This is from the U.S. statement at the February 25 DSB meeting:
• We also note that at least one Member has said that the United States should table its own proposal. The United States has made its views on these issues very clear: if WTO Members say that we support a rules-based trading system, then the WTO Appellate Body must follow the rules we agreed to in 1995.
• And so, for instance, the Appellate Body must circulate its reports within 90 days of an appeal.
• A person who has ceased to be an Appellate Body member may not continue deciding appeals as if his term had been extended by the Dispute Settlement Body.
• The Appellate Body may not make findings on issues of fact, including but not limited to those relating to domestic law.
• The Appellate Body may not give advisory opinions on issues that will not assist the DSB in making a recommendation to bring a WTO-inconsistent measure into compliance with WTO rules.
• The Appellate Body may not assert that its reports serve as precedent or provide authoritative interpretations.
• And the Appellate Body may not change Members’ substantive rights or obligations as set out in the text of the WTO agreements.
• Rather than seeking to make revisions to the text of the Dispute Settlement Understanding to permit what is now prohibited, the United States believes it is necessary for Members to engage in a deeper discussion of the concerns raised, to consider why the Appellate Body has felt free to depart from what WTO Members agreed to, and to discuss how best to ensure that the system adheres to WTO rules as written.
(footnotes omitted)
I agree with the last bullet point here, and I think it would be helpful for the U.S. to offer its thoughts on those questions.
In terms of the substantive issues and how to "adhere to the WTO rules as written," some of these seem relatively easy to me, while some are more difficult. Here are two examples.
On the 90 day issue, I would recommend that the Appellate Body issue its reports within 90 days, but it should then explain all the problems that arise from doing so. Members can then decide what they think of 90 day reports, and whether they want to give the Appellate Body more time, or establish rules (such as page limits on submissions) that will make the 90 day requirement more workable.
In terms of the role of precedent, the U.S. talks about following the rules agreed to in 1995, but what were those rules in relation to precedent? And what should those rules be? And how do the current rules differ from what the U.S. says it wants the rules to be?
The U.S. seems reluctant to propose revisions to the DSU text. I'm not really sure why, but if that's the case, what alternative do they have in mind to make things change? Is their idea that if they put on enough political pressure, the Appellate Body will change course on its own? It is possible that this could happen on some of the issues. Of course, on one of those -- the 90 day issue -- it would be a lot easier for the Appellate Body to hurry up if there were seven Appellate Body Members.
