Technical note: Appeals ‘into the void’ in WTO dispute settlement

The void: with no judges to hear them, appeals ensure a case goes nowhere

This technical note accompanies:
By Christmas 2019 the WTO was supposed to be dead — why wasn’t it? A short explanation,
A bit of bother down at the WTO court — Why? And is it a killer? Long read,
and Arbitration — the stop-gap when WTO appeals are unavailable

By Peter Ungphakorn

A number of WTO disputes are suspended for a number of reasons and at several different stages of the procedure. Listed here are the ones stranded specifically by the Appellate Body’s inability to function. With no judges to hear a case, appealing ensures it goes nowhere

This is the result of the US blocking the appointment or reappointment of appeals judges as existing terms expired. By December 2019, only one appeal judge was left, and the Appellate Body was unable to function since a minimum of three were required. That last judge’s term expired on November 30, 2020, and leaving none in office.

Underlying this is the WTO’s dispute settlement agreement. It requires any rulings by a first-stage dispute panel, or a second-stage appeal, to be adopted by the WTO membership meeting as the Dispute Settlement Body.

If a panel ruling is appealed, it cannot be adopted until the appeal is completed. If it is appealed, but the that stage cannot be completed, then the case remains in limbo.

Some of the stranded appeals date back to while the Appellate Body was still working, but because at the end there were only three left — meaning they all had to work on all the cases, with no division of labour — the backlog of work lengthened.

Others cases were appealed after December 2019, when the Appellate Body was legally unable to function. The countries filing the appeals knew that these cases could not be heard. They were deliberately “appealing into the void”, leaving the cases in limbo.

Some countries have found ways around this. For example Indonesia and Vietnam agreed to accept a first-stage panel ruling (on “compliance”) and not to appeal so long as the Appellate Body could not function.

Others have developed alternative ways of appealing by using arbitration provisions in the Dispute Settlement Understanding, the WTO’s rules governing legal disputes. One group of countries has set up a “Multi-party Interim Appeal Arrangement (MPIA)”. So far, none of the cases between members of the group have so far reached the stage of potential appeal.

Thailand and the Philippines (dispute case DS371 below) went for “facilitator assisted discussions” where the “facilitator” helps, but does not produce arbitration rulings.

These are the cases “in the void” at the time of the last update to this page. The first set were appealed while the Appellate Body was functioning but struggling to complete its workload. The rest were deliberately appealed into the void.

While the Appellate Body still functioned (6 cases)

These cases ended up in the void even thought the Appellate Body was still functioning when the appeals were filed. The three remaining appeals judges could not handle the work load as they then had to examine all cases, and the appeals were not completed when the quorum evaporated in December 2019

Dispute numberTitleAgainstComplaint byNotice of appealLatest statusOther
476European Union and its Member States — Certain Measures Relating to the Energy SectorEURussia21.09.2018Under appealLatest: from Appellate Body WT/DS476/8 | 21 November 2018, on missing deadline
461Colombia — Measures Relating to the Importation of Textiles, Apparel and FootwearColombiaPanama20.11.2018Arbitration under appealLatest: from Appellate Body WT/DS461/29 | 20 February 2019, on missing deadline
518India — Certain Measures on Imports of Iron and Steel ProductsIndiaJapan14.12.2018Under appealLatest: from the Appellate Body WT/DS518/10 | 22 February 2019
371Thailand — Customs and Fiscal Measures on Cigarettes from the PhilippinesThailandPhilippines9.09.2020Compliance: pursuing facilitator-assisted discussionsLatest: from DSB chair on discussion WT/DS371/44 | 21 December 2020
523United States — Countervail-ing Mea-sures on Certain Pipe and Tube Products (Turkey)USTurkey25.02.2019Under appealLatest: from Appellate Body WT/DS523/7 | 1 April 2019, on missing deadline
510United States — Certain Measures Relating to the Renewable Energy SectorUSIndia15.08.2019Under appealLatest: from Appellate Body WT/DS510/7 | 14 October 2019, on missing deadline
Source: WTO dispute settlement and Appellate Body pages. If there are problems viewing this table, download a pdf version

Appeals into the void (8 cases)

After the Appellate Body stopped functioning, any appeal could not be heard. Appeals filed now simply threw the case into limbo, into “the void”. The appeal could not be heard and the first-stage panel ruling could not be adopted by the WTO’s membership. Note that in case DS436 below, India and the US say will continue to consult on resolving the dispute, and intend to appeal once the Appellate Body can function again.

Dispute numberTitleAgainstComplaint byNotice of appealLatest statusOther
541India — Export Related MeasuresIndiaUS19.11.2019Under appealLatest: India’s notification of appeal WT/DS541/7 | 22 November 2019
436United States — Countervail-ing Measures on Certain Hot-Rolled Carbon Steel Flat Products from IndiaUSIndia18.12.2019Consultation underway, appeal pendingLatest: from India and the US WT/DS436/22 | 16 January 2020, on continuing consultation, and intentions to appeal when possible
567Saudi Arabia — Measures concerning the Protection of Intellectual Property RightsSaudi ArabiaQatar28.07.2020Under appealLatest: from Qatar WT/DS567/8 | 5 October 2020 requestion to use arbitration appeal
494European Union — Cost Adjustment Methodolo-gies and Certain Anti-Dumping Measures on Imports from Russia — (Second complaint)EURussia28.08.2020 (EU); 2.09.2020 (Russia)Under appeal by EU and RussiaLatest: Russia’s notice of appeal WT/DS494/8 | 8 September 2020
533United States — Countervail-ing Meas-ures on Softwood Lumber from CanadaUSCanada18.09.2020Under appealLatest: US notification of appeal WT/DS533/5 | 29 September 2020
543United States — Tariff Measures on Certain Goods from ChinaUSChina26.10.2020Under appealLatest: US notification of appeal WT/DS543/10 | 27 October 2020
484Indonesia — Measures Concerning the Importation of Chicken Meat and Chicken ProductsIndonesiaBrazil17.12.2020 (Indonesia); 22.12.2020 (Brazil)Compliance panel under appealLatest: Brazil notification of appeal on compliance ruling WT/DS484/26 | 6 January 2021
553Korea — Sunset Review of Anti-Dumping Duties on Stainless Steel BarsRep. KoreaJapan22.01.2021Under appealLatest: Rep. Korea notification of appeal WT/DS553/6 | 1 February 2021
Source: WTO dispute settlement and Appellate Body pages. If there are problems viewing this table, download a pdf version

Updates: none so far
Image credit: Empty chair — Marcel Jaboo via Pexels, CC0