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I.3.1 General rules of treaty interpretation — Articles 31 and 32
of the Vienna Convention back to top
I.3.1.1 US — Gasoline, p. 17, DSR 1996:I, p. 3 at 16
(WT/DS2/AB/R)
The general rule of interpretation [as set out in Article 31(1) of
the Vienna Convention on the Law of Treaties] has attained the status of
a rule of customary or general international law. As such, it forms part
of the “customary rules of interpretation of public international law”
which the Appellate Body has been directed, by Article 3(2) of the DSU,
to apply in seeking to clarify the provisions of the General
Agreement and the other “covered agreements” of the Marrakesh
Agreement Establishing the World Trade Organization (the “WTO
Agreement”). That direction reflects a measure of recognition that
the General Agreement is not to be read in clinical isolation
from public international law.
I.3.1.2 Japan — Alcoholic Beverages II, p. 34, DSR 1996:I, p.
97 at 122-123
(WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R)
… WTO rules are reliable, comprehensible and enforceable. WTO
rules are not so rigid or so inflexible as not to leave room for
reasoned judgements in confronting the endless and ever-changing ebb and
flow of real facts in real cases in the real world. They will serve the
multilateral trading system best if they are interpreted with that in
mind. In that way, we will achieve the “security and predictability”
sought for the multilateral trading system by the Members of the WTO
through the establishment of the dispute settlement system.
I.3.1.3 India — Patents (US), para. 46
(WT/DS50/AB/R)
… These rules must be respected and applied in interpreting the TRIPS
Agreement or any other covered agreement. … Both panels
and the Appellate Body must be guided by the rules of treaty
interpretation set out in the Vienna Convention, and must not add
to or diminish rights and obligations provided in the WTO Agreement.
I.3.1.4 Argentina — Textiles and Apparel, para. 42
(WT/DS56/AB/R, WT/DS56/AB/R/Corr.1)
… The Panel relies heavily on what it characterizes as “past
GATT practice”, without undertaking any analysis of the ordinary
meaning of the terms of Article II in their context and in the light of
the object and purpose of the GATT 1994, in accordance with the general
rules of treaty interpretation set out in Article 31 of the Vienna
Convention. …
I.3.1.5 US — Carbon Steel,
paras. 61-62
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
… we recall that Article 3.2 of the DSU recognizes that
interpretative issues arising in WTO dispute settlement are to be
resolved through the application of customary rules of interpretation of
public international law. It is well settled in WTO case law that the
principles codified in Articles 31 and 32 of the Vienna Convention on
the Law of Treaties (the “Vienna Convention”) are such
customary rules. …
… the task of interpreting a treaty provision must begin with its
specific terms. …
I.3.1.6 US — Continued Zeroing, para. 268
(WT/DS350/AB/R)
The principles of interpretation that are set out in Articles 31 and
32 are to be followed in a holistic fashion. The interpretative exercise
is engaged so as to yield an interpretation that is harmonious and
coherent and fits comfortably in the treaty as a whole so as to render
the treaty provision legally effective. A word or term may have more
than one meaning or shade of meaning, but the identification of such
meanings in isolation only commences the process of interpretation, it
does not conclude it. … a treaty interpreter is required to
have recourse to context and object and purpose to elucidate the
relevant meaning of the word or term. This logical progression provides
a framework for proper interpretative analysis. At the same time, it
should be kept in mind that treaty interpretation is an integrated
operation, where interpretative rules or principles must be understood
and applied as connected and mutually reinforcing components of a
holistic exercise.
I.3.2 Text. See also Interpretation, Legitimate
expectations (I.3.5); Municipal Law (M.5)
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I.3.2.1 Japan — Alcoholic Beverages II, p. 12, DSR 1996:I, p.
97 at 105
(WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R)
Article 31 of the Vienna Convention provides that the words of
the treaty form the foundation for the interpretive process: “interpretation
must be based above all upon the text of the treaty”. …
I.3.2.2 EC — Hormones, para. 181
(WT/DS26/AB/R, WT/DS48/AB/R)
… The fundamental rule of treaty interpretation requires a treaty
interpreter to read and interpret the words actually used by the
agreement under examination, not words the interpreter may feel should
have been used.
I.3.2.3 India — Patents (US), para. 45
(WT/DS50/AB/R)
… The duty of a treaty interpreter is to examine the words of the
treaty to determine the intentions of the parties. This should be done
in accordance with the principles of treaty interpretation set out in
Article 31 of the Vienna Convention. But these principles of
interpretation neither require nor condone the imputation into a treaty
of words that are not there or the importation into a treaty of concepts
that were not intended.
I.3.2.4 US — Shrimp, para. 114
(WT/DS58/AB/R)
… A treaty interpreter must begin with, and focus upon, the text
of the particular provision to be interpreted. It is in the words
constituting that provision, read in their context, that the object and
purpose of the states parties to the treaty must first be sought. Where
the meaning imparted by the text itself is equivocal or inconclusive, or
where confirmation of the correctness of the reading of the text itself
is desired, light from the object and purpose of the treaty as a whole
may usefully be sought.
I.3.2.5 Argentina — Footwear (EC), para. 91
(WT/DS121/AB/R)
To determine the meaning of the clause — “as a result of
unforeseen developments and of the effect of the obligations incurred by
a Member under this Agreement, including tariff concessions … ”
— in sub-paragraph (a) of Article XIX:1, we must examine these words
in their ordinary meaning, in their context and in light of the object
and purpose of Article XIX. …
I.3.2.6 US — Line Pipe, para. 251
(WT/DS202/AB/R)
We do not see the text of Article 5.1, first sentence, alone, as
indicating one certain meaning. Therefore, in keeping with our customary
approach, we must seek the meaning of the terms of this provision in
their context and in the light of the object and purpose of the
Agreement.
I.3.2.7 US — Offset Act (Byrd Amendment), para. 248
(WT/DS217/AB/R, WT/DS234/AB/R)
… It should be remembered that dictionaries are important guides
to, not dispositive statements of, definitions of words appearing in
agreements and legal documents.
I.3.2.8 US — Softwood Lumber IV,
paras. 58-59
(WT/DS257/AB/R)
The meaning of a treaty provision, properly construed, is rooted in
the ordinary meaning of the terms used. …
… We note, … that dictionary definitions have their
limitations in revealing the ordinary meaning of a term. This is
especially true where the meanings of terms used in the different
authentic texts of the WTO Agreement are susceptible to
differences in scope. …
I.3.2.9 US — Gambling, para. 164 and footnote 191
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)
… In order to identify the ordinary meaning, a Panel may start
with the dictionary definitions of the terms to be interpreted.191
But
dictionaries, alone, are not necessarily capable of resolving complex
questions of interpretation, as they typically aim to catalogue all meanings
of words — be those meanings common or rare, universal or specialized.
I.3.2.10 US — Gambling, para. 166
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)
We have three reservations about the way in which the Panel
determined the ordinary meaning of the word “sporting” in the United
States’ Schedule. First, to the extent that the Panel’s reasoning
simply equates the “ordinary meaning” with the meaning of words as
defined in dictionaries, this is, in our view, too mechanical an approach. Secondly, the Panel failed to have due regard to the
fact that its recourse to dictionaries revealed that gambling and
betting can, at least in some contexts, be one of the meanings of the
word “sporting”. Thirdly, the Panel failed to explain the basis for
its recourse to the meanings of the French and Spanish words “déportivos”
and “sportifs” in the light of the fact that the United States’
Schedule explicitly states, in a cover note, that it “is authentic
in English only”.
I.3.2.11 US — Gambling, para. 167
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)
Overall, the Panel’s finding concerning the word “sporting” was
premature. In our view, the Panel should have taken note that, in the
abstract, the range of possible meanings of the word “sporting”
includes both the meaning claimed by Antigua and the meaning
claimed by the United States, and then continued its inquiry into which
of those meanings was to be attributed to the word as used in the
United States’ GATS Schedule.
I.3.2.12 EC — Chicken Cuts,
paras. 175-176
(WT/DS269/AB/R, WT/DS286/AB/R, WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
… The Appellate Body has observed that dictionaries are a “useful
starting point” for the analysis of “ordinary meaning” of a treaty
term, but they are not necessarily dispositive. The ordinary meaning of
a treaty term must be ascertained according to the particular
circumstances of each case. Importantly, the ordinary meaning of a
treaty term must be seen in the light of the intention of the parties
“as expressed in the words used by them against the light of the
surrounding circumstances”.
Having said this, we would agree with the European Communities that
there is no reference in the Vienna Convention to “factual
context” as a separate analytical step under Article 31. Nevertheless,
we do not believe that the Panel was incorrect to consider elements such
as the “products covered by the concession contained in heading 02.10”,
“flavour, texture, [and] other physical properties” of the products
falling under heading 02.10, and “preservation” when interpreting
the term “salted” as it appears in heading 02.10. The Panel’s
consideration of these elements under “ordinary meaning” of the term
“salted” complemented its analysis of the dictionary definitions of
that term. In any event, even if we were to agree with the European
Communities that these elements are not to be considered under “ordinary
meaning”, they certainly could be considered under “context”.
Interpretation pursuant to the customary rules codified in Article 31 of
the Vienna Convention is ultimately a holistic exercise that
should not be mechanically subdivided into rigid components. Considering
particular surrounding circumstances under the rubric of “ordinary
meaning” or “in the light of its context” would not, in our view,
change the outcome of treaty interpretation. Therefore, we find no error
in the Panel’s interpretive approach.
I.3.2.13 China — Publications and Audiovisual Products, paras.
354, 356-357
(WT/DS363/AB/R)
We observe that the dictionary definitions submitted by China to the
Panel included a range of meanings for the terms “recording” and “distribution”.
China itself referred to “recorded material”, which was the
definition that the Panel considered “most relevant”. Although China
contends that the Panel disregarded alternative definitions from The
American Heritage Dictionary of the English Language, in particular
the definition of “recording” as “[s]omething on which sound or
visual images have been recorded”, we note that this same dictionary
also provides a definition of “recording” as “[a] recorded sound
or picture”. Whilst the Panel did not quote the latter two definitions
from the dictionary in question, it did assess whether the term “sound
recording” encompasses only the “particular medium on which the
content is embedded or transferred”, or also “material that is
recorded” and “content”. The Panel was not required in doing so to
quote each dictionary definition submitted by the parties expressing
these meanings in similar form. We, therefore, do not believe that the
Panel failed to consider whether “sound recording” could be read as
“something on which sound or visual images have been recorded”.
