The Morals and Order Exceptions in WTO Law: Balancing the Toothless Tiger and the Undermining Mole

Nicolas F. Diebold

Journal of International Economic Law, 2008, vol. 11, issue 1, 43-74

Abstract: On 10 April 2007, the United States requested consultations with China regarding trading rights for publications and audiovisual products. Following US Gambling, this case is likely to provoke the next clash between free trade and public morals. This article takes an abstract approach to the scope and content of the public morals and public order exceptions in the GATS and the GATT and, given the absence of a public order exception under the GATT, analyzes how these two concepts interrelate with one another. In this regard, the finding in US Gambling that Members should individually define the scope of Article XIV(a) GATS is critically examined, but the article suggests that it deserves support based on an interpretation in accordance with general principles of the law of treaties. Following the identification of instruments that limit the risk for abuse of the morals and order exceptions, the article will turn to the scope-related aspect regarding the justifiability of 'extraterritorial' measures. , Oxford University Press.

Date: 2008
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