Academic journal article Law and Policy in International Business

GATT Panels Need Restraining Principles

Academic journal article Law and Policy in International Business

GATT Panels Need Restraining Principles

Article excerpt


The Article by David Palmeter and Gregory J. Spak, "Defining GATT's Role in an Era of Increasing Conflict," proposes a paradigm for dispute settlement of antidumping and countervailing duty disputes that would free dispute panels from traditional principles of international law.(1) The authors reject the position that dispute resolution panels should be restrained by principles of deference or exhaustion and argue that analogy between dispute resolution under the General Agreement on Tariffs and Trade(2) and resolution of questions of United States administrative law is not a strong foundation for imposing any constraints on GATT panels charged with interpreting an international agreement. Because national agencies and courts are not GATT experts, for example, Palmeter and Spak argue that GATT panels ought not defer to national interpretations of the GATT Antidumping or Subsidies Codes.(3)

Certainly it is true that the United States adopted the negotiating objective of strengthening the GATT dispute settlement process.(4) To that end, U.S. negotiators in the Uruguay Round sought binding dispute settlement, as opposed to the present consensus-building mechanism.(5) More recently, the United States has sought to temper the dispute settlement process by seeking to have some restraints imposed on GATT panels, particularly a standard of review. Palmeter and Spak propose a dispute settlement process that would not only be binding on the disputants, but would largely free the GATT panelists from constraints ordinarily applied in judicial dispute settlement.(6) Their premise is that GATT panels do not stand in the same relation to national agencies as courts. This is true. However, a dispute settlement process that frees GATT panels from the traditional precepts of treaty interpretation, essentially allowing panelists to "fill in the gaps" in an international agreement, is a radical departure from accepted principles of international law.

Although GATT dispute settlement may not be perfectly analogous to judicial review of administrative law issues, the interpretation of agreements ought to call for greater restraint by and constraints on GATT panelists. Given the nature of the GATT, the proposal to eliminate any restraints, such as those inherent in standards of review, cedes too much of the authority of sovereign nations.


A. Sovereign Powers and Administrative Agencies

Palmeter and Spak point out that the relationship of national agencies and courts to GATT panels is not the same as the relationship between an agency and a court of appeals in the United States.(7) In the case of an agency and an appellate court, both are interpreting the same law--a law enacted by a branch of government equal in authority to the court and implemented by the legislature. In these circumstances, the court is constrained not to rewrite the statute and to defer to the views of the agency when it acts within its delegated authority.

The GATT is an international agreement among sovereign states. A GATT panel is not the equal of the Contracting Parties, nor do the Parties (or their agencies) derive their own authority as delegates of the GATT. Rather, the GATT itself is an agreement among sovereigns to bind themselves to a set of rules. GATT panels in this context are arbiters of disputes, not strictly interpreters of law; the disputants themselves retain their own sovereign authority. The GATT is simply an agreement to devise general norms and principles to govern international economic relations among its members, providing sufficient flexibility for states to determine domestic policies serving their individual national interests.(8) The provisions for acceding to the GATT illustrate this flexibility.

Accession to the GATT is governed by Article XXXIII.(9) Accession generally involves a negotiation process whereby the government seeking GATT membership must provide tariff concessions to existing contracting parties in accordance with reciprocity. …

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