Rather, the Panel explored whether the entry at issue covered only
distribution of sound recordings in physical form, or extended to their
distribution in electronic form. Ultimately, the Panel was not persuaded
that the meaning of the term “sound recording” excluded recorded
content stored or distributed in electronic form.
In its analysis of dictionary definitions for purposes of discerning
the ordinary meaning of the term “Sound recording distribution
services”, the Panel identified some meanings as more relevant to its
analysis, but did not clearly explain why certain definitions were more
relevant than others. However, we do not believe that the absence of a
clear explanation amounts to an error in the Panel’s analysis of
dictionary definitions, because its analysis makes clear that it took
into consideration the meaning advocated by China, regardless of the
dictionary sources of the various definitions before it.
We recognize, as China argues, that certain language used by the
Panel suggests that it may have reached conclusions on the ordinary
meaning based on only certain dictionary definitions. The Panel also did
not quote in its reasoning the alternative dictionary definitions
submitted by China and contained in The American Heritage Dictionary
of the English Language. However, the Panel did consider whether the
meaning of the entry “Sound recording distribution services” was
limited to the distribution of physical goods or whether it extended to
electronic distribution, and it continued to do so in its subsequent
analysis of relevant context, and object and purpose, as explained
below. We, therefore, do not consider that, in its analysis of the
ordinary meaning of “Sound recording distribution services”, the
Panel disregarded the definitions put forward by China. Neither are we
persuaded that the Panel prematurely reached conclusions on the ordinary
meaning of “Sound recording distribution services” based only on
dictionary meanings before analysing the relevant context and the object
and purpose of the GATS. In sum, based on our review of the Panel’s
reasoning, we believe that the Panel did not err in its consideration of
dictionary definitions of the terms “sound recording” and “distribution”.
I.3.3 Context
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I.3.3.1 US — Carbon Steel, para. 65
(WT/DS213/AB/R, WT/DS213/AB/R/Corr.1)
We have previously observed that the fact that a particular treaty
provision is “silent” on a specific issue “must have some meaning”.
In this case, the lack of any indication, in the text of Article 21.3,
that a de minimis standard must be applied in sunset reviews
serves, at least at first blush, as an indication that no such
requirement exists. However, as the Panel itself observed, the task of
ascertaining the meaning of a treaty provision with respect to a
specific requirement does not end once it has been determined that the
text is silent on that requirement. Such silence does not exclude the
possibility that the requirement was intended to be included by
implication.
I.3.3.2 US — Carbon Steel, para. 69
(WT/DS213/AB/R,
WT/DS213/AB/R/Corr.1)
… the technique of cross-referencing is frequently used in the SCM
Agreement. … These cross-references suggest to us that, when the
negotiators of the SCM Agreement intended that the disciplines
set forth in one provision be applied in another context, they did so
expressly. In the light of the many express cross-references made in the
SCM Agreement, we attach significance to the absence of any
textual link between Article 21.3 reviews and the de minimis standard
set forth in Article 11.9. …
I.3.3.3 US — Carbon Steel, para. 104
(WT/DS213/AB/R,
WT/DS213/AB/R/Corr.1)
In principle, when a provision refers, without qualification, to an
action that a Member may take, this serves as an indication that no
limitation is intended to be imposed on the manner or circumstances in
which such action may be taken. However, because the task of
interpreting a treaty provision does not end with a bare examination of
its text, the absence of an express limitation on Members’ ability to
take a certain action is not dispositive of whether any such limitation
exists.
I.3.3.4 US — Gambling, para. 175
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)
We note that Article 31(2) refers to the agreement or acceptance
of the parties. In this case, both W/120 and the 1993 Scheduling
Guidelines were drafted by the GATT Secretariat rather than the parties
to the negotiations. It may be true that, on its own, authorship by a
delegated body would not preclude specific documents from falling within
the scope of Article 31(2). However, we are not persuaded that in this
case the Panel could find W/120 and the 1993 Scheduling Guidelines to be
context. Such documents can be characterized as context only where there
is sufficient evidence of their constituting an “agreement relating to
the treaty” between the parties or of their “accept[ance by the parties] as an
instrument related to the treaty”.
I.3.3.5 US — Gambling, paras. 176, 178
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)
We do not accept, as the Panel appears to have done, that, simply by
requesting the preparation and circulation of these documents and using
them in preparing their offers, the parties in the negotiations have
accepted them as agreements or instruments related to the treaty.
Indeed, there are indications to the contrary. As the United States
pointed out before the Panel, the United States and several other
parties to the negotiations clearly stated, at the time W/120 was
proposed, that, although Members were encouraged to follow the broad
structure of W/120, it was never meant to bind Members to the CPC
definitions, nor to any other “specific nomenclature”, and that “the
composition of the list was not a matter for negotiations”. Similarly,
the Explanatory Note that prefaces the Scheduling Guidelines itself
appears to contradict the Panel in this regard, as it expressly provides
that, although it is intended to assist “persons responsible for
scheduling commitments”, that assistance “should not be considered
as an authoritative legal interpretation of the GATS”.
… therefore, the Panel erred in categorizing W/120 and the 1993
Scheduling Guidelines as “context” for the interpretation of the
United States’ GATS Schedule. …
I.3.3.6 EC — Chicken Cuts, paras. 193-194
(WT/DS269/AB/R, WT/DS286/AB/R, WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
It is clear from these provisions that the context of the term “salted”
in heading 02.10 consists of the immediate, as well as the broader,
context of that term. The immediate context is the other terms of the
product description contained in heading 02.10 of the EC Schedule. The
broader context includes the other headings in Chapter 2 of the EC
Schedule, as well as other WTO Member Schedules.
The Panel addressed the question whether the Harmonized System
constituted “context” for interpreting the term “salted” in
heading 02.10 of the EC Schedule. …
I.3.3.7 EC — Chicken Cuts, para. 195
(WT/DS269/AB/R, WT/DS286/AB/R,
WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
The Harmonized System is not, formally, part of the WTO Agreement,
as it has not been incorporated, in whole or in part, into that
Agreement. Nevertheless, the concept of “context”, under Article 31,
is not limited to the treaty text — namely, the WTO Agreement —
but may also extend to “any agreement relating to the treaty which was
made between all the parties in connection with the conclusion of the
treaty”, within the meaning of Article 31(2)(a) of the Vienna
Convention, and to “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” within the meaning of Article
31(2)(b) of the Vienna Convention. …
I.3.3.8 China — Auto Parts, para. 151
(WT/DS339/AB/R, WT/DS340/AB/R, WT/DS342/AB/R)
… The realm of context as defined in Article 31(2) is broad. “Context”
includes all of the text of the treaty — in this case, the WTO
Agreement — and may also extend to “any agreement relating to
the treaty which was made between all the parties in connection with the
conclusion of the treaty” and “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”.
Yet context is relevant for a treaty interpreter to the extent
that it may shed light on the interpretative issue to be resolved, such
as the meaning of the term or phrase at issue. Thus, for a particular
provision, agreement or instrument to serve as relevant context
in any given situation, it must not only fall within the scope of the
formal boundaries identified in Article 31(2), it must also have some
pertinence to the language being interpreted that renders it capable of
helping the interpreter to determine the meaning of such language.
Because WTO Members’ Schedules of Concessions were constructed using
the nomenclature of the Harmonized System, the Harmonized System is apt
to shed light on the meaning of terms used in these Schedules. It does
not, however, automatically follow that the Harmonized System was
context relevant to the interpretative question faced by the Panel in
its analysis of the threshold issue in this dispute.
I.3.3.9 China — Publications and Audiovisual Products, paras.
387-388
(WT/DS363/AB/R)
As we have considered above, while certain elements of context
clearly support the Panel’s interpretation of “Sound recording
distribution services” as extending to the electronic distribution of
sound recordings, other elements considered by the Panel are consistent
with or do not contradict such an interpretation of the scope of this
commitment. On balance, we are persuaded that the analysis of a number
of contextual elements supports the interpretation of China’s
commitment on “Sound recording distribution services” as including
the electronic distribution of sound recordings.
We further note that the Panel did not regard any of the specific
elements it reviewed under Article 31 of the Vienna Convention as
in and of itself “conclusive” as to the question of whether “Sound
recording distribution services” should be interpreted as encompassing
electronic distribution. Rather, the Panel was careful to distinguish
among: elements that support such an interpretation; elements that are
consistent with the interpretation; and elements that offer no guidance.
In this regard, we consider that China’s claim, that each of the
interpretative elements reviewed by the Panel is “inconclusive” with
respect to the interpretation of “Sound recording distribution services”, overlooks the nature of the
interpretative exercise to be undertaken under Article 31 of the Vienna
Convention.
I.3.4 Domestic legislative history
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I.3.4.1 US — FSC (Article 21.5 — EC), para. 150
(WT/DS108/AB/RW)
… The legislative history also states that the measure was
adopted “to comply with decisions of a World Trade Organization
dispute panel and Appellate Body”. We take particular note of these
statements, though we do not believe that it would be appropriate for us
to end our inquiry here.
I.3.4.2 US — Offset Act (Byrd Amendment), para. 259
(WT/DS217/AB/R, WT/DS234/AB/R)
… We note that the Panel referred to the “Findings of Congress”,
not as a basis for its conclusion that the CDSOA constitutes a
specific action against dumping or subsidies, but rather as a
consideration confirming that conclusion. We agree with the Panel that
the intent, stated or otherwise, of the legislators is not conclusive as
to whether a measure is “against” dumping or subsidies under Article
18.1 of the Anti-Dumping Agreement or Article 32.1 of the SCM
Agreement. Thus, it was not necessary for the Panel to inquire into
the intent pursued by United States legislators in enacting the CDSOA
and to take this into account in the analysis. The text of the CDSOA
provides sufficient information on the structure and design of the CDSOA,
that is to say, on the manner in which it operates, to permit an
analysis whether the measure is “against” dumping or a subsidy. …
I.3.5 Legitimate expectations
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I.3.5.1 India — Patents (US), para. 42
(WT/DS50/AB/R)
… the Panel’s invocation of the “legitimate expectations”
of Members relating to conditions of competition melds the legally
distinct bases for “violation” and “nonviolation” complaints
under Article XXIII of the GATT 1994 into one uniform cause of action.
