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
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
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