WTO Dispute Settlement Mechanism(1)

eement 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

《WTO Dispute Settlement Mechanism(1)(第6页)》