Interpreting Interpretation: Textual, Contextual, and Pragmatic Interpretative Methods for International Trade Law

70 Pages Posted: 4 May 2020 Last revised: 14 May 2020

See all articles by Raj Bhala

Raj Bhala

University of Kansas - School of Law; Dentons U.S. LLP; Bloomberg Quint (India)

Eric Witmer

Kansas Supreme Court

Date Written: March 1, 2020

Abstract

The conventional wisdom as to how the World Trade Organization (WTO) Appellate Body must interpret disputed terms in a treaty is incomplete, and even potentially misleading. The conventional wisdom says the Appellate Body is restricted to the tools provided by Articles 31-32 of the 1969 Vienna Convention on the Law of Treaties. The key tool is a mechanical, lexicographic hammer, namely, finding the plain meaning of a word or phrase at issue in a case between two WTO Members, with occasional recourse to surrounding passages, and if pressed, to the purpose of the treaty in which the disputed term is located. But those Articles amount to a larger tool kit than the conventional wisdom recognizes.

In truth, those Articles allow for three wide categories of techniques, Textualist, Contextualist, and Pragmatic, for interpretation. These techniques are rich, nuanced tools familiar in American Jurisprudence and English Literary Theory. A complete and transparent account of the tools the Appellate Body has at its disposal to make decisions should acknowledge this tripartite taxonomy, and thereby appreciate the intra- and inter-disciplinary nature of international trade treaty interpretation that, at least in theory, is possible.

Keywords: Word Trade Organization, WTO, international, appellate body, Vienna Convention, Law of Treaties, Textualism, Contextualism, Pragmatism, international trade, treaty, interpretation

Suggested Citation

Bhala, Raj and Witmer, Eric, Interpreting Interpretation: Textual, Contextual, and Pragmatic Interpretative Methods for International Trade Law (March 1, 2020). Connecticut Journal of International Law, Vol. 35, No. 2, 2020, Available at SSRN: https://ssrn.com/abstract=3570665

Raj Bhala (Contact Author)

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Eric Witmer

Kansas Supreme Court ( email )

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