Topics handled by WTO committees and agreements
Issues covered by the WTO’s committees and agreements

REPERTORY OF APPELLATE BODY REPORTS

WTO Agreement


ON THIS PAGE:

> Preamble
> Article IX — Decision-making. See also Interpretation — Subsequent agreement (I.3.9A); Waivers (W.1)
> Article XVI:1 — Relevance to GATT 1947 decisions, procedures and customary practices
> Article XVI:4 — WTO-conformity of laws, regulations and administrative procedures. See also Anti-Dumping Agreement, Article 18.4 — Obligation to ensure WTO-conformity of domestic anti-dumping laws, regulations and procedures (A.3.62); Temporal Application of Rights and Obligations (T.5)

W.4.1 Preamble     back to top

W.4.1.1 EC — Tariff Preferences, para. 161
(WT/DS246/AB/R)
 

… the Preamble to the WTO Agreement, which informs all the covered agreements including the GATT 1994 (and, hence, the Enabling Clause), explicitly recognizes the “need for positive efforts designed to ensure that developing countries, and especially the least developed among them, secure a share in the growth in international trade commensurate with the needs of their economic development”. The word “commensurate” in this phrase appears to leave open the possibility that developing countries may have different needs according to their levels of development and particular circumstances. The Preamble to the WTO Agreement further recognizes that Members’ “respective needs and concerns at different levels of economic development” may vary according to the different stages of development of different Members.
 

W.4.1A Article IX — Decision-making. See also Interpretation — Subsequent agreement (I.3.9A); Waivers (W.1)     back to top

W.4.1A.1 US — Stainless Steel (Mexico), para. 158 and Footnote 308
(WT/DS344/AB/R)
 

It is well settled that Appellate Body reports are not binding, except with respect to resolving the particular dispute between the parties.308 This, however, does not mean that subsequent panels are free to disregard the legal interpretations and the ratio decidendi contained in previous Appellate Body reports that have been adopted by the DSB. …
 

W.4.1A.2 US — Clove Cigarettes, para. 249
(WT/DS406/AB/R)
 

In EC — Bananas III (Article 21.5 — Ecuador II) / EC — Bananas III (Article 21.5 — US), the Appellate Body opined that multilateral interpretations adopted pursuant to Article IX:2 of the WTO Agreement are “meant to clarify the meaning of existing obligations, not to modify their content”. Article IX:2 establishes that a decision to adopt a multilateral interpretation can only be taken by Members sitting in the form of the Ministerial Conference or the General Council, and that such decisions must be taken by a three-fourths majority of Members. With regard to decisions adopting multilateral interpretations of a Multilateral Trade Agreement contained in Annex 1 to the WTO Agreement, Article IX:2 requires the Ministerial Conference or the General Council to exercise its authority on the basis of a recommendation by the Council overseeing the functioning of that Agreement. Thus, while Article IX:2 confers upon the Ministerial Conference and the General Council the exclusive authority to adopt multilateral interpretations of the WTO Agreement, the exercise of this authority is situated within defined parameters established by Article IX:2.
 

W.4.1A.3 US — Clove Cigarettes, para. 250
(WT/DS406/AB/R)
 

Multilateral interpretations adopted pursuant to Article IX:2 of the WTO Agreement have a pervasive legal effect. Such interpretations are binding on all Members. As we see it, the broad legal effect of these interpretations is precisely the reason why Article IX:2 subjects the adoption of such interpretations to clearly articulated and strict decision-making procedures.
 

W.4.1A.4 US — Clove Cigarettes, para. 251
(WT/DS406/AB/R)
 

… Article IX:2 of the WTO Agreement establishes two specific requirements that apply to the adoption of multilateral interpretations of the Multilateral Trade Agreements contained in Annex 1 to the WTO Agreement: (i) a decision by the Ministerial Conference or the General Council to adopt such interpretations shall be taken by a three-fourths majority of Members; and (ii) such interpretations shall be taken on the basis of a recommendation by the Council overseeing the functioning of the relevant Agreement. …
 

W.4.1A.5 US — Clove Cigarettes, paras. 253–254
(WT/DS406/AB/R)
 

We do not agree with the Panel to the extent that it suggested that the absence of a recommendation from the Council for Trade in Goods “is insufficient to conclude that paragraph 5.2 of the Doha Ministerial Decision is not an authoritative interpretation under Article IX:2 of the WTO Agreement”. While Article IX:2 of the WTO Agreement confers upon the Ministerial Conference and the General Council the exclusive authority to adopt multilateral interpretations of the WTO Agreement, this authority must be exercised within the defined parameters of Article IX:2. It seems to us that the view expressed by the Panel does not respect a specific decision-making procedure established by Article IX:2 of the WTO Agreement. In our view, to characterize the requirement to act on the basis of a recommendation by the Council overseeing the functioning of the relevant Agreement as a “formal requirement” neither permits a panel to read that requirement out of a treaty provision, nor to dilute its effectiveness.
 

… We consider that the recommendation from the relevant Council is an essential element of Article IX:2, which constitutes the legal basis upon which the Ministerial Conference or the General Council exercise their authority to adopt interpretations of the WTO Agreement. Thus, an interpretation of a Multilateral Trade Agreement contained in Annex 1 to the WTO Agreement must be adopted on the basis of a recommendation from the relevant Council overseeing the functioning of that Agreement.
 

