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Annual Report 2009 APPELL a TE BOD Y Annual Report 2009 APPELLATE BODY The Appellate Body welcomes comments and inquiries regarding this report at the following address: Appellate Body Secretariat World Trade Organization rue de Lausanne 154 1211 Geneva, Switzerland email: [email protected] <www.wto.org/appellatebody> APPELLATE BODY MEMBERS: AS AT 1 JANUARY 2009 From left to right: Mr. Giorgio Sacerdoti; Ms. Jennifer Hillman; Mr. Shotaro Oshima; Ms. Yuejiao Zhang; Mr. Luiz Olavo Baptista; Ms. Lilia R. Bautista; Mr. David Unterhalter. APPELLATE BODY MEMBERS: AS AT 31 DECEMBER 2009 From left to right: Mr. Ricardo Ramírez-Hernandez; Ms. Yuejiao Zhang; Mr. Peter Van den Bossche; Ms. Jennifer Hillman; Mr. David Unterhalter; Ms. Lilia R. Bautista; Mr. Shotaro Oshima. ANNUAL REPORT FOR 2009 APPELLATE BODY i TABLE OF CONTENTS ABBREVIATIONS USED IN THIS ANNUAL REPORT ..............................................................................................................ii FOREWORD ............................................................................................................................................................................................iii I. INTRODUCTION .................................................................................................................................................................... 1 II. COMPOSITION OF THE APPELLATE BODY ............................................................................................................. 4 III. APPEALS .................................................................................................................................................................................. 6 IV. APPELLATE BODY REPORTS ........................................................................................................................................... 8 V. PARTICIPANTS AND THIRD PARTICIPANTS IN APPEALS ............................................................................... 42 VI. WORKING PROCEDURES FOR APPELLATE REVIEW ....................................................................................... 44 VII. ARBITRATIONS UNDER ARTICLE 21.3(c) OF THE DSU .................................................................................. 45 VIII. TECHNICAL ASSISTANCE ............................................................................................................................................. 48 IX. OTHER ACTIVITIES ........................................................................................................................................................... 48 ANNEX 1 MEMBERS OF THE APPELLATE BODY (1 JANUARY TO 31 DECEMBER 2009) BIOGRAPHICAL NOTES ................................................................................................................................. 50 ANNEX 1B FAREWELL SPEECHES OF APPELLATE BODY MEMBERS .............................................................. 55 ANNEX 2 FORMER APPELLATE BODY MEMBERS ................................................................................................. 60 ANNEX 3 APPEALS FILED: 1995–2009 ....................................................................................................................... 62 ANNEX 4 PERCENTAGE OF PANEL REPORTS APPEALED BY YEAR OF ADOPTION: 1995–2009 .......................................................................................................................................................... 63 ANNEX 5 WTO AGREEMENTS ADDRESSED IN APPELLATE BODY REPORTS CIRCULATED THROUGH 2009................................................................................................................................................ 64 ANNEX 6 PARTICIPANTS AND THIRD PARTICIPANTS IN APPEALS: 1995–2009 ................................. 65 ANNEX 7 APPELLATE BODY SECRETARIAT PARTICIPATION IN TECHNICAL ASSISTANCE, TRAINING, AND OTHER ACTIVITIES IN 2009 .................................................................................... 84 ANNEX 8 WTO DISPUTE SETTLEMENT REPORTS AND ARBITRATION AWARDS: 1995–2009 ..... 