Pub Date : 2012-11-24DOI: 10.4337/9780857936721.00018
Tania Voon, A. Mitchell, Catherine E. Gascoigne
A relatively new frontier for legal and policy analysis, technical barriers to trade (TBT’s) have become more common as traditional border barriers have been reduced. This comprehensive Handbook comprises original essays by eminent trade scholars exploring the implications of the WTO’s TBT Agreement.
{"title":"Consumer Information, Consumer Preferences and Product Labels under the TBT Agreement","authors":"Tania Voon, A. Mitchell, Catherine E. Gascoigne","doi":"10.4337/9780857936721.00018","DOIUrl":"https://doi.org/10.4337/9780857936721.00018","url":null,"abstract":"A relatively new frontier for legal and policy analysis, technical barriers to trade (TBT’s) have become more common as traditional border barriers have been reduced. This comprehensive Handbook comprises original essays by eminent trade scholars exploring the implications of the WTO’s TBT Agreement.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-11-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133184663","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On 3 February 2010, a group of countries representing 88 distinct World Trade Organization (WTO) Members presented a proposal for procedures for the facilitation of solutions to non-tariff barrier disputes. This proposal is in line with Paragraph 16 of the Doha Ministerial Declaration which provides for the reduction or appropriate elimination of non-tariff barriers, since they constitute barriers that affect market access opportunities for other WTO Members. This article analyzes whether the new procedures are properly designed to effectively meet their own stated goals, but also if they are compatible with the general objectives of the WTO and the Dispute Settlement Body. The Author 2012. Published by Oxford University Press. All rights reserved., Oxford University Press.
{"title":"Horizontal Mechanism Proposal for the Resolution of Non-Tariff Barrier Disputes at the WTO: An Analysis","authors":"Véronique Fraser","doi":"10.1093/JIEL/JGS038","DOIUrl":"https://doi.org/10.1093/JIEL/JGS038","url":null,"abstract":"On 3 February 2010, a group of countries representing 88 distinct World Trade Organization (WTO) Members presented a proposal for procedures for the facilitation of solutions to non-tariff barrier disputes. This proposal is in line with Paragraph 16 of the Doha Ministerial Declaration which provides for the reduction or appropriate elimination of non-tariff barriers, since they constitute barriers that affect market access opportunities for other WTO Members. This article analyzes whether the new procedures are properly designed to effectively meet their own stated goals, but also if they are compatible with the general objectives of the WTO and the Dispute Settlement Body. The Author 2012. Published by Oxford University Press. All rights reserved., Oxford University Press.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115802646","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2012-11-12DOI: 10.1163/9789004229495_006
Markus Wagner
The article analyzes the use of autonomous weapon systems (AWS) and the challenges that such systems pose with respect to compliance with the law of armed conflict. Importantly, AWS pose different questions than those surrounding the current use of unmanned aerial systems. For that reason, the article briefly sketches the history of AWS. It then distinguishes the current technologies, which operate either by way of remote control or through automated mechanisms, from systems which are currently under development and which operate either wholly autonomously or at least at a higher level of autonomy and without direct human input while carrying out their missions (II.). Part III. provides a detailed analysis of AWS under the principle of distinction and the principle of proportionality. It argues that while AWS may be able to satisfy the former principle under certain conditions, it is not clear that the same is true for the latter. The critical challenges with respect to the principle of proportionality and its applicability for AWS is manifold. The principle is difficult to apply in the abstract and thus is difficult to "translate" into machine code in a manner that allows it to be applied to real-life situations and changing circumstances. This problem originates in the lack of a generally accepted definition of what exactly the principle of proportionality requires in each situation. The article therefore concludes that current technology is incapable of allowing AWS to be operated within the existing framework of the law of armed conflict. While there may well be situations in which these requirements are met, these situations include only a fraction of modern military operations and AWS do not provide additional benefits over existing weaponry for these situations. Part IV. provides concluding observations.
