The Role of Precedent in the WTO - New Horizons?

Abstract

Until recently, the answer to the question of whether there exists a rule of binding precedent in the WTO legal order was a fairly clear “not really,“ at least certainly not one in the sense of the rather strict common law doctrine of stare decisis. Previous decisions could not be ignored, due to their persuasiveness, but did not have any binding force except as between the parties to a particular dipute, it was noted.

A recent Appellate Body decision, however, has resulted in a heated discussion among the WTO Membership on the subject, as well as a questionable decision by a panel in a subsequent dispute. These new developments merit a closer look at the mentioned Appellate Body decision, the Report in US - Stainless Steel, in which the Appellate Body required from panels to advance cogent reasons in order to justify a departure from its previous decisions. This analysis will attempt to ascertain whether the Appellate Body really intended to open ’new horizons’ regarding the role of precedent in the WTO order. This paper will argue that US - Stainless Steel represents a further step (and in view of some Members of the WTO a step too far) in a line of cases in which the Appellate Body has gradually sought to expand the binding force of its decisions.

Keywords: WTO Dispute, Settlement, Precedent, Appellate Body, Zeroing