Having the Appellate Body without the Appellate Body

The Appellate Body crisis is rather deep at the WTO. The AB will stop functioning if the blockage to the reappointment process is not solved by December 2019.

What happens if there are panel reports that cannot be appealed against due to this impasse. The EU and Norway have come out with an alternative - Article 25 arbitration as per the DSU.

Article 25 states:

Arbitration1. Expeditious arbitration within the WTO as an alternative means of dispute settlement can facilitate the solution of certain disputes that concern issues that are clearly defined by both parties. 

2. Except as otherwise provided in this Understanding, resort to arbitration shall be subject to mutual agreement of the parties which shall agree on the procedures to be followed. Agreements to resort to arbitration shall be notified to all Members sufficiently in advance of the actual commencement of the arbitration process. 

3. Other Members may become party to an arbitration proceeding only upon the agreement of the parties which have agreed to have recourse to arbitration. The parties to the proceeding shall agree to abide by the arbitration award. Arbitration awards shall be notified to the DSB and the Council or Committee of any relevant agreement where any Member may raise any point relating thereto. 

4. Articles 21 and 22 of this Understanding shall apply mutatis mutandis to arbitration awards.

The text of the EU Norway agreement to resort to arbitration is here. It reiterates that it is a temporary phenomenon. The Arbitrators will consist of former Appellate Body Members - that ensures some continuity. The agreement emphasizes that "under the appeal arbitration procedure the European Union and Norway intend to replicate as closely as possible all substantive and procedural aspects as well as the practice of Appellate Review pursuant to Article 17 of the DSU including the provision of appropriate administrative and legal support to the arbitrators by the Appellate Body Secretariat."

In effect it is the AB back in action without the AB members? Also Article 25(4) of the DSU states that the provisions relating to surveillance of implementation of recommendations and rulings of the DSB as well as compensation and the suspension of concessions would apply.

So, is Arbitration appeal under Article 25 the way forward for appeals for other members of the WTO, except those opposing the AB? It is like having the benefits of the AB without the AB members.

Interesting times.