JOB/DSB/2  
 
23 July 2018  
(18-4609) Page: 1/2 
  Original: English  
 
FOSTERING A DISCUSSI ON ON THE FUNCTIONIN G OF THE APPELLATE B ODY  
The following communication, dated 20 July 2018, is being circulated at the request of the 
Delegation of Honduras.  
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FOSTERING A DISCUSSI ON ON THE FUNCTIONIN G OF THE APPELLATE B ODY  
In light of the situation currently faced with the Appellate Body appointment impasse, taking into 
account the importance of the Dispute Settlement System to the well -functioning of the WTO a nd 
Members ' duty to ensure the proper functioning of it, Honduras believes that action is urgently 
needed. Members should start a constructive discussion aimed at addressing Members ' concerns.  
Honduras is fully aware that there are several issues that mus t be resolved , however we consider 
that our discussion should start addressing two core issues regarding Rule 15 of the Appellate 
Body Working Procedures for Appellate Review ( "Working Procedures "). 
Rule 15 currently provides for:  
Transition  
15. A person who ceases to be a member of the Appellate Body may, with the 
authorization of the Appellate Body and upon notification to the DSB, complete the 
disposition of any appeal to which that person was assigned while a member, and that 
person shall, for that pur pose only,  be deemed to continue to be a m ember of the 
Appellate Body.   
There are currently no specific criteria for determining when an Appellate Body member should be 
continued to serve on an appeal under Rule 15. A number of options for objective and r easonable 
criteria could be considering the following:  
1. Regarding  the issue of when  an Appellate Body member can continue to serve beyond the 
four-year term for the purpose of completion of duties on an appeal:  
a. An Appellate Body member shall be able to continue to serve on cases where the oral 
hearing has occurred or started. [On a case where a hearing has not been yet, the 
outgoing Appellate Body member should be replaced with an alternate Appellate Body 
member.] ; or, 
b. No member of the Appellate Body sha ll be assigned to a new appeal later than 60 days 
before the final date of his/her appointment.  
2. Regarding  the issue of who decides if an Appellate Body member should serve after his/her 
four-year term has expired:  
a. The Appellate Body can continue to apply R ule 15 of the Working Procedures which 
allows an Appellate Body member to complete his/her work on ongoing appeals subject 
to approval by the Appellate Body an d upon notification to the DSB;  JOB/DSB/2  
 
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  b. In the event WTO Members alternatively decide that the DSB should  approve the 
continuation of an Appellate Body member under Rule 15, the reverse consensus rule 
could apply. This would avoid a situation where an Appellate Body member who meets 
the relevant criteria could be blocked by a sin gle WTO Member;  
c. In the event W TO Members decide that the DSB should approve the continuation of an 
Appellate  Body member under Rule 15, an alternate approach could be that the positive 
consensus or positive consensus minus the parties of the dispute could apply.  
There may be other poss ible approaches. Honduras presents this Non Paper in an effort to make a 
positive contribution to the current discussion. Honduras believes that the only solution to the 
current situation is constructive dialogue and real engagement from all WTO Members.  
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