This book offers an in-depth analysis of the WTO security exceptions and relevant rulings by WTO dispute settlement panels. The WTO security exceptions are commonly regarded as the "box of Pandora" of the WTO system, since WTO Member States can invoke them in order to justify trade restrictions violating WTO law which they consider necessary for their essential security interests. The Members of the WTO and the GATT 1947 have hesitated for decades to rely on these security exceptions. In recent years, however, these clauses have been invoked for the first time in high-profile disputes involving Russia and Ukraine, Saudi Arabia and Qatar, as well as the US, China, the EU and other nations. This has been regarded as the turn of an era in view of the risk that the security exceptions could be instrumentalized to undermine the WTO and the international economic governance system more generally. This study therefore thoroughly analyses the WTO panel reports issued in these landmark cases. It also explains the geopolitical relevance of the increasing invocation of security clauses and argues that the legally and methodologically sound application of the WTO security exceptions, which have often been regarded as “self-judging” provisions, requires a proportionality analysis encompassing tests of the suitability and necessity of the trade measures to be justified under these truly exceptional clauses.
Author(s): Erich Vranes
Series: SpringerBriefs in Law
Edition: 1
Publisher: Springer Nature Switzerland
Year: 2023
Language: English
Pages: viii; 70
City: Cham
Tags: International Economic Law, Trade Law; International Security Studies; Law and Criminology
Preface
Contents
Chapter 1: Introduction: The ``Sleeping Dragon´´ of WTO Law
References
Chapter 2: (Geo-)Political Background: From Interdependence to ``Permanent Exceptionalism´´?
References
Chapter 3: The Security Exceptions in the GATT and TRIPS as Interpreted and Applied
3.1 Terminological Clarification
3.2 Order of Analysis
3.3 Wording and Structure of the Security Exceptions
3.4 The 2019 Russia - Transit Case
3.4.1 Factual Aspects
3.4.2 Pandora´s Box: Jurisdiction and Substantive Assessment Intermingled in the Panel Report
3.4.3 Interpretation and further Substantive Assessment
3.4.4 Analysis of the Chapeau
3.4.4.1 Essential Security Interests and Good Faith Review
3.4.4.2 The Nexus Between Ends and Means: Mere Plausibility?
3.5 The 2020 Saudi Arabia - IPRs Case
3.5.1 Factual Aspects
3.5.2 Jurisdiction
3.5.3 Interpretation and Substantive Assessment
3.5.3.1 The Legal Standard as Defined by the Panel
3.5.3.2 Application to the Facts
3.6 The 2022 US - Steel Cases
3.6.1 Factual Aspects
3.6.2 Order of Analysis and Relationship Between the GATT and the Safeguards Agreement
3.6.3 Interpretation and Substantive Assessment
3.7 Interim Conclusions in Comparative Perspective
References
Untitled
Chapter 4: Methodological Aspects: Curtailing ``Trump Cards´´ Through Good Faith and Proportionality?
4.1 Analogy with National Administrative Law?
4.2 Proportionality as a Concretization of Good Faith
4.2.1 The Structure of Article XXI(b)(iii): Ends and Means, Rule Versus Exception
4.2.2 The Legal Status of the Proportionality Principle
4.2.2.1 Proportionality: General Principle of Law, Interpretative Principle, or Maxim of Rational Decision-Making?
4.2.2.1.1 The Three Subtests as Interpretative Principles Following from the ``Logic of Ends and Means´´ and the Interplay Bet...
4.2.2.1.2 The Subtests as Flowing from the Concept of Law
4.2.2.1.3 The Subtests as Basic Categories of Rational Decision-Making
4.2.2.1.4 Interim Conclusion on the Status of Proportionality and Its Subtests
4.2.2.1.5 Proportionality, Good Faith and abus de droit
4.2.2.2 Further Remarks on the Requirements Comprised by Proportionality
4.2.3 Proportionality and the WTO Security Exceptions
4.2.4 Interim Conclusions on Article XXI and Proportionality
References
Chapter 5: Concluding Remarks
References
Table of Cases
GATT 1947 and WTO Disputes and Panel Reports
WTO Appellate Body Reports
