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The European Community has proposed to increase the number of the Appellate Body Members to deal with the rising workload. And also the European Community suggested that the transparency in the selection of Appellate Body Divisions should be increased. Further, the European Community proposes that the plenary should be involved in cases, which the Appellate Body considers sufficiently important. And the decision of the plenary could be made by the President of the Appellate Body or by a Division. The President or the Division could consider the importance of the case proprio motu or at the request of a party.[57]
Several other proposals suggest that the Appellate Body should be conferred the remand authority. When a new decision on the facts is required because the Appellate Body decision is based on a different interpretation of the law, or on the basis of a different legal reasoning than that of the panel, or on procedural mistakes, the Appellate Body may send the case back to the original panel rather than deciding on the basis of the facts described in the panel report, facts that may not be adequately described in the light of the new legal reasoning.[58] In addition, there are also other proposals to suggest that the time limit on appeal procedure should be increased from the current 2-3 months to a longer period. A Member has suggested in the DSU Review that the time frame be increased to 3-6 months.[59]
IV. Proposals on Institutional Weakness
1. Transparency
Article 18.2 of the DSU states that submissions of the parties to panels or Appellate Body proceedings are confidential, but that they can make their submissions public.[60] Further, in practice the panel and Appellate Body reports (and all other WTO documents relating to specific disputes) are published on the WTO website immediately after distribution to the member governments. These measures try to make a balance between the confidence and the transparency of the dispute settlement. However, there still have been complaints, particularly by non-governmental organizations (NGOs), that the proceedings of the dispute settlement system lack transparency. NGOs wish to get more information sooner so they can participate effectively in the defence of the courses for which they stand. In addition, they want to heighten public awareness to increase the legitimacy of the system.[61] Important WTO Members, such as the United States and the European Communities, support such ideas. To accomplish these goals, they suggested that secrecy restrictions in parties’ submissions should be removed as soon as possible, or at least from the non-confidential parts thereof. Moreover, they suggested that a strict deadline for the public summary of confidential submissions should be applied. At the same time, they suggested the conversion to open hearing in order to increase the public’s trust in the system and take away any unfounded suspicious of involvement in a cover-up or a conspiracy that a non-transparent process fosters. However, many other WTO Members have serious reservations about greater transparency and open hearing. They fear that the changes would harm the intergovernmental character of the WTO, and would diminish the control of the parties over the dispute settlement process. In their point of view, they still regard the dispute settlement as an arbitral system, despite the fact that the dispute settlement has become highly judicial.[62]
2. Developing Countries and Dispute Settlement System
Developing countries in the GATT have gradually received special rules and more and more favourable treatment since the Tokyo Round.[63] Under the DSU, these special treatment for developing countries exists in a number of respects:
· the possibility of a speedier process (Art.3.12);
· special consideration in consultations (Arts.4.10, 12.10) and in the panel process (Arts.8.10, 12.10, 12.11);
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