Tom Graham was talking about the Appellate Body at a Georgetown law conference today. I wish I had the full text of his speech, but all I have for now is the Inside US Trade summary, and I'll have to make do with that:
Graham identified four steps he believes will help address what has happened at the Appellate Body. First, he said, those tasked with arbitrating a dispute must have the power to do so -- and those not assigned to a dispute must not be allowed to talk about it.
Second, he argued, the Appellate Body should not accommodate the constant appeals that invoke Article 11 of the Dispute Settlement Understanding, which has to do with a panel’s objective fact-finding. The Appellate Body is not supposed to engage in fact-finding, Graham said, and therefore should entertain Article 11 arguments only in cases where the panel made an “egregious” mistake.
His third contention was that too many members and staff of the Appellate Body operated as if there was only one definitive interpretation of a WTO text, despite the understanding among many WTO architects that the texts included “constructive ambiguity” in order to secure the agreement. This led to gap-filling and overreach, Graham argued, echoing an argument made by the U.S.
Finally, Graham said the dispute settlement system should “carve out” a different track for cases involving trade remedies. Trade remedies cases, he argued, are unique because they have already been litigated domestically via largely open and transparent processes. The outcomes of trade remedy cases also tend to have more direct impacts on jobs and livelihoods, which affect domestic politics, he said.
On the first step, I assume he is talking about the exchange of views, where the three AB Members working on a case talk about the case with the four not working on it (see para. 4 of the AB working procedures). The article also says: "Graham also pointed to 'an over-emphasis on collegiality that shaded into peer pressure to conform and certainly not to dissent' and a 'sense of infallibility' as problematic elements of the culture at the Appellate Body." I don't have strong feelings about the exchange of views, but I can see a concern about different Appellate Body divisions creating conflicting legal standards if they don't talk about cases with the full AB contingent as they are hearing them.
On Article 11, I've said a number of times that I think the AB's approach has created too broad a standard. Graham sounds like he is going for a narrow standard like in Hormones. But do we need Article 11 appeals at all? And what about DSU Article 12.7 appeals?
On the "one definitive interpretation," maybe here he has in mind the AD Agreement Article 17.6(ii) legal standard of review? Or perhaps he is thinking about interpretations more broadly. This is a really difficult issue, because governments who are complainants are going to be pushing a particular definitive interpretation and governments who are respondents are going to be pushing for flexibility. Article 17.6(ii) aside, I'm not sure how to draw the line any better than it has been drawn.
On the trade remedies carve out, Jennifer Hillman has said almost exactly this. I'm curious to hear what the trade policy folks in the Trump administration think of the idea.
