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Treaty Interpretation by the WTO Appellate Body$
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Isabelle Van Damme

Print publication date: 2009

Print ISBN-13: 9780199562237

Published to Oxford Scholarship Online: September 2009

DOI: 10.1093/acprof:oso/9780199562237.001.0001

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The Interpretation of Silence in the WTO Covered Agreements

The Interpretation of Silence in the WTO Covered Agreements

(p.110) 4 The Interpretation of Silence in the WTO Covered Agreements
Treaty Interpretation by the WTO Appellate Body

Isabelle Van Damme

Oxford University Press

This chapter raises the question of how and when to interpret silence in the WTO covered agreements. The notion of ‘silence’ in treaty language is used as an alternative mode of thinking about so-called gaps in treaties. The chapter attempts to categorize certain types of silence in treaty language, and analyze how the Appellate Body responds to such silences. The first section briefly sketches the debate in general international law and WTO law to illustrate the unsatisfactory standard discourse. As an alternative, the notion of ‘silence’ is suggested as a more useful point of reference. The second section distinguishes between different types of silences, such as procedural and substantive silences. One of the underlying questions is whether the Appellate Body has perceived Article 3.2 DSU as a constraint in interpreting silence. It appears that this has not been the case, at least with respect to procedural silences.

Keywords:   gap-filling, judicial-law making, treaty interpretation, Lauterpacht, silence, procedural silences, substantive silences, Appellate Body

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