Silence for “Silence”?—Reflections on the Interpretation of GATT III:8(a) in DS583
- 1 Zhongnan University of Economics and Law, Wuhan, China
Abstract
DS583, as the first arbitration with appealing nature under the WTO system, with no doubt made a huge step in seeking for the alternative method during the paralysis of Appellate body. Nevertheless, it never means the award is impeccable especially for treaty interpretation. The most controversial issue the tribunal confronted but failed to offer a convincing analysis is the entity of the purchase, which is silent in the treaty. Against this background, the article firstly revealed the deficiencies concerning treaty interpretation, including the vague application of VCLT and over-simplified deduction. The crux is how to interpret “silence” appropriately. The article suggests it is necessary to make reference to previous cases of WTO and extract the common methodology and technique to assist the interpretation. In this vein, to make some complement and correction, the article re-interprets the purview of the entities of “products purchased” and finally provides some suggestions for both DSB and disputing parties under Article 25 arbitration.
- Agreed Procedures for Arbitration under Article 25 of the DSU (2022). WT/DS583/10, 25 March 2022.
- Argentina—Safeguard Measures on Imports of Footwear (1999). WT/DS121/AB/R, Report of the Appellate Body, 14 December 1999.
- Asif (2015). Interpreting WTO Agreements: Problems and Perspectives. Cambridge University Press.
- Canada—Certain Measures Affecting the Automotive Industry (2000). Appellate Body Report, WT/DS139/AB/R, 31 May 2000.
- Canada—Certain Measures Affecting the Renewable Energy Generation Sector (2013). Report of the Appellate Body, WT/DS412/AB/R, 6 May 2013.
- European Communities—Customs Classification of Frozen Boneless Chicken Cuts (2005). Report of the Appellate Body, WT/DS269/AB/R, 12 September 2005.
- European Communities—Measures Concerning Meat and Meat Products (Hormones) (1998). WT/DS26/AB/R, Report of the Appellate Body, 16 January 1998.
- Gabrielle (2022). Silence in WTO. Journal of World Trade, 56, 187-214.
- International Economic Law and Policy Blog, 2022. https://ielp.worldtradelaw.net/2022/09/do-appeals-have-to-go-into-the-void.html
- Isabelle (2008). Treaty Interpretation by the WTO Appellate Body. Oxford University Press.
- Isabelle (2010). Treaty Interpretation by the WTO Appellate Body. The European Journal of International Law, 21, 605-648.
- Japan—Taxes on Alcoholic Beverages (1996). WT/DS8/AB/R, Report of the Appellate Body, 4 October 1996.
- Julia (2022). Turkey-Pharmaceuticals: The First WTO Arbitration for Appellate Review. Legal Issues of Economic Integration, 49, 415-430.
- Korea—Definitive Safeguard Measure on Imports of Certain Dairy Products (1999). WT/DS98/AB/R, 14 December 1999.
- Mexico—Measures Affecting Telecommunications Services (2004). WT/DS204/R, Report of the Panel, 2 April 2004.
- Richard (2015). Treaty Interpretation. Oxford University Press.
- Statement of the United States at the Meeting of the WTO Dispute Settlement Body (2022). Geneva, 29 Aug. 2022.
- Turkey—Certain Measures Concerning the Production, Importation and Marketing of Pharmaceutical Products (2022). Panel Report, WT/DS583/12, 28 April 2022.