MINORITY OPINIONS IN THE WTO DISPUTE SETTLEMENT

(Assignment towards the fulfilment of the Mid-term Project in the subject International
Trade Law)

SUBMITTED TO: SUBMITTED BY: SATYA RAI

Prof. Bipin Kumar
Assistant Professor Roll No (1938)
Faculty of Law Semester: VI. Section B.
National Law University, Jodhpur B.A., LL.B. (HONS)

NATIONAL LAW UNIVERSITY, JODHPUR

WINTER SESSION

(JAN-MAY 2023)

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 CONTENTS

ABSTRACT...............................................................................................................................3
RESEARCH METHODOLOGY...............................................................................................4
HYPOTHESIS...........................................................................................................................5
LITERATURE REVIEW...........................................................................................................6
I. INTRODUCTION....................................................................................................................7
A. Background on the Dispute Settlement Body of the WTO..........................................7
B. Overview of Minority opinions in WTO Dispute Settlement......................................8
C. Purpose of the Project.....................................................................................................8
II. NATURE OF MINORITY OPINIONS IN WTO DISPUTE SETTLEMENT.....................................9
A. Definition of Minority Opinion................................................................................9
B. Legal Basis for Dissent............................................................................................10
C. The Historical Background of Dissent in WTO Dispute Settlement..................11
III. THE ROLE OF MINORITY OPINION IN WTO DISPUTE SETTLEMENT...............................13
IV. ANALYSIS OF MINORITY OPINION IN WTO DISPUTE SETTLEMENT...............................14
A. US- Zeroing (EC) and US- Washing Machine............................................................14
B. EC- LCA Case................................................................................................................19
C. US- Upland Case............................................................................................................20
V. THE FACTORS AFFECTING THE DISSENTING OPINIONS...................................................21
VI. CONCLUSION..................................................................................................................26
BIBLIOGRAPHY....................................................................................................................28

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 ABSTRACT

This paper explores the lack of emphasis on dissenting opinions in the Dispute Settlement
Understanding (DSU) and the Working Procedures (WP) of the World Trade Organization
(WTO) concerning Dispute Resolution. Despite the random selection of judges from different
socio-economic and cultural backgrounds, the statutes require the judicial body to make
every effort to reach a decision by consensus as per Article 3(2) of the Working Procedure.
The concept of a separate opinion, which could be interpreted as a concurring or dissenting
opinion, is briefly mentioned in the statutes but has only been observed in a few cases. The
aim of this paper is to analyze the historical context in relation to GATT 47, examine the
factors that may hinder dissenting opinions, examine the cases and opinions in which
dissenting opinions have been expressed, and finally consider if dissenting opinions should
be more freely allowed and the emphasis on 'decision by consensus' should be replaced by
decision by majority.

Keywords:
WTO, Appellate Body, Dissenting Opinion

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 RESEARCH METHODOLOGY

• The aim of the researchers for this project will be to keep it explanatory and descriptive in
nature primarily.
• The research that the researchers have done in this project is doctrinal in nature and has
been derived from both primary and secondary sources, including the bare provisions,
judgements, legal dictionaries, legal reports, articles, news articles, etc.
• Books by various authorities were also referred to analyse this provision in depth.

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 STATEMENT OF PROBLEM
WTO is a multilateral platform which regulates almost all the trade happening around the
world. So one can say that it is very diverse in nature yet with this much diversity, the
Dispute Settlement Body of WTO still is reluctant to accept dissenting opinions and
emphasises on taking decision by consensus.

HYPOTHESIS

1. The emphasis on consensus in the Dispute Settlement Understanding (DSU) and the
Working Procedures (WP) of the World Trade Organization (WTO) concerning
Dispute Resolution limits the expression of dissenting opinions and hinders the
diversity of perspectives in decision-making.
2. The historical context and cultural and socio-economic backgrounds of the judges
play a role in the limited expression of dissenting opinions.
3. Allowing dissenting opinions more freely and replacing the emphasis on 'decision by
consensus' with decision by majority would lead to a more diverse and well-rounded
decision-making process in WTO dispute resolution.

This hypothesis can be tested through a thorough examination of the historical context, the
factors that may hinder dissenting opinions, and the cases in which dissenting opinions have
been expressed. The conclusion drawn from this analysis will determine the validity of the
hypothesis.

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 LITERATURE REVIEW

"Dissenting Opinions in the WTO Appellate Body: Drivers of their Issuance &
Implications for the Institutional Jurisprudence" by Evan Y. Kim and Petros C.
Mavroidis

The paper "Dissenting Opinions in the WTO Appellate Body: Drivers of their Issuance &
Implications for the Institutional Jurisprudence" by Evan Y. Kim and Petros C. Mavroidis
provides a valuable input into how the WTO dispute settlement body works. The author
primarily focuses on the lack of dissent there is in the WTO judgements.

The author begin by entering how important dissent is there in any jurisprudence and how it
helps develop the law. Then the author discusses how there is lack of minority opinion in
WTO judgments and how the law present for the WTO dispute settlement body at the
moment do not mention the word dissent anywhere.

Another factor that the author observes is that the decisions given are anonymous in nature so
it is very hard to pinpoint as to which member gave the minority opinion. So the author goes
on to discuss how what factors could be there that influence the decision making of the
members and influence them to give a dissenting opinion. But we have to keep in mind that
all of this is a probable guess work because we do not know the clear identities of those
giving the opinion.

Then the author discusses the cases in which minority opinion has been given by the body
and discusses the circumstances in which those were given in, whether those minority
opinions are right or wrong in the given in current times and then the author goes on to
presume the probable authors of those giving the dissenting opinions.

