JOB/GC/220  
 
25 July 2019  
(19-4918) Page: 1/4 
General Council  Original: English  
 
AGENDA  ITEM 5(B) 
 
INFORMAL PROCESS ON MATTERS RELATED TO T HE FUNCTIONING OF TH E APPELLATE 
BODY  – REPORT BY THE FACILI TATOR, H.E. DR. DAVI D WALKER (NEW ZEALAN D) 
TUESDAY, 23 JULY 201 9 
Introductory Remarks  
1.1.  I am pleased to have this opportunity to report to you, for the third time, and in so doing, take 
stock of where we stand in this informal process at this point in time.  
1.2.  We are now six months into this process.  This report therefore provides: (i) updates on recent 
developments in this process since we have last met; and (ii)  an overview of the work undertaken 
in this informal process since the beginning of the year, as requested by Members and the Chair at 
the meeting of the General Council in May.  
1.3.  It shou ld be read in conjunction with my reports to the 28  February and 7 May meetings of the 
General Council which were issued as JOB/GC/215 and JOB/GC/217 respectively.  
Third Report on Informal Process  
Process  
1.4.  As you know, the objective in this informal process  has been to address concerns raised by 
delegations with regard to the functioning of the Appellate Body and adherence with DSU provisions.  
1.5.  For this purpose, and as mentioned by the Chair, meetings have been: (i) convened in a range 
of formats, keeping in mind the solution -oriented spirit of the exercise; and (ii)  designed to enable 
an informal, active and constructive exchange among delegations.  
1.6.  To this end, we have held:  
• two formal stock -taking sessions, in February and May respectively, at which I deliv ered 
progress reports to the General Council.  As noted above, these have been issued 
respectively in JOB/GC/215 and JOB/GC/217;  
 
• four open -ended informal meetings to ensure transparency and inclusiveness 
– on 17 January, 18  February, 9 April and 18 July; and 
 
• nine informal small group meetings – on 6 and 14  February; 21 and 28  March; 
16 and 23 April; 1  May; and 1 and 15 July.  
1.7.  The informal small group meetings comprised delegations and coordinators that had: (i) tabled 
written proposals; (ii)  raised concer ns about the functioning of, and the adherence to WTO  rules by, 
the Appellate Body; and (iii)  made alternative proposals and/or raised follow -up questions or 
concerns on the proposals or issues.  
 JOB/GC/220  
 
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  Substance  
1.8.  In total, twelve1 proposals have been submitted, reviewed and discussed in this informal 
process.  
1.9.  As mentioned by Benin a few moments ago, the most recent proposal is contained in 
WT/GC/W/776 by the African Group.  This proposal was first presented at the 8th small group 
meeting on 1 July during which delegations posed a number of initial questions and commented 
positively on various elements of the proposal , including its emphasis on ensuring diversity in the 
selection process of new Appellate Body members.  
1.10.   All in all, a nd as requested by the General Council  Chair, we conducted – in this first half of 
the year - an issue -by-issue review of all the concerns raised and discussed a range of potential 
solutions that have been put forward in the proposals or orally at the meet ings. 
1.11.   From our deliberations, it has become clear that, although some concerns raised are shared 
by Members, there are also differences of view on the specifics of how to address those concerns.  
1.12.   Acknowledging these differences of view, and as tasked by the  General Council  Chair and 
Members, I have identified, on my own responsibility, the following areas or issues where I detect a 
certain degree of convergence during the discussion to date.  I will be going through these issues  per 
force one-by-one but the c onvergence I detect is across all these issues in holistic sense.   
Convergence elements  
Transitional rules for outgoing Appellate Body members  
 
1.13.   The DSB has the explicit authority, and responsibility, to determine membership of the 
Appellate Body.  
1.14.   To assist  Members in discharging this responsibility, the selection process to replace outgoing 
Appellate Body members shall be automatically launched 180 days before the expiry of their term 
in office.  Such selection process shall follow past practice.  
1.15.   If a vacan cy arises before the regular expiry of an Appellate Body member 's mandate, or as 
a result of any other situation, the Chair of the DSB shall immediately launch the selection process 
with a view to filling that vacancy as soon as possible.  
1.16.   Appellate Body me mbers nearing the end of their terms may be assigned to a new division 
up until 60 days before the expiry of their term.  
1.17.   An Appellate Body member so assigned may complete an appeal process in which the oral 
hearing has been held prior to the normal expiry of their term.  
90 Days  
 
