|A Reflection on the Selection of the Appellate Body Membership
By Sorayut Chasombat, Minister Counsellor, the Permanent Mission of Thailand to the WTO, 3 March 2014
|Where does Thailand stand in the WTO Dispute Settlement System?
Thailand is the founding member and strong supporter of the World Trade
Organization (WTO). Being one of the top 20 of the global trading
nations, Thailand is actively engaged in supporting the WTO Dispute
Settlement System through the regular use of the system including
participating in the review of the relevant dispute settlement rules
and procedures. As of 3 March 2014, Thailand has been an active
participant in the WTO dispute settlement mechanism as claimant (16
cases), respondent (3 cases) and third party (65 cases). In the article
below, Sorayut Chasombat, Minister Counsellor, Permanent Mission of
Thailand to the WTO offers his reflection and insight on the WTO
1. How do we break the deadlock on the selection process of a WTO
Appellate Body member to replace Mr. David Unterhalter (South Africa)
whose term ended since 11 December 2013?
Eight months have passed since we started the selection process of a
WTO Appellate Body member to replace Mr. David Unterhalter (South
Africa) whose term ended since 11 December 2013, but so far the
Selection Committee and WTO membership have not been able to finish the
job yet. After the consultations, in which 62 WTO members have
expressed their opinions about the suitability of the candidates, none
of the four candidates would enjoy the support of the Membership of the
Dispute Settlement Body (DSB).
In fact, on 26 February 2014, the DSB was officially informed by the
Selection Committee that it could not select a successful candidate and
therefore made a suggestion that a new selection process be open and be
carried out by the new Selection Committee as soon as practicable.
What do I think of the whole process? Is there a way out? Yes
definitely there is a way out. I have to stress here that I had
opportunities to meet with all of the four candidates namely Mr. James
Thuo Gathi (Kenya), Mr. Yenkong Ngangjoh Hodu (Cameroon), Ms. Joan
Fitzhenry (Australia), and Mr. Abdel Hamid Mamdouh (Egypt) and found
them to be persons of recognized authority, with demonstrated expertise
in law, international trade and the subject-matter of the covered
agreements suitable to be appointed as member of the Appellate Body. I
am therefore rather disappointed that the Selection Committee could not
agree on a successful candidate.
At this stage, I would encourage the outgoing Selection Committee (who
are chairpersons of the General Council, Goods Council, Services
Council, Trips Council, Dispute Settlement Body, and the
Director-General of the WTO) and interested WTO members to intensify
the consultations in order to find the early solution.
My suggestion is that if all things are being equal, in terms of the
qualification and quality of the candidates, which I believe so, then
the broad representation aspect should be given a priority.
But in case that after the exhaustion of all the consultations and
still the solution could not be found, I won’t object to the idea that
there should be an opening of the process for further nominations of
additional candidates. But this would be my last choice.
The other day, while taking a break from the public viewing of the
Panel’s deliberation of Cool at Room S2 at WTO building, I met with
some colleagues. As usual, we exchanged a bit of information on the
state of play of WTO issues. Then, the topic of the selection for a new
member of the Appellate Body came up. I was asked if it is appropriate
for us to break the deadlock by voting. I said the WTO operates on a
consensus basis therefore I am not in favour of voting. But then what
is the next step?
I further offered my analysis that even if we open the process for more
candidates but there is still no guarantee that we will get a
consensus. In the end, I think that we all should work in a spirit of
sportsmanship to break the deadlock. What do I mean by the spirit of
sportsmanship? I mean that members should more flexibility. Members
should compete in the selection process in a friendly manner
particularly members should not try to block candidates just for the
sake of blocking.
I heard from membership statements at the Dispute Settlement Body
meeting that the four candidates are highly qualified. And yet we are
unable to pick any one of them for the post. I find this an irony. If
all four candidates are highly qualified, which I believe they are
because I have met and interviewed all of them, surely we must be able
to pick a successful candidate.
