  WORLD TRADE  
ORGANIZATION  WT/AB/WP/W/1 
7 February 1996 
 (96-5440) 
  
  
WORKING PROCEDURES FOR APPELLATE REVIEW
 
 
Communication from the Appellate Body  
   The following communication was sent by th e Chairman of the Appellate Body to the 
Chairman of the Dispute Settlement Body on 7 Februa ry 1996.  At the time, hard copies were sent to 
Members but the communication was not circulated as an official WTO document.  The 
communication is now being circulated in conjunctio n with the introduction by the Appellate Body of 
a new numbering system for documents relating to the  Working Procedures for Appellate Review .  
This numbering system is explained in a communica tion from the Chairman of the Appellate Body to 
the Chair of the Dispute Settlement Body da ted 7 October 2004, circulated as document 
WT/AB/WP/W/9.   
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 Article 17(9) of the Dispute Settlement Understanding (DSU) re quires the Appellate Body to 
draw up its working procedures in consultation with  the Chairman of the DSB and the Director-General, 
which shall be communicated to the Members of the World Trade Organization (WTO) for their 
information.  We have been keenly aware of the n eed to conclude our work in time for our Working 
Procedures for Appellate Review to be made available to the parties to any possible appeal arising from the first WTO panel report.  
 In fulfilment of that responsibility, the Appe llate Body herewith conveys to you the attached 
Working Procedures for Appellate Re view, and would apprecia te your courtesy in transmitting them to 
the WTO Members at your earliest convenience.   In the course of drafting its Working Procedur es for Appellate Review, the Appellate Body has 
had the occasion to consult fully with the outgoi ng and incoming Chairmen of the DSB and the 
Director-General on several occasions in December,  1995, and in January and February, 1996.  Those 
consultations, carried out in accordance with Arti cle 17(9) of the DSU, ha ve been of the utmost 
importance in providing us with valuable guidance and advice on the objectiv es, issues and specific 
concerns of WTO Members in regard to dispute settl ement in general, and the appellate procedures in 
particular, thus allowing us to reflect them in th e Working Procedures for Appellate Review we have 
established. 
  We have, in framing these Working Procedures  for Appellate Review, kept certain central 
concerns much in mind:  the need for vigilance in  protecting the basic rights of all parties in our 
proceedings;  the need for rotation in the establis hment of divisions along with the advantages of 
collegiality;  the need for independence and impartia lity in our decision-making;  the need for strict 
adherence to the Rules of Conduct in our endeavours;  and the need  for constant and conscientious 
compliance with both the letter and the spirit of the DSU and the other covered agreements of the World 
Trade Organization in all our efforts to strengthen the multilateral trading system.  We believe these 
Working Procedures for Appellate Review address each of these concerns.  WT/AB/WP/W/1 
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 The Appellate Body would like to  draw your attention in particular to those parts of the 
Working Procedures for Appellate Review that bear on collegiality.  This is a matter that has been emphasized from the very beginning in the consulta tions with the Appellate Body, and was addressed 
specifically in the informal m eeting convened by you in accord ance with the DSB Decision on 
"Establishment of the Appellate Body", WT/DSB/1, on February 1, 1996, about  which you reported to 
us in detail on the same day.  We have considered, in  depth, all the matters raised at that meeting as well 
as additional written and oral comments from indivi dual WTO Members conveyed by you to us.  At 
your request, in response to the interest expres sed by several delegations , we have extended our 
deliberations for several days l onger than originally planned. 
 
