Chapter IV
Function of Panels: Art. 11 of the DSU


OUTLINE


I Introduction
II Application of Art. 11 as a General Standard of Review
III Review in “neither de novo nor total defence”
IV Allegation against Panels’ Standard of Review
V Exercise of Judicial Economy





I Introduction
The function of panels is expressly defined in Art. 11 of the DSU, which reads as follows:

“The function of panels is to assist the DSB in discharging its responsibilities under this Understanding and the covered agreements. Accordingly, a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements. Panels should consult regularly with the parties to the dispute and give them adequate opportunity to develop a mutually satisfactory solution.”

This provision suggests that the function of panels is to make an objective assessment such as to assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements. However, how do panels fulfill their functions as provided in Art. 11 of the DSU? It is the issue that we will touch on in this chapter. In this chapter, the author explores on the standard of review issue under the WTO, i.e. “an objective assessment”; as well as on the exercised judicial economy principle developed in panel’s review.
With regard to the standard of review issue, the GATT/WTO dispute settlement procedures have increasingly confronted questions concerning the degree to which an international body, under the GATT/WTO, should “second guess” a decision of a national government agency concerning economic regulations that are allegedly inconsistent with an international rule. It seems clear that the international agreement doesn’t permit a national government’s determination always to prevail, otherwise the international rules could be easily evaded or rendered ineffective. But should the international body approach the issues involved without any deference to the national government? It has been argued in the GATT/WTO proceedings that panels should respect national government determinations, up to some point. That “point” is the crucial issue that has sometimes been labelled the “standard of review”.1
Of course, this issue is not unique to the GATT/WTO. Naturally, the standard-of-review issue is one that many legal systems face. “The standard-of-review question is faced at least implicitly whenever sovereign members of a treaty yield interpretive and dispute settlement powers to international panels and tribunals. Moreover, as national economies become increasingly interdependent, and as the need for international cooperation and coordination accordingly becomes greater, the standard-of-review question will become increasingly important.” 2 And “it can be seen that the standard-of-review question is a recurring and delicate one, and one that to some extent goes to the core of an international procedure that must (in a rule-based system) assess a national government’s actions against treaty or other international norms”. 3
However, for the immediate purpose, we want to focus below on the more particular question of the proper standard of review for a WTO panel when it undertakes to examine a national government’s actions or rulings that engage the question of consistency with the various WTO agreements and are subject to the DSU procedures.

II Application of Art. 11 as a General Standard of Review
Under the WTO jurisprudence, it’s demonstrated that Art. 11 of the DSU has been applied as a general standard of review. Art. 11 suggests that the function of panels is to make “an objective assessment” so as to assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements.
For example, in US-Shirts and Blouses (DS33), the Panel rules that, “although the DSU does not contain any specific reference to standards of review, we consider that Article 11 of the DSU which describes the parameters of the function of panels, is relevant here”. 4
And the application of Art. 11 as a general standard of review under the DSU is analyzed systematically in EC-Hormones (DS26/DS48) where the Appellate Body rules that: 5
“The first point that must be made in this connection, is that the SPS Agreement itself is silent on the matter of an appropriate standard of review for panels deciding upon SPS measures of a Member. Nor are there provisions in the DSU or any of the covered agreements (other than the Anti-Dumping Agreement) prescribing a particular standard of review. Only Article 17.6(i) of the Anti-Dumping Agreement has language on the standard of review to be employed by panels engaged in the ‘assessment of the facts of the matter’. We find no indication in the SPS Agreement of an intent on the part of the Members to adopt or incorporate into that Agreement the standard set out in Article 17.6(i) of the Anti-Dumping Agreement. Textually, Article 17.6(i) is specific to the Anti-Dumping Agreement.
[…]
We do not mean, however, to suggest that there is at present no standard of review applicable to the determination and assessment of the facts in proceedings under the SPS Agreement or under other covered agreements. In our view, Article 11 of the DSU bears directly on this matter and, in effect, articulates with great succinctness but with sufficient clarity the appropriate standard of review for panels in respect of both the ascertainment of facts and the legal characterization of such facts under the relevant agreements […]”
In sum, for all but one of the covered agreements, Art. 11 of the DSU sets forth the appropriate standard of review for panels. As stated on more than one occasion, Art. 11 of the DSU, and, in particular, its requirement that “a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements”, sets forth the appropriate standard of review for panels examining the consistency or inconsistency of alleged measures under the WTO jurisprudence. And the only exception is the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, in which a specific provision, Art. 17.6, sets out a special standard of review for disputes arising under that Agreement（to be discussed in subsequent chapter）.6

