A Study On Application Scope Of The General Exception Of GATT

Under the WTO framework, there are several agreements which provide escape clauses for members. Among others, Article 20 of GATT, the General Exception is the most frequently referred one. Generally speaking, the application of General Exception could be divided into two steps: firstly, to confirm the application scope; secondly, to examine whether the specific measures conform to the criteria.Though the current discussion on the General Exception is affluent, most of them focus on the second step as above-mentioned, but rarely try to analyze the first question. Actually, before examining the specific criteria set by the General Exception, it is necessary to clarify the application issue beforehand. This author thinks that this is related to the fact that in DSB practice during the 16 years after the establishment of WTO, almost all the cases citing the General Exception relates to a GATT obligation. It is in the recent years that this application scope issue becomes a prerequisite. In United States– Customs Bond Directive (DS345), the United States relied on the General Exception as a defense to argue for its alleged violation of Anti-dumping Agreement. In China– Publications and AVHE products (DS363), China referred to the General Exception to argue for its alleged violation of Accession Protocol. This situation brings about a question: whether the General Exception could be directly invoked as a defense to a breach of other agreements rather than GATT1994? Upon a brief introduction of the content, legal characteristic and practice history of the General Exception, guided by the opinion of the Appellate Body in China– Publications and AVHE products, this paper endeavors to analyze the application scope of the General Exception. Based on the unity of WTO Agreement, this paper holds the view that the application scope of the General Exception should be broad enough to defend a breach of other agreements.The specific analysis will be divided into two steps which are included in two chapters respectively. Firstly, taking the China– Publications and AVHE products case as an example, clarify the availability of the General Exception to a breach of Article 5.1 of Accession Protocol; secondly, based on the conclusion of the first step, analyze the availability of Article 20 to a breach of agreements except Article 5.1 of Accession Protocol.From 2007, the number of cases involving China as respondent is sharply rising. China is facing a rising risk to be accused in the WTO. In the recent cases, the Accession Protocol is frequently referred to. Due to the existence of WTO-plus obligations contained in the Accession Protocol, China was imposed some duties which are more burdensome then those in the WTO Agreement. Proving the broader application scope of the General Exception will be the key element to ensure success in future cases. Dispute settlement stems from conflict of interests, is expected to be analyzed under policy and decided by rules. Justified and reasonable application of the General Exception will be significant for China in the future. To this end, taking the China– Exportation of various raw materials as an example, this paper also addressed the meaning of application scope issue of the General Exception for China.