Treaty Interpretation by the WTO Appellate Body

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1 Treaty Interpretation by the WTO Appellate Body ISABELLE VAN DAMME OXFORD UNIVERSITY PRESS

2 Contents General Editor's Preface Foreword Acknowledgements Abbreviations List of Cited WTO Panel and Appellate Body Reports, Initiated WTO Disputes, and their Common Abbreviations List of Cited GATT Panel and Working Party Reports, and their Common Abbreviations Table of Cases Introduction vii ix xi xxi xxv xlvii xlix lxiii I. The Basic Principles and Concepts Governing WTO Dispute Settlement and Treaty Interpretation 1. The WTO Dispute Settlement System Introduction The Character of WTO Dispute Settlement The Jurisdiction of WTO Panels and the Appellate Body Exclusive but Not General Jurisdiction Jurisdiction over Facts and Law The Applicable Law in WTO Dispute Settlement Treaty Interpretation in WTO Dispute Settlement Authentic Interpretation versus Judicial Interpretation Conclusion Principles of Treaty Interpretation: Meaning and Function Introduction The Position under General International Law Principles, Not Rules Categories of Principles of Treaty Interpretation Codified Principles 37 A Historical Note 37 Articles 31 to 33 VCLT Non-Codified Principles Functions of Principles of Treaty Interpretation The Inter-Temporal Element in Treaty Interpretation 55

3 xvi Contents 2.3 The Position in WTO Dispute Settlement The Appellate Body's Appreciation ofjtreaty Interpretation The Appellate Body's Application of Codified and Non-Codified Principles of Interpretation Special Principles of Treaty Interpretation A Questionable Category Illustration 1: The Alleged Principle of In Dubio Mitius Illustration 2: The Principle of Legitimate Expectations Illustration 3: Article 17.6(ii) Anti-Dumping Agreement Conclusion The Subject of Treaty Interpretation in WTO Dispute Settlement Introduction The Scope of WTO 'Treaty Language' WTO 'Treaty Language' Articles and Ad Articles Cross-References and Incorporation by Reference Waivers and 'GATT/WTO Issues' Footnotes and Understandings The Character of the WTO Covered Agreements The ILC's View: No Formal Classes or Categories of Treaties The Contractual versus the Law-Making Approach The Distinction Applied to the WTO Covered Agreements Constitutional Theories and the Interpretation of WTO Treaty Language The Special Case of Schedules of Commitments Schedules of Commitments Negotiation and Conclusion Article 2(l)(a) VCLT and Schedules of Commitments The Appellate Body's Interpretation of Schedules of Commitments Alternative Approaches to the Interpretation of Schedules of Commitments The ICJ's Interpretations of Unilateral Declarations Struggling Towards a Solution in WTO Dispute Settlement Conclusion 108

4 Contents 4. The Interpretation of Silence in the WTO Covered Agreements Introduction Non Liquet and the Completeness of International and WTO Law General International Law Gaps, Non Liquet, Completeness, and Judicial Power Problems with the Traditional Discourse WTO Law Judicial Law-Making in the WTO Illustration 1: The Applicable Law and the Principle of Institutional Balance Illustration 2: The Zeroing Saga An Alternative Perspective: Silence in WTO Treaty Language Silence in Treaty Language Interpretation of Some Silences in the WTO Covered Agreements Introduction Silence Outside the Scope of the Applicable Law Genuine Silences 129 Procedural and Substantive Silences 135 Procedural Silences 135 Substantive Silences 139 Causes and Motivations 141 Defective Treaty-Drafting 141 Deliberate Silences in Treaty-Drafting 143 Techniques for Interpreting Silences 146 The Use of Customary International Law and General Principles 146 The Use of Practice 147 The Use of Cross-Referencing 148 The Use of the Principle of Effectiveness 152 The Use of the Object and Purpose Conclusion Inherent Powers and Treaty Interpretation Introduction The International Judicial Function and the WTO Appellate Body The Role of the Judicial Function in the WTO Powers and the Judicial Process Inherent Powers of the WTO Appellate Body Inherent Powers and Jurisdiction Inherent Powers and Admissibility 177 xvii

