The Challenge of Interpreting 'WTO-Plus' Provisions

This paper seeks to address special interpretive issues raised by the China Accession Protocol, focusing on provisions that prescribe more stringent rules for China than generally applicable WTO disciplines. These 'WTO-plus' provisions have already been involved in several WTO disputes. In the light of these disputes, the paper analyzes the interpretive challenge presented by the Protocol and suggests that, to meet the challenge, WTO adjudicators need to embrace a more holistic and systemic interpretive approach. The paper then proposes three working principles that may help to interpret the WTO-plus provisions of the Protocol in a coherent and systematic manner. This paper seeks to address special interpretive issues raised by the China Accession Protocol (the Protocol), focusing on its provisions that prescribe more stringent obligations for China than generally applicable WTO disciplines. These so-called 'WTO-plus' obligations 1 have already been involved in a number of WTO disputes. Yet, how to interpret such obligations in a systematic manner remains an open question. Interpretation of the Protocol presents a new challenge to the WTO adjudicatory body because it contains a large number of substantive obligations of China that exceed the requirements of the WTO agreements. Despite its unique content, the Protocol needs to be interpreted consistently and coherently with all WTO agreements since it has been made an integral part of the Agreement Establishing the World Trade Organization (the WTO Agreement). The Protocol, unfortunately, is not a model of clarity. Its text is not drafted as tightly as the WTO agreements, and it does not take care to specify the relationship between a WTO-plus provision and the generally applicable WTO disciplines. Moreover, the Protocol fails to articulate any rationale for the special obligations of China, and the negotiating history of the Protocol has not been made public. As a result, it can be diffi cult to interpret the Protocol provisions by following a strictly applied textualist approach. Furthermore, the China-specifi c provisions include broad undertakings that go to the heart of China's economic and legal systems. These systemic obligations penetrate deeper into the domestic policy domain of a sovereign nation than any other WTO agreement. Consequently, how to interpret the scope of such provisions becomes a politically sensitive matter. The goal, of course, is to give full effect to each of the Protocol provisions without improperly intruding into the legitimate policy space of China. However , given the lack of clear guidance from …