I have noted previously four agreements between parties in particular disputes to use the MPIA for appeals in the event there is no Appellate Body when the time comes for an appeal. Now we have a similar, albeit much less detailed, agreement to use DSU Article 25 for this purpose in a dispute between Australia and Indonesia. In the agreed procedures for DSU Articles 21 and 22 in DS529, the parties cite to Article 25, although not the MPIA (because Indonesia is not a party to the MPIA), as follows:
6. The Parties agree that if, on the date of the circulation of the panel report under Article 21.5 of the DSU, the Appellate Body is composed of fewer than three Members available to serve on a division in an appeal in these proceedings (hereinafter referred to as "non-functioning Appellate Body"), either Party may appeal the Article 21.5 panel report through resort to the arbitration mechanism outlined in Article 25 of the DSU. In these circumstances, the Parties will agree to Article 25 arbitration procedures to be used in the event of an appeal, before the Article 21.5 panel report is issued to the Parties (but noting the Parties would only resort to Article 25 arbitration if there was a non-functioning Appellate Body on the date of circulation of the Article 21.5 panel report). The Parties will notify all Members of their agreement to resort to arbitration sufficiently in advance of the actual commencement of the arbitration process. In the event of an appeal through resort to arbitration pursuant to Article 25 of the DSU, the Parties will cooperate to enable the arbitrators to notify the award to the DSB and the Council or Committee of any relevant agreement within no more than 90 days from the date of notification of the appeal to the DSB.
The momentum to use DSU Article 25 in these circumstances seems to be building a bit, although of course all eyes are on the U.S. election in November.
