Bridges Weekly Trade News Digest • Volume 6 • Number 37 • 31st October 2002
Members Question Appellate Body Over New Procedures
At a 23 October session of the WTO Dispute Settlement Body (DSB), a number of Members criticised the Appellate Body over new procedures unveiled on 27 September relaxing rules around the participation of third parties who wish to make oral statements in Appellate Body hearings. Under the new procedures, countries wishing to make statements would not be required to submit written notifications to the Appellate Body or the WTO Secretariat, as previous rules required. However, Appellate Bodies hearing individual cases would still be able to determine whether or not to allow third parties to make oral statements.
The new procedures were a response to the dispute between Peru and the EC over trade description of sardines (see BRIDGES Weekly, 2 October 2002). The final Appellate Body decision of the sardines dispute was formally adopted at the 23 October meeting.
In the sardines case, Colombia had been barred from the Appellate Body proceedings — despite its participation in the panel process — due to its failure to submit a written request to participate in the appellate hearings. However, the Appellate Body did accept an amicus brief (i.e. ‘friend of the court’ submission) from Morocco. At the time, Peru argued that accepting the brief from Morocco would allow WTO Members to circumvent dispute settlement rules concerning third party rights, including submitting written notifications. At the 23 October meeting, many developing countries criticised the Appellate Body for its decision on amicus briefs in the Sardines case. India said that amicus briefs should not be allowed, as they gave those parties more rights than third parties in disputes. Primarily for this reason, many Members object to the submission of amicus briefs, a point that was raised by Ecuador, which criticised the Appellate Body for its "preoccupation" with amicus briefs, "even though they know perfectly well the opinion of the majority of Members". In its defence, the Appellate Body points out that nothing in the Dispute Settlement Understanding prevents WTO Members from submitting amicus briefs.
Canada, the EC, India, Japan and Mexico said that while they did not object to the Appellate Body’s new procedures, they questioned the discretion of the Appellate Body to accept or reject requests for oral statements, while the US said that some confusion could have been avoided if Members had been previously consulted on the issue.
According to Article 17.9 of the Dispute Settlement Understanding, working procedures for the Appellate Body shall be drawn up in consultation with the DSB Chair and the Director-General, and communicated to Members for their information. Members will be meeting informally to draft guidelines for the Chair of the DSB on the extent to which the DSB Chair should consult with Members before the Appellate Body can make changes to its working procedures.
ICTSD reporting; "WTO Appellate Body Under Fire Again For Amicus Rulings in Dispute Proceedings," WTO REPORTER, 25 October 2002.