Are we getting closer to the day when DSU Article 25 arbitration is used for WTO dispute settlement appeals, either through the MPIA or outside of it? I have a theory that a successful use of this alternative appeal mechanism could create the incentive for Appellate Body reform, but that's very speculative. And anyway, I'm not sure how close we are to actual Article 25 usage.
Nevertheless, there are two recent developments in this area worth noting.
First, the panel report in the Costa - Rica Avocados dispute (DS524) was circulated last week. On this dispute, let me first reiterate a point I've made before: This report is 474 pages long, which makes me wonder whether the SPS Agreement is the best way to adjudicate these disputes. Could we get to the same result more quickly using basic GATT provisions such as GATT Articles I, III, XI and XX? The issues would be the same, but with fewer legal provisions to parse, it might all go more quickly.
But turning back to DSU Article 25, Costa Rica and Mexico are both parties to the MPIA and had agreed to use the MPIA for appeals in this dispute. But under the procedures they agreed to, an appeal would have had to come prior to circulation of the panel report, so the normal circulation of the report indicates that the parties decided not to appeal. I think the next dispute to keep an eye on for a possible MPIA Article 25 appeal is Colombia - AD Duties on Frozen Fries (DS591).
The second development relates to the DS583 and DS595 disputes between the EU and Turkey. Turkey is not a party to the MPIA, but in both cases the EU and Turkey agreed on March 22, 2022 to Article 25 procedures for appeals (DS583 and DS595). I confess that I'm having a little trouble following what exactly the parties did here.
In the DS583 case, Turkey - Pharmaceutical Products, a communication from the Panel indicates that the Panel had issued its final report to the parties on November 11, 2021, with circulation to the Members (and public) scheduled to take place "as soon as its translation into French and Spanish was finalized, and that translation was expected to be finalized in mid-January 2022."
In the DS595 case, EU - Certain Steel Products, a communication from the Panel says that the panel report "was scheduled to be circulated on 21 December 2021."
In late December 2021, however, both disputes were suspended under DSU Article 12.12.
Then, as noted, on March 22, 2022, Turkey and the EU notified Article 25 procedures in both disputes. Both sets of procedures include the following language:
5. The arbitration shall be initiated by filing of a Notice of Appeal with the WTO Secretariat no later than 30 days after the suspension of the panel proceedings referred to in paragraph 4 has taken effect. The Notice of Appeal shall include the final panel report in the working languages of the WTO. The Notice of Appeal shall be simultaneously notified to the other party or parties and to the third parties in the panel proceedings. Rules 20-23 of the Working Procedures for Appellate Review shall apply mutatis mutandis.
The parties agree that, because the present panel proceedings have already been suspended, the time limit for the filing of a Notice of Appeal shall be no later than 30 days from the date on which this agreement is notified to the DSB.
I'm not totally sure what's about to happen here, and we'll find out for certain 30 days from March 22, but my sense is that notices of appeal are not coming, and the disputes will remain in permanent suspension. But the specific details of the documents are difficult to parse, and it's possible I've misunderstood what the parties are doing here. We'll find out soon enough.
