EU statement at the regular DSB meeting on 3 December 2019
Geneva, 04/12/2019 - 13:10, UNIQUE ID: 191204_8
Statements on behalf of the EU
AGENDA POINT 7: PENDING APPEALS
A. Statement by the Chairman
We thank the Chair for his statement.
Unfortunately, we are approaching a very specific situation where there will be only one Appellate Body member left after 10 December 2019. Unlike in normal circumstances, there will be no replacement for outgoing members, and no possibility to re-assign the pending appeals to other members. This is because new appointments have been blocked since 2017 by one WTO Member.
Under the current rules, the Appellate Body itself is competent to apply Rule 15 of its Working Procedures. In recent past, the Appellate Body explained that it was left with “no option but to apply Rule 15”, in particular “[i]n order to maintain the stability of the dispute settlement system, to deal with the unprecedented workload of appeals, and to preserve the rights of participants and third participants in pending appeals" (Background Note on Rule 15 of the Working Procedures for Appellate Review, circulated on 24 November 2017, JOB/AB/3)
Similarly, and for the very same reasons, ahead of the expiry of the terms of office of two of the three remaining members, the Appellate Body could decide to apply Rule 15 in relation to all appeals pending on 10 December 2019. This obviously presupposes that the Appellate Body members concerned are available to continue their work beyond 10 December.
The EU understands that, in the present circumstances, specific questions arose in relation to such Appellate Body decision under Rule 15, which explained why the DSB Chairman envisaged a specific action by the DSB, in order to allow the appeals pending on 10 December to be completed.
The EU would have supported such action by the DSB in these specific circumstances.
It is our understanding, however, that, through his consultations with WTO Members, the DSB Chair was not able to ascertain the existence of consensus in the DSB.
Specifically, we understand that the Member blocking new appointments is also opposed to the continued service of any former member of the Appellate Body beyond the end of their term of office.
We are puzzled by this position.
Let us recall that, in the DSB meeting on 31 August 2017, the United States stated that “it appreciated that the approach of Rule 15 could contribute to efficient completion of appeals”. As a party in two appeals pending at the time, the United States said that “it would welcome Mr. Ramírez's continued service on the appeals to which he had been assigned”. The US said however that “[u]nder the DSU […] the DSB had a responsibility to decide whether a person whose term of appointment had expired, should continue serving, as if a member of the Appellate Body, on any pending appeals.” (WT/DSB/M/400, para. 5.5).
Today, however, the US stands in the way of the DSB discharging what the US thought was the DSB’s responsibility. In our view, this undermines the stability of the dispute settlement system and frustrates the rights of participants in these appeals.
The EU is ready to continue working with other Members to preserve the proper operation of the dispute settlement system, including in relation to appeals pending on 10 December 2019.