JOB/DSB/1/Add.12  
 
30 April 2020  
(20-3358) Page: 1/7 
  Original: English  
 
 
STATEMENT ON A MECHA NISM FOR DEVELOPING,  DOCUMENTING AND SHA RING  
PRACTICES AND PROCED URES IN THE CONDUCT OF WTO DISPUTES  
Addendum  
The following communication,  dated 30 April 2020,  is being circulated at the request of the 
Delegation s of Australia ; Brazil; Canada; China; Chile; Colombia; Costa Rica;  the European Union; 
Guatemala; Hong Kong, China; Iceland ; Mexico; New  Zealand; Norway; Pakistan; Singapore; 
Switzerland ; Ukraine  and Ur uguay . 
 
 
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MULTI -PARTY INTERIM APPEAL ARBIT RATION ARRANGEMENT PURSUANT TO 
ARTICLE  25 OF THE DSU  
Australia; Brazil; Canada; China; Chile; Colombia; Costa Rica; the European Union; Guatemala; 
Hong Kong, China; Iceland ; Mexico; New Zealand;  Norway;  Pakistan;  Singapore; Switzerland ; 
Ukraine and Uruguay (hereafter the "participating Members "), 
 
Re-affirming  their commitment to a multilateral rules -based trading system,  
 
Acknowledging  that a functioning dispute settlement system of the  WTO is of the utmost importance 
for a rules -based trading system, and that an independent and impartial appeal stage must continue 
to be one of its essential features ,  
 
Determined  to work with the whole WTO M embership to find a lasting improvement to the  situation 
relating to the Appellate Body  as a matter of priority, and to launch the selection processes as soon 
as possible, so that it can resume  its functions as envisaged by the DSU,  
 
Resolved, in the interim, to  put in place contingency measures based  on Article 25 of the DSU in 
order to  preserve  the essential principles and features of the WTO dispute settlement system which 
include its binding character and two levels of adjudication through an independent and impartial 
appellate review of panel repo rts, and thereby to preserve their rights and obligations under the 
WTO Agreement,  
 
Desiring  to also preserve the possibility of a binding resolution of disputes at panel stage, if no party 
chooses to  appeal under this arrangement, through the adoption of panel reports by the DSB by 
negative consensus,  
 
Re-affirming that c onsistency and predictab ility in the interpretation of rights and obligations under 
the covered agreements is of significant value to Members  and that arbitration award s cannot add 
to or diminish the rights and obligations provided in the covered agreements , 
 
Underlining  the inte rim nature of this arrangement,  
 JOB/DSB/1/Add.12  
 
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In view of these extraordinary circumstances, envisage resorting to the following multi-party interim  
appeal arbitration  arrangement  (hereafter the "MPIA"):  
 
