WTO Rules Could Help Circumvent Appellate Body, Trade Lawyer Says

Appeals at the World Trade Organization do not have to "go into the 'void,'" even though the Appellate Body has gone the way of Seeso and the dodo bird, Simon Lester, former legal affairs officer at the WTO's Appellate Body, said in a blog post. Instead, Lester put forth another option: the WTO member party to the dispute could put the dispute panel report on the WTO Dispute Settlement Body agenda for adoption after the 90-day appellate period has run its course. This route would read the WTO's rules to find that the appeal has been completed.

Lester based his case on Dispute Settlement Understanding (DSU) Articles 16.4 and 17.5. Article 16.4 says that if a party has notified its decision to appeal, the panel report will not be considered for adoption by the DSB until after the appeal has been completed. However, Article 17.5 says that "In no case shall the [appellate] proceedings exceed 90 days." Since Article 16.4 does not define "the appeal" as including an Appellate Body report, a notice of appeal starts the delay in adoption and a completion of the appeal ends the delay, Lester said.

The blog post argued that when 90 days have passed since the notice of appeal, a case can be made that the appeal proceedings are completed if both parties have not agreed to an extension of the time period, whether an Appellate Body report has been circulated or not. The parties could then place the dispute panel report on the DSB agenda for adoption, circumventing the Appellate Body process, Lester said.

"Is this interpretation of the DSU a bit of a stretch? Maybe," the post said. "But under the current interpretation, Members can appeal panel reports to an Appellate Body that doesn't exist, thereby preventing a final decision in a dispute for ... well, for a long time so far. To me, interpreting the DSU in a way that allows a void to open up and swallow most of WTO dispute settlement is just as much of a stretch, if not more."