The notice of appeal filed by Honduras in the Australia - Plain Packaging case is here. I think it's fair to say that it covers a lot of ground. This is one part:
Honduras requests the Appellate Body's review of the assessment the Panel made of the evidence that was presented on the degree of contribution of the plain packaging measures to the achievement of Australia's identified legitimate objective. Honduras submits that the Panel fails to conduct an "objective examination" of the evidence on the plain packaging measures' contribution to the objective of reducing the use of tobacco products in violation of its obligation under Article 11 of the DSU. In particular, among others:
• The Panel fails to provide a reasoned and adequate explanation of how the facts before it supported the conclusion that the plain packaging measures were apt to, and do, make a meaningful contribution to their legitimate objective because, inter alia:
o The Panel's own findings on actual smoking behaviour, proximal and distal outcomes do not support its conclusion.
o The Panel's intermediate findings on the effect of the plain packaging measures are not based on the totality of the evidence on the record and are not supported by a reasoned and adequate explanation;
o The Panel's findings on the effects of the measures "over time" are not based on any quantitative or qualitative analysis or reasoned explanation supported by sufficient evidence;
o The Panel's intermediate findings on the relevance of the behavioural science theories are internally inconsistent and not supported by a reasoned and adequate explanation;
o The Panel's findings on the contribution of the measures to the reduction in cigar smoking do not have a sufficient basis in the evidence on the record and are not supported by a reasoned and adequate explanation.
• The Panel disregards, ignores and misrepresents the evidence presented by the complainants.
• The Panel fails to examine the evidence on contribution in an even-handed manner and applies a double standard of proof in favour of Australia.
• The Panel fails to respect the due process rights of the parties by not exercising its authority under Article 14.2 of the TBT Agreement or Article 13 of the DSU to appoint a technical expert and by instead relying on a "ghost expert" raising alleged "robustness" concerns not identified by any of the parties without ever offering the parties an opportunity to comment on or subsequently review the concerns and methodologies of this ghost expert.
This appeal would take a fair amount of time for the Appellate Body to handle even working at their fastest with no other appeals going on (and there are many other appeals going on).
Does the DSU give the Appellate Body sufficient time to deal with such an in-depth appeal? Recall that DSU Article 17.5 says:
As a general rule, the proceedings shall not exceed 60 days from the date a party to the dispute formally notifies its decision to appeal to the date the Appellate Body circulates its report. In fixing its timetable the Appellate Body shall take into account the provisions of paragraph 9 of Article 4, if relevant. When the Appellate Body considers that it cannot provide its report within 60 days, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period within which it will submit its report. In no case shall the proceedings exceed 90 days.
So under the DSU, 60 days is the general rule, and 90 days is the maximum. I don't see any way for the Appellate Body to digest and respond to the arguments in the plain packaging appeal in 90 days (much less 60 days). The panel report is over 800 pages, our WorldTradeLaw.net summary is close to 70 pages, and Honduras' appeal is extremely detailed. When they were drafting the DSU, governments probably did not anticipate that the dispute process would involve appeals of this type, but this is where we are now. Some cases are mammoth undertakings, and 90 days is not a realistic time-frame for completing the appeals process.
So what might be more realistic? 60 days would be extremely difficult even for the easiest appeal that comes along these days. Perhaps 90 days would work as the general rule that the Appellate Body could shoot for. But 90 days is not going to be realistic much of the time, and maybe it would be useful to acknowledge that in the DSU. Instead of 90 days as the "in no case" limit, perhaps 180 days is more appropriate there.
But if such an amendment were to be made, 180 days should then be considered an (almost) absolute limit. No matter how long, complex and detailed the appeal, the Appellate Body has to finish in 180 days. The parties can then decide how they want to approach cases like plain packaging. If the parties feel like pushing the boundaries of what the Appellate Body can handle in this kind of case, they can go ahead and appeal everything. But the result will be a report that has to cut corners at times.
I'm just thinking out loud here about appeal time-frames (with the Appellate Body appointment issues lurking in the background), and I reserve the right to amend my views at any time.
