On The Principle Of Judicial Economy In The Dispute Settlement Of The WTO

Judicial economy is a principle or doctrine that has been broadly used and developed from the practice of dispute settlement in the World Trade Organization(WTO),which,generally speaking,stands for the proposition that in order to save judicial resources and increase the efficiency of dispute settlement,WTO panels and the Appellate Body do not need to rule on every claim and issue being raised,but instead,only to rule on those necessary to settle the dispute and leaving the rest of the claims or issues unanswered.However,because the legal system of the WTO does not stipulate the principle of judicial economy,there are many problems with the application of this principle in practice.The basic view of this dissertation is:in order to improve the efficiency of dispute settlement or protect the democratic legitimacy of the WTO dispute settlement mechanism,WTO panels and the Appellate Body sometimes may or even need to apply the principle of judicial economy;however,this can not be achieved by sacrificing justice(both substantial justice and procedural justice).To demonstrate this basic point of view,the dissertation adopts a progressive structural arrangement.In addition to the Introduction(Chapter 1)and the Conclusion(Chapter 7),the main contents of the remaining chapters and the issues to be demonstrated are as follows:Chapter 2 discusses the connotation and nature of the principle of judicial economy to answer the question of what the principle of judicial economy is.There are principles of judicial economy in the broad sense and the narrow sense,and the core of the concept is the efficient use of judicial resources.The principle of judicial economy in the broad sense refers to a principle that enhances the operational efficiency of the judicial bodies and the judicial system to avoid wasting the time and resources of the judicial bodies.In the dispute settlement of General Agreement on Tariffs and Trade(GATT)or the WTO,the principle of judicial economy can be defined as follows:in order to save judicial resources,increase the efficiency of dispute settlement and avoid some knotty issues,WTO panels and the Appellate Body do not need to rule on every issue and claim being raised,but instead,only rule on those necessary to settle the dispute and leaving the rest of the claims or issues unanswered.As for the nature,judicial economy belongs to a legal principle.This is mainly because the principle of judicial economy in the broad sense conforms to the definition of "legal principle" in jurisprudence,and the principle of judicial economy in the broad and narrow sense is more in line with the characteristics of legal principles.Second,from the perspective of the effects of application in practice,the principle of judicial economy is a legal tool for avoiding knotty issues.This chapter is the basis of the dissertation,because only by clarifying the concept and nature of the principle of judicial economy can we conduct a further discussion.Chapter 3 discusses the legal basis for the application of the principle of judicial economy,and thus demonstrates that GATT panels,WTO panels and the Appellate Body are entitled to apply the principle of judicial economy and pave the way for further discussion on how to apply the principle of judicial economy.In the dispute settlement of the WTO,there are mainly three legal bases for applying the principle of judicial economy,i.e.,treaties,general principles of law,and the jurisprudence of other international judicial bodies.Among them,treaties are the most important legal basis of this principle.Whether it is Article 11 of the Understanding on Rules and Procedures Governing the Settlement of Disputes(DSU)which is about the functions of panels,or Article 3.7 of the DSU which is about the purposes of the dispute settlement mechanism,or Article 9 of the Marrakesh Agreement Establishing the World Trade Organization(WTO Agreement)and Article 3.9 of the DSU which reflects the idea of power separation,none of these articles clearly stipulates that panels are authorized to exercise judicial economy.For the Appellate Body,its scope of applying the principle of judicial economy is limited to the "sub-issue(s)" or appeals which are covered by the first-level issue.Furthermore,the exercise of judicial economy by the Appellate Body shall not contravene the purpose of securing a positive solution to a dispute.In addition,the principle of judicial economy is a"general principle of law" in international law,because we can find the principle of judicial economy both in the domestic legal system and in the domestic judicial practice.At the same time,the judicial decisions of other international judicial bodies prove the existence of the principle of judicial economy.Therefore,even if GATT and WTO covered agreements do not explicitly stipulate the principle of judicial economy,panels and the Appellate Body are entitled to apply this principle in the dispute settlement.Chapter 4 discusses the standards of applying the principle of judicial economy.These standards could be divided into two categories,i.e.,mandatory standards and optional standards.Mandatory standards are those that must be applied by law and cannot be changed or excluded by individual wills.They mainly include the following four