I have a short Cato paper out today on the Multi-Party Interim Appeal Arbitration Arrangement (MPIA). I am excited about the prospects for the MPIA, but I do have some questions, including the following:
What approach will the MPIA take regarding the interpretation of core WTO principles such as the nondiscrimination obligation and public policy exceptions? How often will the MPIA appeal process be used? What kind of legal culture will develop around it, including the approach of the arbitrators and of the litigants themselves? How much deference will the MPIA show toward politically sensitive domestic laws and regulations? How much deference will the MPIA show toward the findings and reasoning of WTO panels? Will the MPIA avoid novel and controversial issues that are put before it or take them on?
This happened too late to make it into the paper, but here's another question: Can the MPIA serve as a template for appeal arbitration beyond the MPIA parties? The EU has just appealed the DS494 panel report "into the void," but perhaps they have filled that void with the following:
In commencing this appeal, in accordance with Article 16(4) of the DSU and Rule 20(1) of the Working Procedures for Appellate Review, the European Union is aware that, as a matter of fact, temporarily, there are currently an insufficient number of Appellate Body Members to constitute a division due to the obstruction of appointments by the United States. In these circumstances, the European Union stands ready, as it will always stand ready, to move, together with the Russian Federation, to final resolution of the dispute in appeal proceedings pursuant to Article 25 of the DSU, on a reciprocal basis, based on the Multiparty Interim Arrangement (MPIA) and an arbitration agreement as set forth in the standard agreed default procedures contained in Annex 1 of the MPIA.
How will Russia (which is not a party to the MPIA) respond to this? As the complainant in the dispute, there is certainly an incentive to go ahead with the arbitration rather than just let the appealed panel report sit out there.
And finally on the subject of appeals, the last Appellate Body annual report (for now anyway) is available here.
