Standards of Appellate Review

The Trade, Law, and Development journal has a special issue on WTO dispute settlement. I have a piece in it on the development of standards of appellate review, focusing a bit on appeals of factual issues and issues related to the application of the law to the facts.

As I was writing it, it occurred to me that it would be useful for someone with expertise in domestic appellate review to take a look at these issues. I felt like I was a bit out of my comfort zone at times.

But the part of it that I did find interesting, and I think made the piece worthwhile, was the realization that the DSU Article 11 language predates the WTO. The same language existed under the GATT, where there was no appellate mechanism.  And in the first couple appeals after the WTO came into being, there was no mention of DSU Article 11.  But soon DSU Article 11 as the basis for appellate arguments caught on, and now it surfaces in most appeals.

Some questions that occurred to me were: Did the DSU negotiators anticipate that DSU Article 11 would be used as the basis for appeals? Assuming they did not, is DSU Article 11 working pretty well in this regard, and even if it was not intended to be used this way, should we just leave it alone?  On this last point, the U.S. said the following at the last DSB meeting in the context of the length of time some appeals are taking:

There are clearly a number of issues that would require further investigation.  Some issues may be more practical or procedural – the Chairperson of the Appellate Body has raised some ideas in her talk at the recent event to welcome a new Appellate Body member.  Some issues may be legal in nature.  For example, in a talk at the Graduate Institute (HEI), the Chairperson of the Appellate Body noted the proliferation of claims under Article 11 of the DSU and the time and resources needed to deal with those claims.  We could consider the impact of these sorts of claims on the overall timeframe for appeals.  ...

Are DSU Article 11 appeals slowing down the process too much?