Contextualism in WTO Case Law on Mineral Export Restrictions Puzzles and Implications

15 ASIAN JOURNAL OF WTO & INTERNATIONAL HEALTH LAW AND POLICY, 2020, pp. 503 - 538.

39 Pages Posted: 4 Dec 2020 Last revised: 5 Dec 2020

See all articles by Bingwan Xiong

Bingwan Xiong

Renmin University of China - School of Economics

Paolo Davide Farah

West Virginia University (WV, USA); gLAWcal - Global Law Initiatives for Sustainable Development (United Kingdom)

Date Written: September 26, 2020

Abstract

Against the dysfunctional crisis of the World Trade Organization (hereinafter ”WTO”) Appellate Body, this article aims to reflect upon the puzzles arising from the techniques that the WTO Dispute Settlement Body (hereinafter “DSB”) has employed to interpret WTO law: contextual interpretation in particular and formalistic interpretative approach in general. We argue that the conventional notions of “contextual interpretation”, “objective analytic methodology” and “stability and predictability”, which frequently recur in the recent discourse on the interpretation of WTO agreements, are too much of an illusion. Several recent Panel Reports and Appellate Body Reports have demonstrated that contextualism, alongside many other formalistic interpretive techniques, is far less objective and predictable than assumed. Rather, context, like many other formal factors, is itself a notion of numerous versions, but it is difficult to establish a superior rule governing the very process of selecting and construing contextual references. WTO adjudicators need to apply its textually based approach in a new manner to deliver legitimate and satisfactory settlements for WTO members. Meanwhile, the legislative body needs to find a way to strike a more delicate power balance between adjudicative control and political management, and redefine the role that the DSB can play in facilitating the functioning of the WTO system.

Keywords: contextualism, formalistic interpretation, WTO case law, mineral export restrictions

JEL Classification: Q40, Q48, Q50, Q56, Q58, Q34, Q37, Q32, Q23, Q24, Q25, Q27, K33, K32, Q17, Q18

Suggested Citation

Xiong, Bingwan and Farah, Paolo Davide, Contextualism in WTO Case Law on Mineral Export Restrictions Puzzles and Implications (September 26, 2020). 15 ASIAN JOURNAL OF WTO & INTERNATIONAL HEALTH LAW AND POLICY, 2020, pp. 503 - 538. , Available at SSRN: https://ssrn.com/abstract=3732233

Bingwan Xiong (Contact Author)

Renmin University of China - School of Economics ( email )

No. 59, Zhongguancun Street
Beijing, Beijing 100080
China

Paolo Davide Farah

West Virginia University (WV, USA) ( email )

325 Willey Street
Morgantown, WV 26506
United States

HOME PAGE: http://paolofarah.wordpress.com

gLAWcal - Global Law Initiatives for Sustainable Development (United Kingdom) ( email )

United Kingdom

HOME PAGE: http://www.glawcal.org.uk/

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