WT/GC/W/758  
 
21 January 2019  
(19-0336) Page: 1/3 
General Council  Original: English  
 
FOSTERING A DISCUSSI ON ON THE FUNCTIONIN G OF THE APPELLATE B ODY 
COMMUNICATION FROM H ONDURAS  
The following communication, dated 18 January 2019, is being circulated at the request of the 
delegation of Honduras.  
 
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1  INTRODUCTION  
1.1.  In furtherance of the communication dated 2 3 July 2018 and reiterating the importance of the 
Dispute Settlement System within the broader WTO framework, H onduras  would like to address the 
issue of timelines for the conclusion of appellate proceedings. Concern s have been expressed 
regarding the extension of appellate proceedings far beyond the stipulated period of 90 days 
provided in Article 17.5 of the DSU. Others have called for a revision of such deadline in order to be 
more realistic of todays' complex disp utes and the Appellate Body's workload . 
1.2.  First, M embers need to decide what time -period they want to allocate to an appeal after the 
conclusion of the panel process. Second, Members may explore how to streamline the Appellate 
process. The right of appeal ex tends the period of the dispute settlement process and hence needs 
to be limited and subject to certain conditions. Better cooperation among disputing parties and the 
Appellate Body, and incorporating more stringent adherence to conditions of appeal may re duce 
unnecessary delays. Third, Members may have to d ecide on the nature of the time -period allocated 
to an appeal, whether such deadline is mandatory and the consequence of its non -respect.  
1.3.  The issues and options presented here are not exhaustive, nor mu tually exclusive, and they 
should not be read cumulatively. Furthermore, these options may be implemented through various 
means, to be discussed separately. Several other pertinent issues also need to be resolved to fully 
address the problems facing the Di spute Settlement System and the WTO.  
2  PROPOSED OPTIONS  
2.1  Timelines  
2.1.  Adhering to the existing timeline?  
a. One option could be to require the Appellate Body to comply with the existing 90 -day time-
frame set out in the DSU.  
b. Could/should the methodology  of calculati ng the 90 -day time -frame be modified to refer 
to working  days only, as opposed to calculations that include weekends and official 
holidays?  
c. Could/should the methodology be modified to exclude from the 90 days, the time required 
for the translati on of an Ap pellate Body report?  
d. Could/should, p arties agree to extend the time -period for filing an appeal in cases where 
the Appellate Body is seized with a large number of appeals and present an appeal when WT/GC/W/758  
 
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  the Appellate Body i s better equipped to receive it,  and a ble to meet the 90 -day time -
frame?  
2.2.  Another time -period?  
a. Could/should the existing time limit be replaced by a more generous one (e.g. 120 days) 
or even by a requirement that appeals be processed "as quickly as possible"?  
b. Could/should the Appellate Body itself set a time limit for each case depending on the 
estimated time it will require to consider it?  
2.3.  Increasing the responsibility of the parties?  
a. In the DSU, the maximum period for conclusion of appellate proceedings is 90 days. In 
practice, the Appellat e Body has not respected this period since 2011. In order to enhance 
the parties' responsibility and involvement in the appellate process, could/should the rule 
be modified to require disputing parties, in consultation with the Appellate Body, to agree 
upon a time limit for consideration of an appeal, failing which 90 days may be applied as 
a default  time-frame?  
b. Could/should the rule be modified to require disputing parties to agree, in consultation 
with the Appellate Body, upon a time limit for considerati on of an appeal, failing which the 
Appellate Body may decide the required time limit?  
2.2  Efficiency of the AB process  
2.4.  Procedural steps could/should be implemented to help the Appellate Body meet the 90 -day or 
otherwise agreed time limit.  
a. Consultations could/should be called for prior to commencement of AB proceedings 
whereby disputing parties, in consultation with the Appellate Body, could agree whether 
to extend the 90 -day time -frame or limit the scope of the appeal. This could be done as 
soon as a par ty expresses its intention to appeal and at the latest [30] [45] days after the 
circulation of the panel report.  
b. Failing agreement between the disputing parties, the Appellate Body could/should be 
empowered to  suggest and eventually to impose  measures to e nable it to meet the 
stipulated deadline.  
• Such measures may include the Appellate Body's indication to delete issues from the 
scope of the appeal and/or to extend the time -frame. Parties would then need to 
either agree to limit the scope of th e appeal or extend the time -frame.  
 