{"title":"Autonomy in the Battlespace: Independently Operating Weapon Systems and the Law of Armed Conflict","authors":"Markus Wagner","doi":"10.1163/9789004229495_006","DOIUrl":"https://doi.org/10.1163/9789004229495_006","url":null,"abstract":"The article analyzes the use of autonomous weapon systems (AWS) and the challenges that such systems pose with respect to compliance with the law of armed conflict. Importantly, AWS pose different questions than those surrounding the current use of unmanned aerial systems. For that reason, the article briefly sketches the history of AWS. It then distinguishes the current technologies, which operate either by way of remote control or through automated mechanisms, from systems which are currently under development and which operate either wholly autonomously or at least at a higher level of autonomy and without direct human input while carrying out their missions (II.). Part III. provides a detailed analysis of AWS under the principle of distinction and the principle of proportionality. It argues that while AWS may be able to satisfy the former principle under certain conditions, it is not clear that the same is true for the latter. The critical challenges with respect to the principle of proportionality and its applicability for AWS is manifold. The principle is difficult to apply in the abstract and thus is difficult to \"translate\" into machine code in a manner that allows it to be applied to real-life situations and changing circumstances. This problem originates in the lack of a generally accepted definition of what exactly the principle of proportionality requires in each situation. The article therefore concludes that current technology is incapable of allowing AWS to be operated within the existing framework of the law of armed conflict. While there may well be situations in which these requirements are met, these situations include only a fraction of modern military operations and AWS do not provide additional benefits over existing weaponry for these situations. Part IV. provides concluding observations.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-11-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121033000","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper assembles detailed information about the intellectual property (IP) provisions contained in 194 active regional trade agreements (RTAs) that had been notified to the WTO by November 2010. IP provisions in RTAs have been the subject of much study and commentary. However, much of this work has focused on a relatively limited number of RTAs, with a concentration on parties with narrow geographical and economic profiles. The goal of the current study was to expand beyond the more commonly studied RTAs, to make an initial review of the full array of RTAs notified to the WTO, and in that way to lay the groundwork for a more comprehensive overview that would enable consideration of the broader system implications of this more diverse range of norm-setting activity. This was tackled by conducting a comprehensive mapping of the IP content in a larger number of RTAs involving parties from all regions and across different levels of development. This broad approach is necessary to better understand cross-cutting trends in RTAs, and how all the parts of the international IP framework influence each other. The methodology followed involved surveying each RTA in the sample to determine whether it made reference to any of 30 different IP-related provisions. The relevant provisions are discussed in detail and summary statistics used to identify patterns over time and by continent, level of economic development, and selected traders. The number of IP provisions in each RTA is then used to classify agreements according to their level of IP content. The first significant identified trend is the acceleration in the conclusion of RTAs with IP provisions after the creation of the WTO and the entry into force of the WTO TRIPS Agreement. A significant proportion of those RTAs contain some type of IP provision, but the number and type of those provisions vary widely across agreements. More than two-thirds of the RTAs surveyed include provisions on border measures or statements of general commitment to IP protection or cooperation. A smaller proportion contains explicit provisions on specific fields of IP law, such as geographical indications, patents, trademarks and copyright. The inclusion of even more detailed provisions elaborating on specific areas of IP law is less common. As a result, the actual IP content of RTAs differs greatly across the sample, with about 40% of these agreements found to have negligible substantive IP standards.
{"title":"Intellectual Property Provisions in Regional Trade Agreements","authors":"R. Valdés, Tavengwa Runyowa","doi":"10.2139/SSRN.2174333","DOIUrl":"https://doi.org/10.2139/SSRN.2174333","url":null,"abstract":"This paper assembles detailed information about the intellectual property (IP) provisions contained in 194 active regional trade agreements (RTAs) that had been notified to the WTO by November 2010. IP provisions in RTAs have been the subject of much study and commentary. However, much of this work has focused on a relatively limited number of RTAs, with a concentration on parties with narrow geographical and economic profiles. The goal of the current study was to expand beyond the more commonly studied RTAs, to make an initial review of the full array of RTAs notified to the WTO, and in that way to lay the groundwork for a more comprehensive overview that would enable consideration of the broader system implications of this more diverse range of norm-setting activity. This was tackled by conducting a comprehensive mapping of the IP content in a larger number of RTAs involving parties from all regions and across different levels of development. This broad approach is necessary to better understand cross-cutting trends in RTAs, and how all the parts of the international IP framework influence each other. The methodology followed involved surveying each RTA in the sample to determine whether it made reference to any of 30 different IP-related provisions. The relevant provisions are discussed in detail and summary statistics used to identify patterns over time and by continent, level of economic development, and selected traders. The number of IP provisions in each RTA is then used to classify agreements according to their level of IP content. The first significant identified trend is the acceleration in the conclusion of RTAs with IP provisions after the creation of the WTO and the entry into force of the WTO TRIPS Agreement. A significant proportion of those RTAs contain some type of IP provision, but the number and type of those provisions vary widely across agreements. More than two-thirds of the RTAs surveyed include provisions on border measures or statements of general commitment to IP protection or cooperation. A smaller proportion contains explicit provisions on specific fields of IP law, such as geographical indications, patents, trademarks and copyright. The inclusion of even more detailed provisions elaborating on specific areas of IP law is less common. As a result, the actual IP content of RTAs differs greatly across the sample, with about 40% of these agreements found to have negligible substantive IP standards.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122303123","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2012-09-30DOI: 10.4324/9780203075753-16
R. Cotterrell
Can a perspective on the nature of international economic law be integrated with one on governance in economic networks of community? Would it be useful to reconsider international economic law in relation to transnational economic networks that create their own regulatory expectations and practices? This would be to confront a ‘top-down’ law created by states, treaties, conventions and international institutions supported by states, with the more ‘bottom-up’ production of normative understandings in networks of community. This chapter considers how such an approach may clarify the nature of law regulating transnational economic relations, and the bases of its authority and legitimacy. It draws on recent analyses of transnational private law and considers their relevance for international economic law and in highlighting the regulatory significance of networks of community. Familiar dichotomies – public and private, expert and non-expert input in regulation, top-down and bottom-up lawmaking – can be illuminated in such a perspective. The approach also emphasises a major problem for international economic law – how to avoid the remoteness of regulators from the experience and aspirations of the regulated.
