NFTC Outlines Proposals to Solve WTO Appellate Body 'Crisis'

World Trade Organization members should take several steps to resolve the WTO’s dispute settlement system “crisis” (see 1912090031), including better enforcement of the 90-day time frame for appeals and prohibitions on advisory opinions, according to a report by Bruce Hirsch of Tailwind Global Strategies and commissioned by the National Foreign Trade Council that was released Dec. 17. WTO members should also consider issuing guidance on Articles 3.2 and 19.2 of the Dispute Settlement Understanding to clarify that it “does not justify expanding or narrowing the reach of WTO provisions or filling gaps.” In addition, “customary rules of interpretation of public international law” should “not justify gap-filling and expanding or narrowing the reach of WTO provisions,” the report said, and members should better address disagreements surrounding the appellate body’s findings on antidumping issues. Lastly, members should direct the body to “reject party arguments that expand or narrow the reach of agreement provisions or fill gaps in agreements.”

WTO members should “continue their urgent consideration of solutions,” the report said, and could “seek to operationalize a path forward” with these proposals. The report said the body should play a “limited role” in disputes and rulings should not be revisited. “The long-term success of the WTO dispute settlement system depends on its operating with the full confidence and support of all of the WTO Membership,” the report said, “not least that of major players like United States.”