WTO Dispute Settlement Mechanism(5)
ckground against which the treaty was negotiated.”
In sum, the legitimate expectations of the parties to a treaty are reflected in the language of the treaty itself. The duty of a treaty interpreter is to examine the words of the treaty to determine the intentions of the parties. This should be done in accordance with the principles of treaty interpretation set out in Art. 31 of the Vienna Convention. But these principles of interpretation neither require nor condone the imputation into a treaty of words that are not there or the importation into a treaty of concepts that were not intended. As general principles of interpretation, the words of the treaty form the foundation for the interpretive process: “interpretation must be based above all upon the text of the treaty”. In consistence with such guidelines for interpretation as well as established GATT/WTO practice, both panels and the Appellate Body should not create their own interpretative principles isolating from the rules of treaty interpretation set out in the Vienna Convention, and must not add to or diminish rights and obligations provided in the WTO Agreement.
In a word, the application of these rules in Art. 31 of the Vienna Convention will usually allow a treaty interpreter to establish the meaning of a term, even if after applying Art. 31 the meaning of the term remains ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable, Art. 32 allows a treaty interpreter to have recourse to “supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion”.
【NOTE】:
1. See, WT/DS152/R/7.22.
2. See, WT/DS139/R; WT/DS142/R/10.12.
3. See, e.g., WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R/86; WT/DS176/R/8.16; WT/DS192/R/7.20.
4. See, in detail, WT/DS8/R; WT/DS10/R; WT/DS11/R/6.7; 6.9.
5. See, WT/DS34/R/9.92-9.95.
6. See, WT/DS8/R; WT/DS10/R; WT/DS11/R/9.96.
7. See, WT/DS8/AB/R; WT/DS10/AB/R; WT/DS11/AB/R/D.
8. See, WT/DS50/AB/R/36-41; 44-47.
9. See, WT/DS62/AB/R; WT/DS67/AB/R; WT/DS68/AB/R/80; 82-84; 86.
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In sum, the legitimate expectations of the parties to a treaty are reflected in the language of the treaty itself. The duty of a treaty interpreter is to examine the words of the treaty to determine the intentions of the parties. This should be done in accordance with the principles of treaty interpretation set out in Art. 31 of the Vienna Convention. But these principles of interpretation neither require nor condone the imputation into a treaty of words that are not there or the importation into a treaty of concepts that were not intended. As general principles of interpretation, the words of the treaty form the foundation for the interpretive process: “interpretation must be based above all upon the text of the treaty”. In consistence with such guidelines for interpretation as well as established GATT/WTO practice, both panels and the Appellate Body should not create their own interpretative principles isolating from the rules of treaty interpretation set out in the Vienna Convention, and must not add to or diminish rights and obligations provided in the WTO Agreement.
In a word, the application of these rules in Art. 31 of the Vienna Convention will usually allow a treaty interpreter to establish the meaning of a term, even if after applying Art. 31 the meaning of the term remains ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable, Art. 32 allows a treaty interpreter to have recourse to “supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion”.
【NOTE】:
1. See, WT/DS152/R/7.22.
2. See, WT/DS139/R; WT/DS142/R/10.12.
3. See, e.g., WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R/86; WT/DS176/R/8.16; WT/DS192/R/7.20.
4. See, in detail, WT/DS8/R; WT/DS10/R; WT/DS11/R/6.7; 6.9.
5. See, WT/DS34/R/9.92-9.95.
6. See, WT/DS8/R; WT/DS10/R; WT/DS11/R/9.96.
7. See, WT/DS8/AB/R; WT/DS10/AB/R; WT/DS11/AB/R/D.
8. See, WT/DS50/AB/R/36-41; 44-47.
9. See, WT/DS62/AB/R; WT/DS67/AB/R; WT/DS68/AB/R/80; 82-84; 86.
《WTO Dispute Settlement Mechanism(5)(第9页)》
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