Applicability of GATT Article XX in China – Raw Materials: A Clash within the WTO Agreement

Journal of International Economic Law, Vol. 15(4), p. 1007-1031, December 2012

22 Pages Posted: 5 May 2017

See all articles by Bin Gu

Bin Gu

Beijing Foreign Studies University

Date Written: October 6, 2012

Abstract

The Appellate Body’s interpretation in China – Raw Materials regarding the applicability of GATT Article XX to China’s Accession Protocol is highly controversial and stimulates wide debates in academia. The controversy is rooted in the absence of an explicit mention of ‘consistency with the GATT 1994’ in Paragraph 11.3 of China’s Accession Protocol. That absence constrains China’s defense in instances when it must violate its export duty elimination commitments under the Accession Protocol by resorting to GATT Article XX. This article disagrees with the Appellate Body’s legal interpretation in China – Raw Materials and provides a critical review of the Appellate Body’s logical principle that ‘absence equates to waiver.’ The Appellate Body’s interpretation on the relationship between GATT Article XX and China’s Accession Protocol contradicted former DSB practices, demonstrated a failure to interpret the WTO Agreement in a systemic manner, and unfortunately resulted in inappropriateness in treaty interpretation.

Keywords: China, Raw Materials, GATT Article XX, Accession Protocol, Treaty Interpretation

JEL Classification: K33, Q32, Q37

Suggested Citation

Gu, Bin, Applicability of GATT Article XX in China – Raw Materials: A Clash within the WTO Agreement (October 6, 2012). Journal of International Economic Law, Vol. 15(4), p. 1007-1031, December 2012, Available at SSRN: https://ssrn.com/abstract=2962792

Bin Gu (Contact Author)

Beijing Foreign Studies University ( email )

No.19 North Xisanhuan Avenue, Haidian District
Beijing, Beijing 100089
China

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