WTO Appellate Body
may Consist of “Adjudicators” who will Mediate, US Hand Seen in New Proposal
A
confidential draft on “Appeal/Review tables” issued by the facilitator
overseeing the World Trade Organization’s dispute settlement reform process
appears to fundamentally alter the two-tier dispute settlement system while
making it palatable for a major industrialized country that does not want a
binding Appellate Body, said several people familiar with the developments.
In
her email sent to members on August 23, the facilitator, Ambassador Usha-Canabady of Mauritius, wrote: “At the request of Members,
the co-convenors on Appeal/Review have prepared draft tables (attached) to
document several important aspects of the discussions held on each of the
sub-topics: scope of review; standard of review; form of the mechanism;
reducing/changing incentives to appeal; clarifying Members’ expectations of
adjudicators; and access to the mechanism.”
The
crucial “Form of the Mechanism” in the proposal is going to replace the Appellate
Body, said people familiar with the provisions.
Form
of the Mechanism
Before
the Appellate Body was made dysfunctional by the United States in December
2019, it comprised seven persons/adjudicators with a four-year term, with the
provision for one reappointment as per Article 17.2 of the dispute settlement
understanding.
As
part of the reform ideas in the tables in the “WTO confidential document”, it
is being suggested that there will be “ad hoc adjudicators.” It contains a
provision to “increase the number of standing adjudicators.”
Another
reform idea stated in the table says, “In lieu of a separate appeal/review
stage, add additional adjudicators(from a pool or
through a process similar to panel composition) at the interim review stage of
the panel proceedings to review and test the panel’s conclusions.”
It
is also stated that “in lieu of appeal/review by adjudicators, review of the
panel’s conclusions by a committee of WTO members.”
The
reform idea on the selection of adjudicators seems to make a fundamental break
with the current practice by suggesting the “appointment of adjudicators via a
mechanism agreed by the disputing parties (on a bilateral or plurilateral
basis).”
This
idea may have come from the United States, said a person familiar with the
discussions.
As
regards observations by members, it is suggested: “This Element is linked to
the previous Element (‘Nature of the body’). While reform idea 1 relates to the
selection of adjudicators, it also presupposes that there would be no standing
body. Reform idea 1 is intended to address several interests and concerns,
including a concern that adjudicators appointed by the Membership (through the
DSB) are perceived to speak on behalf of all Members, which may add to the
weight that is accorded to their decisions.