This is from the U.S. statement at today's DSB meeting:
As discussions among Members continue, the dispute settlement system continues to function.
The central objective of that system remains unchanged: to assist the parties in the resolution of a dispute. As before, Members have many methods to resolve a dispute, including through bilateral engagement and mutually agreed solutions.
For instance, today, the United States appealed the compliance Panel’s report in DS436.
While no division can be established to hear this appeal at this time, 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.
Consistent with the aim of the WTO dispute settlement system, the parties should make efforts to find a positive solution to their dispute, and this remains the U.S. preference.
The panel report in question was in an Article 21.5 dispute related to various U.S. countervailing duty measures.
So what happens to the case now? This U.S.-India conversation presents an opportunity to see if there is some alternative appellate process the Trump administration can accept. We have heard a lot about the U.S. concerns, but we have not seen a specific U.S. proposal for what it would consider an improved process. Maybe India is about to see one. I can imagine the U.S. would propose something along the following lines:
-- the adjudicators would have trade remedy expertise and would be assisted by independent clerks rather than WTO staff
-- there would be no DSU Article 11-type appeals
-- the scope of appeal would be limited and agreed in advance by the parties
-- there would be a standard of review along the lines of the second sentence of AD Agreement Article 17.6(ii)
-- the time-frames would be strictly observed
The U.S. is setting the agenda, but there are other actors who have a role here. India needs to think about what it wants to do now. Could it reach agreement with the U.S. on an appellate process? In the alternative, would it go forward with retaliation right away, based on the illegitimacy of an appeal into the void, as the EU is considering? Is there a mutually agreed solution possible in this case?
And then there is the Appellate Body. There is one Appellate Body Member left, and some unknown (to me) number of AB Secretariat staff still around. Could they issue a report saying they are unable to complete the appeal, and then the panel report and that short AB report could be put up for adoption?
