See all articles by Panos Delimatsis Panos Delimatsis. Finally, the Court determined that the rationale provided by the Hungarian Government concerning the purpose of the requirement of a prior international treaty was not sufficient to justify it, in the light of Article XIV of the GATS. Geneva, Geneva Canton, Switzerland. The more important of these, GATS Article XIV, has not yet been invoked in any WTO dis-pute, but there is little reason to be optimistic that it will protect public interest measures from successful GATS challenge. On appeal, the Appellate Body narrowed this finding of violation to the federal laws only. 5 Markwell, D. (2006). !b refers to the protection of human, animal or plant life or health, §!2 lit. The treaty was created to extend the multilateral trading system to service sector, in the same way the General Agreement on Tariffs and Trade (GATT) provides such a system for merchandise trade. There is a solution to this problem: to read disciplines in GATS Article II of the type previously associated only with GATT Article XX and GATS Article XIV, both of which deal with general exceptions. Both are found in Chapter 32, Article X.02 (1) and (2) of the CETA.10 Unlike the provision in Canada’s 2012 model Foreign Investment Promotion and Protection Agreement (FIPA), the exceptions are only applicable to certain sections of the investment chapter. GATS: Article XIV bis contains a general exception regarding national security similar to the draft Article in the MAI Consolidated Text, with the notable exception of the subparagraph on nuclear weapons, which is considerably wider in the GATS. 6, Martinus Nijhoff Publishers, Leiden, pp. Max Planck commentaries on world trade law, no. MAX PLANCK COMMENTARIES ON WORLD TRADE LAW, WTO - TRADE IN SERVICES, Rüdiger Wolfrum, Peter-Tobias Stoll, Clemens Feinäugle, eds., Vol. In this article, I investigate whether GATS-inconsistent measures may be justified under GATS Art. Article XIV bis GATS: Security Exceptions. §!2 lit. In this article, I investigate whether GATS-inconsistent measures may be justified under GATS Art. GATS Article XIV, which controls trade in services, has provisions similar to GATT Article XX. Article XIV GATS contains an enumerative list of exceptions, which justify na-tional interventions into the cross-border trade in services. XIV when aimed at ensuring privacy or cybersecurity, and, if so, whether GATS Art. !a reserves the application of public order and public goods, §!2 lit. Accordingly, a member is not obliged under the GATS to provide information or take action contrary to its essential security interests. XIV when aimed at ensuring privacy or cybersecurity, and, if so, whether GATS Art. XIV GATS is still in its infant stage, WTO adjudicating bodies have recourse to precedents developed under Art. XIV effectively balances trade and internet policy. This contribution aims to provide an authoritative interpretation of one of the most important GATS provisions, namely the General Exceptions provisions. 6, pp. XIV to cybersecurity/privacy measures necessitates … This paper demonstrates how a right to health approach in the interpretation of the public health exception outlined in GATS Article XIV(b) can bring about a harmonious application of international human rights and international trade law regimes. The Appellate Body is supposed to have applied this test also in EC–Asbestos, US–Gambling (involving GATS Article XIV), and Dominican Republic–Cigarettes. The wordings of both Articles impose a two-tier test to determine whether a measure otherwise inconsistent with the GATT or the GATS can be justified13. XX GATT 1994, albeit taking into account the different structure and flexibility of the GATS and commitments made by Members. Article XIV bis of the GATS is mutatis mutandis to Article XXI of the GATT and Article 73 of the TRIPs. Conventional wisdom tells us that in Korea–Beef, the Appellate Body interpreted the word ‘necessary’ in GATT Article XX to require a cost–benefit balancing test. The defense was successful save for the fact that the United States permitted domestic entities to supply internet betting on horse races, which led to a finding that the Article XVI chapeau was not satisfied. As the internet governance framework is complex and somewhat ambiguous, applying GATS Art. Measure protected under Article XIV (A) of GATS. GATS Article XIV(c) provides an exception – similar to GATT Article XX(d) – for measures "necessary to secure compliance" with GATS-consistent laws or regulations. c) Justification under Article XIV of the GATS. Major Provisions of the GATS - Exceptions (10) Security exceptions – Article XIV bis These are largely identical to the GATT. QUERY: Potential for abuse? W. T. O. As the internet governance framework is complex and somewhat ambiguous, applying GATS Art. Tilburg Law and … XIV when aimed at ensuring privacy or cybersecurity, and, if so, whether GATS Art. WTO Law, Lecture 7: General Exceptions, GATT Article XX, GATS Article XIV. NPM clauses modelled on the basis of GATT Article XX or GATS Article XIV generally set a higher threshold for establishing the means-end relationship between the disputed preventative measures and the aim of containing the spread of the coronavirus - the necessity test. 329-348. Article XIV bis :1(b)(iii) contemplates that a Member State may take any action necessary for the protection of what it considers an “essential security interest” when confronted with a “war or other emergency in international relations”. of Article XIV of GATS are incorporated into and made part of this Agreement, mutatis mutandis. XIV bis of the GATS is specifically referenced in Article 29.2, suggesting that WTO jurisprudence may be inapplicable should a dispute arise. Article XIV (a) gives the liberty to the member-state for adopting or enforcing any measures that are necessary to protect public morals or to maintain public order. It also found that these laws were not justified under the GATS Article XIV(a) defense for measures "necessary to protect public morals or to maintain public order," on the grounds that the U.S. failed to negotiate with Antigua in relation to the gambling restrictions. Drawing parallels with relevant interpretations under the GATT and critically assessing relevant As the internet governance framework is complex and somewhat ambiguous, applying GATS Art. General Agreement on Tariffs and Trade (GATT). ‘necessary’ in GATT Article XX or GATS Article XIV: EC–Asbestos8 (involving GATT XX(b)), US–Gambling9 (involving GATS XIV(a), which corresponds to GATT XX(a)), and Dominican Republic–Cigarettes10 (involving GATT XX(d) again, as in Korea–Beef).11 Unfortunately, the opinions in these later cases merely reproduce the confusion and contradiction of Korea–Beef. XIV effectively balances trade and internet policy. XX GATT 1994, and given that the case law relating to Art. In this article, I investigate whether GATS-inconsistent measures may be justified under GATS Art. First, under Article XIV of the GATS, the United States could ground an argument in one or more general exceptions. The Parties understand that the measures referred to in Article XIV(b) of GATS include environmental measures necessary to protect human, animal, or plant life or health.” (US-Korea FTA, Article 23.1(2)) How Commonly Used. The United States then invoked the “public morals” exception of GATS Article XIV(a). (WTO). Delimatsis, P & Cottier, T 2008, Article XIV bis GATS (Security exceptions). The Appellate Body is supposed to have applied this test also in EC–Asbestos, US–Gambling (involving GATS Article XIV), and Dominican Republic–Cigarettes. INTRODUCTION n July 31, 2001, the U.S. Second Circuit Court of Appeals handed down a decision against Jay Cohen1 that became the basis of a landmark trade dispute against the United States in the World Trade Or-ganization (“WTO”). Since they are almost identical and only a few precedents relating to GATS Article XIV exist, GATT Article XX is mainly described in this Chapter. A Lecture Delivered by Professor Fang Dong at the Xiamen University School of Law on December 15, 2017 4 (1948). 3. INVOKING THE ARTICLE XIV EXCEPTION TO GATS I. Economic analysis of GATS is much more embryonic than the study of trade in goods. The General Agreement on Trade in Services (GATS) is a treaty of the World Trade Organization (WTO) which entered into force in January 1995 as a result of the Uruguay Round negotiations. XIV effectively balances trade and internet policy. XIV GATS follows the model of Art. ; protect essential security interests (Art. The more restricted technique of WTO panels under GATT Article XX or GATS Article XIV is consequently unjustified, some believe, particularly in the context of de facto discrimination against foreign investors where governments deserve the chance to explain why differential treatment of the foreign investors is based not on nationality, but on some other worthy ground. The GATS allows Members to deviate, under certain circumstances, from obligations and commitments, like national treatment. Article XIV (XIVbis) and Annex on Financial Services Subject to certain conditions, nothing in the GATS prevents Members from taking measures necessary: to protect public morals or maintain public order; protect life or health etc ; protect 21 order; protect life or health, etc. 3. 329-348, Leiden/Boston: Martinus Nijhoff Publishers, 2008. This omission contrasts the explicit references to the general exception provisions of Article XX of the GATT and Article XIV of GATS in Article 29.1 of the CPTPP. 15 Pages Posted: 7 Oct 2008 Last revised: 24 Oct 2010. in W Wolfrum, P-T Stoll & C Feinäugle (eds), WTO - Trade in services. GATT Article XX constitutes the basis to interpret GATS Article XIV. In this article I demonstrate, by detailed analysis of the opinions, that the Appellate Body has never engaged in such balancing. GATS Article XIV. The GATS recognizes the autonomy of parties to pursue their national policy objectives, referred to as the right to regulate.
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