I have a new piece for the Japan Economic Foundation that asks "Would the United States Join the MPIA?" This is from the conclusion:
The Appellate Body appointments crisis has dragged on for years now. The MPIA represents a solution for any WTO member that wants to ensure that binding dispute settlement is available, and many members have taken advantage of it. However, without US participation in the MPIA, WTO dispute settlement loses some of its luster and effectiveness. Trying to glean US intentions and goals from its various public statements is a challenge, but there do seem to be some key elements that can be inferred, with the avoidance of the “institutional” problems it saw in the Appellate Body at the core.
The chances of the US joining a version of the MPIA may not be high at the moment, as Trump and his likely trade policy team are among the biggest skeptics of WTO dispute settlement and will not be interested in making it more effective. Nevertheless, it is worth laying the foundation for a future US administration to join. The best approach may be to demonstrate the utility of the MPIA over the next several years by using it to help resolve WTO disputes when the opportunity arises. To this end, convincing a few of the holdouts – such as the UK, South Korea, and India – to join would be of great value, so that the MPIA gets more use. On the basis of a strong MPIA record, a case could be made to the next US administration that, if it still objects to having an institution such as the Appellate Body hear appeals from panel reports, the MPIA could serve as an alternative.
The title of the piece is a little misleading, because I'm not imagining the U.S. joining the current MPIA. Rather, as laid out in the paper, I think there might be a version of the MPIA that, along with several other changes to WTO rules, could entice the U.S. to sign on at some point in the (distant?) future.
Here's more from the paper about some things to think about in constructing a version of the MPIA that the U.S. could accept:
With regard to the current version of the MPIA, there might be some features that would raise the same concerns about institutions for the US as it has with the Appellate Body, and therefore might need to be tweaked in a number of ways.
First, as noted, there is a standing pool of 10 MPIA arbitrators, and it may be that the US cannot accept a standing pool of this sort. Having a named set of adjudicators may feel too much like an institution. By contrast, something that looks more like ad hoc arbitration, with the parties selecting the arbitrators in each case without the constraint of a standing pool, might be more acceptable to the US.
Second, once appointed, MPIA arbitrators can meet regularly to discuss the operation of WTO dispute settlement and the arbitration mechanism, which the MPIA arbitrators have done. In this regard, paragraph 5 of the current MPIA rules states:
... In order to promote consistency and coherence in decision-making, the members of the pool of arbitrators will discuss amongst themselves matters of interpretation, practice and procedure, to the extent practicable.
Given US concerns about the institutional nature of the Appellate Body, this provision might not make it into a US-friendly version of the MPIA.
Third, given the experience with the Appellate Body, where there were accusations that the Appellate Body Secretariat played too strong a role in deciding cases, the role of the WTO Secretariat in providing support to any appellate mechanism will be particularly sensitive. The current MPIA rules state:
7. The participating Members envisage that appeal arbitrators will be provided with appropriate administrative and legal support, which will offer the necessary guarantees of quality and independence, given the nature of the responsibilities involved. The participating Members envisage that the support structure will be entirely separate from the WTO Secretariat staff and its divisions supporting the panels and be answerable, regarding the substance of their work, only to appeal arbitrators. The participating Members request the WTO Director General to ensure the availability of a support structure meeting these criteria.
In the only MPIA case that has been heard so far, two Secretariat officials assisted the arbitrators. The US is unlikely to accept this as part of an appellate review process. It would probably prefer having arbitrators hire assistants on an ad hoc basis, with no role for the Secretariat at all beyond administrative tasks such as arranging hearing rooms.