Treaty Interpretation and the WTO Appellate Body Report in US – Gambling: A Critique

Abstract

‘Before the game begins players should agree on a dictionary to use in case of a challenge.’ (from the Official Rules of SCRABBLE®) Treaty interpretation in WTO law continues to represent a topic of highly theoretical and practical importance. The Panel’s and the Appellate Body’s reports in the recent US – Gambling dispute have critically turned on ascertaining the meaning of the United States’ GATS Schedule and Article XVI GATS on the basis of the public international law rules of treaty interpretation as codified in the Vienna Convention on the Law of Treaties. The paper’s principal aim is to review the interpretative approach followed in particular by the Appellate Body in reaching its decision in US – Gambling. Its main argument is that, although the Appellate Body appears to be trying to emancipate itself from a rigorous textual approach, it has not yet embraced a holistic approach to treaty interpretation, one in which the treaty interpreter looks thoroughly at all the relevant elements of the general rule on treaty interpretation pursuant to Article 31(1) of the Vienna Convention.

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