| China, EU and other 17 WTO members notified the WTO of the conclusion of a Multi-Party Interim Appeal Arbitration (MPIA) among themselves on April 30, 2020. This is the most significant breakthrough in coping with the crisis of Appellate Body, which ceased its operation on December 11, 2019 due to the continuous blockage of the appointment of new members of the Appellate Body by US since 2017. As a creative interim and open arrangement, MPIA serves as an alternative to appellate review aimed at maintaining the core features of WTO dispute settlement mechanism, i.e., a two-stage process and binding decisions. Based on Article 25 ("Arbitration") of DSU, MPIA largely replicates appellate review procedures while incorporating limited elements of arbitration. The arbitration elements differentiate appeal arbitration from the previous appellate review in WTO litigation. However, most aspects of appeal arbitration, including the selection of arbitrators, case hearing and decision-making procedures and enforcement mechanism, are basically replications of DSU Article 17 and Working Procedures of Appellate Review. The several innovative articles on streamlining the procedures are put into place in response to the criticism of the Appellate Body by US. Interim appeal arbitration not only functions as a practical appeal avenue that meets the need of participating members during the paralysis of the Appellate Body, but also showcases the confidence held by WTO members in reviving the Appellate Body. As a responsible member of the WTO with sense and sensibility, China plays a key role in negotiating and concluding the MPIA. It is advisable that China, despite its ultimate goal of reincarnating the Appellate Body, consider utilizing MIPA to bring its disputes with other participating members into a mutually satisfactory solution. |
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