types of standards:(1)the standards of excluding application;(2)the formal standard;(3)the standard of the purpose;and(4)the standard of necessity.Optional standards are some guiding rules,which means that panels and the Appellate Body may decide whether to act according to these standards with the consideration of the purpose of the dispute settlement mechanism.The author divides the optional standards into two catagories,i.e.,the standard of absorption and the implicit standard.The implicit standard stands for the proposition that a panel or the Appellate Body tends to exercise judicial economy with respect to sensitive issues(including but not limited to political issues).And the "mixed submissions" by third parties may help to identify the sensitive issues.The "standard of absorption" is established according to the connotation of the "rule of absorption"(in the broad sense and the narrow sense).When applying the standard of absorption to exercise judicial economy,a panel or the Appellate Body may use the following rules or methods to determine which issue absorbs other issues:(1)lex specialis derogat generalis;(2)substantive issues absorb procedural issues(this method is mainly used by the Appellate Body);(3)general claims absorb alternative claims;(4)logical sequence.Of course,no matter what kinds of standards are adopted,the purpose of positively solving disputes must not be contravened.Chapter 5 deals with the improper application of the principle of judicial economy and the corresponding remedy measures.The inappropriate application of the principle of judicial economy mainly means that the application of the principle of judicial economy by a panel or the Appellate Body is not consistent with the standards of applying this principle.If the mandatory standards(especially the standard of purpose)are violated,a panel or the Appellate Body is in fact violating the provisions of the DSU,which constitutes the "false judicial economy".The essence of false judicial economy is to ignore the justice because of the excessive pursuit of efficiency.The false judicial economy is mainly manifested as the violation of the provisions on the purpose of the dispute settlement mechanism and the functions of panels provided in the DSU.Besides,a panel or the Appellate Body may inappropriately exercise judicial economy by violating the optional standards.For instance,the difference in the application of the principle of judicial economy with regard to a similar or the same issue may leave people with the impression of injustice that different treatments are given under the same circumstance.There are two kinds of measures to remedy the negative consequences resulted from the improper application of judicial economy:firstly,to complete the analysis by the Appellate Body;secondly,to use the Article 21.5 procedure as a remedy measure.This chapter aims to prove that falsely exercising judicial economy may lead to the negative result of not positively settling a dispute,and the current relief measures,i.e.,to complete the analysis and the Article 21.5 procedure,have some limitations.And through the discussion in this chapter,the dissertation will turn to discuss how to prevent the negative outcomes of improper exercising judicial economy.Chapter 6 will give some suggestions in three aspects on the basis of the discussions above.The first aspect is about the application of the principle of judicial economy in the dispute settlement of the WTO.First of all,it is necessary to make it clear that the principle of judicial economy should not be abandoned.This is mainly because that there are systemic,economic and political concerns with respect to the application of this principle in the dispute settlement of GATT and the WTO.On the basis of this point of view,it is appropriate to establish the principle of prudent application to limit the exercise of judicial economy.As for how to prudently exercise judicial economy,there should be different requirements for panels and the Appellate Body.Generally speaking,the Appellate Body should exercise judicial economy more prudently than panels.Besides,in certain cases where efficiency requirements are higher(e.g.,cases of trade remedies),panels may properly consider to exercise judicial economy according to the standards of application given above.The second aspect of suggestion is mainly about the reform of the dispute settlement mechanism of the WTO.The reform mainly involves the following four aspects:(1)the development of internal rules for the application of the principle of judicial economy;(2)to appropriately extend the time limit of review for panels and the Appellate Body;(3)properly expand the Appellate Body's authority of review;(4)to authorize the Appellate Body to remand a case when necessary.According to the discussions in the previous chapters,China may seek support certain on sensitive issues from third parties in disputes;in cases when China participates as a third party,it may make" mixed submissions" on sensitive issues and further make the panel and the Appellate Body be aware of the ambivalence of the wider WTO membership on this issue.By this way,the chances of exercising judicial economy with respect to the sensitive issues may be increased.When China acts as a complainant,China should try to avoid referring political issues to a panel.