III Review in “neither de novo nor total defence”
In EC-Hormones (DS26/DS48), in the view of the European Communities, “the principal alternative approaches to the problem of formulating the ‘proper standard of review’ so far as panels are concerned are two-fold. The first is designated as ‘de novo review’. This standard of review would allow a panel complete freedom to come to a different view than the competent authority of the Member whose act or determination is being reviewed. A panel would have to ‘verify whether the determination by the national authority was…correct (both factually and procedurally)’. The second is described as ‘deference’. Under a ‘deference’ standard, a panel, in the submission of the European Communities, should not seek to redo the investigation conducted by the national authority but instead examine whether the ‘procedure’ required by the relevant WTO rules had been followed”.7 In this respect, the Appellate Body rules that:8
“So far as fact-finding by panels is concerned, their activities are always constrained by the mandate of Article 11 of the DSU: the applicable standard is neither de novo review as such, nor ‘total deference’, but rather the ‘objective assessment of the facts’. Many panels have in the past refused to undertake de novo review, wisely, since under current practice and systems, they are in any case poorly suited to engage in such a review. On the other hand, ‘total deference to the findings of the national authorities’, it has been well said, ‘could not ensure an 'objective assessment' as foreseen by Article 11 of the DSU’.”
The ruling is confirmed on many other occasions. For example, the Panel on US-Underwear (DS24) finds that: 9
“In our opinion, a policy of total deference to the findings of the national authorities could not ensure an ‘objective assessment’ as foreseen by Article 11 of the DSU. This conclusion is supported, in our view, by previous panel reports that have dealt with this issue, and most notably in the panel report on the ‘Transformers’ case.
The panel in the ‘Transformers’ case was confronted with the argument of New Zealand that the determination of ‘material injury’ by the competent New Zealand investigating authority could not be scrutinized by the panel. The ‘Transformers’ panel responded to this argument as follows:
‘The Panel agreed that the responsibility to make a determination of material injury caused by dumped imports rested in the first place with the authorities of the importing contracting party concerned. However, the Panel could not share the view that such a determination could not be scrutinized if it were challenged by another contracting party. On the contrary, the Panel believed that if a contracting party affected by the determination could make a case that the importation could not in itself have the effect of causing material injury to the industry in question, that contracting party was entitled, under the relevant GATT provisions and in particular Article XXIII, that its representations be given sympathetic consideration and that eventually, if no satisfactory adjustment was effected, it might refer the matter to the CONTRACTING PARTIES, as had been done by Finland in the present case. To conclude otherwise would give governments complete freedom and unrestricted discretion in deciding anti-dumping cases without any possibility to review the action taken in the GATT. This would lead to an unacceptable situation under the aspect of law and order in international trade relations as governed by the GATT’.”
In short, for the panel to adopt a policy of total deference to the findings of the national authorities could not ensure an “objective assessment” as foreseen by Art. 11 of the DSU. This conclusion is supported, in our view, by previous panel reports that have dealt with this issue. However, panels do not see their review as a substitute for the proceedings conducted by national investigating authorities, either. For example, in Argentina-Footwear (DS121), the Panel doesn’t consider that they have the mandate to conduct a de novo review: 10
