TITLE:
Silence for “Silence”?—Reflections on the Interpretation of GATT III:8(a) in DS583
AUTHORS:
Fang Gu
KEYWORDS:
DS583, Government Procurement, Silence, Treaty Interpretation
JOURNAL NAME:
Beijing Law Review,
Vol.13 No.4,
December
30,
2022
ABSTRACT: DS583, as the first arbitration with appealing nature under the WTO system, with no doubt made a huge step in seeking for the alternative method during the paralysis of Appellate body. Nevertheless, it never means the award is impeccable especially for treaty interpretation. The most controversial issue the tribunal confronted but failed to offer a convincing analysis is the entity of the purchase, which is silent in the treaty. Against this background, the article firstly revealed the deficiencies concerning treaty interpretation, including the vague application of VCLT and over-simplified deduction. The crux is how to interpret “silence” appropriately. The article suggests it is necessary to make reference to previous cases of WTO and extract the common methodology and technique to assist the interpretation. In this vein, to make some complement and correction, the article re-interprets the purview of the entities of “products purchased” and finally provides some suggestions for both DSB and disputing parties under Article 25 arbitration.