Sticking to the Text: The Recurring Theme of Formalism In
American and WTO Appellate Body Jurisprudence
Posted: 23 Mar 2011
Date Written: March 17, 2010
The World Trade Organization (“WTO”) oversees the dispute resolution process regarding the General Agreement on Tariffs and Trade (“GATT”) and subsequent multilateral agreements entered into under WTO sponsorship. The basic purpose of the GATT/WTO regime is to induce member nations to become more transparent and reduce non-tariff barriers to trade. Because trade policy in a given domestic country is heavily influenced by domestic special interests, international trade law has developed with a central focus on removing impediments to protectionism in order to effectuate a more liberalized approach to free trade. Despite these and other lofty goals, trade liberalization has become increasingly difficult to sustain in the political sphere, especially given the lackluster and “slow-going” Doha Round negotiations. While liberalization through negotiation has become more difficult in the last decade, liberalization (of a different quality, to be sure) has gotten easier through the litigation path.
Although widely hailed as a remarkably effective adjudicative body on an international scale, the Dispute Settlement Body (DSB) of the WTO has not been without its critics. Some commentators have extensively criticized what they perceive as widespread and unrestrained judicial activism on the part of the Appellate Body (AB). Other criticisms are less politically charged. One particularly salient issue causing much concern among academics and practitioners alike is the extent to which international trade dispute resolutions have taken on an intensive “legalization” dimension. Understanding the role of WTO dispute settlement as providing an avenue for Members who feel their rights have been violated is certainly a good thing. But a regime that is concerned with redress for those who claim that their rights have been infringed is different in focus from the present system whose main concern is to provide consequences for those who do not comply with its rules. For many scholars who look at WTO dispute settlement, particularly economists, the legal system in place is pejoratively characterized as a “sanctioning system” with legalese riddled all over it. Accordingly, the resolution of disputes is viewed with an eye toward judicial adjudication, as opposed to political diplomacy or negotiation. In place of what was previously described as the “GATT pragmatism” thus emerges a “rule-based system”.
This rule-based system developed by the WTO has spawned a particularly stringent form of textual interpretation to triumph as the singular analytical framework used by the Panel and AB. As the AB has explained, “the basic principle of interpretation that the words of a treaty [must] be given their ordinary meaning” requires the WTO to “take adequate account of the words actually used in the treaty.” In the view of the AB, “[a] treaty interpreter must begin with, and focus upon, the text of the particular provision to be interpreted. It is in the words constituting that provision, read in their context, that the object and purpose of the states parties to the treaty must first be sought.” Associated with the rule-based system at the WTO is the dominance of panelists on both the Panel and the AB originating often from an exclusive legal education background. Legal reasoning at both bodies has often consisted of lengthy, tedious and painstakingly thorough opinions released often numbering hundreds of pages at times, accompanied with plentiful legalese.
In the following essay, I compare the textualist emphasis in American and WTO jurisprudence. I argue that U.S. courts-both State and Federal- often employ textualist devices divorced from other interpretative tools (such as legislative history), and equally so, the AB. Moreover, the AB has also been notorious for its unwillingness to situate its legal analysis within a framework which firmly articulates both the normative and policy considerations and consequences of its decisions. I propose that the AB doctrinally require when engaging in interpretation to consider “design, architecture and revealing structure” of the treaty provision at issue in order to better discern its object and purpose. Stated in another way, this approach would emphasize the need for a holistic approach to treaty interpretation and thus be in greater accordance with the framework.
Keywords: International Trade Law, WTO, Appellate Body (AB), AB, World Trade Organization, International Economic Law, Formalism, Textualism, Steven Winter, Justice Scalia, Dictionary, Jurisprudence, Law, Legalism, Comparative
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