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Balancing trade and non-trade policy objectives in GATS: Potentials and limits of Article XIV. Markus Krajewski University of Potsdam. Outline. Trade and non-trade policy objectives Methods of balancing Potentials of Art. XIV GATS: US – Gambling and Betting

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balancing trade and non trade policy objectives in gats potentials and limits of article xiv

Balancing trade and non-trade policy objectives in GATS:Potentials and limits of Article XIV

Markus Krajewski

University of Potsdam

BIICL Annual WTO Conference

outline
Outline
  • Trade and non-trade policy objectives
  • Methods of balancing
  • Potentials of Art. XIV GATS: US – Gambling and Betting
  • Stretching the limits of Art. XIV GATS
    • Human rights
    • Cultural diversity

BIICL Annual WTO Conference

trade and non trade policy objectives
Trade and non-trade policy objectives
  • limited references in WTO law
    • Art. 20 (c) AoA: “non-trade concerns”
    • EC – Tariff Preferences: “measure of ‘non-trade’ nature”
  • versus extensive use in WTO literature
  • but: What are “non-trade” objectives?

(“I know it when I see it”?)

BIICL Annual WTO Conference

methods of balancing
Methods of balancing
  • interpreting „necessary“ to include “weighing and balancing” (Korea – Beef)
  • deference to national regulatory autonomy (in dubio mitius) (EC –Hormones)
  • using other international agreements as context of WTO provisions (US –Shrimp)

BIICL Annual WTO Conference

potentials of art xiv gats
Potentials of Art. XIV GATS

US – Gambling and Betting: Art. XIV (a)

  • leaves scope for Members to define and apply concepts according to own systems and values
  • includes
    • internal security (criminal offences) and
    • protection of youth and other vulnerable groups

BIICL Annual WTO Conference

stretching the limits of art xiv gats
Stretching the limits of Art. XIV GATS
  • Protection of human rights?
    • ECJ, Omega Spielhallen: „public policy“ includes protection of human dignity
    • a model for WTO dispute settlement?
  • Cultural diversity?
    • Draft UNESCO convention: deviation from GATS to protect cultural diversity
    • can it become context of Art. XIV (a)?

BIICL Annual WTO Conference

conclusion
Conclusion
  • Art. XIV „sedes materiae“ for balancing trade and non-trade policy objectives in GATS
  • but can it be stretched far enough so that GATS is „not more burdensome than necessary“ on non-trade policy objectives?

BIICL Annual WTO Conference