This is not consistent with either Article XXIII of the GATT 1994 or
Article 64 of the TRIPS Agreement. …
I.3.5.2 India — Patents (US), para. 45
(WT/DS50/AB/R)
… The legitimate expectations of the parties to a treaty are
reflected in the language of the treaty itself. The duty of a treaty
interpreter is to examine the words of the treaty to determine the
intentions of the parties. This should be done in accordance with the
principles of treaty interpretation set out in Article 31 of the Vienna
Convention. But these principles of interpretation neither require
nor condone the imputation into a treaty of words that are not there or the
importation into a treaty of concepts that were not intended.
I.3.5.3 India — Patents (US), para. 48
(WT/DS50/AB/R)
… we do not agree with the Panel that the legitimate expectations
of Members and private rights holders concerning conditions of
competition must always be taken into account in interpreting the TRIPS
Agreement.
I.3.5.4 EC — Computer Equipment, para. 84
(WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R)
The purpose of treaty interpretation under Article 31 of the Vienna
Convention is to ascertain the common intentions of the
parties. These common intentions cannot be ascertained on the
basis of the subjective and unilaterally determined “expectations”
of one of the parties to a treaty. Tariff concessions provided
for in a Member’s Schedule — the interpretation of which is at issue
here — are reciprocal and result from a mutually advantageous
negotiation between importing and exporting Members. A Schedule is made
an integral part of the GATT 1994 by Article II:7 of the GATT 1994.
Therefore, the concessions provided for in that Schedule are part of the
terms of the treaty. As such, the only rules which may be applied in
interpreting the meaning of a concession are the general rules of treaty
interpretation set out in the Vienna Convention.
I.3.5.5 EC — Computer Equipment, para. 97
(WT/DS62/AB/R,
WT/DS67/AB/R,
WT/DS68/AB/R)
… we conclude that the Panel erred in finding that the “legitimate
expectations” of an exporting Member are relevant for the purposes of
interpreting the terms of Schedule LXXX and of determining whether the
European Communities violated Article II:1 of the GATT 1994.…
I.3.6 Object and purpose
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I.3.6.1 US — Shrimp, para. 153
(WT/DS58/AB/R)
We note once more that the preamble of the WTO Agreement demonstrates
a recognition by WTO negotiators that optimal use of the world’s
resources should be made in accordance with the objective of sustainable
development. As this preambular language reflects the intentions of
negotiators of the WTO Agreement, we believe it must add colour,
texture and shading to our interpretation of the agreements annexed to
the WTO Agreement, in this case, the GATT 1994. We have already
observed that Article XX(g) of the GATT 1994 is appropriately read with
the perspective embodied in the above preamble.
I.3.6.2 EC — Chicken Cuts, paras. 238-240
(WT/DS269/AB/R, WT/DS286/AB/R,
WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
We begin our analysis with the question whether the Panel incorrectly
distinguished between the object and purpose of the treaty and that of
its individual provisions. It is well accepted that the use of the
singular word “its” preceding the term “object and purpose” in
Article 31(1) of the Vienna Convention indicates that the term
refers to the treaty as a whole; had the term “object and purpose”
been preceded by the word “their”, the use of the plural would have
indicated a reference to particular “treaty terms”. Thus, the term
“its object and purpose” makes it clear that the starting point for
ascertaining “object and purpose” is the treaty itself, in its
entirety. At the same time, we do not believe that Article 31(1)
excludes taking into account the object and purpose of particular treaty
terms, if doing so assists the interpreter in determining the treaty’s
object and purpose on the whole. We do not see why it would be necessary
to divorce a treaty’s object and purpose from the object and purpose
of specific treaty provisions, or vice versa. To the extent that
one can speak of the “object and purpose of a treaty provision”, it
will be informed by, and will be in consonance with, the object and
purpose of the entire treaty of which it is but a component.
Having said this, we caution against interpreting WTO law in the
light of the purported “object and purpose” of specific provisions,
paragraphs or subparagraphs of the WTO agreements, or tariff headings in
Schedules, in isolation from the object and purpose of the treaty on the
whole. Even if, arguendo, one could rely on the specific “object
and purpose” of heading 02.10 of the EC Schedule in isolation, we
would share the Panel’s view that “one Member’s unilateral object
and purpose for the conclusion of a tariff commitment cannot form the
basis” for an interpretation of that commitment, because
interpretation in the light of Articles 31 and 32 of the Vienna
Convention must focus on ascertaining the common intentions
of the parties.
For these reasons, we have no difficulty with the Panel’s approach
in interpreting the tariff commitment at issue in this case in the light
of the object and purpose of the WTO Agreement and the GATT 1994.
I.3.7 Principle of effectiveness
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I.3.7.1 US — Gasoline, p. 23, DSR 1996:I, p. 3 at 21
(WT/DS2/AB/R)
… One of the corollaries of the “general rule of interpretation”
in the Vienna Convention is that interpretation must give meaning
and effect to all the terms of the treaty. An interpreter is not free to
adopt a reading that would result in reducing whole clauses or
paragraphs of a treaty to redundancy or inutility.
I.3.7.2 Japan — Alcoholic Beverages II, p. 12, DSR 1997:I, p.
97 at 106
(WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R)
… A fundamental tenet of treaty interpretation flowing from the
general rule of interpretation set out in Article 31 is the principle of
effectiveness (ut res magis valeat quam pereat). …
I.3.7.3 US — Underwear, p. 16, DSR 1997:I, p. 11 at 24
(WT/DS24/AB/R)
… The common, day-to-day, implication which arises from this
language is clear to us: the restraint is to be applied in the future,
after the consultations, should these prove fruitless and the
proposed measure not [be] withdrawn. The principle of effectiveness in
treaty interpretation sustains this implication.
I.3.7.4 Canada — Dairy, para. 133
(WT/DS103/AB/R, WT/DS113/AB/R, WT/DS103/AB/R/Corr.1,
WT/DS113/AB/R/Corr.1)
… the task of the treaty interpreter is to ascertain and give
effect to a legally operative meaning for the terms of the treaty. The
applicable fundamental principle of effet utile is that a treaty
interpreter is not free to adopt a meaning that would reduce parts of a
treaty to redundancy or inutility.
I.3.7.5 Argentina — Footwear (EC), para. 81
(WT/DS121/AB/R)
… Yet a treaty interpreter must read all applicable provisions of
a treaty in a way that gives meaning to all of them,
harmoniously. And, an appropriate reading of this “inseparable package
of rights and disciplines” must, accordingly, be one that gives
meaning to all the relevant provisions of these two equally
binding agreements.
I.3.7.6 Argentina — Footwear (EC), para. 95
(WT/DS121/AB/R)
Our reading of these prerequisites does precisely this, by making
certain that all the relevant provisions of the Agreement on
Safeguards and Article XIX of the GATT 1994 relating to safeguard
measures are given their full meaning and their full legal effect. …
I.3.7.7 Korea — Dairy, para. 81
(WT/DS98/AB/R)
In light of the interpretive principle of effectiveness, it is the duty
of any treaty interpreter to “read all applicable provisions of a
treaty in a way that gives meaning to all of them, harmoniously”.
An important corollary of this principle is that a treaty should be
interpreted as a whole, and, in particular, its sections and parts
should be read as a whole. Article II:2 of the WTO Agreement expressly
manifests the intention of the Uruguay Round negotiators that the provisions of
the WTO Agreement and the Multilateral Trade Agreements included
in its Annexes 1, 2 and 3 must be read as a whole.
I.3.7.8 US — Section 211 Appropriations Act, para. 338
(WT/DS176/AB/R)
Article 8 of the Paris Convention (1967) covers only the protection
of trade names; Article 8 has no other subject. If the intention of the
negotiators had been to exclude trade names from protection, there would
have been no purpose whatsoever in including Article 8 in the list of
Paris Convention (1967) provisions that were specifically incorporated
into the TRIPS Agreement. To adopt the Panel’s approach would
be to deprive Article 8 of the Paris Convention (1967), as incorporated
into the TRIPS Agreement by virtue of Article 2.1 of that
Agreement, of any and all meaning and effect. …
I.3.7.9 US — Offset Act (Byrd Amendment), para. 271
(WT/DS217/AB/R, WT/DS234/AB/R)
… The United States’ reasoning would deprive Article 32.1 of
the SCM Agreement of effectiveness. As we have stated on many
occasions, the internationally recognized interpretive principle of
effectiveness should guide the interpretation of the WTO Agreement,
and, under this principle, provisions of the WTO Agreement should
not be interpreted in such a manner that whole clauses or paragraphs of
a treaty would be reduced to redundancy or inutility. …
I.3.7.10 US — Upland Cotton, para. 549
(WT/DS267/AB/R)
… Furthermore, as the Appellate Body has explained, “a treaty
interpreter must read all applicable provisions of a treaty in a way
that gives meaning to all of them, harmoniously”. We agree with the
Panel that “Article 3.1(b) of the SCM Agreement can be read together
with the Agreement on Agriculture provisions relating to domestic
support in a coherent and consistent manner which gives full and
effective meaning to all of their terms”.
I.3.7.11 US — Softwood Lumber V (Article 21.5 — Canada), para.
99
(WT/DS264/AB/RW)
… One part of a provision setting forth a methodology is not
rendered inutile simply because, in a specific set of
circumstances, its application would produce results that are equivalent
to those obtained from the application of a comparison methodology set
out in another part of that provision. In other words, the fact that,
under the specific assumptions of the hypothetical scenario provided by
the United States, the weighted average-to-transaction comparison
methodology could produce results that are equivalent to those obtained
from the application of the weighted average-to-weighted average
methodology is insufficient to conclude that the second sentence of
Article 2.4.2 is thereby rendered ineffective. It has not been proven
that in all cases, or at least in most of them, the two methodologies
would produce the same results. …
I.3.8 Principle of in dubio mitius
back to top
I.3.8.1 EC — Hormones, para. 165 and footnote 154
(WT/DS26/AB/R, WT/DS48/AB/R)
… We cannot lightly assume that sovereign states intended to
impose upon themselves the more onerous, rather than the less
burdensome, obligation by mandating conformity or compliance
with such standards, guidelines and recommendations.154
To sustain
such an assumption and to warrant such a far-reaching interpretation,
treaty language far more specific and compelling than that found in
Article 3 of the SPS Agreement would be necessary.