{"title":"Transnational Networks of Community and International Economic Law","authors":"R. Cotterrell","doi":"10.4324/9780203075753-16","DOIUrl":"https://doi.org/10.4324/9780203075753-16","url":null,"abstract":"Can a perspective on the nature of international economic law be integrated with one on governance in economic networks of community? Would it be useful to reconsider international economic law in relation to transnational economic networks that create their own regulatory expectations and practices? This would be to confront a ‘top-down’ law created by states, treaties, conventions and international institutions supported by states, with the more ‘bottom-up’ production of normative understandings in networks of community. This chapter considers how such an approach may clarify the nature of law regulating transnational economic relations, and the bases of its authority and legitimacy. It draws on recent analyses of transnational private law and considers their relevance for international economic law and in highlighting the regulatory significance of networks of community. Familiar dichotomies – public and private, expert and non-expert input in regulation, top-down and bottom-up lawmaking – can be illuminated in such a perspective. The approach also emphasises a major problem for international economic law – how to avoid the remoteness of regulators from the experience and aspirations of the regulated.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132682315","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A short time after the Commission has published its proposal for a regulation on the unitary patent, we have raised some serious concerns with regard to the very legality of the regulation and to the political issue of the governance of the European patent system. Now, some academic studies are confirming all issues we’ve raised one after the other. Such serious flaws cannot be ignored anymore and need to be addressed by the EU legislator. Failing to do so, the unitary patent would unavoidably be no more than a stillborn child.
{"title":"Academics Confirm Flaws in the Unitary Patent","authors":"Gérald Sédrati-Dinet","doi":"10.2139/ssrn.2111581","DOIUrl":"https://doi.org/10.2139/ssrn.2111581","url":null,"abstract":"A short time after the Commission has published its proposal for a regulation on the unitary patent, we have raised some serious concerns with regard to the very legality of the regulation and to the political issue of the governance of the European patent system. Now, some academic studies are confirming all issues we’ve raised one after the other. Such serious flaws cannot be ignored anymore and need to be addressed by the EU legislator. Failing to do so, the unitary patent would unavoidably be no more than a stillborn child.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"209 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131565496","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Under close scrutiny, it appears that the legal basis of the regulation on the unitary patent is at best questionable. At worst, such doubts could very well mean that the regulation is simply illegal. In a situation where the enhanced cooperation procedure is already undergoing two appeals before the Court of Justice of the European Union (CJEU), the future of the unitary patent cannot afford such a strong legal uncertainty. Hopefully, some amendments to the proposed regulation could help the unitary patent to partly overcome this hindrance.
