Decisions of the Appellate Body of the World Trade Organization European Communities--Customs Classification of Certain Computer Equipment 5. Conclusions The Appellate Body has appropriately clarified that treaty interpretation in the WTO system must consider the intent of all (or at least both) parties to the treaty. The Panel's shortcut method of interpretation, while perhaps resulting in the same analysis as a bilateral or multilateral determination of intent, was infelicitously described as a search for the "legitimate expectations" of the exporting state. This approach could be salvaged by emphasis on the legitimacy of the expectations, but there was no need to do so. While the Appellate Body correctly rejected the interpretative methodology used by the Panel, this decision is troubling for the failure of the Appellate Body actually to apply a substitute methodology. In other words, while it was correct to reject a reference to the exporting state's "legitimate expectations," this does not seem a sufficient basis to reject the U.S. claims. Rather, it seems incumbent upon the Appellate Body to perform a full interpretative analysis of its own in order to decide the case. Alternatively, perhaps the Appellate Body should have the capacity to remand to the Panel for a revision in accordance with the Appellate Body's interpretative methodology.26 Indeed, the Appellate Body never considers the U.S. claim regarding non-violation nullification and impairment, an alternative claim that the Panel did not reach due to its finding of violation. The appellate procedure seems unworkable without some means of ensuring that claims are evaluated in full. Finally, the distinction drawn here, and in the India--Patents decision, between violation and non-violation complaints is troubling. Again, reasonable or legitimate expectations are simply an indication of intent. They are not, as the Appellate Body states, subjective, because they are qualified and rendered objective by the requirement of reasonableness or legitimacy of the expectations. In both violation and non-violation complaints, the search is the same: what is the intent of the treaty? The only difference for these purposes is that in non-violation complaints the intent is inferred teleologically without a specific textual prohibition. The alternative would be startling: that the Appellate Body is rejecting teleological interpretation in violation cases. 26 This has been suggested in the current review of the DSU. See WTO Off to Slow Start on Review of Dispute Settlement Mechanism, 16:23 Inside U.S. Trade, June 12, 1998, at 9.
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