Resolving the WTO Appellate Body Crisis, Volume 2

Further to the December 2019 paper, “Resolving the WTO Appellate Body Crisis: Proposals on Overreach”, this paper suggests additional approaches to reforming the World Trade Organization Appellate Body in order to restore a consensus in favor of its restoration and ensure ongoing, sustainable support for its operation.

That task is more essential than ever as a step towards reinvigorating the WTO so that it may serve as an effective forum for addressing the trade fallout from the coronavirus crisis. Members need not await the end of that crisis to make progress towards the goal of agreeing on steps to make the Appellate Body operate as intended in 1995. Should there be agreement on that goal, Members can advance solutions now, whether as part of provisional arrangements or through efforts to achieve a permanent solution.

The suggestions in this paper could be implemented either through decisions, agreed interpretations or amendments to the Understanding on Rules and Procedures Governing the Settlement of Disputes (the Dispute Settlement Understanding, or DSU). They include:

1) Providing clear guidance that Appellate Body reports do not constitute binding precedent, but may, as with panel reports, be cited for their persuasive value;

2) Replace the Appellate Body secretariat with clerks seconded from the WTO secretariat;

3) Provide guidance on the role of adjudicators and of the Appellate Body that emphasizes their role of assisting WTO Members in resolving disputes rather than making law.

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