The Law, Policy and Practice of a Major Petroleum Exporting Country on Investor-State Dispute Settlement Mechanism: The Experience of Saudi Arabia and Its Significance for the Development of International Investment Law

Decision-making by consensus is preferred in the WTO. In the adjudication process, the Panels and the Appellate Body benches have also tried to arrive at a consensus. However, since the WTO Agreements relate to the commercial policies of the Members, consensus on every issue is not possible. There have been some dissenting and separate concurring opinions of members of the Panels and the Appellate Body. The present article examines the dissenting and separate concurring opinions given in the Appellate Body decisions. The dissenting opinions sometimes relate to particular facts of the case and sometimes reflect the views of judges on important policy issues that are being discussed in academic forums. Although clarity in the outcome of a dispute is needed, dissenting and separate opinions should not be discouraged because of their contribution to the democracy of the judicial law-making process. It seems to be futile to argue that Panel and Appellate Body decisions do not have a law-making effect.