May 16, 2018

Three of the WTO Appellate Body's seven seats are now vacant

Several members of the World Trade Organization (WTO) have expressed concerns that the organization's Appellate Body is going through "unprecedented challenges".

The United States has been blocking the start of processes to appoint new judges, with three of the Appellate Body's seven seats now vacant. If a fourth vacancy arises (at the end of the term of Mauritius' Shree Baboo Chekitan Servansing on September 30) it will leave the court down to the minimal number of judges needed to sign off on any Appellate Body rulings.

According to Bridges Weekly "the U.S. has criticised a series of aspects of how the Appellate Body functions, such as how some judges whose terms have expired are continuing to serve on cases that they had been working on while in office. That practice is a long-standing one, outlined in the Appellate Body's Working Procedures. However, various members have argued that the U.S. has not engaged sufficiently in discussions to resolve the problem, nor made clear what changes it would like to see to lift its hold on new appointments."

The high number and complexity of appeals currently before the WTO is already stretching its ability to staff cases and complete work in a timely fashion. Unless a compromise is worked out to appoint new Appellate Body members the system could soon be paralyzed.