Le statut des décisions antérieures dans la jurisprudence de l’OMC : contours de l’application de la règle du précédent dans le contentieux commercial multilatéral

Among the concerns expressed by the United States to oppose the renewal of Appellate Body judges is the idea that the stare decisis rule is developing in multilateral trade litigation, in violation of both the rules of general public international law and the WTO?s Memorandum of Understanding on the rules and procedures governing dispute settlement. However, even if the rule of precedent has no formal authority in public international law, there is indeed a tendency in the WTO for its jurisdictional bodies to settle disputes in the sense of previous decisions. In this article, the authors attempt to demonstrate that, despite appearances, the current practice in the WTO does not stem from stare decisis but rather from a civilist and pragmatic approach of constant jurisprudence.