JOB/GC/225  
 
9 December 2019  
(19-8489) Page: 1/6 
General Council    
 
 AGENDA  ITEM 5 
 
INFORMAL PROCESS ON MATTERS RELATED TO THE FUNCTIONING O F THE APPELLATE 
BODY – REPORT BY THE FACIL ITATOR, H.E. DR. DAV ID WALKER (NEW ZEALA ND) AND 
DRAFT DECISION ON THE FUNCTIONING OF THE A PPELLATE BODY (WT/GC /W/791)  
MONDAY, 9 DECEMBER 2 019 
Introductory Remarks  
1.1.  Thank you, Chair.  I am pleased to report to you for the fifth time as Facilitator of this Informal 
Process.  
1.2.  Chair, you  and your predecessor  initiated this Inform al Process to undertake a discussion aimed 
at seeking workable and agreeable  solutions to improve the functioning of the Appellate Body and 
avoid deadlock come December. That is the purpose of my report to you today.  
1.3.  As previously , this report should be re ad in conjunction with my earlier reports to the General 
Council on 28 February, 7 May, 23 July and 15 October, which were issued as JOB/GC/215, 
JOB/GC/217, JOB/GC/220 and JOB/GC/222 respectively.  
Fifth Report on Informal Process  
Process  
1.4.  As mentioned by th e Chair, I have continued my consultations and meetings in a range of 
formats, keeping in mind the solution -focused spirit of this Informal Process.  
1.5.  This included  a further small group session - the 11th in the small group -format - on 
27 November, as well as a 6th open-ended Informal Meeting on 29 November to ensure transparency 
and inclusiveness in the Informal Process.  
1.6.  As before, the informal small group meeting comprised delegations and coordinators that had: 
(i) tabled written  proposals; (ii) raised concerns about the functioning of, and the adherence to 
WTO rules by, the Appellate Body; and (iii) made alternative prop osals and/or raised follow -up 
questions on the proposals, issues, convergence elements and the Draft General Council Decision 
annexed to JOB/GC/222.  
Substance  
1.7.  As you recall, based on the 12 proposals submitted to the Informal Process and the extensive 
discussions held until July, I identified and reported to the General Council, on my own responsibility, 
a set of areas and issues where I detected convergence during  the exchanges. These convergence 
points were circulated in JOB/GC/220.  
1.8.  Thereafter, a draft Ge neral Council instrument was drawn up based on: i) the convergence 
points reported in July; ii) further comments I received from Members at and following the July 
meeting; and iii) my continued consultations and discussions with Members in a range of forma ts. 
The draft instrument, which was put forward on my own responsibility as Facilitator, was annexed 
to the report I presented to the General Council in October, which was issued in JOB/GC/222.  JOB/GC/225  
 