{"title":"Legal Basis of the Unitary Patent: Do Not Play with Fire!","authors":"Gérald Sédrati-Dinet","doi":"10.2139/SSRN.2109174","DOIUrl":"https://doi.org/10.2139/SSRN.2109174","url":null,"abstract":"Under close scrutiny, it appears that the legal basis of the regulation on the unitary patent is at best questionable. At worst, such doubts could very well mean that the regulation is simply illegal. In a situation where the enhanced cooperation procedure is already undergoing two appeals before the Court of Justice of the European Union (CJEU), the future of the unitary patent cannot afford such a strong legal uncertainty. Hopefully, some amendments to the proposed regulation could help the unitary patent to partly overcome this hindrance.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131180406","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The latest generation of Preferential Trade Agreements (PTA) features a diversity of ‘deep integration’ provisions, which mandate a wide range of border and behind-the-border regulatory and institutional reforms in areas such as food safety and technical standards, customs administration, government procurement, competition policy, or services liberalization. The implementation of such obligations frequently presents developing countries with major challenges, as they face varieties of domestic structural and behavioral constraints. With a view to a better understanding of such challenges and how they can be effectively addressed, the World Bank has launched a series of case studies on PTA implementation in a dozen selected developing countries from around the world. This paper summarizes the main results of a forthcoming report, which provides an overview of the findings of the country case studies with respect to the implementation of PTA provisions in seven complex border and behind-the-border policy areas. Drawing from the empirical evidence of the case studies and the conclusions of modern policy implementation theory, it is suggested that the challenges associated with PTA implementation in developing countries can, at least partially, be addressed through ‘built-in’ flexibilities, i.e. the customization of PTA rule design to country specific structural and behavioral characteristics, and the establishment of effective institutional mechanisms that are equipped with strong mandates to monitor, analyze, support, and adjust implementation processes over time.
{"title":"The Challenge of Implementing Preferential Trade Agreements in Developing Countries – Lessons for Rule Design","authors":"J. Chauffour, David Kleimann","doi":"10.2139/ssrn.2104183","DOIUrl":"https://doi.org/10.2139/ssrn.2104183","url":null,"abstract":"The latest generation of Preferential Trade Agreements (PTA) features a diversity of ‘deep integration’ provisions, which mandate a wide range of border and behind-the-border regulatory and institutional reforms in areas such as food safety and technical standards, customs administration, government procurement, competition policy, or services liberalization. The implementation of such obligations frequently presents developing countries with major challenges, as they face varieties of domestic structural and behavioral constraints. With a view to a better understanding of such challenges and how they can be effectively addressed, the World Bank has launched a series of case studies on PTA implementation in a dozen selected developing countries from around the world. This paper summarizes the main results of a forthcoming report, which provides an overview of the findings of the country case studies with respect to the implementation of PTA provisions in seven complex border and behind-the-border policy areas. Drawing from the empirical evidence of the case studies and the conclusions of modern policy implementation theory, it is suggested that the challenges associated with PTA implementation in developing countries can, at least partially, be addressed through ‘built-in’ flexibilities, i.e. the customization of PTA rule design to country specific structural and behavioral characteristics, and the establishment of effective institutional mechanisms that are equipped with strong mandates to monitor, analyze, support, and adjust implementation processes over time.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"159 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115629017","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The obligations of non-discrimination in international economic law hinge upon the question of what constitutes ‘like products’. It is not clear that it is appropriate to transpose the competition-oriented approach to product likeness or substitutability under Article III of GATT to other provisions of WTO Agreement, including, Article 2.1 of the TBT Agreement. For the first time in WTO dispute settlement, the Panel in US – Clove Cigarettes was tasked with determining likeness in the TBT context. At issue was whether the US government may ban sales of clove cigarettes while exempting menthol cigarettes. The panel held that Article 2.1 of TBT Agreement should not be interpreted primarily from a competition perspective of dealing with a technical regulation with legitimate public health objectives. The panel noted the significance of public health objectives of a technical regulation and how certain features of the relevant products must be evaluated given the legitimate public health objective. The declared objective of the measure must inform the likeness analysis. Based upon these criteria, the Panel ruled that clove and menthol cigarettes are like products since the US measure has the primary objective of protecting health of minors against carcinogenic substances which both types of cigarettes contain. Is this a resurrection of the aim-and-effect test; or, an updated version of EC-Asbestos rationale? Fundamentally, is it wrong to apply an aim-and-effect approach in the TBT context, given that there is no general exception provision equivalent to Article XX of GATT in TBT Agreement? What implications can be drawn from this decision to future disputes over technical regulations imposed for health protection purposes? The author answer these intriguing questions through a comprehensive review and examination on newly-emerging WTO case law and decades-old jurisprudence on product likeness. WTO tribunals must suggest a better interpretive solution for many future disputes and regulatory policies concerning this enigmatic topic.
