Appellate Body Reform Proposals from the IIEL

In a new Issue Brief, which it describes as "a product of discussions between IIEL faculty, students and stakeholders," Georgetown's Institute of International Economic Law has the following proposals for reforming the Appellate Body transition rules:

Proposal 1: Limit Carry-Over to Disputes Where the Hearing Has Begun

 

First, instead of extending outgoing ABMs to continue to serve on all cases they were appointed to before their term expired, as is the practice today, carry-over could be limited to those cases where the oral hearing (on the merits) has occurred or started. The main reason for carry-over is efficiency: if all the parties have already spent the resources to prepare for and travel to Geneva for the hearing and an ABM has already spent considerable time and resources on a case, starting all over with a replacement ABM is burdensome and inefficient. A better option would be to replace the outgoing ABM with an alternate ABM (randomly selected amongst all sitting ABMs) on a case where the hearing has not yet been held. At that stage, the parties and third participants have only exchanged submissions and the AB itself has not yet heard or discussed the dispute.

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Proposal 2: Outgoing ABMs Continue to Serve Until They Have Been Replaced

 

Secondly, in order to provide an incentive to WTO Members to start appointment proceedings early or, at the very least, to avoid vacancies on the AB, any outgoing ABM could continue to be a full ABM, even after the formal expiry of her term, up to the day her replacement is appointed and sworn in. This is, interestingly, the rule for most international courts and tribunals. Yet in the WTO, where the appointment procedure is the strictest (consensus versus majority-based or unilateral member state appointments), and the risk of vacant seats thereby higher, this transition rule is, surprisingly, absent. This twin companion to the proposed carry-over rule would mean that blocking an appointment would simply extend the term of the outgoing ABM. A WTO Member from one region would then no longer be able to veto the replacement of an ABM from another region, for example, to block that region from representation on the AB.