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The Authoritative Interpretation Under Article IX:2 of the Agreement Establishing the World Trade Organization: Current Law, Practice and Possible Improvements |
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| Authors: | Ehlermann, Claus-Dieter Ehring, Lothar |
| Affiliation: | * Professor Dr. Dr. h.c. Claus-Dieter Ehlermann is Senior Counsel with Wilmer Cutler Pickering Hale and Dorr. He was formerly Member, and in 2001 Chairman, of the Appellate Body of the World Trade Organization. Before that, he was Director-General of Competition and of the Legal Service at the European Commission. Lothar Ehring serves in the Directorate-General for Trade of the European Commission, he formerly worked in the Legal Affairs Division of the WTO Secretariat and the Appellate Body Secretariat. This paper expresses only personal views. |
| Abstract: | The Agreement Establishing the World Trade Organization reservesthe right to adopt authoritative interpretationsof the multilateral trade agreements to the Ministerial Conferenceand the General Council. Given that, to date, this instrumenthas not been used, the present article intends to highlightits structural importance for the balance of powers within thelegal system of the World Trade Organization. It identifiesthe use that could and should be made of it and reviews thepractice so far. The article attempts to explain the reasonsfor the present lack of authoritative interpretations in theWorld Trade Organization and presents several options for thefuture. At the outset, this article explores the parametersthat are relevant for this discussion, notably the possiblescope and legal effects of an authoritative interpretation.Important questions are whether an authoritative interpretationis legally binding on all WTO Members, whether it may modifythe existing law or whether the rules of treaty interpretationare relevant in the formulation of an authoritative interpretation,and whether its validity can be challenged in dispute settlement. |
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