I have been asked by several people what will happen with the 10 pending appeals that will (apparently) not be carried over next week. Indeed, according to press reports only 4 of the 14 currently pending appeals, for which hearings already took place, will continue under Rule 15 (Note that, technically, 3 more appeals could be filed before next Wednesday as, in the last couple of weeks, 3 more panel reports have been circulated, but not yet been adopted by the DSB, nor appealed; more panel reports could also be circulated between now and next Tuesday).
Upon reflection, the answer is not straightforward.
Remember, for pending appeals, the Division of 3 ABMs has already been selected. Such selection takes places as soon as the appeal is filed.
Yet, next Wednesday, Dec. 11, for each of these pending appeals, there will no longer be the required 3 AB members on the Division (I am assuming that either Mr. Graham or Mr. Bhatia, most probably both, are on all 10 of these pending appeals and that Rule 15 would not be exercised for these 10 appeals, neither for Mr. Graham, nor for Mr. Bhatia).
At least four possibilities I can think of:
1. Nothing happens, and the appeals stay put, either “forever” or until new AB members are appointed. In the latter case, though, the question remains: can 1 or 2 (and post Nov. 2020, when also Ms. Zhao’s first term will end, possibly 3) randomly selected new AB members simply take the vacant spots? Rule 13 of the AB working procedures (WP) on “replacement” addresses situations referred to in Rule 6.3 (AB members "excused", incapacity or resignation). Rule 13 does not explicitly cover replacement of ABMs where an ABM’s term simply lapsed. Note also that any ABM on a pending case who serves on that case pursuant to Rule 15 (technically, Mr. Servansing could still be on EU – Energy, DS476, as this appeal was filed on 21 Sept. 2018 and Mr. Servansing’s term ended on 30 Sept. 2018) would formally continue to sit on that case until its completion. So, even if new ABMs were only appointed in, say, 2022, Mr. Servansing could still be on the division in DS476, albeit then with 2 new ABMs ...
2. The appellant(s) could withdraw the appeal, but then the appeal still needs to be “completed” somehow before the panel report can be adopted by the DSB (DSU Art. 16.4 provides that “[i]f a party has notified its decision to appeal, the report by the panel shall not be considered for adoption by the DSB until after completion of the appeal"). This happened in India – Autos (DS146/175): India withdrew its appeal, pursuant to Rule 30.1 of the WP and, subsequently, the AB division issued a report ending the appeal. But here, post Dec. 10, there will no longer be a functioning Division, so can there even be an “AB report” ending the appeal? If not, does this mean that pending appeals cannot even be withdrawn?
3. Both parties in a pending appeal may reach a “mutually agreed solution”, including an agreement to end the appeal (so the underlying panel report can be adopted) or an agreement to get the appeal decided following Art. 25 appeal arbitration, possibly using the same 3 (former) ABMs. Rule 30.2 of the WP provides for "mutually agreed solutions". But here again, how would the appeal then formally be “completed” given that there is no functioning Division? Or is a formal AB decision not needed to complete an appeal in case of mutual agreement (or even in case of unilateral withdrawal, option 2 above)? "Completion" may be required for DSB adoption, but perhaps not for a settlement or Art. 25 arbitration?
4. Given the uncertainties above, could it be that the Divisions in these 10 pending appeals come out with a decision by Dec. 10, formally “completing” the appeals (in which case the underlying panel report could be automatically adopted by the DSB within 30 days unless, of course, the parties agree before that to settle or send the appeal to Art. 25 appeal arbitration)? Could these Divisions even do this? Could they (or the remaining 3 AB members, collectively or individually) do anything else before next Wednesday?
All of this makes me think that it would be very useful (and avoid many headaches in the future) for the General Council next week to explicitly address what will happen not just with the 4 appeals where the hearing already took place (these will probably just continue under Rule 15) but also with the other 10 (or possibly more) appeals for which no hearing was held yet.
Am I missing something? Comments welcome!
One final thought: let’s not forget that, as of next Wednesday, Dec. 11, there will still be one AB member in office (Ms. Zhao, until Nov. 2020): for appeals “into the void” filed post-Dec.10, will she automatically be put on the Division (awaiting new ABMs) or would a Division only be composed if and when new ABMs are appointed (so that Division composition can be done “in rotation” and by “random selection” in line with DSU Art. 17 and Rule 6.2 of the WP, even though in the last couple of years not much of a “rotation” or “randomness” has taken place anyhow)?
These are really unprecedented times. Keeping heads cool will be key.
