The Absence of Remand Power in the WTO's DSU

Nicolas TORRENT*
I. INTRODUCTION

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).


II. WHY WOULD A REMAND AUTHORITY BE NECESSARY?

Some authors see remand authority as particularly important with regards to resorting to judicial economy by the Panels; indeed, by reason of judicial economy, Panels sometimes do not (and are not required to) address all claims presented by the parties(iv). It can also occur that a Panel does not make any factual finding on a relevant issue. In these situations, the DSU is silent and the Appellate Body, contrary to a domestic court, may neither complete the findings, nor remand to the Panel. One author does consider, however, that notwithstanding the silence of the DSU, the Appellate Body has such authorit(v) . These facts only demonstrate the need for a new regulation.

III. HOW COULD THE DSU BE AMENDED?

The European Communities have been proposing the introduction of remand authority since 1998(vi), and have been supported by Jordan in this.

In a communication (DOC) of January 2003, the EC proposed to amend article 17.12, providing explicitly for a remand by the Appellate Body and to introduce article 17bis in the DSU, providing for a remand procedure(vii).

The amended art. 17.12 enables the Appellate Body to remand the case to the original Panel if it finds that “the report of the panel or compliance panel does not contain sufficient factual findings so as to enable the Appellate Body to resolve the dispute”. It should explain in detail which were the “specific insufficiencies of the factual findings” and detail which are the “necessary findings of law” and other directions, if so required, so as to enable the Panel to “fully perform its task”. The Parties would be allowed a ten-day period as from the adoption of the Appellate Body's report by the DSB to request the remand to the original Panel. Finally, the completion of the work by the remand Panel would be subject to a period of time recommended by the Appellate Body, as the latter sees necessary.

This Procedure seems to meet the speed requirements under the WTO dispute settlement mechanism. It would also provide for a clear rule, instead of an induced one as is presently the case, thus increasing due process and fairness between the parties.

IV. CONCLUSION

It has been pointed out by many that the DSU does not fundamentally require any amendments for dispute settlement at the WTO remains one of the fastest and most efficient at the present day. However, where a practice is regularly resorted to by the bodies applying the law, it becomes necessary, for the sake of clarity, foreseeability and fairness, that the practice receives clear limits, so as to enable the achievement of such requirements.

(*) Master of Laws, Geneva.

End notes:
(i) See for example EC - Asbestos, §78 ff.
(ii) Guohua Yang, Bryan Mercurio and Yongjie Li, 'WTO Dispute Settlement Understanding: A Detailed Interpretation' (Kluwer Law International, 2005) 212.
(iii) Andrew D. Mitchell, 'Challenges and prospects for the WTO' (Camron May, 2005) 200.
(iv) Edwin A. Vermulst, Folkert Graafsma, 'WTO Disputes: Anti-dumping, Subsidies and Safeguards' (Camron May, 2002) 83.
(v) Jacques Bourgeois, 'Trade Law Experienced: Pottering about in the GATT and WTO' (Camron May, 2004) 47.
(vi) Thomas A. Zimmermann, 'Negotiating the Review of the WTO Dispute Settlement Understanding' (Camron May, 2006) 146.
(vii) Contribution of the European Communities and Its Member States to the Improvement and Clarification of the WTO Dispute Settlement Understanding, WTO Doc TN/DS/W/38 (2003) [18] (Communication from the European Communities).