This is from his farewell speech at the DSB:
Most importantly, the outcome of cases must never be an acceptable reason for opposing reappointment. And similarly, an Appellate Body Member’s adjudicatory performance relating to case-management, including her “judicial style,” should not be recognized as a legitimate reason for opposing reappointment. In particular, I believe that there should be only one occasion for vetting “judicial style” – the lead-up to the initial appointment. The term “judicial style” may capture various aspects of an adjudicator’s performance, which are normally kept confidential and invisible to outsiders. If a WTO Member attempts to define an Appellate Body Member’s ‘judicial style’ on the basis of its mere observation of that Member’s adjudicatory performance during the oral hearing, it would be something like drawing an elephant after touching only its nose without looking at the whole body.
Throughout my professional career of more than twenty-five years as an adjudicator, whether as a national judge, an international arbitrator, a WTO panelist, or an Appellate Body Member, I have consistently applied one of my adjudicatory principles, that is, “If you cannot evenly please both parties with your questions in the hearing room, try to displease them both with your questions, but always evenly.” In my recollection, for the last four years, in the Appellate Body hearings, my questioning has failed to evenly please both parties, but at every single one of them, I have tried my best to displease them in an evenhanded manner, whether they are claimants or respondents, large advanced countries or small lessdeveloped countries. Yes, this is my “judicial style.”
Please imagine what would be the consequences to the proper functioning of the Appellate Body if individual Appellate Body Member’s questioning and judicial styles observed in the oral hearing room were to be assessed unilaterally by WTO Members (in particular, the parties to disputes) for their decision on whether to oppose her reappointment in the future? Should that continue to happen, I would rather suggest to my Appellate Body colleagues that the Appellate Body seriously consider eliminating oral hearings or replacing them with written questionnaires. Otherwise, no single Appellate Body Member during her first term will be free from the risk of non-reappointment unless she is a magician to evenly please all parties all the time. Under such circumstances, can you expect an Appellate Body Member to carry out her adjudicative functions in an independent and impartial manner, and how many Appellate Body Members actually would like to consider seeking reappointment?
