Saturday, September 8, 2012

Domestic challenge to the WTO in the U.S.

The IELP blog has referred to a domestic challenge to the COOL decision of the WTO in a local U.S. Court here. News of it is found here.The complaint has called into question, inter alia, WTO's authority to override U.S. law. The sovereignty debate is back again. Domestic policy making is continuously challenged under the multilateral trading system. Is every decision of the WTO (panel or Appellate Body) which goes against a country's law a setback to a country's sovereignty? the complaint, inter alia, sought for a declaration that the WTO has no authority to override U.S. law and that its decision concerning the Country of Origin Labeling Act is void in the United States and throughout the world.

An interesting point about "conflict of interest" of the Appellate Body members is also raised in the complaint. It reads:
"22. The WTO Appellate Panel Members were Ujal Singh Bhatia, Ricardo Ramírez- Hernández and Peter Van den Bossche. 
23. Mr. Bhatia was formerly India’s Representative to the WTO. Mr. Bhatia is not a lawyer.
24. Although Ricardo Ramírez-Hernández is a lawyer, he is a Mexican national who has represented Mexico in trade matters. He has an obvious conflict of interest since Mexico was a party to the case, and he should have been disqualified as an appellate jurist. 
 25. Panel member Peter Van den Bossche is from Belgium. Mr. Van de Bossche is a lawyer." 
The conflict of interest pertained specifically to the Mexican member on the Appellate Body. This was echoed by a comment to the post in the IELP blog.

The DSU provisions relating to the Appellate Body are laid out in Article 17. Article 17(3) of the DSU referrers to the composition and states:

"3.The Appellate Body shall comprise persons of recognized authority, with demonstrated expertise in law, international trade and the subject matter of the covered agreements generally.  They shall be unaffiliated with any government.  The Appellate Body membership shall be broadly representative of membership in the WTO.  All persons serving on the Appellate Body shall be available at all times and on short notice, and shall stay abreast of dispute settlement activities and other relevant activities of the WTO.  They shall not participate in the consideration of any disputes that would create a direct or indirect conflict of interest."
A distinction between Panel members and Appellate Body members, in terms of composition, needs to be highlighted. This has a bearing not he conflict of interest argument. In the case of Panel members, there is a bar for citizens from countries that are parties to the dispute from being a part of the Panel, unless agreed to by the disputing parties (which is very unlikely). This is found in Article 8(3) of the DSU which states:
"3.Citizens of Members whose governments are parties to the dispute or third parties as defined in paragraph 2 of Article 10 shall not serve on a panel concerned with that dispute, unless the parties to the dispute agree otherwise."
This specific bar is not provided for in the Appellate Body composition since there is a difference between the nature of the panel and Appellate body composition. This would also imply, by implication, that the bar of citizens of disputing parties is not applicable to Appellate Bodies. Thus, there could be a situation where a U.S. citizen is sitting as a member of an Appellate Body in a dispute pertaining to the united States. After all, the Appellate Body members are unaffiliated to any government. The conflict of interest provision in Article 17(3) would pertain more specifically to issues that the judge has dealt with in his or her previous assignments that are related to the case at hand rather than the nationality.

Anyway, for now let us assume that Simon Lester's proposition that the complaint may be just not be too serious.

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