on the topic
SHOULD PANELS BE BOUND BY AB: STARE DECISIS AND HIERARCHY IN THE WTO DISPUTE SETTLEMENT Submitted towards the fulfilment of grading for the
2nd semester of LL.M. (Corporate Law) for the subject
DISPUTE SETTLEMENT MECHANISM
Submitted to: Submitted By: Mr. Yogesh Pai Pratibha Motyar Prof. of Law LL.M. (Corporate Laws) National Law University II semester Roll No- 379
NATIONAL LAW UNIVERSITY, JODHPUR
10th April, 2012
TABLE OF CONTENTS:
| PAGE No.
| RULE OF STARE DECISIS IN INTERNATIONAL LAW
| RULE OF STARE DECISIS IN WTO
| OCCASIONS WHEN STARE DECISIS HAS BEEN INVOKED IN WTO
| PRACTICE OF FOLLOWING STARE DECISIS DE FACTO IN WTO: SHOULD PANELS BE ALLOWED TO DEPART FROM PREVIOUS REPORTS OF AB
| IMPLICATIONS OF HAVING DE JURE STARE DECISIS IN WTO
Stare decisis means “to stand firmly by things that have been decided..” The term is actually the shortened phrase from a Latin maxim stare decisis et non quieta movere. The maxim means “to stand firmly by things that have been decided and not to rouse/disturb/move things at rest.” The doctrine of precedent based on the system of stare decisis has its origin in the common law of England. Doctrine of precedent plays a vital role in the Municipal law. The domestic courts of almost every nation follow this doctrine very religiously while adjudicating. Any dispute before a court of law has factual as well as legal aspects. A court applies a law in the facts of the case. This process of application of law to the facts of the case involves interpretation of that law. The decision of the court is binding only on the parties, but the law laid down in that case in the process of interpretation of a given law is binding on all lower courts within the jurisdiction of the higher court deciding the case. Therefore the lower courts are bound to apply the ratio of the case given by higher court in any case having similar facts.
Now coming to the bigger picture, interestingly, there exists no doctrine of stare decisis in international law. If we refer to Article 59 of the statute of the International Court of Justice (ICJ) which provides that, “The decision of the Court has no binding force except between the parties and in respect of that particular case.” This means that decisions are binding between the state parties in respect of a particular case only. Accordingly, the court is not bound by previous decisions. Now looking at Article 38 of the Statute of the ICJ which has been considered to be a general standard of applicable law in international relations, provides in its clause (d) that, “Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” By going with these internationally accepted provisions, shall we continue to assert, with Article 38(l) (d) of the Statute of the International Court of Justice that judicial decisions are mere evidence of the law, not the law itself? Shall we hold fast to the pretence that stare decisis does not operate in a de facto sense or that it is not eligible to be followed in a de jure sense?
There are many advantages of having the doctrine of precedent in international legal system. International courts strive for legitimacy in its decision making process, and to follow previous...
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