WT/GC/W/776  
 
26 June 2019  
(19-4300) Page: 1/2 
General Council  Original: English  
 
APPELLATE BODY IMPAS SE 
COMMUNICATION FROM  THE AFRICAN GROUP  
The following communication, dated 25 June 2019, is being circulated at the request of the 
delegation of Benin , on behalf of the African Group.  
 
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1  CONTEXT  
1.1.  The dispute settlement system is recogni zed in Article 3.2 of the Understanding on Rules and 
Procedures Governing the Settlement of Disputes (DSU) as a central element in providing security 
and predictability to the multilateral trading system.  
1.2.  For almost two decades in the DSU  negotiations, the African Group sought to address the 
structural defects in the functioning of this central part of the WTO's legal and jurisdictional 
instruments. The Group submitted a number of communications and proposals1 aimed at increasing 
our acces s to make use of the WTO dispute settlement mechanism and obtain favourable rules in 
the DSU to safeguard and promote our interests in the multilateral trading system. These remain an 
important priority for the African Group.  
1.3.  In the last year, we note with  alarming concern the systemic risks facing the WTO 's Appellate 
Body. The WTO derives its credibility from its mandated function to enforce the commitments 
entered into by its Members. With the looming paralysis of the Appellate Body come 
10 December  2019,  there will be no credible enforcement mechanism of the rules -based multilateral 
trading system. Existing rules will be unenforceable and discussions or negotiations on new rules 
will be redundant.  
1.4.  The African Group is acutely aware that an urgent solutio n is required to ensure the  effective 
functioning of the WTO 's Appellate Body  as a legitimate forum where all Members can exercise equal 
opportunity in enforcing their rights. It is critical that all Members contribute to the strengthening of 
the dispute s ettlement system in order to enhance predictability in the functioning of the Appellate 
Body.  
1.5.  The African Union Ministers of Trade urged that 'priority attention is given to resolving the 
impasse and commit to work with all WTO Members to find mutually acc eptable solutions, while 
preserving the essential features and integrity of the system '.2 
1.6.  The African Group takes note of all the proposals and submissions on DSU reform to date. We 
urge Members to ensure that any reform should facilitate the participation of African countries in the 
dispute settlement system, thereby alleviating the difficulti es African countries face in using the 
system.  
1.7.  With respect to DSU reform, the African Group is not in favour of making any linkages to 
resolving the urgent crisis in the Appellate Body with the broader WTO reform agenda. The African 
                                                
1 TN/DS/W/15 (25 September 2002); TN/CTD/W/3/Rev.2 (17 July 2002); TN/DS/W/42 
(24 January  2003); JOB(03)/55 (1 3 March 2003); TN/DS/W/92 ( 5 March 2008).  
2 WT/L/1054, WT/GC/199, TN/C/19 (8 January 2019).  WT/GC/W/776  
 
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  Group reaffirms parag raph 47 of the Doha Ministerial Declaration3 which specifically excludes the 
DSU negotiations from the single undertaking.  
1.8.  The African Group encourages all Members to engage constructively to resolve the Appellate 
Body impasse. Any agreed procedures and ti melines should not compromise the effective functioning 
of the dispute settlement system.  
1.9.  The African Group submits for Members ' consideration amendments to certain provisions of 
the DSU. These amendments are aimed at strengthening the functioning of the A ppellate Body based 
on concerns raised about its functioning. We urge Members to engage in a solution -based approach 
and call on Members to fill the vacancies on the Appellate Body immediately.  
2  TRANSITIONAL RULES F OR OUTGOING APPELLAT E BODY MEMBERS  
2.1.  The Appellate Body selection process shall be launched automatically no later than three (3) 
months before expiry of the term of office.  
2.2.  Rule 15 should be maintained to allow outgoing Appellate Body Members to discharge their 
duties until the position has been fi lled but not longer than a period of two (2) years following the 
expiry of the term of office.  
3  COMPOSITION OF APPEL LATE BODY MEMBERS  
3.1.  Increase the number of the Appellate Body Members from seven (7) to nine (9) Members. In 
the composition of the Appellate B ody, factors such as regional balance, gender representivity and 
multilingualism may be considered. This provision will amend paragraph 1 of Article 17 of the DSU.  
4  TERM OF OFFICE FOR A PPELLATE BODY  
4.1.  The maximum term of office of Members of the WTO Appellate  Body shall be seven (7) years, 
non-renewable. This provision will amend paragraph 2 of Article 17 of the DSU.  
5  DURATION OF EXAMINAT ION OF CASES BEFORE THE APPELLATE BODY  
5.1.  The duration of ninety (90) days for the examination of cases submitted to the Appellate Body 
and the presentation of reports should be maintained. However, in exceptional circumstances, the 
Appellate Body may exceed the ninety (90) day time limit but not more than one hundred and twenty 
(120) days for the examination of cases referr ed to the Appellate Body, and for the submission of 
expected reports. Days not worked (weekends and public holidays) should not be counted. This 
provision will amend paragraph 5 of Article 17 of the DSU.  
5.2.  The volume of documentation of parties ' submissions should not exceed thirty (30) pages.  
6  THE APPLICATION OF OBITER DICTA  DURING DISPUTES  
6.1.  Findings unnecessary and unrelated to resolving of a dispute may affect the rights and 
obligations of Members. The AB should limit itself to the issues raised by the part ies to the dispute. 
Under no circumstance should it pronounce on issues not raised by any parties to the dispute.  
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3 WT/MIN(01)/DEC/1 (20 November 2001).