Article 31(3)(c) of the *Vienna Convention on the Law of Treaties* (*VCLT*)<fnref n="1" /> provides that a treaty shall be interpreted taking account of “any relevant rules of international law applicable in the relations between the parties.” The meaning of “the parties” in the context of that provision has, in the words of a 2011 Appellate Body Report, been “the subject of much academic debate.”<fnref n="2" /> In the World Trade Organization (WTO) context, the question comes down to whether a non-WTO treaty is applicable in the relations between “the parties” only insofar as it is applicable between *all* WTO Members, or if it suffices that it is applicable to a relevant subset of Members, such as the parties to the dispute.<fnref n="3" />

This contribution explains how WTO adjudicators<fnref n="4" /> have pragmatically bypassed—and perhaps now largely defused—this contentious issue by using several alternative doorways for taking non-WTO treaties and instruments into account for purposes that arguably fall outside the purview of Article 31(3)(c). A first alternative doorway has been to refer to non-WTO treaties and instruments for purposes of establishing the “ordinary meaning” of the terms under Article 31(1), or for purposes of “confirming” an interpretation pursuant to Article 32 of the *Vienna Convention*. A second alternative doorway has been for adjudicators to take such materials into account as *evidence of relevant facts*. As will be shown in this contribution, this second doorway, which appears to have flown below the radar of most commentators, is the one used most frequently by WTO panels to take non-WTO treaties and instruments into account for purposes that arguably could fall outside the purview of Article 31(3)(c).

What follows elaborates, beginning with a recapitulation, from the perspective of WTO dispute settlement, on the debate surrounding the meaning of “the parties” in Article 31(3)(c).

<footnote n="1">*Vienna Convention on the Law of Treaties*, 23 May 1969, 1155 UNTS 331, art 31(3)(c) (entered into force 27 January 1980) [*VCLT*].</footnote>

<footnote n="2">*European Communities and certain member States—Measures Affecting Trade in Large Civil Aircraft* (*Complaint by the United States*) (2011), WTO Doc WT/DS316/AB/R (Appellate Body Report) at para 844 [*EC and certain member States—Large Civil Aircraft*].</footnote>

<footnote n="3">While it is often assumed that there is a binary choice between interpreting “the parties” as meaning either *all* parties to the treaty being interpreted, versus meaning just those parties to a *dispute*, there are other possible answers that lie in between these poles, and the latter option is not even the most liberal pole on the spectrum of possible interpretations. It can be argued that it suffices if the non-WTO treaty be applicable in the relations between “the parties” to the *non-WTO treaty in question*, regardless of whether it is applicable to all, or even any, parties to the treaty being interpreted, or all, of even any, of the parties to the dispute. For example, in *EC—Biotech* case, discussed further below, the European Communities (as it then was) argued that the Convention on Biological Diversity and the Cartagena Biosafety Protocol qualified as “relevant rules of international law applicable in the relations between the parties” to those non-WTO treaties, and that this sufficed to meet the threshold for qualifying as relevant interpretative materials, under Article 31(3)(c), for interpreting the relevant provisions of the *SPS Agreement*. Under this reading, it would not matter that the United States, one of the parties to the dispute, was not a party to those non-WTO treaties.</footnote>

<footnote n="4">Throughout this article the term “adjudicators” is used in the context of WTO dispute settlement as shorthand for panels and the Appellate Body. Under the WTO rules, the role of these bodies is to assist the Members in the Dispute Settlement Body in making the recommendations or in giving the rulings provided for under the agreements.</footnote>
# I. A Brief Recapitulation of the Debate Surrounding “the Parties” in Article 31(3)(c)
        from the Perspective of WTO Dispute Settlement

At the time of writing, this debate has been the subject of so much academic writing as to make one wary of attempting to recapitulate even the broad outlines of the debate here. To set the stage for the following sections of this contribution, we will therefore focus on a few key WTO cases, which culminated in the Appellate Body’s artful exercise of issue avoidance in *EC and certain member States—Large Civil Aircraft*.

