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The model used to select the first members of the Appellate Body can be reused to select the members of the standing panel. On the base of some broad criteria agreed upon by the WTO membership, a high-level representative selection committee should review the applications submitted by the Members, interview candidates, and make recommendations.[43]
Before the standing Panel suggested is established, there are two ways suggested to avoid the clumsy time-consuming selection procedure of panellists. The ad hoc chamber procedure of the International Court of Justice is always one alternative in practice.[44] This procedure allows for a composition of chambers that takes into account the views of the parties. Their views largely determine the composition of the chamber.[45] The other alternative is that preferable candidates of panellists should be selected to provide a broad scope of candidates to the parties.[46] Even though the experts on WTO law and policy are rare, this way is rather practical at present when the DSB faces an increasing number of disputes.
2.1 Procedural adjustments
The linkage of disputed facts and legal claims that some WTO Members proposed will form the basis of the panel’s deliberations. When a complaining party requests the establishment of a panel, the request shall be made in writing and shall “identify the specific measures at issue, and provide a brief summary of the legal basis of the complaints sufficient to present the problem clearly.”[47] The Appellate Body insists on the principle of minimum standard interpretation, so it is sufficient for the complaining parties to list the provisions of the specific agreements that were allegedly violated, without setting out detailed arguments as to which specific aspects of the measures at issue relate to which specific provisions of those agreements. But the DSU does not impose a strict time limit on when evidence must be submitted to a panel and the Working Procedures of Appendix 3 of the DSU do not provide compulsory deadlines with which a panel must comply. So parties still can produce and submit additional evidence after the first hearing. New disputed facts and legal claims may be added from the additional evidence. In addition, the later submission of additional evidence can obviously deprive the other party of an opportunity to make an effective rebuttal if it is only given a short period to respond to the new evidence, especially cause delays of the due process.[48]
To safeguard a party’s due process rights, the panels should resolve the problem in the initial meeting to require that all factual evidence shall be submitted by no later than the date of the first oral hearing, except with respect to rebuttal evidence or answers to questions from panel or other parties.[49] Besides some WTO Members’ proposals on such matters, the Appellate Body also repeatedly requests the panel be able to deal with such matters as its jurisdiction and fact-finding phase in EC- Banana case.[50]
3. The Appellate Body
The establishment of the Appellate Body to hear appeals provides additional “legal certainty and predictability”[51] to the dispute settlement system. An appeal is “limited to issues of law covered in the panel report and legal interpretations developed by the
panel.”[52] Only parties to dispute, not third parties, may appeal a panel report.[53] The Appellate Body has the authority to “uphold, modify or reverse the legal findings and conclusions of the panel.”[54] The Appellate Body comprises seven persons who are recognized expertise in law, international trade and the subject of the covered agreements and have broad representations of membership in the WTO.[55] So the Appellate Body has enough ability to overcome and resolve any questions in relation to its own procedures. The ability is witnessed in the Appellate Body reports in which lots of interesting issues have been discussed. The interesting issues include: the status of prior panel reports; the right of a member to bring a claim under the GATT 1994; the specificity of a request for establishment of a panel; the terms of reference of panels; judicial economy; burden of proof; the scope of application of the GATT 1994 and the GATS; nullification or impairment; the scope of appeal; and representation of governments by private lawyers in Appellate Body proceeding.[56] But there are still other proposals from the WTO Members for reform to strengthen the Appellate Body.
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