Judicial Economy and Advisory Opinions of the Appellate Body–Potential Reform of Article 17.12 of the DSU

Abstract

The current blockage of Appellate Body appointments by the United States has created a crisis for the World Trade Organization dispute settlement system. The United States has raised several issues with regard to the Appellate Body practices. One of the main United States concerns is that the Appellate Body has repeatedly issued findings, from the perspectives of the United States, that were not necessary for the resolution of the dispute. In addition, the United States has also raised complaint regarding the difficulty of the Appellate Body to observe the 90-day requirement provided for under Article 17.5 of the Dispute Settlement Understanding. This chapter reviews the relationship between Article 17.12 and the relevant concerns raised by the United States, and analyzes the limit of the European Union proposal. This chapter suggests an alternative, narrower, version of the amendment that would further address the concerns over the advisory opinions stated in the report by the Appellate Body.