Making General Exceptions: The Spell of Precedents in Developing Article XX GATT into Standards for Domestic Regulatory Policy
German Law Journal, Vol. 12, No. 5, pp. 1111-1140, 2011
30 Pages Posted: 18 Nov 2011
Date Written: November, 15 2011
Judicial lawmaking in the GATT/WTO context has for some time drawn considerable attention. Some are inclined to show a sense of existentialist anxiety in view of the fact that legal practice does not neatly live up to the orthodox doctrinal order of things. Others see judicial lawmaking as (theoretically or practically) inevitable and tend to readily embrace it as a way of overcoming defunct political processes. Whatever its normative appraisal, as a matter of fact adjudicatory practice has developed some of trade law’s cardinal norms. The rise and increasing sophistication of adjudication in the GATT/WTO context has also gone hand in hand with a surge of authority on the part of adjudicators and a larger overall detachment of the law from politico‐legislative politics.
The present contribution examines how adjudicators in the GATT/WTO context have contributed to shifts in the meaning of the general exceptions spelled out in the black letters of Art. XX GATT and how their interpretative acts have come to represent reference points in discursive practices. It draws attention to the spell of precedents in legal discourse.
The argument falls into four parts. The first part sets the scene by introducing initial institutional developments, the normative environment, and the social contexts for legal argumentation focused on Art. XX GATT (B). The second part shows how GATT panels responded to mounting conflict between trade and non‐trade objectives (C). Institutional changes and the possibility of appellate review then considerably strengthened the working of precedents, increased the authority of adjudicators, and portrayed rather immediate repercussions on substantive law. With recent developments in the law on general exceptions, legal discourse has transformed into a controversy surrounding the legitimacy of adjudication in a scheme of multilevel governance (D). The last part recalls the force of precedents in the transformation of Art. XX and dwells on the idea that legal interpretation has turned into a debate about legitimacy (E).
Keywords: International Judicial Lawmaking, Judicial Precedents, International Trade Law, General Exceptions, GATT/WTO
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