A Commentary on the Anti-Counterfeiting Trade Agreement (ACTA)
Elgar Commentaries series
Chapter 3: Preamble
ROLE OF THE PREAMBLE IN THE INTERPRETATION OF ACTA ACTA is not a treaty, but in relation to the TRIPS Agreement, which is also not a treaty, the Vienna Convention on the Law of Treaties 1969 (Vienna Convention) has been called in to assist in its interpretation. The Understanding on Rules and Procedures Governing Settlement of Disputes (DSU), which deals with the resolution of disputes under the WTO Agreement,1 provides in Article 3.2 that it seeks to clarify the provisions of the agreements comprising the multilateral trading system ‘in accordance with customary rules of interpretation of public international law’. These rules are set out in Articles 31 and 32 of the Vienna Convention. In the first dispute under the TRIPS Agreement: US-India Patent Protection for Pharmaceuticals,2 the Dispute Panel stated that ‘like other provisions of the covered agreements, [it] must be interpreted in the light of (i) the ordinary meaning of its terms; (ii) the context; and (iii) its object and purpose, following the rules set out in Article 31(1) of the Vienna Convention’.3 Similarly, the Appellate Body stated that both ‘panels and the Appellate Body must be guided by the rules of treaty interpretation set out in the Vienna Convention’.4 Article 31.1 of the Vienna Convention provides that a treaty ‘shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. Article 31.2 provides...
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