1.  The participating Members indicate their intention to resort to arbitration under Article 25 of the 
DSU as an interim appeal arbitration procedure (hereafter the "appeal arbitration procedure"), as 
long as the Appellate Body is not able to hear appeals of panel reports in disputes among them due 
to an insufficient numb er of Appellate Body members.  
2.  In such circumstances,  the participating Members will not pursue appeals under Articles 16.4 and 
17 of the DSU.  
3.  The appeal arbitration procedure will be based on the substantive and procedural aspects of 
Appellate Review pursuant to Article 17 of the DSU , in order to keep its core features, including 
independence and impartiality, while enhancing the procedural efficiency of appeal  proceedings. The 
appeal arbitration procedure is set out in Annex 1.  
4.  In particular, the participating Members envisage that, under the appeal arbitration procedure, 
appeals will be heard by three appeal arbitrators selected from the pool of 10 standing appeal 
arbitrators composed by the participating Members  in accordance with Annex 2 (hereafter the "pool 
of arbitrators ").1 The pool of arbitrators will comprise persons of recognized authority, with 
demonstrated expertise in law, international trade and the subject matter of the covered agreements 
generally. They will be unaffiliated with a ny government. They will not participate in the 
consideration of any disputes that would create a direct or indirect conflict of interest. The 
composition of the pool of arbitrators will ensure an appropriate overall balance.   
5.  Members of the pool of arbitr ators will stay abreast of WTO dispute settlement activities  and will 
receive all documents relating to appeal arbitration proceedings  under the MPIA. In order to promote 
consistency and coherence in decision -making, the members of the pool of arbitrators will discuss 
amongst themselves  matters of interpretation, practice and procedure, to the extent practicable.  
6.  The selection from the pool of arbitrators for a specific dispute will be done on the basis of the 
same principles and methods that apply to form a division of the Appellate Body under Article 17.1 
of the DSU and Rule 6(2) of the Working Procedures for Appellate Review, including the principle of 
rotation.2 The WTO Director General will  notify the parties and third parties of the results of the 
selection.   
7.  The participating Members envisage that appeal arbitrators will be provided with appropriate 
administrative and legal support , which will  offer the necessary guarantees of quality and 
independence , given the nature of the responsibilities involved . The participating Members envisage 
that t he support structure will be entirely separate from the WTO Secretariat staff and its divisions 
support ing the panels and be answerable, regarding the substance of their work, only to appeal 
arbitrators. The participating Members  request the WTO Director General to ensure the availability 
of a support structure meeting these criteria.  
8.  The participating Mem bers also envisage limited adjustments to panel procedures in disputes 
covered by the MPIA, to the extent it is necessary to facilitate the proper administration of the appeal 
arbitration procedure, should a party decide to appeal under this procedure. If no party appeals the 
panel report under the appeal arbitration procedure, the participating Members envisage that the 
panel report will be formally circulated for adoption by the DSB by negative consensus.  
9.  The MPIA applies to  any future dispute between any  two or more participating Members, including 
the compliance stage of such disputes, as well as to any such dispute pending on the date of this 
 
1 Should a need arise to select arbitrators to serve on a specific dispute whil e the pool of arbitrators has 
not yet been composed, the parties to that dispute will agree on the selection procedures applicable to that 
dispute. This footnote will cease to apply six months after the date of the multi -party communication, unless all 
the participating Members agree to extend it.   
2 However, a t the request of a party to a dispute, any member of the pool of arbitrators who is not a 
national of a participating Member  will be excluded from th e selection process.  Two nationals of the same 
Memb er may not serve on the same case.  JOB/DSB/1/Add.12  
 
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communication, except if the interim panel report , in the relevant stage of that dispute,  has already 
been issue d on that date .3  
10.  In order to render the appeal arbitration procedure operational in particular disputes, the 
participating Members indicate their intention to enter into the arbitration agreement (the "appeal 
arbitration agreement ") contained in Annex  1 to this communication and to notify that agreement 
pursuant to Article 25.2 of the DSU within 60 days after the date of the establishment of the panel. 
For pending disputes where, on the date of this communication, the panel has already been 
established but  an interim  report has not yet been issued, the participating Members will enter into 
the appeal arbitration agreement and notify that agreement  pursuant to Article 25.2 of the DSU 
within 30 days after the date of this communication .  
11.  With respect to a spe cific dispute, parties to that dispute may, without prejudice to the principles 
set forth in this communication, mutually agree to depart from the procedures set out in the appeal 
arbitration agreement.  
12.  Any WTO Member is welcome to join the MPIA at any ti me, by notification to the DSB that it 
endorses this communication. In relation to disputes to which such WTO Member is a party, the date 
of that Member's notification to the DSB  will be deemed to be the date of this communication for 
the purposes of parag raphs 9 and 10.  
13.  The participating Members will review the MPIA one year after the date of this communication. 
The review may concern any feature of the MPIA.  
14.  A participating Member may decide to cease its participation in the MPIA, by notifying to the 
DSB the withdrawal of its endorsement of this communication. However, subject to paragraph 9,  
the participating Members intend for the MPIA to continue to apply t o disputes pending on the date 
of such withdrawal. Furthermore, any appeal arbitration agreement entered into under paragraph 
10 will remain in effect.  
15.  The participating Members remain committed to resolving the impasse of the Appellate Body 
appointments as a matter of priority and envisage that the MPIA  will remain in effect only until the 
Appellate Body is again fully functional. However, any appeal arbitration agreement entered into 
under paragraph 10 will remain in effect,  unless the parties agree othe rwise.  
 
