What is the scope of party modifications to the DSU for particular cases, and could it help with the Appellate Body appointment crisis? It may not be an ideal solution, but take a look at the following example and see if it could be applied to the Appellate Body crisis.
Article 17 of the DSU is very clear that the Appellate Body must circulate its report within 90 days:
5. As a general rule, the proceedings shall not exceed 60 days from the date a party to the dispute formally notifies its decision to appeal to the date the Appellate Body circulates its report. In fixing its timetable the Appellate Body shall take into account the provisions of paragraph 9 of Article 4, if relevant. When the Appellate Body considers that it cannot provide its report within 60 days, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period within which it will submit its report. In no case shall the proceedings exceed 90 days.
And yet the participants to an appeal have, in a number of cases, agreed to extend that period. Here's an example, from U.S. - Cotton Subsidies:
8. After consultation with the Appellate Body Secretariat, Brazil and the United States noted, in letters filed on 10 December 2004, that it would not be possible for the Appellate Body to circulate its Report in this appeal within the 90-day time limit referred to in Article 17.5 of the DSU. Brazil and the United States agreed that additional time was needed for several reasons: the issues arising in this appeal were particularly numerous and complex compared to prior appeals, which increased the burden on the Appellate Body and WTO translation services; WTO translation services were unavailable during the WTO holiday period; and the Appellate Body was likely to be considering two or three other appeals during the same period. Brazil and the United States accordingly confirmed that they would deem the Appellate Body Report in this proceeding, issued no later than 3 March 2005, to be an Appellate Body Report circulated pursuant to Article 17.5 of the DSU.
In recent years, the Appellate Body's decision to take more than 90 days without getting agreement from the participants first has been controversial. But with an agreement between the participants in place, the practice did not appear to be too controversial when it was initially used.
If extending the period for circulation beyond 90 days is acceptable, despite the clear obligations in the DSU, and such reports can be "deemed" to be "an Appellate Body Report circulated pursuant to Article 17.5," are there other DSU provisions that could be modified with the agreement of the participants? With regard to the Appellate Body appointment crisis, I'm wondering if any of the following modifications might help.
First, DSU Article 17.1 says:
A standing Appellate Body shall be established by the DSB. The Appellate Body shall hear appeals from panel cases. It shall be composed of seven persons, three of whom shall serve on any one case. ...
But perhaps the participants could agree that, in a particular appeal, it would be sufficient for one Appellate Body Member to serve on the case.
Second, DSU Article 17.2 says:
The DSB shall appoint persons to serve on the Appellate Body for a four-year term, and each person may be reappointed once. ...
Perhaps the participants could agree that, in a particular appeal, the four-year term limitation would be suspended, and a recently expired term would be extended.
Taking this even further, perhaps the participants could simply agree to have the case heard by people other than currently appointed Appellate Body Members. Former Appellate Body Members is the logical place to look for candidates, but really it could be anyone the participants want. Putting this into practice, the U.S. - Cotton Subsidies language quoted above could be adapted along the lines of the following:
After consultation with the Appellate Body Secretariat, Member 1 and Member 2 noted, in letters filed on _____, that the failure of WTO Members to agree on nominations to the Appellate Body has resulted in the inability of the standing Appellate Body to hear this appeal. Member 1 and Member 2 have therefore agreed that _______, ______, and _______ will serve as the Appellate Body Division in this appeal. Member 1 and Member 2 confirmed that they would deem the Appellate Body Report in this proceeding to be an Appellate Body Report circulated pursuant to Article 17.5 of the DSU.
There are a number of other solutions out there already, but I thought I would add these ideas into the mix.
