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

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  • Bin GU

Abstract

The Appellate Body's interpretation in China -- Raw Materials regarding the applicability of General Agreement on Tariffs and Trade (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 Dispute Settlement Body (DSB) practices, demonstrated a failure to interpret the WTO Agreement in a systemic manner, and unfortunately resulted in inappropriateness in treaty interpretation. The Author 2012. Published by Oxford University Press. All rights reserved., Oxford University Press.

Suggested Citation

  • Bin GU, 2012. "Applicability of GATT Article XX in China -- Raw Materials: A Clash within the WTO Agreement," Journal of International Economic Law, Oxford University Press, vol. 15(4), pages 1007-1031, December.
    • Handle: RePEc:oup:jieclw:v:15:y:2012:i:4:p:1007-1031
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    File URL: http://hdl.handle.net/10.1093/jiel/jgs039
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    Cited by:

    1. Charlier, Christophe & Guillou, Sarah, 2014. "Distortion effects of export quota policy: an analysis of the China-Raw Materials dispute," China Economic Review, Elsevier, vol. 31(C), pages 320-338.
    2. repec:hal:spmain:info:hdl:2441/f6h8764enu2lskk9p504jih2g is not listed on IDEAS
    3. Stephanie Switzer & Leonardus Gerber & Francesco Sindico, 2015. "Access to Minerals: WTO Export Restrictions and Climate Change Considerations," Laws, MDPI, vol. 4(3), pages 1-21, September.

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