When Popular Decisions Rest on Shaky Foundations: Implications of Selected WTO Appellate Body Jurisprudence

Julien Chaisse and Tsai-yu Lin, eds., International Economic Law and Governance: Essays in Honour of Mitsuo Matsushita (Oxford University Press 2016)

University at Buffalo School of Law Legal Studies Research Paper No. 2016-029

Victoria University of Wellington Legal Research Paper No. 114/2017

20 Pages Posted: 30 May 2016 Last revised: 5 Sep 2017

See all articles by Meredith Kolsky Lewis

Meredith Kolsky Lewis

University at Buffalo Law School; Victoria University of Wellington Law School

Date Written: May 27, 2016

Abstract

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.

Keywords: WTO, World Trade Organization, Appellate Body, trade remedies, Vienna Convention on the Law of Treaties, Article 31 VCLT, zeroing, safeguards, antidumping

JEL Classification: F01, F02, F10, F13

Suggested Citation

Lewis, Meredith Kolsky, When Popular Decisions Rest on Shaky Foundations: Implications of Selected WTO Appellate Body Jurisprudence (May 27, 2016). Julien Chaisse and Tsai-yu Lin, eds., International Economic Law and Governance: Essays in Honour of Mitsuo Matsushita (Oxford University Press 2016), University at Buffalo School of Law Legal Studies Research Paper No. 2016-029, Victoria University of Wellington Legal Research Paper No. 114/2017, Available at SSRN: https://ssrn.com/abstract=2785823 or http://dx.doi.org/10.2139/ssrn.2785823

Meredith Kolsky Lewis (Contact Author)

University at Buffalo Law School ( email )

School of Law
719 O'Brian Hall
Buffalo, NY 14260-1100
United States

Victoria University of Wellington Law School ( email )

PO Box 600
Wellington, 6140
New Zealand

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