U.S. Concerns About AB Members Serving After Expiration of Their Term

This is from the U.S. statement at the November 22 DSB meeting:

7. APPELLATE BODY MATTERS

A. STATEMENT BY THE CHAIRMAN

B. APPELLATE BODY APPOINTMENTS: PROPOSAL BY ARGENTINA, BRAZIL, CHILE, COLOMBIA, COSTA RICA, ECUADOR, EL SALVADOR, EUROPEAN UNION, GUATEMALA, HONDURAS, HONG KONG, CHINA; MEXICO, NICARAGUA, NORWAY, PAKISTAN, PERU, RUSSIAN FEDERATION, SINGAPORE, SWITZERLAND, SEPARATE CUSTOMS TERRITORY OF TAIWAN, PENGHU, KINMEN AND MATSU; TURKEY, URUGUAY AND VIET NAM (WT/DSB/W/609)

The specific issue here is whether Appellate Body Members can continue to serve and decide appeals after their term expires. Here is Rule 15 of the Appellate Body Working Procedures:

Transition

15. A person who ceases to be a Member of the Appellate Body may, with the authorization of the Appellate Body and upon notification to the DSB, complete the disposition of any appeal to which that person was assigned while a Member, and that person shall, for that purpose only, be deemed to continue to be a Member of the Appellate Body.

Under this rule, the Appellate Body is able to authorize this extended service on its own, and simply has to notify the DSB of its action. The U.S. concern here seems to be that the DSB is not playing a sufficient role in the extension of Appellate Body Member terms in these circumstances.

Is there some role the DSB could play that would satisfy everyone? Requiring a consensus at the DSB in favor of extending service could be a mistake, because a party facing an appeal it expects to lose would have a reason to object to the extension, in order to slow down the Appellate Body's work. Instead, perhaps the reverse consensus rule could be useful here: The Appellate Body Member's term would be extended by the DSB unless all WTO Members were opposed.

People on the ground in Geneva may have a better sense than I do of the discussions that are taking place. Is the U.S. making specific proposals, along the lines of this one or something else? How are other Members reacting to such proposals? It seems like there must be a reasonable resolution here.