A Comment on Henry Gao, ‘Dictum on Dicta: Obiter Dicta in WTO Disputes’

Sacerdoti, Giorgio

doi:10.1017/s1474745618000216

Cited by 4 publications

(3 citation statements)

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“…In some DSB meetings, the US also voiced other 'systemic concerns' relating to the functioning of the AB, such as criticism of a Korean AB member for having raised issues ('obiter dicta') that, in the view of the USA, had not been necessary for the resolution of the dispute. 10 These broader 'US concerns with WTO dispute settlement' and with 'the approach by the AB' have been summarized in the President's 2018 Trade Policy Agenda 11 by focusing on the following crosscutting issues:…”

Section: The Us Attack On the Wto Legal And Dispute Settlement Systemmentioning

confidence: 99%

How Should WTO Members React to Their WTO Crises?

Petersmann

2019

World Trade Review

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Since 2017, the United States (US) and other World Trade Organization (WTO) members have been violating their legal duties and democratic mandates given by national parliaments to maintain the WTO Appellate Body (AB) as legally prescribed in Article 17 of the WTO Dispute Understanding (DSU). Article 17 defines the AB as being ‘composed of seven persons’, with vacancies being ‘filled as they arise’. Sections 2 and 3 explain why none of the reasons offered by the US for its blocking of the (re)appointment of AB candidates – on grounds unrelated to the personal qualifications of the candidates – can justify the illegal disruptions of the WTO legal and dispute settlement system. EU trade diplomats must exercise leadership using the existing legal powers and duties of the WTO Ministerial Conference and General Council under Article IX WTO – if necessary, based on ‘a majority of the votes cast’ – to complete the WTO selection procedures for filling AB vacancies and protect the AB as legally defined in Article 17 DSU. Sections 4 and 5 explain why the competition, social policy, and rule-of-law principles underlying European ‘ordo-liberalism’ offer coherent strategies for overcoming the WTO governance crises by limiting hegemonic abuses of both US neo-liberalism and Chinese state-capitalism.

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Section: The Us Attack On the Wto Legal And Dispute Settlement Systemmentioning

confidence: 99%

How Should WTO Members React to Their WTO Crises?

Petersmann

2019

World Trade Review

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“…4.17). For a discussion of the concept of obiter dicta in the context of WTO dispute settlement, see Gao (2018) and Sacerdoti (2018) current appointment crisis, it was also one of the major reasons why the US had vetoed the reappointment of Appellate Body member Chang in 2016. 191 For a better understanding of the US criticism, we will briefly set out three of the instances that the US considers to be illegitimate advisory opinions.…”

Section: Advisory Opinionsmentioning

confidence: 99%

Crisis at the WTO: Is the Blocking of Appointments to the WTO Appellate Body by the United States Legally Justified?

Lehne¹

2019

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“…111 In the WTO context, it is remarkable that comparatively few voices should have highlighted the rather strong textual argument present in Article 3.2 of the DSU: 'The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law'. 112 In this context, it is, once again, clear that dicta have as much potential to shape the law as do rationes-or even more. The first reason is that obiter statements lend themselves to greater abstraction and generality and tend to have a more rule-like quality, cosmetically a well as substantively-an aspect that will be discussed in the next section.…”

Section: Against Judicial Minimalism: Positive Externalities Of Dictamentioning

confidence: 99%

‘Mirages of an Intellectual Dreamland’? Ratio, Obiter and the Textualization of International Precedent

Ridi

2019

Journal of International Dispute Settlement

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In recent years, various actors—states, judges and commentators alike—have taken issue with the way international adjudicators have approached precedent. Criticism has been levelled, in particular, to the phenomenon of ‘obiter dicta’ (observations that, though not necessary for the decision, are nonetheless included in it), which have been found to amount to a symptom of bad decision-making or, from the perspective of the adjudicator using them, bad precedent following. This article addresses this debate by resituating the issue within a more grounded discussion of the theory of precedent in international adjudication, providing an in-depth theoretical and empirical analysis of the practice, and seeks to frame it within in the broader phenomenon of ‘textualization’. By doing so, it strives to clarify the use, authority and ultimate function of obiter dicta, as well as of precedent in general, in international adjudication.

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A Comment on Henry Gao, ‘Dictum on Dicta: Obiter Dicta in WTO Disputes’

Cited by 4 publications

References 1 publication

How Should WTO Members React to Their WTO Crises?

How Should WTO Members React to Their WTO Crises?

Crisis at the WTO: Is the Blocking of Appointments to the WTO Appellate Body by the United States Legally Justified?

‘Mirages of an Intellectual Dreamland’? Ratio, Obiter and the Textualization of International Precedent

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