The legitimate regulatory distinction: challenging the boundary between interpretation and law-making in the appellate body

This paper focuses on the nature of the Appellate Body's interpretative method in arriving at its decision to read-in that Article 2.1 of the Agreement on Technical Barriers to Trade (TBT Agreement) will not prohibit a detrimental impact on competitive opportunities for imports in cases where such detrimental impact stems exclusively from a legitimate regulatory distinction. This reading-in of the new phrase has been described as having been a contextual and teleological approach to interpretation by the Appellate Body. In this paper I consider what is meant by a teleological approach to interpretation and whether such an interpretation could in fact be another name for judicial law-making in some instances. In doing so, I suggest that a test to determine whether or not law-making has taken place could be to ask whether the Appellate Body's expression of the rights and obligations contained in the provision at issue was predictable. This is then applied to the Appellate Body's reasoning in US - Clove Cigarettes (2012) after an analysis of this reasoning, and from this I conclude that law-making could indeed have taken place in this case under the guise of a teleological approach to interpretation.