2. Thailand’s experiences in fielding a candidate for the Appellate Body in 2012
In 2012, Thailand was pushing to raise her international profile by
nominating Dr. Thanes Sucharikul, former Ambassador, for the post of
the Appellate Body member at WTO. The post was left vacant by the
resignation of Mr. Shotaro Oshima from Japan and being eyed at by four
candidates from Asian countries: Japan, Korea and Thailand. In my
opinion, all candidates were so well-qualified for the job that the
Selection Committee would have a hard time in making a decision at the
end of the selection process. But things were simpler. There was no
hung jury then. The Selection Committee was able to finish the job on
time. Interviews of candidates were conducted on 25-26 April 2012 by
Pascal Lamy, the former Director General of WTO and five key
chairpersons of WTO Committees. On 11 May 2012, as scheduled, the
Selection Committee forwarded the name of the successful candidate, Mr
Seung Wha Chang from Korea, to the Dispute Settlement Body of the WTO
In theory candidates will be competing on their own merit. The word
“lobbying” is frowned upon by purists within the WTO circle. However,
it is naive to believe that there is no “lobbying” going on by those
concerned albeit in a low-key manner. At this level of competition, no
candidate will be successful without a certain form of help from their
governments. After all candidates cannot nominate themselves. WTO law
requires that candidates will be persons of recognized authority with
demonstrated expertise in law, international trade and the substance of
Why is it so important that a few countries have decided to send their
candidates to compete in the selection process? It is important because
the Appellate Body is the highest quasi-judicial body of WTO. The
Appellate Body is not the World Trade Court. But it is handling more
disputes than any other international judicial bodies. Trade disputes
have become a fact of life for international trade relations. In
effect, the Appellate Body is the place where case law on international
trade will be made.
After the election of Mr. Ujal Singh Bhatia (India) and Mr. Thomas
Graham (United States) to the Appellate Body in 2011, there is a
general concern among certain WTO members that big economies are trying
to make the seat permanent the same way as in the case of the UN
Security Council. There are now six nationals of the following
economies serving on the Appellate Body: U.S., EU, China, Korea, Mexico
and India. There is a genuine need to make the membership in the
Appellate Body more broadly represented.
The nomination of candidates by Thailand and Korea then was appreciated
by many WTO members. In fact many WTO members want to nominate their
candidates for the election of Appellate Body member as well but they
are being constrained by a lack of qualified candidates at this stage.
In 2012, initially Kenya put forward a highly-regarded candidate but he
later withdrew. Capacity-building in international trade law must be
emphasized if members wish to nominate their nationals for the
competition in the future.
Before the Selection Committee cast their votes on who should be
selected as Appellate Body member, they usually hold private
confessional sessions with WTO members. This process is important
because WTO is a member-driven organization. Members still have control
over the selection process at least indirectly. In WTO practice,
decisions are usually made by consensus. If any candidate is blocked or
vetoed, his chance is doomed. Candidates are therefore expected to call
on WTO Ambassadors as many as possible. Some big players may even
require “informal interview” with candidates in Geneva and their
capitals probably to evaluate whether the candidates will bring
judicial and lawyerly temperament to the position or not.
Thailand has been an active participant in the WTO dispute settlement
mechanism as claimant (16 cases), respondent (3 cases) and third party
(65 cases) – as of 21 February 2014. The last time Thailand appeared in
WTO dispute settlement scene as a main party was in 2011 when Thailand
was challenged by a fellow ASEAN member -the Philippines- on its tax
and fiscal measures relating to imported cigarettes. Thailand has
systemic concerns to ensure that the system is well-functioning.
Therefore it is incumbent on Thailand to advance the cause of
strengthening the dispute settlement mechanism. Fielding and/or
supporting a qualified candidate to fill in a position in the Appellate
Body is part of that effort.
3. My personal experiences attending the Appellate Body’s hearings
Ever since my arrival in Geneva on 6 October 2011, on secondment from
the Foreign Ministry to the Ministry of Commerce as a Minister
Counselor at the Permanent Thai Mission to the World Trade Organization
(WTO), dealing with dispute settlement mechanism, I had two
opportunities to attend Appellate Body hearings as a member of the Thai
delegation (in the capacity of third participant) in which I gladly
took. After all I used to play a bit of football, if opportunity
knocks, a good player will take it – whether we can score a goal or not
is another matter.
Anyway before attending the first hearing, I was reflecting on my life
how I ended up in Geneva doing international trade law after a long
pause. I recounted that I was away from public international law for at
least 11 years and away from international trade law for over 20 years.
