Clash of Trade and National Public Interest in WTO Law: The Illusion of ‘Weighing and Balancing’ and the Theory of Reservation

Abstract

In the last two decades, World Trade Organization law’s public interest exceptions (Article XX GATT, Article XIV GATS, Article 2.2 of the TBT Agreement, and Article 20 TRIPS) have seen the emergence and evolution of the doctrine of ‘weighing and balancing.’ This paper provides a criticism of this doctrine through a comparative ontological analysis and demonstrates three propositions. First, it shows that the concept of ‘weighing and balancing’ results from the ill-considered reception of a doctrine pertaining to federal systems. Second, the paper demonstrates through the analysis of the case law that the role of ‘weighing and balancing’ is rather poetical and, in reality, the Appellate Body does not engage in balancing. Third, it proposes that an outspoken ‘necessity’ analysis should be carried out that is tailored to arrangements based on contractual promises and is guided by the notion of quasi-reservation. The paper re-conceptualizes the Appellate Body’s case law and elaborates a doctrinal framework warranted by the function of World Trade Organization law’s public interest exceptions.