The author concludes by saying that a lack of dissenting opinion is disappointing given the
sheer magnitude of how huge WTO is. The author hopes that in the recent in the coming
times the WTO would actively encourage those having a different opinion to express it so the
majority opinion can benefit from it or the future judgments can benefit from it.

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 I. INTRODUCTION

A. Background on the Dispute Settlement Body of the WTO

The World Trade Organization (WTO) Dispute Settlement Body (DSB) is a crucial
component of the global trade system. It was established in 1995 as part of the establishment
of the WTO itself, and it serves as the primary mechanism for resolving trade disputes
between WTO member countries. The DSB is responsible for administering the dispute
settlement procedures set forth in the WTO’s Agreement on the Understanding on Rules and
Procedures Governing the Settlement of Disputes (DSU).1

The WTO was created to promote free and fair trade among its member countries by
reducing barriers to trade and ensuring that trade practices are transparent and predictable.
The DSB plays a crucial role in realizing these goals by providing a mechanism for resolving
trade disputes between WTO members in a prompt, efficient, and impartial manner. This
helps to maintain stability and predictability in the global trading system and contributes to
economic growth and prosperity for businesses and consumers around the world.

The DSB operates through a system of panels and the Appellate Body, which are composed
of impartial experts who evaluate the evidence presented by the disputing parties and make
decisions based on the WTO agreements. The AB is composed of seven individuals serving a
once-renewable four-year term but decides cases in divisions of three members. 2 Divisions
are selected randomly on a rotation basis to ensure equal representation among the members,
regardless of their nationality.3 These decisions are binding on the parties involved and have
the power to shape global trade by setting precedents and determining the legality of trade
practices.

So, it can be said that the WTO Dispute Settlement Body is an essential component of the
global trade system and plays a critical role in ensuring that the benefits of free and fair trade
are available to all. Through its dispute settlement procedures, the DSB helps to maintain the

1
Understanding on Rules and Procedures Governing the Settlement of Disputes or Dispute Settlement
Understanding (DSU), 1994.
2
DSU, 1994, Art. 17.1.
3
DSU Working Procedures, Art 6(2).

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stability and predictability of the global trading system, promoting economic growth and
prosperity for businesses and consumers worldwide.

B. Overview of Minority opinions in WTO Dispute Settlement

Minority opinions in the World Trade Organization (WTO) dispute settlement refer to
dissenting opinions expressed by one or more members of a panel or the Appellate Body in a
dispute resolution process. These opinions serve as an alternative view on the case and can
provide additional insights into the legal and policy implications of the dispute.

In the WTO dispute settlement system, the panel and the Appellate Body are responsible for
interpreting and applying the WTO agreements to resolve trade disputes between WTO
members. The panel consists of three experts appointed by the DSB, and the Appellate Body
consists of seven experts who hear appeals from the panel’s findings. 4 When a panel or the
Appellate Body reaches a decision, the majority view is reflected in the official report, while
minority opinions are attached as a separate document.

Minority opinions in WTO dispute settlement are not binding on the parties, but they can
have significant influence on the development of international trade law. These opinions can
provide new perspectives on the interpretation and application of the WTO agreements and
contribute to a better understanding of the legal and policy issues involved in the dispute.
Moreover, minority opinions can foster dialogue among WTO members and enhance the
legitimacy and credibility of the dispute settlement system by reflecting the diversity of
views on the case.

In conclusion, minority opinions in WTO dispute settlement play an important role in the
development of international trade law and the functioning of the WTO dispute settlement
system. By providing alternative perspectives on the case, minority opinions can contribute
to a more informed and nuanced understanding of the legal and policy issues involved in
trade disputes and enhance the overall effectiveness of the dispute settlement system.

C. Purpose of the Project

The purpose of the project on Minority Opinions in WTO Dispute Settlement would likely be
to examine the role and significance of dissenting opinions in the resolution of trade disputes

4
Supra Note 2.

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under the World Trade Organization (WTO) framework. The project would likely aim to
explore the following objectives:

 To understand the background and context of minority opinions in WTO dispute

settlement, including their origin and evolution.
 To examine the legal and policy implications of minority opinions, including their
impact on the development of international trade law and the stability of the WTO
dispute settlement system.
 To analyze the role and importance of minority opinions in enhancing the
transparency and accountability of the WTO dispute settlement process and in
fostering dialogue among WTO members.
 To evaluate the impact of minority opinions on the credibility and legitimacy of the
WTO dispute settlement system and its ability to resolve trade disputes in a fair and
impartial manner.

In conclusion, the purpose of this project on Minority Opinions in WTO Dispute Settlement
is to provide a comprehensive analysis of the significance of dissenting opinions in the
resolution of trade disputes under the WTO framework and to evaluate their role in
promoting the stability and predictability of the global trading system while also looking at
the factors that affect these minority opinions.