I have to do a lot of catching up. I enjoy every minute of my
diplomatic service but I understand full well that the career path in
the Ministry of Foreign Affairs is not conducive to creating
specialists. I consider myself a “lawyer-diplomat.” Certain diplomatic
skills such as negotiation may be transferable easily among different
types of job. My last posting was a Deputy Consul-General to Shanghai
during 2005-2009 which I enjoyed immensely. I thought I had a major
breakthrough with my consular work. But international trade law is a
whole new game. So the question that I always ask myself until today is
–will I rise up to the challenge by becoming a trade dispute
specialist. Well, I still don’t know but I will give it a good try. In
the 20 years that I was absent from international trade law field, some
friends and colleagues have already established themselves as experts.
My first attendance at the Appellate Body hearing was for the
Philippines- Taxes on Distilled Spirit case (DS 396 and DS 403). The
dispute was related to the Philippines’ excise tax regime which has
been in place since 1997 and taxes import distilled spirit a
substantially higher rate than domestic products. The complainants were
the EU and United States respectively. The Philippines lost the case at
the panel stage and appealed on many issues of law. The Division that
handled the appeal was headed by Jennifer Hillman (United States).
There were three members in the Division. There was a high degree of
spontaneity in the hearing. Ms. Hillman was acting in a high
professional standard. She and other members of the Division would take
turn to pose direct questions to parties. At times, there were
light-hearted moments i.e. when a member of the Philippines’ legal team
was trying to make a point that the Philippines’ spirit (sugar-based)
tastes differently from the imported wheat-based spirit. According to
him, the local spirit tastes sharply to the tongue and therefore
consumers can easily tell the difference that they are not the “like
products.” I have to say that the gentleman’s theory is
interesting but I cannot tell the difference. The only thing I can tell
is that drinking too much will get one drunk. The case was a
straightforward question on national-treatment in which WTO law and
jurisprudence have been very clear. No discrimination is allowed under
WTO law. The ruling of the Appellate Body was as expected. The
Appellate Body upheld the panel’s ruling. On 20 January 2012, the
Dispute Settlement Body (DSB) adopted the report of the Appellate Body
without hesitation. At the next DSB meeting on 22 February 2012, the
head of the Philippines delegation, sitting just a few feet from me,
stated the intention to comply with the ruling but asked for a
reasonable period of time to comply. The U.S. and EU welcomed
Philippines’ compliance intention and pledged to work with the
Philippines to find an acceptable timeframe.
The second case that I attended at the appellate stage was US-Tuna
(Measures Concerning the Importation, Marketing and Sale of Tuna and
Tuna Products: DS 381). This was an interesting case. The U.S. lost the
case at the panel’s stage. Interestingly the panel did not reach
consensus on all the issues even though they ruled in favor of Mexico.
The U.S., taking cue from the minority, appealed on issues of law
requesting the Appellate Body to reverse the panel’s finding. The
appeal process was interesting from the start. U.S. Ambassador Michael
Punke wrote to the Presiding Member of the Appellate Body requesting
for the scheduling of the oral hearing in the week of February 19, 2012
because fixing the date after that would prejudice U.S. participation
in the hearing due to the fact that one of the U.S. lead attorneys
would be unable to travel to Geneva for medical reasons relating to her
pregnancy. In the end, however, the Appellate Body fixed the date of
hearing on 15-16 March 2012, meaning that the U.S. had to find a
substitute lawyer to handle the case.
The Division which handled the case was headed by Madam Yuejiao Zhang
from China. Other members were Mr. Thomas Graham (U.S.) and Mr. Ujal
Singh Bhatia (India). This case was more complex. It was a trade vs.
environment issue. Although WTO law particularly the preamble of
Marrakesh Agreement Establishing WTO (1995) states clearly that members
maintain power to pursue their policy objectives to protect environment
for sustainable development, however trying to strike a fine balance
between free trade and protecting environment has never been easy.
I had a lot of experiences dealing with investigating and
quasi-adjudicatory functions as I was the head of the Disciplinary
Section at MFA Personnel Division for 6 years. On that basis and just
for the sake of comparison, I was very eager to see how others operate
in similar quasi-adjudicatory roles. Of course, I have a lot of respect
for members of the Appellate Body because of their recognized authority
in the field of law, trade policy and knowledge of WTO covered
agreements. I even was present at the swearing-in ceremony of Mr.
