WTO Bodies involved in the dispute settlement process

3.4 Appellate Body

Unlike panels, the Appellate Body is a permanent body of seven members entrusted with the task of reviewing the legal aspects of the reports issued by panels. The Appellate Body is thus the second and final stage in the adjudicatory part of the dispute settlement system. As it did not exist in the old dispute settlement system under GATT 1947, the addition of this second adjudicatory stage was one of the major innovations of the Uruguay Round of Multilateral Trade Negotiations.

One important reason for the creation of the Appellate Body is the more automatic nature of the adoption of panel reports since the inception of the DSU.¹ In the current dispute settlement system, individual Members of the (WTO) are no longer able to prevent the adoption of panel reports, unless they have at least the tacit approval of all the other Members represented in the DSB. The resulting virtual automatic nature of the adoption of panel reports not only took away the previous possibility that the “losing” party could block the adoption of the report, it also took away the possibility for parties or other Members to reject panel reports due to a substantive disagreement with the panel’s legal analysis. Wherever one single Member, typically the party “winning” the dispute, is primarily guided by its intention to win the dispute, such rejection is impossible even if the panel report is legally flawed. Under the old dispute settlement system of GATT 1947, by contrast, some panel reports were not adopted because the legal interpretation of a particular GATT provision was unacceptable to the contracting parties from a substantive legal perspective. While this is no longer possible, the appellate review carried out by the Appellate Body now has the function of correcting possible legal errors committed by panels. In doing so, the Appellate Body also provides consistency of decisions, which is in line with the central goal of the dispute settlement system to provide security and predictability to the multilateral trading system (Article 3.2 of the DSU).

If a party files an appeal against a panel report, the Appellate Body reviews the challenged legal issues and may uphold, reverse or modify the panel’s findings (Article 17.13 of the DSU).

The DSB established the Appellate Body in 1995², after which the seven first Appellate Body members were appointed. The DSB appoints the members by consensus (Article 2.4 of the DSU), for a four-year term and can reappoint a person once (Article 17.2 of the DSU). An Appellate Body member can, therefore, serve a maximum of eight years. On average, every two years a part of the Appellate Body membership changes.

Appellate Body members must be persons of recognized authority, with demonstrated expertise in law, international trade and the subject matter of the covered agreements generally, and they must not be affiliated with any government (Article 17.3 of the DSU). Most Appellate Body members have so far been university professors, practising lawyers, past government officials or senior judges. Being an Appellate Body member is theoretically only a part-time occupation. However, the workload and, conversely, the ability to pursue substantial other professional activities, depends on the number of appeals being filed, given that Appellate Body members must be available at all times and on short notice (Article 17.3 of the DSU).

The seven Appellate Body members must be broadly representative of the membership of the WTO (Article 17.3 of the DSU), although they do not act as representatives of their own countries but rather they represent the WTO membership as a whole. The first seven members were citizens of Egypt, Japan, Germany, New Zealand, the Philippines, the United States and Uruguay. The current seven members are:

• Professor Georges Abi-Saab, Egypt, appointed in 2000;
    
• Mr James Bacchus, United States, appointed in 1995³;
    
• Professor Luiz Olavo Baptista, Brazil, appointed in 2001;
    
• Mr A.V. Ganesan, India, appointed in 2000;
    
• Mr John Lockhart, Australia, appointed in 2001;
    
• Professor Giorgio Sacerdoti, Italy, appointed in 2001;
    
• Professor Yasuhei Taniguchi, Japan, appointed in 2000.
    

Either three or four Appellate Body members have always been citizens of a developing country Member. According to the Working Procedures for Appellate Review, the seven Appellate Body members elect one of their number as Chairman who serves a term of one or maximum two years (paragraph 5 of the Working Procedures). The current Chairman is James Bacchus who has held this position since 2001. The Chairman is responsible for the overall direction of the Appellate Body business, especially with regard to its internal functioning (paragraph 3 of the Working Procedures).

The Appellate Body Secretariat provides legal assistance and administrative support to the Appellate Body (Article 17.7 of the DSU). To ensure the independence of the Appellate Body, this Secretariat is only linked to the WTO Secretariat administratively, but is otherwise separate. The Appellate Body Secretariat is housed together with the WTO Secretariat at the WTO headquarters in Geneva, where both the panels and the Appellate Body hold their meetings.

Notes:

1. See section on Decision-making  back to text

2. Decision Establishing the Appellate Body, Recommendations by the Preparatory Committee for the WTO approved by the Dispute Settlement Body on 10 February 1995, WT/DSB/1, dated 19 June 1995. back to text

3. At the time of publication, Mr James Bacchus’ mandate was due to expire on 10 December 2003. On 7 November 2003, the DSB selected Ms Merit Janow, United States, to replace Mr Bacchus for a four-year term beginning on 11 December 2003. back to text