This is from Gregory Shaffer, Manfred Elsig and Mark Pollack:
The Trump administration threatens to end the world’s trade court, the Appellate Body (AB) of the World Trade Organization (WTO), by blocking the appointment of new AB judges. In doing so, it risks destroying the rules-based trading system that the U.S. constructed after the end of the Cold War.
The U.S. cites two reasons for its actions. ...
The second argument—that AB members should cease working on cases after their term expires— may seem defensible at first impression. Yet, there are strong counter-arguments against it, based on law, practice, and policy.
First, the Working Procedures of the WTO Appellate Body, created in 1996, provide for the practice: “A person who ceases to be a Member of the Appellate Body may, with the authorization of the Appellate Body and upon notification to the DSB, complete the disposition of any appeal to which that person was assigned while a Member.” This procedure is normal for judges with fixed terms, as reflected in the Rules of the International Court of Justice (Article 33), as well as those of the United States own International Trade Commission (Section 1330 of the U.S. Tariff Act).
Second, this is longstanding WTO practice, and occurs regularly in the years when there is AB turnover. In total, AB members have completed work on panels in fourteen cases after their terms expired. If normal timelines are kept, the extension is for a matter of days or weeks.
Third, there is a reason for the practice. The WTO Dispute Settlement Understanding provides that AB members shall complete appeals in 60 days “as a general rule,” and “in no case shall proceedings exceed 90 days.” The timelines are tight, much tighter than for other courts, and it was the U.S. that insisted on them. If an AB process has already started, there is simply no time for a new judge to step in.
In short, the AB practice is neither irregular, nor new, nor unfounded. It has been in operation for over twenty years, with no complaint from the US or other members.