Author: Joanna Gomula
Keywords: anti-dumping determinations; dispute settlement; functions of judicial organs; hierarchy of judicial organs; precedential effect of judicial decisions; World Trade Organization; WTO Appellate Body
The WTO dispute settlement system is based on a two-tier review, where parties to a dispute have the possibility of appealing issues of law and interpretations developed in a panel report to a standing tribunal, the Appellate Body. The jurisprudence developed in this period is impressive, with 300 panel and Appellate Body reports adopted up to 2016 year-start. For many years, the Appellate Body’s supreme position in the hierarchy of this system was largely unchallenged. This has changed in recent years as a result of a series of anti-dumping disputes, in which a number of panels disagreed with the Appellate Body’s interpretation of the Anti-Dumping Agreement and its findings that all categories of “zeroing” – a practice applied in anti-dumping determinations – were WTO-inconsistent. Since the “zeroing” disputes, many panels have invoked Article 11 of the WTO Dispute Settlement Understanding, asserting their right and duty to make an objective assessment of matters brought before them, independently of the Appellate Body’s prior interpretation of similar issues. Although the Appellate Body seems to have defended, at least for the time being, its supreme position, attempts to undermine its authority are continuing. Such attempts are harmful to the WTO dispute settlement mechanism and adversely affect its efficiency. The recognition of some degree of precedential effect of Appellate Body reports is therefore vital for ensuring the security and predictability of the whole WTO legal system. To ensure the importance of the WTO dispute settlement system and its remaining as an efficient mechanism, the authority of the Appellate Body must be supported and unconditionally respected by all members.
About the author: Joanna Gomula – Candidate of Legal Sciences (Polish Academy of Sciences), Fellow at Lauterpacht Centre for International Law, University of Cambridge, United Kingdom; Member of New York Bar.
Citation: Gomula J. (2016) Pravovye posledstviya resheniy Apellyatsionnogo organa v sisteme razresheniya sporov VTO [The legal effect of Appellate Body Rulings in the WTO dispute settlement system]. Mezhdunarodnoe pravosudie, no.3. pp.78–87. (In Russian).
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