WT/GC/W/769  
 
26 April 2019  
(19-2875) Page: 1/3 
General Council  Original: English  
 
GENERAL COUNCIL DECI SION ON THE DISPUTE SETTLEMENT SYSTEM OF  WTO1 
COMMUNICATION FROM T HAILAND  
The following communication, dated 2 5 April 2019, is being circulated at the request of the 
delegation of Thailand.  
 
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Whereas the WTO dispute settlement system is a central element in providing security and 
predictability to the multilateral trading system;  
 
Whereas the role of the dispute settlement system is to preserve the rights and obligations of 
Members under the covered agreements and to clarify the provisions of those agreements;  
 
Whereas recommendations and rulings of the DSB cannot add to or diminish the rights and 
obligations of Members under the covered agreements;  
 
Recognizing both the contribution of panels and the Appellate Body to the goals of the DSU and to 
the well-being  of the multilateral trading system and the concerns that have been raised about the 
need to improve the dispute settlement process;  
 
Recognizin g that addressing these concerns and clarifying aspects of the functioning of the dispute 
settlement process based on the existing provisions of the DSU is an efficient way to maintain the 
basic principles and objectives of the multilateral trading system and to continue to build trust among 
Members in the effectiveness of the process;  
 
Reaffirming Members' commitment to the dispute settlement system and Members' obligation to 
engage in dispute settlement proceedings in good faith;  
 
Desirous to provide pane ls and the Appellate Body with guidelines to ensure the effective and smooth 
functioning of the dispute settlement system;  
Members agree as follows:  
 
A. DSU Articles 17.1 and 17.2 – Transition rules for outgoing Appellate Body members : 
1. Appellate Body members are appointed by the DSB, pursuant to Articles 17.1 and 17.2 of the 
DSU. A practical concern arises when an outgoing Appellate Body member 's mandate ends while 
that member is performing his or her duties in an ongoing appeal. The importance is addre ssing this 
concern in a manner that ensures that the Appellate Body can discharge its duties properly in a 
timely manner, including by circulating its report in any given dispute with as little delay as possible.  
2. An Appellate Body member whose term expires  during an appeal to which he/she has been 
assigned shall complete his/her work only upon the approval by the DSB. At the request of the 
                                                
1 Thailand presents this draft General Council decision in an effort to  make a focused and objective -
oriented contribution to the current discussion. There may be other approaches, including the use of other 
methods, as appropriate, to implement and give legal effect to content of the draft General Council decision that 
Membe rs could consider, in view of the importance of resolving the Appellate Body appointment impasse.  WT/GC/W/769  
 
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  Chairperson of the Appellate Body, the DSB shall grant the approval automatically in appeals in 
which the oral hearing takes place at least 30 days before the completion of the term of the outgoing 
Appellate Body member.  
3. The Appellate Body is requested to remove the current Rule 15 from the Working Procedures 
for Appellate Review.  
B. DSU Article 17.5 - 90-day deadline to com plete appeals :  
4. Article 17.5 of the DSU provides that, "in no case shall Appellate Body proceedings exceed 
90 days". Thus, Article 17.5 requires that appellate review shall be completed strictly within 90 days.  
5. In this regard, Members exhort the Appellate Body to observe this rule strictly and, to the extent 
possible, where necessary, to expedite appellate proceedings in order to meet the DSU -mandated 
timeframe. The Appellate Body shall generally strive to complete appeals in the order in which they 
were in itiated.  
6. It is recognized that there may be cases of unusual complexity, or periods of numerous appeals, 
in which the 90 -day deadline may excessively constrain the Appellate Body's ability to produce a 
report of the quality that the parties deserve.  
7. In ca ses where the Appellate Body considers that it would be difficult to meet the 90 -day 
deadline, the Appellate Body should immediately communicate with the parties to the dispute and 
consult on how the proceedings could be expedited. These may include, depen ding on the 
circumstances of each case, limiting the length of parties ' submissions; limiting the scope of issues 
on appeal raised by the parties, and circulating the Appellate Body Report before translation of the 
report has been completed. These consulta tions shall be without prejudice to the role of the Appellate 
Body as an objective and impartial adjudicator of the dispute. The result of the consultations shall 
be notified to the DSB.  
8. In situations in which the Appellate Body consults with parties to a  dispute regarding the 90 -
day deadline, the parties shall make good faith efforts to facilitate the appeal process. In doing so, 
the parties shall take into account the interests of the parties to other pending or upcoming appeals.  
9. Regardless of whether or  not the Appellate Body issues the report within the deadline, the 
Appellate Body report shall be deemed to be properly issued and shall be adopted by the DSB in 
accordance with the rules contained in Article 17.14 of the DSU.  
C. DSU Article 17.6 - Appellate Body review of facts, including Panel findings concerning the 
meaning of a Member 's domestic law : 
10. Article 17.6 of the DSU clearly limits the scope of the Appellate Body's review to "issues of law 
covered in the panel report and legal interpretations develo ped by the panel".  
11. Under public international law, the meaning of municipal law is normally considered to be a 
question of fact. The DSU does not address this issue. Hence, issues sometimes arise when a panel 's 
findings are viewed as involved "mixed" ques tions of fact and law. 
12. In these circumstances, panels are encouraged to characterize their findings as factual or as 
legal, as appropriate, bearing in mind that the meaning of municipal law of a Member is not a 
question of law. Where issues concerning the proper meaning of municipal law arise on appeal, the 
Appellate Body should afford due consideration to the panel 's characterization.  
D. DSU Article 17.12 - Findings necessary for the resolution of the dispute :  
13. Under Article 17.12 of the DSU, the Appellate Bo dy is required to "address each of the issues 
raised" in the appeal.  In addition, Article 3.7 of the DSU provides that the aim of the dispute 
settlement mechanism is to secure a positive solution of the dispute.  In addressing each of the 
issues raised on a ppeal, the Appellate Body shall consider carefully, in the light of the findings of the 
Panel and its own judgment, the extent to which findings on each issue raised are necessary to WT/GC/W/769  
 