In the landmark *US—Shrimp* dispute, the Appellate Body’s 1998 report famously referenced a range of international conventions in the context of interpreting and applying Article XX of the *General Agreement on Tariffs and Trade*(*GATT 1994*). The Appellate Body did not reference Article 31(3)(c) (or any other provision of Articles 31 and 32 of the *Vienna Convention*) when doing so, leaving open the question of which element(s) therein served as the doorway for doing so. In *US—Shrimp*, the Appellate Body noted that most of the international instruments referred to had been ratified or otherwise accepted by the parties *to the dispute* (e.g. as reflecting customary international law):

> We note that India, Malaysia and Pakistan have ratified the UNCLOS. Thailand has signed, but not ratified the Convention, and the United States has not signed the Convention. In the oral hearing, the United States stated: “[…] we have not ratified this Convention although, with respect to fisheries law, for the most part we do believe that UNCLOS reflects international customary law.” […] We note that India, Malaysia and Pakistan have ratified the Convention on Biological Diversity, and that Thailand and the United States have signed but not ratified the Convention. […] We note that India and Pakistan have ratified the Convention on the Conservation of Migratory Species of Wild Animals, but that Malaysia, Thailand and the United States are not parties to the Convention.<fnref n="5" />

In the subsequent *Dispute Settlement Understanding* (*DSU*) Article 21(5) compliance proceedings, the panel report, issued in 2001, referred back to the Appellate Body’s references to these international agreements, and made reference to Article 31(3)(c) of the *Vienna Convention*:

> [W]e note that the Appellate Body, like the Original Panel, referred to a number of international agreements, many of which have been ratified or otherwise accepted by the parties to this dispute. Article 31.3(c) of the *Vienna Convention* provides that, in interpreting a treaty, there shall be taken into account, together with the context, “any relevant rule of international law applicable to the relations between the parties”. We note that, with the exception of the Bonn Convention on the Conservation of Migratory Species of Wild Animals (CMS), Malaysia and the United States have accepted or are committed to comply with all of the international instruments referred to by the Appellate Body in paragraph 168 of its Report.<fnref n="6" />

In the subsequent panel report in *EC—Approval and Marketing of Biotech Products*, circulated in 2006, the panel engaged in a length analysis of the meaning of “the parties” in Article 31(3)(c). It did so in the context of addressing the European Communities’ argument that the *Convention on Biological Diversity* and the *Biosafety Protocol* should be taken into account, pursuant to Article 31(3)(c), to interpret the Sanitary and Phytosanitary (SPS) disciplines at issue in that dispute. The panel observed that Article 31(3)(c) does not refer to “one or more parties”, nor does it refer to “the parties to a dispute,” as do certain other provisions of the *Vienna Convention*.<fnref n="7" /> For these and other reasons set out in its analysis, the *EC—Biotech* panel concluded that “the rules of international law to be taken into account in interpreting the WTO agreements at issue in this dispute are those which are applicable in the relations between the WTO Members.”<fnref n="8" /> With regard to the Appellate Body’s references to these international instruments in *US—Shrimp*, the *EC—Biotech* panel stated (in a later section of its analysis) that

> the Appellate Body did not suggest that it was looking to other rules of international law because it was required to do so pursuant to the provisions of Article 31(3)(c) of the *Vienna Convention*. Indeed, the Appellate Body did not even mention Article 31(3)(c).<fnref n="9" />

Interestingly, while certain elements of the *EC—Biotech* panel’s analysis could be understood as interpreting “the parties” in Article 31(3)(c) to mean *all* WTO Members, it is not clear that the panel actually reached that conclusion, or at least not in a definitive manner. The panel seemed to consider that its interpretation and reasoning left open the possibility that a non-treaty applicable in the relations between the subset of WTO members *party to a dispute* could be taken into account pursuant to Article 31(3)(c). On the one hand, there are statements like “the text and context of Article 31(3)(c) do not support interpreting the term ‘the parties’ as meaning ‘the parties to a dispute’.”<fnref n="10" /> On the other hand, the panel’s reasoning repeatedly stresses, and seems to take as the decisive circumstance, that the United States, i.e. one of the parties to the dispute (the United States), was not a party to the *Convention on Biological Diversity* and the *Biosafety Protocol*. And in this connection, the panel states:

> Before applying our interpretation of Article 31(3)(c) to the present case, it is important to note that the present case is not one in which relevant rules of international law are applicable in the relations between all parties to the dispute, but not between all WTO Members, and in which all parties to the dispute argue that a multilateral WTO agreement should be interpreted in the light of these other rules of international law. Therefore, we need not, and do not, take a position on whether in such a situation we would be entitled to take the relevant other rules of international law into account.<fnref n="11" />