“This approach is consistent with the reports of panels reviewing national investigations… The panel on United States - Anti-dumping Duties on Import of Salmon from Norway concluded that it should not engage in a de novo review of the evidence examined by the national investigating authority.
The panel on United States - Underwear followed this approach by noting, however, that it did not see its ‘review as a substitute for the proceedings conducted by national investigating authorities or by the Textiles Monitoring Body (TMB). Rather…the Panel's function should be to assess objectively the review conducted by the national investigating authority, in this case the CITA. We draw particular attention to the fact that a series of panel reports in the anti-dumping and subsidies/countervailing duties context have made it clear that it is not the role of panels to engage in a de novo review. In our view, the same is true for panels operating in the context of the ATC, since they would be called upon, as in the cases dealing with anti-dumping and/or subsidies/countervailing duties, to review the consistency of a determination by a national investigating authority imposing a restriction under the relevant provisions of the relevant WTO legal instruments, in this case the ATC. …’
Accordingly, the panel on United States - Underwear decided, ‘in accordance with Article 11 of the DSU, to make an objective assessment of the Statement issued by the US authorities … which, as the parties to the dispute agreed, constitutes the scope of the matter properly before the Panel without, however, engaging in a de novo review. … an objective assessment would entail an examination of whether the CITA had examined all relevant facts before it, whether adequate explanation had been provided of how the facts as a whole supported the determination made, and, consequently, whether the determination made was consistent with the international obligations of the United States’.
The panel on United States - Shirts and Blouses also stated that ‘[t]his is not to say that the Panel interprets the ATC as imposing on the importing Member any specific method either for collecting data or for considering and weighing all the relevant economic factors upon which the importing Member will decide whether there is need for a safeguard restraint. The relative importance of particular factors including those listed in Article 6.3 of the ATC is for each Member to assess in the light of the circumstances of each case’.
These past GATT and WTO panel reports make it clear that panels examining national investigations in the context of the application of anti-dumping and countervailing duties, as well as safeguards under the ATC, have refrained from engaging in a de novo review of the evidence examined by the national authority.”
However, as emphasized by the Appellate Body, although panels are not entitled to conduct a de novo review of the evidence, nor to substitute their own conclusions for those of the competent authorities, this does not mean that panels must simply accept the conclusions of the competent authorities. In this respect, the phrase “de novo review” should not be used loosely. If a panel concludes that the competent authorities, in a particular case, have not provided a reasoned or adequate explanation for their determination, that panel has not, thereby, engaged in a de novo review. Nor has that panel substituted its own conclusions for those of the competent authorities. Rather, the panel has, consistent with its obligations under the DSU, simply reached a conclusion that the determination made by the competent authorities is inconsistent with the specific requirements of the covered Agreement. 11
国家赔偿案件讨论中的几个问题