II. NATURE OF MINORITY OPINIONS IN WTO DISPUTE SETTLEMENT

A. Definition of Minority Opinion (u can rename it as why dissenting opinions are

important)

A minority opinion, in a legal or policy context, is a dissenting view expressed by one or

more members of a decision-making body that differs from the majority opinion. A
minority opinion is typically issued when a panel or a court is unable to reach a
unanimous decision on a case and one or more members of the panel or court express a
different view from the majority.
In the context of the World Trade Organization (WTO) dispute settlement, a minority
opinion refers to a dissenting view expressed by one or more members of a panel or the

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 Appellate Body in a dispute resolution process. The minority opinion provides an
alternative interpretation of the WTO agreements and the facts of the case, and it can
serve as a valuable source of information and insight into the legal and policy implications
of the dispute.
There are numerous arguments in support of use of dissent in judicial decisions. The very
first could be that dissent leads to better overall opinions because if the majority knows
that the minority will, or may, write its decision the majority is likely to work harder to
reach a clearer more thoroughly argued opinion that addresses the concern of the
minority.5
Second, dissents may serve signalling or corrective functions, including: providing
litigants and lower courts with a roadmap for how to distinguish the majority’s position;
proposing an alternative approach for subsequent jurists to consider; spurring all members
of the court to consider potential flaws in the majority’s reasoning; and signalling to the
legislature the need to respond to the majority’s approach.6
Minority opinion also help observers reach a conclusion as to the relative legitimacy of
the decision. Because if a decision is without dissent, then it seems more authoritative.
Hence, even though minority opinions are not binding on the parties involved in the
dispute, they can have significant influence on the development of international trade law
and the functioning of the WTO dispute settlement system. They can foster dialogue
among WTO members, enhance the transparency and accountability of the dispute
settlement process, and contribute to the overall effectiveness of the system.

B. Legal Basis for Dissent

This is an interesting portion to observe in the laws made for DS. Article 3(2) of the
Working Procedure says that the members of the division are expected to “make every
effort to take their decisions by consensus.”7 The members of appellate body are
encouraged to pursue consensus because it can reinforce the institutions legitimacy in the
eyes of the user. A reason for this could be that GATT 47 was very diplomatic in nature so
they needed to give opinions unanimously to show that those opinions should not be
challenged and are authoritative.

5
Ruth Bader Ginsburg, Remarks on Writing Separately,65 WASH. L. REV. 133 (1990).
6
CHARLES EVANS HUGHES, THE SUPREME COURT OF THE UNITED STATES 68 (1928).
7
Art 3(2), Working Procedure for the Appellate Review.

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 Article 17.11 of DSU specifies that opinions given are to be kept anonymous. 8 This
complicates the whole system of Dissent because the observers are left to guess who gave
the dissenting opinion and then decide the factors that are contributing to the dissent.
But since consensus is the rule while deciding a case, it is the author’s opinion that there
must be a lot of compromises because it is impossible to come to consensus given the
educational background, the environment in which they practised law and the status of
their country economically.
Another interesting point to observe is that nowhere does the word “dissent” appears in
the relevant statutes i.e. The Dispute Settlement Understanding and Working Procedure
for the Appellate Review. Such lack of definition in the official text makes the practice of
classifying these opinions confusing.
Article 3.2 of WP,9 for example, makes it clear that the AB can decide cases by majority
vote, but does not define or use the term “dissenting” opinion. So this leaves the area very
grey when it comes to understanding the role and legitimacy of dissent in the WTO. Some
documents use the term “separate” but this separate often refers to concurring opinions
that is disagreeing with the logic of the majority but coming to the same conclusion.
“Separate” has also been used to refer to decisions that have a dissenting opinion in them.

C. The Historical Background of Dissent in WTO Dispute Settlement

The dispute settlement process under the WTO framework is designed to reach a
consensus-based solution that reflects the majority view. As a result, minority opinions are
only expressed in exceptional cases where the panel or the Appellate Body is unable to
reach a unanimous decision on a case.
Till date 148 cases has been decided by the WTO Appellate body and only four of them
contain dissenting not concurring opinions. This ratio is way lower than any other
international organisation. Given the sheer amount of nations who are part of WTO and
WTO regulating 99% of the world trade, it seems impossible that in past 27 years the
appellate body only disagreed on 4 accounts.
This low ratio only shows the reluctance of WTO to come out of the comfort zone of
unanimous decisions which they have adopted from GATT. The GATT was, of course,
struggling to ensure that users would keep faith in the system, from which they could

8
DSU, 1994, Art. 17.11.
9
Working Procedure, Art 3.2.

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 simply walk away by not consenting with panel rulings. Unanimous decisions were a key
to this endeavour since panels likely found it difficult to persuade actual and potential
users mainly through majority decisions. 10 So the question comes how did this four cases
come to be? The author believes that these are the instances where the members of the
body felt strongly towards a subject and could not compromise with their opinions to
reach a conclusion. The four cases where we see a clear dissent are: US—Upland
Cotton,11 US—Zeroing (EC),12 EC—LCA13, and US—Washing Machines.14
The dissent in US—Upland Cotton concerns the consistency of export credits guarantees
provided by the United States with its WTO obligations.15
US—Zeroing (EC) concerns the question of whether there was sufficient nexus between
certain measures allegedly taken to comply with the original recommendation and the
recommendation itself so that they could come under the AB’s terms of reference. 16
The dissent in EC—LCA reflects a disagreement between members on whether the
Appellate Body had enough factual basis to complete its analysis on the displacement of
Boeing’s aircrafts. Here, the dissenter disagrees with the majority view that the division
can complete the analysis regarding displacement of nonsubsidized goods if, as conceded
in the Appellate Body report, it cannot properly define the relevant product market.17
In US—Washing Machines, the dissenting opinion tackles the issue of zeroing head on.
The dissenting member takes the view that zeroing was consistent in the exceptional
context of weighted average to transaction (W-T) methodology.18
All in all, it is very interesting to see that two of the cases deal with Zeroing. In the latter
part of the study we shall see what zeroing is and how controversial is the topic.

