Chapter V
Guidelines for Interpretation
of the WTO Covered Agreements


OUTLINE

I Introduction
II Application of Arts. 31, 32 of the Vienna Convention
III WTO Rules on Conflicts: Effective Interpretation
IV The Status of Legitimate Expectations in Interpretation



I Introduction
According to Art. 11 of the DSU, the panel's role is to “make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability and conformity with the relevant covered agreements”. In the previous chapter, we have examined the general standard of review labeled as “an objective assessment” regarding “the facts of the case”; clearly, for panels to fulfil appropriately their functions as designated in Art. 11 of the DSU, it is also indiscerptible to make such an objective assessment of “the applicability and conformity with the relevant covered agreements”. Therefore, the interpretation issue of the covered agreements arises. In this section, the author will scrutinize guidelines for interpretation applied under the WTO jurisprudence.
To resolve a particular dispute, before addressing the parties' arguments in detail, it is clearly necessary and appropriate to clarify the general issues concerning the interpretation of the relevant provisions and their application to the parties' claims. However, the complex nature of the covered agreements has given rise to difficulties in interpretation.
As noted previously, GATT/WTO jurisprudence should not be viewed in isolation from general principles developed in international law or most jurisdictions; and according to Art. 3.2 of the DSU, panels are bound by the “customary rules of interpretation of public international law” in their examination of the covered agreements. A number of recent adopted reports have repeatedly referred, as interpretative guidelines, to “customary rules of interpretation of public international law” as embodied in the text of the 1969 Vienna Convention on the Law of Treaties (‘Vienna Convention’), especially in its Arts. 31, 32. It is in accordance with these rules of treaty interpretation that panels or the Appellate Body have frequently examined the WTO provisions at issue, on the basis of the ordinary meaning of the terms of those provisions in their context, in the light of the object and purpose of the covered agreements and the WTO Agreement. These Vienna Convention articles provide as follows:

“Art. 31: General Rule of Interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.

Art. 32 Supplementary Means of Interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.”