88 ii APPELLATE BODY ANNUAL REPORT FOR 2009 ABBREVIATIONS USED IN THIS ANNUAL REPORT Abbreviation Description Anti-Dumping Agreement Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 DSB Dispute Settlement Body DSU Understanding on Rules and Procedures Governing the Settlement of Disputes GATS General Agreement on Trade in Services GATT 1994 General Agreement on Tariffs and Trade 1994 Rules of Conduct Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes, adopted by the DSB on 3 December 1996, WT/DSB/RC/1 SCM Agreement Agreement on Subsidies and Countervailing Measures SPS sanitary and phytosanitary SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures TBT Agreement Agreement on Technical Barriers to Trade TRIMs Agreement Agreement on Trade-Related Investment Measures TRIPS Agreement Agreement on Trade-Related Aspects of Intellectual Property Rights USDOC United States Department of Commerce Vienna Convention Vienna Convention on the Law of Treaties, done at Vienna, 23 May 1969, 1155 UNTS 331; 8 International Legal Materials 679 Working Procedures Working Procedures for Appellate Review, WT/AB/WP/5, 4 January 2005 WTO World Trade Organization WTO Agreement Marrakesh Agreement Establishing the World Trade Organization ANNUAL REPORT FOR 2009 APPELLATE BODY iii FOR EWORD 2009 has been a year of great economic uncertainty. The fi nancial crisis that commenced in 2008 gave rise to conditions of pervasive recession in 2009, with a signifi cant contraction of international trade. There was much foreboding that a deep recession would threaten the international institutional order, and, in particular, the underpinnings of the world trading system, as every nation sought to secure its own interests. This has not happened. Rather, the gravity of the crisis has brought with it a widespread recognition that more ambitious collective action is required across a wider range of issues. And much thought has been given to the institutional arrangements that can achieve this, both regionally and globally. The WTO has remained, amidst the turbulence, at the centre of the world trading system, and the centre has held. The value of a rule-based system has never been greater and in times of great economic peril the system has proved its worth. Signifi cantly, the Members of the WTO have continued to adhere to their commitments to the WTO, and thereby provided much needed stability. The dispute settlement system is an integral part of the WTO. A rule-based system cannot survive if its rules are not capable of being interpreted and adjudicated. This is the institutional contribution of the Appellate Body, within the scheme of the Dispute Settlement Understanding. And here too, the system has continued to function smoothly, resolving disputes by recourse to the rule of law. 2009 was a year of milestones for the WTO’s dispute settlement system. As noted by the Director- General, 2009 saw the initiation of the 400th dispute since the WTO dispute settlement system was established in 1995. The Appellate Body, for its part, circulated its 100th Report at the end of 2009. WTO Members should feel justifi ably proud of the system that they created and that they administer through the DSB. The WTO dispute settlement system plays a key role in providing security and predictability and is a key feature of the WTO as a rule-based system. The appeals caseload has varied in recent years. 2009 was not as intense as previous years. Only three appeals were fi led in 2009 and one additional appeal was carried forward from 2008. The majority of these appeals related to the Anti-Dumping Agreement, which is one of the agreements that is most frequently the subject of disputes. Some of these appeals also raised complex issues relating to the implementation obligations of WTO Members under the Dispute Settlement Understanding. The fi nal appeal included issues relating to the GATS, which by contrast, has been raised infrequently in WTO dispute settlement. Interestingly, the low number of appeals in 2009 does not refl ect a lower appeal rate. Only fi ve panel reports could have been the subject of an appeal in 2009 and three of those were appealed. The appeal rate of 60 per cent in 2009 is not far off the historical average of 68 per cent. The year ahead is likely to be more challenging. Several panels are expected to circulate their reports by mid-year. Some of these cases involve very complex issues. The appeal activity is likely to be intense in the upcoming years. 2009 saw the departure from the Appellate Body of two esteemed colleagues. Luiz Olavo Baptista’s and Giorgio Sacerdoti’s second terms of offi ce expired in December 2009, although Luiz Olavo resigned a few months earlier for health reasons. Ricardo Ramírez-Hernández and Peter Van den Bossche were appointed and the Appellate Body is delighted to welcome these two fi ne lawyers. iv APPELLATE BODY ANNUAL REPORT FOR 2009 The regime of fi xed-term appointments to the Appellate Body has meant that in the last three years the membership of the Appellate Body has changed signifi cantly. It has been a great privilege for newer Members to serve with Luiz Olavo and Giorgio. Both Luiz Olavo and Giorgio have contributed their considerable talents to the Appellate Body and upheld its institutional values. Others will now continue their work. Luiz Olavo joined the Appellate Body from private
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