In a recent post on appeal/review issues being discussed as part of the WTO dispute settlement reform process, I quoted something that referenced "an updated draft of the document known as the Appeal/Review Tables, which will reflect the progress made in the discussions since the summer break in Geneva." These tables were not available at that time, but the WTO has now posted them (the appeal/review section of the document starts on p. 19). There's a lot in there, and I won't get to all of it in this post, but I will offer a few comments on specific aspects.
There are six general categories of issues covered: Scope of review; standard of review; form of the mechanism; reducing/changing incentives to appeal; clarifying Members' expectations of adjudicators; and access to the mechanism. Then for each individual item in the table, there are the following headings: "Element," "Current system," "Reform idea(s)," "Key Objective(s)," "Observations"
The first category is "A) Scope of review." For the element "Filters, criteria or admissibility tests for claims," there are the following reform ideas:
1. Limit the appeal/review claims that would be assessed on their merits to those errors of law that would, if established, have a material impact on the respondent's implementation obligations with respect to a measure. ...
2. Create a leave to appeal or permission to appeal mechanism so that only alleged errors of law that were (a) raised with the panel during interim review; and (b) with a real prospect of success, would be considered by the adjudicators.
I like the idea of limiting the appeals that will be considered, but it seems to me that evaluating "material impact ... on implementation" or "real prospect of success" would be challenging. (And as I'll get to later, I'm skeptical about the interim review process in general, but putting my doubts aside, I'm not sure this would be much of a limitation for appeals given how many issues are generally raised there.) As an alternative appeal filtering idea, it may be worth just giving adjudicators discretion as to whether to rule on a specific appeal. The two approaches get you to a similar place, albeit with some important differences: A pure discretionary approach would save a lot of time and effort, but it would be less transparent as to why review of a specific appeal had been rejected. A decision about which approach to adopt would have to weigh and balance these factors.
The second category is "B) Standard of review." For the element also entitled "Standard of review," there are the following two reform ideas:
1. A high or limited standard of review that gives some deference to the panel such as:
a. a standard under which an appellant must establish that the panel's decision on a legal issue was 'clearly erroneous' or 'plainly unreasonable'; or
b. an approach whereby the appeal/review adjudicators would first consider whether the panel's interpretation was reasonable/permissible based on the customary rules of interpretation of public international law. The appellant's interpretation would only be considered if the panel's interpretation was unreasonable/impermissible.
2. Standard of review under which an appellant must establish that the panel:
a. was guilty of gross misconduct, bias, or serious conflict of interest, or otherwise materially violated a rule of conduct;
b. seriously departed from a fundamental rule of procedure; or
c. manifestly exceeded its powers, authority or jurisdiction, and any of these acts by the panel materially affected the decision and threatens the integrity of the process.
I have questions about the first one, and I'm not a fan of the second one.
On the first one, one question is whether this applies only to legal interpretation questions or also to law application questions. Sub-paragraph (a) talks about "the panel's decision on a legal issue," while sub-paragraph (b) refers to " the panel's interpretation." It seems to me that the scope of these two things may be different, with the former possibly applying to the application of the law to the facts of the case. Another question is, how exactly would this standard be applied in practice? It might be helpful if the proponents of this approach could offer up some examples of panel findings that were reversed by the Appellate Body but would not be reversed under their approach.
On the second one, I'm just not sure this sort of appeal standard would be of much use. I don't think panels violate any of these standards very often, and such a standard would not allow an appeals body to carry out the valuable role of providing coherence in the interpretation of WTO rules.
The third category is "C) Form of the mechanism." For the element "Nature of the body," there are the following reform ideas:
1. Ad hoc selection of adjudicators, possibly drawn from a pool, roster or list.
2. Increase the number of standing adjudicators.
3. A mix of standing and ad hoc adjudicators (such as one standing Member and two ad hoc adjudicators in a Division).
4. In lieu of a separate appeal/review stage, add additional adjudicators (from a pool or through a process similar to panel composition) at the interim review stage of the panel proceedings to review and test the panel's conclusions.
