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Journal of International Economic Law Advance Access originally published online on November 14, 2005
Journal of International Economic Law 2005 8(4):803-824; doi:10.1093/jiel/jgi047
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Journal of International Economic Law Vol. 8 No. 4 © Oxford University Press 2005, all rights reserved

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

Claus-Dieter Ehlermann and Lothar Ehring*

* Professor Dr. Dr. h.c. Claus-Dieter Ehlermann is Senior Counsel with Wilmer Cutler Pickering Hale and Dorr. He was formerly Member, and in 2001 Chairman, of the Appellate Body of the World Trade Organization. Before that, he was Director-General of Competition and of the Legal Service at the European Commission.
Lothar Ehring serves in the Directorate-General for Trade of the European Commission, he formerly worked in the Legal Affairs Division of the WTO Secretariat and the Appellate Body Secretariat. This paper expresses only personal views.

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.


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