Panel I B: Stage II--operation of panels: Presentation summary and comments

John Greenwald: Greenwald noted his concern that panel reports show a lack of deference to government decision-makers and interfere with the domestic policy of WTO Members. He cited as an example the Shrimp-Turtle decision, which he said insisted on a less trade-distorting policy even though the policy fell under an Article XX exception. Greenwald suggested that the mindset among panelists is that of any quasi-governmental organization with a mission statement-protecting free trade. He also noted that complainants win eighty percent of dispute settlement cases, and suggested that this pattern is similar to institutional behavior in other cases in which a mission statement is followed. As an example, Greenwald cited the Department of Commerce administrative reviews of anti-dumping cases. He concluded by discussing the relatively low number of settlements in dispute cases, and suggested that a government as the party of interest lacks the same stakes in a win or loss as a private party. He added that until private voices dominate the panel process, there is little likelihood of an increase in settlements.

QUESTION AND ANSWER SUMMARY: A question was asked concerning whether the current time limits in the dispute process favor the petitioner by allowing the petitioner a great deal of time to prepare, while the respondent faces a tight timeframe in which to respond. John Kingery noted that during preparations for the Seattle ministerial, there had been plans to rebalance the timeframe.

The panel was also asked to address whether the tendency of dispute panels to infringe upon domestic policies could cause problems in the U.S. domestic context, for instance with environmental protections that are viewed as disguised protectionism. Greenwald responded that he agreed with the question's implication and believed that this could be an issue in many cases, citing the U.S. FSC case as one among many examples. Greenwald noted the importance of ensuring that panels are more circumspect, and stated that, although it appeared as if many panel decisions could have gone either way, panels often sided with complainants. He suggested that this is a bureaucratic problem that might be addressed by having senior, non-trade judges at the appellate level.

The panel was then asked whether it would be helpful to have non-trade attorneys sit on dispute panels on cases where their presence would be useful, for instance when dealing with certain kinds of labor issues that involve ILO standards. Kingery responded that if there is a substantive trade problem at stake, it cannot be solved by non-trade attorneys. He added that the inability of Members to agree on certain issues cannot be masked, and that there should not be an attempt to do something other than interpret WTO rules. Kingery also noted that it would be very difficult for people not yet exposed to the system to understand how it works. He stated that trade law, although tied to international law, has a history of its own. John Jackson1 commented that the Appellate Body is actually diverse in some ways; this can be seen in the way in which the Appellate Body has treated panel reports that have intruded upon domestic polices. Kingery suggested that perhaps there should be a difference between the qualifications of panelists at the panel and appellate levels.

1. John Jackson was the moderator for Panel IA: Stage I-Operation of Consultations, Deterrence, and Mediation.

TERENCE P. STEWART,* JOHN GREENWALD, JIM HECHT,** AND JOHN KINGERY***

* In lieu of Mr. Stewart's comments, please see his paper, Review of the Dispute Settlement Understanding: Operation of Panels, published in this issue.

** In lieu of Mr. Hecht's comments, please see his paper, Operation of WTO Dispute Settlement Panels: Assessing Proposals for Reform, published in this issue.

*** In lieu of Mr. Kingery's comments, please see his paper, Commentary: Operation of Dispute Settlement Panels, published in this issue.

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