While I continued digging for more clues to the Appellate Body Reappointment saga, I found a few more interesting bits:
1. When the blockage was first announced, the US cited only three cases, i.e, DS 437, DS 449 & DS 453. However, at the May 23 DSB meeting, the US added one more case, i.e, DS 430. In the first three cases, Amb. Bhatia also served along with Prof. Chang in the AB division. Amb. Bhatia’s first term ended on Dec 10 2015. By then, the AB has completed their reports in the first two cases, and was in the process of reviewing the last case. However, when Amb. Bhatia’s reappointment was reviewed, the approaches taken by the AB in these cases were never questioned. Instead, the questions focus only on the procedural and administrative aspects, which were rather mundane and uninteresting:
(i) the Appellate Body member's interest in reappointment and the experiences and insights gained as an Appellate Body member;
(ii) the issue of workload of the Appellate Body and how to address it;
(iii) the issue of collegiality; and
(iv) what the Appellate Body could do itself to improve the efficiency of the Appellate Body process.
So why did the US add DS 430 in the last minute? Has the US had a sudden change of mind about the three cases in less than 6 months? Or was the last case just a red herring to hide the true motive?
2. The second clue is found in p.16 of the US Statement at the May 23 DSB meeting, where the US stated “[w]e do not see how holding a member accountable for the views they have endorsed and their actual service carries a risk for the trust WTO Members place in the independence and impartiality of the Appellate Body. ” Is the mismatch between “holding a member accountable” and “views they have endorsed” just a grammatical flaw, or is it a Freudian slip which reveals indeed that the US is trying to hold a member accountable for what they - the seven AB members - collectively have done?
3. The US has appealed the Panel Report in US — Washing Machines, where the Panel upheld the challenge by Korea against the US approaches in cases of targeted dumping and use of zeroing. The US appealed on Apr 19 and, according to the normal AB schedule, the exchange of views would most likely take place in the AB after June 1. By blocking Prof. Chang, the US has essentially excluded Mr. Chang from participating in the exchange of views.
Looks like we are one more step closer to the truth.