WTO Dispute Settlement Body

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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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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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Living in the Shadow of Flawed Peace: How General International Law Is Implicated in the Trade War between Japan and South Korea

As the anniversary of V-J Day approaches, the legacy of World War II still casts a long shadow on its previous Pacific theatre.  Last month, an unprecedented quadripartite incident involving warplanes from, inter alia, Japan and South Korea played out in the territorial airspace of the contested Dokdo/Takeshima islands, disputed territory that was left unresolved in the…

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The WTO Panel Ruling on the National Security Exception: Has the Panel ‘Cut’ the Baby in Half?

Recently, media attention has been captured by the unravelling trade war between the declining western hegemon and the rising eastern mega-power with other discussions, such as the reform of the WTO dispute settlement system, reflecting the points of the growing divergence between the two. Against this backdrop, the  Russia – Traffic in Transit…

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The Reviewability of the Security Exception in GATT Article XXI in Russia – Traffic in Transit: Implications for South China Sea Investment Disputes in GATT Article XXI-type Clauses in ASEAN Regional Investment Treaties

The landmark WTO Panel Report on security exceptions in GATT Article XXI came out Friday last week in Russia - Traffic in Transit.  I have written extensively about necessity and national emergency clauses in the past - particularly to reject the position of the supposed wholesale unreviewability of these clauses in the Schmittian sense (on GATT Article…

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