Completing the Analysis in WTO Appeals: The Practice and its Limitations
18 Pages Posted: 17 Jul 2008 Last revised: 5 Jun 2015
Date Written: December 1, 2006
Since its creation in 1995, the Appellate Body of the World Trade Organization (WTO) has gradually constructed a consistent approach to completing panels' analysis where the circumstances permit. The need for this practice stems from the limitation of WTO appeals to issues of law and the absence of remand in WTO disputes. The Appellate Body can be seen to complete a panel's analysis in two different scenarios: to deal with a claim that the panel failed to address; or to apply a different legal interpretation to the facts of the case, where the Appellate Body has reversed or modified the panel's legal interpretation. In deciding whether to complete a panel's analysis, the Appellate Body appears to consider three criteria: the existence of uncontested facts to resolve the matter, the connection between the legal issues to be addressed in completing the analysis and those considered by the panel, and the due process rights of the parties to the dispute. Where these criteria are not satisfied, the Appellate Body is unable to complete the analysis, and the dispute may go unresolved. This is an increasing problem, highlighting the need for WTO Members to agree on a suitable remand mechanism.
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