This is from a recent speech by WTO DDG Alan Wolff:
For dispute settlement, agreement will in the end be needed on a single mechanism to which all who seek to litigate would subscribe. Any appellate stage must be accountable to the WTO Members as a whole.
There are interim steps that can be considered if an early agreement is not possible. One possibility:
- Any who choose to litigate would be required at the outset, when a panel is requested, to come to an agreement with the other party or parties as to whether the panel decision would be final and if not, whether it would be subject to arbitration or an alternative arrangement (such as the EU and a number of other WTO Members have agreed). No complaint could be brought without an understanding that the end result would be final.
As a temporary solution to the Appellate Body appointment crisis, I like the idea of there being an option whether to have appellate review or not. I'm not sure how you "require agreement" between the parties though. Doesn't that allow the responding party to avoid agreement in order to delay the case?
To make this idea work, you might need to create a default approach, from which there can be deviation by agreement of the parties. For example, the default could be that the panel report is not subject to appeal, but if both parties agree at the outset, there could be appeal to the Appellate Body (if AB Members are appointed) or the MPIA. That might be enough to bring the U.S. on board, because it could avoid appeals when it wanted to.
