The Use of Panel Process to Improve the Function of the Appellate Body: A Proposal to Utilize the Expert Review Group

  • Tomohiko KobayashiEmail author


There is a significant risk of losing the functioning of the Appellate Body of the World Trade Organization (WTO) in the near future. WTO is under a serious threat of being dismantled, not because of external factors, but because of internal ones. This chapter elaborates practical, although unusual, options to save the functioning of the WTO dispute settlement mechanism. With regard to the options to amend the Dispute Settlement Understanding (DSU), we should address three key questions. First, can WTO Members amend the DSU by a simple majority vote where a decision cannot reach consensus? Second, if so, when does the amendment approved by the Ministerial Conference takes effect? Third, if the answer to the first question is negative, can the Members amend the consensus requirement by voting? We found that amending the DSU without consensus is a high bar and almost impracticable unless the US notifies the WTO of its intention to withdraw. As an alternative way to save the function of the appeal mechanism, we propose to transplant the thrust of the appeal function into the panel phase by using expert review groups (ERG) under Article 13.2 and Appendix 4 of the DSU. This proposal intends to strike a thin balance between legitimate concerns from sovereign nations against the power of treaty organs, on the one hand and maintaining invaluable functions of the panel and Appellate Body stages that have evolved for two decades. Incorporating a quasi-appeal mechanism into the panel process is not the panacea, but can be a feasible option along with the use of Article 25 DSU arbitration.


Dispute settlement panels Expert review group Right to appeal Dispute settlement understanding (DSU) 


  1. Ala’i P (2019) The vital role of the wto Appellate Body in the promotion of rule of law and international cooperation: a case study. Yale J Int Law Online 44:86–95Google Scholar
  2. Bradley CA, Goldsmith JL (2018) Presidential control over international law. Harv Law Rev 131:1201–1297Google Scholar
  3. Chairman’s Text on Dispute Settlement, CGT/607-14 (NG/13) of 19 October 1990, reprinted in GATT Doc. No. MTN.GNG/NG5/WGSP/W/26/Rev.1/Corr. (30 Oct 1990)Google Scholar
  4. Dispute Settlement Body, Minutes of meeting, Held in the Centre William Rappard on 29 September 2017, WT/DSB/M/402 (24 Jan 2018)Google Scholar
  5. General Council, Communication from the European Union, China and India to the general council, WT/GC/W/753 (26 Nov 2018)Google Scholar
  6. General Council, Communication from the European Union, China, Canada, India, Norway, New Zealand, Switzerland, Australia, Republic of Korea, Iceland, Singapore, Mexico and Costa Rica to the general council, WT/GC/W/752/Rev.1 (10 Dec 2018)Google Scholar
  7. General Council, Decision of 6 December 2005—Amendment of the TRIPS Agreement, WT/L/641 (8 Dec 2005)Google Scholar
  8. General Council, Guideline development discussion—Communication from the separate customs territory of Taiwan, Penghu, Kinmen and Matsu to the general council, WTO Doc. WT/GC/W/763 (12 Feb 2019)Google Scholar
  9. Hillman J (2018) Three approaches to fixing the World Trade Organization’s Appellate Body: the good, the bad and the ugly? 3-2018 Georgetown University Law Center, IIEL Issue Briefs seriesGoogle Scholar
  10. Johannesson L, Mavroidis PC (2016) The WTO dispute settlement system 1995–2016: a data set and its descriptive statistics. EUI Working Paper RSCAS 2016/72Google Scholar
  11. Kobayashi T (2014) Revisiting the role of panel process in the WTO dispute settlement mechanism. In: Asada M, Kato N, Sakai H (eds) International adjudication and the development of contemporary international law. Sanseido, pp 167–190Google Scholar
  12. Lighthizer (2019) Appellate Body blocks the only way to ensure reforms. Inside US Trade’s Daily Report.
  13. Matsushita M (forthcoming) Reforming the Appellate Body. In: (this book). Springer, pp 8–9 (Waiting for exact information about this book)Google Scholar
  14. Meeting of 28 September 1989, Note by the Secretariat, GATT Doc. No. MTN.GNG/NG13/16 (13 Nov 1989)Google Scholar
  15. Meeting of 5 April 1990, Note by the Secretariat, GATT Doc. No. MTN.GNG/NG13/19 (28 May 1990)Google Scholar
  16. Mulligan SP (2018) Withdrawal from international agreements: legal framework, the Paris agreement, and the Iran nuclear agreement. US Library of Congress.
  17. Payosova T et al (2018) The dispute settlement crisis in the World Trade Organization: causes and cures. Peterson Institute for International Economics Policy Brief 18-5Google Scholar
  18. Petersmann EU (1997) The GATT/WTO dispute settlement system: international law, international organizations, and dispute settlement. Kluwer Law InternationalGoogle Scholar
  19. Petersmann EU (2018) Petersmann on “How should WTO members respond to the WTO Appellate Body crisis?”. International Economic Law and Policy Blog.
  20. Statements by the United States at the meeting of the WTO Dispute Settlement Body (2019)
  21. Stewart TP (1993) The GATT Uruguay round: a negotiating history (1986–1992), vol 2. Kluwer Law and TaxationGoogle Scholar
  22. Understanding regarding notification, consultation, dispute settlement and surveillance, GATT Doc. No. L/4907 (28 Nov 1979)Google Scholar
  23. WTO (2009) Remarks by the director-general Pascal Lamy in 2009. WTO Disputes Reach 400 Mark. WTO.
  24. Yale symposium on trade law under the trump administration. Accessed 26 Mar 2019

Copyright information

© Springer Nature Singapore Pte Ltd. 2020

Authors and Affiliations

  1. 1.Otaru University of CommerceOtaruJapan

Personalised recommendations