TWN Info Service on WTO and Trade Issues (Sept17/06)
14 September 2017
Third World Network
   
DSB Chair convenes informal meeting to discuss AB impasse
Published in SUNS #8530 dated 13 September 2017

Geneva, 12 Sep (Kanaga Raja) - The Chair of the WTO's Dispute Settlement Body (DSB) is convening an informal meeting on Friday (15 September) afternoon to discuss the concerns raised at the last formal meeting of the DSB regarding the launching of the selection process for new Appellate Body (AB) members.

According to trade officials, the Chair of the DSB, Ambassador Junichi Ihara of Japan, announced that he will be convening the meeting to discuss the concerns raised at the 31 August meeting of the DSB regarding the AB matters.

At that meeting, the continued impasse over the launching of the process for the selection of new AB members to replace the two AB members whose terms have either expired, or will expire soon deepened, with the United States saying it was not in a position to agree to launch the process until its concerns over the continued service of former AB members are addressed.

At that meeting, the Chair had said that he was ready to hold an informal open-ended meeting as soon as possible to discuss the concerns raised by the US, as well as other WTO members.

The two AB members in question whose second four-year terms have expired or are expiring soon are Mr Ricardo Ramirez-Hernandez and Mr Peter Van den Bossche.

The second term of Mr Ramirez-Hernandez had already expired on 30 June. He is however continuing his work on the two ongoing appeals in which he is involved.

The second term of Mr Van den Bossche will expire on 11 December 2017.

The situation has been further compounded by the sudden departure of AB member Mr Hyun Chong Kim of South Korea who tendered his resignation (with immediate effect) on 1 August prior to his appointment as a minister in the Korean government.

The US told the DSB meeting on 31 August that in its view, simply moving forward with filling vacancies risks perpetuating and leaving unaddressed the concerns it believes require the urgent attention of the DSB.

In its statement on this issue at that DSB meeting, the US had said the resignation of Mr. Kim from the Appellate Body raises important systemic questions for the DSB to consider and resolve.

At the time of Mr. Kim's resignation, he was one of three members of the Appellate Body serving on the appeal in the dispute EU - Antidumping Measures on Imports of Certain Fatty Alcohols from Indonesia (DS442). (The AB report was circulated on 5 September).

The US further noted that Mr. Ramirez is serving on this same appeal, although his second term expired on June 30.

This means that on the date the Appellate Body report is circulated to the DSB, only one signatory would appear to actually be an Appellate Body member.

Under the DSU (Dispute Settlement Understanding), the US said, the DSB has a responsibility to decide whether a person whose term of appointment has expired should continue serving, as if a member of the Appellate Body, on any pending appeals.

"We consider the DSB should also discuss this issue so it can take appropriate decisions. We look forward to consulting with the Chair and other Members on these important systemic issues," said the US.

"We consider that the first priority is for the DSB to discuss and decide how to deal with reports being issued by persons who are no longer members of the Appellate Body. Members should consider how resolution of those issues might affect a selection process. An informal DSB meeting would be a good place to start," it further said.

As Members are aware, the United States has a number of long-standing concerns frequently expressed in the DSB regarding the "critical necessity" of the DSB asserting the authority assigned to it under the DSU, the US maintained.

"The issue the United States raised earlier concerning the continued service of former Appellate Body members is an important example of these concerns that we have been raising for some time."

"In our view, simply moving forward with filling vacancies risks perpetuating and leaving unaddressed the concerns we believe require the urgent attention of the DSB," the US told that DSB meeting.

According to trade officials, many WTO members voiced concerns over the US stance at that DSB meeting.

Some 14 WTO members expressed their concerns over the three AB vacancies and the systemic effects that the vacancies would have on the dispute settlement system.

A number of members were of the view that a link should not be made between resolving the concerns of the US and the launching of the selection process for the new AB members (see SUNS #8526 dated 5 September 2017).