WTO Dispute Settlement Mechanism(4)

o review of the evidence, nor to substitute their own conclusions for those of the competent authorities, this does not mean that panels must simply accept the conclusions of the competent authorities. In this respect, the phrase “de novo review” should not be used loosely. If a panel concludes that the competent authorities, in a particular case, have not provided a reasoned or adequate explanation for their determination, that panel has not, thereby, engaged in a de novo review. Nor has that panel substituted its own conclusions for those of the competent authorities. Rather, the panel has, consistent with its obligations under the DSU, simply reached a conclusion that the determination made by the competent authorities is inconsistent with the specific requirements of the covered Agreement. 11
Specifically, as to definition of the duties of panels in reviewing the investigations and determinations carried out by competent authorities, the Appellate Body in US-Combed Cotton Yarn (DS192) summarizes that, “[o]ur Reports in these disputes [Argentina-Footwear; US-Lamb Meat; US-Wheat Gluten] under the Agreement on Sa

feguards spell out key elements of a panel's standard of review under Article 11 of the DSU in assessing whether the competent authorities complied with their obligations in making their determinations. This standard may be summarized as follows: panels must examine whether the competent authority has evaluated all relevant factors; they must assess whether the competent authority has examined all the pertinent facts and assessed whether an adequate explanation has been provided as to how those facts support the determination; and they must also consider whether the competent authority's explanation addresses fully the nature and complexities of the data and responds to other plausible interpretations of the data. However, panels must not conduct a de novo review of the evidence nor substitute their judgement for that of the competent authority.” 19 “Nevertheless, the above principles concerning the standard of review under Article 11 of the DSU with respect to the Agreement on Safeguards apply equally, in our view, to a panel's review of a Member's determination under Article 6 of the ATC”. 12
And the author thinks it appropriate, with special cautiousness and specific examination to the factual or legal issues in particular cases, to extend the above principles to panels’ review under other covered agreements (other than the Anti-dumping Agreement).
In sum, panels should be cautious about the “activist” postures in the GATT/WTO context. Many panels have in the past refused to undertake de novo review, wisely, since under current practice and systems, they are in any case poorly suited to engage in such a review.
After all, the international system and its dispute settlement procedures, in stark contrast to most national systems, depends heavily on voluntary compliance among participating members. Inappropriate panel “activism” could well alienate members, thus threatening the stability of the GATT/WTO dispute settlement procedure itself. Moreover, panels are well advised to be aware also of the potential shortcomings of the international procedures, shortcomings that sometimes relate to a shortage of resources, especially (but not only) resources for fact finding, as well to the problems of the need for a very broad multilateral consensus. Furthermore, panels should also

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