• The Appellate Body could be empowered to impose limitations on the length of 
written submissions, limitations on the number of hearings, etc. in order to enable 
it to meet the stipulated deadline.  
 
• Generally, the AB could/should be  requested to issue shorter reports dealing with 
legal issues in as little detail as possible . 
 
o This may be operationalized by narrowing the Appellate Body's consideration 
of issues, including the extent to which each issue is analyzed.  
 
o Similarly, cutting  out unnecessary or repetitive information from Appellate 
Body reports may be considered in order to promote efficiency. This could 
include removing references to past cases, removing summaries, lengthy 
descriptions of facts, reducing the extent to which p arty submissions are 
presented (as the AB has begun to do) (this would be facilitated if parties' 
submissions were public or at least accessible to the WTO Members from the 
WTO website).  
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  • The Appellate Body may become subject to "mandatory judicial economy " in order 
to limit the scope and length of Appellate Body reports in general. The existing 
obligation to 'address all issues ' could be modified such that the Appellate Body 
would be prohibited from making a finding or an inquiry into the merits of each is sue 
where it is not necessary for the resolution of the dispute.1 A prohibition on  Obiter 
Dicta could work i n tandem with such an approach.  
 
c. Remand could be introduced. This could reduce the amount of information under review 
by the Appellate Body. It is worth noting however, that such a procedure may  contribute 
to an extended time -frame for the overall dispute settlement process.  
d. The practice of collegiality may be modified to the extent to which it increases delays.  
e. The capacity of the Appellate Body to deal with a greater caseload may be increased 
through various means.  
2.3  Dealing with reports circulated after expiration of the time limit  
2.5.  The consequences of expiration of the agreed or 90 -day period depend on whether the said 
time-period is mandatory and wh ether its non -respect is fatal, leading to the automatic adop tion of 
the prior panel report.  
a. Parties may enter into consultations prior to the expiration of the 90 -day per iod to agree 
to extend the time -frame in light of the impending delay. Guidelines may  be developed in 
this regard.  
b. The delay may be rectified by parties  ex post-facto by way of deeming letters to the DSB 
recognizing the delivery of the Report as having been made within the stipulated time -
frame.  
c. A report circulated after the expiration of the 90-day or otherwise agreed time -period may 
be subject to a positive consensus procedure for adoption. Such procedure may or may 
not include the disputing parties' votes in such positive consensus.  
d. The Appellate Body may be permitted, under certain cond itions, to present a Report after 
the expiration of the stipulated deadline without losing jurisdiction. The Appellate Body 
may for instance, be required to demonstrate the existence of "exceptional or mitigating 
circumstances" that caused the delay.  
2.6.  There  may be several ways to operationalize  such a provision. For instance:  
• the Appellate Body's justificati on may be considered sufficient;  
 
• the justification may require further review and approval by a higher authority.  
 
For instance:  
 
i. the Director -General;  
ii. a group of the three Chairpersons of the DSB, the General Council and the Trade Policy 
Review; or  
iii. the Director General and the group of the three Chairpersons acting together.  
2.7.  The time -frame for such a review would be [10 days] from the initially agreed or  determined 
deadline.  
__________  
                                                
1 We recognize that a dispute is not limited solely to the remedy or implementation of a solution dealing 
with the WTO -inconsistency of the challenged measure(s) but may also concern procedural issues regarding the 
manner in which the panel had handled the e vidence, the process and considered the matter.