Towards a Coherent Theory of Panel Recommendations for Expired Measures

Article 19.1 of the Dispute Settlement Understanding provides that if a measure is found to be inconsistent with a WTO Agreement, the Panel or Appellate Body ‘shall recommend that the Member concerned bring the measure into conformity with the agreement’. However, Panels find themselves in a difficult position when the contested measure has expired during the course of proceedings. Since, on the one hand, the measure which would have ordinarily been recommended to be withdrawn is no longer in existence, but on the other hand, they are under an obligation to issue a recommendation as per Article 19.1. Various rationales of the Panels and the Appellate Body for providing recommendations for expired measures (‘EMRs’) have been inconsistent, ad-hoc and even contradictory. Given the different array of approaches adopted, there is no coherent and integrated theory which can be formulated which tells us when and why EMRs should be provided under Article 19.1. This article seeks to bridge this gap. The article also provides a critical analysis of the questionable recommendations issued by the Panel in India – Import of Iron and Steel Products and provides a more coherent framework to guide Panels’ recommendations in relation to expired measures.