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  1.9.  In presenting the draft instrument at the October meeting of t he General Council, I made four 
particular observations, which I would like to recall:  
• First, the adoption of such a General Council Decision would constitute a shared assessment 
by Members that the Appellate Body has, in some respects, not been functionin g as intended 
under the DSU.  
• Second, the adoption of such a Decision should be accompanied by agreement to launch the 
selection processes to fill vacant positions - that being, of course, on the basis that a Decision 
can only apply if there is a body to wh ich it can apply.  
• Third, such a Decision would have implications for the actions of the Appellate Body, but it 
would also carry implications for how Members look to use the Appellate Body.  
• Fourth, to take such 'reset' action, Members would need to have suf ficient trust and 
confidence in each other that they will work together to implement any such Decision in the 
coming years.  
1.10.   Since the October General Council meeting, I have continued my contacts with Members, and 
the issues surrounding the Appellate Body – as we all know – have been raised and discussed in 
various fora and settings, in and outside of Geneva.  
1.11.   I believe delegations have had sufficient time to carefully consider the draft instrument, which 
was attached to my report (circulated in JOB/GC/222).  
1.12.   To this end, and in my capacity as Facilitator, I have put forward, for Members' consideration, 
the Draft General Council Decision, which was issued in document WT/GC/W/791 as a stand -alone 
General Council document on 28 November and is before Members under this Agenda item  for 
consideration and action . 
1.13.   With regard to the Draft Decision, I applied some further slight adjustments to the text of the 
draft instrument to take account of Members' feedback and comments received at and since the 
October General Co uncil meeting.  
• First, on the basis of my engagement with delegations, I believe there is indeed a shared 
assessment that the Appellate Body has, in some respects, not been functioning as intended 
under the DSU.  This has therefore been acknowledged in the preambular part of the Draft 
Decision.  
• Second, discussions in the Informal Process about Municipal Law have ranged more broadly 
across questions of law and fact, so it is more correct to describe that section as 'Scope of 
Appeal'; and I considered it would  be useful to reinforce the point Members have frequently 
made in the discussions, namely  that: 
"Article 17.6 of the DSU restricts matters that can be raised on appeal to issues of law 
covered in the relevant panel report and legal interpretations develope d by that panel."  
1.14.   In all other substantive aspects, the Draft Decision remains unchanged, and as you have 
already seen it in JOB/GC/222.  
1.15.   At the October General Council, it was said that in order to take meaningful action, Members 
need to collectively under stand how we arrived at this point. Several hypotheses were advanced, 
two of which particularly caught my attention:  
• First, it was noted that when some DSU rules began to be breached (e.g. 90 days), some 
Members sought to call that out, but others sought t o excuse the breach – to take a 
pragmatic approach for the purpose of a particular dispute and to preserve what they saw 
as the essentials of the system. Over time, the risk is pragmatism becomes practice.  JOB/GC/225  
 
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  • Second, it was noted that Members are creative and  that, over time, the efforts of 
enthusiastic and innovative lawyers to prevail in a particular dispute can lead to "institutional 
creep" beyond Members' collective intention.  
1.16.   Perhaps these points might have caught your attention also, and to the extent th at they are 
seen to have some descriptive resonance.  
1.17.   On that basis, I believe the Draft Decision, as recast, does indeed provide the basis for 'reset' 
action through which to help ensure the system operates according to the DSU rules as agreed by 
Members:  
• It sets out, upfront, a shared acknowledgment that there is a problem;  
• It provides instructions and guidance – for the Appellate Body and Members – across areas 
of convergence that have emerged from Members' discussion of issues identified as part of 
that problem;  and 
• It provides a forum for Members to express their views to the Appellate Body on the 
implementation of the instructions  and guidance it contains.  
Concluding Remarks  
1.18.   I would like to thank the Chair of the General Council and all delegations for placing their trust 
in me as Facilitator.  
1.19.   As with my previous reports, this report will be issued in the JOB/GC -series, with 
WT/GC/W/791 attached to it for ease of reference . 
1.20.   As I said in October, it is for Members to decide what action the y wish to take.  
1.21.   Since the October General Council there have been other related developments that bear on 
this: 
• First, it has emerged that Members, through the appropriate body, may wish to consider the 
adequacy of current procedures for transparency and a ccountability related to Appellate 
Body expenditures going forward;  
 
• Second, it  now appears that  Members who filed appeals more than a year ago now find 
themselves in the situation where those appeals are unable to be heard until resumption of 
a functioning Appellate Body.  
 
1.22.   This second development has only added to the urgency of taking action on a situation that 
is material to the ability of Members to resolve their disputes.  
1.23.   As Facilitator, I can only hope that the discussions we have been havin g since the start of the 
year, and in recent weeks in particular, will have generated the trust and confidence needed to take 
such action.  
1.24.   I commend the Draft Decision in WT/GC/W/791 to the General Council for adoption today on 
the understanding that Membe rs also agree to launch the selection process to fill vacant Appellate 
Body positions at the earliest practicable opportunity.  
1.25.   As always, I stand ready to assist the Chair of the General Council and Members, in whatever 
capacity may be required.  
1.26.   Thank you Chair.  
 
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  ANNEX
 
JOB/GC/225  
 
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JOB/GC/225  
 
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