Monday, November 17, 2008

Global administrative law and the WTO: The Appellate Body decision in the EC-Hormones dispute

The recent(ish) decision by the Appellate Body of the WTO, the latest installment in the EC-Hormones saga (United States — Continued Suspension of Obligations in the EC — Hormones Dispute) contains much of direct global administrative law significance. As Gregory Schaffer, a commentator who has already published within the GAL project, the decision has a real "such issues as standard of review, burden of proof and due process". I will post on this in more detail later in the week; in the meantime, Schaffer's excellent analysis of the issues involved from a GAL-perspective can be found here, and the decision itself can be found here.

1 comment:

Anonymous said...

Just a little thought on the characterization of standard of review, due process etc. discussed in Hormones as 'global administrative law' issues. My lingering feeling is not as much about the individual concepts themselves, but how unconsciously these have become GAL paradigms. I believe the project in its earliest days, over three years ago, refused to confuse itself with domestic administrative law in theoretical underpinnings and modus operandi. I will be quick to add that when I say 'theoretical underpinnings', I don't deny the strong normative case made for a supra-national administrative law on the basis of the success of domestic administrative law principles and institutions. And when I talk of modus, I refer to the fact that it was open-ended and for debate if a GAL should draw from domestic law systems. What I rather intend to convey is the chastely observance of the typical international law tradition in the theoretical framework for the subject in those days: the compelling needs of modern international law, the powers of globalization and the state as a receding actor, those classical concepts upon which a purpose-oriented discussion was initiated. That accountability and transparency could be the domain of GAL without administrative law principles that we are so often tempted to revert to was a possibility that made the subject cutting-edge and left a whole lot of scholarship to brew. What I think may happen with this (albeit justified) fetish for bracketing of instances like these as breakthroughs for GAL is a possibility that more theoretical explanations will have to be advanced to embrace a somewhat direction-less course for the subject. May be too strong a usage, but I see two far ends in the GAL colloquy that need to be bridged, a set of scholars who are making advances in the theory of the subject (like Dyzenhaus) while on the other, a group of scholars who have inadvertently narrowed the scope of the subject to a review of domestic administrative law-like happenings in the international field. A conceptual vacuum is left, one that may not be in need of an explanation, but that seems to exacerbate the two differently-headed GAL premises.
With the advantage of having seen the AB shift its leanings over the years, I believe this decision is opening yet another floodgate to litigation, not for having found new rights and duties, but for making a lengthy discussion that trade lawyers will have fun in putting up as issues before future panels. The one incident when there was real ad law happening in the AB was when it let amicus briefs in. Look at what happened: the AB incurred the wrath of the membership and went back to square 1 practically, accepting briefs but dismissing almost all of them as 'not relevant' to deciding the dispute(s). While I am unsure how this happening can be put within a theoretical framework other than the immediate realpolitik explanation that surfaces, the biggest reform that the AB is in need of is to make amicus briefs meaningful. Of course, then comes the issue of public hearings towards which we are moving at a fast pace. These are, in my opinion prime GAL candidates, not the standard of review or the burden of proof that are of an interpretative nature of the covered agreements, having nothing to impact directly the stakeholders in the WTO (people really affected by trade rules).
It would indeed be interesting to see in which direction GAL's theoretical scholarship will move in the coming days. Perhaps I personally am unable to handle the simplicity with which the second group of scholars are talking the subject (modern academic scholarship is more about being less arcane, one could say). I may ultimately be wrong in perceiving there is a kind of fissure in the direction for the subject, but it seems to me, atleast now, that a more unified approach to the subject is necessary.