A new interpretive approach to an old issue under the WTO Turning the chapeau of GATT article XX into a wild card for greater domestic regulatory autonomy

The current anti-globalization movements can be seen as counter movements against neo-liberalism staged by social groups who have not benefited much from global economic integration. The WTO has been criticized for restricting domestic regulatory autonomy that could accommodate the interests of some of the disadvantaged social groups by having very narrow and strict exceptions to trade disciplines. Particularly, the WTO judiciary has repeatedly refused to exempt domestic regulatory measures having policy objectives beyond the closed-end list prescribed in the exception clause of GATT Article XX in its jurisprudence by declining various approaches to circumvent that list. However, I argue and try to demonstrate that the interpretation of the chapeau of Article XX by the Appellate Body in recent years can be used to reconstruct the chapeau to exempt highly flexible domestic measures with objectives listed in Article XX and even domestic measures with objectives not listed in Article XX. This is only a tentative development so far, not yet substantiated by explicit Appellate Body endorsement and successful application in WTO dispute settlement. But it should be followed in order to help the WTO endure and finally survive the attacks from the counter movements around the world. Nevertheless, the new interpretation and the interpretations of the closely related texts, particularly the lettered subparagraphs of Article XX, need tweaks to be more internally consistent with one another. A number of WTO Agreements also contain clauses serving basically the same purpose of Article XX, which is to exempt domestic measures otherwise in violation of trade disciplines. The new interpretation of Article XX needs to be transplanted into these Agreements as well to achieve internal consistency of the WTO jurisprudence. Therefore, after reconstructing the chapeau of Article XX, I will make my suggestions supported by careful analysis of the relevant legal texts and previous cases in these two regards.

Name thesis:degree_name

J.S.D.

Level thesis:degree_level

Dissertation

Discipline thesis:degree_discipline

Law

Grantor

University of Illinois at Urbana-Champaign

Year dc:date

2019

Author dc:creator

• Jia, Hailong

Contributors dc:contributor

• Davey, William J.
• Ulen, Thomas S.
• Heald, Paul J.
• Keenan, Patrick J.

• WTO
• GATT ARTICLE XX
• NATIONAL TREATMENT
• DOMESTIC REGULATION

Statement dc:rights

• Copyright 2019 Hailong Jia

Language dc:language

en

Handle dc:identifier

http://hdl.handle.net/2142/105806

OAI identifier oai:identifier

oai:www.ideals.illinois.edu:2142/105806