10
Peter Van Den Bossche, The Law and Policy of the World Trade Organization: Text, Cases and Materials,
(Cambridge University Press, Second Edition, 2008), pp. 305-306.
11
United States — Subsidies on Upland Cotton: Recourse to Article 21.5 of the DSU by Brazil,
WT/DS267AB/RW, adopted on 20 June 2008.
12
United States — Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing") —
Recourse to Article 21.5 of the DSU by the European Communities, WT/DS294/AB/RW, adopted on 11 June
2009.
13
European Communities and Certain Member States — Measures Affecting Trade in Large Civil Aircraft,
WT/DS316/AB/R, adopted on 1 June 2011.
14
United States — Anti-Dumping and Countervailing Measures on Large Residential Washers from Korea
WT/DS464, WT/DS464/AB/R, adopted on 26 September 2016.
15
Supra Note 11
16
Supra Note 12
17
Supra Note 13
18
Supra Note 14

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 III. THE ROLE OF MINORITY OPINION IN WTO DISPUTE SETTLEMENT

The WTO system has two tiers of dispute settlement. In the first instance, complaints are
heard by panels that are constituted on an ad hoc basis. Panels generally comprise three
individuals, though the parties can elect to have five panellists hear their dispute. 19 Following
the issuance of a panel’s report, the parties can opt to appeal. Appeals are heard by a standing
Appellate Body of seven individuals who sit in divisions of three. Appellate Body members
are appointed to four-year terms that may be renewed once, for a maximum time served of
eight years.

The WTO dispute settlement system is often referred to as being “quasi-judicial” rather than
judicial, because the system does not operate completely independently. Although reports of
the WTO Appellate Body and dispute settlement panels are looked to as interpretations of the
WTO Agreements, under the WTO’s structure, formally only the Ministerial Conference and
the General Council have the authority to interpret the covered agreements.20

As has been mentioned above it’s been seen that the Appellate Body actively discourages
dissent amongst its members. But we have to keep in mind that the WTO dispute settlement
system has achieved sufficient legitimacy that its standing would not suffer if the occasional
panellist or Appellate Body member expressed the disagreement that undoubtedly exists in
certain cases.

Despite their rarity, minority opinions can provide valuable insights into the legal and policy
issues involved in a dispute and can contribute to the overall transparency and accountability
of the dispute settlement process. They can provide an alternative interpretation of the WTO
agreements and the facts of the case, and can serve as a valuable source of information and
insight into the legal and policy implications of the dispute.

In addition, minority opinions can foster dialogue among WTO members and enhance the
overall effectiveness of the dispute settlement system. By providing a dissenting view,
minority opinions can stimulate debate and encourage a more thorough examination of the
legal and policy issues involved in a dispute. They can also increase public understanding of
the dispute settlement process and the legal and policy issues that it addresses.

19
Understanding on Rules and Procedures Governing the Settlement of Disputes art. 8.5, Apr. 15, 1994,
Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 1869 U.N.T.S. 401.
20
Marrakesh Agreement Establishing the World Trade Organization art. IX.2, Apr. 15, 1994.

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In conclusion, while minority opinions are not a common occurrence in the WTO dispute
settlement system, they can play a significant role in the resolution of trade disputes and the
development of international trade law. Minority opinions can contribute to the overall
transparency and accountability of the dispute settlement process, foster dialogue among
WTO members, and enhance the overall effectiveness of the system.

IV. ANALYSIS OF MINORITY OPINION IN WTO DISPUTE SETTLEMENT

Out of the four judgements pronounced by the WTO, two of them deal with Zeroing. So, we
will first understand what Zeroing is and despite the cases deciding on it again and again it
keeps rising up and remains controversial.

A. US- Zeroing (EC)21 and US- Washing Machine22

The subject matter of both these cases is zeroing and invoked the Anti-dumping Agreement.
The practice of “zeroing” has engendered a substantial amount of controversy in WTO
dispute settlement. There has been far more disagreement over issues relating to zeroing than
any other.

What is Zeroing:

An antidumping investigation is conducted by a domestic agency, which in the case of

the United States is the Department of Commerce. This agency determines whether or not
dumping has occurred by comparing the prices of the product in the country of import with
the “normal value” of the product in question. The pricing for the product in the domestic
market are typically considered to be the normal value. It is considered to be dumping when
the product in question is sold in the country of import at a price that is lower than the price
at which it is sold in the market from which it originated, and tariffs may be applied on any
further imports of the commodity. The process of zeroing is one of the methodologies
utilised in the calculation of dumping margins.

When zeroing is not used, sales that are made at higher prices in the importing market
than in the home market are assigned a negative dumping margin and can offset any
unprofitable sales assigned a positive margin. This occurs when the home market prices are
higher than the prices in the importing market. However, when zeroing is employed, sales
21
Supra Note 12.
22
Supra Note 14.

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that are made at higher prices than in the home market are simply classified as not dumped
and given a dumping margin of zero. This is because zeroing removes the distinction
between dumping and non-dumping. As a consequence of this, when zeroing is employed,
lucrative sales cannot be used to offset unprofitable sales, which is one of the primary
reasons why zeroing typically results in greater dumping margins.

Three potential ways to compare prices in the importing country with normal value:

“[T] he existence of margins of dumping during the investigation phase shall

normally be established on the basis of a comparison of a weighted average normal value
with a weighted average of prices of all comparable export transactions or by a comparison
of normal value and export prices on a transaction-to-transaction basis. A normal value
established on a weighted average basis may be compared to prices of individual export
transactions [under certain elaborated circumstances].”23

Therefore, it is conceivable to use zeroing in each of these three methodologies:

comparisons of weighted averages to comparisons of weighted averages (WA-WA),
comparisons of transactions to comparisons of transactions (T-T), and comparisons of
weighted averages to comparisons of transactions (WA-T). In addition, antidumping cases go
through a number of stages, such as the initial investigation, annual reviews of companies
that have already been found to have engaged in dumping, sunset reviews during which the
agency considers whether or not to terminate an antidumping order, and new shipper reviews
for exporters who were not investigated during the initial investigation. There is also the
possibility of utilising zeroing in each of these stages as well. Therefore, one can utilise
zeroing in a wide variety of different settings depending on their needs.

