Dennis Shea, U.S. Ambassador to the World Trade Organisation (WTO), reiterated Washington's criticism of the WTO Appellate Body (AB), urging it to "follow the rules" on Friday, June 28, at the Brussels Forum 2019 hosted by the German Marshall Fund.
"The US position is clear and very straightforward. If the WTO is supposed to be a rules-based organisation, the Appellate Body needs to follow the rules", he said in a debate with, among others, Sabine Weyand, the European Commission's new Director General for Trade (see EUROPE 12266/22).
Clarifying the Americans' position, Mr Shea detailed some of the points that were problematic for them. First, he stressed the importance, in his view, of respecting the rule that the AB has a maximum of 90 days to make its decisions. However, according to him, since 2011, the AB has taken more than 90 days to decide 43 of the 47 cases it has had to deal with.
A second element that he considers problematic is that the AB examines findings of fact, whereas, according to the rules, unlike legal conclusions or interpretations, such findings of fact are in principle not subject to review by the Appellate Body.
A third problem in Washington's view is the fact that the AB’s decisions have gradually helped to structure WTO case law, which he believes again represents a violation of the rules. "The Appellate Body should not insist that its rulings are precedent", Mr Shea criticised.
For about 2 years, Washington has refused to lift its veto on the appointment of new judges to the AB, because American diplomats consider that this body does not respect the rules established by WTO members (see EUROPE 12264/16). However, they are not making any move to reform its functioning.
This blockage jeopardises the WTO's dispute settlement system, since its Appellate Body is now composed of only three judges - the minimum number of judges it needs to operate - out of seven.
Ms Weyand, for her part, acknowledged that there was a "fundamental difference [between the EU and the United States]" regarding "the assessment to what extent the Appellate Body has gone beyond its remit". "That is a difference of appreciation which however should not stand in the way of necessary reform", she said.
Finally, she reiterated Europe's concern that the AB would cease to function after 10 December, the expiry date of the terms of two of the last three remaining judges. (Original version in French by Damien Genicot - intern)