The Absence of Remand Power in the WTO's DSU

Nicolas TORRENT*

The DSU does not provide any possibility for the Appellate Body to remand a case to the original Panel if it notes that facts have not been properly established. More generally, the Appellate Body's possibilities are quite few (compared to a domestic court) according to art. 17.13, for it can only “uphold, modify or reverse the legal findings and conclusions of the Panel”.

The Appellate Body “Completes the analysis”(i), instead, to provide for the absence of remand authority. This judicial creation however, has been thought to be unsatisfactory for it lacks standards of review and leads to a “disjointed and imperfect body of jurisprudence(ii)”. Moreover, it has been pointed out that this technique is not fully efficient if the original Panel has made some inadequate findings(iii).

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