Improvements and Reform of the WTO Appellate Body

The first Director of the Appellate Body Secretariat examines functioning of the World Trade Organization (WTO) Appellate Body in its first few years. Overall, she finds that the Appellate Body has been functioning remarkably well, and this is reflected in the lack of proposals for its reform. She does not believe that it is absolutely necessary for there to be major amendments to the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), at the time of the writing of this article, to reform or improve the Appellate Body. If there is to be any discussion of possible modifications, for example, in the number of Appellate Body Members, the author suggests that the whole question of the terms and conditions of appointment of Appellate Body Members should be given very careful scrutiny first before embarking upon any incremental reforms of any particular aspects. It is perhaps time to begin a general review of the whole package of terms and conditions of appointment of Appellate Body Members, including their compensation, benefits, working conditions, etc. In the author’s view, there would be significant benefit in dealing with all of these issues in an integrated manner.The most important reform for the Appellate Body, in the author’s view, would be to ‘‘professionalize’’ the panel process. Here, she would encourage not only establishing a permanent standing panel body, with terms and conditions that will ensure the utmost independence, integrity and impartiality of panellists, and with an independent staff or secretariat. The entire WTO dispute settlement system could only benefit from a reform of the panel system. Finally, in whatever deliberations and discussions WTO Members have about reform and improvement of the panels and the Appellate Body, it is extremely important to always be guided by two fundamental principles: impartiality and independence. Each and every proposal should be assessed and measured by how it serves to protect and promote the utmost in impartiality and independence of the adjudicators in the WTO dispute settlement system. Other goals, such as how to promote consistency, coherence and continuity, are also important, but nothing is as important as maintaining impartiality and independence. A dispute settlement system designed with those principles and objectives in mind will help to ensure the legitimacy of the WTO.

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