W.4.1A.6 US — Clove Cigarettes, para. 255 and Footnote 467
(WT/DS406/AB/R)
 

… Whereas the content of paragraph 5.2 of the Doha Ministerial Decision might very well have been based on discussions within the Committee on Technical Barriers to Trade, we are not persuaded that this is sufficient to establish that the Ministerial Conference exercised its authority to adopt an interpretation of the TBT Agreement on the basis of a recommendation from the Council for Trade in Goods. Accordingly, we find that, in the absence of evidence of the existence of a specific recommendation from the Council for Trade in Goods concerning the interpretation of Article 2.12 of the TBT Agreement, paragraph 5.2 of the Doha Ministerial Decision does not constitute a multilateral interpretation adopted pursuant to Article IX:2 of the WTO Agreement.467
 

W.4.1A.7 US — Clove Cigarettes, paras. 257–260
(WT/DS406/AB/R)
 

… We observe that multilateral interpretations adopted pursuant to Article IX:2 of the WTO Agreement, on the one hand, and subsequent agreements on interpretation within the meaning of Article 31(3)(a) of the Vienna Convention, on the other hand, serve different functions and have different legal effects under WTO law. Multilateral interpretations under Article IX:2 of the WTO Agreement provide a means by which Members — acting through the highest organs of the WTO — may adopt binding interpretations that clarify WTO law for all Members. Such interpretations are binding on all Members, including in respect of all disputes in which these interpretations are relevant.
 

On the other hand, Article 31(3)(a) of the Vienna Convention is a rule of treaty interpretation, pursuant to which a treaty interpreter uses a subsequent agreement between the parties on the interpretation of a treaty provision as an interpretative tool to determine the meaning of that treaty provision. … Interpretations developed by panels and the Appellate Body in the course of dispute settlement proceedings are binding only on the parties to a particular dispute. Article IX:2 of the WTO Agreement does not preclude panels and the Appellate Body from having recourse to a customary rule of interpretation of public international law that, pursuant to Article 3.2 of the DSU, they are required to apply.
 

… given the specific function of multilateral interpretations adopted pursuant to Article IX:2, and the fact that these interpretations are adopted by Members sitting in the form of the highest organs of the WTO, such interpretations are most akin to, but not exhaustive of, subsequent agreements on interpretation within the meaning of Article 31(3)(a) of the Vienna Convention.
 

We consider, therefore, that a decision adopted by Members, other than a decision adopted pursuant to Article IX:2 of the WTO Agreement, may constitute a “subsequent agreement” on the interpretation of a provision of a covered agreement under Article 31(3)(a) of the Vienna Convention. …
 

W.4.2 Article XVI:1 — Relevance to GATT 1947 decisions, procedures and customary practices     back to top

W.4.2.1 Japan — Alcoholic Beverages II, p. 14, DSR 1996:I, p. 97 at 107–108
(WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R)
 

Article XVI:1 of the WTO Agreement and paragraph 1(b)(iv) of the language of Annex 1A incorporating the GATT 1994 into the WTO Agreement bring the legal history and experience under the GATT 1947 into the new realm of the WTO in a way that ensures continuity and consistency in a smooth transition from the GATT 1947 system. This affirms the importance to the Members of the WTO of the experience acquired by the CONTRACTING PARTIES to the GATT 1947 — and acknowledges the continuing relevance of that experience to the new trading system served by the WTO. …
 

W.4.3 Article XVI:4 — WTO-conformity of laws, regulations and administrative procedures. See also Anti-Dumping Agreement, Article 18.4 — Obligation to ensure WTO-conformity of domestic anti-dumping laws, regulations and procedures (A.3.62); Temporal Application of Rights and Obligations (T.5)     back to top

W.4.3.1 EC — Sardines, para. 213
(WT/DS231/AB/R)
 

Moreover, as general context for all the covered agreements, Article XVI:4 of the Marrakesh Agreement Establishing the World Trade Organization is of great significance. …
 

… This provision establishes a clear obligation for all WTO Members to ensure the conformity of their existing laws, regulations, and administrative procedures with the obligations in the covered agreements.
 

 

308. … While Appellate Body reports adopted by the DSB shall be accepted unconditionally by the parties to the dispute, it is the exclusive authority of the Ministerial Conference and the General Council to adopt, pursuant to Article IX:2 of the WTO Agreement, interpretations that are binding upon the WTO membership.     back to text

467. In reaching this finding, we are not saying that the Ministerial Conference failed to comply with a specific decision-making procedure established by Article IX:2 of the WTO Agreement. Rather, we are saying that the absence of a recommendation from the Council for Trade in Goods concerning the interpretation of Article 2.12 of the TBT Agreement supports a conclusion that paragraph 5.2 of the Doha Ministerial Decision does not constitute a multilateral interpretation adopted pursuant to Article IX:2 of the WTO Agreement.     back to text


The texts reproduced here do not have the legal standing of the original documents which are entrusted and kept at the WTO Secretariat in Geneva.