A few months ago, in its China - Rare Earths report, the Appellate Body said this:
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.
I took this to mean that the Appellate Body was getting a little tired of all these Article 11 appeals, and was sending a message to Members to back off a little bit. I thought I blogged this at the time, but I can't find any record of it, so maybe I didn't. But I definitely said it to people privately.
Unfortunately for me, the Appellate Body has, in its two latest decisions, gone a different direction than what I was anticipating. In DS436, there were two findings of violation of DSU Article 11. See para. 4.456 and para. 4.615. And in DS437, there was one finding of violation. See para. 4.198. Finding violations based on Article 11 is not exactly a way of telling Members to stop making such arguments. So, I guess Members should keep those Article 11 appeals coming!
