I have been thinking about what may happen with WTO dispute settlement post 10 Dec. 2019, when the Appellate Body will only have one member ...
In a forthcoming JIEL editorial, draft on ssrn here, I start with two “unlikely scenarios”, at least in the short term: the US lifts its block on AB appointments; the General Council, DSB or AB itself unlock the impasse (e.g. by majority voting). Assuming that appeals pending on 10 Dec. 2019 will be carried over under (contested) Rule 15, I then offer four scenarios that are “likely”:
(i) the default risk of appeals “into the void” blocking the panel report,
(ii) no appeal ex post, or an ex ante no appeal pact (NAP),
(iii) Article 25 appeal arbitration,
(iv) “floating” panel reports (or interim panel reports), neither appealed/blocked nor DSB adopted.
I would expect a combination of all four scenarios, depending on the case and parties involved (pursuing cases under alternative dispute resolution procedures and FTAs is another option, as recently discussed in this blog). Neither of them stands out as an obvious candidate to become the “new normal” across the board. Drastic change, yes. The end of a rules-based WTO? Probably not.
