Location via proxy:   [ UP ]  
[Report a bug]   [Manage cookies]                
Scribd Logo
Upload

Welcome to Scribd!

  • 6 views

    Book Edcoll 9789004180642 Bej.9789004145665.i-1228 025-Preview

    Uploaded by

    Gabriela Correa Castellanos
    The document summarizes the drafting history and interpretation of Article XX of the GATT, which establishes general exceptions to WTO agreements. It discusses how the Appellate Body and scholars have interpreted the relationship between the exceptions listed in Article XX and the conditions placed on them by the Chapeau. Specifically, it examines efforts to establish a balance between members' rights to invoke exceptions and the rights of other members under WTO agreements. The document also analyzes the drafting history of the Chapeau and its intent to prevent abuse of the exceptions listed in Article XX.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd

    Book Edcoll 9789004180642 Bej.9789004145665.i-1228 025-Preview

    Uploaded by

    Gabriela Correa Castellanos
    6 views2 pages
    The document summarizes the drafting history and interpretation of Article XX of the GATT, which establishes general exceptions to WTO agreements. It discusses how the Appellate Body and scholars have interpreted the relationship between the exceptions listed in Article XX and the conditions placed on them by the Chapeau. Specifically, it examines efforts to establish a balance between members' rights to invoke exceptions and the rights of other members under WTO agreements. The document also analyzes the drafting history of the Chapeau and its intent to prevent abuse of the exceptions listed in Article XX.

    Original Title

    _book_edcoll_9789004180642_Bej.9789004145665.i-1228_025-preview (1)

    Copyright

    © © All Rights Reserved

    Available Formats

    PDF, TXT or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    The document summarizes the drafting history and interpretation of Article XX of the GATT, which establishes general exceptions to WTO agreements. It discusses how the Appellate Body and scholars have interpreted the relationship between the exceptions listed in Article XX and the conditions placed on them by the Chapeau. Specifically, it examines efforts to establish a balance between members' rights to invoke exceptions and the rights of other members under WTO agreements. The document also analyzes the drafting history of the Chapeau and its intent to prevent abuse of the exceptions listed in Article XX.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    6 views2 pages

    Book Edcoll 9789004180642 Bej.9789004145665.i-1228 025-Preview

    Uploaded by

    Gabriela Correa Castellanos
    The document summarizes the drafting history and interpretation of Article XX of the GATT, which establishes general exceptions to WTO agreements. It discusses how the Appellate Body and scholars have interpreted the relationship between the exceptions listed in Article XX and the conditions placed on them by the Chapeau. Specifically, it examines efforts to establish a balance between members' rights to invoke exceptions and the rights of other members under WTO agreements. The document also analyzes the drafting history of the Chapeau and its intent to prevent abuse of the exceptions listed in Article XX.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 2

    Rüdiger Wolfrum, Peter-Tobias Stoll and Holger P. Hestermeyer (eds), WTO—Trade in Goods.

    © 2010 Koninklijke Brill NV. Printed in the Netherlands. pp. 464–478

    Article XX
    General Exceptions [Chapeau]

    Subject to the requirement that such measures are not applied in a manner which would
    constitute a means of arbitrary or unjustifiable discrimination between countries where
    the same conditions prevail, or a disguised restriction on international trade, nothing in
    this Agreement shall be construed to prevent the adoption or enforcement by any con-
    tracting party of measures:

    Bibliography
    S. Charnovitz, Exploring the Environmental Exceptions in GATT Art. XX, JWT 25 (1991)
    37–55; WTO, Analytical Index: Guide to GATT Law and Practice, Vols I and II, 6th ed.,
    1995; A. Appleton, GATT Article XX’s Chapeau: A Disguised ‘Necessary’ Test?: The WTO
    Appellate Body’s Ruling in United States—Standards for Reformulated and Conventional
    Gasoline, RECIEL 6 (1997), 131–138; A. Bree, Article XX GATT—Quo Vadis? The
    Environmental Exception after the Shrimp—Turtle Appellate Body Report, Dick. J. Int’l
    L. 17 (1998–1999), 99–134; B. Neuling, The Shrimp/Turtle Case: Implications for Article
    XX of GATT and the Trade and Environment Debate, Loy. L. A. Int’l & Comp. L. Rev.
    22 (1999–2000), 1–50; P. Mavroidis, Trade and Environment after Shrimps—Turtles
    Litigation, JWT 34 (2000), 73–88; S. Gaines, The WTO’S Reading of the GATT Article XX
    Chapeau: A Disguised Restriction on Environmental Measures, U. Pa. J. Int’l Econ. L. 22
    (2001), 739–861.

