EUROPEAN COMMUNITIES AND CERTAIN MEMBER
STATES – MEASURES
AFFECTING TRADE IN LARGE CIVIL AIRCRAFT
Recourse to Article 21.5
of the DSU by THE UNITED sTATES
COMMUNICATION FROM THE APPELLATE BODY
The following communication, dated 21 December
2016, from the Chair of the Appellate Body addressed to the Chair of the
Dispute Settlement Body, is circulated to Members in accordance with
Article 17.5 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes.
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I am writing to you pursuant to
Article 17.5 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU), which stipulates that, as a general rule, the
Appellate Body will circulate its report no later than
60 days after the appellant has formally notified the Dispute Settlement Body
(DSB) of its decision to appeal. Article 17.5 states, furthermore, that, when
the Appellate Body
considers that it cannot provide its report within 60 days, it shall inform the
DSB in writing of the reasons for the delay
together with an estimate of the period within which it will submit its report.
The
European Union notified the DSB on 13 October 2016 of its decision to appeal
certain issues of law covered in the Panel Report and legal interpretations
developed by the compliance Panel in this dispute, with the result that day 60
in this proceeding fell on Tuesday, 13 December 2016. On 10 November 2016,
the United States filed a Notice of Other Appeal in this dispute.
The Appellate Body is not able to circulate
its report by the end of the
60-day period, or within the 90‑day timeframe provided for in the last sentence
of Article 17.5 of the DSU, due
to the exceptional size and complexity of these compliance proceedings. In this respect,
we refer to the considerable volume of the Panel record and the size of
the Panel Report, the number of issues appealed, and the many complex
substantive and procedural aspects of these appellate proceedings,
including the time
needed for adopting and complying with additional procedures to protect
business confidential information (BCI) and highly sensitive business
information (HSBI), together with the consequential extensions of the deadlines
for filing submissions. We further note the substantial
workload faced by the Appellate Body, the overlap in the composition of the Divisions hearing several concurrent
appeals, and the shortage of staff in the Appellate Body Secretariat.
The circulation date of
the Appellate Body report in this appeal will be communicated to the
participants and third participants in due course.
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