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In short, “
n allegation that a panel has failed to conduct the ‘objective assessment of the matter before it’ required by Article 11 of the DSU is a very serious allegation. Such an allegation goes to the very core of the integrity of the WTO dispute settlement process itself”. 16 “Only egregious errors constitute a failure to make an objective assessment of the facts as required by Article 11 of the DSU.”17
VExercise of Judicial Economy
In this regard, what we will next discuss is the issue of whether Art. 11 of the DSU entitles a complaining party to a finding on each of the legal claims it makes to a panel. As is the core of so-called judicial economy principle derived from Art. 11 of the DSU. The principle of judicial economy is not explicitly provided in any articles of the DSU or any other covered agreements under the WTO. However, it is a fundamental principle under the WTO jurisprudence, which is more than one time exercised by panels and then upheld by the Appellate Body during the disputes settlement.
In US-Shirts and Blouses (DS33), the Panel states in paragraph 6.6 of the its Report: “Concerning India''s argument that Article 11 of the DSU entitles India to a finding on each of the issues it raised, we disagree and refer to the consistent GATT panel practice of judicial economy. India is entitled to have the dispute over the contested ‘measure’ resolved by the Panel, and if we judge that the specific matter in dispute can be resolved by addressing only some of the arguments raised by the complaining party, we can do so. We, therefore, decide to address only the legal issues we think are needed in order to make such findings as will assist the DSB in making recommendations or in giving rulings in respect of this dispute.”18 As is appealed. And the Appellate Body make an detailed analysis on the principle of judicial economy from the provisions of the DSU as well as practice under the GATT 1947 and the WTO Agreement: 19
As provided in Art. 11 of the DSU, the function of panels is to assist the DSB in discharging its responsibilities under the DSU and the covered agreements. Nothing in this provision or in previous GATT practice requires a panel to examine all legal claims made by the complaining party.
Firstly, previous GATT 1947 and WTO panels have frequently addressed only those issues that such panels considers necessary for the resolution of the matter between the parties, and have declined to decide other issues. Thus, if a panel has found that a measure is inconsistent with a particular provision, it generally does not go on to examine whether the measure is also inconsistent with other provisions that a complaining party may have argued are violated. In recent WTO practice, panels likewise have refrained from examining each and every claim made by the complaining party and have made findings only on those claims that such panels conclude are necessary to resolve the particular matter. Although a few GATT 1947 and WTO panels have made broader rulings, by considering and deciding issues that are not absolutely necessary to dispose of the particular dispute, there is nothing anywhere in the DSU that requires panels to do so.
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