The Appellate Body has chosen to adopt a step-by-step approach to the issue of zeroing.
They have been analysing the applications of the methodology that have been contested, but
they have refrained from making a blanket statement that zeroing could never be allowed. As
a direct consequence of this, numerous objections have been raised concerning various
applications of zeroing in a wide variety of settings.

The practise of zeroing, which typically results in the imposition of higher antidumping
duty rates as was previously indicated, is hugely controversial in international trade circles.
On the other hand, there is a great deal of contention on the extent to which the WTO ADA
forbids the practise of zeroing.
23
Anti-Dumping Agreement, Art. 2.4.2.

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So, when it comes to WTO, the WTO has found that zeroing can result in the calculation of
artificially high anti-dumping margins, which can result in higher duties being imposed on
imports and can harm trade relations between WTO members. The WTO has therefore called
on its members to refrain from using zeroing in anti-dumping investigations and to calculate
anti-dumping margins in a manner that is consistent with the WTO Anti-Dumping
Agreement.

In conclusion, the WTO has taken a clear stance against zeroing in anti-dumping
investigations and has called on its members to comply with the provisions of the Anti-
Dumping Agreement in this regard. The goal is to ensure that anti-dumping margins are
calculated in a fair and transparent manner, which will promote a level playing field for trade
between WTO members.

US- Washing Machine.24

Anti-dumping and countervailing measures imposed by the United States on goods from
South Korea violated WTO rules, according to the Appellate Body of the WTO Dispute
Settlement Body (DS464). The Panel identified a violation in the application
of countervailing duties as well, however, upheld the decision of the Panel on most issues
related to anti- dumping measures. In accordance with applicable WTO rules, anti-dumping
duties shall be applied to the extent necessary to eliminate dumping which causes injury to
domestic producers, and the countervailing duty shall be applied in the amount necessary to
offset subsidization.

In addition, the anti-subsidy investigation established that the injury to domestic industry in
the United States had been inflicted due to the subsidies for three manufacturers in Korea -
they had been exempt from income tax, subject to certain conditions.2 On this basis the
United States imposed countervailing duties on washing machines originating in Korea.

The Dispute Settlement Body for the first time acknowledged that the practice of zeroing is
unacceptable in establishing the target dumping as well. Thus, the decision prohibits the US
agencies, engaged in anti-dumping investigation, the use of zeroing as such, and accordingly,
reduces the possibility of the imposition of anti-dumping duties on imported goods.

Comparing a weighted average normal value to the export prices or constructed export prices
of individual transactions (Average-to-transaction methodology) (A-T).

24
Supra note 14

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South Korea has challenged the use of the A-T methodology by the US authorities. The
Appellate Body of the WTO and the Panel supported Korea’s argument that the mere fact of
the price difference does not indicate a target dumping. To establish the sample of export
prices that differs significantly from the others, the following factors are to be compared: the
prices for different purchasers, the prices in different regions, or the price at different periods
of time. The practice of zeroing, however, leads to the fact that the rate of the imposed anti-
dumping duty exceeds the margin of dumping and violates Article 9.3 of the Agreement on
Implementation of Article VI of the GATT, which provides for implementation of a
comparison based on the prices of all export transactions in a certain period. The state may
encourage its exports by providing subsidies by using such subsidies.

The Appellate Body upheld the decision of the Panel, stating that USA calculations of anti-
dumping and countervailing duties were in breach of WTO rules. If such subsidies cause
serious injury to domestic industry in the importing country, the latter is authorized to take
appropriate counter-measures to neutralize their negative impact, in particular, it may
introduce a countervailing duty on imports of the products.

Dissenting Opinion:

The dissenting Member considered that allowing an investigating authority to conduct

zeroing within the pattern under the second sentence of ADA Art. 2.4.2 is a permissible and
more defensible interpretation under Art. 17.6(ii) thereof.

US- Zeroing (EC)25

The EU filed a challenge against the determinations that the United States had made under
Section 129 in order to carry out the DSB’s recommendations and rulings. In addition, the
European Union raised objections to a few reviews that had been carried out by the United
States as part of the normal, continuous life of the anti-dumping orders that had been raised
by the European Union in the first place.

In particular, the EU observed that there was a gap between the conclusion of the reasonable
period of time for implementation (the “RPT”) and the adoption of some of the Section 129
determinations through which the United States sought to implement the WTO rulings. The
RPT had been referred to as the “reasonable period of time for implementation” earlier in this
article.

25
Supra Note 12.

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The United States of America maintains that these further reviews should not be regarded as
“steps taken to comply” with the decisions made by the DSB.

AB’s Report on Itself During the course of the appeal, a number of concerns were voiced.
Most importantly, the EU argued the Panel erred in finding that subsequent reviews that
predated the adoption of the recommendations and rulings of the DSB did not fall within its
terms of reference, because they did not have a sufficiently “close nexus” with the original
measures at issue and the recommendations and rulings of the DSB.

In addition, the EU questioned a number of other aspects of the Panel’s findings, such as the
Panel’s reluctance to make a judgement in respect of actions taken to comply after the end of
the RPT but before the request for establishment of an implementation Panel was made by
the EU. It further disputed the findings of the Panel with regard to the absence of disciplines
with regard to the “all others” rates where all margins are established based on zeroing or are
considered to be of a negligible amount.

