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
Date Written: August 20, 2019
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: Suggested Citation