Jean Monnet Center at NYU School of Law


IV. Concluding remarks

The most direct outcome of this case is the `announced death' of the 1916 Act. This is a good thing for international trade development. The 1916 Act was indeed a textbook example of how never or rarely fully applied legislation can pose a serious threat to foreign competitors and thus have a "chilling effect" on international trade. For the US however this outcome came as rather `uneasy' to swallow, as the delays in implementation show.

As to the substantial legal issues decided in order to reach this outcome, this case seems not to be of great importance for the development of WTO law. In this sense it was a relatively `easy case'.

This case seems to be more interesting for how these substantial findings were reached, i.e. for the methodological and procedural issues decided. After exploring the different reports, it seems to me that both Panel and Appellate Body gave proof of great ability to balance the different dimensions of adjudicative legitimacy, as Howse defined them: fair procedures, institutional sensitivity and coherence and integrity in treaty interpretation.202:

That the procedures followed in this case were fair can hardly be disputed. If anything, the Panel and AB gave proof of too much concern for fairness when deciding on the `multiple complaints' issues of this case, carefully avoiding to make decisions against the will of parties and giving much - too much - regard to the balance of procedural rights it perceived to be laid down in the DSU. The same great care for legitimate proceedings was shown, when dealing with the systemically important issue of objections to jurisdiction.

As to institutional sensitivity, the Panel must be applauded for its methodological approach to the examination of the 1916 Act and its surroundings.

There is hardly any critique to be pronounced on the coherence and integrity of the Panel's and AB treaty interpretation. The fear that the approach to the `multiple complaints' aspect of this case would lead to a lack of coherence and consistency, turned out to be rather unfounded. As said before the actual issues of treaty interpretation were rather clear-cut. Nevertheless Panel and AB were as transparent and explicit in their reasoning, as could reasonably be expected. I would also argue that Panel and Appellate Body used `issue avoidance techniques', such as judicial economy and mandatory vs. discretionary legislation, in a very sensible way.

Personally, I am curious about the future development in the case law of some of these methodological and procedural issues such as the treatment of multiple complaints, rights of third parties, consideration of jurisdiction, mandatory vs. discretionary law, examination of domestic law.

Methodological and procedural efforts may help to create acceptable settlement of disputes, but they cannot guarantee "prompt compliance". Let's wait and see when the US finally will repeal the 1916 Act. The AB report has been adopted more than one and a half years ago... The EC and Japan get in any event impatient and have requested suspension of concessions.

202 See R. Howse, supra note 173.




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