RESTRICTEDWORLD TRADE
ORGANIZATIONWT/GC/W/473
3 May 2002
(02-2537)
General Council
13-15 May 2002Original:  Spanish
PROPOSAL TO REMOVE AND AVOID INCONSISTENCIES
IN THE TEXTS OF THE WTO AGREEMENTS
Communication from Chile
The following communication, dated 2 May 2002, has been received by the Chairman of the
General Council from the Permanent Mission of Chile.
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As you are aware, the WTO Agreements were done in three languages – English, French and
Spanish – all of them equally authentic.  However, over the years a number of discrepancies have
been detected between the different versions which alter, in some cases radically, the meaning andscope of the provisions in question.  Added to this is the fact that in almost every case, the panel and
the Appellate Body have based their reports, and ultimately their conclusions, on the English language
version of the Agreements.  This can have serious consequences as regards the commitments and
obligations of WTO Members under those Agreements, which were incorporated in their domestic
legislation in one, or at most two languages.
Chile believes that this situation should be corrected to ensure that the three-language
versions of the Agreements resulting from the Uruguay Round have the same meaning and are
interpreted in the same way.  To that end, we have prepared the attached proposal, which calls upon
WTO Members to study the matter, to reflect on the consequences of maintaining the status quo, and
in fact to try to devise a way of harmonizing the different versions without renegotiating the
Agreements.
Accordingly, I would be grateful if you would introduce an item in the agenda of the next
meeting of the General Council, on 13 May 2002, that would enable Chile to submit this proposal for
consideration by Members.  I would suggest that the item be called "Proposal to remove and avoid
inconsistencies in the official versions of the texts of the WTO Agreements".  I would also be gratefulif you would circulate the attached document to Members.
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Although the texts of the WTO Agreements were drafted in three languages, there are a
number of inconsistencies that would appear to be largely due to translation errors following
negotiation in one of the languages.  These discrepancies alter the meaning and scope of the different
provisions from one version to the other, and hence upset the balance of rights and obligations of
Members.WT/GC/W/473
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The discrepancies in the texts as they stand should be clarified in order to avoid future
problems.  At the same time, measures should be taken to safeguard against the appearance of similar
discrepancies if the Agreements are amended as a result of the recently initiated negotiations or
similar negotiations in the future.
Introduction
The WTO Agreements were done in the English, French and Spanish languages, each text
being equally authentic.  Moreover, as stipulated in the Rules of Procedure for Sessions of the
Ministerial Conference and Meetings of the General Council, these three languages are the working
languages of the WTO.
At the same time, the WTO Agreements are incorporated in the legal system of each Member,
whether directly in the form of an international trea ty, or by incorporation of their provisions in the
country's domestic legislation.  In either case, they  are incorporated in one, or at most two, of the
languages.  For example, in Chile, the Uruguay Round Agreements were incorporated in the legal
system as international treaties, and the text that was studied, discussed and approved by the NationalCongress was obviously the Spanish version.  In Chile, as we suppose to be the case in almost all
other Member countries, it is the version that has been incorporated through the relevant constitutional
procedures that is valid.  At the international level, the three versions are equally valid.
When the legal texts were drafted in the three languages, great care was taken to ensure that
they were equal, i.e. that there were no discrepancies or differences between them.  Unfortunately,
however, there are in fact differences, and some of them are significant.
Let us take some examples:
(a) Article 9.1 of the Agreement on Safeguards states the following in Spanish:  "No se
aplicarán medidas de salvaguardias contra un producto originario de un país en
desarrollo Miembro cuando la parte que corresponda a éste … "  The English version
reads as follows:  "Safeguard measures shall not be applied against a product
originating in a developing country Member as long as its share … ".
Unlike the English version, the Spanish version does not include the concept of "as long as".
In other words, according to the Spanish version, the exemption of a developing country lasts for theduration of the safeguard measure, regardless of whether the country in question increases its share
beyond 3 per cent during the validity of the measure, while according to the English version, the
importing country could remove from the list of exemptions a developing country that increases its
share beyond 3 per cent after the safeguard measure has been applied.
(b) Annex II of the Agreement on Implemen tation of Article VI of the General
Agreement on Tariffs and Trade 1994 contains two provisions for which the meaning
and scope of the English and Spanish versions are very different:
The Spanish version of paragraph 3 of Annex II stipulates:  " Al formular las determinaciones
deberá tenerse en cuenta toda la información verificable, presentada adecuadamente …  ";  the
English version reads:  "… by the authorities, should be taken into account when determinations are
made".  In other words, a provision that is mandatory in the Spanish version is made conditional in the
English version.
Similarly, the Spanish version of paragraph 5 of the same Annex states:  " …, ese hecho no
será justificación para que las autoridades la descarten, siempre que …  ", while the English versionWT/GC/W/473
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reads:  ", this should not justify the authoritie s from disregarding it, provided … ".  Again, the
provision is conditional in English where it is mandatory in Spanish.