I.3.8.2 China — Publications and Audiovisual Products, para.
410
(WT/DS363/AB/R)
Finally, China claims that the Panel should have found that the
application of both Articles 31 and 32 of the Vienna Convention left
the issue of whether China’s GATS commitment on “Sound recording
distribution services” included the distribution of sound recordings
by electronic means largely “inconclusive”. In China’s view, when
confronted with such a high level of ambiguity, the Panel should have
applied the in dubio mitius principle and refrained from adopting
the interpretation that was the least favourable to China. The United
States responds that there was no basis for applying the in dubio
mitius principle in this dispute because the Panel correctly
interpreted China’s GATS specific commitment based on Articles 31 and
32 of the Vienna Convention.
I.3.8.3 China — Publications and Audiovisual Products, para.
411
(WT/DS363/AB/R)
We have found above that the Panel did not err in its interpretation
of “Sound recording distribution services” in accordance with
Article 31 of the Vienna Convention. We have expressed the view
that the Panel’s recourse to Article 32 of the Vienna Convention was
not in error, but that it was also not necessary, given that the
application of Article 31 yielded a conclusion on the proper
interpretation of this entry in China’s GATS Schedule. We have also
observed that we see no error in the Panel’s analysis under Article
32. We therefore do not accept China’s contention that the Panel
should have found that the meaning of the entry “Sound recording
distribution services” remains inconclusive or ambiguous after its
analysis under Articles 31 and 32 of the Vienna Convention.
Consequently, even if the principle of in dubio mitius were
relevant in WTO dispute settlement, there is no scope for its
application in this dispute.
I.3.9 Subsequent practice
back to top
I.3.9.1 Japan — Alcoholic Beverages II, p. 13, DSR 1996:I, p.
97 at 106
(WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R)
… a “concordant, common and consistent” sequence of acts or
pronouncements which is sufficient to establish a discernible pattern
implying the agreement of the parties [to a treaty] regarding its
interpretation. …
I.3.9.2 Japan — Alcoholic Beverages II, p. 15, DSR 1996:I, p.
97 at 108
(WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R)
… we do not agree with the Panel’s conclusion in paragraph 6.10
of the Panel Report that “panel reports adopted by the GATT
CONTRACTING PARTIES and the WTO Dispute Settlement Body constitute
subsequent practice in a specific case” as the phrase “subsequent
practice” is used in Article 31 of the Vienna Convention. …
I.3.9.3 Chile — Price Band System,
paras. 213-214
(WT/DS207/AB/R, WT/DS207/AB/R/Corr.1)
Chile’s argument that it is “highly relevant” that no country
that had a price band system in place before the conclusion of the
Uruguay Round actually converted it into ordinary customs duties gives
rise to another question, namely: is this practice relevant in
interpreting Article 4.2 because it constitutes “subsequent practice
in the application of the treaty which establishes the agreement of the
parties regarding its interpretation”, within the meaning of the
customary rule of interpretation codified in Article 31(3)(b) of the Vienna
Convention? …
Neither the Panel record nor the participants’ submissions on
appeal suggests that there is a discernible pattern of acts or
pronouncements implying an agreement among WTO Members on the
interpretation of Article 4.2. Thus, in our view, this alleged practice
of some Members does not amount to “subsequent practice” within the
meaning of Article 31(3)(b) of the Vienna Convention.
I.3.9.4 Chile — Price Band System, para. 272
(WT/DS207/AB/R,
WT/DS207/AB/R/Corr.1)
… The Schedule of one Member, and even the scheduling practice of
a number of Members, is not relevant in interpreting the meaning of a
treaty provision, unless that practice amounts to “subsequent practice
in the application of the treaty” within the meaning of Article
31(3)(b) of the Vienna Convention. …
I.3.9.5 US — Upland Cotton, para. 625
(WT/DS267/AB/R)
… We also observe that whether WTO Members with export credit
guarantee programmes have reported them in their export subsidy
notifications is not determinative for purposes of our inquiry into the
meaning of Article 10.2. In any event, the United States and Brazil
disagree about whether such programmes are subject to notification
requirements.
I.3.9.6 US — Gambling,
paras. 192-193
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)
… in order for “practice” within the meaning of Article
31(3)(b) to be established: (i) there must be a common, consistent,
discernible pattern of acts or pronouncements; and (ii) those
acts or pronouncements must imply agreement on the interpretation
of the relevant provision.
… Although the 2001 Guidelines were explicitly adopted by the
Council for Trade in Services, this was in the context of the
negotiation of future commitments and in order to assist in the
preparation of offers and requests in respect of such commitments. As
such, they do not constitute evidence of Members’ understanding
regarding the interpretation of existing commitments.
Furthermore, as the United States emphasized before the Panel, in its
Decision adopting the 2001 Guidelines, the Council for Trade in Services
explicitly stated that they were to be “nonbinding” and “shall not
modify any rights or obligations of the Members under the GATS”.
Accordingly, we do not consider that the 2001 Guidelines, in and of
themselves, constitute “subsequent practice” within the meaning of
Article 31(3)(b) of the Vienna Convention.
I.3.9.7 EC — Chicken Cuts, paras. 255, 259
(WT/DS269/AB/R, WT/DS286/AB/R,
WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
… we observe that “subsequent practice” in the application of
a treaty may be an important element in treaty interpretation because
“it constitutes objective evidence of the understanding of the parties
as to the meaning of the treaty”.
…
We share the Panel’s view that not each and every party must have
engaged in a particular practice for it to qualify as a “common” and
“concordant” practice. Nevertheless, practice by some, but not
all parties is obviously not of the same order as practice by only
one, or very few parties. To our mind, it would be difficult to
establish a “concordant, common and discernible pattern” on the
basis of acts or pronouncements of one, or very few parties to a
multilateral treaty, such as the WTO Agreement. We acknowledge,
however, that, if only some WTO Members have actually traded or
classified products under a given heading, this circumstance may reduce
the availability of such “acts and pronouncements” for purposes of determining the existence of “subsequent practice”
within the meaning of Article 31(3)(b).
I.3.9.8 EC — Chicken Cuts,
paras. 265-266
(WT/DS269/AB/R, WT/DS286/AB/R,
WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
We acknowledge that we are concerned here with the interpretation of
a tariff commitment contained in the WTO Schedule of the European
Communities that, according to Article II:7 of the GATT 1994, forms an
“integral part” of the WTO Agreement, as do all Members’
WTO Schedules. In EC — Computer Equipment [at paragraph 109],
the Appellate Body found that:
… the fact that Members’ Schedules
are an integral part of the GATT 1994 indicates that, while each
Schedule represents the tariff commitments made by one Member,
they represent a common agreement among all Members. (original emphasis)
The Appellate Body also stated [at paragraph 93] in that appeal that:
The purpose of treaty interpretation is to establish the common intention
of the parties to the treaty. To establish this intention, the prior
practice of only one of the parties may be relevant, but it is
clearly of more limited value than the practice of all parties. In the
specific case of interpretation of a tariff concession in a Schedule,
the classification practice of the importing Member, in fact, may be of
great importance. However, the Panel was mistaken in finding that the
classification practice of the United States was not relevant.
(original emphasis)
The Appellate Body made these statements in the
context of an interpretation pursuant to Article 32 of the Vienna
Convention, but, as the Panel put it, these statements “confirm …
the importance of the classification practice of the importing
Member whose schedule is being interpreted [but] also indicate …
that
the classification practice of other WTO Members, including the
exporting Member’s practice, may be relevant”. In our view, these
statements cannot be read to justify exclusive reliance on the importing
Member’s classification practice. Therefore, we fail to see how the
Panel’s finding that it was “reasonable to rely upon EC
classification practice alone in determining whether or not there is ‘subsequent
practice’ that ‘establishes the agreement’ of WTO Members within
the meaning of Article 31(3)(b)” can be reconciled with these
statements of the Appellate Body in EC — Computer Equipment.
I.3.9.9 EC — Chicken Cuts, para. 270
(WT/DS269/AB/R, WT/DS286/AB/R,
WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
In our view, as the Panel examined only a subset of salted meat
products classifiable under heading 02.10, and it did not examine
classification practice with respect to alternative headings such as
heading 02.07, it could not draw valid conclusions as to the existence
of “subsequent practice” establishing the agreement of the parties within the meaning of Article 31(3)(b) with respect to all
salted meat products potentially covered by the tariff commitment under
heading 02.10 of the EC Schedule.
I.3.9.10 EC — Chicken Cuts, paras. 271-272
(WT/DS269/AB/R, WT/DS286/AB/R,
WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
We recall that, under Article 31(3)(b), agreement of the parties
regarding interpretation of a treaty term must be established. This
raises the question how to establish agreement of those parties that
have not engaged in a practice. …
We agree with the Panel that, in general, agreement may be deduced
from the affirmative reaction of a treaty party. However, we have
misgivings about deducing, without further inquiry, agreement
with a practice from a party’s “lack of reaction”. We do not
exclude that, in specific situations, the “lack of reaction” or
silence by a particular treaty party may, in the light of attendant
circumstances, be understood as acceptance of the practice of other
treaty parties. Such situations may occur when a party that has not
engaged in a practice has become or has been made aware of the practice
of other parties (for example, by means of notification or by virtue of
participation in a forum where it is discussed), but does not react to
it. However, we disagree with the Panel that “lack of protest”
against one Member’s classification practice by other WTO Members may
be understood, on its own, as establishing agreement with that practice
by those other Members. Therefore, the fact that Brazil and Thailand,
having actually exported the products at issue, may have accepted the
European Communities’ import classification practice under heading
02.10, is not dispositive of whether other Members with actual or
potential trade interests have also accepted that practice. We,
therefore, disagree with the Panel that “subsequent practice” under
Article 31(3)(b) has been established by virtue of the fact that the
Panel “[had] not been provided any evidence to indicate that WTO
Members protested against the EC classification practice in question
from 1996-2002”.