    Case Law
    Panel Report, US—Canadian Tuna, BISD 29S/91; Panel Report, US—Spring Assemblies,
    BISD 30S/107; Panel Report, Canada—Herring and Salmon, BISD 35S/98; Panel Report,
    US—Tuna (Mexico), BISD 39S/155 (not adopted); Panel Report, US—Tuna (EEC),
    DS29/R (not adopted); Appellate Body Report, US—Gasoline, WT/DS2/AB/R; Panel
    Report, US—Shrimp, WT/DS58/R; Appellate Body Report, US—Shrimp, WT/DS58/AB/R;
    Panel Report, US—Shrimp (Art. 21.5—Malaysia), WT/DS58/RW; Appellate Body Report,
    US—Shrimp (Art. 21.5—Malaysia), WT/DS58/AB/RW; Panel Report, EC—Asbestos, WT/
    DS135/R; Appellate Body Report, EC—Asbestos, WT/DS135/AB/R; Panel Report, EC—Tariff
    Preferences, WT/DS246/R; Appellate Body Report, Brazil—Retreaded Tyres, WT/DS/332/
    AB/R.

    Table of Contents
    A. General 1
    B. Drafting History 5
    C. Interpretative Development of the Normative Concept 7
    I. US—Gasoline and the General Structure 8
    II. Further Developments 13
    1. The Reports in General 14
    2. A “Balance of Rights and Obligations”? 21
    D. Textual Interpretation 29
    I. Focus of the Chapeau: Application of Measures 29
    II. Unjustifiable Discrimination 32
    IV. Failure to Negotiate 36
    V. Arbitrary Discrimination 40
    VI. Countries Where the Same Conditions Prevail 43
    VII. Disguised Restriction of International Trade 45

    A. General

    The Chapeau contains two elements, one of an affirmative nature stating 1


    that “nothing in this Agreement shall be construed to prevent the adoption

    WOLFRUM
    article xx 465

    or enforcement by any contracting party of measures . . .”, and one formulat-


    ing a condition subjecting these measures “. . . to the requirement that such
    measures are not applied in a manner which would constitute a means of
    arbitrary or unjustifiable discrimination between countries where the same
    conditions prevail, or a disguised restriction on international trade”.
    The textual interpretation of Art. XX as a whole and the relationship 2
    between these two parts of the article have been controversially discussed
    in the case law of the dispute settlement system of the WTO as well as in
    literature.1 Various theories have been advanced in the literature concern-
    ing the object and purpose of the Chapeau of Art. XX.
    The Appellate Body report on US—Shrimp characterized the task of inter- 3
    preting the Chapeau as “the delicate one of locating and marking out a
    line of equilibrium between the right of a Member to invoke an exception
    under Article XX and the rights of the other Members under varying sub-
    stantive provisions . . . of GATT 1994.”2 According to the Appellate Body
    the “line of equilibrium” should ensure that “neither of the competing
    rights will cancel out the other and thereby distort and nullify or impair
    the balance of rights and obligations constructed by the Members them-
    selves in that Agreement.”3
    It has also been stated that the Chapeau of Art. XX should protect against 4
    abuses of rights under Art. XX lits a-j.4 These approaches to the interpre-
    tation of the Chapeau are not necessarily mutually exclusive. The difficulty
    of interpreting the Chapeau in fact rests first in establishing the content of
    the conditionalities as formulated in the Chapeau and, secondly, in find-
    ing an adequate relationship between such conditionalities and the rights
    WTO Members enjoy in formulating their national policies according to
    Art. XX lits a-j.

    B. Drafting History

    The drafting history of Art. XX in general is not enlightening. However, 5


    that of the Chapeau gives some indication of the intentions of the draft-
    ers.5 The first draft of GATT proposed by the United Kingdom and the
    United States in December 1945 provided for the customary exceptions to

    1
    Bree, Dick. J. Int’l L. 17 (1998–1999), 99–134; Neuling, Loy. L.A. Int’l & Comp. L.
    Rev. 22 (1999–2000), 1–50; Mavroidis, JWT 34 (2000) 1, 73–78; Gaines, U. Pa. J.Int’l Econ.
    L. 22 (2001), 739–862.
    2
    Appellate Body Report, US—Shrimp, WT/DS58/AB/R, para. 159.
    3
    Ibid., para. 159.
    4
    Ibid., para. 158.
    5
    See in general Charnovitz, JWT 25 (1991) 5, 37, 38–47; Neuling, Loy. L.A. Int’l &
    Comp. L. Rev. 22 (1999–2000), 1, 13–16.
    WOLFRUM

    You might also like