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Part II Interpretation of Treaties, 10 Treaty Interpretation by the WTO Appellate Body: The Conundrum of Article 17(6) of the WTO Antidumping Agreement

Donald McRae

From: The Law of Treaties Beyond the Vienna Convention

Edited By: Enzo Cannizzaro

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 10 December 2023

Treaties, interpretation — Vienna Convention on the Law of Treaties — Anti-dumping

Article 17(6)(ii) of the WTO Antidumping Agreement provides that where a panel finds that a provision of the Agreement admits of two ‘permissible’ interpretations, then it must find that a measure of a state is in conformity with the Agreement if it rests on one of those ‘permissible’ interpretations. The application of this provision by the WTO Appellate Body has led to considerable controversy. By following the approach that it must first interpret the provision of the Antidumping Agreement in question before deciding whether there are two ‘permissible’ interpretations, the Appellate Body has routinely concluded that interpretation leads to a single meaning, rather than to two ‘permissible’ interpretations of that provision. A single meaning by definition rules out the possibility of two ‘permissible’ meanings. This chapter argues that this constitutes a failure of interpretative methodology by the Appellate Body, which has the effect of voiding Article 17(6)(ii) of any content. It suggests that, the Appellate Body should see the application of Article 17(6)(ii) as requiring it first to address specifically whether two ‘permissible’ interpretations of the provision in question exist, rather than first establishing a single meaning and then asking whether there are other ‘permissible’ meanings.

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