The law firm Sidley Austin has been hosting a series of Webinars about the Multi-Party Interim Arbitration Arrangement. Because Geneva-based delegates are the principal speakers, the Webinars provide some insights into the intentions of MPIA parties.
One issue sometimes raised regarding the MPIA is the extent to which it seeks to offer reform models that respond to critiques of the Appellate Body. The MPIA takes some steps in that direction, such as:
the 90-day time-limit can be extended only with the parties' agreement, and procedural tools (such as page limits) are offered to help the arbitrators achieve it;
an authorization for arbitrators to propose (but not impose) that the parties take "substantive measures", such as dropping Article 11 claims, and
a sort of judicial economy clause, under which the arbitrators "shall only address those issues that are necessary for the resolution of the dispute".
At today's Webinar, another issue emerged: the role of the WTO Secretariat. The MPIA is notably vague on this point, envisaging only that the arbitrators be provided with "appropriate administrative and legal support", which would be separate from the WTO Secretariat staff and its Divisions supporting panels and "would be answerable, regarding the substance of their work, only to appeal arbitrators". The MPIA asks the Director-General to ensure the availability of a support structure meeting these criteria.
At the Webinar, one issue raised was whether Secretariat support will be along the lines of the AB Secretariat, or whether it might take a different form. For example, will it be provided by a structured support unit, or an an ad hoc basis? Perhaps more significantly, will the support team report to the arbitrators collectively, or would support be provided by individual staff to specific arbitrators, along the lines of US judicial clerks? This latter approach has been advocated as a possible AB reform by some observers.
The EU and Chinese delegates, speaking in their personal capacities, seemed to favor replicating the AB Secretariat, because this would favor consistency and coherence. However, the vagueness of the MPIA on this point suggests that not all parties share that view. The decision in any event is left to the Director-General, who therefore has an important decision to make. It will be interesting to watch how this plays out.