When popular decisions rest on Shaky Foundations: Systemic implications of selected WTO appellate body trade remedies jurisprudence

This chapter argues that the WTO Appellate Body has not been consistent in applying Article 31 of the Vienna Convention on the Law of Treaties and considering the context of the relevant treaty text in light of its object and purpose. It has instead either been overly mechanistic in its textual interpretation or has strayed from the text, sometimes with the appearance of preferring an outcome-based result. Section I of the chapter discusses the appropriate role context should play in interpreting the WTO agreements. Sections II to IV critique aspects of the Appellate Body’s jurisprudence in the zeroing cases, the 1916 Act dispute, and the early safeguards cases as generating interpretive difficulties by failing to give enough attention to real-world context and object and purpose. Section V explores possible reasons for these departures by the Appellate Body from a contextualized textual analysis, and identifies some systemic implications of these decisions.