Graham and Mr. Bhatia, so I got the glimpse of what makes up the
The Tuna case’s main argument was about whether the U.S. dolphin safe
labeling provisions that govern the labeling of dolphin-safe constitute
“technical regulations” or merely “standards” under WTO law. The U.S.
argued that the legal provisions in question were not technical
regulations because their compliance is not mandatory. The U.S.
provisions are meant to ensure that its market is not used to encourage
the use of fishing techniques that harm dolphins. The U.S. argued
further that even without dolphin-safe labeling; Mexico’s tuna could
still be sold in the United States. Mexico countered that the U.S.
measures have been unnecessary and are completely arbitrary. To support
its legal argument that such U.S. provisions are technical regulations
which are inconsistent with WTO law, Mexico cited earlier WTO
jurisprudence: EC-Sardines; and EC-Asbestos. The Appellate Body has not
issued its report yet, so it remains to be seen if they will uphold the
findings of the panel.
On the whole, I think that WTO law suffers from textual ambiguity just
like the language of Article 190 of the Thai Constitution 2550 which
deals with treaty-making process in Thailand. For instance, the issue
in Tuna case is whether the U.S. provisions are “more trade restrictive
and necessary”. Defining the test for necessity is not an easy task.
This type of language has a lot of built-in subjectivity. Likewise in
the context of Thailand, to consider whether a treaty has provisions
which “affect trade significantly” under Article 190 paragraph 3 or not
is a subject of constant debate.
After seeing the Appellate Body in action twice, I have to say that I
am impressed with their high standard of working. No doubt they are
efficiently backed up by the Secretariat. But the spontaneity during
the hearing requires breadth and depth of WTO law and high diplomatic
skills on the part of Appellate Body members. To be able to perform the
task of the Appellate Body efficiently, my impression is that members
of the Appellate Body should be mature enough preferably over 50 years
of age. May reason is that because they have to command respect among
senior delegates and lawyers who take part in the hearing.
Because panels and the Appellate Body are the quasi-judicial bodies,
the nature of their oral hearing is not the same as domestic court’s
hearing. The atmosphere is more relaxing. The presence of third
participants also gives the impression that the hearing is like a
normal WTO meeting in progress. The Appellate Body members may address
third participants as delegates. For instance, if Thailand raises the
flag to make an intervention, the Division may just use the language -I
give the floor to Thailand.
4. What is a successful formula in fielding a candidate to the Appellate Body?
In order to be successful in the membership selection of the Appellate
Body, I think Thailand may have to follow a dual-track approach. The
sooner we start the better. The first action is to raise Thailand’s
profile in WTO dispute settlement mechanism. Reflecting on Thailand’s
past role, I believe that we have done a good job so we just need to
keep the momentum going such as joining in disputes as third party, as
and when necessary, and participate actively in the DSU review. The
second track is to groom our international trade lawyers so that they
will be able to compete for important appointments at major
international organizations. My feeling is that Japan is far ahead in
this regard and Korea is actively following suit. Korea has been
sending high-caliber delegates from the capital to DSU review
negotiations on a regular basis. Some of them are in my age group and
we seem to get along quite well. Korea’s main strength is that they
pool resources. A few of them are drawn from the academic field with
impressive track record.
At this level of competition, the best way to add value to a
candidate’s profile is to publish books and articles of high quality on
issues of international trade law. I think we have to encourage our
Thai experts to publish their work in leading journals as often as
possible. From my observation, among the present members of Appellate
Body, two hold Ph.D./S.J.D. (Peter Van den Bossche and Seung Wha
Chang), a few hold Master degrees (Yuejiao Zhang, Ricardo Ramirez
Hernandez, and Ujal Singh Bhatia), one holds a J.D. (Thomas Graham).
Education background of Appellate Body members is varied. The only
pattern that I can draw a conclusion from is that most of them hold
advanced degrees. But a degree by itself, even if it is a Ph.D., is
only a marginal gain if it is not backed up by a large body of
published work, high-level of practice or distinguished government
career to reflect the recognized authority of a candidate in the field.
The present composition of the Appellate Body (February 2014) reflects
Another point that I have observed is that some of the candidates for
the selection of Appellate Body member may have previous experiences as
panelist. I think this is a good personal qualification. If any
candidate is blessed with opportunities to serve on panels, he or she
may have a head start in the selection process. But it could work
against the candidate as well particularly if he takes a position which
is deemed harmful to trading interests of powerful WTO members. If a
candidate is vetoed or rejected by those members, his chance is doomed.
In my opinion, having previous experiences as WTO adjudicator or
panelist is good but not necessarily giving an edge over other
candidates. In fact citizens of countries that feature often in the
dispute settlement process may not have opportunities to serve as
panelists because of the potential conflict of interest.