This panel report was not appealed. However, the *EC—Biotech* panel’s relatively narrow interpretation of the term “the parties” in Article 31(3)(c), i.e. as meaning that all WTO Members would have to be party to the non-WTO treaty for it to be taken into account when interpreting the WTO agreements pursuant to Article 31(3)(c), attracted strong criticism among some commentators. Notably, the panel’s conclusion was singled out for criticism in the 2006 Report of the Study Group of the International Law Commission, finalized by Professor Martii Koskenniemi.<fnref n="12" /> In this report, Professor Koskenniemi argued that:

> Bearing in mind the unlikeliness of a precise congruence in the membership of most important multilateral conventions, it would become unlikely that any use of conventional international law could be made in the interpretation of such conventions. This would have the ironic effect that the more the membership of a multilateral treaty, such as the agreements covered by WTO, expanded, the more those treaties would be cut off from the rest of international law. In practice, the result would be the isolation of multilateral agreements as “islands” permitting no references inter se in their application.<fnref n="13" /> It would also prohibit any use of regional or other particular implementation agreements—including *inter se* agreements—that may have been concluded under a framework treaty as interpretative aids to the latter. This would seem contrary to the legislative ethos behind most multilateral treaty-making and, presumably, the intent of most treaty-makers. Of course, some of this might be mitigated by requiring a finding that, if a treaty is not in force between all members to the treaty under interpretation, a rule contained in it be treated as customary international law. […]
> A better solution is to permit reference to another treaty provided that the parties in dispute are also parties to that other treaty.<fnref n="14" />

This passage in Koskenniemi’s report gives a flavour of the kinds of arguments that can be lined up to marshal support for the view that “the parties” in Article 31(3)(c) should not be interpreted strictly. And interestingly, for purposes of the present tribute, Professor Koskenniemi’s arguments draw from Professor Marceau’s thought leadership in this area and refer to Professor Marceau’s 2002 article on “WTO dispute settlement and human rights.”<fnref n="15" />

The above WTO cases, the International Law Commission (ILC) Study Group Report, and the voluminous body of academic commentary on this issue that emerged in the first 15 years of WTO dispute settlement formed the backdrop for the Appellate Body’s 2011 decision in *EC and certain member States—Large Civil Aircraft*. In that case, the European Communities (as it then was) argued that a bilateral agreement between itself and the United States regulating government support for large civil aircraft (the *1992 Agreement*)<fnref n="16" /> was relevant to the interpretation and application of the WTO subsidies disciplines at issue. The European Communities argued that the panel could directly apply the provisions of the *1992 Agreement* as “applicable law,” or could take into account the 1992 Agreement in its interpretation of WTO subsidy disciplines pursuant to Article 31(3)(c) of the *Vienna Convention*, or that the disputing parties’ continued application of the *1992 Agreement* after the entry into force of those WTO disciplines meant the United States was estopped from pursuing its claims. The United States disputed all of these arguments, and the panel rejected them as well (without considering it necessary to rule on the scope of Article 31(3)(c)<fnref n="17" />).

On appeal, the Appellate Body addressed the European Union’s (as it then was) claim that the panel erred in not relying on the *1992 Agreement* to interpret the subsidies disciplines at issue. With a view to helping the reader get a sense of the complexity and multi-layered nature of the arguments that can be marshalled on both sides of this issue, it may be helpful to set out, in some detail, the arguments presented by the disputing parties (the European Union and United States) on appeal.

The European Union argued for an interpretation of “the parties” to mean only to “the parties to the dispute,” and not all of “the parties to the treaty being interpreted.”<fnref n="18" /> The European Union noted that other provisions, including Article 31(2) of the *Vienna Convention*, refer to “all the parties”, implying that, if the drafters’ intention was to require that the relevant rules of international law must be applicable in the relation between “all the parties,” they would have said so explicitly. Regarding the object and purpose of Article 31(3)(c), the European Union referred to the preambular provisions of the *Vienna Convention*, which highlight the relevance of international treaties and their respect in the relationship between States, including in international disputes and that if two States have signed an international agreement on a particular issue, the respect of that commitment in the context of an international dispute is of fundamental importance. The European Union considered Article 31(3)(c) to be a principle of “systemic integration” of all international agreements applicable in the parties’ relations and noted that it has been applied in this way by other international courts. Additionally, the European Union drew attention to past panel and Appellate Body reports.