戴洪斌


　　在国家赔偿案件办理过程中，均能严格按照法律和司法解释的规定履行职责，认真组织讨论司法赔偿案件，保障合法、规范地审理司法赔偿案件。但在国家赔偿案件的讨论中，也存在着不少加深认识的问题，认真对待，不断探索，进一步进行规范。

一、对国家赔偿审判组织及相关机构性质的认识

　　赔偿委员会是法定的司法赔偿案件审判组织，也是审判机构，赔偿办是赔偿委员会的办事机构，具体负责国家赔偿案件的办理及相关工作。审判委员会从法律上来说，应是赔偿委员会的上位审判组织，审判委员会作出的决定，赔偿委员会和赔偿办均应执行。个别法院没能正确认识赔偿委员会、赔偿办和审判委员会各自的性质和职能，没能理清它们相互之间的关系，有的认为赔偿办就是国家赔偿案件的审判组织、审判委员会不是国家赔偿案件的审判组织等，在认识上存在有一定程度的混乱现象。对于赔偿办、赔偿委员会和审判委员会性质和职能设置的正确认识，对审理好国家赔偿案件有着基础性的指导作用。

二、合议庭参与国家赔偿案件的审理

　　《国家赔偿法》未规定合议庭为司法赔偿案件的审判组织。在审判实践中，一般都不采用合议庭这一组织形式来办理国家赔偿案件，还是由案件承办人直接将其提交给赔偿办研究，然后在拿出处理意见后，再提请赔偿委员会决定。但有的法院，也借鉴其他诉讼案件的通常做法，采取以合议庭组织形式来审理国家赔偿案件。至于是否可以由合议庭这个审判组织形式，来对司法赔偿案件进行审理，是一个值得探索和尝试的问题，需要有关法律规定或司法解释予以明确，也需要人民法院的国家赔偿审判实践积极探索。

三、“一人室”情况下对国家赔偿案件的审理

　　极个别国家赔偿案件未经赔偿办讨论。这也与部分人民法院赔偿办人员设置有关，这些法院的赔偿办多是“一人室”，一个赔偿办部门就只有一人，一个人就是一个赔偿办，该人的意见实际就是赔偿办的意见，个人意见与部门意见难以区分。于是，在此情况下，办案人员就以其个人名义拿出处理意见，直接提交赔偿委员会研究，而没有表现出赔偿办研究案件的这一程序环节。这一情况下，承办人在国家赔偿案件中，有两种身份，一是案件承办人员，二是部门代表人员。对于“一人室”的赔偿办，承办人员制作审理报告，提交研究中，对于提交研究的身份要作技术处理，除了既要标明这是承办人个人处理意见，也要标明是赔偿办这个部门的部门意见。

四、赔偿办对国家赔偿案件的讨论

　　部分国家赔偿案件未经提交赔偿委员会讨论，而直接由赔偿办讨论即作出处理决定。对于国家赔偿案件，很多人认为，因为组成赔偿委员会的委员大多是人民法院各重要庭、室的负责人，平时工作就很多，集中在一起来召开一次赔偿委员会非常不容易，赔偿委员会实际上也很少开会。还认为，一般的国家赔偿案件只要由赔偿办研究并经赔偿办领导认可即可，国家赔偿案件没有必要部分情况都提交赔偿委员会研究。鉴于召开赔偿委员会极为不易，一般的国家赔偿案件难度不大，争议不大，赔偿办部门对于这类国家赔偿案件，重要认真负责进行了研究，没有其他问题，就可以在赔偿办研究决定后作出决定，没有必要将国家赔偿案件全部都提交赔偿委员会讨论决定。

五、赔偿委员会在个别国家赔偿案件办理上的虚化

　　赔偿委员会讨论案件是司法赔偿决定程序的重要环节，个别国家赔偿案件未提交给赔偿委员会讨论，越过该环节，而直接提请审判委员会讨论决定，导致了赔偿委员会形同虚设，赔偿委员会没能发挥一级审判组织应有的作用。赔偿委员会是法律规定的国家赔偿案件审判组织，是合法的审判组织。其委员会人员构成，是经过特别选择和确定的，相当慎重，其在国家赔偿案件中处理意见分量较重。要特别重视赔偿委员会在国家赔偿案件办理中的重要作用，在具体的工作中，可以作出规定，一般的国家赔偿案件可以由赔偿办作出决定。而对于重大疑难案件，就应该提请赔偿委员会讨论决定，而不应由赔偿办自行处理。对于需要提请审判委员会研究的国家赔偿案件，则更要明确，该内案件必须先提交赔偿委员会研究，拿出处理意见后，再决定是否提交审判委员会处理。

六、加强审判委员会对国家赔偿案件的审查

　　国家赔偿案件提请审判委员会研究的较少，提交研究的一般都是赔偿委员会认为重大疑难、需要审判委员会进一步把关的案件。针对司法赔偿案件社会影响大、疑难复杂的情况，可以考虑适度扩大国家赔偿案件提请审判委员会研究的范围，进行案件质量把关，对国家赔偿审判工作有更多的了解，对国家赔偿案件做到更好的指导。