In the last post, I talked about what might happen as a result of the U.S. appeal "into the void" of the Article 21.5 panel report in DS436. Let me now add to the confusion. The full text of the U.S. appeal, as posted in WTO Docs Online, is as follows:
Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), the United States hereby notifies the Dispute Settlement Body of its decision to appeal issues of law covered in the report of the Panel in United States – Countervailing Duty Measures on Certain Hot-Rolled Carbon Steel Flat Products from India: Recourse to Article 21.5 of the DSU by India (WT/DS436/RW & WT/DS436/RW/Add.1) and legal interpretations developed by the Panel.
At this time, no division of the Appellate Body can be established to hear this appeal in accordance with DSU Article 17.1. The United States will confer with India so the parties may determine the way forward in this dispute, including whether the matters at issue may be resolved at this stage or to consider alternatives to the appellate process.
But under the Working Procedures for Appellate Review, the requirements for a notice of appeal are as follows:
Commencement of Appeal
20.
(1) An appeal shall be commenced by notification in writing to the DSB in accordance with paragraph 4 of Article 16 of the DSU and simultaneous filing of a Notice of Appeal with the Secretariat.
(2) A Notice of Appeal shall include the following information:
(a) the title of the panel report under appeal;
(b) the name of the party to the dispute filing the Notice of Appeal;
(c) the service address, telephone and facsimile numbers of the party to the dispute; and
(d) a brief statement of the nature of the appeal, including:(i) identification of the alleged errors in the issues of law covered in the panel report and legal interpretations developed by the panel;
(ii) a list of the legal provision(s) of the covered agreements that the panel is alleged to have erred in interpreting or applying; and
(iii) without prejudice to the ability of the appellant to refer to other paragraphs of the panel report in the context of its appeal, an indicative list of the paragraphs of the panel report containing the alleged errors.
It's hard to see how the U.S. notice satisfies any of the requirements of sub-paragraph (d). Was the nature of the appeal described elsewhere but not circulated? If not, and this is not a proper appeal, what are the implications for what happens now in the DS436 dispute?
