I just noticed the EU's brief discussion of remand in its closing memorandum following the first hearing in the EC - Aircraft appeal:
E. Completion of the Analysis and Remand
50. As the European Union stated in its Opening Statement, as a result of the Panel’s erroneous rejection of any relevance of “continuing benefit” for its analysis of subsidisation, the factual basis for the Appellate Body to complete the analysis does not exist. This raises the question, briefly discussed at the First Hearing, of what the Appellate Body can or should do in these or similar circumstances.
51. The European Union would like to make clear that, in its view, there are a number of possible solutions to this kind of problem, which will often arise in appellate proceedings, and that those solutions include the possibility of remand.
52. In some cases, the Appellate Body may be able to complete the analysis on the basis of other panel findings and uncontested facts on the record. In its Other Appellee Submission, the European Union has developed at some length its view on the limits to this exercise, responding to the United States’ requests to complete the analysis made in its Other Appellant Submission.
53. In other cases, a reversal of critical errors by a panel may lead to the conclusion that no inconsistency with the covered agreements has been established (although it may be that if the panel had conducted a proper analysis, a finding of inconsistency might have been made.) In these circumstances, the case could be remanded to the Panel with instructions to conduct a proper analysis.
54. The European Union notes that there is no provision in the DSU that prevents remand, and that it has advocated this solution to the Appellate Body in the past. It also notes that these issues have been discussed in the literature. In light of the position taken by the United States at the Hearing and the fact that it is the defendant in these proceedings, the European Union refrains from further discussion at this stage. It simply repeats that remand is a possibility under the DSU, and stands ready to develop its view on the possibilities open to the Appellate Body in response to questions from the Appellate Body, if necessary.
Here's the U.S. response:
VI. REMAND
31. The EU requests the Appellate Body, in the event it decides the extinction issues in its favor, to remand this dispute to the Panel. The only support it provides is the assertion that “there is no provision in the DSU that prevents remand.” However, in reality, Article 17.13 of the DSU clearly limits the options at this stage to upholding, modifying, or reversing the legal findings and conclusions of the Panel. The DSU does not provide for remand. Indeed, WTO Members have been engaged for some time in negotiations over whether the DSU should be amended to provide for the possibility of a remand. Members have recognized that this is a complicated issue that would require a number of decisions by Members, including the scope of any remand, the precise task of the panel, timing, and the disposition of any findings not subject to remand.
