Back in June 2019, when the Appellate Body was hanging on for dear life, I offered this argument for allowing the Appellate Body to decline to offer any reasoning in situations where it was just upholding a panel's finding:
I recently read something about the U.S. Judiciary Act of 1925 (the "Judges' Bill"). Here's an explanation:
The so-called Judges' Bill of 1925 fundamentally redefined the Supreme Court's role within the federal judiciary by repealing much of the mandatory jurisdiction of the Court. The act preserved an automatic right of appeal to the Supreme Court in a few types of cases, but in other areas cases would come to the Court only when the justices granted a writ of certiorari in response to a petition from a party in a case before a lower court. ...
That made me wonder what everyone -- and by that I mean the United States, other WTO Members, and everyone else -- would think of limiting the right of appeal by giving the Appellate Body more discretion over what issues to hear. DSU Articles 17.12 and 17.13 say this:
12. The Appellate Body shall address each of the issues raised in accordance with paragraph 6 during the appellate proceeding.
13. The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the panel.
But what if these provisions said something like this instead: "The Appellate Body shall address as appropriate the issues raised in accordance with paragraph 6 during the appellate proceeding. In this regard, the Appellate Body may uphold the panel's legal findings and conclusions without further elaboration, or it may modify or reverse those legal findings and conclusions."
And then in April 2020, I said something similar in the context of making some proposals for WTO DS reform that might bridge the gap between the U.S. and others:
... The Appellate Body has a tendency to re-do the panel reasoning on most issues that are appealed. This is not strictly necessary, and in many cases the Appellate Body could simply uphold the panel's rationale without going through the reasoning exercise itself. DSU Article 17.13 states, "The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the panel." In practice, the Appellate Body's reasoning often constitutes a modification even where the ultimate result is the same and the Appellate Body classifies its decision as one to uphold. An explicit option to uphold without conducting any new reasoning might change how the Appellate Body approaches its task. For example, Article 17.13 could be revised to say: "The Appellate Body may uphold without further comment, modify or reverse the legal findings and conclusions of the panel." The option to "modify" would then cover the situation where the Appellate Body reaches the same result but with different reasoning.
This change could encourage the Appellate Body to take an approach that it has not been inclined to use under the existing DSU rules. Under those rules, the Appellate Body may not have thought such an approach was permitted, or it may not have wanted to do so. But with such an approach explicitly designated as an option, the appellee in a particular case could push the Appellate Body to take it, and the Appellate Body would feel justified in upholding the panel's finding without any further discussion. Doing so would limit the extent of the Appellate Body's opportunities to clarify, and thus reduce the chances of aggravating a WTO Member.
I don't recall if I was thinking of U.S. Supreme Court-style rules when I wrote that, but there is a parallel there. If the Supreme Court wants to let a lower court decision stand, it can do so. Maybe a WTO appeals body should have similar powers, with the ability to let panel findings stand.
This week I came across something about the Supreme Court "Judges' Bill" again. Here's a brief explanation of the history from Jill Lepore of the New Yorker:
... Originally, the Supreme Court heard essentially every case that reached its chambers; it had little choice. “Questions may occur which we would gladly avoid; but we cannot avoid them,” John Marshall, the longest-serving Chief Justice, wrote in 1821. A century later, in a country whose population had grown tenfold, the Court, still obliged to hear most cases brought before it, was overwhelmed by its backlog. Taft convened a committee that he charged with drafting legislation that would rationalize the Court’s docket. In what became known as the Judges’ Bill, the Justices proposed the certiorari system, by which they would, in most areas of law, be able to exercise their discretion to choose which cases they deemed worthy of their attention. Taft went before the House Judiciary Committee to explain the importance of “letting the Supreme Court decide what was important and what was unimportant.” Congress passed the bill in 1925. “Easily one-half of certiorari applications now presented have no justification at all,” Taft reported in the Yale Law Journal nine months later.
Isn't what was happening at the Supreme Court back then similar to one of the problems the Appellate Body was facing: In appealed cases, everybody was appealing just about everything, and it created so much additional work that the Appellate Body felt the need to abandon the 90 day deadline.
Obviously the analogy here is not perfect, and I don't mean to suggest that a WTO appeals body would need to deny or grant certiorari in a formal way in order for an appeal of an issue to be heard. Rather, having the DSU make clear that the appeals body can uphold a panel finding without further comment could be sufficient here. This approach could speed up the appeals process by eliminating certain issues from appellate consideration, and also give the appeals body the ability to say less sometimes, which could limit the possibility of saying something that a WTO Member disagreed with.