In July, I mentioned that the the WTO Dispute Settlement Reform Process is underway, and that people can follow it a few weeks behind the actual developments, as meeting minutes are derestricted. The Minutes of the Heads of Delegation meeting from July 18 are now available.
Focusing on the Appeal/Review aspects of the discussions, here are some excerpts from the report by Jessica Dickerson (Australia), on behalf of the Co-Convenors, on the technical work under the DS reform process:
I will turn now to our recent discussions on Appeal/Review. Since our last update, experts have discussed the following sub-topics:
a. Reducing or changing incentives to appeal,
b. Clarifying Members' expectations of adjudicators,
c. Form of the mechanism, and
d. Access to the mechanism.At each of the meetings, Mr. Joel Richards (Saint Vincent and the Grenadines) and I – as the responsible Co-Convenors – provided a summary of the previous discussions and ideas from the informal process under each of these sub-topics, noting the direction from our Ministers and the Facilitator, to build on the progress already made.
In the discussion on reducing or changing incentives to appeal, many Members underscored their interest in preserving the right of appeal so as to correct legal errors. This notwithstanding, several Members also emphasized the importance of establishing guardrails to reduce tactical or frivolous appeals. Further, it was noted by some Members that there needed to be a degree of caution and some balance in not reducing legitimate incentives to appeal. Against this backdrop, there appeared to be some shared interest in exploring how Members could address incentives to appeal through:
a. making better use of interim review at the panel stage;
b. a political commitment to reduce appeals;
c. adjusting the reasonable period of time (RPT) for compliance; and
d. establishing parameters for the scope and standard of review.With respect to clarifying Members' expectations of adjudicators, several Members agreed that it was important to clarify expectations with respect to timeframes, word limits, as well as the output expected from adjudicators. In this regard, several Members expressed the view that it was important to ensure that timelines were met, and that adjudicators' reports focused only on what was being argued by the appellants. Furthermore, several Members thought that it would be beneficial to build on the work from the informal process such as with respect to issues of precedent and judicial economy, which can be applied to appeal/review adjudicators.
In the discussion on the form of the mechanism, Mr. Joel Richards and I encouraged Members to focus on interests and solutions, rather than on whether there should be a two-tier or single-tier dispute settlement system. Many Members underscored that a standing adjudicative body met their interests, which included correctness of decisions, legitimacy, efficiency, predictability, and consistency. However, another perspective expressed was that a standing body did not guarantee correct decisions, and created a perception that the body had greater authority and legitimacy than other adjudicators such as panellists. It was suggested that it could be fruitful to consider the different features of the institutional design of the appeal/review mechanism, with a view to identifying potential reforms. To give an example of one such feature, experts could consider the appointment process for appeal/review adjudicators.
Regarding access to the mechanism, we again encouraged Members to focus on their interests by responding to some discussion questions. Many Members said that automatic, compulsory access was essential to meet their interests. It was noted by several Members that such access protected them against power dynamics and was particularly important for developing Members. Some Members observed that compulsory jurisdiction was vital for the system's legitimacy and for Members' trust in the system. An alternative view expressed was that automatic access to an appeal/review mechanism was not essential to have a system that supported parties to resolve their disputes. Under this view, the parties could decide the features of the system would be useful to them, which would go towards addressing a concern about the perceived superiority of the second tier and the consequences flowing from that perception. In view of the difficulty of finding a middle ground on this sub-topic, it was suggested by some Members that it may be more beneficial to focus on other ideas, including those that would reduce incentives to appeal/review, and by establishing guardrails with respect to the scope and standard of review. In this connection, some Members also considered it important to assess the overall package of reforms and not view the issue of access to the mechanism in isolation.
This is a useful summary, but it leaves me wondering about the prospects for success here. The report mentions "another perspective" and an "alternative view," and presumably that is the United States. So what are the chances that a solution can be found here? Can this question only be answered after we know the results of the U.S. presidential election?
