[ 刘成伟 ]——(2003-7-7) / 已阅39369次

(v) A Summary
Section Two Ad hoc Standard of Review for Anti-dumping Disputes
I Introduction
II Special Standard of Review under the AD Agreement: in General
(i) Ad hoc Approaches to Domestic Determination: Art. 17.6
(ii) Relationship between Art. 11 of the DSU and Art. 17.6 of the AD Agreement
(iii) A Summary Guiding
III Scope of Review of Fact-findings: Art. 17.5(ii) of the AD Agreement
(i)Overview of the GATT Practice
(ii)Concerned Rulings in Reports Issued by WTO Panels
(iii)Tentative Remarks: Guidance from the Appellate Body
Chapter VIII Strengthening of the Multilateral System




Chapter I
Trend towards “Judicialization”:
A Rule-oriented Dispute Settlement System


Over decades of years past, many countries have come to recognize the crucial role that dispute settlement mechanism plays for any treaty system. This is particularly the case for a treaty system designed to address the myriad of complex economic questions of international relations today and to facilitate the cooperation among nations that is essential to the peaceful and welfare-enhancing role of those relations. Dispute settlement procedure assists in making rules effective, thereby adding an essential measure of predictability and effectiveness for the operation of a rule-oriented system in the otherwise relatively weak realm of international norms.
The Uruguay Round result, including the Agreement establishing the World Trade Organization (‘the WTO Agreement’), is one important effort to face up to some of the problems associated with interdependent international economic activity. Central and vital to the WTO institutional structure is the dispute settlement procedure derived from decades of experiment and practice in the GATT, but now elaborately set forth, as part of the WTO Agreement, in the new treaty text of the Dispute Settlement Understanding (‘the DSU’).
The entry into force of the WTO Agreement on 1 January 1995, including the new DSU, creates an improved system of rules and procedures for settling international trade disputes. According to Art. II:2 of the WTO Agreement, the DSU in Annex 2 to it is an “integral part of this Agreement, binding on all Members”. Art. 23 of the DSU under the heading “Strengthening of the Multilateral System” emphasizes the legal primacy and exclusive character of the WTO dispute settlement system vis-à-vis alternative dispute settlement systems outside the WTO. Art. 23.1 requires, in part: “When Members seek the redress of a violation of obligations or other nullification or impairment of benefits under the covered agreements or an impediment to the attainment of any objective of the covered agreements, they shall have recourse to, and abide by, the rules and procedures of this Understanding.”
The new WTO dispute settlement system is an integrated system with much broader jurisdiction and less scope for “rule shopping” or so-called forum shopping. While the traditional panel system of settling disputes within the GATT remains the central feature of this system, the new mechanism indicates a distinctive trend towards “judicialization” within a change from power-oriented diplomatic methods of dispute settlement to rule-oriented legal ones. Henceforth, the emphasis of the DSU is upon “rule-orientated” rather than “power-orientated” interpretation and application of the WTO dispute settlement procedures, with the move towards a more judicial form of process that allows for review of decisions through an Appellate Body and the enforcement of panel and Appellate Body decisions. The DSU is in turn a key element of the legalization of the world trade system agreed in the Uruguay Round through the establishment of the WTO and the reinforcement of substantial rules of conduct.
Besides “judicializing” or codifying former GATT practice, the DSU has an institutional dimension. The Agreement establishes a Dispute Settlement Body (‘DSB’) to administer the rules and procedures for panel proceedings, for appeal against panel decisions to the standing Appellate Body and for adopting panel and Appellate Body reports. Art. 2 of the DSU provides that the DSB has the “authority to establish panels, adopt panel and Appellate Body Reports, maintain surveillance and implementation of rulings and recommendations, and authorize suspension of concessions and other obligations under the covered agreements”. More importantly, the DSU provides an integrated dispute settlement mechanism applicable to disputes arising under any of the “covered agreements” (including the WTO Agreement, the Agreements in Annexes 1 and 2, as well as any Plurilateral Trade Agreement in Annex 4 where its Committee of signatories has taken a decision to apply the DSU).
Furthermore, the rule-oriented function and legal primacy of the WTO dispute settlement system are emphasized in Art. 3 of the DSU:

“2.The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.
…
5.All solutions to matters formally raised under the consultation and dispute settlement provisions of the covered agreements, including arbitration awards, shall be consistent with those agreements and shall not nullify or impair benefits accruing to any Member under those agreements, nor impede the attainment of any objective of those agreements.
6.Mutually agreed solutions to matters formally raised under the consultation and dispute settlement provisions of the covered agreements shall be notified to the DSB and the relevant Councils and Committees, where any Member may raise any point relating thereto.
…”
Hence, even dispute settlements through bilateral arbitration and mutually agreed arrangements must be transparent and consistent with WTO law. The DSU provisions on mutually agreed arbitration “as an alternative means of dispute settlement” (Art. 25), and on compulsory arbitration on the “reasonable period of time” for the implementation of dispute settlement rulings (Art. 21.3) and on disputes over the suspension of concessions (Arts. 22.6-7), reflect a further shift towards judicial methods of dispute settlement in the WTO.
Significantly, the quasi-automatic adoption of dispute settlement reports is a new crucial feature of the WTO dispute settlement mechanism, another contribution to the “judicialization” of this mechanism. Under the WTO jurisprudence, reports issued by various panels and the Appellate Body shall be adopted by the DSB and “unconditionally accepted” by the parties to a dispute unless “the DSB decides by consensus not to adopt the report” (Art. 16.4; Art. 17.14). Both panel reports and Appellate Body reports are thus deemed to be adopted unless there is a “negative consensus” not to adopt these reports or the panel report is appealed.
Contributing to a further “judicialization” of WTO dispute settlement procedures, a most significant improvement upon the GATT dispute settlement mechanism, the appellate review introduced in the DSU is a new feature in the settlement of international trade disputes. Appellate review is an integral part of the new comprehensive dispute settlements annexed to the WTO Agreement as an outcome of the Uruguay Round. The right of a party to a dispute to appeal is clearly spelled out and can be resorted to before the submission of the panel’s report to a DSB meeting. Art. 16.4 of the DSU grants “right to appeal” without subjecting, as do in some domestic jurisdictions and international court procedures, this right to any filtering device.
Appellate review under the WTO jurisprudence is conducted by a standing Appellate Body, established as a balancing of factor in respect of the quasi-automatic adoption of panel reports. As noted above, the new WTO dispute settlement system provides for quasi-automatic adoption of panel reports by the DSB, without previously existing possibility of blocking consensus under the GATT. The procedures for the enforcement of adopted panel reports have also been strengthened. This legalization was acceptable because the provisions on “interim review” by the panel (Art. 15), and on appellate review by a standing Appellate Body composed of seven independent experts appointed for a four-year term (Art. 17), offer additional safeguards against wrong panel reports. The strictly legal function and expertise of the Appellate Body were perceived as a rule-oriented substitute for the political consensus practice regarding panel reports in the GATT Council, which had been increasingly abused during the last years of the Uruguay Round negotiations. The appellate review is expected to estop losing parties from claiming, as grounds of non-compliance, that the dispute settlement ruling was unfair, erroneous or incomplete because certain arguments had not been addressed.
However, the primary purpose for introducing appeal has been that of avoiding mistakes in the legal finding by panels, although the improvement in the panels’ composition and independence and the possibility of seeking experts’ advice by them on technical issues should reduce this risk. Appeals from panel cases, heard by the standing Appellate Body, are “limited to issues of law covered in the panel report and legal interpretation developed by the panel” (Art. 17.6). And the Appellate Body “may uphold, modify or reverse the legal findings and conclusions of the panel” (Art. 17.13). The Appellate Body consequently passes upon the legal merits of the case with full jurisdiction and may either confirm or replace in whole or in part the panel’s report with its decision. It may also confine itself to correcting the legal interpretation of the panel modifying its legal findings but leaving its overall conclusions and recommendations unaffected. Therefore, a preliminary question as to the scope of appellate review is central to the Appellate Body’s disposition of the specific issues raised in the appeal. In addressing this issue, we think it helpful to recall the Appellate Body’s ruling in EC – Hormones (DS26/DS48) that: 1
“Under Art. 17.6 of the DSU, appellate review is limited to appeals on questions of law covered in a panel report and legal interpretations developed by the panel. Findings of fact, as distinguished from legal interpretations or legal conclusions, by a panel are, in principle, not subject to review by the Appellate Body. The determination of whether or not a certain event did occur in time and space is typically a question of fact; for example, the question of whether or not Codex has adopted an international standard, guideline or recommendation on MGA is a factual question. Determination of the credibility and weight properly to be ascribed to (that is, the appreciation of) a given piece of evidence is part and parcel of the fact-finding process and is, in principle, left to the discretion of a panel as the trier of facts. The consistency or inconsistency of a given fact or set of facts with the requirements of a given treaty provision is, however, a legal characterization issue. It is a legal question. Whether or not a panel has made an objective assessment of the facts before it, as required by Art. 11 of the DSU, is also a legal question which, if properly raised on appeal, would fall within the scope of appellate review.”
The Appellate Body performs also a general function of guaranteeing the proper application and interpretation of the law in case of dispute within the organization in the interest of all its members. It is especially for the Appellate Body to carry out the general functions of the dispute settlement system as laid down in Art. 3.2 of the DSU, that is “to preserve the rights and obligations of members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law”. As commented somewhere, “[t]he standing Appellate Body of the WTO is to be considered in all respects as an international tribunal, set up within the organization for the impartial and final settlement of disputes between members concerning their respective obligations under the various agreements, in accordance with relevant provisions and within the framework of public international law. This conclusion is not contradicted by the fact that the name ‘tribunal’ has not been used, since formally, the Appellate Body, as is the case for the panels, issues reports which have to be formally, but automatically, adopted by the competent organ of the organization.” 2
To sum up, the court-like panel and appellate review procedures under the WTO, and the quasi-automatic adoption of WTO dispute settlement reports, eliminate possible risks of political blockages and contribute to a further “judicialization” of WTO law. The legalization of the WTO panel procedures and the quasi-judicial appellate review procedures is also likely to enhance the quality of the legal reasoning in WTO dispute settlement reports. And what we will get down to in the following chapters is to scrutinize, to what extent and how various panels and the Appellate Body operate this significant mechanism in particular cases.





【NOTE】:
1. See, in detail, WT/DS26/AB/R, DS48/AB/R/132.
2. See, Giorgio Sacerdoti, ‘Appeal and Judicial Review in International Arbitration and Adjudication: The Case of the WTO Appellate Review’, International Trade Law and the GATT/WTO Dispute Settlement System (Petersmann Ed.),: Kluwer Law International, London, 1997, p. 273.

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