5. In lieu of appeal/review by adjudicators, review of the panel's conclusions by a committee of WTO Members.
I find #1 to be the most interesting (and #3 as well, as a modified version of it). If I understand the U.S. objections to the Appellate Body correctly, they have a concern with the institutional nature of the Appellate Body. Shifting to ad hoc arbitrator appointments could help address the U.S. concern. (I'll have more to say about this in a coming paper).
On #4, as mentioned, I'm an interim review skeptic, which I will get to later. However, adding new adjudicators to the existing mix at this stage of the process is kind of fascinating. If you start with 3 panelists, and then add 2 more for the interim appeal/review process, what would that look like in practice? What if you added 4 new ones? My instinct is that it would all be a bit of a mess, but I'd like to watch it play out just to see.
And on #5, I don't have any objection to a WTO committee of this sort, but it doesn't seem like it would accomplish the things that people are looking for an appeals process to do.
The fourth category is "D) Reducing/changing incentives to appeal." For the element "Political commitment by Members to reduce appeals," there is the following reform idea:
1. Members give a collective, non-legally binding, political commitment to file appeals only in 'exceptional circumstances'.
I like this one. I'm not sure how much of an impact it would have, but I think it's possible that it could help change the culture surrounding appeals, and it's worth a try. Perhaps it would lead to fewer appeals filed and/or fewer appealed issues in cases that are appealed.
Then for the element "Enhancing use of interim review," there are the following reform ideas:
1. With respect to any claim relating to the panel's assessment of the facts, require the substance of the claim to be raised with the panel at the interim review stage, as an admissibility requirement to a party bringing an appeal/review claim. This would not apply to factual errors in the final report that were not in the interim report.
2. With respect to any claim relating to the panel's legal interpretation or application of the law to the facts,
require or incentivize Members to raise the substance of the claim with the panel at the interim review stage. This would include:
a. Strongly encouraging parties to do so.
b. Requiring a party to state in its notice of appeal whether an issue was raised during interim review, but with no consequence if an issue was not raised.
c. Creating a link to the Accountability Mechanism in the Draft Consolidated Text (Title X) to monitor Members' behaviour with respect to interim review.
3. Extend the time for the panel to conclude its work at the interim review stage.
As an outside observer who reads all the interim review sections of panel reports, I'm not convinced that the interim review process is worth the effort. But maybe there are things I'm missing and the people who actually litigate these cases can convince me it has great value. Regardless, from what I can tell, most Members seem to like interim review, so it is probably not going anywhere. Members often raise a wide range of issues during the interim review process, so making this a requirement in order to file an appeal would not be too much of a burden.
The fifth category is "E) Clarifying Members' expectations of adjudicators." For the element "Adjudicators' output (decisions or reports)," there is the following reform idea:
2. Clarify that previous reports are not binding on adjudicators.
There has been a lot of talk about the role of precedent as part of the dispute settlement reform process, and at times there have been suggestions phrased along the lines of "adjudicative reports shall have no precedential effect." I've complained about that here on this blog, noting that precedential effect can range from binding to persuasive, and "no precedential effect" goes too far. From what I can tell, previous reports are not generally treated as binding in practice, which the "cogent reasons" approach developed by the Appellate Body made (somewhat) clear; and we wouldn't want to preclude past reports from being used as persuasive authorities. Nevertheless, if people want to emphasize that previous reports are not binding, as the proposal does, and perhaps try to reduce the role of precedent slightly by changing the culture surrounding citing and relying on past reports, I don't have a problem with that, as long as the reports retain their persuasive authority.
The sixth category is "F) Access to the mechanism." For the element "Method of accessing the mechanism," there is the following reform idea:
1. Access to the mechanism by agreement (bilaterally or plurilaterally) of the disputing parties on a one-off or ongoing basis.
This one is interesting because, if I understand it correctly, it makes appellate review optional, allowing individual Members to opt in/out. I don't think this is ideal, but if the U.S. ultimately decides -- as seems to be its view now -- that it cannot accept an appeals mechanism for cases it is involved in, this approach could get us to a functioning tw0-track system in which most Members can have access to an appeals body in cases between each other, but then U.S. cases can be limited to just a panel stage. Currently, the MPIA seems like a plurilateral, ongoing example of this approach, and perhaps a variation of the MPIA could be formally incorporated into the DSU.