I.3.9.11 EC — Chicken Cuts, para. 273
(WT/DS269/AB/R, WT/DS286/AB/R,
WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
… according to the European Communities, Article IX:2 of the WTO
Agreement suggests that “any practice relating to the
interpretation of the multilateral trade agreements and acceptance
thereof must take the form of overt acts that are explicitly submitted
for consideration of all WTO Members and adopted by a large majority of
the WTO Membership”. To our mind, the existence of Article IX:2 of the
WTO Agreement is not dispositive for resolving the issue of how
to establish the agreement by Members that have not engaged in a
practice. We fail to see how the express authorization in the WTO
Agreement for Members to adopt interpretations of WTO provisions —
which requires a three-quarter majority vote and not a unanimous
decision — would impinge upon recourse to subsequent practice as a
tool of treaty interpretation under Article 31(3)(b) of the Vienna
Convention. In any case, we are mindful that the Appellate Body, in Japan
— Alcoholic Beverages II, cautioned that relying on “subsequent practice” for purposes of interpretation
must not lead to interference with the “exclusive authority” of the
Ministerial Conference and the General Council to adopt interpretations
of WTO agreements that are binding on all Members. In our view, this
confirms that “lack of reaction” should not lightly, without further
inquiry into attendant circumstances of a case, be read to imply
agreement with an interpretation by treaty parties that have not
themselves engaged in a particular practice followed by other parties in
the application of the treaty. This is all the more so because the
interpretation of a treaty provision on the basis of subsequent practice
is binding on all parties to the treaty, including those that have not
actually engaged in such practice.
I.3.9A Subsequent agreement
back to top
I.3.9A.1 EC — Bananas III (Article 21.5 — Ecuador II) / EC
— Bananas III (Article 21.5 — US), para. 383
(WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, WT/DS27/AB/RW2/ECU/Corr.1,
WT/DS27/AB/RW/USA/Corr.1)
Multilateral interpretations of provisions of WTO law are the next
method identified above. Article IX:2 of the WTO Agreement sets
out specific requirements for decisions that may be taken by the
Ministerial Conference or the General Council to adopt interpretations
of provisions of the Multilateral Trade Agreements. Such multilateral
interpretations are meant to clarify the meaning of existing
obligations, not to modify their content. Article IX:2 emphasizes that
such interpretations “shall not be used in a manner that would
undermine the amendment provisions in Article X”. A multilateral
interpretation should also be distinguished from a waiver, which allows
a Member to depart from an existing WTO obligation for a limited period
of time. We consider that a multilateral interpretation pursuant to
Article IX:2 of the WTO Agreement can be likened to a subsequent
agreement regarding the interpretation of the treaty or the application
of its provisions pursuant to Article 31(3)(a) of the Vienna
Convention, as far as the interpretation of the WTO agreements is
concerned.
I.3.9A.2 EC — Bananas III (Article 21.5 — Ecuador II) / EC
— Bananas III (Article 21.5 — US), paras. 390-391
(WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, WT/DS27/AB/RW2/ECU/Corr.1,
WT/DS27/AB/RW/USA/Corr.1)
We further observe that, in its commentary on the Draft Articles on
the Law of Treaties, the International Law Commission (the “ILC”)
describes a subsequent agreement within the meaning of Article 31(3)(a)
of the Vienna Convention “as a further authentic element of
interpretation to be taken into account together with the context”.
In our view, by referring to “authentic interpretation”, the ILC
reads Article 31(3)(a) as referring to agreements bearing specifically
upon the interpretation of a treaty. In the WTO context, multilateral
interpretations adopted pursuant to Article IX:2 of the WTO Agreement
are most akin to subsequent agreements within the meaning of Article
31(3)(a) of the Vienna Convention, but not waivers adopted
pursuant to Articles IX:3 and 4 of the WTO Agreement.
… In our view, the term “application” in Article 31(3)(a)
relates to the situation where an agreement specifies how existing rules
or obligations in force are to be “applied”; the term does not
connote the creation of new or the extension of existing obligations
that are subject to a temporal limitation and are to expire. We find the
Panel’s conclusion that the Doha Article I Waiver extended the
duration of the tariff quota concession beyond 31 December 2002, and
thereby modified or changed the content of the European Communities’
Schedule, difficult to reconcile with its conclusion that the Waiver
should be considered an agreement on the application of existing
commitments contained in that Schedule. As such, we do not consider that
the Doha Article I Waiver could be regarded as an agreement on the
application of the tariff quota concession in the European Communities’
Schedule within the meaning of Article 31(3)(a) of the Vienna
Convention.
I.3.10 Supplementary means of interpretation — Article 32 of the
Vienna Convention back to top
I.3.10.1 Japan — Alcoholic Beverages II, p. 10, DSR 1996:I, p.
97 at 104
(WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R)
… There can be no doubt that Article 32 of the Vienna
Convention, dealing with the role of supplementary means of
interpretation, has also attained the same status [of a rule of
customary international law].
I.3.10.2 EC — Computer Equipment, para. 86
(WT/DS62/AB/R,
WT/DS67/AB/R,
WT/DS68/AB/R)
The application of these rules in Article 31 of the Vienna
Convention will usually allow a treaty interpreter to establish the
meaning of a term. However, if after applying Article 31 the meaning of
the term remains ambiguous or obscure, or leads to a result which is
manifestly absurd or unreasonable, Article 32 allows a treaty
interpreter to have recourse to:
… supplementary means of
interpretation, including the preparatory work of the treaty and the
circumstances of its conclusion.
With regard to “the circumstances of [the] conclusion” of a
treaty, this permits, in appropriate cases, the examination of the
historical background against which the treaty was negotiated.
I.3.10.3 EC — Computer Equipment, para. 92
(WT/DS62/AB/R,
WT/DS67/AB/R,
WT/DS68/AB/R)
… In the light of our observations on “the circumstances of
[the] conclusion” of a treaty as a supplementary means of
interpretation under Article 32 of the Vienna Convention, we
consider that the classification practice in the European Communities
during the Uruguay Round is part of “the circumstances of [the]
conclusion” of the WTO Agreement and may be used as a
supplementary means of interpretation within the meaning of Article 32
of the Vienna Convention. …
I.3.10.4 EC — Computer Equipment, para. 93
(WT/DS62/AB/R,
WT/DS67/AB/R,
WT/DS68/AB/R)
… The purpose of treaty interpretation is to establish the common
intention of the parties to the treaty. To establish this intention,
the prior practice of only one of the parties may be relevant,
but it is clearly of more limited value than the practice of all
parties. In the specific case of the interpretation of a tariff
concession in a Schedule, the classification practice of the importing
Member, in fact, may be of great importance. However, the Panel was
mistaken in finding that the classification practice of the United
States was not relevant.
I.3.10.5 China — Publications and Audiovisual Products, para.
405
(WT/DS363/AB/R)
We further note that the purpose of treaty interpretation under
Articles 31 and 32 of the Vienna Convention is to ascertain the
“common intention” of the parties, not China’s intention alone. We
recall that, in this respect, in US — Gambling, the Appellate
Body found that “the task of ascertaining the meaning of a concession
in a Schedule, like the task of interpreting any other treaty text,
involves identifying the common intention of Members”. The
circumstances of the conclusion of the treaty may thus be relevant to
this “common intention”.
I.3.10.6 EC — Computer Equipment, para. 95
(WT/DS62/AB/R,
WT/DS67/AB/R,
WT/DS68/AB/R)
… Consistent prior classification practice may often be
significant. Inconsistent classification practice, however, cannot be
relevant in interpreting the meaning of a tariff concession. …
I.3.10.7 EC — Poultry,
para. 83
(WT/DS69/AB/R)
… the Oilseeds Agreement may serve as a supplementary means of
interpretation of Schedule LXXX pursuant to Article 32 of the Vienna
Convention, as it is part of the historical background of the
concessions of the European Communities for frozen poultry meat.
I.3.10.8 India — Quantitative Restrictions, para. 94
(WT/DS90/AB/R)
We note India’s arguments relating to the negotiating history of
the BOP Understanding. However, in the absence of a record of the
negotiations on footnote 1 to the BOP Understanding, we find it
difficult to give weight to these arguments. We do not exclude that
footnote 1 to the BOP Understanding was “heavily negotiated”,
and that it tries to accommodate opposing views held by different
parties to the negotiations on the BOP Understanding. We are
convinced, however, that the second sentence of footnote 1 does not
accord with the position held by India. To interpret the sentence as
proposed by India would require us to read into the text words which are simply not there. Neither a panel nor the
Appellate Body is allowed to do so.
I.3.10.9 Canada — Dairy, para. 138
(WT/DS103/AB/R,
WT/DS113/AB/R, WT/DS103/AB/R/Corr.1,
WT/DS113/AB/R/Corr.1)
In our view, the language in the notation in Canada’s Schedule is not
clear on its face. Indeed, the language is general and ambiguous,
and, therefore, requires special care on the part of the treaty
interpreter. For this reason, it is appropriate, indeed necessary, in
this case, to turn to “supplementary means of interpretation”
pursuant to Article 32 of the Vienna Convention. …
I.3.10.10 US — Carbon Steel,
paras. 77-78 and footnote 76
(WT/DS213/AB/R,
WT/DS213/AB/R/Corr.1)
… The Panel formed [its] opinion after examining a 1987 Note
prepared by the Secretariat for the Uruguay Round Negotiating Group on
Subsidies and Countervailing Measures …
… in taking this approach, the Panel did not explain why it
thought that it was appropriate to rely on the 1987 Note, but simply
stated that “it is useful to consider the rationale for the
application of a de minimis standard to investigations, as reflected in
a Note by the Secretariat prepared in April 1987”.76… Even if it
were appropriate to rely on the 1987 Note in interpreting the SCM
Agreement in accordance with the rules of interpretation set forth
in the Vienna Convention, selective reliance on such a document
does not provide a proper basis for the conclusion reached by the Panel
in this regard.
I.3.10.11 US — Carbon Steel,
paras. 89-90
(WT/DS213/AB/R,
WT/DS213/AB/R/Corr.1)
… we do not consider it strictly necessary to have recourse to
the supplementary means of interpretation identified in Article 32 of
the Vienna Convention.
