After Corus Staal - Is There Any Role, and Should There Be - for WTO Jurisprudence in the Review of U.S. Trade Measures by U.S. Courts?
Greenwald, John D., Georgetown Journal of International Law
After a series of decisions by the Court of International Trade ("CIT") and the Court of appeals for the Federal Circuit ("CAFC") in 2004 suggesting that the Charming Betsy doctrine gives the jurisprudence of the World Trade Organization ("WTO") a meaningful role in U.S. judicial review of agency action under the trade laws of the United States, both Courts reversed direction in 2005 and 2006. (1) Given the most recent pronouncements by the CIT and the CAFC, do WTO dispute settlement decisions have any relevance to U.S. judicial review of agency action under the trade laws of the United States? And if not, is the legal and trade policy rationale behind the decision to marginalize WTO jurisprudence in U.S. judicial review persuasive?
The purpose of this article is not to provide a comprehensive review of decisions by U.S. courts that have addressed the relevance of WTO jurisprudence under U.S. law. (2) Rather, it is to (1) examine the 2005/ 2006 retreat from earlier CAFC and CIT decisions indicating that WTO jurisprudence is relevant to a domestic court's interpretation of U.S. trade law, (2) argue that WTO jurisprudence is almost always legally irrelevant to judicial review of agency decisions, and (3) offer a trade policy rationale for keeping to a minimum the attention paid by U.S. courts to WTO dispute settlement decisions.
II. THE RELEVANCE OF WTO JURISPRUDENCE TO U.S. JUDICIAL REVIEW HAS CHANGED SINCE 2004
There has never been any question that WTO law is subordinate to domestic trade law. By statute, "no provision of any [WTO agreement] ... that is inconsistent with any law of the United States shall have effect." (3) If U.S. "statutory provisions ... are inconsistent with" the provisions of a trade agreement, then "it is a matter for Congress." (4) Section 129 of the Uruguay Round Agreements Act sets out specific procedures under which the U.S. Trade Representative may, but need not, implement WTO panel and Appellate Body decisions. (5) At the same time, however, there is no statutory or other bar preventing a U.S. court from taking note of WTO jurisprudence. Decisions in 2004 by the CIT and CAFC generally accepted the proposition that WTO dispute settlement decisions can usefully inform the construction of U.S. trade statutes by domestic courts where "Congress has not directly addressed the precise question at issue." (6)
A. 2004 CIT and CAFC Decisions
In SNR Roulements v. United States, (7) the CIT upheld antidumping policies of the U.S. Department of Commerce ("Commerce") that the WTO had found inconsistent with the WTO Antidumping Code. In doing so, the CIT recognized the relevance of WTO jurisprudence to U.S. judicial review:
The Charming Betsy doctrine may conflict in certain circumstances with the deference that courts owe to interpretations of statutory law by agencies.... Moreover, the judiciary generally grants the executive branch an even greater level of deference in the area of foreign affairs. However, Courts have held that Chevron must be applied in concert with the Charming Betsy doctrine when the latter is implicated.... WTO decisions are not binding on the Court nor on Commerce ... WTO decisions may, however, shed light on whether an agency's practices and policies are in accordance with U.S. international obligations. (8)
In Allegheny Ludlum Corp. v. United States, the CAFC went a step further, holding that a WTO Appellate Body decision was a factor supporting the lower court's ruling that Commerce's subsidy calculation violated the law. (9) The CAFC decision went out of its way to bring WTO jurisprudence into its analysis:
The trial court correctly grounded its judgment in the statute and this court's precedent.... Another consideration also supports the trial court's analysis. Section 1677(5) (F) "must be interpreted to be consistent with [international] obligations, absent contrary indications in the statutory language or legislative history. …