Canadian Periodicals: Canada - Certain Measures Concerning Periodicals Conclusion: The Role of the Appellate Body in the New Legalism In conclusion it is pertinent to inquire into why the Appellate Body appears to be more trade-legalistic than the Panel in order to be able to predict future jurisprudential trends in both entities. Two vital differences, which should be noted about both bodies, are there establishment and composition. The Panels are established ad hoc, only by the DSB and only at the request of member state except the DSB by consensus refuses the request.117 Therefore beside there temporal existence, the Panels are the creation of a political process; it is unavoidable that Panelists will appreciate the fact that political considerations much more than legal obligations underlie their establishment, and that member states expect some pragmatism in their rulings. Also, since their authority is limited to the dispute at hand, they are likely to be more concerned about the expeditious resolution of that dispute than the development of the jurisprudence of the Panel system. So one can except that often times, logical sequence, thorough analysis and doctrinal consistency may assume a secondary place in the proceedings of the Panel as in this case.118 On the other hand, the WTO Appellate Body is established as a standing institution.119 This relative permanency dictates innate interest in the judicial clarity, doctrinal consistency, and concern for future consequences of illogical rulings and overall development of a rational body of jurisprudence. Second, composition of Panels is to be drawn from a list of "well-qualified governmental and/or non-governmental individuals"120 whereof "Members may periodically suggest names of governmental and non-governmental individuals for inclusion on the indicative list"121. One can anticipate that WTO Panels will be made up of serving governmental officials or retired public servants (as the non-governmental individuals). Either way, the effect on the rulings of the Panel is likely to be the lack of painstaking analysis that is characteristic of judicial proceedings. Again, the situation with the Appellate Body is dramatically different. The DSB appoints Panelists for a four year term with option to reappoint for another four years, and member states have no apparent input in that process.122 However, most important is the requirement that "the Appellate Body shall comprise persons of recognized authority, with demonstrated expertise in international trade law and the subject matter of the covered agreements generally. They shall be unaffiliated with any government"123 (emphasis supplied). This ensures that only distinguished jurists and academics can sit in the Appellate Body, and these are classes of trade legalists who are professional interested in the jurisprudential development of international trade law. It is logical to conclude that because of the relative permanence and independence of the Appellate Body, it is better positioned and more credible to perform the role of the judicial mechanism of the WTO and the forum for the development of international trade jurisprudence in the future. 117 See Article 6 of the DSU 118 This is most evident in the Panels illogical conclusion that imported split-runs and domestic non-split-runs are like products on the basis of analysis that suggested that they "can be like products". See page 16. 119 See Article 17:1 of DSU 120 See Article 8:1 of DSU 121 Id, Article 8:4 122 Id, Article 17:2 123 Id, Article 17:3
	© 1990-2004 European Journal of International Law All comments and suggestions should be sent to webmaster This site is part of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European Law at the European University Institute. This file was last modified: Tuesday, October 14, 2003 12:45PM