When Popular Decisions Rest on Shaky Foundations: Systemic Implications of Selected WTO Appellate Body Trade Remedies Jurisprudence
Published as Chapter 9 in International Economic Law and Governance: Essays in Honour of Mitsuo Matsushita, Julien Chaisse & Tsai-yu Lin, eds.
This chapter argues that the WTO Appellate Body has not been consistent in applying Article 31 of the VCLT and considering the context of the relevant treaty text in light of its object and purpose. It has instead either been overly mechanistic in its textual interpretation or has strayed from the text, sometimes with the appearance of preferring an outcome-based result. Part I of the chapter discusses the appropriate role context should play in interpreting the WTO agreements. Parts II through IV critique aspects of the Appellate Body’s jurisprudence in the zeroing cases; the 1916 Act dispute; and the early safeguards cases, as generating interpretive difficulties by failing to give enough attention to real-world context and object and purpose. Part V explores possible reasons for these departures by the Appellate Body from a contextualised textual analysis, and identify some systemic implications of these decisions.
Oxford University Press
WTO, World Trade Organization, Appellate Body, trade remedies, Vienna Convention on the Law of Treaties, Article 31 VCLT, zeroing, safeguards, antidumping
International Trade Law | Law
Meredith Kolsky Lewis, When Popular Decisions Rest on Shaky Foundations: Systemic Implications of Selected WTO Appellate Body Trade Remedies Jurisprudence, in International Economic Law and Governance: Essays in Honour of Mitsuo Matsushita 113 (Julien Chaisse & Tsai-yu Lin, eds., Oxford University Press 2016).