WTO Dispute Settlement Mechanism(7)/刘成伟(41)
With respect to legal analysis, as noted above, Art. 17.6(ii) provides first that the relevant provisions shall be in accordance the customary rules of interpretation of public law, and differs nothing from the general guideline for interpretation of the covered agreements under the WTO; and therefore we will not give unnecessary details as to this generally applied guidance in this section. However, what attracts our observation here is the controversy and doubt caused by Art. 17.6(ii) which then provides that if the panel finds that the relevant provisions admits of more than one permissible interpretation, the authority’s actions must rest upon one of the “permissible interpretations” to be in conformity.
Interestingly, however, it is not clear in light of the Vienna Convention whether or how a panel could ever reach the conclusion that provisions of an agreement admit of more than one interpretation. This is true because the Vienna Convention provides a set of rules for interpretation of treaties, aimed at resolving ambiguities in the text. Arts. 31 and 32 of the Vienna Convention are particularly relevant here. Art. 31, “General rule of interpretation”, provides a set of rules guiding the interpretation of the text of treaty. Art. 32, “Supplementary means of interpretation”, provides additional guidelines for any case n which application of the rules in Art. 31 still leaves the meaning of a provision “ambiguous or obscure”, or when they render a provision “manifestly absurd or unreasonable”. Art. 32 suggests, in other words, that the application of Art. 31 should in many cases resolve ambiguities, and that where the application of Art. 31 does not resolve ambiguities, Art. 32’s own rule “recourse … to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion” will resolve any lingering ambiguities.
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