Dictum on Dicta: Obiter Dicta in WTO Disputes

17 World Trade Review 509–533 (2018), DOI: 10.1017/S1474745618000162

Posted: 13 May 2018 Last revised: 11 Feb 2019

See all articles by Henry S. Gao

Henry S. Gao

Singapore Management University - School of Law

Date Written: January 1, 2018

Abstract

This paper discusses an important legal issue raised by the United States in its recent attempt to block the reappointment of an Appellate Body member. According to the US, in some of his decisions, the member has made overreaching findings that amount to obiter dicta. As obiter dictum is a unique concept in the Common Law system, the US argument may only stand if the concept may be found in the WTO legal system as well. With a careful analysis of the concept of dicta in Common Law and a close examination of the effects of past panel and Appellate Body decisions in WTO dispute settlement, the paper rejects the US argument by refuting each of the three premises of the US argument, i.e., the WTO legal system based on Common Law; WTO follows stare decisis; and the WTO has rules against dicta. In addition to original contributions on the nature of the WTO dispute settlement system in theory, the article also provides some practical advice on how the controversy may be resolved.

Keywords: WTO, Obiter Dicta, Precedent, Appellate Body, Common Law

Suggested Citation

Gao, Henry S., Dictum on Dicta: Obiter Dicta in WTO Disputes (January 1, 2018). 17 World Trade Review 509–533 (2018), DOI: 10.1017/S1474745618000162. Available at SSRN: https://ssrn.com/abstract=3171342

Henry S. Gao (Contact Author)

Singapore Management University - School of Law ( email )

55 Armenian Street
Singapore, 179943
Singapore

HOME PAGE: http://www.law.smu.edu.sg/faculty/law/henrygao.asp

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