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The European Community, which always meets the aforementioned issues, has proposed a standing Panel Body to resolve the panel composition question. In its proposal, a fixed roster of panellists and a rotation mechanism are suggested to exclude the parties from deciding the composition of a panel. The idea would promote to avoid the current clumsy time-consuming process in the composition of a panel on a case-by-case basis. A standing panel would enhance consistency in the interpretation of the rather complex WTO rules. It would permit coordination between the various divisions of the standing panel, along the lines of the function of the Appellate Body. Some other WTO Members besides the European Community in their proposals are also agreed with the idea. But there are also arguments against a standing panel. The arguments are that a standing panel cannot provide a broad representation of the WTO membership. In addition, the standing panellists cannot provide enough confidence and trust to the parties to the dispute. The arguments, however, are too weak to oppose the establishment of a standing panel. The well existence of the standing Appellate Body has proved that the arguments against the standing panel are hardly convincing.[42] Especially, the rotation mechanism of standing panellists can make up the weakness of the representation of the WTO membership.
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]
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