Appeal without Remand: A Design Flaw in the World Trade Organization (WTO) Dispute Settlement and How To Fix It
Project on Dispute Settlement Series • Issue Paper 1
Various reasons have been propounded for the lack of active engagement by the majority of the Membership of the DSU. While many of these constraints need to be addressed at the national level, the current review process of the DSU also offers a potential avenue to improve the functioning of the DSU. The Appellate Body does not have the mandate to decide on factual questions, which sometimes means it cannot complete the analysis and resolution of a case. Yet, at the same time, the Appellate Body cannot remand a case back to the original panel, which sometimes forces a complainant to re-file a case. Consequently, in a growing number of disputes the Appellate Body has left parts of or entire cases unresolved. The absence of a remand procedure can force developing country complainants to go through two full proceedings before they achieve a result. Given time and resource constraints, such re-filings subsequent to the Appellate Body finding that it “cannot complete the analysis” may simply be excluded as the money and or human resources may simply not be available for a second round of consultations, panel proceedings and Appellate Body hearings. The study examines the origins and extent of this “design flaw” and offers possible solutions to alleviate the problem, either through a formal amendment of the Dispute Settlement Understanding (DSU) and/or practices that do not require DSU amendment.