WTO's Public Morals Exception
Author: Fernández López, Juan Pablo
Publication date: 2020
Content type: article
"Trade is not elevated to the supreme common value that all WTO Members must observe at any cost". With this affirmation, Mavroidis introduces one of the most controversial provisions of the WTO: GATT Article XX. This provision is conceived as a 'flexibility' clause that establishes a hierarchy between trade commitments and national social preferences, such as public morals or human health. GATT Article XX allows Members to justify the inconsistency of a measure with the obligations of the WTO Agreements, whenever certain requirements are met. This paper aims to describe the different issues and interpretations concerning GATT Article XX (a) in four sections. Section I summarizes all the cases concerning GATT Article XX (a). Section II explains the issues relating to the concept of "public morals", such as the possibility to impose extraterritorial measures and the legal interpretation of the concept. Section III describes the "necessity test"¿ and its application by Panels and the Appellate Body. Section IV concludes and recapitulates the most relevant issues of GATT Article XX (a).
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