Who Determines the ‘Permissibility’ of an Interpretation Within the Meaning of Article 17.6(ii) of the Anti-dumping Agreement? A Constructive Commentary on the Colombia – Frozen Fries Approach

The interpretation of Article 17.6(ii) of the Anti-dumping Agreement has become a pivotal issue in World Trade Organization (‘WTO’) dispute settlement proceedings, especially amidst recent challenges at the WTO. Traditionally, the WTO Appellate Body has adhered to a single ‘correct’ interpretation of the Anti-dumping Agreement, as guided by the Vienna Convention on the Law of Treaties (‘VCLT’). This approach effectively dismissed alternative interpretations presented by responding Members. However, on 21 December 2022, the arbitrators in the Multi-Party Interim Appeal Arbitration Arrangement (‘MPIA’) in the case of Colombia – Frozen Fries deviated from this longstanding position. They concluded that a ‘permissible interpretation’ need not be ‘correct’ or ‘final’. This development is particularly intriguing in light of the US Supreme Court’s 28 June 2024 decision in Loper Bright Enterprises v. Raimondo (‘Loper’), which overturned the Chevron deference. The Court declared that in statutory interpretation, if an interpretation is not the best, it is not permissible. Given the notable parallels between Article 17.6(ii) and Chevron deference, the US Supreme Court’s ruling raises significant questions regarding the legal standard applied in Colombia – Frozen Fries. This paper first explores the background and evolution of WTO jurisprudence concerning Article 17.6(ii) of the Anti-dumping Agreement. It then examines the legal standard introduced in the Colombia – Frozen Fries (the ‘MPIA Standard’). Finally, it offers constructive commentary on the implications and potential impact of the MPIA Standard on future WTO dispute settlements.