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Interpreting Interpretation: Textual, Contextual, and Pragmatic Interpretative Methods fo International Trade Law
Bhala, Raj Witmer, Eric
Bhala, Raj
Witmer, Eric
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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.
Description
Date
2020-03
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Publisher
Connecticut Journal of International Law, Vol. 35, No. 2, 2020
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Keywords
Word Trade Organization, WTO, International, Appellate body, Vienna Convention, Law of Treaties, Textualism, Contextualism, Pragmatism, International trade, Treaty, Interpretation
Citation
Raj Bhala and Eric Witmer, Interpreting Interpretation: Textual, Contextual, and Pragmatic Interpretative Methods fo International Trade Law (March 2020). Connecticut Journal of International Law, Vol. 35, No. 2, 2020. Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3570665