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Remarks by Tania Voon

Published online by Cambridge University Press:  22 March 2019

Extract

The WTO general exceptions are crucial provisions that recognize that in some circumstances non-trade objectives will trump trade liberalization. That recognition flows from the fact that trade liberalization per se is not the purpose of the WTO; rather, trade liberalization is a means to achieve other objectives as specified in the preamble to the Marrakesh Agreement Establishing the World Trade Organization, such as raising standards of living and ensuring full employment. The predominant view is that the general exceptions are extremely difficult to satisfy. Indeed, I am aware of only three instances in which a respondent has successfully invoked GATT Article XX; of these, two are compliance proceedings, and one of those is under appeal. However, challenged measures typically fail to satisfy the requirements of the Article XX chapeau because they are discriminatory, and removing that discrimination provides a means of benefiting from the exception.

Type
The Once and Future Law of Non-Discrimination: Revisiting Most Favored Nation and National Treatment
Copyright
Copyright © by The American Society of International Law 2019 

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References

1 Appellate Body Report, EC – Asbestos, [175]; Appellate Body Report, US – Shrimp (Article 21.5 – Malaysia), [152]; Panel Report, US – Tuna II (Mexico – Second Recourse to Article 21.5) (under appeal).

2 See Regan, Donald H, The Meaning of “Necessary” in GATT Article XX and GATS Article XIV: The Myth of Cost–Benefit Balancing, 6 world trade rev. 347 (2007)CrossRefGoogle Scholar. See also Mitchell, Andrew D., Munro, James & Voon, Tania, Importing WTO General Exceptions into International Investment Agreements: Proportionality, Myths and Risks, Y.B. Int'l Inv. L. & Pol'y 2017, 305 (2019)Google Scholar.