{"title":"How More 'Likeness' in Addressing Technical Regulations?","authors":"W. Choi","doi":"10.2139/ssrn.2104187","DOIUrl":"https://doi.org/10.2139/ssrn.2104187","url":null,"abstract":"The obligations of non-discrimination in international economic law hinge upon the question of what constitutes ‘like products’. It is not clear that it is appropriate to transpose the competition-oriented approach to product likeness or substitutability under Article III of GATT to other provisions of WTO Agreement, including, Article 2.1 of the TBT Agreement. For the first time in WTO dispute settlement, the Panel in US – Clove Cigarettes was tasked with determining likeness in the TBT context. At issue was whether the US government may ban sales of clove cigarettes while exempting menthol cigarettes. The panel held that Article 2.1 of TBT Agreement should not be interpreted primarily from a competition perspective of dealing with a technical regulation with legitimate public health objectives. The panel noted the significance of public health objectives of a technical regulation and how certain features of the relevant products must be evaluated given the legitimate public health objective. The declared objective of the measure must inform the likeness analysis. Based upon these criteria, the Panel ruled that clove and menthol cigarettes are like products since the US measure has the primary objective of protecting health of minors against carcinogenic substances which both types of cigarettes contain. Is this a resurrection of the aim-and-effect test; or, an updated version of EC-Asbestos rationale? Fundamentally, is it wrong to apply an aim-and-effect approach in the TBT context, given that there is no general exception provision equivalent to Article XX of GATT in TBT Agreement? What implications can be drawn from this decision to future disputes over technical regulations imposed for health protection purposes? The author answer these intriguing questions through a comprehensive review and examination on newly-emerging WTO case law and decades-old jurisprudence on product likeness. WTO tribunals must suggest a better interpretive solution for many future disputes and regulatory policies concerning this enigmatic topic.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132559891","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The relationship between the general exceptions found within the General Agreement on Tariffs and Trade (GATT), and the obligations contained in the “specialized” goods texts of Annex 1A of the WTO Agreement has long been a matter of contention and legal uncertainty. Proponents of the “restricted application” approach point to a series of textual features, arguing that the flexibilities of the general exceptions will remain limited to the GATT, unless an express authorization has been included within an individual goods agreement. We explore this contention with particular focus on the public morality exception of GATT XX(a). Due to the Member-driven definition of this clause, the XX(a) exception could have implications far beyond the GATT. It thus provides a perfect test case for the applicability debate as a whole. This article examines each of the various arguments that have been put forward in favor of a restricted approach to applicability, including those based upon the phrase “this Agreement”, the notion of conflict, and the interpretation of silence. We argue that the twin principles of lex specialis and the “single undertaking” can serve, in many cases, to diminish the weight of these arguments. We argue that the public morality exception will be available for breaches of obligations within the specialized goods agreements of Annex 1A, provided that they apply as part of a single package with GATT rules, or they constitute lex specialis to pre-existing GATT disciplines. We propose a typology of the specialized goods agreements, based upon their relationship with the GATT. Ultimately, we argue that the GATT public morals clause is likely available for the majority of obligations within the specialized goods agreements, thus providing a valuable fail-safe for legitimate regulatory restrictions that, while difficult to foresee now, may arise in the future.
{"title":"The Limits of Morality: Application of the Public Morals Exception Beyond the GATT","authors":"Tomer Broude, M. Hurley","doi":"10.2139/SSRN.2101713","DOIUrl":"https://doi.org/10.2139/SSRN.2101713","url":null,"abstract":"The relationship between the general exceptions found within the General Agreement on Tariffs and Trade (GATT), and the obligations contained in the “specialized” goods texts of Annex 1A of the WTO Agreement has long been a matter of contention and legal uncertainty. Proponents of the “restricted application” approach point to a series of textual features, arguing that the flexibilities of the general exceptions will remain limited to the GATT, unless an express authorization has been included within an individual goods agreement. We explore this contention with particular focus on the public morality exception of GATT XX(a). Due to the Member-driven definition of this clause, the XX(a) exception could have implications far beyond the GATT. It thus provides a perfect test case for the applicability debate as a whole. This article examines each of the various arguments that have been put forward in favor of a restricted approach to applicability, including those based upon the phrase “this Agreement”, the notion of conflict, and the interpretation of silence. We argue that the twin principles of lex specialis and the “single undertaking” can serve, in many cases, to diminish the weight of these arguments. We argue that the public morality exception will be available for breaches of obligations within the specialized goods agreements of Annex 1A, provided that they apply as part of a single package with GATT rules, or they constitute lex specialis to pre-existing GATT disciplines. We propose a typology of the specialized goods agreements, based upon their relationship with the GATT. Ultimately, we argue that the GATT public morals clause is likely available for the majority of obligations within the specialized goods agreements, thus providing a valuable fail-safe for legitimate regulatory restrictions that, while difficult to foresee now, may arise in the future.","PeriodicalId":375754,"journal":{"name":"Public International Law eJournal","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115270029","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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