CA-2024-002080 - [2025] EWCA Civ 905

In view of that conclusion I do not propose to consider the question, posed by Korea’s second subsidiary ground of appeal, of whether recourse can be had to ITA tribunal awards and other materials, including material post-dating the signature of the Treaty, not merely for their persuasive force but as supplementary means of interpretation pursuant to Article 32 of the VCLT. It is sufficient to note for present purposes that the awards, published by tribunals comprising a long list of highly respected international arbitrators, uniformly reached the same conclusion as I have as to the proper interpretation of the Treaty.

Neither is it necessary or appropriate to consider the admissibility and, if admissible, the effect of the exchange of diplomatic notes. The SICC in Mason admitted the very same exchange as evidence for the purposes of Korea’s application, but did not accept that it was a “subsequent agreement between the parties” for the purposes of Article 31.3(a) of the VCLT, not being an interpretation issued by the Joint Committee established by Article 22.2 of the Treaty, nor that it was a “subsequent practice in the application of” the Treaty for the purposes of Article 31.3(b) of the VCLT. The exchange was admitted solely as the opinions of the Contracting States, even though they were issued long after the “critical date”, but the SICC was not persuaded by them. I do not propose to venture into those contentious issues, but simply note that the conclusion I have reached as to the interpretation of Chapter 11 of the Treaty coincides with the shared view expressed by the Contracting Parties as to the meaning of the agreement between them.