The interim appeal arbitration mechanism must “replicate as closely as possible” all aspects of the rules and procedures governing dispute settlement at the World Trade Organization (WTO), according to a document that has been circulated among Member States outlining this interim appeal procedure.
At their meeting on 27 May, European trade ministers agreed that the Union should lay the foundations for an interim solution to prevent the complete disappearance of the Appellate Body (AB) in the absence of any American desire to help reform the WTO dispute settlement system (see EUROPE 12264/16, 12262/12). Indeed, the EU believes that both the binding nature and the two-tiered regulations of the WTO must be preserved at all costs.
In a communication dated 16 May to the Member States - obtained by EUROPE - the EU proposes an interim appeal arbitration mechanism in accordance with Article 25 of the Memorandum of Understanding. It stipulates that the use of arbitration is conceived as an “alternative means of dispute settlement”, “subject to the mutual agreement of the parties which shall agree on the procedures to be followed”.
The Communication details this interim appeal arbitral procedure, designed “to replicate as closely as possible all substantive and procedural aspects as well as the practice of Appellate Review”, pursuant to Article 17 of the WTO's “Understanding on Rules and Procedures Governing the Settlement of Disputes”.
The document thus proposes that this procedure should include “an appropriate administrative and legal support to the arbitrators by the Appellate Body secretariat”.
The EU anticipates that “appeals will be heard by former members of the AB, serving as arbitrators”.
Three arbitrators of different nationalities would serve on each case; they would be selected by the “Director General from the pool of available former members of the Appellate Body” within 10 days of the formulation of the appeal and according to the same principles and methods as in the AB division.
In order to operationalise this interim appeal arbitration procedure in certain disputes, WTO Members would notify their intention to conclude this arbitration agreement and notify within 60 days of the date of establishment of the panel (or within 30 days, if no interim report has yet been published), the text states.
This interim solution would become obsolete once the seven members of the AB have been reappointed - however, cases awaiting conclusion of arbitration could proceed to the end of the interim procedure, the document also notes.
Trade Commissioner Cecilia Malmström has therefore taken up her pilgrim's staff again. In Japan, during the G20 ministerial meeting on trade and the digital economy, she met several of her counterparts on 6, 7 and 8 June to discuss, among other things, this new project (see EUROPE 12270/36).
To read the document: http://bit.ly/2KFlC3w (Original version in French by Hermine Donceel)