II Application of Arts. 31, 32 of the Vienna Convention
Pursuant to Art. 31.1 of the Vienna Convention, the duty of a treaty interpreter is to determine the meaning of a term in accordance with the ordinary meaning to be given to the term in its context and in light of the object and purpose of the treaty. As noted by the Appellate Body in its Report on Japan-Alcoholic Beverages (DS8/DS10/DS11), “Article 31 of provides that the words of the treaty form the foundation for the interpretive process: ‘interpretation must be based above all upon the text of the treaty’. The provisions of the treaty are to be given their ordinary meaning in their context. The object and purpose of the treaty are also to be taken into account in determining the meaning of its provisions”. And in US ? Shrimps (DS58), the Appellate Body accordingly states: “A treaty interpreter must begin with, and focus upon, the text of the particular provision to be interpreted. It is in the words constituting that provision, read in their context, that the object and purpose of the states parties to the treaty must first be sought. Where the meaning imparted by the text itself is equivocal or inconclusive, or where confirmation of the correctness of the reading of the text itself is desired, light from the object and purpose of the treaty as a whole may usefully be sought.”
More specifically, the Panel in US-Sections 301-310 (DS152) rules that: “Text, context and object-and-purpose correspond to well established textual, systemic and teleological methodologies of treaty interpretation, all of which typically come into play when interpreting complex provisions in multilateral treaties. For pragmatic reasons the normal usage, and we will follow this usage, is to start the interpretation from the ordinary meaning of the ‘raw’ text of the relevant treaty provisions and then seek to construe it in its context and in the light of the treaty's object and purpose. However, the elements referred to in Article 31 - text, context and object-and-purpose as well as good faith - are to be viewed as one holistic rule of interpretation rather than a sequence of separate tests to be applied in a hierarchical order. Context and object-and-purpose may often appear simply to confirm an interpretation seemingly derived from the ‘raw’ text. In reality it is always some context, even if unstated, that determines which meaning is to be taken as ‘ordinary’ and frequently it is impossible to give meaning, even ‘ordinary meaning’, without looking also at object-and-purpose. As noted by the Appellate Body: ‘Article 31 of the Vienna Convention provides that the words of the treaty form the foundation for the interpretive process: 'interpretation must be based above all upon the text of the treaty'’. It adds, however, that ‘[t]he provisions of the treaty are to be given their ordinary meaning in their context. The object and purpose of the treaty are also to be taken into account in determining the meaning of its provisions’.” 1
In sum, as noted by the Panel in Canada-Automotive Industry (DS139/DS142), “understanding of these rules of interpretation is that, even though the text of a term is the starting-point for any interpretation, the meaning of a term cannot be found exclusively in that text; in seeking the meaning of a term, we also have to take account of its context and to consider the text of the term in light of the object and purpose of the treaty. Article 31 of the Vienna Convention explicitly refers to the ‘ordinary meaning to be given to the terms of the treaty in their [the terms'] context and in the light of its [the treaty's] object and purpose’. The three elements referred to in Article 31 - text, context and object and purpose - are to be viewed as one integrated rule of interpretation rather than a sequence of separate tests to be applied in a hierarchical order. Of course, context and object and purpose may simply confirm the textual meaning of a term. In many cases, however, it is impossible to give meaning, even ‘ordinary meaning’, without looking also at the context and/or object and purpose”. 2
With regard to Art. 32 of the Vienna Convention, it is repeatedly ruled that, “[t]he 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.” 3
As a whole, under the WTO jurisprudence, with regard to the dispute among the parties over the appropriate legal analysis to be applied, as general principles or guidelines of interpretation, it is often begun with Art. 3.2 of the DSU. To go further, as noted by the Panel in Japan-Alcoholic Beverages, “the ‘customary rules of interpretation of public international law’ are those incorporated in the Vienna Convention on the Law of Treaties (VCLT). GATT panels have previously interpreted the GATT in accordance with the VCLT. The Panel noted that Article 3:2 DSU in fact codifies this previously-established practice”. Consequently, “the Panel concluded that the starting point of an interpretation of an international treaty, such as the General Agreement on Tariffs and Trade 1994, in accordance with Article 31 VCLT, is the wording of the treaty. The wording should be interpreted in its context and in the light of the object and the purpose of the treaty as a whole and subsequent practice and agreements should be taken into account. Recourse to supplementary means of interpretation should be made exceptionally only under the conditions specified in Article 32 VCLT”. 4
In short, it is may be the case that, it is generally considered that the fundamental rules of treaty interpretation set out in Arts. 31 and 32 of the Vienna Convention have attained the status of rules of customary international law. In recent years, the jurisprudence of the Appellate Body and WTO panels has become one of the richest sources from which to receive guidance on their application.
III WTO Rules on Conflicts: Effective Interpretation
The Panel Report on Turkey-Textile and Clothing Products (DS34) states concerning the conflicts issue that: 5
“As a general principle, WTO obligations are cumulative and Members must comply with all of them at all times unless there is a formal ‘conflict’ between them. This flows from the fact that the WTO Agreement is a ‘Single Undertaking’. On the definition of conflict, it should be noted that: ‘… a conflict of law-making treaties arises only where simultaneous compliance with the obligations of different instruments is impossible. ... There is no conflict if the obligations of one instrument are stricter than, but not incompatible with, those of another, or if it is possible to comply with the obligations of one instrument by refraining from exercising a privilege or discretion accorded by another’.
This principle, also referred to by Japan in its third party submission, is in conformity with the public international law presumption against conflicts which was applied by the Appellate Body in Canada - Periodicals and in EC - Bananas III, when dealing with potential overlapping coverage of GATT 1994 and GATS, and by the panel in Indonesia - Autos, in respect of the provisions of Article III of GATT, the TRIMs Agreement and the SCM Agreement. In Guatemala - Cement, the Appellate Body when discussing the possibility of conflicts between the provisions of the Anti-dumping Agreement and the DSU, stated: ‘A special or additional provision should only be found to prevail over a provision of the DSU in a situation where adherence to the one provision will lead to a violation of the other provision, that is, in the case of a conflict between them’.
We recall the Panel's finding in Indonesia - Autos, a dispute where Indonesia was arguing that the measures under examination were subsidies and therefore the SCM Agreement being lex specialis, was the only ‘applicable law’ (to the exclusion of other WTO provisions): ‘14.28 In considering Indonesia's defence that there is a general conflict between the provisions of the SCM Agreement and those of Article III of GATT, and consequently that the SCM Agreement is the only applicable law, we recall first that in public international law there is a presumption against conflict. This presumption is especially relevant in the WTO context since all WTO agreements, including GATT 1994 which was modified by Understandings when judged necessary, were negotiated at the same time, by the same Members and in the same forum. In this context we recall the principle of effective interpretation pursuant to which all provisions of a treaty (and in the WTO system all agreements) must be given meaning, using the ordinary meaning of words.’
In light of this general principle, we will consider whether Article XXIV authorizes measures which Articles XI and XIII of GATT and Article 2.4 of the ATC otherwise prohibit. In view of the presumption against conflicts, as recognized by panels and the Appellate Body, we bear in mind that to the extent possible, any interpretation of these provisions that would lead to a conflict between them should be avoided.”
It is clearly implied by the ruling above that, in the WTO system, any interpretation of the covered agreements that would lead to a conflict between them should be avoided. In this respect, as to WTO rules of conflicts, in the context that all WTO agreements were negotiated “at the same time, by the same Members and in the same forum”, the principle of effective interpretation is recalled. What a principle is it?
As ruled by the Panel in Japan-Alcoholic Beverage (DS8/DS10/DS11), effective interpretation is a principle “whereby all provisions of a treaty must be, to the extent possible, given their full meaning so that parties to such a treaty can enforce their rights and obligations effectively…. this principle of interpretation prevents [the panel] from reaching a conclusion on the claims … or the defense …, or on the related provisions invoked by the parties, that would lead to a denial of either party's rights or obligations.” 6 This ruling is upheld by the Appellate Body when ruling that, “[a] fundamental tenet of treaty interpretation flowing from the general rule of interpretation set out in Article 31 is the principle of effectiveness (ut res magis valeat quam pereat). In United States - Standards for Reformulated and Conventional Gasoline, we noted that ‘[o]ne of the corollaries of the ‘general rule of interpretation’ in the Vienna Convention is that interpretation must give meaning and effect to all the terms of the treaty. An interpreter is not free to adopt a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or inutility’.” 7
安徽省合肥市人民政府


