Last month hailed very encouraging news for South Africa in the appointment of Professor David Unterhalter, Professor of Law at the University of Witwatersrand and practicing advocate, to the WTO’s Appellate Body. The Appellate Body is the pinnacle of the legal process in the WTO and an Appellate Body appointment is probably the premium accolade for any trade lawyer. The latest appointment is thus a great honour for David Unterhalter and for South Africa in the realm of international law and international relations. Egypt had both the first and second African representatives on the Appellate Body, both from academic careers. Said El-Naggar was the fist serving from 1996-2000 and Georges Michel Abi-Saab is currently serving with an appointment to 2008. The current appointment is the first from sub-Saharan Africa in the history of the WTO. The appointment follows politically flavoured consultations with WTO Members and on the basis of a proposal by a Selection Committee comprising the Director-General, and the Chairpersons of the General Council, the Dispute Settlement Body, the Council for Trade in Goods, the Council for Trade in Services and the TRIPS Council. The making this nomination the Selection Committee interviewed eight candidates, nominated by their respective governments. The former Chair of the WTO General Council, Ambassador Amina Mohamed, from Kenya was also one of the candidates in contention for the current position.
In reacting to the appointment trade advisor, Hilton Zunckel ,was quoted as commenting that, ‘this appointment bodes well for the ongoing sensitisation of our region to the workings and potential benefits of using the WTO legal process to defend our rights as Africans under the WTO Agreements, an option that became increasingly attractive in the wake of the floundering Doha negotiations.’ The firm’s senior director, Jos Floor, remarked that ‘as practicing trade lawyers we are most encouraged at this appointment, and wish Professor Unterhalter well in his deliberations on the Appellate Body’.
Appellate Body members are tasked according to the WTO’s Dispute Settlement Understanding which stipulates that the Appellate Body shall ‘comprise persons of recognised authority, with demonstrated expertise in law, international trade and the subject matter of the WTO agreements generally.’ They render part time service for a period of 4 years, which may be renewed. The DSU also requires that the Appellate Body membership should be representative of WTO Membership. It is thus interesting that Africa, representing less than 2% of global trade, now has two of the seven representatives on the Appellate Body serving at the same time.