The Multi-Party Interim Appeal Arbitration Arrangement Pursuant To Article 25 of the DSU is here. Annex 1 contains a set of Agreed Procedures that can be used for these arbitrations. Interestingly, the procedures agreed to recently in specific WTO disputes are deviating from Annex 1 in one specific area. Here's paragraph 4 of Annex I:
4. Following the issuance of the final panel report to the parties, but no later than 10 days prior to the anticipated date of circulation of the final panel report to the rest of the Membership, any party may request that the panel suspend the panel proceedings with a view to initiating the arbitration under these agreed procedures. Such request by any party is deemed to constitute a joint request by the parties for suspension of the panel proceedings for 12 months pursuant to Article 12.12 of the DSU.
The parties hereby jointly request the panel to provide for the following, before the suspension takes effect:
i. the lifting of confidentiality with respect of the final panel report under the Working Procedures of the panel;
ii. the transmission of the panel record to the arbitrators upon the filing of the Notice of Appeal: Rule 25 of the Working Procedures for Appellate Review shall apply mutatis mutandis;
iii. the transmission of the final panel report in the working languages of the WTO to the parties and to the third parties.
In the Costa Rica - Avocados case (DS524), however, while the original procedures reflect the language above, there is now a revised version that reads as follows:
4. Following the issuance of the final panel report to the parties, but no later than 10 days prior to the anticipated date of circulation of the final panel report to the rest of the membership, any party may request that the panel suspend the panel proceedings with a view to initiating the arbitration under these agreed procedures. Such request by any party is deemed to constitute a joint request by the parties for suspension of the panel proceedings for 12 months pursuant to Article 12.12 of the DSU.
The parties hereby jointly request the panel to provide for the following, before the suspension takes effect:
i. the immediate transmission of the final panel report, on a provisional basis, to the pool of arbitrators and the lifting of confidentiality for that sole purpose;
ii. the transmission of the panel record to the arbitrators upon the filing of the Notice of Appeal: Rule 25 of the Working Procedures for Appellate Review shall apply mutatis mutandis; and
iii. the lifting of confidentiality with respect to the final panel report, under the Working Procedures of the panel and the transmission of the final panel report, duly adjusted for translation, in the working languages of the WTO to the parties, to the third parties and to the pool of arbitrators.
A similar revision was made in the Colombia - Frozen Fries (DS591) case.
What this change appears to accomplish is to give the arbitrators more time to digest the panel report by getting it to them sooner, which should help them reach a decision within the required time-frame.
