Dissent as Dialectic: Horizontal and Vertical Disagreement in WTO Dispute Settlement

Abstract

This article examines the phenomena of dissent within WTO dispute settlement panels and within Appellate Body divisions ("horizontal disagreement") and the failure of certain WTO dispute settlement panels to follow previous rulings of the Appellate Body ("vertical disagreement"). With respect to horizontal disagreement, the article responds to a recent critique of my earlier piece on the subject (The Lack of Dissent in WTO Dispute Settlement, 9 J. INT’L ECON. L. 895 (2006)). With respect to vertical disagreement, the article examines whether there are textual or normative reasons why panels should not disagree with the Appellate Body. It argues that the series of panels that have declined to follow previous Appellate Body decisions (in the context of the zeroing disputes) have been engaging in a dialectical process with the Appellate Body in an attempt to signal difficulties with the Appellate Body's prior reasoning. The article goes on to identify parameters within which it might be appropriate for panels to diverge from previous Appellate Body rulings; in particular, it identifies examples of what might be, in the words of the Appellate Body, "cogent reasons" not to follow prior Appellate Body decisions.

Keywords: WTO, trade, international, dispute settlement, dissent, international economic law

JEL Classification: F02, F10, F19, K33