Imposition of Safeguard Measures and Unforeseen Developments (original) (raw)
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Indian Journal of International Economic Law, 2019
The Multilateral Trade System has dealt multiple times with measures that violate the International Trade rules and the general notion of free trade, in favour of protectionism. The latter has mainly occurred under the disguise of legitimate regulatory concerns and non-trade values, such as environmental protection or promotion of domestic moral values. In light of these circumstances, the Appellate Body has examined in a wide variety of cases how the different provisions of the GATT 1994 scrutinize such instances, mainly in light of the Article III of the GATT 1994, i.e. the national treatment obligation, and the degree of regulatory freedom to adopt such measures, mainly in light of Article XX of the GATT 1994. Yet, notwithstanding the vast jurisprudential practice, it seems that the WTO Adjudicating Bodies have not clearly drawn the line of “permissible” regulatory protectionism that each provision of Article III provides for, as well as the exact point at which protectionism becomes a corroding element in justifying violations of Article III, in the general exception of Article XX. In this regard, this article tries to find this line by applying the “theory of inherent balance” as established by WTO jurisprudence
The WTO's Special Safeguard Mechanism: An Indian Perspective on the Present Paradox
University of Bologna Law Review, 2018
While liberalisation of trade and the progressive reduction of tariffs have led to significant welfare gains, these may be unfeasible for developing countries where a surge in imports could potentially be detrimental to realising the objective of food security through food self-sufficiency. Developing country members of the World Trade Organization (W.T.O.) have thus been proposing a ‘special safeguard mechanism’ (S.S.M.). This would permit them to impose measures in circumstances wherein there has been a surge or a decline in prices of agricultural imports, so as to negatively affect the livelihood and food security interests of these nations. These deliberations have gained momentum against the backdrop of the W.T.O.'s Agreement on Agriculture (A.o.A.), which came into force in the Uruguay Round negotiations. Consequently, the W.T.O.'s Sixth Ministerial Conference held in Hong Kong in 2005, endowed developing country members with the right to recourse to S.S.M.'s on ac...
Gateways to the Precautionary Principle in WTO Law
One of the persistent problems of the WTO is the need to find an appropriate balance between trade rules and environmental protection measures. One example is the tension that arises from the constraints that WTO law places upon Members who wish to take a precautionary approach to environmental protection. Commentators have been divided on the question of how far the WTO Agreement permits or accommodates the application of the precautionary principle. The purpose of this article is to explore the jurisprudence of the Appellate Body to discover how and in what circumstances the precautionary principle might be relevant to the application of WTO law.