Reading over some DSU provisions again, I wonder if there is an argument that appeals need not go into the "void" in the absence of the Appellate Body, at least not permanently.
DSU Article 16.4 says: "If a party has notified its decision to appeal, the report by the panel shall not be considered for adoption by the DSB until after completion of the appeal." Thus, a decision to appeal delays the adoption of a panel report until the appeal has been completed.
And Article 17.5 says: "In no case shall the [appellate] proceedings exceed 90 days." In other words, the delay in adoption is expected to be a brief one.
It is worth noting here that Article 16.4 doesn't say, "the report by the panel shall not be considered for adoption by the DSB until after an Appellate Body report has been circulated." Rather, it refers to "completion of the appeal": After the appeal has been completed, the panel report report shall be considered for adoption. So, a notice of appeal starts the delay in adoption, and completion of the appeal ends the delay.
Importantly, Article 17.5 puts a time limit on appeals: 90 days is the maximum. Of course, sometimes appeals do go longer (and this is one issue the U.S. has been complaining about), but the parties in a particular dispute should be able to prevent this. If there are good reasons for an extension, the parties will go along with a delay, but I would think that in most circumstances, either party could insist that the report be circulated within 90 days. The WTO is a member-driven organization after all.
Taking into account both of these provisions, when 90 days have elapsed since the notice of appeal, if both parties have not agreed to an extension in the time period, it seems to me there is an argument that the appeal proceedings are completed, whether or not an Appellate Body report has been circulated (and whether or not an Appellate Body even exists).
As a result, instead of letting a dispute go into the "void" when a Member appeals in the absence of the Appellate Body, perhaps the other Member who is a party to the dispute could just put the panel report on the DSB agenda for adoption after the 90 day appellate period is over, based on the view that the appeal has been completed. This approach would eliminate (void?) the void.
In support of this argument, we could add context such as Article 3.10, which says: "... if a dispute arises, all Members will engage in these procedures in good faith in an effort to resolve the dispute." Is appealing into the void really "good faith"?
And we could question whether there can even be an appeal in circumstances when there is nobody to hear the appeal.
Is this interpretation of the DSU a bit of a stretch? Maybe. But under the current interpretation, Members can appeal panel reports to an Appellate Body that doesn't exist, thereby preventing a final decision in a dispute for ... well, for a long time so far. To me, interpreting the DSU in a way that allows a void to open up and swallow most of WTO dispute settlement is just as much of a stretch, if not more.
UDPATE:
In a comment to this post, someone pointed out that something along these lines happened in the Morocco - Exercise Books case. Maybe I missed that entirely, or maybe I just forgot about it. Either way, here's a brief rundown from the DSB minutes.
August 30, 2021 - Tunisia raises Article 17.5
7.2. ... Tunisia recalled that on 27 July 2021, the Panel had circulated its report to WTO Members, the conclusions of which confirmed the basis for Tunisia's claims under Articles 2.2, 2.2.2, 2.4, 3.1, 3.2, 3.4, 3.5 and 5.3 of the Anti-Dumping Agreement. The following day, Morocco had notified its decision to appeal under Article 16.4 of the DSU in a Notice of Appeal circulated in document WT/DS578/5. Morocco did not, however, provide an appellant's submission "on the same day as the date of the filing of the Notice of Appeal", contrary to Rule 21(1) of the Working Procedures for Appellate Review. In response, Tunisia, which would have liked Morocco to comply with the conclusions of the Panel Report, was obliged to submit a letter on 16 August 2021, stating that it was not in a position to respond to Morocco's arguments, as Morocco had not provided its appellant's submission within the required time-frame. Tunisia was entitled, pursuant to Article 16.4 of the DSU, to request the adoption of the Panel Report in this dispute in accordance with the negative consensus rule. Furthermore, in Tunisia's view, this right might be suspended should Morocco decide to appeal. In that case, the Panel Report shall be adopted after "completion of the appeal", as set out in Article 16.4 of the DSU. For that reason, Tunisia was not requesting at the present meeting that the DSB adopt the Panel Report in this dispute. However, the suspension of Tunisia's right to request the adoption of the Panel Report was not boundless. In particular, Article 17.5 of the DSU provided for a general time-frame of 60 days for completion of the appeal, and the last sentence stated that "[i]n no case" shall the appeal proceedings "exceed 90 days". Therefore, and in light of Tunisia's reading of Article 17.5, the "completion of the appeal" referred to in Article 16.4 could not exceed 90 days from notification of the decision to appeal. It followed, therefore, that the suspension of the right to request the adoption of the Panel Report had to be lifted 91 days after the date of formal notification of appeal. From that point forward, either party should be entitled to request the adoption of the Panel Report in accordance with the negative consensus rule. Morocco had notified its decision to appeal on 28 July 2021, such that the 91st day would fall on 27 October 2021. Therefore, Tunisia would be able to request that the DSB adopt the Panel Report at its meeting on 29 November 2021. Nevertheless, Tunisia, which had spared no effort in seeking the conclusion of this case, intended, before 29 November 2021, to exhaust all available means to resolve this dispute. In order to do so, Tunisia hoped that the Chair would agree to convene a meeting with the parties as soon as possible with a view to reaching an agreement under his leadership, either on the merits of the dispute or on an ad hoc appeal procedure. Tunisia hoped that his prompt involvement would be very useful in reaching common ground in this dispute