The United States of America contested a number of the Panel’s findings, the most important
of which was the “close nexus” test that was developed by the Panel. This test was the basis
for the inclusion of a significant number of reviews that had not been contested in the initial
dispute because they post-dated the original request for establishment. The United States of
America also contested other aspects of the Panel’s findings. The Appellate Body Report The
decisions of the Panel were overturned because the Appellate Body agreed with the EU’s
position on a significant number of allegations.

Appellate Body also dealt with a number of other issues that were on appeal, such as sunset
reviews; the implementation gap between the end of the RPT and actual compliance; the
challenge of aspects of a measure that were part of the original measure but were not
challenged at the time of the original dispute; and the limits imposed by the AD Agreement
in respect to the “all others” rate under Article 9.4 of the AD Agreement.

The position of Dissent:

Because it was the AB that used a second compliance panel and “close nexus” to avoid
incentivizing recalcitrant members from changing their implementing measures while
procrastinating implementation, it is more difficult for the dissent to adhere to the
institutional mandate in US—Zeroing (EC). This is arguably a move that lies beyond the
ambit of DSU.

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It is possible to see the deployment of a second compliance panel by the AB in the context of
a single dispute as judicial overreach that goes beyond the parameters of the DSU as
prescribed. In point of fact, measures that take longer than the acceptable amount of time to
implement cannot be the subject of a compliance panel; rather, they must be the subject of an
altogether new panel that would permit countermeasures in the event that the measures are
not implemented. There is only one period of time that can be considered reasonable, hence
there can only be one compliance panel that discusses all of the measures that were
implemented during this time. In this light, the use of “close nexus” by the AB was a
manoeuvre to demonstrate judicial pragmatism and avoid potential issues of legality
concerning possible countermeasures. “Close nexus” refers to the condition that measures
taken outside of a reasonable period of time are closely related to those taken during the
implementation period.

B. EC- LCA Case26

Subsidies allegedly granted by the European Communities and certain EC member States to
Airbus large civil aircraft was the matter here. More specifically the large civil aircraft
developed, produced and sold by Airbus.

The matter is now moot; it has been resolved. But once more, despite the fact that
“completing the analysis” is now commonly done, this practise cannot be reconciled with the
letter and spirit of the DSU for one very straightforward reason: whenever the AB completes
its analysis, it denies the parties to a dispute the opportunity to have their dispute adjudicated
in two separate instances.

The second component is the maturity of the case law, which suggests that the less mature a
dispute’s relevant case law is, the more a dissenting opinion can contribute to a meaningful
judicial discussion of an issue. Case law maturity is also related to the first criterion since an
opinion that is contrary to an established and long-standing majority view is more likely to be
interpreted as judicial activism.

C. US- Upland Case27

26
Supra Note 13
27
Supra note 11.

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The dissent in this case is most likely adhered to the institutional mandate despite it being a
minority opinion.

The subject matter here was the US agricultural “domestic support” measures, export credit
guarantees and other measures alleged to be export and domestic content subsidies. The
wording of the challenged provision i.e. Article 10.2 of SCM clearly supports the dissenter,
who argues that the development of disciplines is a matter for the future:

“Members undertake to work toward the development of internationally agreed

disciplines to govern the provision of export credits, export credit guarantees or insurance
programmes and, after agreement on such disciplines, to provide export credits, export
credit guarantees or insurance programmes only in conformity therewith.”28

The provision leaves us with no doubt that at the moment when the Uruguay round
agreements had been concluded, there was no agreement on how to treat export credits. Since
the majority opinion could not point to subsequent actions to this effect, the only logical
conclusion was that there was no international discipline on export credits, which is also
what the dissent stood for. It is thus astonishing that the (majority of the relevant division of
the) AB, renowned for its attentiveness and attachment indeed to textualism, “saw” a legal
discipline in this provision.

The dissent here faced an immature case law, unlike the three other cases discussed above.
As previously stated, the AB had to face the question of consistency of export credit
guarantees, export credits, and insurance with Article 10.2 of the Agreement on Agriculture,
and the ensuing prohibition embedded in Article 3.1(a) of the SCM Agreement. This was the
first case of its kind, previously unadjudicated. Although the scope and definitional elements
of a subsidy were largely decided in US—FSC and Canada—Dairy, 29 their applicability to
the three measures set forth in Article 10.2 had never been discussed. Therefore, it appears
fair to conclude that there was no maturity in case law when this dissent was issue.

V. THE FACTORS AFFECTING THE DISSENTING OPINIONS

It can be well understood by the laws that dissenting opinions are not appreciated by them.
The possible reason behind this is that the WTO wants to come as authoritative and the
dissenting opinion will weaken its position. So even though dissenting on a matter questions
28
Subsidies and Countervailing Measures, 1996, Art 10.2.
29
US—FSC at §136, and the AB report on Canada—Dairy at §87.

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the integrity of the institution, the factors compelling a member to dissent must be quite
forceful.

I, too an extent agrees with Petros C. Mavroidis and Evan Y. Kim classification on factors
that could be leading factors for members to dissent. It could be the governmental pressure,
personal gains, legal education and background, the background of the country they are
coming from. These factors dictate the manner in which Appellate Body members approach
the legal precedence, principles and the application of these principles.

Their own Personal Interests

Some members of the AB may be more likely than others to provide a sympathetic ear to the
voices of their individual governments and rule in favor of them if they are influenced by
nationalistic feelings or personal interests. This could be the case if they have a personal
stake in the outcome.

