WTO Adjudication and the Security Exception: Something Old, Something New, Something Borrowed – Something Blue?

Forthcoming, 46(3) Legal Issues of Economic Integration (2019)

Amsterdam Law School Research Paper No. 2019-21

Amsterdam Center for International Law No. 2019-10

21 Pages Posted: 10 Jun 2019 Last revised: 19 Jun 2019

Date Written: June 7, 2019

Abstract

For twenty years, WTO Members managed to avoid invoking the security exception before WTO panels, leaving unresolved the tension between the self-judging element explicit in its text and the compulsory jurisdiction of WTO panels. Then, in 2017 and 2018, a dozen panels were established after the respondent declared that it deemed the challenged measures necessary to protect its essential security interests. The first panel report to examine the issue, in Russia – Traffic in Transit, was adopted in April 2019 without appeal. Its interpretation of GATT Article XXI significantly limits the scope of the self-judging element in the provision and devises a three-step legal test to be met by Members invoking the exception, with the declared objective of safeguarding ‘the object and purpose of the GATT 1994 and the WTO Agreement more generally’. This article examines and discusses this interpretation and its effects over the role of the WTO in international trade relations, viewing it as the latest episode in the long-standing tension between mechanisms providing for compulsory international adjudication and the view that, where states deem their essential interests to be involved, the submission of disputes to adjudication remains subject to their sovereign determination.

Keywords: WTO Law; International Trade Law; National Security; Security Exception

JEL Classification: K33

Suggested Citation

Vidigal, Geraldo, WTO Adjudication and the Security Exception: Something Old, Something New, Something Borrowed – Something Blue? (June 7, 2019). Forthcoming, 46(3) Legal Issues of Economic Integration (2019); Amsterdam Law School Research Paper No. 2019-21; Amsterdam Center for International Law No. 2019-10. Available at SSRN: https://ssrn.com/abstract=3400717 or http://dx.doi.org/10.2139/ssrn.3400717

Geraldo Vidigal (Contact Author)

University of Amsterdam ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

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