JOB/GC/215  
 
1 March 2019  
(19-1182) Page: 1/4 
General Council  
   
 
AGENDA  ITEM 4  
 
INFORMAL PROCESS ON MATTERS RELATED TO T HE FUNCTIONING OF TH E APPELLATE 
BODY  - REPORT BY THE FACILI TATOR , H.E. DR. DAVID WALKER (NEW Z EALAND)  
THURSDAY, 28 FEBRUAR Y 2019  
Introductory Remarks  
1.1.  Let me start by thanking you Chair and all of you as Members for placing your trust in me as 
Facilitator.  
1.2.  I am pleased to have this opportunity to report to you on the developments in the informal 
process and my own consultations.  
1.3.  As noted by the GC Chair, meetings have been convened in a range of formats , keeping in 
mind the solution -oriented spirit of this exercise. The idea was to enable an informal, active and 
constructive exchange among delegations.  
1.4.  This included two open -ended meetings – on 17 January and 18 February – that the Chair has 
described.  
1.5.  I also convened two small -group sessions – on 6 February and 14  February respectively.  
1.6.  The group comprised delegations and group coordinators that had: (i)  tabled written proposals; 
(ii) raised concerns about the proper functioning of, and the adherence to WTO rules by, the 
Appellate Body; (iii) made alternative proposals, including at the first open -ended Informal Meeting 
on 17 January; and/or (iv) raised follow -up questions or concerns on the proposals or issues at hand.  
1.7.  The objective of the informal sess ions was two -fold, namely:  
• To actively and constructively review and discuss the various proposals and concerns, 
issue-by-issue; and  
• To provide an opportunity to hear new or counter proposals, concerns and other ideas.  
1.8.  The issues in focus, during the discu ssion, were derived from Members' proposals and were 
discussed, one -by-one, always mindful that some of the issues are interlinked and multifaceted.  
1.9.  In addition, five new proposals were introduced at the informal sessions.  
1.10.   Let me now provide you with a sh ort recap of the solution -focused discussion.  
 
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  Report  
1.11.   Discussions took place on the basis of proposals and contributions from Members contained 
in documents WT/GC/W/752/R ev.2; WT/GC/W/753/Rev.1; WT/GC/ W/754/Rev.2; WT/GC/W/758; 
WT/GC/W/759; and  WT/GC/W/76 0; and WT/GC/W/761. Document WT/GC/W/763 was introduced 
but not yet discussed.  
Rule 15  
1.12.   There appears to be widespread support for the proposition that DSB Members should 
determine whether a person who is no longer an Appellate Body  member pursuant to DSU 
Article 17.2 can continue to serve on an appeal.  
1.13.   Ideas that have been advanced include limiting service on an appeal to cases where the oral 
hearing has taken place, or at least started; and aligning the assignment of members to appeals 
with the duration of  an appeal as stipulated in DSU Article 17.5 (for example that no member should 
be assigned to a new appeal within 60 days of the expiry of their term).  
1.14.   Suggested options for exercising such Member instruction include amendment of the DSU or 
a formal Decis ion by the DSB/General Council.  
1.15.   Separately there appears to be convergence that it would be useful, to assist DSB Members 
in meeting their obligation in DSU Article 17.2 to "appoint persons to serve on the Appellate Body" 
and to fill vacancies "as they arise", to automatically launch the selection process to replace outgoing 
Appellate Body members 6 months before the expiry of their term in office.  
1.16.   Discussions may continue on how such selection process could best be conducted.  
90 Days  
1.17.   There is no disagre ement among Members as to the clear text of Article 17.5 of the DSU that 
"…in no case shall the proceedings [of an appeal] exceed 90 days."  
1.18.   There was some discussion as to what Members would inte nd this to mean going forward. For 
example: should 'proceedin gs' be taken to mean the issuance of the Appellate Body report in English 
language version only, or does it require the issuance of the report in all three WTO working 
languages.  
1.19.   There was also discussion about whether the parties to an appeal should be ab le to agree that 
their appeal could last for longer than 90 days, if they wished to do so.  In this context some Members 
suggested that any such facility for parties to agree an extension should not be open -ended.  
1.20.   Again, suggested options for addressing th is matter include amendment of the DSU or a 
formal Decision by the DSB/General Council.  
1.21.   There was also some discussion about behaviours, by Members and by the Appellate Body, 
which may have contributed to the growing number of appeals th at have in practice  exceeded 
90 days and the average length of such excess.  
Municipal Law  
1.22.   There appears to be no disagreement among Members that the meaning of municipal law 
should be treated as an issue of fact and therefore not subject to appeal pursuant to Article 17.6 of  
the DSU.  
1.23.   Concerns were also raised about A ppellate Body review of a panel' s fact finding more 
generally.  JOB/GC/215  
 
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  1.24.   Discussion of this issue remains ongoing including whether Members might provide any 
additional clarity to the Appellate Body, either through amendmen t to the DSU or some other form 
of collective guidance.  
Advisory Opinions  
1.25.   Concerns have been expressed that the Appellate Body has a tendency to make findings on 
issues beyond those necessary to resolve a dispute.  
1.26.   Again, discussion remains ongoing includin g whether Members might provide any additional 
clarity to the Appellate Body, in particular with respect to Article 17.12 of the DSU, either through 
amendment of the DSU or some other form of collective guidance.  
Precedent  
1.27.   There appears to be agreement amo ng Members that there is no 'binding precedent' in the 
WTO absent specific agreement by Members (e.g. negotiated Agreements, WTO  Article IX.2 
Authoritative Interpretations, or other forms of Decisions by Members).  
1.28.   At the same time, consistent with DSU Arti cle 3.2, there also appears to be broad agreement 
that consistency and predictability in interpretation of the rights and obligations of Members under 
the covered agreements is of significant value to Members, and that panels and the Appellate Body 
should follow findings of previous panel/Appellate Body reports if and to the extent they find them 
to be persuasive in the dispute they have before them.  
1.29.   Again, discussion remains ongoing including whether Members might provide any additional 
clarity to the Appe llate Body and panels, including in relation to the 'cogent reasons' approach 
developed by the Appellate Body.  
1.30.   Members have also discussed the idea of holding an annual meeting between the Appellate 
Body and WTO Members (in the DSB) where Members could exp ress their views on issues in a 
manner unrelated to the a doption of particular reports. Such meetings could be of relevance to the 
question of precedent, and also potentially to concerns about 'overreach' as below.  
1.31.   Suggested options to create such a mechan ism include amendment of the DSU or a formal 
Decision by the DSB/General Council.  
Additional Amendments  
1.32.   In addition to the idea of automatic launch of Appellate Body selection processes covered 
earlier, delegations also discussed additional proposed amendm ents of the DSU contained in 
document WT/GC/W/753/Rev.1 relating to a supplementary transition rule for outgoing Appellate 
Body members, independence of Appellate Body members, and efficiency and capacity [of the 
Appellate Body] to deliver.  
1.33.   On each of thes e proposed amendments a number of questions were raised an d some 
reservations expressed. It remains to be seen how the proponents would intend to respond to these 
reactions from other delegations.  
'Overreach'  
1.34.   Members had an initial  discussion of the questi on of ' overreach ' based on contributions in 
WT/GC/W/754/Rev.2 and relevant aspects of WT/GC/W/760.   
1.35.   Discussion of 'overreach' as part of this informal process was welcomed, with widespread 
willingness among delegations to engage on the issue.  
1.36.   At the same time, it was recognized that 'overreach' is potentially the most complex aspect 
of this process and that, depending on the scope of issues delegations identify and the type of 
solutions proposed, identifying solutions in this area could take some time.  JOB/GC/215  
 
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  1.37.   Additional guidance on interpretative approaches Members wished the Appellate Body to take 
was suggested as one potentially productiv e area for further discussion. As noted above, it was 
recogni zed that the idea of an annual meeting between the Appellate B ody and WTO Members could 
also be relevant to addressing the question of 'overreach'.  
1.38.   Going forward, there was a common desire expressed to focus the discussion – that 
delegations be specific as to the issues they feel need to be addressed and pragmatic in identifying 
options for solutions.  
Concluding remarks  
1.39.   Again, I would like to thank all delegations who have contributed with ideas and suggestions, 
and who parti cipated proactively in this process. I hope that I can continue to count on your guidance 
and support.  
1.40.   In spite of – or rather because of – the complexities and challenges that we face, it is our 
shared responsibility to find common ground  with regard to the Appellate Body's effective functioning 
and future.  
1.41.   We also have to be mindful that time is of the essence . 
1.42.   So, unless otherwise advised by you Chair, it is my intention to continue the informal process 
of solution focused discussion, in a range of diff erent formats, next month.  
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