A trade lawyer I know wrote to me with the following comment/question for this blog's readers:
I believe that any resolution of the AB crisis will be “Walker +”, i.e. the Walker Principles plus some face-saving way of addressing “substantive overreach”. As long as we avoid linkage with other issues on the “reform” agenda (like new disciplines on industrial subsidies), a resolution by MC12 is fairly easy to envision.
But then we get to the problem of the pending appeals. There are 18 panel reports under appeal at the moment, 24 appeals and other appeals in total. Surely there will be more by the time the AB crisis is resolved. How on earth are those appeals going to get resolved in a manner that allows the AB to get back to 90 days for “new” appeals (as the Walker Principles would require)? Based on historic patterns, it would probably take three years or so for the new AB just to work through the backlog. New appeals will continue to pile up, and we’ll be right back to where we were at the end of 2019.
It seems like one of those details that could end up derailing the whole thing. I would certainly be interested in people’s views on how to solve this problem. Maybe a “special” AB made up of former members whose sole purpose is to work through the backlog, while the “new” AB starts with a clean slate? But for the United States, at least, that would be pushing in the wrong direction – making the AB even larger, if only for a period of time. In an ideal world, I suppose, everyone would agree to drop the pending appeals and allow the underlying panel reports to be adopted. But it seems unlikely that all of the pending appellants would agree to that. This includes, ironically, the United States – it has five pending appeals, including Lumber and DS543. No way is it letting those go.
I think these are great questions, and I'm not sure I have the answers. Any thoughts from readers?