This is from the U.S. statement at Monday's DSB meeting:
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.
...
The United States continues to consider that the way forward is to understand and recognize the concerns that have been raised with the Appellate Body, and engage in a deeper discussion of why the Appellate Body has felt free to depart from what Members agreed to, so that appropriate solutions can be found.
I've mentioned this U.S. question before, as they keep raising it. I have not seen them answer it and I'm curious what their answer is. Here's a brief and partial answer from me.
I think there are several areas where you could make the case that the Appellate Body has "departed from the rules," in some sense of that phrase. With regard to procedural issues (such as going beyond 90 days for circulation or having AB Members serve beyond their term), it seems to me they were trying to come up with practical solutions to administrative difficulties they faced. As to substantive legal issues (such as treating the meaning of domestic law as a legal question), they simply got the interpretation wrong, as courts sometimes do.
I'm not sure what the U.S. is going for with this question, and I'll just say again that I'd really like to hear their own answer.