关于印发《合肥市建筑物名称管理暂行规定》的通知
合政〔２００６〕３８号


各县、区人民政府，市政府各部门，各直属机构：

　　《合肥市建筑物名称管理暂行规定》已经政府常务会第６６次会议审议通过，现印发给你们，请遵照执行。

合肥市人民政府

二○○六年四月四日

　　合肥市建筑物名称管理暂行规定

　　第一条　为加强对本市建筑物名称的管理，根据国家、省有关规定和《合肥市地名管理办法》，制定本规定。

　　第二条　本规定所称建筑物名称是指具有地名意义的居住、商贸、办公和综合服务等功能的居民住宅区和大型建筑物的名称。

　　第三条　本规定适用于本市市区内（含开发区、工业园区）居民住宅区和大型建筑物的命名、更名、使用及其相关的管理活动。

　　第四条　建筑物名称应由专名和通名组成，专名不宜过长，通名不准重叠使用。

　　第五条　建筑物的命名、更名应当遵守下列规定：

　　（一）不得使用有损国家尊严、妨碍民族团结的名称，不得使用与精神文明建设相悖、宣扬封建迷信、违背社会公德、低级庸俗以及易产生误解或歧义的名称；

　　（二）一般不以人名、企业名称作建筑物名称，禁止用外国人名、地名及其谐音命名；

　　（三）不得侵犯他人的名称专用权；

　　（四）不得使用含义不明确的名称。所命名名称应与建筑物的使用性质、功能、规模及环境等实际情况相符。一般不得使用“中国”、“中华”、“全国”、“国家”、“国际”、“世界”等超越省级行政区划范围的名称。确需使用的，申报人应当提供国家有关主管部门的意见书；

　　（五）本市内建筑物的名称不应重名、同（谐）音；

　　（六）以城镇、道路、居民区等地名命名、更名的，其项目位置应在该地名所指的地域范围内；

　　（七）名称用字必须使用国家规定的规范汉字，禁止使用已简化的繁体字、已废止的二简字、已淘汰的异体字，杜绝使用错别字、自造字、生僻字。地名的罗马字母拼写，必须符合国家公布的《汉语拼音方案》要求；

