Trade and Morality: Balancing between the Pursuit of Non-Trade Concerns and the Fear of Opening the Floodgates

54 Pages Posted: 7 May 2014 Last revised: 24 Nov 2019

See all articles by Regis Y. Simo

Regis Y. Simo

Queen's University Belfast - School of Law

Abstract

The liberalization of trade is the main objective of the World Trade Organization (WTO) and its numerous agreements. However, trade liberalization often conflicts with some important societal values and interests. This is the reason why a set of exceptions were devised in WTO covered agreements to reconcile these conflicting interests. These exceptions allow Members to adopt measures for the protection of a number of values, including the protection of “public morals.” But because the term “public morals” is not defined by WTO agreements, the task of ascribing meaning to such a vague concept is left to the WTO judiciary. Highly ambiguous and subjective, “public morals” introduces a dose of uncertainty into the law of the WTO, which may have to deal with as many different conceptions of morality as there are Member States. Since the scope and limits of “public morals” remain uncertain, the adjudicator is left with a difficult task as it is confronted with cases pleading a public morality defense. This Article reviews the cases in which the adjudicator has indulged in the delicate exercise of balancing the preservation of public morals and the imperative of trade liberalization. This Article also critiques the standard of review and sets out to determine the degree of deference accorded to Members to define what constitutes public morals within their respective territories and whether, by so doing, the adjudicator has acted consistently within the delegated power of the Dispute Settlement Understanding (DSU).

Keywords: WTO Dispute Settlement, Non-Trade Concerns, Public Morals, Standard of Review, Judicial Activism

JEL Classification: K33, F13, P45

Suggested Citation

Simo, Regis Y., Trade and Morality: Balancing between the Pursuit of Non-Trade Concerns and the Fear of Opening the Floodgates. Bocconi Legal Studies Research Paper No. 2433720, 51(3) George Washington International Law Review (2019), 407-460., Available at SSRN: https://ssrn.com/abstract=2433720

Regis Y. Simo (Contact Author)

Queen's University Belfast - School of Law ( email )

Main Site Tower, Queen's University Belfast
Belfast, BT7 1NN
United Kingdom

HOME PAGE: http://https://www.qub.ac.uk/schools/SchoolofLaw/

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