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Krüger, Tilman
2013.
The European Union's Shaping of the International Legal Order.
p.
169.
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PUBLIC HEARINGS AT THE WTO APPELLATE BODY: THE NEXT STEP
Published online by Cambridge University Press: 11 November 2010
Extract
The WTO Appellate Body has so far authorized public appeal hearings as the exception, not the rule: it is limited to those instances in which the main parties request it. Such authorization constitutes a very positive development for the WTO dispute settlement system, for it enhances the transparency of the system at its highest stage. Indeed, the Appellate Body is becoming a leading actor in the formation of international law1 owing to the fact that it is the most active international court of the world, the relevance of the issues it deals with and the fact that it is at the apex of a dispute settlement system with permanent and exclusive jurisdiction over 153 States. Nonetheless, it is not in tune with inter-state international adjudication where the trend concerning hearings is, for good reason, geared towards openness and transparency, not privacy, as the rule.
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References
1 See, for instance, McRae, D, ‘The WTO in International Law: Tradition Continued or New Frontier?’ (2000) 3 Journal of International Economic Law 27CrossRefGoogle Scholar, and D Steger, Peace Through Trade: Building the World Trade Organization (Cameron May, London, 2004) 153–169.
2 See Statute of the International Court of Justice <http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0> accessed 8 September 2010.
3 See Rules of the International Court of Justice <http://www.icj-cij.org/documents/index.php?p1=4&p2=3&p3=0> accessed 8 September 2010.
4 See art 26.2 of the Statute of the Tribunal for the Law of the Sea and art 74 of the Rules of the Tribunal.<http://www.itlos.org/start2_en.html> accessed 8 September 2010.
5 See Rules of the European Court of Human Rights. <http://www.echr.coe.int/NR/rdonlyres/D1EB31A8-4194-436E-987E-65AC8864BE4F/0/RulesOfCourt.pdf> accessed 8 September 2010.
6 See art 31 of the Statute of the Court. <http://curia.europa.eu/jcms/upload/docs/application/pdf/2008-09/statut_2008-09-25_17-29-58_783.pdf> accessed 8 September 2010.
7 See art 24.1 of the Statute of the Inter-American Court of Human Rights. <http://www.corteidh.or.cr/estatuto.cfm> accessed 8 September 2010.
8 See Rules of Procedure and Evidence of the International Criminal Court for the Former Yugoslavia. <http://www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/IT032_Rev43_en.pdf> accessed 8 September 2010.
9 See also art 72.5(d) of the Rome Statute. <http://www.icc-cpi.int/Menus/ICC/Legal+Texts+and+Tools/Official+Journal/Rome+Statute.htm> accessed 8 September 2010.
10 See ICSID Arbitration Rules: <http://www.worldbank.org/icsid/basicdoc/CRR_English-final.pdf> accessed 11 November 2009. Transparency has also been increased in NAFTA Chapter 11 arbitration, although it does not include public hearings yet. See in this regard, Van Duzer, A, ‘Enhancing the Procedural Legitimacy of Investor-state Arbitration Through Transparency and Amicus Curiae Participation’ (2007) 52 McGill Law Journal 68.Google Scholar
Nonetheless, confidentiality is still the rule in arbitration conducted under UNCITRAL Rules, unless parties provide otherwise. See art 25(4) of the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules, approved by the General Assembly on 15 December 1976, UN GAOR, (31st Session) Suppl. No. 17, Ch V, Sec C, UN Doc A/31/17, 1976; 15 ILM 701 (1976).
11 See JH Jackson, The Jurisprudence of GATT and the WTO: Insights on Treaty Law and Economic Relations (CUP, Cambridge, 2000) 172.
12 See ibid 172. The working parties usually comprised delegates of the conflicting parties, of other interested parties, and neutral individuals, and were not supposed to render any decision. See R Hudec, The GATT Legal System and World Trade Diplomacy (Butterworth Legal Publishers, New Hamphisre, 1990) 78–79.
13 RE Hudec, ‘The Role of the GATT Secretariat in the Evolution of the WTO Dispute Settlement Procedure’ in J Bahgwati and M Hirsch (eds), The Uruguay Round and Beyond: Essays in Honour of Arthur Dunkel (Springer-Verlag, New York, 1998) 101, 105–106.
14 See Jackson (n 11) 172.
15 Weiler, JHH, ‘The Rule of Lawyers and the Ethos of Diplomats. Reflections on the Internal and External Legitimacy of WTO Dispute Settlement’ (2001) 35 Journal World Trade 191,195CrossRefGoogle Scholar.
16 ibid 196.
17 This is not to say that diplomacy has been excluded entirely from the WTO dispute settlement system. In effect, diplomacy plays a key role in two phases of dispute settlement proceedings: consultations between future disputant Members (art 4 of the DSU), a mandatory pre-condition to request the establishment of panels, and implementation of adopted panel or Appellate Body reports (art 21 of the DSU). See World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations (CUP, Cambridge, 1999) 357 and 368. [WTO Legal Texts].
18 For instance, the Appellate Body has repeatedly stated that WTO panels have jurisdiction only regarding claims raised by parties, as is the case with international commercial arbitration tribunals, and that panels cannot rule on other claims they may identify during the proceedings. See, for instance, WTO Chile: Price Band System and Safeguard Measures Relating to Certain Agricultural Products—Report of the Appellate Body (adopted 23 October 2002), WTO Doc WT/DS207/AB/R, [150]. See also in this regard, Alvarez-Jiménez, A, ‘The Enhancing of the WTO Judiciary's Control over Disputes and Suggestions for the Exceptional Expansion of Such Control to Favour Developing and Least Developed Countries’ (2007) 6 Law & Practice of International Courts and Tribunals 269CrossRefGoogle Scholar.
19 See WTO United States: Import Prohibition of Certain Shrimp and Shrimp Products—Report of the Appellate Body (12 October 1998) WTO Doc WT/DS58/AB/R [108] and United States: Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom—Report of the Appellate Body (20 May 2000) WTO Doc WTO/DS138/AB/R [39].
20 Non-State participation through amicus curiae briefs still has a long way to go to become effective, but it is possible as a matter of law, something unthinkable at the time of the creation of the WTO.
21 J Bacchus, ‘WTO Appellate Body Roundtable’ in L R Helfer and R Lindsay (eds), New World Order or A New World Disorder? Testing the Limits of International Law: Proceedings of the Ninety-Ninth Annual Meeting of the American Society of International Law (American Society of International Law, Washington, 2005) 182, 183.
22 M Matsushita, ‘Some Thoughts on the Appellate Body’ in PFJ Macrory, AE Appleton, and MG Plummer (eds), The World Trade Organization: Legal, Economic and Political Analysis Vol 1 (Springer, New York, 2005) 1389, 1398.
23 See Report by the Consultative Board to the Director-General Supachai Panitchpakdi, The Future of the WTO: Addressing institutional challenges in the new millennium (WTO, Geneva, 2004) [261–262]. [Sutherland Report]. <http://www.wto.org/english/thewto_e/10anniv_e/future_wto_e.pdf> accessed 8 September 2010. The Warwick Commission also supported openness at both panel and appeal proceedings. See Warwick Commission, The Multilateral Trade Regime: Which Way Forward? The Report of the First Warwick Commission 2007, 3. <http://www2.warwick.ac.uk/research/warwickcommission/archive/worldtrade/report/uw_warcomm_tradereport_07.pdf> accessed 7 September 2010.
24 See WTO United States: Continued Suspension of Obligations in the EC–Hormones Dispute—Report of the Appellate Body (16 October 2008) WTO Doc. WT/DS320/AB/R [1]. [US:Continued Suspension].
25 WTO Legal Texts (n 17) 367.
26 US:Continued Suspension (n 24) [3].
28 See US:Continued Suspension (n 24) [5].
29 See ibid [7].
30 ibid [9].
31 ibid [8]. Although it was not mentioned by the Appellate Body, confidentiality of deliberations is also required to ensure the operation of art 17.10 of the DSU, by virtue of which concurring or dissenting opinions issued by individual Appellate Body members are anonymous. For insight into the Appellate Body's deliberations, see Alvarez-Jiménez, A, ‘The WTO Appellate Body's Decision-Making Process: A Perfect Model for International Adjudication?’ (2009) 12 Journal of Internatonal Economic Law 289.CrossRefGoogle Scholar
32 US: Continued Suspension (n 24) [10].
33 WTO European Communities: Regime for the Importation, Sale and Distribution of Bananas—Second Recourse to Article 21.5 of the DSU by Ecuador Annex IV—Report of the Appellate Body (26 November 2008) WTO Doc: WT2DS27/AB/RW2/ECU and WT/DS27/AB/RW/USA [2]. The Appellate Body authorized public access, and the hearing took place on 16–17 October 2008. Commenting on the Appellate Body's decision, the European Communities stated:
The European Union has welcomed the decision of the Appellate Body of the World Trade Organization (WTO) to open to the public for the first time an oral hearing in a WTO dispute appeal. … The EU and several other WTO Members argue that opening up hearings allows for greater transparency in WTO dispute settlement, and shows that trade disputes are conducted in a fair, unbiased and professional manner.
European Communities, ‘WTO Dispute Settlement. EU welcomes first opening of WTO Appellate Body hearing to the public’, 11 July 2008 <http://ec.europa.eu/trade/issues/respectrules/dispute/pr110708_en.htm> accessed 8 September 2010. Canada expressed a similar view. See Foreign Affairs and International Trade Canada, ‘WTO Panel Cases to which Canada is a Party. Canada-European Community–Beef Hormones: Recent Events’ <http://www.international.gc.ca/trade-agreements-accords-commerciaux/disp-diff/update_hormones.aspx?lang=en> accessed 6 September 2010.
34 See WTO United States: Continued Existence and Application of Zeroing Methodology. Annex IV. Procedural Ruling—Report of the Appellate Body (4 February 2009) WTO Doc. WT/DS350/AB/R [2]. Korea requested that its statements be treated as confidential. See ibid. The Appellate Body authorized the public hearing, which took place on December 11, 2008.
The most recent public hearing occurred in United States: Certain Country of Origin Labelling (COOL) Requirements (DS384/DS386) on 14, 15 and 16 September 2010.
35 Center for International Environmental Law, Statement. <http://www.ciel.org/Tae/WTO_Hormones.html> accessed 13 June 2009.
36 See WTO Appellate Body, Appellate Body. Annual Report for 2008 WTO Doc WT/AB/11 (9 February 2009) [41] <http://www.wto.org/english/res_e/booksp_e/ab_annual_report08_e.pdf> accessed 7 September 2010.
37 See ibid.
38 See, in this regard, Ehring, L, ‘Public Access to Dispute Settlement Hearings in the World Trade Organization’ (2008) 11 Journal of International Economic Law 1021, 1023CrossRefGoogle Scholar and P Van den Bossche, ‘Non Governmental Organizations and the WTO: Limits to Involvement?’ in D Steger (ed), Redesigning the World Trade Organization for the Twenty-first Century (CIGI & Wilfrid Laurier University Press, Ottawa, 2010) 309, 329–331. Regarding the most recent practice, the Appellate Body stated:
‘[T]he number of individuals who registered to observe the oral hearing was 33 in US — Continued Zeroing, 37 in US — Zeroing (EC) (Article 21.5 — EC), and 36 in US — Zeroing (Japan) (Article 21.5 — Japan).’
WTO Appellate Body, Appellate Body. Annual Report for 2009 WTO Doc. WT/AB/13 (17 February 2010) [42] <http://www.wto.org/english/tratop_e/dispu_e/appellate_body_e.htm> accessed 14 October 2010.
39 See WTO Brazil: Export Financing Programme for Aircraft. Recourse by Canada to Article 21.5 of the DSU—Report of the Appellate Body (21 July 2000) WTO Doc WT/DS46/AB/RW. See Alvarez-Jiménez, A., ‘The World Trade Organization (WTO) Appellate Body's Limited Autonomy to Modify the WTO Dispute Settlement System’ (2009) 52 German Yearbook of International Law 601, 618Google Scholar.
40 See WTO Mexico: Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States: Recourse to Article 21.5 of the DSU by the United States—Report of the Appellate Body (22 October 2001) WTO Doc WT/DS132/AB/RW, [7].
41 Art 12.4 of the Agreement on Subsidies and Countervailing Measures. WTO Legal Texts (n 17) 246. Another provision contemplating confidentiality is art 10 of the Agreement on Implementation of art VII of the General Agreement on Tariffs and Trade 1994 (the Customs Valuation Agreement). See ibid 179.
42 See WTO Legal Texts (n 17) 364 and also Rule III of the Appendix 3 to the DSU (See ibid 377) and Annex II to Working Procedures for Appellate Review, Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes. WTO Doc WT/AB/WP/5 (4 January 4 2005). <http://www.wto.org/english/tratop_e/dispu_e/ab_e.htm> accessed 7 September 2010.
43 As to the protection of confidential business information, see WTO Brazil: Export Financing Programme for Aircraft, WTO Doc WT/DS46/AB/R adopted 20 August 20 1999) [141, 145–147]. For a general analysis of this topic, see O Prost, ‘Confidentiality issues under the DSU: fact finding process versus confidentiality’ in R Yerxa and B Wilson (eds), Key Issues in WTO Dispute Settlement: The First Ten years (CUP, Cambridge, 2005) 190.
44 In principle, only main parties to disputes have this right.
45 The Sutherland Report made a proposal that is similar to the one advanced here. See Sutherland Report (n 23) [263].
46 In addition to US:Continued Suspension, the Appellate Body has requested proof of prejudice in other circumstances. For instance, if a respondent raises a defence late in panel proceedings, the complaining party can prevent the panel from assessing it if the party is able to prove prejudice to its due process right in the sense that the late invocation of the given defence has not given the party sufficient time to respond to it. See WTO United States: Measures Affecting the Cross-Border Supply of Gambling and Betting Services—Report of the Appellate Body (7 April 2005), WTO Doc WT/DS285/AB/R, [274–276].
47 This possibility, subject to the above-mentioned burden of proof, would exist for both main and third parties in appeal proceedings.
48 The precise content of this standard would be determined by the Appellate Body on a case-by-case basis.
The Sutherland Report recommended that parties could preserve total or partial confidentiality in panels and Appellate Body hearings by arguing ‘good and sufficient cause’ and that such declaration should be determinative for panels and the Appellate Body, at least during the early years of practice with public hearings. (See Sutherland Report (n 23) [263]). This recommendation was made in 2004 with the aims of easing WTO Members' concerns on public access and of facilitating the introduction of openness within WTO dispute settlement proceedings. However, given that practice with openness already exists and is fast increasing, there would be no need for such a high degree of deference to parties' request for confidentiality when the Appellate Body at some future date introduces public access as a rule within its hearings. Thus, parties should not merely state the existence of ‘good and sufficient cause’; they should prove such cause in order to be granted total or partial confidentiality for their statements.
49 This is not to say that confidentiality exists within WTO appeal proceedings only to protect parties. As was seen, confidentiality is also important to preserve the integrity of the Appellate Body's decision-making process, as the Appellate Body underscored in US: Continued Suspension. See text to (n 31).
50 See United States Court of Appeals, 2nd Circuit Joy v North, 692 F.2d 894.
51 See Sutherland Report (n 23) [261].
52 This provision sets forth:
[I]n their findings and recommendations, the panel and the Appellate Body cannot add to or diminish the rights and obligations provided for in the covered agreements.
WTO Legal Texts (n 17) 368.
53 ibid 367.
54 ibid.
55 See I Sinclair, The Vienna Convention on the Law of Treaties (Manchester University Press, Manchester, 1984) 130–131.
56 This line of argumentation has been used by the Appellate Body in the interpretation of the covered agreements. See for instance, Appellate Body Report, European Communities: Measures Concerning Meta and Meat Products (Hormones), WTO Doc WT/DS26/AB/R, WT/DS48/AB/R (adopted 13 February 1998), [128].
57 WTO Japan: Taxes on Alcoholic Beverages—Report of the Appellate Body (4 October 4 1996) WTO Doc WT1DS8/AB/R, WTO/DS10/AB/R, WT/DS11/AB/R [111].
58 The Appellate Body declared in Canada: Certain Measures Affecting the Automobile Industry that ‘omissions in different contexts may have different meanings, and omission, in and of itself, is not necessarily dispositive.’ See Canada: Certain Measures Affecting the Automobile Industry, WTO Doc WT1DS139/AB/R, WT/DS142/AB/R (May 31, 2000), [138].
59 According to the Oxford English Dictionary, the verb ‘to disclose’ means ‘to open up to the knowledge of others; to make openly known, reveal, declare (secrets, purposes, beliefs, etc).’