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3 This is without prejudice to the right of the parties to decide to apply appeal arbitration procedures, 
such as those contained in Annex 1, to more advanced disputes on an ad hoc  basis.  JOB/DSB/1/Add.12  
 
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ANNEX  1 
AGREED PROCEDURES FOR ARBITRATION UNDER ARTICLE 25 OF THE DSU IN DISPUTE DS X  
 
1.  In order to give effect to communication JOB/DSB/1/Add.12 in this dispute [the parties to the 
dispute] (hereafter the  "parties ") mutually agree pursuant to Article 25.2 of the Understanding on 
Rules and Procedures Governing the Settlement of Disputes (DSU) to enter into arbitration under 
Article 25 of the DSU to decide any appeal from any final panel report1 as issued to the parties in 
dispute DS X. Any party to the dispute may initiate arbitration in accordance with these agreed 
procedures.   
2.  The arbitration may only be initiated if the Appellate Body is not able to hear an appeal in this 
dispute under Article 16.4 and 17 of the DSU. For the purposes of these agreed procedures, such 
situation is deemed to arise where, on the date of issuance of the final panel report to the parties, 
there are fewer than three Appel late Body members.   
For greater certainty, if the Appellate Body is able to hear appeals  at the date on which the final 
panel report is issued to the parties , a party may not initiate an arbitration, and the parties shall be 
free to consider an appeal unde r Articles 16.4 and 17 of the DSU.  
3.  In order to facilitate the proper administration of arbitration under these agreed procedures, the 
parties hereby jointly request the panel to notify the parties of the anticipated date of circulation of 
the final panel r eport within the meaning of Article 16 of the DSU, no later than 45 days in advance 
of that date.  
4.  Following the issuance of the final panel report to the parties, but no later than 10 days prior to 
the anticipated date of circulation of the final panel rep ort to the rest of the Membership, any party 
may request that the panel suspend the panel proceedings with a view to initiating the arbitration 
under these agreed procedures. Such request by any party is deemed to constitute a joint request 
by the parties for suspension of the panel proceedings for 12 months pursuant to Article 12.12 of 
the DSU.   
The parties hereby jointly request the panel to provide for  the following, before the suspension takes 
effect : 
 
i. the lifting of confidentiality with respect of the final panel report under the Working 
Procedures of the panel;  
ii. the transmission of the panel record to the arbitrators upon the filing of the Notice of 
Appeal : Rule 25 of the Working Procedures for Appellate Review shall apply mutatis 
mutandis ; 
iii. the transmission of the final panel report in the working  languages of the WTO to the 
parties and to the third parties .2 
Except as provided in paragraphs 6 and 18, the parties shall not request the panel to resume the 
panel proceedings.  
5.  The arbitration sha ll be initiated by filing of a Notice of Appeal with the WTO Secretariat no later 
than 20 days after the suspension of the panel proceedings referred to in paragraph 4 has taken 
effect. The Notice of Appeal shall include the final panel report in the worki ng languages of the WTO. 
The Notice of Appeal shall be simultaneously notified to the other party or parties and to the third 
parties in the panel proceedings. Rules 20 -23 of the Working Procedures for Appellate Review shall 
apply mutatis mutandis .  
 
