TWN Info
Service on WTO and Trade Issues (Jun16/13)
17 June 2016
Third World Network
When should AB "clarify" questions not raised in appeal?
Published in SUNS #8262 dated 15 June 2016
Geneva, 14 Jun (Chakravarthi Raghavan*) - The varying stances of the
US on the role and remit of the WTO Appellate Body (AB), in vetoing
the reappointment for another term of AB member Prof. Seung Wha Chang
of Korea, continues to attract a range of critical remarks from trade
analysts and the US trade law community.
(See also, SUNS #8255, #8258 and #8259.)
A post at the IELP Blog, on June 13, 2016 at 01:27 PM, "Asking
the Appellate Body to Clarify" (http://worldtradelaw.typepad.com/ielpblog/2016/06/asking-the-appellate-body-to-clarify-.html)
by Prof. Simon Lester (who formerly worked at the WTO - both at its
legal division and at the AB secretariat), poses the question as to
"when the AB should weigh in on issues not raised in an Appeal"
before it.
Prof. Lester says, "This is from the China - Publications Appellate
Body report (WT/DS363/AB/R):
237. The United States expresses "some concerns" regarding
the Panel's approach to analyzing the "necessity" of China's
measures. The United States' concerns relate to a "two step"
approach, allegedly taken by the Panel in examining, first, whether
China had made a prima facie case that the measures at issue were
"necessary" within the meaning of Article XX(a), and examining
only subsequently whether reasonably available WTO-consistent alternatives
had been identified. The Panel drew on a statement made by the Appellate
Body in Brazil - Retreaded Tyres. However, the United States submits,
other Appellate Body reports, in particular US - Gambling and Korea
- Various Measures on Beef, described a single process. Moreover,
according to the United States, the text of Article XX(a) sets out
a single criterion, "necessary", which also suggests a "single,
integrated, yet multifaceted inquiry". The United States adds
that the preliminary conclusion of the Panel that the State plan requirement
is "necessary" to protect public morals "in the absence
of reasonably available alternatives" introduces confusion, because
the term "necessary" is used in a different sense in this
intermediate finding, on the one hand, and in its ultimate finding
- that the State plan requirement is not "necessary" in
view of a reasonably available alternative - on the other hand.
238. In response to questioning at the oral hearing in this appeal,
the United States clarified that it is not raising a claim of error
with respect to the way in which the Panel applied the "necessity"
test. Instead, the United States stated that it would welcome clarification
from the Appellate Body that an Article XX analysis should be approached
in an integrated fashion. The United States acknowledged that, in
analyzing the "necessity" of a measure, a panel cannot simultaneously
assess all relevant factors and undertake the necessary "weighing
and balancing" with respect to the contested measure and proposed
alternative measures.
So was the US asking the Appellate Body to weigh in on an issue that
was beyond the scope of the appeal? Isn't what the US asked the Appellate
Body to do in this case similar to what it has objected to in the
context of the reappointment of Seung Wha Chang? Or is this case different
because a Member was asking the Appellate Body for a clarification,
rather than the Appellate Body offering a clarification on its own?
All in all, I'm still not sure what rules could or should be established
to constrain the Appellate Body on these kinds of issues. My instinct
is that some things just need to be left to the discretion of the
courts, but again, if someone has suggestions, I'd be happy to hear
them."
(* Chakravarthi Raghavan is the Editor-Emeritus of the SUNS.)