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Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) Article 25 appeal arbitration scheme was first proposed by legal practitioners in 2017 to provide an alternative avenue of appeal in case the Appellate Body is non-operational. This scheme was subsequently accepted by the EU with some modifications. On 27 March 2020, sixteen Members agreed on the Multi-party Interim Appeal Arbitration Agreement Pursuant to Article 25 of the DSU (the MPIA), which has been notified to the WTO with five more participating Members in April 2020. The majority of Members have not yet decided. This begs the question of whether DSU Article 25 appeal arbitration will be a viable interim alternative to the Appellate Body. This article expounds on various potential models of Article 25 appeal arbitration, including the MPIA, from three parameters (legitimacy, compatibility and temporality), and concludes that constrained by DSU Article 25 and the whole WTO dispute settlement framework, the viability of DSU Article 25 appeal arbitration is rather dubious. The Appellate Body-model (and the MPIA) seems more viable than other models, but it is not without potential problems. To avoid the risk of long-term application of appeal arbitration and the fragmentation of WTO jurisprudence, Members should continue to prioritize negotiations to restore the Appellate Body.
Global Trade and Customs Journal – Kluwer Law International
Published: Sep 1, 2020
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