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The second chapter on a national security exception in WTO law: the panel report in Saudi Arabia – Protection of IPR

Introduction For many decades, national security exceptions had been dealt with only in rare instances, under the GATT 1947 regime as well as under the law of the WTO. The scope and design of the national security exception of Art. XXI GATT 1947 which served as a model for Art. XIV bis GATS and Art. 73 TRIPS has been vividly discussed right from its creation. Characterised as “trump card” or “catch 22 situation”, WTO members have prevented any binding panel report on Art. XXI GATT or Art. XIV bis GATS and Art. 73 TRIPS in any dispute settlement proceedings under the DSU. Instead, they regularly pursued alternative strategies or lines of argumentation to settle situations in which national security (could have) played a role in GATT 1947 or under WTO law. Times have tremendously changed, though, with now two adopted panel reports involving the GATT and TRIPS national security exception and a third one on national security underway. The beginning of this new era in which the WTO dispute settlement has to…

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Justified Border Closures do not violate the International Health Regulations 2005

Rapidly developing pandemics require governments to use their best endeavours to protect their populations.  International law permits them to do this provided they observe certain conditions, but limits on the reach of the World Health Organization (WHO) International Health Regulations 2005 (IHR) have previously been insufficiently appreciated. In mid-February 2020 The Lancet published a piece by…

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Are COVID-19 Related Trade Restrictions WTO-Consistent?

Countries dealing with the economic and public health-related impacts of COVID-19 have adopted a markedly nationalist approach to their response. More than 80 governments have placed restrictions of some sort (with many of those being notified to the WTO Secretariat) on the export of personal protective equipment and medication necessary to treat those affected by the…

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The Scorecard of the Phase One Trade Agreement

  The United States President and the Chinese Vice Prime Minister signed a deal dubbed as the “Phase One Trade Agreement” (“the Agreement”) on January 15, 2020. The Agreement withholds further escalation of the on-and-off trade war, which has dragged on for over 18 months between the US and China. The Agreement will likely lay a…

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Who controls WTO dispute settlement? Reflections on the Appellate Body’s crisis from a socio-professional perspective

  Last month marked a crucial moment in the history of the World Trade Organization (WTO)’s dispute settlement system. On 10 December 2019, the terms of office of Appellate Body (AB) members Ujal Bhatia and Thomas Graham came to an end, thereby leaving the World Trade Court without the minimum complement of adjudicators necessary to carry out its…

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