September 27, 2021 - Morocco responds, EU weighs in
Morocco:
7.2. ... Once a Notice of Appeal was filed with the DSB, the adoption of the panel report was automatically suspended, pursuant to Article 16.4 of the DSU. The DSB could no longer consider such a report for adoption until after the completion of the appeal. Therefore, until such time as the Appellate Body circulated its report, adoption of the Panel Report depended neither on Tunisia nor on the DSB, including the Chair of the DSB. For that reason, the request made by Tunisia for the Chair of the DSB to become involve could not be justified, since the DSB Chair had no jurisdiction over this report. Contrary to Tunisia's claim, there was no provision regarding the automatic adoption of a panel report if the deadline for completion of an appeal under the DSU had expired. Moreover, the DSB Chair did not have the right to place such a panel report for adoption on the DSB Agenda. In Morocco's view, Tunisia's statement demonstrated a subjective and extraneous reading of the DSU provisions. If Tunisia's interpretations were accurate, the Appellate Body deadlock would not in any way have affected the functioning of the WTO dispute settlement system since panel reports would have been automatically adopted 90 days after the date of filing of the Notice of Appeal. This would be irrespective of whether such reports were reviewed by the Appellate Body. Morocco had not violated Rule 21(1) of the Working Procedures for Appellate Review since it had not filed a written submission. That would be done in accordance with the Appellate Body's working procedures once the Appellate Body became operational. The Panel Report was subject to an appellate review. Pursuant to Article 16.4 of the DSU, the Report shall not be considered for adoption until after completion of the appeal. Thus, consideration by the DSB of a report whereby an appeal had not been completed would be a clear violation of Article 16.4 of the DSU. Consequently, the report in question was outside the purview of the DSB and the DSB Chair. Tunisia's proposed reading of the provisions of the DSU had serious systemic implications for the rights and obligations of the parties to this dispute. Morocco was and remained ready to settle this dispute with Tunisia through bilateral consultations, but was opposed to the proposed mediation by the DSB Chair. As Morocco had indicated on several occasions and most recently to Tunisia, technical consultations at the bilateral level would allow both parties to resolve the substantive issues in this dispute.
EU:
7.6. The European Union also noted that the parties had expressed certain views on the effect of the passage of 90 days without an Appellate Body report in this case. The European Union wished to underscore that Article 16.4 of DSU was clear: "… the report by the panel shall not be considered for adoption by the DSB until after completion of the appeal". While Article 17.5 of the DSU provided for certain time-frames for appellate proceedings, it attached no procedural consequences to the fact that those time-frames were exceeded. Consequently, there was no basis in the DSU for the assertion that a panel report that was under appeal could be adopted by the DSB after the expiry of the 90-day period following the notice of appeal. This was all the more so in the exceptional circumstances where the Appellate Body was unable to function. Indeed, the lack of at least three Appellate Body members was not a legal bar to a Member exercising its right to an appeal, and this was the right of any WTO Member under the DSU. ...
Further discussions took place at the DSB meetings of October 26, 2021, November 29, 2021, December 20, 2021, and January 25, 2022. At the January 25 meeting, Tunisia's statement refers to this positive outcome:
At the present meeting, Tunisia was pleased to inform delegations that on 12 January 2022 the Moroccan trade authorities had sent a proposal, through diplomatic channels via the Capitals, for revision of the dumping margins and review of the assessment of injury and causation, based on the Panel's recommendations. The proposal, which included a recalculation of anti-dumping margins imposed on Tunisian exporters of exercise books, had been received at the end of the previous week by the Tunisian Ministry of Trade and Export Development and was under consideration by its relevant departments. The Tunisian trade authorities wished to thank their Moroccan counterparts and considered this revision to be a constructive basis for the continuation of the consultations. He noted that the Moroccan authorities were continuing their analysis of compliance with the other Panel findings, in particular those relating to injury and causation. Therefore, Tunisia welcomed the intensified level of collaboration with its Moroccan colleagues, and wished to thank the Chair of the DSB, whose good offices and involvement continued to assist the parties to arrive at a mutually acceptable arrangement as quickly as possible.
With regard to the DSU interpretation that was the subject of this post, I do see the flaws in interpreting Article 17.5 in the way I argued for. But I also think this interpretation is less flawed than one in which appeals go into the void.
