By Sharon Atieno
With barely two months to solve the impasse on the appointment of a new appellate body for the World Trade Organization (WTO), the facilitator of the discussions on a possible solution for overcoming the deadlock, proposed a draft General Council Decision on the functioning of the Appellate Body.
In the communication presented to WTO members on 15th October, 2019, Ambassador David Walker, said he was putting forward the Decision under his own responsibility as facilitator based on the proposals submitted by members and the extensive discussion in the informal process, as well as feedback received since July.
In the July report, he noted that there are areas where Members had shown some degree of convergence such as transitional rules for outgoing Appellate Body members, 90-day deadline, municipal law, issuance of advisory opinions, the role of precedent, the Appellate Body’s overreach as well as regular dialogue between the dispute settlement body (DSB) and the Appellate Body.
The draft which he presented contained some adjustments to these points of convergence, including of linguistic nature and preambular language with reference to the function of the General Council.
“It is now up to Members to see how they wish to take this matter forward,” he said.
He further noted that the adoption of such a General Council Decision should be accompanied by an instruction from the General Council to the DSB to launch the selection process to fill vacant positions.
“Even if action was taken today, the time required to conduct a selection process is such that the Appellate Body will inevitably experience a ‘technical dip’ (i.e. it will fall below the number of members needed to hear a new appeal) as of 11 December,” he said. “The urgency now is to take action to avoid that situation becoming material for Members in resolving a dispute.”
The informal process -initiated by the General Council Chair –involved formal stock-taking sessions, open-ended informal meetings and small group meetings made up of delegations and coordinators that had: tabled written proposals; raised concerns about the functioning of, and the adherence to WTO rules by, the Appellate Body; and made alternative proposals and/or raised follow-up questions on the proposals, issues and convergence elements.
Out of the twelve proposals submitted, reviewed and discussed in the informal process, the African group with a membership of 42 countries had submitted one proposal.
The next General Council meeting is set to take place in the second week of December.