|
Jennifer Hillman is a professor at the Georgetown Law Center and a fellow at Georgetown's Institute of International Economic Law. She was the last of four speakers who participated in the GBD December 20 colloquium on the WTO dispute settlement system. More than that, she herself is an exemplar of some of the issues discussed. She is a former member of the Appellate Body of the WTO, and she was the second U.S. Appellate Body member to have her reappointment blocked by the United States.
Pablo Bentes of Steptoe and Johnson, who spoke before Ms. Hillman, posed the question, "How did we get here?," and she picked up on it. Here is more of what she said:
My own view on that is we got here because, in the end of the day, ... the system has not worked out how the United States anticipated that it would. ... It's worth thinking a little about. What were the expectations of the United States when the system went into place?
I think, first of all, the expectation of the United States is that the vast majority of the time the United States would be on offense and only relatively rarely, if ever, on defense. Because again, as [was] said, the presumption was, when we joined and we passed the Uruguay Round Agreements [Act], ... that all of our laws were already consistent with the WTO. So there would be very little reason or opportunity for anyone to challenge the United States because we were already fully consistent.
And obviously, that's not what's turned out. We've ended up on the defense far more than we have ended up on the offense-not far more but certainly more often we've ended up on the defensive side.
And that, Ms. Hillman explained, was not the only miscalculation. Neither the United States nor anyone else expected there to be such a large number of appeals to the Appellate Body. "The presumption," she said, "was that appeals were going to be rare and limited to one or two small legal questions." That is not the way things have turned out. Again, Ms Hillman:
"We have almost 70 percent of cases-and lately 80 and 90 percent of cases-going up on appeal. And every appeal having five, six, seven, eight, ten, twelve claims on appeal."
And then, she said, there was the expectation that the Appellate Body would only review questions of law, with the facts having been tried and determined by the panels, which are the first to hear disputes after the conclusion of bilateral negotiations. Yet as things have turned out, the Appellate Body is now called upon to review the facts of particular disputes as well as issues of law.
Like the others, Ms. Hillman's presentation was rich in facts, insights, and perspectives, and we would encourage you to take in the whole thing, either by reading the transcript or listening to the recording. Here are a few highlights from some of the issues she touched upon.
The Fundamental Nature of the WTO. Ambassador Lighthizer has said clearly that he sees the WTO agreements as a contract and the dispute settlement system as a tool of interpreting that contract. Others see it is as something more, namely an institution that, among things, is engaged in the process of developing a jurisprudence for the conduct of trade. Our impression is that Ms Hillman is in the latter camp. As she explained,
"You cannot have a contract that is going to go into every one of these details that can be contained in any single volume."
No Agreed History. In other institutions, Ms. Hillman said, one can look to the history of a law or rule for guidance respecting its interpretation, that is to the legislative history. "For the WTO, you do not have that," she said. She illustrated the point with perhaps the most famous example:
"We [the United States] are positive that the negotiators never meant to outlaw zeroing, and the party on the other side saying they're equally positive that the negotiators did mean to outlaw zeroing."
Ex-AB Members and Unfinished Cases. Ms. Hillman was especially eloquent in discussing the current flap over allowing Members of the Appellate Body who have resigned or whose terms have expired to complete cases they are already working on. As she explained:
[In 1996,] working rules were written that say a person who ceases to be a member of the Appellate Body may, with the authorization of the Appellate Body and upon notification to the DSB, complete the disposition of any appeal to which that person was assigned while a member. And that person shall, for that purpose only, be deemed to be a member of the Appellate Body. So, it's basically saying, if you started working on an appeal, and your term expired, you can finish it. This should not be earth shattering.
In 1996, the United States went along with that rule. Today it is objecting to it.
Will the Appellate Body Shut Down? Things certainly seem to be moving in that direction. There are now four members, and their number is dwindling. Ms. Hillman drew the picture:
By September of next year we'll be down to three members. You know, six months after, that you're down to under three, which means the Appellate Body literally cannot function, cannot issue any appeals. And you've effectively shut down the ability for anyone to have an appeal.
That is not to say that there may not be ways around this winding down of the WTO Appellate Body. Ms. Hillman suggested three, from relatively quick, pro-forma decisions, to arbitration, to voting on members.
|
