Regardless of whether the AB intended to signal, if a panel's act of disagreeing is legally inappropriate no matter why (i.e. disagreeing can never be a cogent reason), that would seem to not only indicate a system of precedent, but an exceptionally rigid one. It's not a big ask for the AB to at least consider new arguments or critiques of previous logic. Indeed as I argue in my article, even though the panels will almost certainly be reversed - and the panelists/Rules or Legal Affairs Division well understand this - making *new* points/critiques at least pushes the AB to further refine and defend its positions.

In Dissent as Dialectic: Horizontal and Vertical Disagreement in WTO Dispute Settlement 48 Stanford Journal of International Law 1 (2012)(available on ssrn at https://ssrn.com/abstract=1966272). I tried to theorize what "cogent reasons" might be, in light of Arts. 3.2, 11 and 19.2 of the DSU. Would be interested in your thoughts. I will also go back and reread my argument to see if my views have changed!

Simon, Consistent with the document cited above, what I have heard from Australians is that the U.S. initially wanted investor-state dispute settlement provisions but that Australia took the position that its legal system is trustworthy, etc and that therefore it should not have to resolve investor-state disputes via arbitration. The U.S. agreed to this as noted above. The Australia-ASEAN FTA is different because Australia would want to arbitrate such disputes arising with ASEAN member countries. Best, Meredith

We'll see what you think when you've visited both sides of the ditch. From what I have observed, New Zealand and Australia have relatively similar offensive trade interests, which is in keeping with the numbers of cases initiated/participated in. However, while both countries have stringent quarantine rules and procedures, Australia seems to have a bit of a problem with imposing particularly onerous restrictions on agricultural products that would compete with its own production. In addition to the Salmon dispute, consultations have been initiated raising complaints about other Australian quarantine measures on at least three occasions. If New Zealand is guilty of the same behavior I'm not aware of it; however, this may be because the NZ market is too small for other agricultural producers to bother with competing in rather than benign NZ regulations. In general though I can't recall a time when any other WTO member has groused about a NZ trade measure. New Zealand has a remarkably open economy with almost no tariffs, and it doesn't subsidize agriculture (or anything else). Australia is relatively open, but NZ is more of an outlier in this respect. One last comment. The apples dispute is the first WTO dispute between the two countries, and it is quite interesting to talk to Australians about it. Most people I've talked to - including a number of government officials - have readily acknowledged the weakness of Australia's position and have stated it is ridiculous Australia still keeps out NZ apples. I think they (the Australians) would love to settle it...time will tell but NZ doesn't seem to be biting yet.

On the theory that it would fall under Art. 8 of the ADA? If that's the rationale isn't there an issue with the SLA having quantitative undertakings, as Art. 8 seems only to permit suspension agreements or other settlements based on price undertakings?

Very interesting. Of course these retrospective trade remedies are only possible by virtue of the SLA, which itself should arguably not exist as it is, as you note, a VER and these are prohibited by the Safeguards Agreement...

We represented German printing press manufacturers in that district court litigation which was indeed an action under the 1916 Act. All the parties settled except for one Japanese company. The litigation was initiated in Iowa district court during the pendency of the WTO case - after the panel report but before the AB. The litigation was stayed for a time pending the outcome of the WTO dispute but ultimately the court determined it needed to proceed as there was no strong indication Congress would repeal the 1916 Act retroactively (which would have been necessary to make that litigation go away). The Japanese company that remained in the case was found liable to the tune of $10 million, which was then trebled under the 1916 Act damages provisions. From Japan's standpoint this judgment was unacceptable as the WTO Appellate Body had found the 1916 Act prima facie breached the Agreement on Antidumping. I believe what happened was that (perhaps prior to the judgment in anticipation thereof, or possibly not until after) Japan enacted "clawback" legislation which provides that if a judgment were collected against a Japanese company contrary to international law (or something along those lines) that Japan could essentially seize Japanese assets of the company awarded the judgment and use those assets to repay the company that was, in Japan's view, required to pay damages contrary to international obligations. Mitsuo Matsushita wrote a piece in Journal of World Trade in 2006 about the blocking legislation enacted in Japan and the EU in connection with this case. How did Clinton respond? I'd be pretty surprised if she had been briefed on this esoteric issue!