WTO Dispute Settlement Mechanism(1)
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 t
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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he 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.
《WTO Dispute Settlement Mechanism(1)(第7页)》
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