Pragmatic Literary Theories and WTO Treaty Interpretation

Journal of World Trade 55, no. 3 (2021): 409-432.

24 Pages Posted: 8 Jun 2021

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: June 1, 2021

Abstract

‘No connection!’ That may be the thought of conventional, old-fashioned thinking as to ‘literary theory’, on the one hand, and ‘WTO treaty interpretation’, on the other hand. In fact, the conventional wisdom as to how the World Trade Organization (WTO) Appellate Body must interpret disputed terms in a treaty is incomplete.

That orthodoxy 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 such tool is a 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 or to the purpose of the treaty in which the disputed term is located. But Articles 31–32 comprise a larger tool kit than obsessive focus on the definition of a disputed word or phrase.

In truth, those Articles allow not only for Textualist and Contextualist techniques, but also Pragmatic ones. All such techniques are rich, nuanced tools familiar in English Literary Theory. An honest, open-minded account of the tools the Appellate Body has at its disposal to make decisions should acknowledge the possibilities this tripartite taxonomy affords, rather than castigate the Appellate Body for judicial activism if it allegedly strays from strict constructionism.

Keywords: interpretation, treaty, WTO Appellate Body, pragmatic, literary, Vienna Convention, trade

Suggested Citation

Bhala, Raj and Witmer, Eric, Pragmatic Literary Theories and WTO Treaty Interpretation (June 1, 2021). Journal of World Trade 55, no. 3 (2021): 409-432., Available at SSRN: https://ssrn.com/abstract=3861832

Raj Bhala (Contact Author)

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Eric Witmer

Kansas Supreme Court ( email )

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