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  secure a positive solution to the dispute. The Appellate Body shall also consider carefully the precise 
nature of the findings to be made on each issue raised, in the light of Article 3.7.  
14. The Appellate Body shall explore this issue with the parties upon initiation of appeal proceedings 
and during the oral hearing with a view to avoiding findings that are not necessary to achieve the 
overriding purpose of securing a positive resolution to a dispute. It is recognized, however, that the 
parties may disagree on what findings are necessary to achieve this purpose and that the decis ion 
finally lies with the Appellate Body as the objective and impartial adjudicator of the dispute.  
15. In its reports, the Appellate Body shall explicitly indicate why it considered that issuing particular 
findings requested by the parties was necessary for the resolution of the appeal before it, and why 
it considered that making other findings requested by the parties was not necessary for the 
resolution of the appeal.  
E. The precedential effect of previous panel and Appellate Body reports : 
16. Under Article 3.2 o f the DSU, the role of panels and the Appellate Body is to preserve the rights 
and obligations of Members under the covered agreements and to clarify the existing provisions of 
those agreements in accordance with the customary rules of interpretation of pu blic international 
law. Panels and the Appellate Body, in their reports, cannot add to or diminish the rights and 
obligations of WTO Members under the covered agreements.  
17. Similarly, the findings of panels and the Appellate Body are not authoritative interpretations of 
general application of the covered agreements. Under Article  IX: 2 of the Marrakesh Agreement, the 
exclusive authority to adopt such interpretations is grante d to the Ministerial Conference and the 
General Council. In these circumstances, adopted panel and Appellate Body reports, as such, do not 
have any binding effect on panels or the Appellate Body in subsequent disputes.   
18. It is, nevertheless, recognized that  it is useful for parties in panel and Appellate Body 
proceedings to refer to prior panel and Appellate Body reports in developing their arguments. In 
considering these arguments, panels (in making their assessment under Article 11 of the DSU) and 
the Appe llate Body should carefully consider the extent to which prior reports are relevant to the 
issues before them. Panels and the Appellate Body should explain in their reports the extent to which 
they considered the prior reports to be relevant to the dispute  at hand.  
F. Regular dialogue between Members and the adjudicative bodies of the WTO : 
19. Desiring to ensure the effective and smooth functioning of the WTO dispute settlement system 
in a manner that duly preserves the rights and obligations of Members under t he covered 
agreements, Members recognize  the value of having regular dialogue between Members and the 
adjudicative bodies of the WTO. To this end, the DSB shall hold annual meetings with members of 
the Appellate Body. The meetings, the function of which  is recognized as not affecting the legitimacy 
of an Appellate Body report , shall be open to all Members and any members of the Appellate Body. 
All Appellate Body members should, to the extent possible, be present at the meetings. Furthermore, 
the meetings sh all be without prejudice to the right of Members to express their views on an 
Appellate Body report as provided under Article  17.14 of the DSU , and shall be conducted in a 
manner that ensures  the integrity and impartiality of the appellate review.  
 
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