A Research On Stare Decisis In WTO Dispute Settlement Mechanism

It is the mechanism of WTO dispute settlement body that specifies the remarkable achievement during the transition from GATT to WTO. Dispute Settlement Understanding has established a mandatory dispute resolution system with fewer opportunities for delay than that had existed under the General Agreement on Tariffs and Trade. It also eliminated the ability of the losing party to veto the adoption of panel reports. The most different specify of WTO dispute settlement mechanism relies in"anqo-law procedure". It is its own unique features that the mechanism of WTO dispute settlement body has played a central role in the international trade dispute settlement system and becomes more and more important.As of 17 September 2004, there had been a total of 314 complaints brought by members of WTO. This is a rate many times the average during the history of the GATT for dispute settlement complaints. It is clear that the Members find it useful to utilize the new system as a tool for trade dispute settlement. Thus far, overall there have been 81 cases in which there have been adopted reports. Of these 56 have been appealed, leading to both an adopted Appellate Body report and the non–appealed or appellate-upheld portions of the first level panel. This leaves 25 final un-appealed first level panel reports adopted, which is 31% of the total. Although at the beginning, virtually every case was appealed, more cases are now being completed without appeal.GATT-WTO adjudication subtly conveys that the prior decisions provide reasonably legitimate expectations for the dispute settlement and it is indisputable that de facto stare decisis does apply in WTO adjudication, however, the absence of de jure stare decisis from GATT-WTO adjudication implies that we ought to depart from the prevailing language of the prior decisions. Consequently, WTO jurisprudence can not form easily.This article, with the title A Research on Stare Decisis in WTO Dispute Settlement Mechanism, consists five chapters.Chapter one introduces its own unique features of WTO dispute settlement mechanism. It is the core mechanism that WTO dispute settlement mechanism in WTO, it is also an overall new dispute settlement mechanism with its own unique"anqo-law procedure"compared other international dispute settlement mechanisms. The doctrine of stare decisis may be formulated by the unique feature. Furthermore, such possibility becomes to a kind of inevitability with the establishments of compulsory jurisdiction and implementation of reports.Chapter two reviews the stare decisis in the prior decisions perspective in legal and fact respectively. Legally speaking,Appellate Body is of the view that the prior decisions have no official or formal binding effect on subsequent cases involving the same or similar legal or factual issues in GATT-WTO adjudication. Here are their reasons: firstly, the doctrine of stare decisis is not accepted as an element in ICJ jurisprudence itself; secondly, the WTO Agreement explicitly provides that only the Ministerial Conference or General Council can adopt interpretations of the General Agreement; thirdly, the prior decisions could not be taken as the subsequent practice of article 31 of Vienna Convention on Law of Treaties. Whereas in fact,prior decisions, which give important hint to the following dispute settlements, has been usually quoted by the subsequent panels, Appellate Body and parties.Chapter three discredits the arguments that Appellate Body mentioned to exclude stare decisis. Firstly,Appellate Body should not pursuant to ICJ jurisprudence. The jurisdictional systems in the WTO and ICJ are now very different; ICJ could never overrule nations according to sovereignty equal principle. Hence, ICJ jurisdiction pursuant to a declaration by each party accepts the Court's jurisdiction, while unlike the ICJ system, WTO Members do not, under international law, have the option of opting out of the DSU and yet expect to remain Members of the WTO, and we could take this jurisdiction as compulsory jurisdiction which, more important, is the base of stare decisis;secondly,it is not practically to apply WTO Agreement Article IX.2. Technically speaking, it is possible that the decision to adopt an interpretation of WTO agreement shall be taken by a three-fourths majority of the Members; however, this rule has never been applied in the history from GATT to WTO. It is not exaggerated that the applied law is real law, but it would be farfetched that Appellate Body pursuant to an unapplied rule; thirdly, Appellate Body misunderstands the subsequent practice. For one thing, DSB reports are accepted by WTO members, for another it is through consensus procedure. It is also subsequent practice perspective in implied authority interpretation.Chapter four expatiates the quality of DSB reports perspective in case law. The legal nature of DSB reports is discussed at first, the nature of DSB reports is to recognize the real meaning of WTO agreement according to the declaratory theory of nature law, and the interpretation is for application but not amendment or modification. Again recommendations and rulings of DSB reports cannot also add to or diminish the rights and obligations provided in the covered agreement. Later, the reason of stare decisis in DSB reports is argued. Coherence, consistency and predictability, which are the basic value for any legal regime, are the binding reasons for the precedents. They are also necessary to give judicatory decision the legitimacy involving the same or similar legal or factual issues.Chapter five provides an imagination of de jure stare decisis. Not only does WTO dispute settlement mechanism want to solve the disputes between members, but also it want to make the domestic law of members incorporate with WTO agreement through decisions, then the number of disputes will shrink. And here are the merits: firstly, keeping the stability of WTO agreement, secondly, towarding a rule oriented of dispute settlement, thirdly, enhancing the judicatory economy, fourthly, the decisions will be implemented better, fifthly, influencing the development of WTO agreement and national law.