The European Union also sought to ground its interpretation in prior panel and Appellate Body reports. It noted the two “contradictory” WTO panel reports on the interpretation of “the parties”: on the one hand, the panel report in *US—Shrimp* *(Article 21(5)—Malaysia)* supports an interpretation of “parties to the dispute” and, on the other hand, the panel report in *EC—Approval and Marketing of Biotech Products* supports an interpretation of “the parties” as all WTO Members. The European Union observed that the panel report in *EC—Approval and Marketing of Biotech Products* has been “severely criticized” by the ILC Study Group for its approach, since it makes it practically impossible ever to find a multilateral context where reference to other multilateral treaties as aids to interpretation under Article 31(3)(c) would be allowed.<fnref n="19" />

The United States disagreed with the interpretation of “the parties” advocated by the European Union.<fnref n="20" /> The United States submitted that, although worded differently, Articles 31(2)(a) and 31(2)(b) of the *Vienna Convention* refer respectively to agreements “between all the parties,” and that any instrument made “by one or more parties […] and accepted by the other parties” illustrates that all the parties must endorse an instrument “in some fashion” before it can become one of the interpretive tools to which Article 31 of the *Vienna Convention* refers. The United States rejected the European Union’s argument that the use of “all the parties” in Article 31(2)(a) indicates that “the parties” in Article 31(3)(c) must mean “some or all of the parties”. The United States pointed out that, even under Article 31(2), the use of two different phrases to refer to all the parties indicates that the negotiators of the *Vienna Convention* recognized multiple ways to capture this concept. With respect to the “object and purpose,” the United States disagreed that the preamble of the *Vienna Convention* provides a basis for reading Article 31 in a manner that would require that an agreement between only two parties to the *Agreement on Subsidies and Countervailing Measures*<fnref n="21" /> (*SCM Agreement*) would affect the meaning for other WTO Members that did not accept the bilateral agreement. The United States observed that Articles 3(2) and (11) of the *DSU* provide support for the view that the *DSU* establishes jurisdiction over only those disputes arising under the covered agreements and not over all disputes among WTO Members with regard to all treaties to which they are parties.

The United States also sought to ground its interpretation in prior panel and Appellate Body reports. The United States did not consider that the various panel and Appellate Body reports relied on by the European Union supported its interpretation that bilateral agreements among only two WTO Members can be used to interpret the covered agreements. In this connection, the United States considered that the panel’s ruling in *EC—Approval and Marketing of Biotech Products* was persuasive. The United States also referred to findings of panels and the Appellate Body in *US—Shrimp*<fnref n="22" />, *US—Shrimp (Article 21(5)—Malaysia)*<fnref n="23" />, *EC—Poultry*<fnref n="24" />, and *US—FSC* *(Article 21(5)—EC)*<fnref n="25" />, and explained that the non-WTO rules at issue in those disputes did not qualify as instruments within the meaning of Article 31(3)(c), but were instead used to interpret the ordinary meaning of terms under Article 31(1) or the special meaning of terms under Article 31(4) of the *Vienna Convention*. The United States also asserts that, even using these other interpretative tools, the Appellate Body did not consider the isolated practices of one or two countries.

In addressing this issue, the Appellate Body began by observing that the meaning of the term “the parties” in Article 31(3)(c) of the *Vienna Convention* has in recent years been the subject of much academic debate and has been addressed by the ILC.<fnref n="26" /> The Appellate Body added that while the participants referred to WTO panels that have addressed its meaning<fnref n="27" />, the Appellate Body itself “has made no statement as to whether the term ‘the parties’ in Article 31(3)(c) refers to *all* WTO Members, or rather to a subset of Members, such as the parties *to the dispute*.”<fnref n="28" /> The Appellate Body then proceeded to acknowledge that there were competing considerations relevant to resolution of this issue:

> An interpretation of “the parties” in Article 31(3)(c) should be guided by the Appellate Body’s statement that ’the purpose of treaty interpretation is to establish the common intention of the parties to the treaty.” This suggests that one must exercise caution in drawing from an international agreement to which not all WTO Members are party. At the same time, we recognize that a proper interpretation of the term “the parties” must also take account of the fact that Article 31(3)(c) of the *Vienna Convention* is considered an expression of the “principle of systemic integration” which, in the words of the ILC, seeks to ensure that “international obligations are interpreted by reference to their normative environment” in a manner that gives “coherence and meaningfulness” to the process of legal interpretation. In a multilateral context such as the WTO, when recourse is had to a non-WTO rule for the purposes of interpreting provisions of the WTO agreements, a delicate balance must be struck between, on the one hand, taking due account of an individual WTO Member’s international obligations and, on the other hand, ensuring a consistent and harmonious approach to the interpretation of WTO law among all WTO Members.<fnref n="29" />

