TO JUDGE OR NOT TO JUDGE: NON LIQUET IN WTO ADJUDICATION - UKTPO Working Paper

At best, the agreements and the standard interpretative framework of the Vienna Convention on the Law of Treaties (VCLT)5 can only give broad principles, as the WTO agreements are indeed incomplete contracts left to be interpreted using another incomplete contract, the VCLT.6 Thus, the Appellate Body has faced the dilemma of either making the best interpretation it can or else ruling 2 However, we. [...] The anti-dumping decisions were not a new issue but reflected the fact that in the Appellate Body’s eyes the text of the 1994 WTO Agreement on Anti-dumping (ADA) gave it the right and in their view, the duty, to disallow a practice known as zeroing. [...] Application of Risk Theory to Non Liquet At the heart of the role of non liquet is the issue of what it implies for the decision-making process. [...] Similarly, Article X:8 of the Marrakesh Agreement is specifically relevant for amendments to the DSU contained in Annex 2 of the WTO Legal Texts, and states that “[a]ny Member of the WTO may initiate a proposal to amend the provisions of the Multilateral Trade Agreements in Annexes 2 and 3 by submitting such proposal to the Ministerial Conference. [...] The relevant language on judicial overreach that it contained in the draft decision was limited to the following: “As provided in Articles 3.2 and 19.2 of the DSU, findings and recommendations of Panels and the Appellate Body and recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.”46 This merely repeats what already exists.