In any event, we consider that recourse to the negotiating history of
the SCM Agreement tends to confirm our view as to the meaning of
Article 21.3. We note that the two issues, namely the application of a
specific de minimis standard in investigations, and the
introduction of a time-bound limitation on the maintenance of
countervailing duties, were considered to be highly important and were
the subject of protracted negotiations. Specific provisions dealing with
each of these two issues were viewed as necessary to improve the
existing disciplines of the GATT and of the Tokyo Round Subsidies Code.
The final texts of Article 11.9 and of Article 21.3 were the result of a carefully negotiated compromise
that drew from a number of different proposals, reflecting divergent
interests and views. We further note in this respect that none of the
participants in this appeal pointed to any document indicating that the
inclusion of a de minimis threshold was ever considered in the
negotiations on sunset review provisions leading to the text of Article
21.3.
I.3.10.12 US — Upland Cotton, para. 623
(WT/DS267/AB/R)
We agree with the Panel that the meaning of Article 10.2 is clear
from the provision’s text, in its context and in the light of the
object and purpose of the Agreement on Agriculture, consistent
with Article 31 of the Vienna Convention. The Panel did not think
it necessary to resort to negotiating history for purposes of its
interpretation of Article 10.2. Even if the negotiating history were
relevant for our inquiry, we do not find that it supports the United
States’ position. This is because it does not indicate that the
negotiators did not intend to discipline export credit guarantees,
export credits and insurance programmes at all. …
I.3.10.13 US — Gambling, para. 160
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)
In the context of the GATS, Article XX:3 explicitly provides that
Members’ Schedules are an “integral part” of that agreement. Here,
too, the task of identifying the meaning of a concession in a GATS
Schedule, like the task of interpreting any other treaty text, involves
identifying the common intention of Members. … we
consider that the meaning of the United States’ GATS Schedule must be
determined according to the rules codified in Article 31 and, to the
extent appropriate, Article 32 of the Vienna Convention.
I.3.10.14 US — Gambling,
paras. 196-197
(WT/DS285/AB/R, WT/DS285/AB/R/Corr.1)
… this appeal does not raise the question whether W/120
and the 1993 Scheduling Guidelines constitute “supplementary means of
interpretation, including the preparatory work of the treaty and the
circumstances of its conclusion”. Both participants agree that they
do, and we see no reason to disagree.
… a proper interpretation pursuant to the principles codified in
Article 31 of the Vienna Convention does not yield a clear
meaning as to the scope of the commitment made by the United States in
the entry “Other recreational services (except sporting)”.
Accordingly, it is appropriate to have recourse to the supplemental
means of interpretation identified in Article 32 of the Vienna
Convention. These means include W/120, the 1993 Scheduling
Guidelines, and a cover note attached to drafts of the United States’
Schedule.
I.3.10.15 US — Gambling, paras. 203-204
(WT/DS285/AB/R,
WT/DS285/AB/R/Corr.1)
The Scheduling Guidelines thus underline the importance of using a
common format and terminology in scheduling, and express a clear
preference for parties to use W/120 and the CPC classifications in their
Schedules. At the same time, the Guidelines make clear that parties
wanting to use their own subsectoral classification or definitions —
that is, to disaggregate in a way that diverges from W/120 and/or the
CPC — were to do so in a “sufficiently detailed” way “to avoid
any ambiguity as to the scope of the commitment”. The example given in
the Scheduling Guidelines illustrates how to make a positive commitment
with respect to a discrete service that is more disaggregated than a
service subsector identified in W/120. It is reasonable to assume that
the parties to the negotiations expected the same technique to be
applied to exclude a discrete service from the scope of a
commitment, when the commitment is made in a subsector identified in
W/120 and the excluded service is more disaggregated than that subsector.
In our view, the requisite clarity as to the scope of a commitment
could not have been achieved through mere omission of CPC codes,
particularly where a specific sector of a Member’s Schedule, such as
sector 10 of the United States’ Schedule, follows the structure of
W/120 in all other respects, and adopts precisely the same
terminology as used in W/120. …W/120 and the 1993 Scheduling
Guidelines were prepared and circulated … for the express purpose of
assisting those parties in the preparation of their offers. These
documents undoubtedly served, too, to assist parties in reviewing and
evaluating the offers made by others. They provided a common language
and structure which, although not obligatory, was widely used and relied
upon. In such circumstances, and in the light of the specific guidance
provided in the 1993 Scheduling Guidelines, it is reasonable to assume
that parties to the negotiations examining a sector of a Schedule that
tracked so closely the language of the same sector in W/120 would — absent a clear indication to the contrary — have expected the sector
to have the same coverage as the corresponding W/120 sector. This is
another way of stating that, as the Panel observed, “unless otherwise
indicated in the Schedule, Members were assumed to have relied on W/120
and the corresponding CPC references”.
I.3.10.16 US — Gambling, paras. 205-206
(WT/DS285/AB/R,
WT/DS285/AB/R/Corr.1)
Accordingly, the above excerpt from the 1993 Scheduling Guidelines,
together with the linguistic similarities between the two subsectors,
provide strong support for interpreting subsector 10.D of the United
States’ Schedule as corresponding to subsector 10.D of W/120,
notwithstanding the absence of CPC codes in the United States’
Schedule. …
… another element of the preparatory work of the GATS suggests
that the United States itself understood the Scheduling Guidelines in
this way and sought to comply with them in the drafting of its GATS
Schedule. Several drafts of the United States’ Schedule included [a]
cover note [which confirms] …
I.3.10.17 US — Gambling, para. 211
(WT/DS285/AB/R,
WT/DS285/AB/R/Corr.1)
The Panel did not explain clearly how it used this document in
interpreting the United States’ Schedule. The Panel considered that,
although the USITC Document did not constitute a “binding
interpretation”, it nevertheless “has probative value as to how the
US government views the structure and the scope of the US Schedule, and,
hence, its GATS obligations”. The document was dealt with under the
heading “Other supplementary means of interpretation”. In this
context, the Panel observed that “Article 32 of the Vienna
Convention is not necessarily limited to preparatory material, but
may allow treaty interpreters to take into consideration other relevant
material”. Yet the Panel also referred to the principle of “acquiescence”
and to a commentator’s statement that “Article 31:3(b) [of the Vienna
Convention] might also apply”. Notwithstanding these ambiguities,
it is clear from the Panel’s reasoning that it used the USITC
publication to “confirm” its interpretation of subsector 10.D in the
United States’ Schedule. In other words, the Panel’s interpretation
did not depend on its treatment of the USITC document.
I.3.10.18 EC — Chicken Cuts, para. 283
(WT/DS269/AB/R, WT/DS286/AB/R,
WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
We stress … that Article 32 does not define exhaustively the
supplementary means of interpretation to which an interpreter may have
recourse. It states only that they include the preparatory work
of the treaty and the circumstances of its conclusion. Thus, an
interpreter has a certain flexibility in considering relevant
supplementary means in a given case so as to assist in ascertaining the
common intentions of the parties.
I.3.10.19 EC — Chicken Cuts, para. 289
(WT/DS269/AB/R, WT/DS286/AB/R,
WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
… we do not agree with the European Communities that a “direct
link” to the treaty text and “direct influence” on the common
intentions must be shown for an event, act, or instrument to qualify as
a “circumstance of the conclusion” of a treaty under Article 32 of
the Vienna Convention. An “event, act or instrument” may be
relevant as supplementary means of interpretation not only if it has
actually influenced a specific aspect of the treaty text in the sense of
a relationship of cause and effect; it may also qualify as a “circumstance
of the conclusion” when it helps to discern what the common intentions
of the parties were at the time of the conclusion with respect to the
treaty or specific provision. Moreover, the European Communities has
taken the Appellate Body statement out of context; the Appellate Body
was speaking of the sum or end-result of treaty interpretation; it
should not be misconstrued as introducing a concept that an act, event,
or instrument qualifies as a circumstance only when it has influenced
the intent of all the parties. Thus, not only “multilateral”
sources, but also “unilateral” acts, instruments, or statements of individual negotiating parties may be useful in ascertaining “the
reality of the situation which the parties wished to regulate by means
of the treaty” and, ultimately, for discerning the common intentions
of the parties.
I.3.10.20 EC — Chicken Cuts, paras. 290-291
(WT/DS269/AB/R, WT/DS286/AB/R,
WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
We agree with the Panel that “relevance”, as opposed to “direct
influence” or “[genuine] link”, is the “more appropriate
criterion” to judge the extent to which a particular event, act, or
other instrument should be relied upon or taken into account when
interpreting a treaty provision in the light of the “circumstances of
its conclusion”. As to how such relevance should be demonstrated, the
Panel said that “it must be shown that the event, act or other
instrument has or could have influenced the specific aspects of the
ultimate text of a treaty that are in issue”. The European Communities
submits that the relevance of a circumstance should not be ascertained
on the basis of whether it could have influenced the ultimate treaty
text but, rather, on the basis of “objective facts”.
In our view, the relevance of a circumstance for interpretation
should be determined on the basis of objective factors, and not
subjective intent. We can conceive of a number of objective factors that
may be useful in determining the degree of relevance of particular
circumstances for interpreting a specific treaty provision. These
include the type of event, document, or instrument and its legal nature;
temporal relation of the circumstance to the conclusion of the treaty;
actual knowledge or mere access to a published act or instrument;
subject matter of the document, instrument, or event in relation to the
treaty provision to be interpreted; and whether or how it was used or
influenced the negotiations of the treaty.
I.3.10.21 EC — Chicken Cuts, paras. 292-293
(WT/DS269/AB/R, WT/DS286/AB/R,
WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
As regards the temporal correlation between an event, act, or
instrument and the conclusion of the treaty …
… the precise date of conclusion of a treaty should not be
confused with the circumstances that were prevailing at that
point in time. Events, acts, and instruments may form part of the “historical
background against which the treaty was negotiated”, even when these
circumstances predate the point in time when the treaty is concluded,
but continue to influence or reflect the common intentions of the
parties at the time of conclusion. We also agree with the Panel that
there is “some correlation between the timing of an event, act or
other instrument … and their relevance to the treaty in question”,
in the sense that “the further back in time that an event, act or
other instrument took place, was enacted or was adopted relative to the
conclusion of a treaty”, the less relevant it will be for interpreting
the treaty in question. What should be considered “temporally
proximate will vary from treaty provision to treaty provision” and may
depend on the structure of the negotiating process. Accordingly, we see no error in the Panel’s
finding that the circumstances of the conclusion should be ascertained
over a period of time ending on the date of the conclusion of the WTO
Agreement.
