Permission to Act: The Legal Character of General and Security Exceptions in International Trade and Investment Law

International & Comparative Law Quarterly 69(2), Forthcoming

Monash University Faculty of Law Legal Studies Research Paper No. 3546332

25 Pages Posted: 25 Mar 2020

See all articles by Caroline Henckels

Caroline Henckels

Monash University - Faculty of Law

Date Written: February 29, 2020

Abstract

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

Henckels, Caroline, Permission to Act: The Legal Character of General and Security Exceptions in International Trade and Investment Law (February 29, 2020). International & Comparative Law Quarterly 69(2), Forthcoming, Monash University Faculty of Law Legal Studies Research Paper No. 3546332, Available at SSRN: https://ssrn.com/abstract=3546332

Caroline Henckels (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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