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I have been critical of attempts to turn Article 25 arbitration into an appellate mechanism.
I also understand that once you start with the proposition that a "review mechanism" is necessary, then there are few options - and this is one.
What does it all mean? 1/
I have been critical of attempts to turn Article 25 arbitration into an appellate mechanism.
I also understand that once you start with the proposition that a "review mechanism" is necessary, then there are few options - and this is one.
What does it all mean? 1/
First, let's talk about essential principles and features.
The choice of "binding character" and "appellate review" is not accidental; it is, however, incomplete (and, in my view, seriously so).
To appreciate why the omissions are serious, we need to take a slight detour. 2/
The choice of "binding character" and "appellate review" is not accidental; it is, however, incomplete (and, in my view, seriously so).
To appreciate why the omissions are serious, we need to take a slight detour. 2/
Frack identified four elements for legitimacy; one of these is "symbolic validation and pedigree".
In the WTO, "symbolic validation" is provided by *adoption* of reports by the DSB; "pedigree" is provided through the nomination and appointment process for AB members. 3/
In the WTO, "symbolic validation" is provided by *adoption* of reports by the DSB; "pedigree" is provided through the nomination and appointment process for AB members. 3/
Therefore, "independent and impartial appellate review", while an essential function, is incomplete as a *principle*: for the Membership as a whole to take appellate review seriously, it has to be subject to the validation and pedigree requirements of the underlying treaty. 4/
Other than its reasoning, no arbitration appeal has a claim - in law or institutionally, and as I will show, in practice - to being taken into account or even taken seriously by future panels. 5/
Second, although in the past the AB Secretariat has provided support to RPT arbitration, I am not entirely sure about the institutional propriety of two Members assigning, on their own, Secretariat support for Article 25 arbitration. 6/
Third, who will serve as arbitrator? Former AB members.
Members, in devising Article 25 arbitration, have the sovereign right to nominate whomever they want as arbitrator, or to devise whatever mechanism they like for such nomination. But, we come back to pedigree. 7/
Members, in devising Article 25 arbitration, have the sovereign right to nominate whomever they want as arbitrator, or to devise whatever mechanism they like for such nomination. But, we come back to pedigree. 7/
And we come back to pedigree because of the DSU requirement for predictability.
Some argue that because of Article 3.2, panels would be required to pay heed to arbitration reports. After all, they are reported to and "noted by" the DSB.
In legal terms, this is poppycock. 8/
Some argue that because of Article 3.2, panels would be required to pay heed to arbitration reports. After all, they are reported to and "noted by" the DSB.
In legal terms, this is poppycock. 8/
Imagine, in a dispute involving the United States, invoking an arbitration report decided by arbitrators that the US has not renominated or not approved for reappointment.
Canada and the EU have the sovereign right to appoint them as arbitrators; the United States, 9/
Canada and the EU have the sovereign right to appoint them as arbitrators; the United States, 9/
has an equally sovereign right not to have its disputes in the WTO affected by decisions emanating from arbitrators whose pedigree it does not recognise.
This is not limited to the United States, of course, or to unrenominated or unreappointed AB members. 10/
This is not limited to the United States, of course, or to unrenominated or unreappointed AB members. 10/
No Member of the WTO is required to accept the "jurisprudence" or arbitrators in whose selection and appointment to an Article 25 arbitration it has not participated.
And if they are not required to do so, if a report goes against their interests, they will not do so. 11/
And if they are not required to do so, if a report goes against their interests, they will not do so. 11/
Fourth, the Annex tries to address this conundrum through a deeming provision.
This does not, however, address whether *panels* are legally required, or even *should*, be bound by this deeming provision.
I suspect, institutionally, the answer is no. 12/
This does not, however, address whether *panels* are legally required, or even *should*, be bound by this deeming provision.
I suspect, institutionally, the answer is no. 12/
Fifth, the Annex appears to be drafted in ether.
The Appellate Body has, in the past, had scant attention to the first two sentences of this paragraph. Query whether Article 25 appeals will be better. 13/
The Appellate Body has, in the past, had scant attention to the first two sentences of this paragraph. Query whether Article 25 appeals will be better. 13/
I suspect not, otherwise this admonition would not have been necessary, in a dissenting opinion, in the twilight of the Appellate Body. 14/
Finally, what about the panel process?
Where there is an Article 25 appeal, the panel process is suspended and may not be resumed while the appeal proceeds.
And why is *that* relevant? 15/
Where there is an Article 25 appeal, the panel process is suspended and may not be resumed while the appeal proceeds.
And why is *that* relevant? 15/
Symbolic validation, one of Franck's prerequisites of legitimacy.
In my 1998 paper, I did not go into too much detail about the ongoing, and political, supervisory function of the DSB and its relevance to the legitimification of the adjudicatory organs of the WTO. 16/
In my 1998 paper, I did not go into too much detail about the ongoing, and political, supervisory function of the DSB and its relevance to the legitimification of the adjudicatory organs of the WTO. 16/
But I did note that formal validity is a *necessary* condition of legitimacy.
This is where nonadoption of panel reports could result in the unraveling of the entire dispute settlement process. /fin
This is where nonadoption of panel reports could result in the unraveling of the entire dispute settlement process. /fin
