WT/GC/W/753  
 
26 November 2018  
(18-7418) Page: 1/3 
General Council  
12-13 December 2018  Original: English  
 
COMMUNICATION FROM T HE EUROPEAN UNION, C HINA AND  INDIA  
TO THE GENERAL COUNC IL 
The following communication, dated 2 3 November 2018, is being circulated at the request of the 
delegations of the European Union, China, I ndia. 
 
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INTRODUCTION  
We are mindful of the shared responsibility of all Members for the proper functioning of the WTO 
dispute settlement system that is essential to a multilateral  trading system based on rules.  
 
We acknowledge that concerns have been raised about the functioni ng of the dispute settlement 
system and are ready to work on solutions on the basis of the proposal to amend certain provisions 
of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU") 
attached to  document WT/GC/W/752 . 
 
At the same time, in order to achieve balance and taking into account the experience with the 
application of the DSU to date, we consider that these amendments should be accompanied by the 
amendments set out in the Annex. These additional amendments aim at st rengthening the 
independence and impartiality of the Appellate Body, improving efficiency so as to enable it to meet 
the required timeframes, and ensuring an orderly transition as well as an orderly launch of selection 
procedures.  
 
PROPOSED ADDITIONAL AMENDMENTS  
Independence of Appellate Body members  
 
It is proposed to provide for one single but longer (6 -8 years) term for Appellate Body members. 
The objective is to enhance the independence of the Appellate Body and its members, which is 
needed in view of the experience of recent years and also in view of the other amendments proposed 
in document WT/GC/W/752 . 
 
Efficiency and capacity to deliver  
 
In addition to the amendment proposed on the issue of 90 days, and in order to  improve the 
efficiency of the Appellate Body and enable it to meet the required timeframes, we propose the 
following:  
 
- Increasing the number of Appellate Body members from 7 to 9. This would improve the 
efficiency and internal organi zation of the Appellat e Body while also improving the 
geographical balance on the Appellate Body after numerous accessions to the WTO since 
1995.  
 
- Providing that the membership of the Appellate Body is the exclusive occupation of Appellate 
Body members (currently, pursuant to t he DSB decision WT/DSB/1, it is a part time job). 
This would be accompanied by appropriate changes in the employment conditions. This 
would not preclude Appellate Body members from academic or scientific activities, consistent 
with the nature of their func tions.  WT/GC/W/753  
 
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  As an accompanying measure – not requiring an amendment of the DSU (cf . Article 17.7 of the DSU) 
– an expansion of the resources of the Appellate Body Secretariat, providing the administrative and 
legal support to the Appellate Body, would also be considered in order to facilitate the prompt 
circulation of Appellate Body reports while safeguarding the quality of the reports.  In line with the 
general recruitment policy of the WTO, the objective should be to attract and retain staff members 
offering the highest standards of efficiency, competence and integrity while ensuring the broadest 
possible diversif ication, reflecting that of the membership in the WTO.  
 
Transitional rules for outgoing Appellate Body members  
 
In order to ensure an orderly transition between the outgoing and new Appellate Body members, 
the outgoing Appellate Body members should continu e discharging their duties until their places 
have been filled  but not longer than for a period of two years following the expiry of the term of 
office.  
 
The launch of the Appellate Body selection process  
 
It is clarified that the selection process to repl ace outgoing Appellate Body members shall be 
automatically launched no later than X [e.g. 6] months before the expiry of their term of office.  
 
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These proposed amendments are contained in the Annex. We are hereby proposing that, in addition 
to the amen dments attached to document WT/GC/W/752 , these amendments be adopted by the 
General Council on the same occasion, pursuant to Articles IV:2 and X:8 of the Marrakesh Agreement 
Establishing the World Trade Organization.  
 
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  WT/GC/W/753  
 
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  ANNEX  
AMENDMENT OF CERTAIN PROVISION S OF 
THE UNDERSTANDING ON  RULES AND PROCEDURE S 
GOVERNING THE SETTLE MENT OF DISPUTES  
Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes 
("DSU") shall be amended as follows:  
 
1. Paragraph 1 shall be amended to read as follows:  
 
"A standing Appellate Body shall be established by the DSB. The Appellate Body shall hear appeals 
from panel cases. It shall be composed of seven  nine persons, three of whom shall serve on any one 
case. Persons serving on the A ppellate Body shall serve in rotation. Such rotation shall be determined 
in the working procedures of the Appellate Body."  
 
2. Paragraph 2 shall be amended to read as follows:  
 
"The DSB shall appoint persons to serve on the Appellate Body for a [six-year/eigh t-year] four-year 
term which shall be non -renewable , and each person may be reappointed once. However, the terms 
of three of the seven persons appointed immediately after the entry into force of the WTO Agreement 
shall expire at the end of two years, to be  determined by lot . Vacancies shall be filled as they arise. 
To that end, the Chairman of the DSB shall launch the selection process no later than X [e.g. 6] 
months before the expiry of the term of office.  A person appointed to replace a person whose term 
of office has not expired shall hold office for the remainder of the predecessor's term. A person 
serving on the Appellate Body whose term of office has expired shall continue to discharge his or 
her duties until he or she has been replaced  but not longer than for a period of two years following 
the expiry of the term of office . The outgoing  person shall complete the disposition of an appeal in 
which the oral hearing has been held. " 
 
3. Paragraph 3 shall be amended to read as follows:  
 
"The Appellate Body shal l comprise persons of recognized authority, with demonstrated expertise in 
law, international trade and the subject matter of the covered agreements generally. They shall be 
unaffiliated with any government. They shall not engage in any other occupation of  a professional 
nature.  The Appellate Body membership shall be broadly representative of membership in the WTO. 
All persons serving on the Appellate Body shall be available at all times and on short notice, and 
shall stay abreast of dispute settlement acti vities and other relevant activities of the WTO. They shall 
not participate in the consideration of any disputes that would create a direct or indirect conflict of 
interest."  
 
4. Paragraph 8 shall be amended to read  as follows:  
 
"The employment conditions of persons serving on the Appellate Body shall reflect their full –time 
employment as members of the Appellate Body.  The expenses of persons serving on the Appellate 
Body, including travel and subsistence allowance, shall be met from the WTO budget in accordan ce 
with criteria to be adopted by the General Council, based on recommendations of the Committee on 
Budget, Finance and Administration."  
 
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