Staring And Evading Of Decisis In WTO Dispute Resolution

It is well known that compared to GATT, one of the most significant progress is that WTO has become a rule-oriented organization. Thereafter, the Dispute Settlement Body ("DSB") shall hear the disputes between different parties in accordance with the rules provided in WTO agreements and the various valid interpretations.From the perspective of jurisprudence, there exist a contradiction between the stability of the law and the development of the society. In order to solve the above-mentioned contradiction, the judges from the civil law system use the interpretative theory, while the judges from the case law system attempt to distinguish the different situations to decide whether to stare decisis or not. It is extremely complex and difficult to formulate rules in WTO. Therefore, when facing the cases without the specific applicable law, the DSB would hear the case by the former reports issued by the former panel(s) or the appellate body(s). To some extent, the above practice by the DSB could be regarded as the combination of the practice of the judges from the civil law and the case law system: on the one hand, to some extent, the former reports could be seen as the interpretation of the rules of WTO; on the other hand, the practice of staring decisis could be regarded as the staring decisis under the case law background to some extent.(Although the staring decisis in WTO belongs to the de facto stare decisis, the staring decisis in case law system belongs to the de jure stare decisis.)Although there exist no specific laws which require the DSB to stare decisis when hearing the cases, the DSB would stare decisis at the de facto extent in most cases. Such acts make the staring decisis popular in the dispute settlement of WTO, which also make the parties recognize the staring decisis inevitable in WTO dispute settlement so that the parties would use the precedent to uphold their viewpoints. Nevertheless, there exist some cases where the DSB evade staring decisis in WTO. Such contradictory practices confuse the parties:on the one hand, the contradiction makes the parties difficult to predict the outcome of the outstanding case on the basis of the reference of the precedent; on the other hand, due to the different conclusions to the same problem, the parties would have different understandings to the same content of WTO. If so, the agreements of WTO could not uniformly guide the practice of the parties and the disputes between the parties would arise, which also would impede the realization of the aim of WTO.Facing this phenomenon, most scholars at home and abroad focus on the transformation from the de facto stare decisis to the de jure stare decisis by the theory of legislation. Nevertheless, the author holds the point that this method is not practical at present: on the one hand, the procedures of modifying the WTO/DSU is extremely complicated; on the other hand, due to the various attitudes to the precedent by the parties and the conflict of the interests, it is not enforceable to provide the de jure stare decisis in the agreements of WTO. Thereafter, building a kind of criteria between the staring and the evading could be an enforceable way.Due to the fact that the theory of staring decisis derives from the case law system, this article firstly introduce the basic theory of staring decisis in case law system; secondly, this article confirms that the practice of staring decisis by the DSB in WTO belongs to the de facto stare decisis and introduce the practice by the DSB; thirdly, this article refers to the theory of evading precedents in case law system and apply the relevant theory to the dispute resolution in WTO (i.e."Japan-Taxes on Alcoholic Beverages" etc.); finally, on the basis of the above and the practice of China, this article concludes some inspirations which may benefit the dispute resolution in WTO by China.