5 xviii Contents Inherent Powers and Interpreting Other Procedural Rules Amicus Curiae BriefsV Open Hearings Legal Certainty and jurisprudence Constante Due Process and Preliminary Rulings Burden of Proof Inherent Powers and Interpreting Substantive Rules Conclusion 209 II. The Interpretative Practice of the WTO Appellate Body 6. The Contextual Interpretation of the WTO Covered Agreements Introduction Meaning and Function of Context in Article 31 VCLT Incomplete Description of Context in Article 31 VCT The History of Context in Article 31 VCLT Meaning and Function of Context in the Appellate Body's Jurisprudence Literal Interpretation as the Starting Point Contextualized Ordinary Meaning Ordinary Meaning: Text and Grammar Contextualized Plain and Dictionary Meaning 225 The Limited Value of Dictionaries 226 Choosing between Dictionaries and Dictionary Definitions 229 Complementary Dictionary Meanings 230 Affirming Dictionary Meanings 230 Dictionary Preferences 231 Contextualizing Dictionary Definitions through their Use The Technique of Cross-Referencing Function of Cross-Referencing 235 Cross-Referencing to Establish Ordinary Meaning 237 Cross-Referencing to Confirm Ordinary Meaning 239 Necessity of Cross-Referencing Types of Cross-Referencing 242 Identical Treaty Language 242 Similar Treaty Language 245 Different Treaty Language A Special Case: Cross-Referencing between Schedules Context Relating to the Conclusion of the Treaty Agreements and Instruments in Connection with the Conclusion of the Treaty Is the Harmonized System Context? 254

6 -> Contents xix Are Explanatory Notes and Scheduling Guidelines Context? Teleology of the Treaty Other Extrinsic Elements Trade Negotiations and WTO Committees Economic Conditions of Disputants Ad Articles Scientific Knowledge Academic Literature Business and Trade Practices Factual Context Conclusion The Effective Interpretation of the WTO Covered Agreements Effectiveness as a Principle of Treaty Interpretation The VCLT and the Principle of Effective Interpretation Some Applications of the Principle of Effectiveness Effective Interpretation in WTO Dispute Settlement Interaction between Effectiveness and Contextualism: Harmonious Interpretation Effective Interpretation of the Contextualized Ordinary Meaning Effective Interpretation of the Unity of the Treaty Language Giving Effect to Values in Treaty Interpretation Conclusion Other Issues in WTO Treaty Interpretation Introduction Supplementary Means of Interpretation (Article 32 VCLT) General International Law WTO Law Residual Character of Article 32 VCLT Preparatory Work as a Problem and as a Solution Other Supplementary Means of Interpretation Article 32 VCLT and the Interpretation of Schedules Other Authentic Versions of the Treaty (Article 33 VCLT) General International Law History of Article 33 VCLT Meaning of Article 33 VCLT WTO Law Use of Subsequent Practice (Article 31(3)(b) VCLT) Definition in WTO and International Law 338

7 xx Contents Practice of the WTO and Other International Organizations Finding Subsequent Practice ^ What Qualifies as Practice? Agreement Among Parties Who Have Not Engaged in the Practice Consistency of Practice Use of Subsequent Agreements (Article 31(3)(a) VCLT) Special Meanings (Article 31(4) VCLT) General International Law WTO Law Conclusion WTO Treaty Interpretation against the Background of Other International Law Harmonization of WTO Law and International Law The Role of International Law in Treaty Interpretation The Principle of Harmonious Interpretation History of Article 31(3)(c) VCLT Interpretation of Article 31(3)(c) VCLT Limited Value of Article 31(3)(c) VCLT Article 31(3)(c) VCLT and Jurisdiction Article 31(3)(c) VCLT in WTO Dispute Settlement Application of Article 31(3)(c) VCLT Implied Interpretation of Article 31(3)(c) VCLT Conclusion 374 III. Conclusions Conclusions 379 Appendix Articles 31, 32, and 33 VCLT 385 Bibliography 387 Index 413

Sources of law in the WTO

Sources of law in the WTO What is our objective when studying sources of law? Assess interpretative arguments in light of general principles of sources of law in international law? Predict how a panel