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NFTC Releases Paper on the WTO Appellate Body Crisis

Washington D.C. – The National Foreign Trade Council (NFTC) today released a new paper entitled "Resolving the WTO Appellate Body Crisis: Proposals on Overreach" which contains recommendations designed to avoid future judicial overreach and strengthen the legitimacy of the Appellate Body. The paper was prepared by Bruce Hirsh of Tailwind Global Strategies LLC - a former USTR official who represented the U.S. in dispute settlement matters in Geneva.

"A breakthrough of some sort on the Appellate Body deadlock is badly needed in Geneva. We commissioned this paper by Bruce because we think the demise of WTO dispute settlement would be a lose-lose for all Members," said Rufus Yerxa, President of the NFTC. "We urge Members to read the paper and reflect on his proposals, which we believe can contribute to a productive dialogue to resolve this crisis."

The paper includes six key proposals:
  1. Enforce the 90-day timeframe for appeals;
  2. Prohibit advisory opinions, and further elaborate the circumstances constituting advisory opinions;
  3. Clarify that DSU Article 3.2 does not justify expanding or narrowing the reach of WTO provisions or filling gaps in WTO coverage;
  4. Clarify that customary rules of interpretation of public international law do not justify gap-filling and expanding or narrowing the reach of WTO provisions;
  5. Affirm that Article 17.6(ii) of the Antidumping Agreement must be given meaning, by clarifying that the provision reflects the principle just described, that WTO adjudicators may not expand or narrow the meaning of broad provisions and general terms; and
  6. Direct the Appellate Body to reject party arguments that expand or narrow the reach of agreement provisions or fill gaps in agreements.
To read the full paper, click here.