The Study On The Application Of Article (XX) Of GATT On Article11.3of China Accession Protocol

On November4th,2009, Unite State, European Union and Mexico submitted theirrespective application to WTO Dispute Settlement Body, requiring adjudication onthe China’s export restrictive measures on raw materials. The so-called “China RawMaterial Case” has been paid great attention for its background of internationalfinancial crisis, lack of natural resource, environment protection and exportrestriction.China’s export restriction measures in this dispute could be classified into threecategories, including export duty measures. China claims that export duty measuresmeet the conditions of Article (XX) of GATT1994, which could justify thecontroversial measures. However, the Panel and the Appellate Body held that there isno legal foundation to prove that Article11.3of China Accession Protocol is subjectto Article (XX) of GATT1994and China’s export duty measures fail to meet all thesubstantial conditions of Article (XX) of GATT. On the basis of the two conclusionsabove, China lost its defense for export duty measures. Some lawyers in practice andscholars in academic circle don not share the same opinion with DSB on this issue.This thesis is aimed to discuss this issue from the perspective of “China Raw MaterialCase”. The thesis includes four chapters. The First Chapter gives a general introductionof “China Raw Material Case” with dispute process, controversial issues and theconflicts of interests to emphasize its practical significance. The Second Chapter, withthe beginning of analysis of GATT and its Article (XX), China Accession Protocoland its Article11.3, is aimed to indicate the summary of similar cases in WTO disputesettlement history and to demonstrate the importance of the issue discussed in thisthesis. The most important part of this thesis comes to the Third Chapter. In thisChapter, the author analyzes the logistic of DSB’s conclusion of “Article11.3ofChina Accession Protocol is not the subject of Article (XX) of GATT” and thenreveals the irrationality of the logistic above and its corresponding result. On the basisof refutation above, the author brings forward self viewpoint in Chapter Three SectionThree and Section Four from the perspective of the relationship between agreementsin WTO and interpretation of omission. In the last Chapter, Chapter Four, somereflection and prospects are summarized for future academic and practicaldevelopment, which concludes the cause for this disputed issue and the influence ofthe verdict upon China.