60 See Ehring, L, ‘Public Access to Dispute Settlement Hearings in the World Trade Organization’ (2008) 11 Journal of International Economic Law 1021, 1023CrossRefGoogle Scholar.
61 See WTO Legal Texts (n 17) 355.
62 See text to (n 31).
63 See ICTY Manual on Developed Practices. UNICRI Publisher 2009, [52]. <http://www.icty.org/x/file/About/Reports%20and%20Publications/ICTY_Manual_on_Developed_Practices.pdf>, accessed 6 September 2010.
64 See text to (n 8). See in this regard, V Morris and M Scharf, An Insider's Guide to The International Criminal Tribunal for the Former Yugoslavia, Vol 1 (Transnational Publishers Inc, New York, 1995) 255–256.
65 Provided that this partial exclusion guarantees protection to the party requesting confidentiality.
66 Exclusion of the press has taken place in the United States regarding hearings in which sensitive business information is at the heart of litigation. See, for instance, United States Court of Appeals, 3rd Circuit, Publicker Industries Inc v Cohen, May 29, 1984 733 F. 2d 1059 Media L Rep 1777.
67 If the Appellate Body were ever to disclose transcripts of its hearings, it could then determine to unseal the transcripts of closed hearings at a later date, once confidentiality was no longer required, as is the case with the disclosure of transcripts of domestic judicial hearings. See, for instance, the American case-law cited in United States Court of Appeals, 3rd Circuit, Publicker Industries Inc v Cohen, May 29, 1984 733 F. 2d 1059 Media L. Rep 1777, [79] and the England and Wales High Court (Chancery Division) judgment in Vestergaard Frandsen A/S & Ors v Bestnet Europe Ltd & Ors [2009] EWHC 1456 (Ch), 26 June 2009, [75–76].
68 See art 54 Bis (G)(2) of the ICTY Rules of Procedure and Evidence. See also in this regard, G-J A Knoops, Theory and Practice of International and Internationalized Criminal Proceedings (Kluwer Law International, Deventer, 2005) 176.
69 There are other orders that have been adopted for decades, for instance in U.S. courts, in order to protect sensitive business information, such as the appointment of disinterested experts to examine the given information and to report their conclusions, not the underlying data, to the court, or to allow the information to be examined only by attorneys and not by the parties. See E Gellhorn, ‘The Treatment of Confidential Information by the Federal Trade Commission: The Hearing’ (1968) 116 University of Pennsylvania Law Review 401 410, and EA Rowe, ‘Trade Secret Litigation and Free Speech: Is It Time to Restrain the Plaintiffs?’ University of Florida Legal Studies Research Paper No. 2009-24, 30–31. Although, as has been said, the Appellate Body deals only with issues of law, reference to the facts of the dispute, and potentially to sensitive business information, may be unavoidable and could in very exceptional circumstances justify the adoption of measures of this or similar character.
70 See International Criminal Tribunal for the Former Yugoslavia, In the Case Against Hartman, Judgment on Allegations of Contempt, September 14, 2009. <http://www.icty.org/x/cases/contempt_hartmann/tjug/en/090914judgement.pdf> accessed 7 September 2010.
71 See, for instance, art 72.5(d) of the Rome Statute. <http://www.icc-cpi.int/Menus/ICC/Legal+Texts+and+Tools/Official+Journal/Rome+Statute.htm> accessed 7 September 2010.
72 See Rule 27 of the Working Procedures for Appellate Review, WTO Doc WT/AB/WP/5 (4 January 2005). http://www.wto.org/english/tratop_e/dispu_e/ab_e.htm> accessed 7 September 2010.
73 US:Continued Suspension (n 24) [7].
74 Krippendorf v Hyde 110 US 276, 283 (1884).
75 Art 4 of the DSU regulates consultations. In particular, para 5 provides:
In the course of consultations in accordance with the provisions of a covered agreement, before resorting to further action under this Understanding, Members should attempt to obtain satisfactory adjustment to the matter.
WTO Legal Texts (note 17) 358. Consultations are a mandatory requirement that must be pursued by Members before requesting the establishment of panels. See United States: Subsidies on Upland Cotton—Report of the Appellate Body (3 March 2005), WTO Doc WT/DS267/AB/R [271 note 212].
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