This is from a U.S. statement to the DSB yesterday:
- We have listened closely as several Members have criticized the United States. These Members argue that the United States has failed to participate in ongoing discussions on Appellate Body reform.
- These statements are wrong – and appear to represent public posturing by these Members. The facts establish that no Member has been more constructively and consistently engaged on these substantive issues than the United States. Let us set the record straight.
- Over the past year, in the DSB, the United States has outlined its concerns in exhaustive detail. We have not avoided discussion; rather, we have laid out in the clearest possible terms the U.S. position on the issues raised.
- While the DSU text is straightforward and clear, we recognize that the Appellate Body has ignored that text, and many WTO Members had not focused on just how far the Appellate Body’s practice had strayed from that text.
- And so, beyond our detailed DSB statements, we have made clear our willingness to discuss these concerns further with any Member in order to deepen each other’s understanding of these substantive issues. Several Members have participated in these dialogues and in many instances we have found the discussions to be frank and productive.
- In the Informal Process, the United States has been represented at every stage of the process, seeking to gain a better understanding of each Member’s views on the issues raised. As the United States has made clear, it is critical to understand if Members have a common understanding of the concerns raised.
- Unfortunately, one, or perhaps a few, WTO Members have indicated they do not share the concerns of the United States that the Appellate Body has deviated from the DSU text. These Members have not, however, adequately or persuasively explained how they could read the plain DSU text differently. Therefore, where a different understanding has become apparent, we have registered the lack of any DSU textual basis for that different understanding during meetings of the General Council.
- So the United States continues, as it has always done, to be engaged on these important substantive issues, including by meeting regularly with the Facilitator and Members to exchange views on the issues under discussion.
- Indeed, for several months, both within the Informal Process and outside, the United States has actively sought engagement from Members on what we believe to be a fundamental issue. That is, how have we come to this point where the Appellate Body, a body established by Members to serve the Members, is disregarding the clear rules that were set by those same Members. In other words, Members need to engage in a deeper discussion of why the Appellate Body has felt free to depart from what Members agreed to.
- Engagement is a two-way street. Without further engagement from WTO Members on the cause of the problem, there is no reason to believe that simply adopting new or additional language, in whatever form, will be effective in addressing the concerns that the United States and other Members have raised.
Here are some questions I have for U.S. officials: What do you want to see happen now? I know the issues the U.S. is upset about. But what specific actions (and by which actors) do you want to see taken? Are you hoping that the Appellate Body will, on its own, change its approach on some or all of the issues you have raised? Do you want amendments to the DSU to force the Appellate Body to change? Related to this possibility, the U.S. seems skeptical that this would be effective, and keeps raising the question of "why the Appellate Body has felt free to depart from what Members agreed to." So what is the U.S. view on this question?
The discussions of these issues by governments are taking place in private and I don't have a good sense of what is being said. Maybe the answers to my questions are being made clear in there, but this post is intended to let U.S. officials know that most of us are having trouble understanding what they are looking for here.
ADDED: Related to all this, and perhaps as a good illustration, the U.S. said the following at the General Council today:
As we have explained, the Appellate Body ignores that to make an objective assessment under DSU Article 11 is a “function” of a panel, not an “obligation”, and the DSU uses the verb “should” make an objective assessment, not “shall” make. Apparently, further discussion is needed to understand these words to which Members agreed, and to understand why, time and again, the Appellate Body has felt free to review the facts, including through de novo review of the meaning of municipal law.
Is the U.S. saying that DSU Article 11 should be not be the basis of an appeal? I don't think such a position is unreasonable. I'm just not sure what their view is.
