WTO Dispute Settlement Body

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Evidence in Environmental/Scientific Exceptions: Some Contrasts between the WTO Panel Report in China-Rare Earths and the ICJ Judgment in Whaling in the Antarctic

Two significant international decisions involving environmental protection claims were issued within the last few days of March 2014.  On 26 March 2014, a World Trade Organization (WTO) Panel issued its Report in China-Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum (hereafter, China-Rare Earths), which held, among others, that "China may not seek to justify the export duties it applies to various forms of rare earths, tungsten, and molybdenum [pictured above left, credit] pursuant to Article XX(b) [exception for measures "necessary to protect human, animal or plant life or health"] of the GATT 1994." (Panel Report, para. 8.11b)  On 31 March 2014, the International Court of Justice issued its Judgment in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) (hereafter, the Whaling case) where the Court held, among others, that "the special permits granted by Japan in connection with JARPA II [Japanese Whale Research Programme under Special Permit in the Antarctic Phase II] do not fall within the provisions of Article VIII, paragraph 1 [, of the International Convention for the Regulation of Whaling." [Judgment, para. 247(2)].

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The Right to Regulate for Public Morals Upheld (Somewhat): The WTO Panel Report in EC-Seal Products

There have been few interpretations of Article XX(a) of the General Agreement on Tariffs and Trade (GATT 1994) - the  specific exception that justifies what would ordinarily be a State's GATT-inconsistent measure, unless such measure is deemed "necessary to protect public morals".  As with any of the ten enumerated exceptions under Article XX of GATT 1994, a State invoking GATT…

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The ‘Mackerel War’ Goes to the WTO

In a typical David and Goliath story, the Faroe Islands - a small archipelago situated northwest of Scotland, halfway between Iceland and Norway, and inhabited by less than 50,000 people - have  requested consultations with the European Union under the WTO’s Dispute Settlement Understanding. The dispute, which concerns fishing rights in the North Atlantic, has been dubbed…

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