Analysis Of The "individual Opinions" In The WTO Dispute Settlement Reports And Its Functions

The fact of judges publishing separate opinions is frequently found in the judicial proceedings in common law countries,and the same situation occurs in the arbitral proceeding as well as some international judicial organization,such as the International Court of Justice and the International Tribunal for the Law of the Sea.Such phenomenon has attracted the attention among law professionals to some extent.However,the phenomenon of panelist publishing his/her ?individual opinions? in the WTO Dispute Settlement reports is barely paid attention to or discussed in depth by the scholars or law professionals.As a matter of fact,12 panel reports and 4 appellate body reports carrying ?individual opinions? with various length has been issued among the entire 154 panel reports and 98 appellate body reports that have been issued till the end of March 2015,which,to some extent,reflect the value and meaning of ?individual opinions?.It is truly a big regret that the scholars fail to emphasize and study such a valuable topic.Given the fact that PRC is one of the major disputants in the WTO dispute settlement mechanism ever since its entry into the WTO1,the author,in this paper,uses the panel reports and Appellate Body reports with ?individual opinions? as a starting point,concentrates on the analysis of the function of such ?individual opinions? and predicts the future trend of DSU rules relating to ?individual opinions?.The author finally puts forward the suggestion on how to utilize ?individual opinions? by PRC in its future involvement in the WTO disputes.The first chapter concentrates on the separate opinions appeared in judicial judgments and arbitration awards.The author makes a definition as to the ?individual opinions? in WTO dispute settlement reports issue by panelists or Appellate Body members as a starting point;and,by analyzing the legal basis and nature of such ?individual opinions?,a general picture of the ?individual opinions? issued by WTO panelists and Appellate Body members is thus illustrated,providing necessary legal setting and arguing grounds for the following arguments.After comparing with the definitions in the dictionary and the separate opinions in the judicial judgments in the common law countries and in the arbitration,the author comes to the conclusion that ?individual opinions? in the WTO dispute settlement reports can be defined as dissenting opinions issued by WTO panelist or Appellate Body members against majority opinions;or different grounds or rationales for the same judgments as the majority opinions.The second chapter focuses on six typical WTO dispute settlement reports containing ?individual opinions?,which are European Communities-Measures Affecting the Importation of Certain Poultry Products(DS69,first report carrying ?individual opinions?),United States-Countervailing Duties on certain Corrosion-resistant Carbon Steel Flat Products from Germany(DS213,first report specifically pointing out the dissenting opinion of the panelist in separate chapter),United States-Laws,Regulations and Methodology for Calculating Dumping Margins(DS294,one panel report carrying both ?additional observation? and ?dissenting opinion?),United States-Continued Existence and Application of Zeroing Methodology(DS350,?individual opinions? appearing both in the panel report and Appellate Body report),China-Measures related to the Exportation of Rare Earths,Tungsten,and Molybdenum(DS431/432/433)and United States-Countervailing and Anti-dumping Measures on certain Products from China(DS449)(two latest panel reports with ?individual opinions? in the year of 2014,one of the disputant of which is China).The third chapter is based on the second chapter as above mentioned,along with two Schedules prepared by the author on the WTO panel reports and Appellate Body reports with ?individual opinions? issued by panelist or Appellate Body members.The author then summarizes the details and influence of such ?individual opinions? and sorts out its functions in the perspective of the disputes,the future panel and Appellate Body,the WTO members and disputants based on the explanation of the application of WTO disputes in the dispute settlement mechanism.And the author finally makes preliminary proposal on the utilization of ?individual opinions? by WTO disputants.Eventually,the author makes a holistic analysis into the ?individual opinions? issued in WTO disputes reports in the perspective of the disputes,the future panel and Appellate Body,the WTO members and disputants,and comes to the conclusion that such ?individual opinions? have a referential and indicative function on the WTO disputes,the appeal and future panel or Appellate Body.?Individual opinions? issued in the Appellate Body reports and granted by the Appellate Body may have a further ?precedent? function.Besides,?individual opinions? have an indicative function on WTO members� reviewing the reports or amending the WTO agreements and a strong guidance function on the disputants.The fourth and last chapter compares the ?individual opinions? under WTO with the dissenting opinions under the common law and continental legal system and other international judicial organization.Based on the comparison,the author summarizes the drawbacks of relevant rules with regard to the ?individual opinions? under DSU rules and forecasts the trend of WTO�s ?individual opinions?,proposing on PRC�s future handling of WTO disputes.As China has frequently been involved in WTO disputes,the author believes that if PRC can rightfully and ingeniously utilize the logic and legal grounds behind the ?individual opinions?,the ?individual opinions? are sure to become a powerful weapon for PRC in dealing with WTO dispute settlement cases and further assists PRC in safeguarding its national interests.Finally,the author recaps and restates the functions of ?individual opinions? in the WTO dispute settlement reports,the prediction of the future DSU rules as well as the enlightenment on China with regard to handling dispute settlement cases.In this paper,the author,based on the perspective of case-analysis,summarizes and studies into the influence and functions of ?individual opinions? under the WTO dispute settlement reports by using methodology of induction starting with several typical panel reports and Appellate Body reports with ?individual opinions?.Furthermore,the author puts forward suggestions on how to reasonably and ingeniously exploit the panelists� and Appellate Body members� ?individual opinions? by China in the future.The author believes it has a realistic meaning and value for our country.