　　（八）名称专名采词应符合汉语语法规范，易懂易记，不得造词。

　　第六条　建筑物通名应当符合下列标准：

　　（一）大厦，指建筑高度在５０米以上的单体建筑物。

　　（二）花园，指绿地率达到４０％以上的居民住宅区。

　　（三）别墅，指建筑物以低层为主，建筑规格较高，具有独立庭院，且环境优美，容积率在０．５以下。

　　（四）山庄，指住宅区内楼宇之间高低起伏、错落有致、依山傍水、环境优美，绿地率达４５％以上的低层或多层住宅区。

　　（五）城，指有较完善的生活服务配套设施，占地面积在５０００００平方米以上封闭、半封闭的城市住宅区或占地面积在５００００平方米以上，具有地名意义的商贸场所。

　　（六）中心，指占地面积在１００００平方米或建筑面积在８００００平方米以上的，具有特定功能的建筑物名称。一般前面应加功能性的词语，如商务中心、娱乐中心等。

　　（七）广场，指占地面积１００００平方米以上或者总建筑面积在１０００００平方米以上的建筑物（群），其中必须有３０００平方米以上的集中公共场地（不包括停车场）。一般前面应加功能性的词语，如商务广场、假日广场等。

　　（八）小区、公寓、厦、楼、大楼、村、园、苑、庭、阁、家、台、轩、馆、院、居等可作为建筑物的通名使用。使用本规定以外的其它通名，由市政府另行确定。

　　第七条　地名申报单位在办理《建设工程规划许可证》之前，应及时向市地名主管部门申报建筑物名称，并提供以下材料：

　　（一）申请报告１份。需写明建设项目所在地点、功能、合建单位、产权情况、拟申报名称（含标注声调的汉语拼音）、名称含义及由来、注销的地名、建筑物内组团的名称及位置等内容；

　　（二）市规划局核发的《建设用地规划许可证》１份（复印件）；

　　（三）《合肥市人民政府建设用地批复》１份（复印件）；

　　（四）经市规划局批准的规划设计四至平面图（图上应标注项目四周邻近地名）２份。

　　第八条　有下列情况之一的，命名、更名申报不予受理：

　　（一）产权所有人对命名、更名意见不一致的；

　　（二）房地产权属争议尚未解决的；

　　（三）不能提供有效建设项目工程权属或房地产权属证明的；

　　（四）经批准命名后未满６个月而要求更名的。

　　第九条　建筑物的命名、更名按下列程序办理：

　　（一）地名申报单位在取得本规定第七条规定的相关材料后，向市地名主管部门申报名称，填写《地名命名更名申报表》。市地名主管部门正式受理后，应在１０个工作日内按照实地踏勘、专家论证、审核确定等程序完成初步审查工作；

　　（二）市地名主管部门在接到市政府批件后３个工作日内，对市政府批准同意的名称，通知其申报单位领取《标准地名使用证书》，并向社会公告；对未通过市政府批准的名称，书面通知其申报单位；

　　（三）《标准地名使用证书》是建设单位地名专用权的有效法律文本。规划部门在核发《建设工程规划许可证》、公安部门在编制门楼牌号、房产部门在核发《商品房预售许可证》时，应要求建设单位提供《标准地名使用证书》。

　　第十条　产权人或投资人在各类广告宣传中（含网上发布的房产信息），要严格按照其所持有的《标准地名使用证书》，使用标准名称，不得随意增删或更改其中的字词，不得以“楼盘案名”或“推销名称”替代标准名称。

　　第十一条　报刊、电视、广播、网站等广告发布者及经营者，在承办涉及居民住宅区和大型建筑物名称的广告时，要依法查验由市地名主管部门颁发的《标准地名使用证书》，核实并正确使用标准名称。禁止在各类广告中使用未经审批的非标准名称。

　　第十二条　建设单位在项目建设竣工之前，应及时设置楼栋、单元、户门标志牌。标志牌的材质、式样、规格应符合国家标准。对设置不符合国颁标准的单位和个人，市地名主管部门责令其限期改正。

　　第十三条　对违反本规定擅自命名、更名的，市地名主管部门责令其限期改正。

　　第十四条　对违反本规定第十条、第十一条规定进行广告宣传的，由工商管理部门依照《中华人民共和国广告法》有关规定予以处罚。

　　第十五条　长丰县、肥东县、肥西县可参照本规定执行。

　　第十六条　本规定自发布之日起施行。