In accordance with the terms of Article 17.3 of the DSU, 30 this obviously should not be the
situation in principle. But AB members may still be prone to ignoring this legislative
guidance, particularly if the governments that nominated them have a significant amount of
control over the employment opportunities available to them when they leave the AB. There
has never been an instance in which a WTO member nominated a foreigner, despite the fact
that the DSU does not ban such conduct. After all, in the WTO, member nations have always
nominated their own people to the AB through formal proposals.

Members of the AB are, of course, held to the expectation that they will evaluate the
legitimate interests of their own countries in addition to those of other nations.

In spite of the fact that the rule was written with the intention of safeguarding the system, the
fact that opinions are shielded from identification makes it easier for members of the AB who
are predisposed to act in a “patriotic” manner to advance their own interests without
disclosing their true motivations. Having said that, favouritism is less significant in
circumstances where the AB member’s intellectual leanings correspond with his or her
country’s interest. In these cases, the home country will be content with the judgements
regardless of the expectations it has for the AB member. According to Elsig and Pollack, this
is probably the reason why the nomination process in the United States entails asking
comprehensive questions about where a candidate stands on a given topic. 31 However,
30
DSU, 1994, Art 17.3.
31
Elsig, Manfred, and Mark Pollack. 2014. Agents, Trustees, and International Courts: Nomination and
Appointment of Judicial Candidates in the WTO Appellate Body, European Journal of International Relations,

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favouritism does make a difference in situations where a member of the AB’s intellectual
leanings are in conflict with the interests of his or her country.

The rationale of Dissent having more value than the majority decision

The dissents of the AB have the potential to become important as a result of their ability to
shape future case law and garner public notice. As a result of the ever-increasing complexity
and breadth of the WTO regime, there is always the possibility that dissents, both those that
have already been issued and those that are yet to be issued, may contribute to the
overturning of previous rulings or become widely known due to the fact that they touch on
the most contentious aspects of trade issues. Until such time as the body of case law achieves
a level of maturity that significantly reduces the number of times presiding AB members
disagree with one another, the anticipated impact could be expected to materialize.

Within the framework of our sequential game, the anticipated impact of dissents performs a
function that is analogous to that of the institutional mandate in that it directs the influence of
IR in the same way. The more importance that AB members place on the institution’s or their
own intellectual integrity, the more uneasy they will feel about the possibility that their
dissents, which go against the direction in which they believe their intellectual leaning should
go, will have an impact on future case law in the form of an increase in the IR penalty.
Members of the AB who see of themselves as “supporting” their country would probably
prefer it if their individual opinion remained relatively unknown to the public. In point of
fact, the most ideal situation for these AB members would be for their nominated country to
be the only one to receive notification that they had delivered. They would rather hope that
the very existence of the dissent would be a strong enough indication for their countries that
they sufficiently “helped.” However, it is highly unlikely that even the members of the AB
who are considered to be the most “helpful” will compromise their anonymity in order to
achieve this effect.

The maturity of case law

The question of whether or not case law, at the time that a dissenting opinion was produced,
had reached a stage of evolution where the same response had been habitually given to the
same subject, irrespective the difference of facts, is at the heart of the concept of “maturity.”
There are also multiple trade issues whose case law has become quite mature, but it would

20: 391-415.

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still be hasty to assume that this factor always prevents AB members from dissenting,
especially when their anonymity (at least to the public) is guaranteed.

The term of the Judge

The fact that Appellate Body Members are in their first or second term can change the entire
ruleset depending on the circumstances of the sequential game. As a result of the fact that
their reappointment is no longer at issue, judges who are serving for the second time likely
have less to gain, on average, from “helping” the nominating country. Some second-term
judges may not hope for Nominating Country’s “assistance” for one of two reasons: either
they already have post-WTO work lined up, or they have made the decision not to receive
personal favors from the government. These Appellate Body Members would have much less
to gain from “helping” Nominating Country and because they would not be constrained by
reappointment-related aspirations, they might be more inclined to issue opinions that are
consistent with their intellectual leanings. On the other hand, judges whose hopes for the
future are tied closely to working with Nominating Country will continue to do so even
during their second terms in office. When seen in this perspective, it should not come as a
surprise that judges who are serving either their first or second term have produced
dissenting decisions.

The Education and their Expertise

The AB members’ jurisprudential background including legal education and career can also
shed light on their likelihood of issuing dissent, albeit less directly than the four
aforementioned factors. Article 17.3 of DSU states that:

The Appellate Body shall comprise persons of recognized authority, with

demonstrated expertise in law, international trade and the subject matter of the covered
agreements generally. Here, expertise in international trade or the covered agreements is not
necessarily confined to jurisprudential expertise.32

Though a legal license or training is not required, the AB members who ruled in the dissent
cases are all licensed lawyers with extensive legal backgrounds. It is also notable that
nationality and education do not necessarily coincide. A Japanese lawyer trained in the US
will carry the approach he or she was taught in the US school.

32
DSU, 1994, Art 17.3.

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AB Members’ jurisprudential background can influence the dissent: the degree of guilt or
discomfort upon “helping” Nominating Country out. If AB Member hails from a jurisdiction
whose judges infrequently dissent or downplay the importance of dissenting opinions, his or
her discomfort with dissenting in the WTO would be significant. On the flipside, if AB
Member originates in a jurisdiction that acknowledges the importance of dissents, he or she
would feel more inclined to issue similar opinions even without prior experience.

