[ 劉成偉 ]——(2003-7-7) / 已閱25457次
It is clear that the application of the principle of effective interpretation is consistent with Art. 3.2 of the DSU, which states that ‘the DSB cannot add to or diminish the rights and obligations provided in the covered agreements’. As a matter of fact, it may be the case that in nearly all instances, the ordinary meaning of the terms of the actual description in a covered agreement accurately reflects and exhausts the content of the expectations on improved competitive relationship. It is clearly the case that most descriptions are to be treated with the utmost care to maintain their integrity precisely because, on their face, they normally constitute the most concrete, tangible and reliable evidence of commitments made.
IV The Status of Legitimate Expectations in Interpretation
The principle of good faith prohibits any conduct of parties to an agreement that aims at nullification or impairment of the proper meaning and purpose of the agreement. However, does good faith interpretation under Art. 31 of the Vienna Convention require, as ruled by a panel, the protection of so-called legitimate expectations? In this respect, the Appellate Body in India-Patent Protection (DS50) rules: 8
“Although the Panel states that it is merely applying a ‘well-established GATT principle’, the Panel's reasoning does not accurately reflect GATT/WTO practice. In developing its interpretative principle, the Panel merges, and thereby confuses, two different concepts from previous GATT practice. One is the concept of protecting the expectations of contracting parties as to the competitive relationship between their products and the products of other contracting parties. This is a concept that was developed in the context of violation complaints involving Articles III and XI, brought under Article XXIII:1(a), of the GATT 1947. The other is the concept of the protection of the reasonable expectations of contracting parties relating to market access concessions. This is a concept that was developed in the context of non-violation complaints brought under Article XXIII:1(b) of the GATT.
In the context of violation complaints made under Article XXIII:1(a), it is true that panels examining claims under Articles III and XI of the GATT have frequently stated that the purpose of these articles is to protect the expectations of Members concerning the competitive relationship between imported and domestic products, as opposed to expectations concerning trade volumes. However, this statement is often made after a panel has found a violation of, for example, Article III or Article XI that establishes a prima facie case of nullification or impairment. At that point in its reasoning, the panel is examining whether the defending party has been able to rebut the charge of nullification or impairment. It is in this context that panels have referred to the expectations of Members concerning the conditions of competition.
The doctrine of protecting the ‘reasonable expectations’ of contracting parties developed in the context of ‘non-violation’ complaints brought under Article XXIII:1(b) of the GATT 1947. Some of the rules and procedures concerning ‘non-violation’ cases have been codified in Article 26.1 of the DSU. ‘Non-violation’ complaints are rooted in the GATT's origins as an agreement intended to protect the reciprocal tariff concessions negotiated among the contracting parties under Article II. In the absence of substantive legal rules in many areas relating to international trade, the ‘non-violation’ provision of Article XXIII:1(b) was aimed at preventing contracting parties from using non-tariff barriers or other policy measures to negate the benefits of negotiated tariff concessions. Under Article XXIII:1(b) of the GATT 1994, a Member can bring a ‘non-violation’ complaint when the negotiated balance of concessions between Members is upset by the application of a measure, whether or not this measure is inconsistent with the provisions of the covered agreement. The ultimate goal is not the withdrawal of the measure concerned, but rather achieving a mutually satisfactory adjustment, usually by means of compensation.
[…]
With this customary rule of interpretation [Article 31 of the Vienna Convention] in mind, the Panel stated that: ‘In our view, good faith interpretation requires the protection of legitimate expectations derived from the protection of intellectual property rights provided for in the Agreement.’
The Panel misapplies Article 31 of the Vienna Convention. The Panel misunderstands the concept of legitimate expectations in the context of the customary rules of interpretation of public international law. The legitimate expectations of the parties to a treaty are reflected in the language of the treaty itself. The duty of a treaty interpreter is to examine the words of the treaty to determine the intentions of the parties. This should be done in accordance with the principles of treaty interpretation set out in Article 31 of the Vienna Convention. But these principles of interpretation neither require nor condone the imputation into a treaty of words that are not there or the importation into a treaty of concepts that were not intended.
In United States - Standards for Reformulated and Conventional Gasoline, we set out the proper approach to be applied in interpreting the WTO Agreement in accordance with the rules in Article 31 of the Vienna Convention. These rules must be respected and applied in interpreting the TRIPS Agreement or any other covered agreement. The Panel in this case has created its own interpretative principle, which is consistent with neither the customary rules of interpretation of public international law nor established GATT/WTO practice. Both panels and the Appellate Body must be guided by the rules of treaty interpretation set out in the Vienna Convention, and must not add to or diminish rights and obligations provided in the WTO Agreement.
This conclusion is dictated by two separate and very specific provisions of the DSU. Article 3.2 of the DSU provides that the dispute settlement system of the WTO: ‘... serves to preserve the rights and obligations of the Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.’ Furthermore, Article 19.2 of the DSU provides: ‘In accordance with paragraph 2 of Article 3, in their findings and recommendations, the panel and Appellate Body cannot add to or diminish the rights and obligations provided in the covered agreements.’
These provisions speak for themselves. Unquestionably, both panels and the Appellate Body are bound by them.”
