Steve Charnovitz
6 June 2019
This is a follow-up to my earlier post "The WTO Appellate Body Crisis - A Critique of the EU's Article 25 Proposal." See <https://ielp.worldtradelaw.net/2019/06/the-wto-appellate-body-crisis-a-critique-of-the-eus-article-25-proposal.html>.
Thanks to Tom Miles for posting the Draft 5.16.19 document that the EU has circulated to the WTO for an Interim Appeal Arbitration Agreement based on DSU Article 25.
The draft agreement would be entered into bilaterally by the EU and another WTO member to agree to resort to arbitration under DSU Article 25 for appeals of final WTO panel reports in the event that the Appellate Body is not operational. The appeal to the arbitral panel would be instead of Appellate Body review. The EU paper contemplates using the Director-General (DG) to appoint three former Appellate Body members to hear the appeal and to use the Appellate Body Secretariat for administrative and legal support. Such duties for the DG and the Appellate Body Secretariat are not contemplated in the DSU, but seem reasonable to me.
Although the EU has shown creativity with its CETA Investment Court, I am less impressed with the idea of an ad hoc appellate tribunal composed of retired appellators. Using former Appellate Body judges is not the same thing as having an Appellate Body with collegiality to hand down decisions. I am not aware of any precedent for replacing an appellate tribunal with ADR of retired judges. I think this idea devalues the idea of an appellate jurisdiction. I don't see why the second panel of three arbitrators should be viewed as more authoritative than the first panel. I am not aware that the EU currently offers an ADR fast track to its European Court of Justice. I would not want to see the Appellate Body permanently replaced by ad hoc ADR, or for that matter an ad hoc judicial machine learning apparatus in the event that three retired Appellate Body members were not available.
