Tom Miles provided a link the EU's Interim Appeal Arbitration proposal in the comments, and Steve referred to it in the last post. A searchable PDF version is here. Overall I think it is a good temporary solution and could work pretty well. Some noteworthy elements:
- "under the interim appeal arbitration procedure, appeals will be heard by former members of the Appellate Body, serving as arbitrators pursuant to Article 25 of the DSU. Three persons will serve on any one case. They will be selected by the Director-General from the pool of available former members of the Appellate Body."
- "The parties agree to abide by the arbitration award, which shall be final. Pursuant to Article 25.3 of the DSU, the award shall be notified to, but not adopted by, the DSB and to the Council or Committee of any relevant agreement."
- "The arbitration shall be initiated by filing of a Notice of Appeal with the WTO Secretariat after the suspension of the panel proceedings referred to in paragraph 7 takes effect, and no later than 10 days after that date. The Notice of Appeal shall include the final panel report in the official languages of the WTO."
- "Under the interim appeal arbitration procedure [WTO Member] and the European Union intend to replicate as closely as possible all substantive and procedural aspects as well as the practice of Appellate Review pursuant to Article 17 of the DSU including an appropriate administrative and legal support to the arbitrators by the Appellate Body Secretariat."
It will be interesting to see how other governments react to the proposal. Perhaps there will be some refinements as others weigh in. We may see a dual approach, where some parties agree not to appeal and other parties agree to use this Interim Appeal Arbitration procedure.
