The recent panel report about Japan - DRAMS offers an interesting and somewhat irritating example of how a word could loose completely its ordinary meaning through a WTO panel’s interpretation. No wonder that we will hear once again the accusation of "judicial activism".
Article 12.9 of the SCM Agreement defines the term "interested parties" in a CVD investigation through a list, but adds that this " list shall not preclude Members from allowing domestic or foreign parties other than those mentioned above to be included as interested parties". Korea (contesting the unilateral sending by Japan of Questionnaires to entities not involved directly in the CVD investigation) suggested reasonably that the use of the word "allowing" in this passage implies that there must be a request from a non-list party before it can be included as an "interested party".
The panel disagreed with Korea and said that " The term "allowing" in the second sentence of Article 12.9 could be understood as referring to a Member allowing, through national legislation or implementing regulations, certain parties to participate in investigations as interested parties".
I find this passage disturbing. It is clear for me that if the panel interpretation were correct the passage would have been drafted as "this list shall not preclude Members from including domestic or foreign parties other than those mentioned above as interested parties." To allow is a straightforward verb which means "to permit" and not "to include". It also implies that someone is asking permission to be included in a scenario in which he does not want apparently to be an actor. Everybody understands that it does not make sense to "allow" someone to do something that he does not want to do.In the European Union, the CVD legislation understood well this logic since it expects groups desiring to be considered as interested parties to "make themselves known."
I understand that there is a policy rationale behind the Japan- Drams panel interpretation. However, this is not a justification for distorting the most ordinary meaning of a term. In case the policy rationale of the Japan-Drams panel is legitimate and was in fact what the negotiators intended, then someone was sleeping at the wheel while the SCM texts were drafted.
If such obvious words are distorted by a panel, one can wonder what is left for more ambiguous terms!
