My last post was about how WTO appellate review could be made optional as a temporary solution in order to unblock Appellate Body appointments (i.e., to convince the U.S. to go along with appointing new AB Members). Here's a drafting suggestion for how to put that approach into effect.
This is how the first sentence of DSU Article 16.4 currently reads:
Within 60 days after the date of circulation of a panel report to the Members, the report shall be adopted at a DSB meeting unless a party to the dispute formally notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt the report.
What if we changed the wording slightly, as follows (changes in bold):
Within 60 days after the date of circulation of a panel report to the Members, the report shall be adopted at a DSB meeting unless (1) both parties to the dispute have formally notified the DSB prior to the panel being composed that appellate review will be available for the dispute, and one party formally notifies its decision to appeal, or (2) the DSB decides by consensus not to adopt the report.
With this change, the U.S. gets a system under which it can avoid the Appellate Body if it wants to, by limiting dispute settlement in particular cases to a panel process only. And everyone else gets a dispute settlement system that functions again (no appeals into the void), and appellate review in cases where both parties want it.
Of course, I favor keeping appellate review available in all cases, but sometimes compromises are necessary, and these changes could be done on a temporary basis to prevent this from becoming the permanent approach.
