Following up on my last post, the panel report in DS595, EU - Steel Safeguards, was circulated on Friday, which, by the terms of the Article 25 Agreed Procedures in the dispute, means that the parties will not appeal, either through the normal method or the Article 25 alternative. That leaves us with just the one Article 25 appeal for now, in DS583, which I have the following questions about.
1. How will the arbitrator selection process go and who will be the first Article 25 arbitrators?
The DS583 Article 25 agreed procedures say this:
The arbitrators shall be three persons randomly selected, in the physical presence of representatives of the parties, from a combined list of former Appellate Body Members and appeal arbitrators.4 The random selection will be conducted at the same time as the random selection in DS595 European Union — Safeguard Measures on Certain Steel Products, so as to ensure that one randomly selected appeal is heard by two former Appellate Body Members and one MPIA appeal arbitrator whilst the appeal in the other dispute is heard by one former Appellate Body Member and two MPIA appeal arbitrators. If there is only one appeal it will be heard by one former Appellate Body Member, one MPIA appeal arbitrator, and the third person shall be drawn at random from the remaining persons on the combined list. The random selection shall be made immediately after the filing of any notice of appeal and the arbitrators informed immediately.
DS595 was not appealed, so there is only one appeal here and the DS583 appeal "will be heard by one former Appellate Body Member, one MPIA appeal arbitrator, and the third person shall be drawn at random from the remaining persons on the combined list." The random selection is to be made "immediately after the filing of any notice of appeal." That means it should happen soon, if it hasn't happened already. The MPIA list is here; I'm not sure which of the former Appellate Body Members are available to work on this appeal.
2. What kind of award will the arbitrators write?
Different people are likely to have different approaches to appellate review, and what this first group does will set a precedent -- with apologies to those who don't like that word -- and will shape everyone's views of this alternative approach to appeals. How much summarizing of parties' arguments and past cases will the arbitrators do? How extensive will their reasoning be? What will they do with the DSU Article 11 allegation? How will they handle the substantive issues, which deal with some core GATT principles?
Related to this is the issue of how long they will take. The agreed procedures say:
12. The parties request the arbitrators to issue the award within 90 days following the filing of the Notice of Appeal. To that end, the arbitrators may take appropriate organizational measures to streamline the proceedings, without prejudice to the procedural rights and obligations of the parties and due process. Such measures may include decisions on page limits, time limits and deadlines as well as on the length and number of hearings required.
13. If necessary in order to issue the award within the 90 day time-period, the arbitrators may also propose substantive measures to the parties, such as an exclusion of claims based on the alleged lack of an objective assessment of the facts pursuant to Article 11 of the DSU.5
14. On a proposal from the arbitrators, the parties may agree to extend the 90 day time-period for the issuance of the award.
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5 For greater certainty, the proposal of the arbitrators is not legally binding and it will be up to the party concerned to agree with the proposed substantive measures. The fact that the party concerned does not agree with the proposed substantive measures shall not prejudice the consideration of the case or the rights of the parties.
As a general matter, I think arbitrators can finish their reports in Article 25 appeals in 90 days. However, given the circumstances here (i.e., the first such appeal ever) it could be a challenge, and it will require taking a particular approach on the questions I raised above, and not everyone wants to take an approach that can support a 90 day period. What will this group of arbitrators do here?
3. What kind of assistance will the arbitrators receive?
In WTO dispute settlement, the panelists, arbitrators, and Appellate Body Members are assisted by lawyers (and others) from the Secretariat. In the context of the MPIA, during the Trump administration, the U.S. sent a letter objecting to some aspects of Secretariat assistance to the MPIA (e.g., the U.S. argued: "Article 25 provides no basis for the use of WTO resources to support functions that are not part of the arbitration, such as for a 'pool of arbitrators' to 'stay abreast of WTO dispute settlement activities' or to enable the arbitrators to 'discuss among themselves matters of interpretation, practice[,] and procedure.'"). But that was a different administration, and this case is not under the MPIA, so perhaps the U.S. will not have concerns with the Secretariat providing assistance related to this arbitration.
If the Secretariat is going to provide assistance, who exactly would do it? Having former Appellate Body Secretariat staff, who are now in other divisions, play a role could generate U.S. objections (the U.S. letter noted that "the [MPIA] proposal would expend WTO resources to seek to recreate the Appellate Body"), so maybe everyone will try to avoid that. And the Legal Affairs division -- I assume, given the subject matter of the dispute -- assisted on the panel report, so perhaps those folks will be excluded as well. But there are other people in the building with experience in these matters, so it should not be too much of a challenge to find good people. (Thanks to Geraldo Vidigal for conversations about this issue).