1 For greater certainty , this includes  any final panel report issued in compliance proceedings pursuant to 
Article 21.5 of the DSU.   
2 The parties confirm that it is not their intention that the panel report be circulated within the meaning 
of Article 16 of the DSU.  JOB/DSB/1/Add.12  
 
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6.  Subjec t to paragraph 2, where the arbitration has not been initiated under these agreed 
procedures, the parties shall be deemed to have agreed not to appeal the panel report pursuant to 
Articles 16.4 and 17 of the DSU, with a view to its adoption by the DSB. If the panel proceedings 
have been suspended in accordance with paragraph 4, but no Notice of Appeal has been filed in 
accordance with paragraph 5, the parties hereby jointly request the panel to resume the panel 
proceedings.  
7.  The arbitrators shall be three p ersons selected from the pool of 10 standing appeal arbitrators 
composed in accordance with paragraph 4 of communication JOB/DSB/1/Add.12 (hereafter the "pool 
of arbitrators ").3 The selection from the pool of arbitrators will be done on the basis of the same 
principles and methods that apply to form a division of the Appellate Body under Article 17.1 of the 
DSU and Rule 6(2) of the Working Procedures for Appellate Review, including the principle of 
rotation.4 The WTO Director General will notify the parti es and third parties of the results of the 
selection.  The arbitrators shall elect a Chairperson. Rule 3(2) of the Working Procedure for Appellate 
Review shall apply, mutatis mutandis , to the decision -making by the arbitrator s. 
8.  In order to give effect to pa ragraph 5 of communication JOB/DSB/1/Add.12 in this dispute, the 
arbitrators may  discuss their decisions relating to the appeal with all of the other members of the 
pool of arbitrators, without prejudice to the exclusive responsibility and freedom of the a rbitrators 
with respect to such decisions and their quality. All members of the pool of arbitrators shall receive 
any document relating to the appeal.  
9.  An appeal shall be limited to issues of law covered by the panel report and legal interpretations 
develo ped by the panel. The arbitrators may uphold, modify or reverse the legal findings and 
conclusions of the panel. Where applicable, the arbitration award shall include recommendations, as 
envisaged in Article 19 of the DSU. The findings of the panel which h ave not been appealed shall be 
deemed to form an integral part of the arbitration award  together with the arbitrators ' own findings . 
10.  The arbitrators shall  only address those issues that are necessary for the resolution of the 
dispute . They shall address  only those issues that have been raised by the parties, without prejudice 
to their obligation to rule on jurisdictional issues . 
11.  Unless otherwise provided for in these agreed procedures, the arbitration shall be governed, 
mutatis mutandis , by the provisions o f the DSU and other rules and procedures applicable to 
Appellate Review. This includes in particular the Working Procedures for Appellate Review and the 
timetable for appeals provided for therein as well as the Rules of Conduct .5 The arbitrator s may 
adapt the Working Procedures for Appellate Review and the timetable for appeals provided for 
therein, where justified under Rule 16 of the Working Procedures for Appellate Review, after 
consulting the parties.  
12.  The parties request the a rbitrators to issue the award within 90 days following the filing of the 
Notice of Appeal. To that end, the arbitrators may take appropriate organizational measures to 
streamline the proceedings, without prejudice to the procedural rights and obligations o f the parties 
and due process. Such measures may include decisions on page limits, time limits and deadlines as 
well as on the length and number of hearings required.  
13.  If necessary in order to issue the award within the 90 day time -period, the arbitrators may also 
propose substantive measures to the parties, such as an exclusion of claims based on the alleged 
lack of an objective assessment of the facts pursuant to Article 11 of the DSU .6 
 
3 If the pool of ar bitrators has not been composed, footnote 1 to paragraph 4 of communication 
JOB/DSB/1/Add.12  shall apply.  
4 However, a t the request of a party to a dispute, any member of the pool of arbitrators who is not a 
national of a participating Member  shall be excluded from th e selection process.  Two nationals of the same 
Member shall not serve on the same case.  
5 For greater cer tainty, paragraphs 14 – 17 of the Rules of Conduct shall apply to arbitrators.  
6 For greater certainty, the proposal of the arbitrators is not legally binding and it will be up to the party 
concerned to agree with the proposed substantive measures. The fa ct that the party concerned does not agree 
with the proposed substantive measures shall not prejudice the consideration of the case or the rights of the 
parties.  JOB/DSB/1/Add.12  
 