(c) Article 18.2 of the Understanding on Rules and Procedures Governing the Settlement
of Disputes (DSU) refers to communications  with the panel or Appellate Body.  The
Spanish version of the paragraph states:  " A petición de un Miembro, una parte en la
diferencia podrá también facilitar un resumen no confidencial …  ", while the English
version reads:  "A party to a dispute shall also, upon request of a Member, provide a
non-confidential summary of … ".  Once again, we have a mandatory provision, this
time in the English version, which is not binding in the other version, the Spanish
version.
What is the problem?
According to Article 3.2 of the DSU, the disput e settlement system "serves to preserve the
rights and obligations of 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."  Panel and Appellate Body precedent makes it clear that the rules in question arethe Vienna Convention.  Article 33 of the Vienna  Convention states that when a treaty has been
authenticated in two or more languages – as in the case of the Marrakesh Agreement Establishing the
WTO and its Annexes – the text is equally authoritative in each language.  Exception is made when
the treaty clearly establishes that the parties agree that, in case of divergence, a particular text shall
prevail, which is not the case for the WTO Agreements.  Moreover, the terms of the treaty arepresumed to have the same meaning in each authentic text.  When a comparison of texts discloses a
difference of meaning, the meaning which best reconciles the texts, having regard to the object and
purpose of the treaty, shall be adopted.
There are not many examples in international jurisprudence of conflict situations between
different language versions of the same treaty.  One of the few precedents, and one which has served
ever since as a basis for resolving language conflicts, is the Mavrommatis  case of the Permanent Court
of International Justice (PCIJ).  The PCIJ concluded, in that case, that where two versions possessing
equal authority existed, one of which appeared to have a wider bearing than the other, it was bound to
adopt the more limited interpretation which could be made to harmonize with both versions and
which, as far as it went, was doubtless in accordance with the common intention of the parties.
1
There is no record of any disputes in which a Member has claimed a discrepancy in the
different versions of the WTO Agreements.  However, Chile, as third party in a dispute, recently
pointed out the differences in meaning and scope of certain provisions of the Anti-Dumping
Agreement.2  In that particular case, Chile argued that the Spanish version should prevail because it
was the most restrictive and consistent with the meaning that the Uruguay Round negotiators gave to
the Anti-Dumping Agreement.
Furthermore, except in one case, all panel and appellate proceedings have been conducted in
English.  This is due to the shortage of panellists, Appellate Body members and Secretariat officials
with a sufficient knowledge of Spanish and/or Frenc h.  Added to this is the recurring practice, often
indispensable, of resorting to the services of le gal consultants who, in general, come from the United
States and Canada, and to a lesser extent, from Br ussels.  Another example is the Advisory Centre on
WTO Law, which conducts its work predominantly in  English.
                                                     
1 Publications of the Permanent Court of International Justice Series A No. 2, 30 August 1924, page 19.
2 United States – Anti-Dumping and Counterva iling Measures on Steel  Plate from India (WT/DS205).
Oral submission by Chile.WT/GC/W/473
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This reality means that WTO dispute settlement proceedings are conducted on the basis of the
English version of the WTO Agreements, without ta king account of the two other versions.  In many
cases, the parties to the dispute have sought rulings from the panels or the Appellate Body on
interpretations of texts in English that may have been inconsistent with, or in clear contradiction to the
Spanish or French versions.
It is not the purpose of this proposal to alter that reality, and we recognize the efforts made by
the Legal Division and the Secretariat of the Appellate Body to include Spanish-speaking
professionals.  On the contrary, the purpose of this proposal is to harmonize the texts of the
Agreements in order to anticipate the problems and conflicts that could arise as a result, indeed, of the
proper implementation by governments of obligations and rights which varied according to the
language version which served as a  source of law.  This would ensure that the reality described abovedid not affect those rights and obligations or disrupt the balances achieved during the Uruguay Round,
or those that may be achieved in future negotiations.
Proposal
Distinguishing between two situations which require different solutions, we propose the
following:
(a) Under the auspices and guidance of the General Council, Members shall:
(i) Revise the legal texts resulting from the Uruguay Round of Multilateral
Trade Negotiations and identify the discrepancies between the three versions;
(ii) reach an understanding concerning the text that should prevail;
(iii) develop a procedure for putting the relevant changes into effect.
It may not initially be possible to identify all of the discrepancies.  Consequently, it would be
logical for the agreed procedure to be applied each time a Member or the Secretariat calls attention to
a conflict in the texts.
Although what is proposed should not be viewed or considered as a negotiation process,
account will have to be taken of the provisions concerning amendments (Article X of the Marrakesh
Agreement) as well as those concerning the authority to adopt interpretations of the Marrakesh
Agreement and its Annexes (Article IX.2 of the Marrakesh Agreement).
(b) As regards the negotiating agenda agreed during the Fourth Session of the Ministerial
Conference, Members should adopt a similar approach to ensure that the results of the
negotiations – whether new texts or interpretations or understandings of the current
texts – reflect full harmony between the three language versions.  To that end, we
shall submit a proposal to the Trade Negotiations Committee that will enable
Members to adopt guidelines to ensure such coherence.  These guidelines could alsobe applied to any future negotiating process in order to avoid further inconsistencies.
In fact, these guidelines could possibly emerge from the process described in
paragraph (a) above.
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