The Appellate Body has issued some "guidelines" for employees (AB judges, secretariat staff, interns) to follow after they have left:
POST-EMPLOYMENT GUIDELINES IN RESPECT OF FORMER APPELLATE BODY MEMBERS, FORMER APPELLATE BODY SECRETARIAT STAFF, AND FORMER INTERNS AT THE APPELLATE BODY SECRETARIAT
The Appellate Body expects the individuals concerned to abide by, and requests WTO Members to assist in the respect of, the guidelines below.
1. A former Appellate Body Member shall not:a. be involved as an adviser or panelist in any dispute or matter the same as one that was before the Appellate Body during his or her term of office as an Appellate Body Member. A former Appellate Body Member may, however, accept appointment as an arbitrator in an arbitration under Article 21.3(c) of the DSU in respect of any dispute;
b. for a period of three years following the end of his or her term of office, attend the oral hearing in any appeal before the Appellate Body as a member of a delegation of a participant or third participant;
c. for a period of two years following the end of his or her term of office, accept appointment as a panelist in any WTO dispute.
2. A former member of staff of the Appellate Body Secretariat shall not:
a. be involved as an adviser or panelist in any dispute or matter the same as one in which he or she had a significant degree of involvement as part of his or her responsibilities at the Appellate Body Secretariat;
b. for a period of one year following the cessation of his or her service, attend the oral hearing in any appeal before the Appellate Body as a member of a delegation of a participant or third participant.
3. A former intern in the Appellate Body Secretariat shall not:
a. be involved as an adviser or panelist in any dispute or matter when, during the internship period, he or she carried out substantive tasks or attended meetings in connection with an appeal in the same dispute or matter as part of his or her responsibilities at the Appellate Body Secretariat;
b. for a period of one year following the completion of his or her internship, attend the oral hearing in any appeal before the Appellate Body as a member of a delegation of a participant or third participant unless he or she has obtained prior written authorization from the Director of the Appellate Body Secretariat. Such authorization will be granted unless the specific circumstances of the appeal are such that the Director of the Appellate Body Secretariat reasonably considers that the former intern's attendance at the oral hearing is likely to give rise to an actual or perceived conflict of interest or risk of bias.
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A few questions and comments come to mind:
1. Are these guidelines going to be enforceable? Note this statement from the Appellate Body: "The Appellate Body requests the cooperation of WTO Members in facilitating compliance with these guidelines." How will this all work in practice?
2. Not working on a "matter" you worked on at the Appellate Body seems clear and obvious. But does a rule that precludes the attending of a hearing on any appellate matter, for a period of time, go too far? Or does it not go far enough? Note that it only says you can't attend the hearing. You can still work on the briefs, which is where cases are mostly won or lost, in my view.
3. If the other WTO Secretariat divisions (e.g., Legal Affairs, Rules) that provide support to panels do not adopt similar guidelines, will those positions become more appealing (pun intended!) because of the absence of post-employment restrictions?
4. Presumably these guidelines couldn't be applied easily to panelists, some of whom are diplomats working on their own countries' cases.