Out of the four dissents produced till now, the judges have been 3 from US, 2 from India and
one each from Brazil, EU, Mexico, South Africa and the Philippines. Now if we look at the
jurisdiction of these countries, dissenting opinions in US Supreme Court are frequently
issued and highly appreciated. These opinions later influence future decisions, and often
garner a great deal of public attention, largely because “the arguments and framing
perspectives employed by dissenting justices… provide reporters with the opportunity to
emphasize conflict and controversy.”33

Brazil and Mexico, for example, have unique legal structures that undermine the influence of
dissenting opinions. Although dissents are issued by the Brazilian Supreme Court, they are
written individually and simultaneously without discussion among the justices. The end
result, according to experts, is that the Court produces no formally unified majority opinion,
as dissents resemble “defeated opinions” that do not challenge the majority. Consequently,
they usually neither influence future decisions nor attract public attention. The effects of the
Mexican Supreme Court rulings are “inter partes, as opposed to erga omnes, meaning that
despite the declaration of unconstitutionality of a norm in a given case, it remains valid for
the rest of the population.”34

In Japan and the Philippines, though dissenting opinions are commonly issued by their
respective highest courts, they have seldom been adopted by future majority opinions,
indicating their less “canonical or prophetic” nature compared to the US counterparts. India,
followed by South Africa, appears to be the jurisdiction with the least influential dissenting
opinions, as the rate of disagreement in the Indian Supreme Court, especially in the most
recent decades has stayed very low. In the EU, the European Court of Justice does not allow
dissents: in its sixty years of existence, it has remarkably never issued a dissenting opinion.

So these practices in jurisdictions show that a member from US would be more comfortable
in issuing dissent as compared to its counterpart who are from Mexico or EU.
33
Supra Note 5.
34
2016 Global Review of Constitutional Law, I Connect-Clough Center, p. 131.

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 VI. CONCLUSION

In conclusion, the role of minority opinions in WTO dispute settlement is a critical aspect of
the organization's efforts to maintain a fair, impartial, and transparent system for resolving
trade disputes between its member states. While the goal of WTO dispute settlement is to
reach a consensus and issue a unified ruling, dissent plays an important role in ensuring that
all perspectives are considered and that the final decision is based on a robust and thorough
analysis of the facts and legal arguments.

Encouraging dissent in WTO dispute settlement is particularly important given the

organization's role as a multilateral platform. The diversity of views and experiences
represented by WTO's 164 member states means that minority opinions can bring valuable
insights and perspectives to the table, helping to ensure that the final decision is informed
and well-reasoned. By fostering an environment in which dissenting opinions are welcomed
and respected, WTO can promote greater transparency, accountability, and legitimacy in its
dispute settlement processes.

Moreover, allowing for dissenting opinions can also encourage member states to engage in
constructive dialogue and work towards finding mutually acceptable solutions to trade
disputes. This can help to build trust and confidence in the WTO dispute settlement system
and encourage members to pursue negotiations and cooperation in a timely and effective
manner.

In order to encourage dissent and promote a more inclusive and effective dispute settlement
process, WTO should consider taking steps to promote greater transparency and
accountability in its decision-making processes. For example, WTO could provide greater
access to information and documents related to dispute settlement cases, and encourage the
public release of minority opinions where appropriate.

Additionally, WTO could work to ensure that its panelists and Appellate Body members are
selected based on their expertise, independence, and impartiality, and that they are provided
with the necessary resources and support to perform their duties effectively. By promoting a
more diverse and representative panel and Appellate Body, WTO can help to ensure that all
perspectives are considered and that the final decision is based on a robust and thorough
analysis of the facts and legal arguments.

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In conclusion, minority opinions play a vital role in WTO dispute settlement and should be
encouraged and respected. By promoting a more inclusive and effective dispute settlement
process, WTO can help to build trust and confidence in its system and ensure that its
decisions are based on a robust and thorough analysis of the facts and legal arguments. With
the continued growth of international trade and investment, the role of WTO dispute
settlement in resolving trade disputes and promoting a fair and open trading system will only
become more important, making it all the more essential to ensure that its processes are
effective, transparent, and accountable.

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 BIBLIOGRAPHY

Agreements

 Understanding on Rules and Procedures Governing the Settlement of Disputes or

Dispute Settlement Understanding (DSU), 1994.
 Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr.
15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex
2.
 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994.
 Anti-Dumping Agreement.
 Subsidies and Countervailing Measures, 1996.

Articles

 Ruth Bader Ginsburg, Remarks on Writing Separately,65 WASH. L. REV. 133

(1990).
 CHARLES EVANS HUGHES, THE SUPREME COURT OF THE UNITED
STATES 68 (1928).
 Peter Van Den Bossche, The Law and Policy of the World Trade Organization: Text,
Cases and Materials, (Cambridge University Press, Second Edition, 2008), pp. 305-
306.
 Elsig, Manfred, and Mark Pollack. 2014. Agents, Trustees, and International Courts:
Nomination and Appointment of Judicial Candidates in the WTO Appellate Body,
European Journal of International Relations, 20: 391-415.
 2016 Global Review of Constitutional Law, I Connect-Clough Center, p. 131.

Cases

 United States — Subsidies on Upland Cotton: Recourse to Article 21.5 of the DSU by
Brazil, WT/DS267AB/RW, adopted on 20 June 2008.
 United States — Laws, Regulations and Methodology for Calculating Dumping
Margins ("Zeroing") — Recourse to Article 21.5 of the DSU by the European
Communities, WT/DS294/AB/RW, adopted on 11 June 2009.

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  European Communities and Certain Member States — Measures Affecting Trade in
Large Civil Aircraft, WT/DS316/AB/R, adopted on 1 June 2011.
 United States — Anti-Dumping and Countervailing Measures on Large Residential
Washers from Korea WT/DS464, WT/DS464/AB/R, adopted on 26 September 2016.

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