The Appellate Body went no further than to conclude that it is necessary to strike a “delicate balance” between these considerations. How did it manage to avoid ruling on that issue? By concluding that, in the dispute at hand, the resolution of the European Union’s arguments regarding the *1992 Agreement* “need not turn on the proper meaning to be ascribed to the term ‘the parties’”, because

> [e]ven accepting the European Union’s argument that the *1992 Agreement* is “applicable in the relations between *the parties*”, we recall that for the *1992 Agreement* to qualify under Article 31(3)(c) of the *Vienna Convention*, it must be shown to be “relevant.”<fnref n="30" />

The Appellate Body proceeded to give its interpretation of the term “relevant,” and its reasons for concluding that the *1992 Agreement* was not “relevant” to the interpretation of the *SCM Agreement* provisions at issue.

<footnote n="5">*United States—Import Prohibition of Certain Shrimp and Shrimp Products* (*Complaint by India et al*) (1998), WTO Doc WT/DS58/AB/R (Appellate Body Report) at 49, nn 110—13 [*US—Shrimp* (Appellate Body Report)].</footnote>

<footnote n="6">*United States—Import Prohibition of Certain Shrimp and Shrimp Products—Recourse to Article 21.5 of the DSU by Malaysia*(*Complaint by Malaysia*) (2001), WTO Doc WT/DS58/R (Panel Report) at para 5.57 [*US—Shrimp* (Panel Report)].</footnote>

<footnote n="7">*European Communities—Measures Affecting the Approval and Marketing of Biotech Products* (*Complaint by the United States*) (2008), WTO Doc WT/DS291/R (Panel Report) at para 7.68 [*EC—Approval and Marketing of Biotech Products*].</footnote>

<footnote n="8">*Ibid* at para 7.68.</footnote>

<footnote n="9">*Ibid* at n 271.</footnote>

<footnote n="10">*Ibid* at n 247.</footnote>

<footnote n="11">*Ibid* at para 7.72.</footnote>

<footnote n="12">*Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law*, UNGA, Report of the Study Group of the International Law Commission, 58<sup>th</sup> session, UN Document A/CN.4/L.682 (2006) (finalized by Martti Koskenniemi) [*ILC Report on Fragmentation*].</footnote>

<footnote n="13">Gabrielle Marceau, “WTO Dispute Settlement and Human Rights” (2002) 13:4 EJIL 753 at 781.</footnote>

<footnote n="14">*ILC Report on Fragmentation*,*supra*note 12 at paras 471—72.</footnote>

<footnote n="15">Gabrille Marceau, “WTO dispute settlement and human rights” (2002) 13:4 EJIL 753.</footnote>

<footnote n="16">EU, *Agreement between the European Economic Community and the Government of the United States of America concerning the application of the GATT Agreement on Trade in Civil Aircraft on trade in large civil aircraft*, [1992] OJ, L 301/32 [*1992 Agreement*].</footnote>

<footnote n="17">*EC and certain member States—Large Civil Aircraft*, *supra* note 2 at paras 7.99—7.100.</footnote>

<footnote n="18">See generally *EC and certain member States—Large Civil Aircraft*, *supra* note 2 at paras 80—82.</footnote>

<footnote n="19">UNGA, *supra* note 12 paras 443—50.</footnote>

<footnote n="20">See generally *EC and certain member States—Large Civil Aircraft*, *supra* note 2 at paras 310—13.</footnote>

<footnote n="21">*Marrakesh Agreement establishing the World Trade Organization*, 15 April 1994, 1867 UNTS 3, Annex 1a, *Agreement on Subsidies and Countervailing Measures [Marrakesh Agreement].*</footnote>

<footnote n="22">*US—Shrimp* (Appellate Body Report), *supra* note 5 at 49, nn 110—13.</footnote>

<footnote n="23">*US—Shrimp* (Panel Report), *supra* note 6.</footnote>

<footnote n="24">European Commnuities*—Measures Affecting Importation of Certain Poultry Products*(Complaint by Brazil) (1998), WTO Doc WT/DS69/R (Panel Report).</footnote>