The ruling developed in India-Patent is repeatedly applied by the Appellate Body, e.g. in EC-Computer Equipment (DS62/DS67/DS68), where the European Communities submits that the Panel erred in considering that the “l(fā)egitimate expectations” of an exporting Member. With regard to this appeal, the Appellate Body rules in pertinent part: 9
“We disagree with the Panel's conclusion that the meaning of a tariff concession in a Member's Schedule may be determined in the light of the ‘legitimate expectations’ of an exporting Member. First, we fail to see the relevance of the EEC - Oilseeds panel report with respect to the interpretation of a Member's Schedule in the context of a violation complaint made under Article XXIII:1(a) of the GATT 1994. The EEC - Oilseeds panel report dealt with a non-violation complaint under Article XXIII:1(b) of the GATT 1994, and is not legally relevant to the case before us. Article XXIII:1 of the GATT 1994 provides for three legally-distinct causes of action on which a Member may base a complaint; it distinguishes between so-called violation complaints, non-violation complaints and situation complaints under paragraphs (a), (b) and (c). The concept of ‘reasonable expectations’, which the Panel refers to as ‘legitimate expectations’, is a concept that was developed in the context of non-violation complaints. As we stated in India - Patents, for the Panel to use this concept in the context of a violation complaint ‘melds the legally-distinct bases for “violation” and “non-violation” complaints under Article XXIII of the GATT 1994 into one uniform cause of action’, and is not in accordance with established GATT practice.
[…]
Third, we agree with the Panel that the security and predictability of ‘the reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade’ is an object and purpose of the WTO Agreement, generally, as well as of the GATT 1994. However, we disagree with the Panel that the maintenance of the security and predictability of tariff concessions allows the interpretation of a concession in the light of the ‘legitimate expectations’ of exporting Members, i.e., their subjective views as to what the agreement reached during tariff negotiations was. The security and predictability of tariff concessions would be seriously undermined if the concessions in Members' Schedules were to be interpreted on the basis of the subjective views of certain exporting Members alone. Article II:1 of the GATT 1994 ensures the maintenance of the security and predictability of tariff concessions by requiring that Members not accord treatment less favourable to the commerce of other Members than that provided for in their Schedules.
Furthermore, we do not agree with the Panel that interpreting the meaning of a concession in a Member's Schedule in the light of the ‘legitimate expectations’ of exporting Members is consistent with the principle of good faith interpretation under Article 31 of the Vienna Convention. Recently, in India - Patents, the panel stated that good faith interpretation under Article 31 required ‘the protection of legitimate expectations’. We found that the panel had misapplied Article 31 of the Vienna Convention and stated that: ‘The duty of a treaty interpreter is to examine the words of the treaty to determine the intentions of the parties. This should be done in accordance with the principles of treaty interpretation set out in Article 31 of the Vienna Convention. But these principles of interpretation neither require nor condone the imputation into a treaty of words that are not there or the importation into a treaty of concepts that were not intended.’
The purpose of treaty interpretation under Article 31 of the Vienna Convention is to ascertain the common intentions of the parties. These common intentions cannot be ascertained on the basis of the subjective and unilaterally determined ‘expectations’ of one of the parties to a treaty. Tariff concessions provided for in a Member's Schedule -- the interpretation of which is at issue here -- are reciprocal and result from a mutually-advantageous negotiation between importing and exporting Members. A Schedule is made an integral part of the GATT 1994 by Article II:7 of the GATT 1994. Therefore, the concessions provided for in that Schedule are part of the terms of the treaty. As such, the only rules which may be applied in interpreting the meaning of a concession are the general rules of treaty interpretation set out in the Vienna Convention.
The application of these rules in Article 31 of the Vienna Convention will usually allow a treaty interpreter to establish the meaning of a term. However, if after applying Article 31 the meaning of the term remains ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable, Article 32 allows a treaty interpreter to have recourse to: ‘... supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion.’ With regard to ‘the circumstances of [the] conclusion’ of a treaty, this permits, in appropriate cases, the examination of the historical background against which the treaty was negotiated.”
In sum, the legitimate expectations of the parties to a treaty are reflected in the language of the treaty itself. The duty of a treaty interpreter is to examine the words of the treaty to determine the intentions of the parties. This should be done in accordance with the principles of treaty interpretation set out in Art. 31 of the Vienna Convention. But these principles of interpretation neither require nor condone the imputation into a treaty of words that are not there or the importation into a treaty of concepts that were not intended. As general principles of interpretation, the words of the treaty form the foundation for the interpretive process: “interpretation must be based above all upon the text of the treaty”. In consistence with such guidelines for interpretation as well as established GATT/WTO practice, both panels and the Appellate Body should not create their own interpretative principles isolating from the rules of treaty interpretation set out in the Vienna Convention, and must not add to or diminish rights and obligations provided in the WTO Agreement.
In a word, the application of these rules in Art. 31 of the Vienna Convention will usually allow a treaty interpreter to establish the meaning of a term, even if after applying Art. 31 the meaning of the term remains ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable, Art. 32 allows a treaty interpreter to have recourse to “supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion”.
【NOTE】:
1. See, WT/DS152/R/7.22.
2. See, WT/DS139/R; WT/DS142/R/10.12.
3. See, e.g., WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R/86; WT/DS176/R/8.16; WT/DS192/R/7.20.
4. See, in detail, WT/DS8/R; WT/DS10/R; WT/DS11/R/6.7; 6.9.
5. See, WT/DS34/R/9.92-9.95.
6. See, WT/DS8/R; WT/DS10/R; WT/DS11/R/9.96.
7. See, WT/DS8/AB/R; WT/DS10/AB/R; WT/DS11/AB/R/D.
8. See, WT/DS50/AB/R/36-41; 44-47.
9. See, WT/DS62/AB/R; WT/DS67/AB/R; WT/DS68/AB/R/80; 82-84; 86.
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