8:02 AM Oct 12, 1995

EDGING TO NAME AN APPELLATE BODY

Geneva 11 Oct (Chakravarthi Raghavan) -- The World Trade Organization (WTO) appeared to be edging towards resolving nearly an year-long stalemate and name the seven persons to constitute its Standing Appellate Body on disputes -- with the United States and the EU giving up their "claims" for two seats each on the body, in return for the virtual veto they got on the choice of the seven nominees.

The Chairman of the Dispute Settlement Body (DSB), Don Kenyon of Australia, told the DSB Wednesday that after months of deliberation, the six member committee engaged in the selection process had concluded its deliberations and communicated the conclusions to the 23 WTO member-countries.

Some of these, he said, had however sought time for "reflection" and following this, the recommendations would be brought up before the DSB by end of October or 1 November.

When this is done, and the nominations are approved by consensus, notwithstanding all the claims that would be made, it would have been by a process that has added further disrepute to the institution and its credibility.

Several delegates who did not want to be named, from countries who had nominated candidates and others who had not, said the entire process, even when it is concluded, would not do anything to restore the credibility of the WTO and its processes and practices.

"If this is success for multilateralism, one wonders what failure would look like," one of them said.

After having announced that the selections should not be based on considerations of geographical and regional origins, but on merit, the two majors went about doing exactly the opposite.

The selection body consisting of the chair of the WTO General Council, the DSB, the councils for Goods, Services and TRIPs, and the WTO Director-General then interviewed the candidates.

Kenyon at the beginning referred to the rules set out in the Dispute Settlement Agreement that the members should be persons of recognized authority with "demonstrated expertise in law, international trade and the subject mater of covered agreements generally", stressing that candidates must have all three qualifications and would be chosen by the selection committee on merits.

The selection body picked seven names, and then began 'consultations' to get consensus, when the United States staked an unreasonable claim for two seats on the Appellate body, with the European Union following suit.

While claiming that they would not accept these, nor 'bargain' with the two majors in any quid pro quo, Kenyon and his committee appear to have done precisely that.

First, two key secretariat posts were filled up, with an American national to head the legal division and a Canadian to head to the secretariat of the Appellate body.

Then in further consultations, the two majors, and more so the United States got a virtual veto and used it to ensure that no strong personalities, nor those whose views (in academic and other writings) would run counter to the US view, would be named. In the process the US view has prevailed perhaps more than that of the EU, having managed to get four from the APEC member-countries on the body.

The seven are drawn from the US, EU, New Zealand, Japan, the Philippines, Egypt and Uruguay.