The Authoritative Interpretation Under Article IX:2 of the Agreement Establishing the World Trade Organization: Current Law, Practice and Possible Improvements

Abstract

The Agreement Establishing the World Trade Organization reserves the right to adopt ‘authoritative interpretations’ of the multilateral trade agreements to the Ministerial Conference and the General Council. Given that, to date, this instrument has not been used, the present article intends to highlight its structural importance for the balance of powers within the legal system of the World Trade Organization. It identifies the use that could and should be made of it and reviews the practice so far. The article attempts to explain the reasons for the present lack of authoritative interpretations in the World Trade Organization and presents several options for the future. At the outset, this article explores the parameters that are relevant for this discussion, notably the possible scope and legal effects of an authoritative interpretation. Important questions are whether an authoritative interpretation is legally binding on all WTO Members, whether it may modify the existing law or whether the rules of treaty interpretation are relevant in the formulation of an authoritative interpretation, and whether its validity can be challenged in dispute settlement.