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20 Nov 2020    Books/ Book Chapters
Van den Bossche, Peter


The National Security Exception in International Trade Law Today: Can We Avoid Abuse?

Book chapter written by Peter Van den Bossche for the 2020 Annual Meeting of the Netherlands Society for Commercial Law; published in Vereeniging ‘Handelsrecht’, Preadviezen 2020: Toetsing van buitenlandse investeringen in geopolitiek en juridisch perspectief (Association "Commercial Law", Pre-advice 2020: Review of foreign investment in geopolitical and legal perspective), pp. 111-143.

Introduction

All around the world, economic nationalism and anti-globalist unilateralism have been on the rise in recent years. The most obvious and consequential example of this trend is the US trade policy measures which undermine the rules-based multilateral
trading system. Among these measures, one type stands out as being particularly troublesome, namely trade restrictive measures allegedly taken for the protection of national security. Other WTO Members have in recent years also taken trade restrictive measures which they sought or seek to justify on national security grounds. Whereas for 70 years, first GATT Contracting Parties and then WTO Members showed much self-restraint in invoking national security as a justification for trade restrictive measures, such self-restraint now seems a thing of the past. The invocation of the national security exception, in particular the national security exception under Article XXI of the General Agreement on Tariffs and Trade 1994 (‘GATT 1994’), has proliferated. Against this background, this paper explores the nature and scope of the national security exception under Article XXI, and examines the role the WTO, and in particular its dispute settlement system, can play in containing the abuse of this exception.

Peter Van den Bossche's paper (in English) starts on page 111 in the attached file below.

The National Security Exception in International Trade Law Today: Can We Avoid Abuse?