Panel Report, Argentina - Hides and Leather, above n 60.
139. Ibid, para 10.5.
140. Panel Report, US - Hot-Rolled Steel, above n 60.
141. Ibid, para 7.268.
142. Panel Report, Dominican Republic - Import and Sale of Cigarettes, above n 60, paras 7.405-406.
143. Panel Report, Argentina - Hides and Leather, above n 60, para 11.83.
144. Ibid, para 11.86.
145. Panel Report, Dominican Republic - Import and Sale of Cigarettes, above n 60, para 7.383.
146. Panel Report, Argentina - Hides and Leather, above n 60, para 11.71.
147. Ibid, para 11.67.
148. Panel Report, US - DRAMS, above n 60.
149. Panel Report, US - Hot-Rolled Steel, above n 60, para 7.263.
150. Panel Report, Dominican Republic - Import and Sale of Cigarettes, above n 60, para 7.385.
151. Panel Report, US - Oil Country Tubular Goods Sunset Reviews, above n 60, para 202-210.
152. Panel Report, Argentina - Hides and Leather, above n 60, para 11.77.
153. WTO, above n 1, at 16.
154. Ibid, at 73.
155. Panel Report, United States - Underwear, above n 60.
156. Appellate Body Report, United States - Underwear, above n 60 (specifically concluding that Art. X:2 does not address the issue of whether or not a member can give retroactive effect to a safeguard measure).
157. Panel Report, EC - Bananas III (Mexico), above n 60, para 7.159.
158. Appellate Body Report, EC - Bananas III, above n 60, para 204.
159. Ibid.
160. Panel Report, EC - Poultry, above n 60. In EC - Poultry, Brazil had argued that the European Communities' rules relating to imports of frozen poultry were applied in violation of Art. X since Brazilian traders cannot know whether a particular shipment is subject to in or out of quota rules (at para 267). The Appellate Body ruled that 'Article X...does not impose an obligation on Member governments to ensure that exporters are continuously notified by importers are to the treatment of particular impending shipments.'
161. See Appellate Body Report, EC - Poultry, above n 60, para 114.
162. The panel held that 'the examination of Article X as well as the [Licensing Agreement] is warranted since...the [Licensing Agreement] is relevant to only in quota trade and Article X to the total trade'.
163. See Panel Report, EC - Poultry, ibid, para 268.
164. Panel Report, US - Hot-Rolled Steel, above n 60, para 7.267.
165. Panel Report, US - DRAMS, above n 60, para 4.461.
166. Panel Report, US - Stainless Steel, above n 60, para 6.50.
167. Panel Report, EC - Selected Customs Matters, above n 10.
168. The Appellate Body defined the crux of the United States position as: 'the European Communities administers its customs laws through 25 separate independent customs authorities and does not provide any institution or mechanism [at the community level] to reconcile the divergences automatically and as a matter of right when they occur'.
169. See Appellate Body Report, EC - Selected Customs Matters, above n 10, para 22.
170. The United States also claimed that violation of Art. X:3(b) based on the fact that decisions of administrative agencies and customs authorities in one member state does not govern the practice of EC agencies throughout the European Union. Ibid, at para 304.
171. Panel Report, EC-Selected Customs Matters, above n 10, para 7.191.
172. Ibid.
173. Ibid, para 8.1
174. Ibid, para 7.44.
175. Ibid [also holding in addition that there was no violation of Art. X:3(b)].
176. The Appellate Body stated that the panel was wrong in determining that the claim 'as a whole or overall' was outside the scope of the terms of reference of Art. X:3(a) and it could not be ruled on.
177. See generally Appellate Body Report, EC - Selected Customs Matters, above n 10.
178. Ibid, para 200.
179. Ibid, para 201.
180. Ibid, para 304.
181. Ibid.
182. This decision may have also expanded the scope of measures more generally by weakening further the mandatory/discretionary distinction which was first formulated under the GATT 1947 and was adhered to in varying degrees in the WTO. The mandatory/discretionary distinction states that only measures that 'mandate' WTO-inconsistent action should be challenged 'as such', and all discretionary measures that may or may not result in WTO inconsistent administration should be challenged 'as applied'. In EC - Selected Customs Matters, the Appellate Body held that member states can challenge the substance of measures regardless of the mandatory or discretionary substance of the measure. A fuller discussion of this distinction is beyond the scope of this article. For further discussion of mandatory/discretionary distinction,
183. see e.g. WTO Appellate Body Report, United States-Anti-dumping Act of 1916, WT/DS136/R, WT/DS136/AB/R, Adopted on 26 September 2000;
184. WTO Panel Report, United States-Section 301-310 of the Trade Act of 1974, WT/DS152/R, Adopted on 27 January 2000.
185. Most recently, in 2008 India brought an action against the imposition of anti-dumping duties by United States on imports of shrimp from India, claiming a violation of Art. X:3 in addition to the Anti-Dumping Agreement, and Arts XI, XIII, and II of the GATT 1994. The panel, however, on the basis of judicial economy, did not address any of the GATT 1994 claims after having found the measures inconsistent with the Anti-Dumping Agreement. It is noteworthy, that India attempted to make both 'as applied' and 'as such' claims under Art. X:3(a) with the latter being rejected by the panel for being untimely.
186. See Appellate Body Report, US - Customs Bond Directive, above n 60.
187. See Debra P. Steger, 'The Culture of the WTO: Why It Needs to Change', 10 Journal of International Economic Law 483 (2007), at 485-86. As Professor Steger writes: 'The mandate and purpose of the WTO is no longer clear. The mandate of the GATT system was continuing the process of trade liberalization.. .the preamble to the GATT 1947 reflected these goals. The preamble of the WTO Agreement is broader - it includes the goals of environmental sustainability and development...but they have not become part of the accepted theology or culture of the WTO as perceived by its members. So, there is a difference between what the preamble of the WTO says the purpose of the organization is and what its members perceive it to be.'
188. The work of the TPRM and committees in the area of good governance as expressed in Art. X must also be studied to get a fuller picture of the good governance mandate of the WTO. Such work is necessary to assist the DSU in its application of Art. X.
189. Another example of incremental change has been Art. XX of the GATT 1994, where the Appellate Body discussed at great length the need to justify environmental measures under Art. XX and elaborated on how Art. XX should be read and applied years before they actually found a measure justified under Art. XX. In 1999, in the aftermath, of United States - Shrimp, I wrote: 'the Appellate Body's analysis of Article XX generally and subparagraph (g) in particular.. .indicates that although supporters of Article XX interests [environmentalists] may have lost the battle, the prospects look good for winning the war'.
190. See Padideh Ala'i, 'Free Trade or Sustainable Development? An Analysis of the WTO Appellate Body's Shift to a More Balanced Approach to Trade Liberalization', 14 American University International Law Review 1129 (1998), at 1170-71.