WTO in Futile Exercise to Revive DS Appellate Body

[ABS News Service/03.09.2024]

Geneva – The facilitator overseeing the World Trade Organization’s dispute settlement system reform process plans to convene a meeting on September 9 to discuss several elements of the proposed Appeal/Review mechanism that is likely to replace the binding-Appellate Body, in a move that could attenuate the WTO’s enforcement function, say people familiar with the development.

In an email sent to members on August 23, seen by WTD, the facilitator, Usha Dwaraka-Canabady of Mauritius, informed members that “the co-convenors on Appeal/Review have prepared draft tables 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.”

She says the “draft tables" have been prepared with several caveats. They include that the draft tables on the above topics “are not negotiating texts but have been designed to aid Members in their ongoing discussions.”

The facilitator says that “the co-convenors will update the tables as the discussions progress which will allow Members to gauge the progress being made through the technical discussions.”

According to the facilitator, “the tables do not exhaustively capture each point made by Members but do highlight some of the main points based on the discussions held.”

Without strong enforcement function, which is at the core of the WTO’s architecture along with the negotiating function and the implementation function, members’ rights and obligations remain in limbo.

Also, there is little or no merit in negotiating new agreements when the enforcement function is attenuated, the analyst said.

Doubts continue to persist on whether the United States would agree to a robust appeal/review mechanism that would undergird the enforcement function of the WTO, said people familiar with the discussions.

Washington drew its markers in its statement issued at the first Heads of Delegation meeting on May 30, as captured in document WT/GC/DSR/M/1.

Given the rather ambiguous mandate provided by trade ministers at the WTO’s 13th ministerial conference, it appears that everything in the ongoing discussions is “up for a toss”, said people familiar with the discussions.