STATUTE OF THE
INTERNATIONAL COURT OF
JUSTICE (ICJ)
Article 38
1. The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for
the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex
aequo et bono, if the parties agree thereto.
158. It is well settled that Appellate Body reports are not binding, except with respect
to resolving the particular dispute between the parties. This, however, does not mean
that subsequent panels are free to disregard the legal interpretations and the ratio
decidendi contained in previous Appellate Body reports that have been adopted by
the DSB. In Japan – Alcoholic Beverages II, the Appellate Body found that:
[a]dopted panel reports are an important part of the GATT acquis. They are often
considered by subsequent panels. They create legitimate expectations among WTO
Members, and, therefore, should be taken into account where they are relevant to
any dispute.
…
160. Dispute settlement practice demonstrates that WTO Members attach
significance to reasoning provided in previous panel and Appellate Body reports.
Adopted panel and Appellate Body reports are often cited by parties in support of
legal arguments in dispute settlement proceedings, and are relied upon by panels
and the Appellate Body in subsequent disputes. In addition, when enacting or
modifying laws and national regulations pertaining to international trade matters,
WTO Members take into account the legal interpretation of the covered agreements
developed in adopted panel and Appellate Body reports. Thus, the legal interpretation
embodied in adopted panel and Appellate Body reports becomes part and parcel of
the acquis of the WTO dispute settlement system. Ensuring "security and
predictability" in the dispute settlement system, as contemplated in Article 3.2 of the
DSU, implies that, absent cogent reasons, an adjudicatory body will resolve the same
legal question in the same way in a subsequent case.
Appellate Body Report on United States - Final Anti-Dumping Measures on
Stainless Steel from Mexico, WT/DS344/AB/R, adopted 20 May 2008
(underlining added).
"[t]he Tribunal considers that it is not bound by previous decisions.
At the same time, it is of the opinion that it must pay due
consideration to earlier decisions of international tribunals. It
believes that, subject to compelling contrary grounds, it has a duty
to adopt solutions established in a series of consistent cases. It
also believes that, subject to the specifics of a given treaty and of
the circumstances of the actual case, it has a duty to seek to
contribute to the harmonious development of investment law and
thereby to meet the legitimate expectations of the community of
States and investors towards certainty of the rule of law."
(underlining added).
Decision of 21 March 2007 of the ICSID (International Centre for
Settlement of Investment Disputes) Arbitration Tribunal, Case No.
ARB/05/07, Saipem S.p.A. v. The People's Republic of
Bangladesh, ICSID IIC 280 (2007), p. 20, para. 67
VIENNA CONVENTION ON THE
LAW OF TREATIES
(1969)
INTERNATIONAL LAW
COMMISSION (ILC)
ARTICLES ON STATE
RESPONSIBILITY
(2001)