The Existence of a Duty to Negotiate in the General Exceptions of GATT and Gats

Abstract

The WTO Appellate Body recently overturned a panel ruling that the United States had an obligation in WTO law to negotiate with Antigua and Barbuda in order to accommodate the latter's concerns regarding the design of certain American criminal laws. In the panel's decision, the source of the negotiation obligation was GATS Article XIV(a). GATS Article XIV and GATT Article XX set out general exceptions to the obligations contained in the respective WTO Agreements. Due to the similarity of the language used in these two Articles, WTO jurisprudence on one Article is relevant to the interpretation of the other. In some cases, the party invoking a general exception has been required to engage in negotiations in order to justify a measure, while in other cases it has not. While the Appellate Body was right to reverse the panel's interpretation of GATS Article XIV(a), it failed to clarify whether the general exceptions of GATT and GATS impose an obligation to engage in negotiations prior to adopting laws that might restrict trade in goods or services. This article analyzes the circumstances in which there exists a duty to negotiate in order to justify a measure under these general exceptions.

Keywords: World Trade Organization, Duty to Negotiate, Internet Gambling, Environment

JEL Classification: K33