Extending Trade Law Precedent
33 Pages Posted: 14 Oct 2020
Date Written: October 13, 2020
Precedent is celebrated as a fundamental feature of dense legal systems as it creates predictability, builds coherence, and enhances the authority of courts and tribunals. But, in international adjudication, precedent can also affect interstate cooperation and ultimately the legitimacy of international organizations. Wary of this, most international dispute settlement systems are designed so that rulings do not set obligatory precedent. In this Article, we describe the role of precedent in the Appellate Body (AB) of the World Trade Organization (WTO) to explain how precedent can affect compliance with the decisions of international courts and tribunals (ICs). We make two main contributions. First, we show that there can be precedent without a formal stare decisis rule. In theory the AB has a rule against binding precedent. Based on empirical evidence, however, we show that the AB has in fact a strong norm of relying on prior decisions. Second, we show that over time, the widening of legal commitments can result from extending precedent to new situations and this has an impact on the ability or willingness of states to comply. Our findings have implications for the WTO and beyond. For the WTO, we note that efforts to better define the value of precedent is unlikely to resolve the general mistrust of the AB and therefore, we propose other solutions to control the drift resulting from precedent. Beyond the WTO, we note that international scholars should account for the inter-temporal dimension of legal commitments in analyzing and explaining compliance with international law.
Keywords: World Trade Organization, WTO, precedent, Appellate body, international courts, tribunals, international law, compliance
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