J 0006/22 - (I) Treaty interpretation and Article 31(3)(c) VCLT

Key points

• The Legal Board in this case (about re-establishment) did not hold oral proceedings, even though properly and timely requested by the appellant, and rejected the appeal (even without preliminary opinion in advance). The substance of the decision will be the subject of another post, possibly.  
  
  
• As a preliminary point, the Legal Board develops the framework for interpretation of the EPC under the VCLT.
• " Under Article 31(1) Vienna Convention [on the Law of Treaties], the starting point for the interpretation of the terms used in a trea­­­­ty provision [...] is their ordinary meaning in their context in light of the provision's object and purpose (...). However, it is necessary to go beyond the mere grammatical (literal) interpretation when a wording only superficially has a clear meaning. At any rate, a literal interpretation must not contra­dict the purpose of a provision (...).
• "The jurisprudence of the boards has also reiterated the im­portance of a "dynamic" or "evo­lutive" interpretation of the EPC in light of its object and purpose, as de­rived from Article 31(1), in connection with Article 31(3) Vienna Convention. Article 31(3) (a) and (b) refer to subsequent developments, namely subsequent agreements and practice among the parties to a treaty, thus presupposing a forward-looking approach."
• The underlying point is that the Legal Board wishes to depart from about 40 years of established case law, that oral proceedings are also held in cases that the Board a priori (i.e., before the oral proceedings) considers hopeless. 
• It may be important to cite the relevant provisions in full here because Art.31(3)(b) does not refer to any 'practice among the parties' but to "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation". As the EPC contracting states do not apply the EPC in a relevant context (only Art. 138), there can hardly be a practice of the EPC contracting states in the sense of paragraph (a) on Art. 116. Art.31(3)(a) refers to "any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions".
  
  
•  "Article 31(3)(c) adds: "There shall be taken into account, together with the context: any relevant rules of international law applicable in the relations between the parties."
• I believe this is the first time Art. 31(3)(c) VCLT is applied by the Boards. It is an interesting provision. 
• "These "relevant rules of international law" are commonly understood in the legal literature as referring to the law applicable at the time of interpretation."
• The Board cites: Linder­falk, On the Interpretation of Treaties (2007), 179 et seq., including references to the travaux prépa­ratoires to Article 31 Vienna Convention; 
• Linderfalk, p.180, bottom, discusses that during the discussion on Art. 31(3)(c), there was a proposal to add the words "in force at the time of conclusion of the treaty" and a proposal to add "in force at the time of application of the treaty". Neither proposal was adopted, and the question was left open. Linderfalk then proposes, on p.182, that what matters is whether the thing to be interpreted is "a generic referring expression with a referent assumed by the parties to be alterable". Hence, Linderfalk proposes a very nuanced analysis. 
• Gardiner, Treaty Interpretation, 2009, p.256 discusses the history of the provision in detail. It started as an attempt to address the issue of intertemporal application, but no consensus could be reached and the provision as adopted leaves it open.
• See also McLachlan, infra: "as Waldock tellingly put it in the Commissionís Explanatory Report, when explaining the omission of any more detailed rule about inter-temporality, the Commission abandoned the attempts to cover the point in the draft, realising that it would have involved entering into the whole relationship between treaty law and customary law".
• Polgári, The Role of the Vienna Rules in the Interpretation of the ECHR, 82 et seq.;
• This may refer to the following article: Polgári, "The Role of the Vienna Rules in the Interpretation of the ECHR", Erasmus Law Review, 2, (2021):82-95" doi:
  10.5553/ELR.000193, (open access)
  
• I don't see a relevant remark directly; the Legal Board does not identify the relevant page number in the article and does not quote the article. 
• Thimm-Braun, Evolutionary Inter­pretation and Other Developments of the Vienna Conven­tion on the Law of Treaties; 
• The Board: "on the dynamic/evolutive interpretation in general, see also, in­ter alia, International Law Commission, Conclusions of the Work of the Study Group on the Frag­mentation of Inter­national Law: Difficulties arising from the Diver­sification and Expansion of In­ter­national Law, pa­ragraph 478; 
• Note, this may be the following document with the same title and published by the UN: https://legal.un.org/ilc/texts/instruments/english/draft_articles/1_9_2006.pdf 
• This document does not have a paragraph 478. It contains the following remark, which seems the most pertinent:  "A treaty may convey whether in applying article 31 (3) (c) the interpreter should refer only to rules of international law in force at the time of the conclusion of the treaty or may also take into account subsequent changes in the law. "  (emphasis added)
• Arato, Subsequent Practice and Evolutive Inter­pretation: Techniques of Treaty In­terpretation over Time and their Diverse Conse­quences, The Law and Prac­­tice of International Courts and Tribunals 9 (2010), 443 et seq.).
• As a comment, the article following article seems to be frequently cited as an important contribution: McLachlan, The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention,  International and Comparative Law Quarterly 54(02):279 - 320, open access at  https://www.researchgate.net/publication/231992295 : "This article starts from the proposition that Article 31(3)(c) expresses a more general principle of treaty interpretation, namely that of systemic integration within the international legal system. The foundation of this principle is that treaties are themselves creatures of international law. However wide their subject matter, they are all nevertheless limited in scope and are predicated for their existence and operation on being part of the international law system."
• Article 31(3)(c) VCLT, therefore, seems to provide an (additional) legal basis for considering the ECHR in proceedings before the EPO, as well as TRIPS (under the dynamic interpretation of the provision and under EPC2000). See also G 2/02. 

EPO 

The link to the decision is provided after the jump, as well as (an extract of) the decision text.

https://www.epo.org/en/boards-of-appeal/decisions/j220006eu1

41. The jurisprudence of the boards has also reiterated the im­portance of a "dynamic" or "evo­lutive" interpretation of the EPC in light of its object and purpose, as de­rived from Article 31(1), in connection with Article 31(3) Vienna Convention. Article 31(3) (a) and (b) refer to subsequent developments, namely subsequent agreements and practice among the parties to a treaty, thus presupposing a forward-looking approach. Article 31(3)(c) adds: "There shall be taken into account, together with the context: any relevant rules of international law applicable in the relations between the parties."

These "relevant rules of international law" are commonly understood in the legal literature as referring to the law applicable at the time of interpretation (Linder­falk, On the Interpretation of Treaties (2007), 179 et seq., including references to the travaux prépa­ratoires to Article 31 Vienna Convention; Polgári, The Role of the Vienna Rules in the Interpretation of the ECHR, 82 et seq.; Thimm-Braun, Evolutionary Inter­pretation and Other Developments of the Vienna Conven­tion on the Law of Treaties; on the dynamic/evolutive interpretation in general, see also, in­ter alia, International Law Commission, Conclusions of the Work of the Study Group on the Frag­mentation of Inter­national Law: Difficulties arising from the Diver­sification and Expansion of In­ter­national Law, pa­ragraph 478; Arato, Subsequent Practice and Evolutive Inter­pretation: Techniques of Treaty In­terpretation over Time and their Diverse Conse­quences, The Law and Prac­­tice of International Courts and Tribunals 9 (2010), 443 et seq.).