The Appellate Body circulated its report in the Australia - Plain Packaging case today. I've only just started reading, but this passage jumped out at me:
6.48. The sheer volume of the appellants' claims under Article 11 of the DSU in these appellate proceedings is unprecedented. We recall that a claim that a panel has failed to conduct an objective assessment of the matter before it is "a very serious allegation".225 Not every error by a panel amounts to a failure by the panel to comply with its duties under Article 11, only those which, taken together or singly, undermine the objectivity of the panel's assessment of the matter before it.226 Indeed, as an example of the grave implications of claims brought under Article 11, the Appellate Body has considered that a panel's "[d]isregard", "distortion", and "misrepresentation" of evidence, "in their ordinary signification in judicial and quasi-judicial processes, imply not simply an error of judgment in the appreciation of evidence but rather an egregious error that calls into question the good faith of a panel".227 For these reasons, the Appellate Body has urged Members to consider carefully "when and to what extent to challenge a panel's assessment of a matter pursuant to Article 11".228 This is in keeping with the objective of the prompt settlement of disputes, and the requirement in Article 3.7 of the DSU that Members "exercise judgement in deciding whether action under the WTO dispute settlement procedures would be fruitful".229
As I've said many times now, I think the Appellate Body's approach to DSU Article 11 was its biggest mistake over the years. The Article 11 standard seemed kind of broad at times, and that encouraged parties to bring more Article 11 appeals.
So that's it for the Appellate Body, at least for now. No more reports are coming. (I'm not sure what will be done with the 11 panel reports that have been appealed).
What happens now? The establishment of the MPIA is moving along, with 21 parties and a pool of arbitrators likely to be coming soon. Will the MPIA work as a way for those 21 to maintain an appeals process? Will it work so well that others will sign on to it? Will it move from being interim to being permanent? Could it become the basis for a revived Appellate Body? It's hard to predict any of this at the moment.
ADDED: On the issue of DSU Article 11, I agree generally with the separate opinion at paras. 6.523-543.
