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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.
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]
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