<footnote n="25">*United Stated—Tax Treatment for*“*Foreign Sales Corporations*” (Complaint by European Communities) (2006), WTO Doc WT/DS108/R (Panel Report).</footnote>

<footnote n="26">*EC and certain member States—Large Civil Aircraft*, *supra* note 2 at para 844, citing the *ILC Report on Fragmentation*, *supra* note 12 at paras 410—80.</footnote>

<footnote n="27">The Appellate Body referred in this regard to *EC—Approval and Marketing of Biotech Products*, *supra*note 7 at paras 7.65-7.89, and to *US—Shrimp* (Panel Report), *supra* note 6 at para 5.57.</footnote>

<footnote n="28">*EC and certain member States—Large Civil Aircraft*, *supra* note 2 at para 844.</footnote>

<footnote n="29">*Ibid*at para 845 [footnotes omitted].</footnote>

<footnote n="30">*Ibid* at para 846.</footnote>
# —

The approach taken by WTO panels and the Appellate Body is a case study in WTO pragmatism, i.e. avoiding ruling on controversial issues that are not necessary to resolve for purposes of deciding a dispute. As Andrew Lang has observed:

> The hallmarks of this style include actively seeking to avoid addressing the problem of normative conflicts, refusing to hierarchise different regimes of international law, rejecting anything which looks like an attempt to systematise or constitutionalise international law, and leaving controversial questions as open as possible, for as long as reasonable. At the level of technique, this is nothing more than the application of the methods which lawyers use everywhere to chart a careful path around sensitive normative or political questions, which appear at any given moment, and in any given context, to fall outside the boundaries of legal expertise. We find, for example, a heavy reliance on the specific configuration of facts in a number of the cases referred to earlier, which naturally reduces their systemic significance, and provides a number of grounds for future tribunals to distinguish them. We also see relatively frequent recourse to arguendo reasoning, which helps to leave certain key legal questions unresolved. Other avoidance techniques include a decision not to complete the analysis, or limiting the frame of reasoning by hewing closely to the content of parties’ arguments. The Appellate Body also sometimes relies heavily on the limits of its expertise, or of its institutional mandate, to avoid questions which they may not feel they have the legitimacy to address. Furthermore, we see on occasion also the Appellate Body sidestepping systemic questions concerning the relation between WTO and non-WTO law, by recasting problems of fragmentation as internal questions of the interpretation of WTO texts.<fnref n="94" />

The approach followed by panels—and in particular the second doorway of having recourse to international legal materials as evidence of relevant facts—can also be seen as a case study in the prescience of Gabrielle Marceau’s writings. Professor Marceau actually anticipated this approach, and succinctly expressed the basic idea behind it, many years before it ever gained a foothold in WTO dispute settlement practice. Specifically, one of the earliest and most important contributions to the academic literature on how Article 31(3)(c) should be interpreted and applied in the WTO context is Professor Marceau’s 1999 article, “*A call for coherence in international law: praises for the prohibition against ‘Clinical Isolation’ in WTO dispute settlement*”. That article set out an extended analysis of Article 31(3)(c), and how it may apply in a taxonomy of situations involving non-WTO treaties and the WTO agreements. In that context, Marceau included a subsection entitled “The Use of an MEA as Evidence of a Practice and as Factual Elements Relevant to an Article XX Assessment”, wherein she set out the idea that:

> It can also be argued that an examination of the relationship between the measure at issue and the prescription of a particular MEA could be used as evidence of compliance with the terms of the WTO agreements. Of course, interpreting law and applying it to the facts rarely divides neatly into a two-stage process, and much legal analysis will involve mixed questions of fact and law. In all of the above-mentioned situations […] it may be more difficult to argue that an MEA measure would benefit from a presumption of consistency with Article XX, the existence of an MEA could be used as part of the *factual analysis* of the circumstances of a dispute and the reasons why a Member adopted that particular trade measure and why it applied it that way. This examination should occur as part of a case-by-case analysis of the facts of the case.<fnref n="95" />

<footnote n="94">Lang, *supra* note 42 at 122 [footnotes omitted].</footnote>

<footnote n="95">Gabrielle G Marceau, “A call for coherence in international law: praises for the prohibition against ‘Clinical Isolation’ in WTO dispute settlement” (1999) 33:5 J World Trade 87 at 133.</footnote>