I.3.10.22 EC — Chicken Cuts, para. 297
(WT/DS269/AB/R, WT/DS286/AB/R,
WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
We understand the Panel’s notion of “constructive knowledge” to
mean that “parties have deemed notice of a particular event, act or
instrument through publication”. We note the European Communities’
view that “deemed knowledge” on the basis of general “access” to
a publication cannot substitute the need for demonstrating a direct link
between a circumstance and the common intentions of the parties.
However, we consider that the European Communities conflates the
preliminary question of what may qualify as a “circumstance” of a
treaty’s conclusion with the separate question of ascertaining the
degree of relevance that may be ascribed to a given circumstance, for
purposes of interpretation under Article 32. As far as an act or
instrument originating from an individual party may be considered to be
a circumstance under Article 32 for ascertaining the parties’
intentions, we consider that the fact that this act or instrument was
officially published, and has been publicly available so that any
interested party could have acquired knowledge of it, appears to be
enough. Of course, proof of actual knowledge will increase the degree of
relevance of a circumstance for interpretation.
I.3.10.23 EC — Chicken Cuts, para. 300
(WT/DS269/AB/R, WT/DS286/AB/R,
WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
We agree with the Panel that, for purposes of interpreting the term
“salted” under heading 02.10 of the EC Schedule in the light of the
“circumstances of its conclusion”, the customs classification
practice in the European Communities is of great importance; however, we
share the European Communities’ view that its situation is not of
exclusive relevance, and that the “prevailing situation
internationally” is relevant. …
I.3.10.24 EC — Chicken Cuts, para. 304
(WT/DS269/AB/R, WT/DS286/AB/R,
WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
In [EC — Computer Equipment, paragraph 92], the Appellate
Body referred to customs classification practice prior to the
conclusion of a treaty. The Panel noted that practice that “does not
qualify as ‘subsequent practice’ under Article 31(3)(b) … may,
nevertheless, be taken into consideration under Article 32”. The
European Communities criticizes the Panel for considering classification
practice subsequent to the conclusion of the treaty as relevant
for purposes of interpretation under Article 32.
I.3.10.25 EC — Chicken Cuts, para. 305
(WT/DS269/AB/R, WT/DS286/AB/R,
WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
In our view, it is possible that documents published, events
occurring, or practice followed subsequent to the conclusion of
the treaty may give an indication of what were, and what were not, the
“common intentions of the parties” at the time of the
conclusion. The relevance of such documents, events or practice would
have to be determined on a case-by-case basis.
I.3.10.26 EC — Chicken Cuts, para. 309
(WT/DS269/AB/R, WT/DS286/AB/R,
WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
… the Panel asked whether a Member’s court judgments may,
in principle, be taken into account as supplementary means of
interpretation under Article 32. The Panel concluded that:
This would
suggest that a valid distinction cannot be drawn between, on the one
hand, EC legislation and, on the other hand, ECJ judgements for the
purposes of Article 32 of the Vienna Convention.
We share the Panel’s consideration that judgments of domestic
courts are not, in principle, excluded from consideration as “circumstances
of the conclusion” of a treaty if they would be of assistance in
ascertaining the common intentions of the parties for purposes of
interpretation under Article 32. It is necessary to point out, however,
that judgments deal basically with a specific dispute and have, by their
very nature, less relevance than legislative acts of general application
(although judgments may have some precedential effect in certain legal
systems).
I.3.10.27 EC — Chicken Cuts, paras. 319-321
(WT/DS269/AB/R, WT/DS286/AB/R,
WT/DS269/AB/R/Corr.1,
WT/DS286/AB/R/Corr.1)
… we believe that the temporal proximity of these dates to the
conclusion of the WTO Agreement on 15 April 1994 makes EC
Regulation 535/94 relevant as a “circumstance of conclusion” for the
interpretation of the tariff commitment under heading 02.10 of the EC
Schedule.
The European Communities submits that the final results of tariff
negotiations that took place between 1986 and 15 December 1993 cannot be
altered by a unilateral measure. We agree. However, the European
Communities acknowledges that a legislative act taken during the
verification period, prior to the formal adoption of the WTO
Agreement, could be relevant for interpreting the tariff commitment
under heading 02.10 of the EC Schedule, provided that compelling
evidence proves that negotiators “actually took note” of such act.
We do not believe that the mere fact that EC Regulation 535/94 was
enacted after the conclusion of the Uruguay Round tariff negotiations
makes it irrelevant for ascertaining what the European Communities
intended when offering its tariff concession, or for ascertaining
whether it reflects the common intentions of the parties in respect of the tariff commitment under heading 02.10
of the EC Schedule.
I.3.10.28 US — Stainless Steel (Mexico), para. 128
(WT/DS344/AB/R)
We do not consider it strictly necessary in this case to have
recourse to the supplementary means of interpretation identified in
Article 32 of the Vienna Convention because our analysis under
Article 31 has not left the meaning of the relevant provisions of the Anti-Dumping
Agreement “ambiguous or obscure”, nor has it led to a “manifestly
absurd or unreasonable” result. Nevertheless, we turn to examine the
United States’ arguments relating to the historical background of the Anti-Dumping
Agreement.
I.3.10.29 EC — Bananas III (Article 21.5 — Ecuador II) / EC
— Bananas III (Article 21.5 — US), para. 445
(WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, WT/DS27/AB/RW2/ECU/Corr.1,
WT/DS27/AB/RW/USA/Corr.1)
Regarding the Doha Article I Waiver, we concluded above that the
Panel erred in finding that the Waiver constitutes a “subsequent
agreement” within the meaning of Article 31(3)(a) of the Vienna
Convention, and that it extended the tariff quota concession beyond
31 December 2002. It could be argued, however, that the Doha Article I
Waiver could qualify as supplementary means of interpretation to confirm
the meaning of the European Communities’ Schedule of Concessions.
I.3.10.30 China — Publications and Audiovisual Products, para.
399
(WT/DS363/AB/R)
We are also persuaded that the application of the interpretative rule
set out in Article 31 of the Vienna Convention to the entry “Sound
recording distribution services” does not result in “inconclusiveness”
or ambiguity as to the ordinary meaning of China’s commitment. In this
respect, we note that the purpose of the interpretative exercise is to
narrow the range of possible meanings of the treaty term to be
interpreted, not to generate multiple meanings or to confirm the
ambiguity and inconclusiveness of treaty obligations. Rather, a treaty
interpreter is required to have recourse to context and object and
purpose to elucidate the relevant meaning of the word or term. This
logical progression provides a framework for proper interpretative
analysis, bearing in mind that treaty interpretation is an integrated
operation, where interpretative rules and principles must be understood
and applied as connected and mutually reinforcing components of a
holistic exercise.
I.3.10.31 China — Publications and Audiovisual Products, para.
400
(WT/DS363/AB/R)
Having reached a conclusion on the interpretation of China’s
commitment on “Sound recording distribution services” under Article
31 of the Vienna Convention, we observe that we would not need to proceed to an examination of
supplementary means of interpretation pursuant to Article 32 of the Vienna
Convention to decide this appeal. The Panel, however, considered
that recourse to supplementary means of interpretation was useful to
confirm its preliminary conclusion based on the application of Article
31 and proceeded to examine the preparatory work of the treaty and the
circumstances of the conclusion of the GATS pursuant to Article 32 of
the Vienna Convention. China has appealed the Panel’s
application of Article 32. We therefore address the issues raised by
China in respect of the Panel’s analysis of supplementary means of
interpretation pursuant to Article 32 of the Vienna Convention.
I.3.10.32 China — Publications and Audiovisual Products,
paras.
403-405
(WT/DS363/AB/R)
Although the Panel’s application of Article 31 of the Vienna
Convention to “Sound recording distribution services” led it to
a “preliminary conclusion” as to the meaning of that entry, the
Panel nonetheless decided to have recourse to supplementary means of
interpretation to confirm that meaning. We note, in this regard,
that China’s argument on appeal appears to assume that the Panel’s
analysis under Article 32 of the Vienna Convention would necessarily
have been different if the Panel had found that the application of
Article 31 left the meaning of “Sound recording distribution services”
ambiguous or obscure, and if the Panel had, therefore, resorted to
Article 32 to determine, rather than to confirm, the
meaning of that term. We do not share this view. The elements to be
examined under Article 32 are distinct from those to be analysed under
Article 31, but it is the same elements that are examined under Article
32 irrespective of the outcome of the Article 31 analysis. Instead, what
may differ, depending on the results of the application of Article 31,
is the weight that will be attributed to the elements analysed under
Article 32.
In the present case, we do not consider that, under Article 32 of the
Vienna Convention, the Panel was required, as China seems to
argue, to establish whether the preparatory work and the circumstances
of the treaty’s conclusion were conclusive as to whether or not
China’s commitment on “Sound recording distribution services” was
limited to the distribution of sound recordings in physical form. The
Panel had come to the “preliminary conclusion” under Article 31 of
the Vienna Convention that the ordinary meaning of “Sound
recording distribution services” extended to the distribution of both
physical and non-physical sound recordings. We do not think that the
Panel committed any error by seeking confirmation of this finding under
Article 32 of the Vienna Convention.
We further note that the purpose of treaty interpretation under
Articles 31 and 32 of the Vienna Convention is to ascertain the
“common intention” of the parties, not China’s intention alone. We
recall that, in this respect, in US — Gambling, the Appellate
Body found that “the task of ascertaining the meaning of a concession
in a Schedule, like the task of interpreting any other treaty text,
involves identifying the common intention of Members”. The
circumstances of the conclusion of the treaty may thus be relevant to
this “common intention”.
