I recall many years ago conversations about how interim review in the WTO panel process was a waste of time, and we should get rid of it. It had been proposed as a way to improve the quality of panel reports, but appellate review served that same purpose, so there was no point.
Now I see that as part of negotiations on improvements and clarifications to the DSU, there is a discussion of adding interim review to the appeals process. The WTO has just circulated a summary of these DSU discussions from 2011 and 2012, which includes this passage:
24. In the small group discussions, we also addressed the proposal for an interim review at the Appellate Body Stage.25 You will recall that, at our meeting last month and previously, the proponents suggested that interim review could help avoid errors of fact or law in the Appellate Body, and could also help provide clarifications on Appellate Body findings. Proponents expressed the view that an interim review would provide a much more favourable manner than the issuance of corrigendum to address potential mistakes or issues in Appellate Body reports.
25. In general, delegations continued to express support for having high-quality Appellate Body reports. Some delegations indicated that the interim review works well at the panel stage and could prove useful in the appellate stage.
26. However, some delegations expressed concern that the inclusion of interim review at the appellate stage would undermine the integrity of appeals and the dispute settlement process. It was suggested that the potential benefit of correcting small errors would be outweighed by certain costs, including the extension of timeframes and the possibility for confidentiality leaks or other abuse. The question was raised as to how many corrigenda have in fact been required in the appellate context.
27. Delegations expressed the view that appellant parties could effectively preview the outcome on appeal at the interim review stage and opt to withdraw their appeal, were they dissatisfied with the conclusions on appeal. In their view, this would disrupt balance achieved in the system by requiring Members to weigh the costs and benefits of appealing. In this regard, proponents expressed the view that the Appellate Body could prevent such a possibility through modification of its working procedures, obviating the need to limit the possibility of withdrawal in the text of the DSU itself.
28. Delegations submitted that the primary focus and content of appellate reports concerned legal issues. The fear was expressed that parties would simply present additional argumentation to influence the outcome. Delegations also expressed the view that the legitimacy of AB reports could be brought into question. If an appeal is filed and results not seen, this could have a negative impact on the Appellate Body, by undermining its authority and impinging on its ability to discharge its mandate under the DSU. Delegations also referred to undue pressures could be placed on the Appellate Body.
29. Proponents noted, however, that legal issues are also reviewed by panels and discussed at the interim review stage by parties. It was also submitted that, were such review of legal arguments allowed, the Appellate Body would retain authority not to change its mind. It was further suggested that reflecting the interim process in the final Appellate Body report would help to preserve integrity. However, it was also noted that parties retain the possibility of appealing their case at the panel stage, and there is the incentive to pursue less intensely at that stage arguments on legal findings.
30. One proponent suggested that additional language could be incorporated into the proposal to define what would be the permissible scope of interim review at the Appellate stage, to avoid parties re-litigating their case. Proponents, however, questioned what would be the impact of more prescriptive language, suggesting that parties then might expend time arguing whether a case in fact is being re-litigated or not, further putting pressure on timeframes. It was also noted that there would then not be parallelism between the language in the DSU discussing interim review at the panel stage and at the appellate stage.
31. In addition, delegations considered the impact of this proposal on developing countries. Some delegations referred to the addition of another step, and additional costs on developing countries. Proponents referred to the possibility that further clarity in the findings could actually be of benefit to all Members, including developing countries, by helping to avoid issues arising in later stages in the process.
Interim review in general has always seemed odd to me. People get used to things, and it's hard to upset the status quo, but I do wonder if we need it at the panel stage (and I'm skeptical of extending it to the appellate stage).
Other interesting topics discussed in the document include: mandatory/discretionary, treaty interpretation, partial adoption of reports, use of public international law, and remand.
