According to Article XVI:6 of WTO Agreement, the texts of the WTO Agreements are authentic in each of the three WTO official languages.
What happens then when an Appellate Body’s interpretation made on the basis of the English text of an Agreement is unsustainable on the basis on the same text in another official language?
In the Boeing case, the Appellate Body interpreted the word "legislation" appearing in Article 2 of the SCM (specificity) in the sense of a collective set of rules that extends beyond statutory law voted by Parliament. Therefore, according to the AB, it may include laws, regulations, or other official documents. The Appellate Body justified its interpretation as follows:
We find support for this reading of "legislation" in Article 2.1(b), which provides that, "{w}here the granting authority, or the legislation pursuant to which the granting authority operates, establishes objective criteria or conditions governing the eligibility for, and the amount of, a subsidy", these criteria or conditions "must be clearly spelled out in law, regulation, or other official document, so as to be capable of verification".
Let us note that the English text uses two different words, namely “legislation” and “law”. This aspect is what allows the Appellate Body to read “legislation” as including “law” among other things such as regulation and official documents.
Unfortunately, the French text of Article 2/SCM uses only one word, i.e., “legislation”. It reads:
Dans les cas où l'autorité qui accorde la subvention, ou la législation en vertu de laquelle ladite autorité agit, subordonne à des critères ou conditions objectifs le droit de bénéficier de la subvention et le montant de celle-ci, il n'y aura pas spécificité à condition que le droit de bénéficier de la subvention soit automatique et que lesdits critères ou conditions soient observés strictement. Les critères ou conditions doivent être clairement énoncés dans la législation, la réglementation ou autre document officiel, de manière à pouvoir être vérifiés.
To put it another way, the French text seems to consider the word “legislation” as a synonym of statutory law. Otherwise, it would not make sense to oppose legislation and reglementation in the phrase “dans la législation, la réglementation ou autre document officiel”. Although it is probable that the French version contains a translation error (the word "loi" is available in French but was not used), the fact remains that this “authentic” version does not support the Appellate Body’s reading. It is no coincidence that the AB does not quote from it as it usually does to justify an intepretation.
I have checked the Spanish version and found that it contains two different words, exactly as the English version, namely, legislación and ley.
At the end of the Uruguay Round, was there an entity responsible for the coherence between the texts of the WTO agreements in the three WTO official languages? More importantly,what are the legal consequences and the remedies for a translation error? Is there an irrebutable presumption that such an error does not exist?
Add:
Now,the funny thing is that the French translation of the AB's Boeing Report incorporates, as expected, the French text of the SCM in the justification given by the AB for its interpretation of the word "legislation". The result is tantamount to a contradiction because unfortunately this French text does not support at all the AB's justification!