 According to Article 17(1) of the DSU, the Appe llate Body is composed of seven persons, only 
three of whom shall serve in any one case.  That pr ovision, like every other provision of the DSU, has to 
be respected fully.  Thus, the decision in every appe al will be made only by the three who serve on the 
division for that case.  At the same time, it is also important to ensure consistency and coherence in our decision-making, which is to the a dvantage of every WTO Member and the overall multilateral trading 
system we all share.  We feel th is can best be done by drawing, with in the parameters of Article 17 of 
the DSU, on the individual and collective expertise of all the Members of the Appellate Body.   In order to attain these objectives, Rule 4(1) pr ovides for meetings of th e entire Appellate Body 
on a regular basis to discuss matters of policy, practice and procedure.  Further, Rule 4(2) foresees that 
each Member of the Appellate Body shall receive all documents filed in an appeal, in order to allow 
what Rule 4(3) prescribes, namely that "the divisi on responsible for deciding each appeal shall exchange 
views with the other Members before the di vision finalizes the appellate report..." 
  The Appellate Body believes that such a system is consistent with Article 17 of the DSU.  To avoid any doubt, Rule 4(4) of our Wo rking Procedures for Appellate Revi ew states expressly, "Nothing 
in these Rules shall be interpreted as interfering with a division's full authority and freedom to hear and 
decide an appeal assigned to it in accordance with paragraph 1 of Article 17 of the DSU."   For the purpose of constituting a division of th ree Members of the Appe llate Body to serve on 
any one case as required by Article 17(1) of the DS U, the Working Procedures for Appellate Review 
provide for rotation that takes into account the desi rability for random selection of the three Members, 
unpredictability as to the composition of any divisi on and opportunity for all Members of the Appellate 
Body to serve regardless of their national origin.  The Appellate Body is of the view that to deal with the 
issue of nationality in any other way would be unn ecessary and undesirable: unne cessary in view of the 
qualifications required fo r membership in the Appellate Body ;  undesirable as casting doubts on the 
capacity of members of the Appellate Body for inde pendence and impartiality in decision-making.  
There are also some practical considerations that are highly relevant.  Were the rules to be cast in a 
manner that required a Member of th e Appellate Body to stand aside in an appeal involving his/her 
country of origin exclusively for reasons of nationality , this would be likely, in practice, to lead to 
distortions in the work of the Appellate Body Members.  Moreover, appeals involving many parties 
could arise where it would be impo ssible to constitute a division.  Rule 6 is framed accordingly. 
 
 We are also concerned about poten tial conflicts of interest.  Fo r that reason, we have adopted, 
on a provisional basis, those provisions of the draft Rules of Conduct applicable to the Appellate Body, 
which are currently under cons ideration by the DSB.   
  You will notice that the time limits set out in the Working Procedures for Appellate Review are 
short.  This is the inevitable consequence of Article 17(5) of the DSU, which states that as a general rule, 
the proceedings shall not exceed 60 days, and in no case shall go beyond 90 days, from the date a party 
to the dispute formally notifies its de cision to appeal to the date the Appellate Body circulates its report.  
It is our view that the timeframes we have established for the filing of submissions and an oral hearing 
with the parties are reasonable within the constraint s imposed by the DSU and afford due process to all 
parties concerned while at the sa me time providing the Appellate Body with the time it requires for  WT/AB/WP/W/1 
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careful study, deliberation, decision- making, report-writing by the divisi on and subsequent translation of 
the Appellate Report.    We have been especially mindful, throughout our  development of these Working Procedures, of 
the necessity to provide all partie s with the fundamental right to be heard, both in writing and orally, 
including the right to respond fully to the views of others.   
  Fully cognizant of the fact that many panel disp utes involve multiple parties, we have provided 
for a special procedure whereby mu ltiple appellants can be heard fu lly within the timeframe of the 
original appeal and by the same division.  Because of the time limits provided by Article 17(5) of the 
DSU for the appeal proceedings, mu ltiple appeals can only be grouped in one single procedure if they 
are brought within a few days afte r the initiation of the first appeal.  Rule 23(1) of the Working 
Procedures for Appellate Review specifies this period. Additional appeals which are brought later may 
not be grouped with the first appeal.  They shall, however, be examined by the same division which is 
responsible for the first appeal.  We believe that this  is also necessary to en sure maximum coherence and 
consistency in our decision-maki ng.  Finally, we have provided some flexibility for adjusting the 
timeframes in a particular appeal wh ere rigid adherence to the rules woul d result in a manifest unfairness 
to the parties.     We intend to keep our Working Procedures unde r constant review;  wh ere we feel that a 
particular procedure could be improved in the light of our practical experience , we will not hesitate to 
make the required amendment.  Fo r this reason, we have provided, in Rule 32, for our ongoing oversight 
of these procedures by acknowledging that amendments may be made in accordance with the process set 
out in Article 17(9) of the DSU.  Where, as a result of a review by the WTO Members, the DSU or the covered agreements are amended, the Appellate Bo dy will be obliged to review its own Working 
Procedures to ensure their c onformity with the agreements. 
 
 The Appellate Body agrees unanimously that our obligations as individual Members of the 
Appellate Body are not to individua l WTO Members, but rather are to the dispute settlement system as a 
whole. Thus, in fulfilling our oblig ations, our overriding al legiance will be to the common commitment 
that each Member of the WTO has made to the integr ity, the stability and the future of the multilateral 
trading system. 
 
 Finally, I should advise you that the Appellate Body has, following the adoption of its Working Procedures and by consensus, electe d me as its Chairman.  In accord ance with 5(2), I shall hold that 
office for one year. 
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