Permission to Act: The Legal Character of General and Security Exceptions in International Trade and Investment Law
International & Comparative Law Quarterly 69(2), Forthcoming
25 Pages Posted: 25 Mar 2020
Date Written: February 29, 2020
The dyadic rule-exception structure common to many legal systems has posed particular interpretive difficulties in international trade and investment law. Adjudicators have interpreted general and security exceptions in GATT, GATS and cognate provisions of investment treaties in divergent ways, and the analytic character of these provisions is under-theorized in the literature. This article argues that we should understand exceptions from a deontological perspective as permissions that affirm governmental regulatory capacity and thus limit the scope of the commands set out in the treaty. This characterization of exceptions has both symbolic and practical implications, of which this article discusses two: determining the exception’s applicability as a preliminary matter rather than as a defense, which would permit consideration of regulatory purpose at the point of obligation; and whether the applicability of an exception is properly a question of merits or jurisdiction.
Keywords: Defences, Deontic Logic, General Exceptions, International Investment Law, Interpretation, Jurisprudence, National Treatment, Public International Law, Regulatory Autonomy, Security Exceptions, WTO
JEL Classification: K33
Suggested Citation: Suggested Citation