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The Law of Treaties Beyond the Vienna Convention$
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Enzo Cannizzaro

Print publication date: 2011

Print ISBN-13: 9780199588916

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780199588916.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 16 September 2019

Treaty Interpretation by the WTO Appellate Body: The Conundrum of Article 17(6) of the WTO Antidumping Agreement

Treaty Interpretation by the WTO Appellate Body: The Conundrum of Article 17(6) of the WTO Antidumping Agreement

Chapter:
(p.164) 10 Treaty Interpretation by the WTO Appellate Body: The Conundrum of Article 17(6) of the WTO Antidumping Agreement
Source:
The Law of Treaties Beyond the Vienna Convention
Author(s):

Donald McRae

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199588916.003.0010

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.

Keywords:   treaty interpretation, antidumping, Article 17(6)(ii), zeroing, WTO Appellate Body, Vienna Convention, Article 31

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