Research On The Legal Response To The Crisis Of WTO Appellate Body From The Perspective Of Appeal Arbitration

As early as 2017,the United States openly challenged the Appellate Body when Kim Hyun-jong,a member of the Appellate body,resigned.In order to alleviate the crisis of the appellate body,several lawyers in Geneva proposed for the first time in 2017,Innovative use of DSU Article 25 arbitration for appellate substitution and provide an interim alternative to WTO Appellate Body deadlock in the form of a working paper(hereinafter referred to as the Anderson Proposal).With the appellate body completely paralysed,in order to alleviate the crisis as soon as possible,the European Union regained the proposal of arbitration as an alternative to appeal and improved the Anderson proposal on the basis of Article 25 of the DSU.It has put forward bilateral appeal arbitration arrangement and Multi-party Interim Appeal Arbitration Arrangement(hereinafter referred to as MPIA)in2019 and 2020.Once the appeal arbitration plan was put forward,it aroused widespread concern and discussion.Theoretically,although the two appellate arbitration schemes are different in form and content,both are committed to maintaining the WTO Dispute Settlement Mechanism of "second instance system",and there is no conflict in application,which is of great significance to alleviating the paralysis of the Appellate Body.The main reason is that there are deficiencies in the system design of the two interim appeal arbitration paths.Based on this,this thesis analyzes the application advantages and difficulties of the two appeal arbitration arrangements,and tries to put forward reasonable modification suggestions,so as to open up a good legal path for promoting the practical role of the appeal arbitration scheme.It is of great enlightenment to the long-term resolution of the WTO Appellate Body crisis and the reform of the WTO Dispute Settlement Mechanism.The thesis is divided into five chapters:The first chapter is the origin and overview of the appeal arbitration scheme based on Article 25 of DSU.Firstly,this chapter gives a detailed explanation of the procedural,substantive and institutional problems of the appellate body,which are the causes of the appellate crisis.Secondly,it summarizes various relief schemes proposed by scholars in various countries for the suspension of the appellate body,and specifically analyzes the main schemes to highlight the rationality and feasibility of the appeal arbitration scheme.Finally,this chapter summarizes the two appeal arbitration paths based on Article 25 of DSU one by one,and combs out the parallel relationship between the two appeal arbitration paths.The second chapter is the advantages and disadvantages of the MPIA in response to the crisis of the appellate body.This chapter first explains the legal nature of MPIA and its status under the WTO,and then introduces its applicable advantages from the three options of responding to the challenge of the Appellate Body,maintaining the consistency of the award,and coordinating the interests of member states and the independence of the appeal arbitrator.Finally,the existing problems are analyzed in detail from three aspects: the compatibility obstacles of MPIA and WTO dispute settlement rules,the loopholes of MPIA system design and the difficulties it may encounter in practice.The third chapter is about the advantages and disadvantages of bilateral interim appeals and arbitration arrangements in response to the crisis of the Appellate Body.This chapter first discusses the characteristics and status of the bilateral interim appeal arbitration arrangement,and on this basis,analyzes the three modes of bilateral appeal arbitration,then elaborates the applicable advantages of the bilateral appeal arbitration mode in terms of flexibility,efficiency and cost saving.Thirdly,it discusses the potential problems from the perspectives of arbitrators,arbitration agreements and arbitral awards.The fourth chapter expounds the suggestions on the improvement of the two appeal arbitration paths according to Article 25 of DSU.This chapter puts forward the corresponding improvement countermeasures for the potential application problems of Chapter II and Chapter III respectively.As for the MPIA,the author believes that the problems of MPIA arbitrators,third parties,support personnel and financial expenses can be solved by interpreting and creating relevant rules;As for the the bilateral interim appeal arbitration arrangement,the author believes that a set of non mandatory bilateral appeal arbitration rules can be designed according to Article 25 of DSU,so as to clarify the rules for the selection of arbitrators under the bilateral agreement,add detailed clauses and appropriately stipulate the precedent function of the award.Finally,the author analyzes the application and coordination of the two appeal arbitration paths and suggests that countries choose the two appeal arbitration paths by evaluating the importance of the appellate body,the acceptance of the two paths and the selectivity of appeal arbitrators.The fifth chapter discusses the prospects of applying arbitration to alleviate the crisis of the Appellate Body and its enlightenment to China.This chapter analyzes and forecasts the development prospect of the two paths based on the selection of the two interim appeal arbitration paths in the pending cases of WTO,and then discusses appeal arbitration scheme and China’s choice and countermeasures.At present,in the DS598 and DS589,China has reached an agreement with the dispute complainant to use MPIA to hear appeals.Therefore,in the face of two appeal arbitration paths,China should focus on promoting the implementation and operation of MPIA,and try to build a bilateral appeal arbitration agreement as an alternative.