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Jesse Kreier
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Simon. If it hasn't said it explicitly, it has come very close indeed. It made a very lengthy statement about Appellate Body review of findings of fact at the 27 August 2018 DSB meeting. The punchline: "As we have noted in this statement, DSU Article 17.6 expressly limits appellate review to issues of law and legal interpretation covered in a panel’s report. On its face, this would not include panel fact-finding. When we look back to the appellate report in which the Appellate Body asserted it could review panel fact-finding under the “duty” or “requirement” in DSU Article 11 to make an objective assessment of the facts, we find that there was no interpretation by the Appellate Body of the text of DSU Article 11, which states that a panel “should make” an objective assessment. And because the DSU text does not support any appellate review of the facts, it also does not suggest any particular standard for that review."
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Yes, Simon, I think that is exactly what the US is suggesting. If you go all the way back to EC-Hormones in 1998, the EC alleged that the Panel had breached Article 11 DSU, and the US (and Canada) responded that the EC was asking the Appellate Body to review findings of fact, inconsistently with Article 17.6 DSU. The Appellate Body bought the EC argument although it did not ultimately find an Article 11 violation. Article 11 of course says "should". Interestingly, the Appellate Body relied upon EC-Hormones when it found in Canada-Aircraft that "should" in Article 13 DSU was "used in a normative, rather than a merely exhortative, sense".
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I have no idea what President Trump's intentions are here, but the US has been making the case for developing Member differentiation and graduation for as long as I can remember. This includes repeated submissions to the WTO over the past couple of years. So I don't think we should somehow suggest that the US just started this process on 26 July. A more salient question for me: what are the practical implications of the United States "no longer treating" a Member as a developing country? In most contexts, the judgment is in the first instance one for the Member itself, not the United States. So if for example a prohibition does not apply to developing countries, each Member must decide in the first instance whether it is subject to the prohibition. If the US disagreed, its only recourse would to complain in the relevant WTO Body and ultimately perhaps resort to dispute settlement (assuming developing country status is justiciable). In those rare instances, such as de minimis exceptions in trade remedy cases or eligibility for preferences, where it is for the United States in the first instance to decide whether to treat a Member as a developing country, the United States already applies its own definitions (as do a number of other Members). But perhaps I am overlooking other instances?
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The WTO is not likely to post videos in real time, because so many disputes today involve business confidential information. There is a general view that there needs to be possibility to edit out such information should a party let it slip by mistake. As for posting on-line video with a time lag, it makes sense to me. It would reduce the need for travel, with all its costs and carbon footprint, and lighten the burden on the WTO to make rooms and staff available. However, there may be concern that malicious people might download and manipulate the files. Having seen Ronald Reagan rapping on Youtube, I suppose that is not impossible....
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Mar 13, 2019