Operation of the Appellate Process and Functions, Including the Appellate Body

This spring, the U.S. Congress will undertake its first five-year review of U.S. participation in the World Trade Organization. This review, conducted pursuant to section 125 of the Uruguay Round Agreements Act, is likely to focus on a broad range of issues. However, one area likely to receive a great deal of attention will be the operation of the Dispute Settlement Understanding (DSU). During the 1994 congressional debate on the Uruguay Round Agreements, Congressional supporters of the WTO held out its binding dispute settlement process as a significant improvement over the old GATT system. Realistically, most members of Congress will not engage in a detailed review of Appellate Body practice as a means to evaluate whether the WTO has been an effective tool for enforcing U.S. rights and protecting U.S. interests. However, many of the developments identified by Andrew Shoyer and Eric Solovy(1) may figure into U.S. legislators' evaluation of the WTO. Among other questions, U.S. legislators are likely to consider whether the DSU promotes both confidence in the WTO system and the prompt resolution of disputes. Recent developments in Appellate Body practice are certain to have some bearing on how these questions are answered. Below, I offer my thoughts on how U.S. legislators may view some of the developments identified by Shoyer and Solovy. I. CONFIDENCE IN THE WTO SYSTEM Evaluating whether the DSU has increased confidence in the WTO system raises many issues, most of which go beyond the scope of this Article. However, two issues recently raised by U.S. legislators that do relate to this discussion include whether the WTO is equipped to address informal barriers to trade and whether the WTO operates in a manner that enhances its legitimacy. Recent developments in Appellate Body practice relating to the use of adverse inferences and the use of amicus briefs are likely to inspire greater confidence among U.S. legislators on both of these counts. From the perspective of U.S. legislators, indirect protection ranks among the most significant impediments to U.S. goods and services gaining access to major foreign markets. A primary impediment to proving indirect protection, as evidenced by the Japan--Film case, is that the complaining party often is unable to obtain the information necessary to establish a prima facie case. The Appellate Body decision in Canada--Aircraft represents a positive step toward addressing the problem of proving indirect protection. While Canada--Aircraft does not address the precise problem raised by the Japan--Film case, proving the existence of key policies that have a regulatory impact, it should be helpful in addressing the problem presented in challenging non-transparent systems of regulation. Specifically, the Appellate Body's findings in Canada--Aircraft, that a party has a legal duty to provide information requested by a panel and that a panel may draw adverse inferences if such a request is refused, should assist WTO Members in bringing cases against other Members with less open systems of governance. Regarding the overall legitimacy of the institution, public suspicion of the WTO obviously reached a high point during the Seattle Ministerial. While much of this suspicion stems from a misunderstanding about the WTO's role in developing and enforcing the multilateral trade rules, some of it is justified, given the closed-door nature of the organization. For U.S. legislators, opening up WTO processes to greater scrutiny and allowing non-governmental organizations some means to provide input will be essential to rebuilding the public's support. In this regard, the Appellate Body's treatment of amicus briefs in the U.S.--Shrimp case is an incremental step in the right direction. The reversal of the panel's conclusion that it could not consider an unsolicited NGO brief should help dispel some of the criticism that the WTO fails to consider all stakeholder interests in resolving trade disputes. …

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