This is from the U.S. statement at the November 22 DSB meeting:
7. APPELLATE BODY MATTERS
A. STATEMENT BY THE CHAIRMAN
B. APPELLATE BODY APPOINTMENTS: PROPOSAL BY ARGENTINA, BRAZIL, CHILE, COLOMBIA, COSTA RICA, ECUADOR, EL SALVADOR, EUROPEAN UNION, GUATEMALA, HONDURAS, HONG KONG, CHINA; MEXICO, NICARAGUA, NORWAY, PAKISTAN, PERU, RUSSIAN FEDERATION, SINGAPORE, SWITZERLAND, SEPARATE CUSTOMS TERRITORY OF TAIWAN, PENGHU, KINMEN AND MATSU; TURKEY, URUGUAY AND VIET NAM (WT/DSB/W/609)
- The United States thanks the Chair for his continued work on these issues.
- We are not in a position to support the proposed decision.
- Mr. Ramirez continues to serve on an appeal, despite ceasing to be a member of the Appellate Body nearly 5 months ago.
- In the U.S. view, we cannot consider a decision launching a selection process when a person to be replaced continues to serve and decide appeals after the expiry of their term.
- As noted in past meetings, the DSB has a responsibility under the DSU to decide whether a person whose term of appointment has expired should continue serving. The United States considers that Members need to discuss and resolve that issue first before moving on to the issue of replacing such a person.
- As also noted previously, the United States would welcome Mr. Ramirez’s continued service on the remaining appeal to which he was assigned prior to June 30. In fact, we do not understand any Member to object to his service on this appeal. In that circumstance, it should not be difficult for the DSB to take up its responsibility to adopt an appropriate decision.
- Mr. Chairman, the United States has continued to convene meetings to discuss this issue informally with a number of delegations. This outreach has been productive in that we believe we have heard a general recognition that the DSB has the authority to set the term of an AB member under DSU Article 17.2; it follows that the DSB has a responsibility to decide whether a person should continue serving beyond that term.
- We have also heard agreement from several delegations that Rule 15 raises difficult legal questions that the DSB should address.
- In the course of our engagement, we have not heard delegations reject the importance of the issue we have brought to the DSB’s attention. To the contrary, we have heard a willingness of delegations to work together on this issue to find a way forward.
- We therefore will continue our efforts and our discussions with Members and with the Chair to seek a solution on this important issue.
The specific issue here is whether Appellate Body Members can continue to serve and decide appeals after their term expires. Here is Rule 15 of the Appellate Body Working Procedures:
15. 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, and that person shall, for that purpose only, be deemed to continue to be a Member of the Appellate Body.
Under this rule, the Appellate Body is able to authorize this extended service on its own, and simply has to notify the DSB of its action. The U.S. concern here seems to be that the DSB is not playing a sufficient role in the extension of Appellate Body Member terms in these circumstances.
Is there some role the DSB could play that would satisfy everyone? Requiring a consensus at the DSB in favor of extending service could be a mistake, because a party facing an appeal it expects to lose would have a reason to object to the extension, in order to slow down the Appellate Body's work. Instead, perhaps the reverse consensus rule could be useful here: The Appellate Body Member's term would be extended by the DSB unless all WTO Members were opposed.
People on the ground in Geneva may have a better sense than I do of the discussions that are taking place. Is the U.S. making specific proposals, along the lines of this one or something else? How are other Members reacting to such proposals? It seems like there must be a reasonable resolution here.