When the Colombia - Frozen Fries MPIA appeal started up, I noted that "most of the issues are pretty basic anti-dumping ones, but there is a possibility of an important systemic issue coming up," as "[t]he panel report gets into the issue of the AD Agreement Article 17.6(ii) legal standard of review a bit."
Recall that the Article 17.6(ii) legal standard of review states:
the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.
My sense is that many people find the "more than one permissible interpretation" language in the second sentence to be confusing. It clearly suggests that there may be multiple permissible interpretations, but when exactly are there multiple permissible interpretations? Treaty language is often unclear, and parties put forward competing interpretations, but how do we determine if there are multiple permissible interpretations in a given interpretive exercise?
The EU has now posted its written submission and oral statement at the hearing in the Frozen Fries appeal. In its written submission, it offers the following argument about the application of 17.6(ii):
19. The European Union disagrees with Colombia’s suggestion that the application of the legal standard under Article 17.6(ii) of the Anti-Dumping Agreement requires a panel to determine whether there are two or more permissible interpretations of a legal provision. In most cases, the conscientious application of the rules of treaty interpretation in Articles 31 and 32 of the Vienna Convention yields a single interpretation of the provision in question. It is only in cases where the application of those rules leads to two or more interpretations of the same provision of the Anti-Dumping Agreement that the second sentence of Article 17.6(ii) applies.
20. In those cases where the application of the rules of treaty interpretation in Articles 31 and 32 lead to two or more interpretations of the same provision of the Anti-Dumping Agreement, however, the European Union considers that the application of the second sentence of Article 17.6(ii) should not require a panel to choose between mutually contradictory interpretations, as Colombia seems to assume. The permissible interpretations are only those falling within a range that fits harmoniously with the terms, context, and object and purpose of the treaty. As stressed by the Appellate Body:
“the second sentence [of Article 17.6(ii)] allows for the possibility that the application of the rules of the Vienna Convention may give rise to an interpretative range and, if it does, an interpretation falling within that range is permissible and must be given effect by holding the measure to be in conformity with the covered agreement. The function of the second sentence is thus to give effect to the interpretative range rather than to require the interpreter to pursue further the interpretative exercise to the point where only one interpretation within that range may prevail. […] the enterprise of interpretation is intended to ascertain the proper meaning of a provision; one that fits harmoniously with the terms, context, and object and purpose of the treaty. The purpose of such an exercise is therefore to narrow the range of interpretations, not to generate conflicting, competing interpretations.”
21. The Panel in this dispute correctly applied the legal standard under Article 17.6(ii), whose starting point is the requirement in the first sentence to interpret the relevant provisions of the Anti-Dumping Agreement in accordance with customary rules of interpretation of public international law. Contrary to Colombia’s contentions, the legal standard under Article 17.6(ii) does not consist primarily of applying the second sentence and examining whether the authority’s determination rests on a permissible interpretation.
It is not clear whether the MPIA arbitrators in this appeal will address the Article 17.6(ii) "permissible interpretation" standard. Note that the EU argues: "The European Union must stress that Colombia’s Notice of Appeal contains no reference whatsoever to a claim of error in the interpretation or application of Article 17.6(ii) of the Anti-Dumping Agreement. Therefore, it is clear that the issue of the Panel's interpretation or compliance with Article 17.6(ii) of the Anti-Dumping Agreement is not properly before the Arbitrators in this appeal." Thus, there appears to be a procedural way out of weighing in on this difficult issue if the arbitrators want to take it.
However, if they were to address this issue, one possible approach to Article 17.6(ii) would be the following. The EU doesn't set forth its view of the specific circumstances in which there may be more than one permissible interpretation, but its reference to Articles 31 and 32 of the Vienna Convention on the Law of Treaties is helpful. Recall that Article 32 of the Vienna Convention says:
Article 32: Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
Based on this provision, we know that there can be situations where the Article 31 treaty interpretation process "leaves the meaning ambiguous or obscure." Perhaps, then, adjudicators who are interpreting Article 17.6(ii) could use this language to inform the meaning of "permissible interpretation." In this regard, if the Article 31 interpretation process on its own "leaves the meaning ambiguous or obscure," there could be a presumption -- either rebuttable or irrebuttable -- that multiple permissible interpretations exist. In practice, what this could mean is that where there is a high enough degree of uncertainty about the meaning of a particular provision after going through the Article 31 interpretive process, the adjudicator could find that the meaning is "ambiguous or obscure," and that there are multiple permissible interpretations of the provisions within the meaning of Article 17.6(ii). It might take a few instances of applying this standard to get a sense of when the meaning of a term or phrase or provision is "ambiguous or obscure," but over time I think we would get some clarity.
Let me make two quick additional points.
First, in theory the Article 32 interpretive process could resolve the ambiguity or obscurity, but based on what I've seen with recourse to Article 32, that is unlikely in practice.
And second, the "leads to a result which is manifestly absurd or unreasonable" language could also be used in the same way, but to me that standard seems a little harder to demonstrate.
