I haven't crunched the numbers on this, but it certainly feels as though DSU Article 11 appeals have increased in recent years. Yet almost all of them get rejected. This seems like a strange state of affairs. Why pursue a course that is virtually certain to fail?
In China - Rare Earths, the Appellate Body made a comment about Article 11 that makes me wonder if they are trying to move parties away from it:
5.227 ... an Article 11 claim must be clearly articulated and substantiated with specific arguments, including an explanation of why the alleged error has a bearing on the objectivity of the panel's assessment. This Article 11 claim raised by China does not meet these requirements and we therefore reject it.
5.228. We emphasize that, in so finding, we do not wish to suggest that participants should simply present more extensive argumentation in support of claims under Article 11 of the DSU. Rather, we wish to encourage appellants to consider carefully when and to what extent to challenge a panel's assessment of a matter pursuant to Article 11, bearing in mind that an allegation of violation of Article 11 is a very serious allegation. This is in keeping with the objective of the prompt settlement of disputes, and the requirement in Article 3.7 of the DSU that Members exercise judgement in deciding whether action under the WTO dispute settlement procedures would be fruitful.
Is the Appellate Body asking appellants to be a little more circumspect before alleging an Article 11 violation? Or am I reading too much into this?
