The interpretation of the term "allowing" in Article 12.9 of the SCM by the AB in Korea DRAMs is based on a decisive mistake. It feigns to read the word "allowing" as a term which concerns the investigative authorities and that these are the ones "allowed" by the text to include various interested parties. However, the text says something else completely. The text says clearly that the term "allowing" concerns in fact the domestic or foreing parties which are the real agents "allowed" and in no way this term is used to express that the investigative authorities are allowed to include unilaterally various parties as interested parties. This decisive mistake appears clearly in the following passage of the AB:
"In our view, the term "allowing" in the residual clause connotes the power or authority given to a Member to include other parties as interested parties, rather than a restriction on such power of inclusion to those parties that make a request".
By interpreting the word "allowing" in the context of the "power given" to an investigative authority, the AB simply forgets that the word "allowing" in article 12.9 deals in fact with the parties which could be allowed if they desire to be included in the interested parties even if they are not explicity mentionned by Article 12.9. This mistake explains why we do not have in the AB report an answer to a fundamental question: How is it possible to "allow" someone to do something that he does not want to do? Of course, investigative authorities could in advance allow "through national legislation or implementing regulations", certain potential willing parties to participate in investigations as interested parties. However, this is completly different from giving national authorities the power to decide unilaterally who are the parties that they want to consider as interested parties.
In sum, the text of Article 12.9 does not say that it "allows Members to....". The text speaks about "allowing domestic or foreign parties...". This latter perspective is completely different.
