Remand to Fast-Track Prompt Implementation: A Critical Assessment of the 'Double Adoption' Remand Proposal in Chair's Text and an Argument for a 'Single Adoption' Alternative

Abstract

Since the DSU’s adoption of the appellate procedure in 1995, the absence of the ‘remand’ authority of the Appellate Body has caused a unique problem in the WTO dispute settlement mechanism. Situations have arisen where the Appellate Body is rendered unable to complete the required analyses so as to bring finality to the disputes at hand. This recognition has made the remand issue one of the key topics in the actively ongoing DSU amendment negotiations. In 2011, the Chair of the negotiations circulated a proposed text on remand, featuring ‘double reports’ and ‘double adoption’. The ‘doubling’ feature in the proposed text, however, arguably leads to further delays and procrastination in terms of implementation by a responding Member. A remand mechanism that may undermine the ultimate objective of the WTO dispute settlement mechanism—prompt settlement of disputes following prompt implementation—would run the risk of eroding the Members’ confidence in the DSU. A ‘single report’, ‘single adoption’ remand scheme arguably offers a practical and workable alternative that ensures prompt implementation with the least disruption to the current practice of the Appellate Body.