Exceptions - GATT and GATS

Question 1

What GATT Art contains exceptions?

Answer 1

GATT Art XX

Question 2

What GATT Art contains exceptions?

Answer 2

GATT Art XX

Question 3

Case stating reasoning under GATT Art XX relevant to GATS Art XIV?

Answer 3

ABR, US-Gambling

Question 4

What GATS Art contains exceptions?

Answer 4

GATS Art XIV

Question 5

How is GATS/GATT Art XIV applied?

Answer 5

Two tier analysis (ABR, US-Gambling (GATS); ABR, US-Shrimp (GATT)):

1. Does challenged measure fall within scope of one of the paragraphs of Art XIV?
   a. Does measure address particular interest specified in that paragraph?
   b. Is there a sufficient nexus between the measure and interest protected?
   c. Word ‘necessary’ is an objective standard, requires weighing and balancing of factors (ABR, Korea–Beef):
   i. Relative importance of interest/values.
   ii. Contribution of measure to realisation of ends pursued.
   iii. Restrictive impact of the measure on international commerce.
   d. ‘Necessary’ means no reasonably available alternative.
2. Does measure satisfied the requirements of the chapeau?
   a. Applied in manner that does not constitute ‘arbitrary’ or ‘unjustifiable’ discrimination or ‘disguised restriction on trade’.
   b. Isolated enforcement instances must be seen in context.

Question 6

How is GATS Art XIV applied?

Answer 6

Two tier analysis (ABR, US-Gambling):

1. Does challenged measure fall within scope of one of the paragraphs of Art XIV?
   a. Does measure address particular interest specified in that paragraph?
   b. Is there a sufficient nexus between the measure and interest protected?
   c. Word ‘necessary’ is an objective standard, requires weighing and balancing of factors (ABR, Korea–Beef):
   i. Relative importance of interest/values.
   ii. Contribution of measure to realisation of ends pursued.
   iii. Restrictive impact of the measure on international commerce.
   d. ‘Necessary’ means no reasonably available alternative.
2. Does measure satisfied the requirements of the chapeau?
   a. Applied in manner that does not constitute ‘arbitrary’ or ‘unjustifiable’ discrimination or ‘disguised restriction on trade’.
   b. Isolated enforcement instances must be seen in context.

Question 7

Case stating reasoning under GATT Art XX relevant to GATS Art XIV?

Answer 7

ABR, US-Gambling

Question 8

What GATS Art contains exceptions?

Answer 8

GATT Art XIV

Question 9

What is the standard for ‘relating to’ under GATT Art XX?

Answer 9

Relating to = primarily aimed at (Canada-Herring and Salmon)

Question 10

Case relating to Exhaustible Natural Resources (GATT Art XX(g))

Answer 10

Panel, US-Gasoline: clean air is exhaustible natural resource.

ABR, US-Shrimp: wild animals could be exhaustible natural resource.

Question 11

Case relating to Public Morals (GATT Art XX(a))

Answer 11

US-Gambling: yes

China-Publications and Audiovisual Products: US didn’t challenge China’s characterisation of public morals applying

Question 12

Case relating to Public Orders (GATS Art XIV(a))

Answer 12

ABR, US-Gambling: .the preservation of the fundamental interests of a society, as reflected in public policy and law.

Question 13

Case relating to Human, Animal or PLant Life/Health (GATT Art XX(b))

Answer 13

EC-Tariff Preferences: no - policy was about development and poverty.

China-Raw Materials: no, not designed to protect health mere connection between effects.

Question 14

Case relating to measures necessary to secure compliance…Prevention of Deceptive Practices (GATT Art XX(d))

Answer 14

Korea-Beef: must be designed to secure compliance with provisions consistent with GATT, measure must be necessary to do so.

Question 15

Case relating to Exhaustible Natural Resources (GATT Art XX(g))

Answer 15

Panel, US-Gasoline: clean air is exhaustible natural resource.

ABR, US-Shrimp:

Question 16

How is GATT Art XX Chapeau applied?

Answer 16

The chapeau contains two essential requirements:
1) the measure at issue must not be applied in a manner that constitutes ‘arbitrary or unjustifiable discrimination’; and

ABR, Brazil-Retreated Tyres: the application of a measure in a discriminatory manner will be ‘arbitrary or unjustifiable’ where the discrimination is not rationally connected to the objective in the subparagraph under which the measure is provisionally justified.

2) the measure must not be a ‘disguised restriction on international trade’.

ABR, US-Gasoline: Thus, ‘arbitrary or unjustifiable discrimination’ demonstrates that a measure is a ‘disguised restriction on international trade’.

Panel, EC-Asbestos: the mere fact that a measure has the effect of protecting domestic producers does not demonstrate that it is ‘disguised’