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VI - APPLICABILITY OF ARTICLE XX

from CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS

Published online by Cambridge University Press:  03 January 2018

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Summary

270. In this section, we address China's claim that Article XX of the GATT 1994 is available as a defence to China in relation to export duties found to be inconsistent with China's obligations under Paragraph 11.3 of China's Accession Protocol.

The Panel's Findings

271. The Panel began its interpretation of Paragraph 11.3 of China's Accession Protocol by observing that Paragraph 11.3 “does not include any express reference to Article XX of the GATT 1994, or to provisions of the GATT 1994 more generally”. In so doing, the Panel drew a contrast between the text of Paragraph 11.3 and the language contained in Paragraph 5.1 of China's Accession Protocol—”without prejudice to China's right to regulate trade in a manner consistent with the WTO Agreement”—which the Appellate Body examined in China – Publications and Audiovisual Products. In particular, the Panel noted that Paragraph 11.3 contains only a “specific set of exceptions: those covered by Annex 6 and those covered by GATT Article VIII”. For the Panel, the language in Paragraph 11.3, together with the “omission of general references to the WTO Agreement or to the GATT 1994”, suggest that WTO Members did not intend to incorporate the defences available under Article XX into Paragraph 11.3.540 The Panel also found no support in the provisions of China's Accession Working Party Report for the proposition that China could invoke Article XX of the GATT 1994 to justify violations of Paragraph 11.3 of China's Accession Protocol.

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Publisher: Cambridge University Press
Print publication year: 2014

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