On The Interpretation Of The Schedule Of Concession In WTO

This article addresses the interpretation of the Schedule of Concession in WTO. The panel and the appellate body limit their interpretation only to application of articles 31, 32, 33 of VCLT, but ignore or neglect the unilateral nature of the Schedule in terms of their negotiation, drafting and conclusion, leading the interpretation to difficult situation. This article sets out the steps of panel and appellate body from the cases they dealt, finds out the causes why the interpretation face difficulties, and argues that other methods such as in interpreting a unilateral declaration. Research on the interpretation of the schedule can broaden our horizon and realizing the importance of judicial activism, and eventually promoting the development of legal interpretation and systemizing of international law. The paper divided into four parts:The first part analyzed the character of the schedule of concession, insuring that it is the treaty. Because panel and appellant body always regard schedule of concession as treaty language, and depending on VCLT 31(1) explaining the schedule, it is inevitable to ask whether the schedule can be seen as treaty.The second part mainly discussed the application of the customary principle of treaty interpretation to schedules.Firstly, principle of good faith .VCLT 31(1) demands interpretation must do in good faith. In international law, good faith is not only faithfulness to obligation——it appear as conducting in good faith, so as to make other people's wish come true, as long as the wish can be concluded from its behavior. In this field, the principle of good faith included forbidding right to be abused and protection of legitimate expectation. The Appellate Body usually limits the protection of legitimate expectation to non-violation complaints, but this is a measure confusing substantial faith and process faith.Secondly, word of schedule of concession must explain in context. This can be divided into two parts. The first step is to define the word's meaning in dictionary. The second step is to make sure what the context of the word is. This work always attracts many attentions. What can constitute the context of the word? In this part, VCLT 31(3)(c) be mainly discussed, and whether HS can constitute the context of the explanation of schedule of concession.Thirdly, how to make certain aims and object of treaty. The explanation of treaty consulting aims and object can insure consistency of the treaty's word. It consider the term as one part of the treaty which can not be intersected.Fourthly, how to make certain subsequent practice. The Appellate Body of US-Gambling Services expound it systematically. It regards that the practice in VCLT 31(3)(b) must include two factors. The Panels considered that the form of practice dose not need all of the members'taking part in.Fifthly, how to make certain complement materials. The Panel and the Appellate Body always abide by the order of the principle of VCLT31 and 32.Only in the situation that conclusion is absurd or unreasonable after explaining by article 31, the article 32 can be used.Sixthly, how to make contain author language .Schedule of concession have three author languages, that is English,French,Spanish.But,VCLT33 prescribe"when treaty used two languages, each one of them can make sure, except the treaty or the country decide only one is the author language,"The Appellate Body of US-Gambling Services admit English to be the author language which is asserted by American unilaterally. This contradicts with VCLT 33(1).The third part mainly analyzed other measure of explanation of schedule of concession. Firstly, in some situation unilateral measure can be used. Explanation of schedule of concession can not be as same as explanation of treaty sometimes.Secondly, in the field of explanation schedule of concession, scope of application for the principle of protection of legitimate expectation have its particular character. Because of the difficult of putting up with proof, complaints hardly prove its allegation.Thirdly, extending the range of VCLT 31(3)(c). HS cannot be belonged to practice, but it can be regarded as the agreement.The fourth part mainly discussed the power of the DSB in explanation schedule of concession. Firstly, through determining the standard of review, the power between DSB and members can be distinguished.Secondly, the evolution of the"power-orientated"is the trend which can not be retorted, referring to the controversy of judicial activity of The Panel and the Appellate Body.The significance on the interpretation of the schedule of concession is mainly to broad their vision, remove the fence of previous WTO dispute settlement body on the treaty explanation, correctly understand the difference between schedules and other agreements, sort out the specific steps of explanation of the schedules, extend the origins to which the schedules'explanation can refer.Although the Panel and the Appellate Body has always avoid to deal with certain dispute problem of the interpretation of the agreement, but still may face with accusations on the legitimacy of their decision from members. Both the developing and developed countries would express their concern to the WTO dispute settlement body judicial activist when they are often lost. This problem may be resolved only along with the development of the international relationship and the organization of the international society.