Abstract
The crisis of the Appellate Body (AB) has been triggered by the U.S. stalling the process of appointment or reappointment of the AB members. This chapter examines the U.S. position and interests behind its complaint, and argues that the real U.S. interests may prevent a successful outcome of the negotiations regarding the crisis. Therefore, this chapter proposes several options to the AB crisis, including appointment of at least two members of the AB, use of FTA dispute resolution forum, use of “Good Offices, Conciliation and Mediation” in the WTO and FTA, and interim appeal through arbitration under the WTO. In addition, this chapter proposes an alternative to use of a forum outside of the WTO, such as ARMO and APCAM.
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Notes
- 1.
Current Appeals. World Trade Organization. https://www.wto.org/english/tratop_e/dispu_e/appellate_body_e.htm. Accessed 5 September 2019.
- 2.
The Washington Post. https://www.washingtonpost.com/news/monkey-cage/wp/2017/09/27/trump-is-fighting-an-open-war-on-trade-his-stealth-war-on-trade-may-be-even-more-important/?utm_term=701eb73eac60. Accessed 24 June 2019.
- 3.
The Current Chair of the Appellate Body, Ms. Hong Zhao of China will have her term running beyond December 2019 which will end on 30 November 2020. Two other current members: Ujal Singh Bhatia and Mr. Thomas R Graham will finish their term on 10 December 2019.
- 4.
For details of the US claims, see Office of the United States Trade Representative (2018) 2018 Trade Policy Agenda and 2017 Annual Report of the President of the United States on the Trade Agreements Program. https://ustr.gov/sites/default/files/files/Press/Reports/2018/AR/2018%20Annual%20Report%20FINAL.PDF. Accessed 24 June 2019.
- 5.
The summary of these 6 issues have been taken from International Economic Law and Policy Blog. https://worldtradelaw.typepad.com/ielpblog/2018/12/ulli-petersmann-on-how-should-wto-members-respond-to-the-wto-appellate-body-crisis.html. Accessed 24 June 2019.
- 6.
So far EU with China, Canada, India, Norway, New Zealand, Switzerland, Australia, Republic of Korea, Iceland, Singapore, Mexico, Costa Rica, Montenegro, Japan, Chile, Chinese Taipei, Thailand, Brazil, Paraguay and Uruguay have presented proposals in different groups.
- 7.
See General Council Chair Appoints Facilitator to Address Disagreement on Appellate Body. World Trade Organization. https://www.wto.org/english/news_e/news19_e/gc_18jan19_e.htm. Accessed 18 Jan 2019.
- 8.
The Report of the Facilitator of the Informal Process is reported in JOB/GC/217 and a hard copy of the same is in the file of the author.
- 9.
Chinese Taipei (WT/GC/W/763/Rev.1); Brazil, Paraguay and Uruguay (WT/GC/W/767/Rev.1); Japan, Australia and Chile (WT/GC/W/768/Rev.1); and Thailand (WT/GC/W/769) introduced their communications in this area.
- 10.
Republic of Korea, European Union, Mexico; Canada, Switzerland, Ukraine, Singapore, Colombia, Nigeria, Jamaica (ACP), Philippines, Argentina, Benin, Guyana, India, Egypt, China, Chad (LDCs), Malaysia, Peru, Indonesia, Viet Nam, Plurinational State of Bolivia, Turkey, Honduras and United States spoke. See Summary of General Council Meeting of 7 May 2019 World Trade Organization. https://www.wto.org/english/news_e/news19_e/sum_gc_may19_e.htm. Accessed 7 May 2019.
- 11.
Id.
- 12.
See Proposal of Japan, Australia and Chile, WT/GC/W/768/Rev.1 (26 April 2019).
- 13.
Id.
- 14.
Australia exempted from US tariffs on steel and aluminium. SBS news. https://www.sbs.com.au/news/australia-exempted-from-us-tariffs-on-steel-and-aluminium. Accessed 1 June 2018.
- 15.
The Guardian. https://www.theguardian.com/business/2018/mar/12/australia-will-not-join-eu-complaint-wto-steel-tariffs. Accessed 24 June 2019.
- 16.
CNBC. https://www.cnbc.com/2019/05/24/australia-wont-take-sides-in-us-china-trade-war-ex-pm-julia-gillard.html. Accessed 24 June 2019.
- 17.
This political insight was presented by Professor James Bacchus in Canberra on 13 June 2019. The author was also presented in the audience.
- 18.
See Current Appeals, supra note 1.
- 19.
Id.
- 20.
For example, Ukraine has not appealed against the decision of the WTO Panel against Russia in a case related to national security exception.
- 21.
Asian Development Bank (2008, p. 96).
- 22.
- 23.
Kwak and Marceu, supra note 24, at p. 1; see also Hillman, supra note 24, at p. 197.
- 24.
See Blue Book (2018, pp. 182–194).
- 25.
Asian Development Bank, supra note 23, at p. 96.
- 26.
For details about innovative use of Good Office, Conciliation and Mediation, see Sharma (2015, pp. 266–268, 285).
- 27.
- 28.
Interim Appeal Arbitration Pursuant to Article 25 DSU, JOB/DSB/1/Add.11 (16 May 2019) [Hereinafter The EU Proposal on Interim Appeal].
- 29.
Id. at pmbl.
- 30.
Id. at para 2.
- 31.
Agreed Procedure for Arbitration Under Article 25 of the DSU in the Dispute—DS X, para 2, EU Proposal on Interim Appeal, supra note 30, Annex [hereinafter Procedure for Interim Appeal].
- 32.
Id. at para 3.
- 33.
Id.
- 34.
The EU Proposal on Interim Appeal, supra note 30, at para 1.
- 35.
Procedure for Interim Appeal, supra note 33.
- 36.
Id. at para 7.
- 37.
Id. at para 7 and fn. 3.
- 38.
Id. at para 10.
- 39.
Id. at para 8.
- 40.
Id. at para 11.
- 41.
Id.
- 42.
Id. at para 4.
- 43.
Id.
- 44.
Lo et al. (2018a, pp. 5–16).
- 45.
Lo et al. (2018b, pp. 17–26).
- 46.
For details about the operation of Mediation Rules of ARMO, see Sharma (2018, pp. 47–62).
- 47.
The author is one of the promoters of this idea which he is inspired by the concept of ARMO.
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Sharma, R. (2020). WTO Appellate Body at Cross Roads: Options and Alternatives. In: Lo, Cf., Nakagawa, J., Chen, Tf. (eds) The Appellate Body of the WTO and Its Reform. Springer, Singapore. https://doi.org/10.1007/978-981-15-0255-2_14
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