I have the feeling that the Selection Committee, when selecting a
person to serve on the Appellate Body, will look for someone who is
mindful of the role of WTO adjudicators – that their role is first and
foremost to settle the dispute. They are not expected to engage in
law-making or “judicial activism” but to interpret WTO law in a
balanced way taking into account members’ rights and obligations. This
is because WTO is a member-driven organization. Making law is
exclusively within the prerogative power of WTO members. The dispute
settlement mechanism cannot add to or subtract from members’ rights and
obligations. The jurisprudence is to help achieve the security and
predictability of the system only. I hope that sooner or later a
well-qualified Thai person will be selected and serving on the
Although in theory, there are only six chairpersons of major WTO
committees including the Director-General who will cast their votes in
the selection process. But as WTO is a member-driven organization, the
Selection Committee will have to listen to the views of members.
Building a wide network of support is crucial to the success of the
These are the insights that I have gathered since I took up my posting.
I have been hoping to do a multilateral work. Now I am given that
opportunity. I think that it is incumbent upon me to share my
experiences with those who may want to follow the same path in the
I have to say that my stay in Geneva, my experience with DSB and
attendance at the two Appellate Body oral hearings have been very
enjoyable and rewarding. It is a steep learning curve switching from
handling consular affairs to settlement of trade disputes. But it is
well worth doing it. Now I am quite comfortable with all WTO jargons.
Suppose if it is the other way round, assigning a trade law expert to
do consular work, I think that it will be a culture shock as well. To
excel in consular affairs, one needs to have a balanced temperament.
Maturity is also needed. I find that the older I am, the better I am
with consular affairs. Practice in the area of consular affairs is also
one of the most exciting experiences.
I remember one time I was trying to make a consular representation to
help a Thai national who was arrested and charged with
under-declaration of the price of goods that he exported to one of the
non-market economies in Asia. When I visited him at a detention centre,
he complained to me that his treatment was bad. In his own words, he
told me “Officer, They treat me badly. I am worse than a dog here.” I
told him “You are a man. You must take it like a man. I will help you
as much as I can.”
In the end, he was granted bail, paid a hefty fine and left the country.
In a way whether one is practicing consular affairs or international
trade law, one is still practicing in the sphere of public
international law. The difference is only in technical details.
In conclusion, as my present portfolio is dispute settlement now, my
participation in DSB meetings and Appellate Body hearings has
reaffirmed my understanding that the WTO dispute settlement system “has
been a remarkable success”. It is one of the most used systems in the
world. The Appellate Body is very efficient in its work, given the
workload and the constraint under WTO law in which it has only sixty
days to deliver its ruling. At any given time, it may have 2-3 cases to
handle. Therefore it is natural that I look forward to having another
opportunity to take part further in the Appellate Body hearing, if and
when Thailand is a third participant, and will definitely share my
story for the benefit of advancing knowledge in the field of
international trade law to interested readers again.
1. Marrakesh Agreement Establishing the World Trade Organization (1995)
2. Understanding on Rules and Procedures Governing the Settlement of Dispute (1995)
3. Vienna Convention on Consular Relations (1963)
4. Philippines- Taxes on Distilled Spirit (DS 396 and DS 403)
5. United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (DS 381)
6. WTO (2012)
Facts on the WTO Appellate Body
Appellate Body Members (Photo: WTO, March 2014)
1. The Appellate Body is composed of seven Members who are appointed by
the Dispute Settlement Body (DSB) to serve for four-year terms.
2. Each person may be reappointed for another four-year term. Terms are
staggered, ensuring that not all Members begin and complete their terms
at the same time.
3. Each Member of the Appellate Body is required to be a person of
recognized authority, with demonstrated expertise in law, international
trade and the subject-matter of the covered agreements generally. They
are also required to be unaffiliated with any government and are to be
broadly representative of the Membership of the WTO.
4. A Chairman is elected among the Members to serve a one-year term,
which can be extended for an additional period of one year. The
Chairman is responsible for the overall direction of Appellate Body
business. The current Chairperson is Ricardo Ramírez-Hernández.
5. A Division of three Members is selected to hear each appeal; each
Division elects a Presiding Member. The process for the selection of
Divisions is designed to ensure randomness, unpredictability and
opportunity for all Members to serve regardless of their national
6. To ensure consistency and coherence in decision-making, Divisions
exchange views with the other Members of the Appellate Body before
finalizing Appellate Body Reports.