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14.  On a proposal from the arbitrators, the parties may agree to extend t he 90 day time -period for 
the issuance of the award.  
15.  The parties agree to abide by the arbitration award, which shall be final. Pursuant to Article  25.3 
of the DSU, the award shall be notified to , but not adopted by,  the DSB and to the Council or 
Committe e of any relevant agreement.  
16.  Only parties to the dispute, not third parties, may initiate the arbitration. Third parties which 
have notified the DSB of a substantial interest in the matter before the panel pursuant to Article  10.2 
of the DSU may make writ ten submissions to, and shall be given an opportunity to be heard by, the 
arbitrator s. Rule 24 of the Working Procedures for Appellate Review shall apply mutatis mutandis .  
17.  Pursuant to Article 25.4 of the DSU, Articles 21 and 22 of the DSU shall apply mutatis mutandis 
to the arbitration award issued in this dispute.  
18.  At any time during the arbitration, the appellant, or other appellant, may withdraw its appeal, 
or other appeal , by notifying the arbitrators. This notification shall also be notified to the panel and 
third parties, at the same time as the notification to the arbitrators. If no other appeal or appeal 
remains, the notification shall be deemed to constitute a joint r equest by the parties to resume panel 
proceedings under Article 12.12 of the DSU.7 If an other appeal or appeal remains at the time an 
appeal or other appeal is withdrawn, the arbitration shall continue.  
19.  The parties shall jointly notify these agreed proce dures to the panel in DS X and ask the panel 
to grant, where applicable, the joint requests formulated in paragraphs 3, 4, 6, and 18 .8  
 
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7 If the authority of the panel has lapsed pursuant to Article 12.12 of the DSU, the arbitrato rs shall issue 
an award that incorporates the findings and conclusions of the panel in their entirety.  
8 For greater certainty, should any of these requests not be granted by the panel, the parties will agree 
on alternative procedural modalities to preserv e the effects of the relevant provisions of these agreed 
procedures . JOB/DSB/1/Add.12  
 
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ANNEX  2 
COMPOSITION OF THE POOL OF ARBITRATORS PURSUANT TO PARAGRAPH 4 OF COMMUNICATION 
JOB/DSB/1/ADD.12  
 
 
After the notification of the present communication to the DSB, the participating Members will  
promptly commence  the composition process. The following wil l apply:  
 
1.  Each participating Member may nominate one c andidate , by notifying the other participating 
Members .1 
2.  The deadline for nominations will expire 30 days after the date of this communication.  
3.  The candidates will undergo a pre -selection process in order to ensure that the pool of arbitrators 
comprises only persons of recognised authority, with demonstrated ex pertise in law, international 
trade and the subject matter of the covered agreements generally.   
The participating Members envisage that this pre -selection process will be carried out by a pre -
selection committee composed of the WTO Director General, and t he Chairperson of the DSB, the 
Chairpersons of the Goods, Services, TRIPS and General Councils. The pre -selection committee will, 
after appropriate consultations, recommend to the participating Members the candidates who meet 
the above criteria.  
The participating Members  envisage  the completion of th is pre-selection process within one month 
following the expiry of the deadline to nominate candidates.  
4.  The participating Members will compose the pool of arbitrators by consensus. The participating 
Members  will endeavour to compose the pool of arbitrators within three months following the date 
of this communication. They will notify the pool of arbitrators to the DSB, as addendum to this 
communication. The composition of the pool of arbitrators will ensure an a ppropriate overall balance.  
5.  The composition of the pool of arbitrators may be modified by agreement of all participating 
Members at any time. The participating Members underscore the interim nature of this arrangement. 
Should the conditions laid down in p aragraph 15 of the communication remain for a longer period of 
time, the participating Members will , periodically, partially re-compose the pool of arbitrators , 
starting two years after composition , in line with the procedures established in this Annex . 
6.  Should a need arise to complete the pool of arbitrators, for instance following the resignation of 
a member of the pool, the procedure set out above will apply.  
 
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1 For greater certainty, current or former Appellate Body members may be nominated as candidates. If 
nominated as candidates, they will not undergo the pre -selection process set out in pa ragraph 3 of this Annex.