Collective Intelligence and the Possibility of Dissent: Anonymous Individual Opinions in WTO Jurisprudence

James Flett

Journal of International Economic Law, 2010, vol. 13, issue 2, 287-320

Abstract: Anonymous individual opinions in World Trade Organisation (WTO) jurisprudence are occurring more frequently. This article describes and critiques the 14 individual opinions expressed to-date; discusses related legal issues; and compares the position in other international courts. It argues that the WTO strikes a balance by permitting individual opinions, if in the report and anonymous; but that 10 of the 14 were incorrect or unnecessary, and the others avoidable. It further argues that different views are adequately recorded in the summary of the parties' arguments or the Dispute Settlement Body (DSB) minutes; and that if the Dispute Settlement Understanding (DSU) (Understanding on Rules and Procedures Governing the Settlement of Disputes) is functioning correctly, the collective intelligence of reasonable judges should lead them to common ground. Considering some of the particular characteristics of the WTO compared to other international courts, the article concludes that it is in the long-term interests of the WTO that individual opinions remain exceptional. Oxford University Press 2010, all rights reserved, Oxford University Press.

Date: 2010
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