As the Appellate Body reappointment controversy continues to brew, the US has been flooded with criticisms not only from WTO Members, but also from the Appellate Body Members and academics around the world.
In its statement at the May 23 DSB Meeting, the US defended its position by stating that the decision was made after “reviewe[ing] carefully the member’s service on the divisions for the various appeals and conducted significant research and deliberation. Based on this careful review, we have concluded that his performance does not reflect the role assigned to the Appellate Body by Members in the DSU.”
As anyone who’s familiar with the functioning of the WTO DSM would know, this couldn't be further from the truth. As the six AB Members stated in their May 18 letter to the DSB Chairman, “no case is the result of a decision by one Appellate Body Member, nor should interpretations or outcomes be attributed to a single Member. Appeals are heard and decided by three Members who are chosen randomly to constitute the Division for each particular case. During a Division’s consideration of a case, there is always a formal, intensive exchange of views, in person in Geneva, between the three Division Members and the Appellate Body Members who are not on the Division. Our reports are reports of the Appellate Body.” Thus, it couldn't have been possible for the US to attach particular decisions, or parts of such decisions, to an AB member alone.
I find it hard to believe that the US, as one of the most frequent litigants in the WTO and before the AB, could have been ignorant of such basic fact. The only way the US could have obtained the info about Prof. Chang’s involvement, as suggested by Simon, is either by inference, which would be extremely difficult, or by inside info, which would illegal and unethical.
Instead of pondering on these difficult questions, I think there’s an easy way to explain the seemingly odd behaviour of the US by asking instead, “why Prof. Chang?”
The answer: Prof. Chang is the most convenient target.
To understand why the US choose to single out Prof. Chang, we have to look at the other alternatives the US might have had. The answer is: none.
The US listed four cases that they are unhappy with Prof. Chang, i.e., DS453, DS430, DS437 and DS449. The three members serving on these cases are as follows:
449: Bhatia, Chang, Zhang
437: Van den Bossche, Bhatia, Chang
430 Zhang, Chang, Servansing
453 Chang, Bhatia, Zhang
So there are a total of five members who have served in the four cases.
Now who would you choose if you were the US?
First, the US would not want to pick fight with a member with a long remaining term, as this certainly wouldn’t do them any favour in future disputes before the AB. Instead, the US would want to choose one with a soon-expiring term. Among the five, Van den Bossche, Servansing and Bhatia each have 1.5, 2.5, and 3.5 years respectively left, so we should stay away from them. Chang and Zhang, on the other hand, are good candidates as their terms are expiring at the end of the month.
Second, for obvious reasons, the US also would not want to target the members with deep government connections. Academics seems to be safer as sometimes even their own governments might want to rid of them. This would leave us with Van den Bossche and Chang.
Third, as there’s nothing we can do to a member who’s in his/her second term, the US would want to pick the ones who are in their first term, as they will need to be reappointed. This time around, the only two members who fit the bill are Servansing and Chang.
Now guess who has emerged from three rounds of elimination? Prof. Chang.
To sum up, the reason the US has chosen to target Prof. Chang is not because of his jurisprudence, but because he is the most convenient candidate: a non-governmental scholar in his first term, which is expiring in an election year.
As we can see from my attempt to reverse-engineer the US decision-making process, the US attack was not meant specifically just for Prof. Chang, it could have been any of the other six members who might fit the three criteria above. In other words, the US attack was targeted at the whole AB, including all of its present, past and prospective members.
