Research On General Exceptional Clause Of WTO

As we all know that the package agreements of WTO were established on acompromise foundation thus they can work effectively, accordingly whether it isabout trade in goods or services, additionally trade-related aspects of intellectualproperty right or investment, there exist plenty of exceptional clauses. We mayconclude that this phenomenon shows that WTO is never deem free trade as itsultimate goal, it also dedicated to protect the public welfare such as environment orhuman health. The exceptional clause was a balance between the rights thatgovernments can achieve their social policy goal and the obligations that they mustpromote free trade. When making their policy goal, many countries are restrictedunder WTO rules, for instance they must consider that whether a domestic measureviolates WTO rules. As a result, some argue that WTO puts too many restrictions onits member leads to failures on their objectives to protect public morality or theirdomestic law enforcement. But it is not just a simple matter that WTO only pursuefree trade, the exceptional clause contained in WTO indicates that these domesticpolicy were allowed by WTO in some occasions, so the research on theseexceptional clauses mean so much to our benefits.The Article XX of GATT was designed to permit member states when they wereon the purpose of fulfilling particular domestic public policy objectives, they canderogate or prevent their obligations under WTO rules, this article is normally calledgeneral exceptional clause which roles can never be underestimated. The casesquoting Article XX gradually increased recently, many defendants would like toquote Article XX as a ground of pleading. But as the ambiguous of its meaning, acontroversy was arose when some member states quote this article at the verybeginning. WTO dispute settlement mechanism interpret this article by DSB andappeal body while using this article and then summed up some disciplines. TakingChinese view, as a defendant in China-Measures Affecting Trading Rights andDistribution Services for Certain Publications and Audiovisual Entertainment Products, and China-Measures Affecting Imports of Automobile Parts, andChina-Measures Related to the Exportation of Various Raw Materials, we all failedto quote Article XX. But we also see that in European Communities-MeasuresAffecting Asbestos and Products Containing Asbestos it is effective, so we mustdraw this successful experience and the lessons of our own failure, making effectiveuse of this article to maintain our economic sovereignty and security. It has a greatsignificance for us to exploit Article XX.This paper would like to put forward on some practical proposals in legalcountermeasures level by analyzing Article XX and combine the successfulexperience of other member states when quoting this article, especially observe ourown failure. There still have huge differences and disputes between various countriesand regions under the common goal that we must make our economic in asustainable development condition. We can assume that the general exceptionalclause of WTO would play a key role to coordinate the contradiction betweendeveloped countries and developing countries. The innovation of this paper is that bycombing the analysis of application rules on Article XX concluded by WTO disputesettlement body in recent cases, finding out the principle of application method onArticle XX, and predicting the trend of development of Article XX in the future.This paper also emphasis on the practice of China when quoting this article,proposing the strategy that how to quote this article successfully to uphold our owninterests of the community.Above all, foreign scholars pay much attentions on studying the generalexceptional clause of WTO, they conclude some valuable perspectives andcountermeasure proposals in theory and practice aspects. But our own scholars werelimited to analyze the surface of this clause, lacking of a profound analysis to findout the essence of this clause. We may make “Safety Guard” or “Coordinate” theoryto evaluate the effect of this clause, such as “Unscramble on exceptional clause ofWTO” written by Chen Weidong. This paper will make efforts to research on generalexceptional clause of WTO to summarize practicable and suggestive legalcountermeasures in connection with our deficiency in legislation and practice.