The Power of the Past: Towards De Jure Stare Decisis in WTO Adjudication (Part Three of a Trilogy)
2001; Routledge; Volume: 33; Linguagem: Inglês
ISSN
1534-9977
Autores Tópico(s)International Arbitration and Investment Law
ResumoI. THE PLEA: COME CLEAN ABOUT PRECEDENT, AND THEREBY END THE HYPOCRISY Stare decisis is at least the everyday working rule of our law. Benjamin N. Cardozo, The Nature of the Judicial Process 20 (1921). Our system of precedents, then, is full of imperfections, and no good purpose is served by pretending that they are perfections. Voltaire's Dr. Pangloss is a type as well known in law as in philosophy, and on the whole he done infinitely more harm than good. But when we have candidly acknowledged the defects, we have then to ask whether they are too heavy a price to pay for the merits which our Common Law, built upon precedents, so well established that they have unquestionably commanded the respect of the whole world. I think the answer must be that the gods sell all things at a price, and that the price in this case, though high, is not too high. Legal systems cover the whole range of private and public life, and in so vast an area they cannot be expected to work without inconveniences or even injustices. When all been said in criticism of our case-law, it remains true, as I believe, that the amount of error, injustice, and perverse doctrine which have resulted from adherence to precedent is a small proportion of an enormous legal system; and it is also true that the records of our law form one of the world's great monuments not only of legal science but of human intelligence .... Sir Carleton Kemp Allen, Law in the Making 337-38 (6th ed. 1958) (emphasis added). In thinking about stare decisis and adjudication at the World Trade Organization (WTO), I am reminded of a comment a former British Prime Minister, Lord Melbourne, once made about a failed reform: What all the wise men promised not happened, and all the fools said would happen come to pass.1 The monstrous disconnect between the conventional legal wisdom, what all the wise men said, and has come to pass in reality is the subject of Parts One and Two of the present trilogy, The Myth About Stare Decisis and International Trade Law (Part One of a Trilogy)2 and The Precedent Setters: De Facto Stare Decisis in WTO Adjudication (Part Two of a Trilogy).3 The point made in Part One is that the idea that stare decisis does not operate in international trade law is a myth borne of impure origins and relying on a dubious distinction between binding and non-binding The point made in Part Two is that in a de facto sense, the doctrine of stare decisis resonates strongly throughout WTO Appellate Body reports. I suppose this second point makes me, in Lord Melbourne's words, one of the damn fools! So be it. I shall assume that either my observations are sufficiently compelling, or at least sufficiently intriguing, that I may be permitted to explain why and how the monstrous disconnect ought to be closed. Thus, in this, the final Part of the trilogy, I would like to try to explain why a formal doctrine of stare decisis - that is, a de jure one - ought to be recognized in WTO jurisprudence. I also would like to set forth a work plan for achieving this result. The WTO cases reviewed in Part Two of the trilogy (as well as a good number of them that have taken place since the publication of Part Two) are a testament to the hypocrisy in our discourse on international trade law. There is, on the one hand, a myth about stare decisis and international trade law whose textual basis is found in Article 3 of the Uruguay Round on Rules and Procedures Governing the Settlement of Disputes (the Dispute Settlement Understanding or DSU)4 and Article IX:2 of the Agreement Establishing the World Trade Organization (WTO Agreement),5 and which is rec ognized, albeit in confusing and contradictory way, by secondary sources. There is, on the other hand, extensive use of prior panel and Appellate Body rulings. Very often this use crosses the fuzzy line between guidance and precedent. …
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