1.18.   Consistent with Article 17.5 of the DSU, an Appellate Body report needs to be issued no later 
than 90 days from the date a party to the dispute notifies its intention to appeal.  
1.19.   In cases of unusual complexity or periods of numerous appeals, the parties may agree with 
the Appellate Body to extend the time -frame for issuance of the Appellate Body report beyond 
90 days.  Any such agreement will be notified to the DSB by the parties and the Chair of the 
Appellate  Body. 
                                                
1 W/752/Rev.2; W/753/Rev.1; W/754/Rev.2; W/758; W/759; W/760; W/761; W/763/Rev.1; 
W/767/Rev.1; W/768/Rev.1; W/769 and W/776.  JOB/GC/220  
 
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  Municipal Law  
 
1.20.   The 'meaning of municipal law' is to be treated as a matter of fact and therefore is not subject 
to appeal.  
1.21.   The DSU does not permit the Appellate Body to engage in a 'de novo'  review or to 'complete 
the analysis ' of the facts of a dispute.  
1.22.   Consistent with Article 17.6 of the DSU, it is incumbent upon Members engaged in appellate 
proceedings to refrain from advancing extensive and unnecessary arguments in an attempt to have 
factual findings overturned on appeal, under DSU Article 11, in a de facto 'de novo  review'.  
Advisory Opinions  
 
1.23.   Issues that have not been raised by either party should not be ruled or decided upon by the 
Appellate Body.  
1.24.   Consistent with Article 3.4 of the DSU, the Appellate Body shall address issues raised by 
parties in accordance with DSU Article 17.6 only to the extent necessary to resolve the dispute.  
Precedent  
 
1.25.   Precedent is not created through WTO dispute settlement proceedings.  
1.26.   Consistency and predictability in the interpretation of rights and obligations under the c overed 
agreements is of significant value to Members.  
1.27.   Panels and the Appellate Body should take previous Panel/Appellate Body reports into account 
to the extent they find them relevant in the dispute they have before them.  
'Overreach'  
 
1.28.   As provided in Artic les 3.2 and 19.2 of the DSU, findings and recommendations of Panels and 
the Appellate Body and recommendations and rulings of the DSB cannot add to or diminish the rights 
and obligations provided in the covered agreements.  
1.29.   Panels and the Appellate Body sha ll interpret provisions of the Agreement on Implementation 
of Article VI of the General Agreement on Tariffs and Trade 1994 in accordance with Article 17.6(ii) 
of that Agreement.  
Regular dialogue between the DSB and the Appellate Body  
 
1.30.   The DSB, in consulta tion with the Appellate Body, will establish a mechanism for regular 
dialogue between WTO  Members and the Appellate Body where Members can express their views on 
issues in a manner unrelated to the adoption of particular reports.  
1.31.   Such mechanism will be in the form of an informal meeting, at least once a year, hosted by 
the Chair of the DSB.  
1.32.   To safeguard the independence and impartiality of the Appellate Boy, clear ground rules will 
be provided to ensure that at no point should there be any discussion of ong oing disputes or any 
member of the Appellate Body.  
Concluding Remarks  
1.33.   Let me reiterate once again that although the discussion covered a broad spectrum of areas 
and issues, this report, under my own responsibility, focuses exclusively on the areas or issue s 
where a degree of convergence can be detected – at this point.   JOB/GC/220  
 
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  1.34.   Today's report will be issued after the meeting – in the JOB/GC -series and, as before, 
delegations looking to report to capitals on the status of this solution -oriented discussion may wish 
to make reference to it.  
1.35.   Going forward, if there are other potential points of convergence that I may have missed, I 
am happy to receive them from delegations.  
1.36.   Finding common ground vis-à-vis the Appellate Body's effective functioning remains our 
shared re sponsibility  and, as we have already heard this morning, one which is of increasing urgency.   
1.37.   I would therefore like to thank once again all proponents and delegations that have intervened 
and provided comments, for their continued efforts and inputs into this informal process since the 
start of the year.  
1.38.   I would also like to thank the Chair of the General Council and all delegations for placing trust 
in me as Facilitator.  
1.39.   Looking ahead, I will rely on the feedback from the General Council  Chair and Members  to 
see how this work can be best carried forward to the next phase in the second half of the year.  
1.40.   In that context, as I have mentioned before, Members have suggested different vehicles for 
delivering the different approaches that have been discussed, for  example through a Decision of the 
General Council.  Any such vehicle would obviously need to be developed with delegations before it 
could be considered for action by the Body concerned.  
1.41.   I continue to stand ready to assist the Chair of the General Council  and Members in any way 
necessary. As always, my door remains open.  
1.42.   Thank you . 
 
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