At the last DSB meeting, the U.S. offered a detailed criticism of the Appellate Body's recent practice of taking longer than 90 days to circulate its reports. It's too long to quote the whole thing, but here is a part of it:
5. STATEMENT BY THE UNITED STATES CONCERNING ARTICLE 17.5 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE
SETTLEMENT OF DISPUTES
The United States requested this agenda item to draw Members’ attention to the repeated issuance of Appellate Body reports beyond the 90-day deadline mandated in the DSU.
For too long, the Appellate Body has ignored the clear text of the DSU. We want Members to read that rule together and to decide: do the words in the WTO Agreement matter? Or is the Appellate Body free to disregard and effectively re-write those words whenever it thinks that is necessary or appropriate?
Similarly, for too long, WTO Members have failed to fulfill their responsibility, acting through the DSB, to apply and administer the relevant rules. Although some Members have spoken out, by failing to acknowledge and address this problem collectively, we have worsened the problem, as the facts will show.
Through this statement, the United States intends to re-start a discussion among Members on whether we understand and respect the rules we have written. To facilitate that discussion, in this statement we will highlight five aspects of this issue for Members.
First, we will highlight the text of Article 17.5 and the mandatory requirement to complete appeals in no more than 90 days, with no exceptions.
Second, we explain that the Appellate Body’s pre-2011 practice respected this rule and, when there were deviations, it was only with the agreement of the parties.
Third, we will draw Members’ attention to the inexplicable change in the Appellate Body’s practice in 2011.
Fourth, we will discuss the result of this change; namely, appeals are taking longer and longer.
Finally, we will conclude by explaining the serious consequences for the WTO dispute settlement system of the Appellate Body’s repeated, flagrant breach of Article 17.5.
Here is some data on the timing of the circulation of Appellate Body reports since 2016:
|Decision||Notice of Appeal|
|EU - PET (Pakistan) (AB)||Aug 30, 2017||259||May 16, 2018|
|EC - Aircraft, Article 21.5 (AB)||Oct 13, 2016||579||May 15, 2018|
|Russia - Commercial Vehicles (AB)||Feb 20, 2017||395||Mar 22, 2018|
|Indonesia - Import Licensing Regimes (AB)||Feb 17, 2017||265||Nov 09, 2017|
|EU - Fatty Alcohols (Indonesia) (AB)||Feb 10, 2017||207||Sep 05, 2017|
|U.S. - Tax Incentives (AB)||Dec 16, 2016||262||Sep 04, 2017|
|U.S. - Anti-Dumping Methodologies (China) (AB)||Nov 18, 2016||174||May 11, 2017|
|Russia - Pigs (EU) (AB)||Sep 23, 2016||153||Feb 23, 2017|
|EU - Biodiesel (Argentina) (AB)||May 20, 2016||139||Oct 06, 2016|
|India - Solar Cells (AB)||Apr 20, 2016||149||Sep 16, 2016|
|U.S. - Washing Machines (AB)||Apr 19, 2016||141||Sep 07, 2016|
|Colombia - Textiles (AB)||Jan 22, 2016||137||Jun 07, 2016|
|Argentina - Financial Services (AB)||Oct 27, 2015||170||Apr 14, 2016|
|EC - Fasteners, Article 21.5 (AB)||Sep 09, 2015||131||Jan 18, 2016|
There are a lot of elements to this issue, and I'm not going to address all of them, but I do have a few thoughts.
First, there are some cases where it seems like the responding party is appealing certain issues which it has very little chance of winning, and even some cases where it has little chance of winning any issue and is appealing the case only for the purposes of delaying implementation. That may make sense politically, and they have the right do so, but this approach will have the impact of slowing down the Appellate Body's work as it deals with these nuisance appeals.
Second, the Appellate Body provides some background information in its reports that I assume is designed to make the report easier to understand, but it may not always do so. For example, it will usually give a summary of the panel's findings, which takes some time to prepare. This is a nice idea in theory, but often in practice I find that the summaries are too short to be helpful. It's not clear to me that the effort it expends on this is worth it.
Third, the Appellate Body has adopted what I consider a very expansive approach to DSU Article 11, and as a result we see quite a lot of Article 11 claims these days. In my view, a stricter test for Article 11 is more appropriate based on the text, and such an approach would have the side benefit of reducing the burden on the Appellate Body as the number of these appeals is reduced.
Finally, given the complexity and length of WTO complaints today, and the high number of appeal claims that are pursued, 90 days may not always be realistic and it is worth rethinking what a reasonable time period should be. Maybe 120 or 150 days would be better. I do think that a 90 (or 120 or 150) day limit could and should be met in most cases, though, and if it looks like it is not going to be met, the Appellate Body should explain the reasons to the parties first and get their agreement.