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The Panel misapplies Article 31 of the Vienna Convention. The Panel misunderstands the concept of legitimate expectations in the context of the customary rules of interpretation of public international law. The legitimate expectations of the parties to a treaty are reflected in the language of the treaty itself. The duty of a treaty interpreter is to examine the words of the treaty to determine the intentions of the parties. This should be done in accordance with the principles of treaty interpretation set out in Article 31 of the Vienna Convention. But these principles of interpretation neither require nor condone the imputation into a treaty of words that are not there or the importation into a treaty of concepts that were not intended.
In United States - Standards for Reformulated and Conventional Gasoline, we set out the proper approach to be applied in interpreting the WTO Agreement in accordance with the rules in Article 31 of the Vienna Convention. These rules must be respected and applied in interpreting the TRIPS Agreement or any other covered agreement. The Panel in this case has created its own interpretative principle, which is consistent with neither the customary rules of interpretation of public international law nor established GATT/WTO practice. Both panels and the Appellate Body must be guided by the rules of treaty interpretation set out in the Vienna Convention, and must not add to or diminish rights and obligations provided in the WTO Agreement.
This conclusion is dictated by two separate and very specific provisions of the DSU. Article 3.2 of the DSU provides that the dispute settlement system of the WTO: ‘... serves to preserve the rights and obligations of the Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.’ Furthermore, Article 19.2 of the DSU provides: ‘In accordance with paragraph 2 of Article 3, in their findings and recommendations, the panel and Appellate Body cannot add to or diminish the rights and obligations provided in the covered agreements.’
These provisions speak for themselves. Unquestionably, both panels and the Appellate Body are bound by them.”
The ruling developed in India-Patent is repeatedly applied by the Appellate Body, e.g. in EC-Computer Equipment (DS62/DS67/DS68), where the European Communities submits that the Panel erred in considering that the “legitimate expectations” of an exporting Member. With regard to this appeal, the Appellate Body rules in pertinent part: 9
“We disagree with the Panel''s conclusion that the meaning of a tariff concession in a Member''s Schedule may be determined in the light of the ‘legitimate expectations’ of an exporting Member. First, we fail to see the relevance of the EEC - Oilseeds panel report with respect to the interpretation of a Member''s Schedule in the context of a violation complaint made under Article XXIII:1(a) of the GATT 1994. The EEC - Oilseeds panel report dealt with a non-violation complaint under Article XXIII:1(b) of the GATT 1994, and is not legally relevant to the case before us. Article XXIII:1 of the GATT 1994 provides for three legally-distinct causes of action on which a Member may base a complaint; it distinguishes between so-called violation complaints, non-violation complaints and situation complaints under paragraphs (a), (b) and (c). The concept of ‘reasonable expectations’, which the Panel refers to as ‘legitimate expectations’, is a concept that was developed in the context of non-violation complaints. As we stated in India - Patents, for the Panel to use this concept in the context of a violation complaint ‘melds the legally-distinct bases for “violation” and “non-violation” complaints under Article XXIII of the GATT 1994 into one uniform cause of action’, and is not in accordance with established GATT practice.
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