| Nowadays,the WTO dispute settlement mechanism has been in operation for 25 years.As a significant part of WTO,can help members to solve trade disputes effectively.As the only similar second instance body in the international legal system dealing with disputes between States,the Appellate Body has issued more than 200 decisions over 25 years,and the quality and implementation rate of decisions have been widely praised by the international community.At the same time,according to statistics,about 70%of the WTO expert group reports will be appealed,and the practice of the appellate body also shows the progress of international law in judicialization and the success of the appeal body,which has also played a good role in other fields of the international community and made a prominent contribution to the construction of the international rule of law.However,it was forced to stop under the obstruction of the USA,which criticized the appellate body in many documents and the dispute settlement mechanism meetings,focusing on six aspects,such as ultra vires adjudication,stare decisis,extended hearings,member transition,advisory opinions and reviewing facts.Among the many reasons against the appellate body,the USA believes that the practice of the appellate body stare decisis constitutes ultra vires and is judge-made law.In the WTO legal system,open a judgment casually,the practice of stare decisis can be seen everywhere,even before each decision has a case list,WTO the guiding role of precedent in the legal system is objective existence,no one can ignore it.In a series of meetings and reports,the USA criticized the stare decisis practice of the appellate body,trying to show that the adjudicative body should solve the same legal problems in the same way in subsequent cases unless there are convincing reasons,which has neither treaty legal basis nor judicial practice.Stare decisis practice of the appellate body breaks the line between the power to make rules and the power to apply them,which is equivalent to granting the appellate body the right to judicial law-making.In order to deal with the crisis,countries have also raised countermeasures,but more is to respond to the USA,there is no fundamental solution.By contrast WTO appellate body stare decisis practice and has its historical and institutional background.After lengthy negotiations on the formulation of WTO rules,member states have also compromised to varying degrees according to their own circumstances.As a result,the imperfect regime of law of the WTO,as well as the enforcement of decisions and other institutional background,make the expert group and the appellate body have to explain the case accordingly.Through a series of practices WTO the dispute settlement mechanism,the WTO appellate body has basically adopted three stages of process,namely,not recognizing the precedent value of the award,favouring the precedent value of the award to emphasizing the precedent value of the award,and finally forming the practice of stare decisis.Despite controversy,at the practical level,the criterion of compelling reasons has been accepted by a growing number of expert groups,and the relevant acceptance process can be roughly divided into hesitant and definite stages.This stare decisis approach has positive implications for preserving the predictability and stability of dispute settlement rules,enhancing the enforceability of reports,improving and supplementing procedural rules and improving judicial effectiveness.However,it is undeniable that this kind of behavior has the tendency of judicial power expansion,which to some extent undermines the balance of power between WTO institutions and infringes member states sovereignty.In the face of American accusations and the problems existing in stare decisis,in response to the concerns of the USA,reform and restraint can truly solve the problem and thus resume the operation of the appellate body.Therefore,jurisprudence constante is first introduced to shake the argumentation basis of the USA criticism stare decisis.the USA believes that the practice of the appellate body stare decisis is judge law-making which is placed in background of the common law system,and that this practice of the appellate body is the principle of stare decisis in the universal law system.The practice of the appellate body stare decisis is to follow the precedent in fact,and there is no legal compulsion,which is actually more in line with the principle of legal consistency of the Mainland law system.Secondly,to activate the mechanism of legislative interpretation in the WTO agreement to balance the inter-agency power.The Conference to re-establish binding and authoritative interpretations of trade,services and intellectual property rights,thereby balancing the relationship between legislation and the judiciary.Finally,to add repeat rules to limit judicial power.On the basis of the proposal put forward by Honduras,the provisions of the repetition rules draw on the practice in the Mainland legal system of repeatedly demonstrating in practice the grounds that appear repeatedly in the same or similar cases,and achieving a certain number of criteria will result in a stable judgement and further pave the way for the reform of the WTO dispute settlement mechanism,guided by jurisprudence constante. |
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