WORLD TRADE  
ORGANIZATION  WT/DSB/W/398 
16 January 2009 
 
 (09-0175) 
Dispute Settlement Body Original:   English 
  
 
IMPROVEMENTS FOR THE WTO APPELLATE BODY 
 
Proposal by the United States
 
  
 The following proposal addr essed to the Chairman of the Dispute Settlement Body, dated 
14 January 2009, has been received from the delegation of the United States with the request that it be 
circulated to Members.  
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 The WTO dispute settlement system is one of the key elements of the current open, 
rules-based global trading system.  The creation of  the Appellate Body in the Uruguay Round was an 
important innovation, which has enhanced Members' ability to resolve disputes and helped to clarify 
the meaning of covered agreements.  WTO Member s have now had over 12 years of experience with 
the WTO Appellate Body, including the valuable serv ice of 19 different Appellate Body members.  
Recent experience, however, has indicated that there are certain institutional issues that may need to 
be addressed in order to strengthen the Appellate Bo dy and thereby to enhance the dispute settlement 
system.  In particular, it should be a cause for conc ern that, despite the manifest importance of the 
Appellate Body, only nine candidates from seven Members were nominated for four open Appellate 
Body member positions in 2007.  This figure incl uded candidates from the United States and China 
who nominated two apiece.  This is troubling sin ce a high quality Appellate Body ultimately rests on 
a strong and representative pool of candidates.  It is  particularly important to ensure a high quality 
Appellate Body given the increasing importanc e of the Appellate Body and the far-reaching 
consequences of many Appellate Body findings.   
Accordingly, the United States believes it may be appropriate for WTO Members to 
encourage additional qualified applicants to c onsider service on the WTO Appellate Body and to 
identify ways to improve the ability of Appellate Body members to manage their responsibilities.  
Regarding the latter, measures should give due regard  to potential budgetary implications, identifying 
ways that possible changes could be im plemented within existing resources.   
We raise the following suggestions for consideration: 
(1) Part-time persons performing a full-time job.
  When the Dispute Settlement Body ("DSB") 
initially decided on the establishment of the Appe llate Body, the DSB considered that "the 
requirement that high-calibre members be available at  all times could be met, on a flexible basis, by 
offering Appellate Body members contracts based on a monthly retainer plus a fee for actual days 
worked."  However, the DSB also  considered that this could be  kept under review "to determine 
whether a move to full-time employment was warranted."1  It is becoming increasingly apparent that 
                                                      
1 WT/DSB/1, para. 11. WT/DSB/W/398 
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  service on the Appellate Body  is not a part-time job.
2  Under the DSU, Appellate Body members must 
be available "at all times and on short notice" to be  able to work on an appeal, and in the meantime 
must "stay abreast of dispute settlement activities and other relevant activities of the WTO."  In 
reality, this means that Appellate Body members ar e severely constrained in their ability to retain 
other employment.  In many years, members spend in excess of 100 days in Geneva alone, and spend 
additional time in their home working on appeals.  We have been told by several Appellate Body 
members that they have spent as many as 200 days on DSU matters in some years.  This does not 
include uncompensated time spent preparing for up coming disputes, where additional preparation is 
required because of the Appellate Body deadlines.  Yet the position continues to be considered 
part-time.  Finally, Appellate Body members ar e not eligible for the health care and retirement 
benefits available to full-time WTO staff, which mi ght be a major deterrent to such service by highly 
qualified candidates.  Accordingly, the United States believes it is appropriate to consider whether the 
position of an Appellate Body member is really a full-time one and whether the conditions of service 
should be changed accordingly.   
Another problem with the part-time status of A ppellate Body members is that it allows for, 
and may even require, Appellate Body members to e ngage in other paid employment.  Attempting to 
retain other employment while being an Appellate Body member raises the possibility of conflicts of 
interest; it is not in the interests of WTO Members to increase the possibility of  an inadvertent conflict 
of interest presenting itself in the course, or after conclusion, of an appeal.   
Converting the position to full time would not re quire that members move to Geneva.  There 
are many reasons for someone to stay in their current location (such as family obligations), and 
requiring persons to reside in Geneva may be c ounterproductive in that it may reduce the number of 
qualified persons interested in ser ving on the Appellate Body or un duly limit their exposure to various 
views on WTO matters.   
(2) Lack of individual staff to do legal research and drafting.
  Appellate Body members 
currently rely on a common pool of Appellate Bo dy Secretariat employees to perform research and 
manage appeals.  However, an Appellate Body me mber does not have any personal staff dedicated to 
working on the specific issues of interest to that  individual Appellate Body member.  Appellate Body 
members are likely to be senior members of the legal profession, and it is unrealistic to expect them to 
do all of the basic legal research and drafting to develop their individual views and positions.  Such 
basic work, however, is often required for any adjudi cator in any legal system to make an informed 
decision and fully develop his or her views.  While some of these functions have been performed by 
the Appellate Body Secretariat, we believe the WT O dispute settlement system would benefit if each 
Appellate Body member were allotted a law clerk.   Such an approach would facilitate a more 
informed debate when Appellate Body members gath er to resolve a matter.  We note that many legal 
systems use law clerks to support adjudicators in these functions. If each Appellate Body member had 
a staff person assigned to that member, each member could be confident that they would have 
assistance in conducting the research and other work  they consider important to their work and 
elaborating their views.  This step would have an  ancillary benefit of allowing lawyers in various 
WTO Members who are early in their careers to get advanced training in WTO law, and help develop 
a pool of experienced WTO lawyers in Members that  do not currently have an extensive number of 
persons with that expertise.  These law clerks coul d be hired as temporary staff to serve for the term 
of an individual Appellate Body member and not as part of the permanent WTO Secretariat.  We also 
want to ensure that any action taken on modifying or creating posts is carried out in a manner that is consistent with existi ng remuneration practices. 
                                                     
 
2 When this issue was last discussed in 2001, a number of Members sugges ted that the number of 
appeals might decline to the point where the position could be truly part-time.  However, the number of appeals 
has remained relatively constant.  WT/DSB/W/398 
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(3) Professional Development.   An Appellate Body member , while being a person "of 
recognized authority, with demonstrated expertise in  law, international trade and the subject matter of 
covered agreements generally," could benefit from continuing pr ofessional development throughout 
that person's term.  Providing an opportunity for a more intensive and comprehensive review of the 
issues involved in being an Appellate Body memb er, including past reports of panels under the 
GATT 1947 and WTO as well as of the Appellate Body, the structure of the WTO system, and the process for conducting WTO negotiations and drafti ng covered agreements would strengthen the 
Appellate Body as an institution.   In addition, because the WTO covered agreements encompass a 
significant breadth of issues, disciplines, and approaches, Appellate Body members would benefit 
from an ongoing opportunity to become familiar with the broad range of legal systems and traditions 
of Members and provisions of the covered agre ements.  A representative group of WTO Members 
could coordinate such professional development to ensure that curre nt and future Appellate Body 
members are exposed to the full range of views.  Me mbers could also consider whether to extend such 
professional development opportunities to Appellate Body law clerks. 
 
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