30 Nov 2012
The Appellate Body Approach to the Applicability of Article XX GATT In the Light of China - Raw Materials: A Missed Opportunity?
Journal article by Ilaria Espa in Journal of World Trade, 46(6), pp. 1399-1423. Wolters Kluwer Law & Business
ABSTRACT: This article attempts to analyse and investigate the implications of the approach to the applicability of Article XX GATT adopted in the recent China – Raw Materials. Using the decision on the non-availability of Article XX defences for violations of China’s WTO-plus commitments on export duties as a backdrop, it scrutinizes the more general, ‘systemic’ approach to the applicability of Article XX exceptions developed by the WTO dispute settlement bodies, and sheds light on the implications of such approach with respect to the relationship between GATT 1994 and WTO obligations arising from different instruments of the WTO Agreement, such as new members’ accession protocols. It also suggests that an exception to this general approach could be envisaged when the fundamental environmental goals protected under Article XX b) and g) are at stake.