Abstract
This article deals with the interpretive technique of the World Trade Organization’s dispute settlement system’s Appellate Body. I ask whether the interpretive method used by the Appellate Body is legitimate. To this end, I define the concept of legitimacy as one of those elements that are of fundamental importance to WTO members—confidence among members and the expectation that the dispute settlement system brings predictability to the rules negotiated during the Uruguay Round. I argue that the primacy given to the text of the agreements is one of the fundamental elements of stability and predictability sought by WTO members. Throughout the article, I give some practical recommendations for those presenting arguments to the Appellate Body.
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Notes
- 1.
Agreements negotiated during the Uruguay Round.
- 2.
- 3.
See Zeroing Discussions in European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India, AB Report, WT/DS141; in United States – Laws, Regulations and Methodology for Calculating Dumping Margins, AB Report, WT/DS294 and some examples of the minutes of the DSB Meetings: (WT/DSB/M/250), (WT/DSB/M/259), (WT/DSB/M/223) and (WT/DSB/M/258), where the United States said: “It was difficult to understand the Appellate Body’s findings in this matter to be anything but a rule-making. That role, however, belonged to Members – not to panels or Appellate Body. Even aside from the lack of authority for these findings, the Appellate Body’s rules posed numerous problems.”
- 4.
- 5.
Vienna Convention on the Law of Treaties.
- 6.
See for example common law due process principles in United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services AB Report, WT/DS285. Stare Decisis in United States – Final Anti-Dumping Measures on Stainless Steel from Mexico, AB Report WT/DS33 (par. 162); Amicus Curiae in United States – Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products originating in the United Kingdom, AB Report, WT/DS138 and Brazil – Measures Affecting Imports of Retreaded Tyres AB Report, WT/DS332. Concerning the absence of Remand Authority, see Australia – Measures affecting Importation of Salmon, AB Report, WT/DS18 (par. 117).
- 7.
See for example Pauwelyn (2003).
- 8.
See also the following DSB Minutes WT/DSB/M/250.
- 9.
USA Supreme Court Decision – Chevron USA Inc. v. National Resources Defense Council Inc, related to the capacity of judicial bodies to overrule U.S administrative government determinations.
- 10.
See discussions on: Appropriate Standard of Review in European Communities – Measures Concerning Meat and Meat Products (hormones), AB Report, WT/DS26, DS48, (par. 116–117);
- 11.
See United States – Measures Affecting Imports of Woven Wool Shirts and Blouses from India, AB Report, WT/DS33 (par. 14) and in Argentina – Measures Affecting Imports of Footwear, Textiles, Apparel and other Items, AB Report, WT/DS56 (par. 84).
- 12.
This approach was used for the first time in United States – Standards for Reformulated and Conventional Gasoline, AB Report, WT/DS2 (par. 17). The Appellate Body had since then maintained the same line of interpretation based on the articles 31 and 32 of the Vienna Convention. See also United States – Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea, AB Report, WT/DS202 (par. 140–177); United States – Continued Dumping and Subsidy Offset Act of 2000 (Byrd Amendment) AB Report, WT/DS217 (par. 248) and United States – Final Counteracting Duty Determination with Respect to Certain Softwood Lumber from Canada AB Report, WT/DS257 (par. 58–59).
- 13.
Article 31
-
1.
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
-
2.
The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
-
(a)
any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
-
(b)
any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
-
(a)
-
3.
There shall be taken into account, together with the context:
-
(a)
any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
-
(b)
any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
-
(c)
any relevant rules of international law applicable in the relations between the parties.
-
(a)
-
4.
A special meaning shall be given to a term if it is established that the parties so intended.
Article 32
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
-
(a)
leaves the meaning ambiguous or obscure; or
-
(b)
leads to a result which is manifestly absurd or unreasonable.
-
1.
- 14.
AB Report, WT/DS02.
- 15.
See European Communities – Regime for the importation, sale and distribution of Bananas, AB Report, WT/DS27, (p. 77); India – Patent Protection for Pharmaceutical and Agricultural Chemical Products, AB Report, WT/DS50 (par. 45); European Communities – Measures concerning meat and meat products (hormones), AB Report, WT/DS26, DS48 (par. 104); United States – Import Prohibition of Certain Shrimp and Shrimp Products, AB Report, WT/DS58, (par. 114); Guatemala – Antidumping Investigation regarding Portland Cement from Mexico, AB Report, WT/DS 60 (par. 70); European Communities – Customs classification of certain computer equipment, AB Report, WT/DS 62, DS67, DS68, (par. 84); European Communities – Measures Affecting the Importation of Certain Poultry Products, AB Report, WT/DS69, (par. 82); and Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products, AB Report, WT/DS98 (par. 80).
- 16.
See the Zeroing discussions in United States – Laws, Regulations and Methodology for Calculating Dumping Margins (DS294) and; Unites States, Canada – Continued Suspension of Concessions (DS 320, DS 321). See also the Unites States statement on the DSB Meeting (WT/DSB/M/269) “The United States recognized that there had been a number of disputes addressing the use of ‘zeroing’ in anti-dumping duty investigations and ‘zeroing’ in antidumping duty assessment proceedings. For reasons that the United States had previously discussed, the Unites States continued to believe that the reasoning relied upon the Appellate Body in its reports in these disputes was in error”.
- 17.
Compare Van Damme (2009), p. 32 “The qualification of Articles 31 to 33 of the Vienna Convention as binding ‘rules’ does not seem satisfactory for norms that govern interpretation” and Jackson (2006) “There is room for rethinking the application and adequacy of the Vienna Convention regarding treaty interpretation” with USA statement on March 17, 2006 (DSB Meeting – TN/DS/W/74, “General principles of international law were not listed in the covered agreements set forth in Appendix 1 of the DSU, and a WTO adjudicatory body has no authority to enforce those principles.” See also USA statement in WT/DSB/M/112, “The United States believed it was inappropriate for the Appellate Body to develop a new principle not based on the text.”
- 18.
- 19.
See Terris et al. (2007), p. 16, “The judges hail from many countries, reflecting different linguistic, professional, social, and political background. They have been educated in different legal traditions, and sit on courts with widely varying jurisdictions and missions. Despite these apparent differences, there appears to exist a remarkable sense of commonality and shared purpose in respect of what it means to deliver justice in the context of an institution that serves an international purpose, across national boundaries and, sometimes, across continents too.”
- 20.
See Bacchus (2004).
- 21.
See AB Report, par. 45, in India – Patent protection for pharmaceutical and agricultural chemical products, WT/DS 50 “the legitimate expectations of the parties to a treaty are reflected in the language of the treaty itself.”
- 22.
The minutes of the DSB meetings are filed under code “WT/DSB/M/*.”
- 23.
See WT/DSB/M/258; WT/DSB/M/269; WT/DSB/M/262.
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de Andrade Junqueira, C.A. (2019). The Interpretive Technique of the WTO Appellate Body. In: do Amaral Júnior, A., de Oliveira Sá Pires, L.M., Lucena Carneiro, C. (eds) The WTO Dispute Settlement Mechanism. Springer, Cham. https://doi.org/10.1007/978-3-030-03263-0_14
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