Legal issues arising in WTO dispute settlement proceedings

10.4 Judicial economy

Under its terms of reference¹, a panel has a mandate to address all the complainant’s claims. However, complainants often allege that the challenged measure violates simultaneously a number of different (WTO) provisions in either the same or various covered agreements.

In such cases, panels are not required to address all the legal claims that the complainant makes. It is sufficient for a panel to deal with the claims that are necessary to resolve the matter at issue in the dispute. If the panel has already found that the challenged measure is inconsistent with a particular provision of a covered agreement, it is generally not necessary to go on and to examine whether the same measure is also inconsistent with other provisions the complainant invokes.² Panels have the discretion to decline to rule on these further claims³, but they must do so explicitly.⁴

There is a limit to this discretion, however, since the principle of judicial economy must be applied consistently with the objective of the dispute settlement system: to resolve the matter at issue and “to secure a positive solution to a dispute” (Article 3.7 of the DSU). The Appellate Body has cautioned that it would be false judicial economy to provide only a partial resolution of the matter at issue. A panel must, therefore, address all those claims on which a finding is necessary in order to enable the DSB to make sufficiently precise recommendations and rulings so as to allow for prompt compliance by a Member “in order to ensure effective resolution of disputes to the benefit of all Members” (Article 21.1 of the DSU).⁵

Where a panel dismisses a complaint, there is obviously no scope for the application of judicial economy. Each and every claim cited in the complaint must be addressed and rejected in such a case. Sometimes, complainants make several claims of violation, but some of them only in a conditional manner: “If the panel does not find a violation of Article Y, we assert that the measure in dispute violates Article Z”. This is also not a situation where a panel has any discretion to apply judicial economy. It would first examine Article Y and address Article Z if, and only if, it has found no violation of Article Y.

Notes:

1. See the sections on the Establishment of a panel and on Claims versus arguments.  back to text

2. Appellate Body Report, US — Wool Shirts and Blouses, DSR 1997:I.  back to text

3. Appellate Body Report, US — Lead and Bismuth II, paras. 71 and 73; Appellate Body Report, Canada — Autos, para. 116.  back to text

4. Appellate Body Report, Canada — Autos, para. 117.  back to text

5. Appellate Body Report, Australia — Salmon, para. 223.  back to text