I.3.11 Multiple authentic languages — Article 33 of the Vienna
Convention back to top
I.3.11.1 Chile — Price Band System, para. 271
(WT/DS207/AB/R,
WT/DS207/AB/R/Corr.1)
… Indeed, the Panel came to this conclusion by interpreting the
French and Spanish versions of the term “ordinary customs duty” to
mean something different from the ordinary meaning of the English
version of that term. It is difficult to see how, in doing so, the Panel
took into account the rule of interpretation codified in Article 33(4)
of the Vienna Convention whereby “when a comparison of the
authentic texts discloses a difference of meaning … , the meaning
which best reconciles the texts … shall be adopted”
[emphasis added].
I.3.11.2 EC — Bed Linen (Article 21.5 — India), footnote 153
to para. 123
(WT/DS141/AB/RW)
According to Article 33.3 of the Vienna Convention on the Law of
Treaties, where treaties have been authenticated in two or more
languages, “[t]he terms of the treaty are presumed to have the same
meaning in each authentic text.” The Spanish terms (“se han cumplido”
and “hayan limitado”), in paragraphs 1 and 4 of Article 9, have the
same temporal meaning as the English terms (“have been fulfilled”
and “have limited”). The French terms (“sont remplies” and “auront
limite”) can also ´ accommodate this temporal meaning.
I.3.11.3 US — Softwood Lumber IV, para. 59 and footnote 50
(WT/DS257/AB/R)
… in accordance with the customary rule of treaty interpretation
reflected in Article 33(3) of the Vienna Convention on the Law of
Treaties (the “Vienna Convention”), the terms of a treaty
authenticated in more than one language — like the WTO Agreement —
are presumed to have the same meaning in each authentic text. It follows
that the treaty interpreter should seek the meaning that gives effect,
simultaneously, to all the terms of the treaty, as they are used in each
authentic language.50
…
I.3.11.4 EC — Tariff Preferences, para. 147
(WT/DS246/AB/R)
… In our view, the stronger, more obligatory language in both the
French and Spanish texts — that is, using “as defined in” rather
than “as described in” — lends support to our view that only
preferential tariff treatment that is “generalized, nonreciprocal and
non-discriminatory” is covered under paragraph 2(a) of the Enabling
Clause.
I.3.11.5 US — Upland Cotton, para. 424 and footnote 510
(WT/DS267/AB/R)
… We agree, however, that the Panel’s description of “price
suppression” in paragraph 7.1277 of the Panel Report reflects the
ordinary meaning of that term, particularly when read in conjunction
with the French and Spanish versions of Article 6.3(c),510
as required
by Article 33(3) of the Vienna Convention on the Law of Treaties (the
“Vienna Convention”).
I.3.12 Historical materials
back to top
I.3.12.1 US — Softwood Lumber V (Article 21.5 — Canada),
paras. 120-121
(WT/DS264/AB/RW)
… The United States points to various historical materials
including, in addition to the 1960 Group of Experts Report, two pre-WTO
panel reports that dealt with the issue of zeroing and several proposals
submitted during the Uruguay Round, which allegedly demonstrate that
zeroing is not prohibited by the Anti-Dumping Agreement. The
United States adds that, throughout the history of the GATT, it was
recognized that zeroing was allowed under Article VI of the GATT 1947.
This provision, the United States emphasizes, was not modified during
the Uruguay Round.
The same historical materials submitted in these Article 21.5
proceedings were also raised by the United States before the Appellate
Body in the original dispute. The Appellate Body stated in response that
“[t]he material to which the United States refer[red] does not … resolve the issue of whether the negotiators of the Anti-Dumping
Agreement intended to prohibit zeroing.” The Appellate Body noted
that, “[i]n any event”, it had “concluded, based on the ordinary
meaning of Article 2.4.2 read in its context, that zeroing is prohibited
when establishing the existence of margins of dumping under the
weighted-average-to-weighted-average methodology.” In our view, the
historical materials referred to by the Panel and the United States are
of limited relevance. The Group of Experts Report dates back to 1960.
Both pre-WTO panel reports examined the issue under the provisions of
the Tokyo Round Anti-Dumping Code, which did not contain a
provision equivalent to Article 2.4.2 of the Anti-Dumping Agreement. The latter
Agreement entered into force in 1995, as part of the Uruguay Round
results, long after the 1960 Group of Experts Report and after the
panels referred to by the United States and the Panel had been
established. Furthermore, one of the two panel reports was not adopted.
Finally, the negotiating proposals referred to by the United States are
inconclusive and, in any event, reflected the positions of some, but not
all, of the negotiating parties. In sum, the historical materials do not
provide any additional guidance for the question whether zeroing under
the transaction-to-transaction comparison methodology is consistent with
Article 2.4.2 of the Anti-Dumping Agreement.
I.3.12.2 US — Stainless Steel (Mexico),
paras. 129-132
(WT/DS344/AB/R)
The United States argues that recourse to the circumstances of the
conclusion of the Anti-Dumping Agreement is appropriate in this
case as a supplementary means of interpretation under Article 32 of the Vienna
Convention. The United States refers to various historical
materials, including the 1960 Group of Experts Report, two pre-WTO panel
reports that dealt with the issue of zeroing in the context of the Tokyo
Round Anti-Dumping Code, and several proposals submitted during the
Uruguay Round. According to the United States, the historical materials
demonstrate that the negotiators were not able to agree on a general
prohibition of zeroing or on a requirement to aggregate individual
transactions under Article 9.3 of the Anti-Dumping Agreement. The
United States submits that, throughout the history of the GATT, it was
recognized that zeroing was allowed under Article VI of the GATT 1947,
and adds that this Article was not modified during the Uruguay Round. …
We are not persuaded that the aforementioned historical materials
provide guidance as to whether simple zeroing is permissible under
Article 9.3 of the Anti-Dumping Agreement. First, as we see it,
the negotiating proposals referred to by the United States reflect the
positions of only some of the negotiating parties. …
Secondly, we note that the same historical materials referenced by
the United States were examined by the Appellate Body in US — Softwood Lumber V, where the Appellate Body concluded that these
materials did not resolve the issue of whether the negotiators of the Anti-Dumping
Agreement intended to prohibit zeroing. Although the 1960 Group of
Experts Report concluded that making an injurious dumping determination
based on individual transactions was the “ideal method”, it also
regarded such method as “clearly impracticable”. This report is of
little relevance to our analysis and does not shed light on the
determination of a margin of dumping under Article 9.3 of the Anti-Dumping
Agreement. In addition, even if we were to assume that zeroing was
permitted under Article VI of the GATT 1947, Article VI of the GATT 1994
has to be interpreted now in conjunction with the relevant provisions of
the Anti-Dumping Agreement, such as Articles 2.1, 2.4, 2.4.2, and
9.3.
Thirdly, the Anti-Dumping Agreement entered into force in
1995, as part of the results of the Uruguay Round negotiations, long
after the 1960 Group of Experts Report. The Panel Reports in EC —
Audio Cassettes (unadopted) and EEC — Cotton Yarn (adopted), referred to by the United States, examined the
issue of zeroing under the provisions of the Tokyo Round Anti-Dumping
Code. The relevance of these panel reports is diminished by the fact
that the plurilateral Tokyo Round Anti-Dumping Code was legally
separate from the GATT 1947 and has, in any event, been terminated. This
Code was not incorporated into the WTO covered agreements and,
furthermore, it contained provisions that were less detailed than those
in the Anti-Dumping Agreement. In its arguments on the
permissibility of zeroing, the United States relies specifically on
Article 2.6 of the Tokyo Round Anti-Dumping Code. We note that
the corresponding provision in the Anti-Dumping Agreement,
namely, Article 2.4, has a different wording in that it contains a new
first sentence. Moreover, the Tokyo Round Anti-Dumping Code contained
no provision similar to Article 2.4.2 of the Anti-Dumping Agreement.
Therefore, whatever the legal status of zeroing under the Tokyo Round
Anti-Dumping Code, it is of little relevance for the interpretation
of differently phrased or new provisions of the Anti-Dumping
Agreement.
191. We note, in this regard, the words of the panel in US
— Section 301 Trade Act [at paragraph 7.22]:
back to text
For pragmatic reasons the
normal usage … is to start the interpretation from the ordinary
meaning of the “raw” text of the relevant treaty provisions and then
seek to construe it in its context and in the light of the treaty’s
object and purpose.
154. The interpretative principle of in dubio mitius, widely
recognized in international law as a “supplementary means of
interpretation”, has been expressed in the following terms:
back to text
“The
principle of in dubio mitius applies in interpreting treaties, in
deference to the sovereignty of states. If the meaning of a term is
ambiguous, that meaning is to be preferred which is less onerous to the
party assuming an obligation, or which interferes less with the
territorial and personal supremacy of a party, or involves less general
restrictions upon the parties.” …
76. Panel Report, para. 8.60. It is, for example, unclear to us
whether the Panel considered the Note to form part of the preparatory
work of the treaty and intended to use it as a supplementary means of
treaty interpretation within the meaning of Article 32 of the Vienna
Convention. back to text
50. See Appellate Body Report, EC — Bed Linen (Article 21.5
— India), footnote 153 to para. 123. We also note that, in discussing
the draft article that was later adopted as Article 33(3) of the Vienna
Convention, the International Law Commission observed that the “presumption
[that the terms of a treaty are intended to have the same meaning in
each authentic text] requires that every effort should be made to find a
common meaning for the texts before preferring one to another” (Yearbook
of the International Law Commission (1966), Vol. II, p. 225). With
regard to the application of customary rules of interpretation in
respect of treaties authenticated in more than one language, see also
International Court of Justice, Merits, Case Concerning Elettronica
Sicula S.p.A. (ELSI) (United States v. Italy) 1989, ICJ Reports,
para. 132, where, in interpreting a provision of the Treaty of
Friendship, Commerce and Navigation between the United States of America
and the Italian Republic of 1948, the International Court of Justice
noted that it was possible to interpret the English and Italian versions
“as meaning much the same thing”, despite a potential divergence in
scope. back to text
510. The French version states, in part, “la subvention …
a pour effet d’empêcher des hausses de prix ou de déprimer les prix
… dans une mesure notable”; the Spanish version states, in part, “la
subvención … tenga un efecto significativo de contención de la subida de los precios,
reducción de los precios” [emphasis added]. back to text
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