MJIEL Vol 6 Issue 2 2009 - Editorial

Communication Flows in International Economic Law



Much persistence by the US in its application of the zeroing method for calculating dumping margins along with the Panel responses to it finally provoked the Appellate Body of the WTO to affirm the value of the doctrine of precedence in the operations of the WTO dispute settlement system.[1] This was called for yet this discourse is not over given that the Appellate Body was open to departure from precedent when there are cogent reasons to do so. What those cogent reasons are has not been elaborated. Should they be clarified; and if so on what basis?

The WTO Appellate Body was right of course to keep the possibility of departure from precedent open. That is the rational and mature response. There may also be reason in not elaborating the ‘cogent reasons’ that may prompt it to depart lest it incite an avalanche of unwarranted litigation. Equally due process requires for some measure of clarification – after all the requirements of predictability and certainty are ironically equally relevant here. Such clarification has been given in common law systems, for example in the UK the House of Lords has elaborated on the circumstances in which it would be prepared to depart from its previous judgments. Thus the Appellate Body could allude to the circumstances when it will not depart, for example where the consequence would be to affect the balance of the concessions negotiated or where past commitments are disturbed. Equally it could give some positive guidance as for instance where liberal trade and/or development objectives are promoted consistent with the preamble of the Marrakech Agreement. 

  Asif H Qureshi



[1] United States – Final Anti-Dumping Measures on Stainless Steel from Mexico (WT/DS344/AB/R)   (2008)

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