This draft chapter examines the use of dissenting opinions in WTO and GATT dispute settlement. Although WTO dispute settlement panelists and individual Appellate Body members sitting on a division hearing an appeal have the power to issue dissents, dissents have been discouraged both in the structure of the applicable rules and in practice. Nonetheless, panelists and Appellate Body members have issued dissents from time to time, with certain types of cases garnering more disagreement than others. This chapter first identifies the relevant rules applicable to separate opinion-writing at the GATT panel and WTO panel and Appellate Body levels and discusses whether those rules or other indicia suggest an anti-dissent or a more neutral message. Part II of the chapter notes some methodological difficulties in precisely quantifying the incidence of dissents in the WTO era. It goes on to identify and describe the dissents issued by WTO panels and divisions of the Appellate Body, as well as to discuss other decisions that, while not traditional dissents, provide a broader perspective on dissenting and writing separately in the WTO context. Part III offers some brief observations about the nature and incidence of dissents in GATT and WTO jurisprudence, and Part IV concludes.
Tuesday, April 10, 2018
Meredith Kolsky Lewis (Univ. at Buffalo - Law) has posted Dissents (in Research Handbook on WTO Dispute Settlement, Simon Lester & Bryan Mercurio eds., forthcoming). Here's the abstract: