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

  • Tomohiko KobayashiEmail author
Chapter

Abstract

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.

Keywords

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

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Copyright information

© Springer Nature Singapore Pte Ltd. 2020

Authors and Affiliations

  1. 1.Otaru University of CommerceOtaruJapan

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