Humpty Dumpty and the Illusion of 'Evolutionary Interpretation' in WTO Dispute Settlement

This paper is a slightly revised and expanded version of Cook, Graham, The illusion of 'evolutionary interpretation' in WTO dispute settlement in G Abi-Saab, K Keith, G Marceau, and C Marquet (eds.), Evolutionary Interpretation and International Law (Hart Publishing, 2019)

20 Pages Posted: 22 Aug 2019

See all articles by Graham Cook

Graham Cook

Legal Affairs Division, World Trade Organization

Date Written: August 20, 2019

Abstract

This paper offers a sceptical perspective on the existence of 'evolutionary interpretation' in WTO dispute settlement. The first part distinguishes the arresting proposition that the meaning of treaty terms change over time (evolutionary interpretation) from the rather unremarkable notion that the factual circumstances to which an old rule applies necessarily change over time (evolutionary application). It then surveys WTO jurisprudence that the prism of that distinction. It seeks to show that there is to date no instance of the Appellate Body or a panel adopting an evolutionary interpretation, in the sense of rejecting the original meaning of the terms at issue, but that there are many examples of WTO panels and the Appellate Body accepting the evolutionary application of provisions to adapt to changing factual circumstances.

Keywords: WTO, dispute settlement, treaty interpretation, evolutionary interpretation

JEL Classification: K33

Suggested Citation

Cook, Graham, Humpty Dumpty and the Illusion of 'Evolutionary Interpretation' in WTO Dispute Settlement (August 20, 2019). This paper is a slightly revised and expanded version of Cook, Graham, The illusion of 'evolutionary interpretation' in WTO dispute settlement in G Abi-Saab, K Keith, G Marceau, and C Marquet (eds.), Evolutionary Interpretation and International Law (Hart Publishing, 2019). Available at SSRN: https://ssrn.com/abstract=3440170

Graham Cook (Contact Author)

Legal Affairs Division, World Trade Organization ( email )

Rue de Lausanne 154
Geneva 21, CH-1211
Switzerland

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