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Studies on the General Excepitons Clause of the GATS

Author: PengZhiQiang
Tutor: WangHeng
School: Southwest University of Political Science
Course: International Law
Keywords: GATS general exceptions public morals public order restriction-sensitive approaches
CLC: D996.1
Type: Master's thesis
Year: 2012
Downloads: 54
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Abstract


The exceptional rules are critical parts in the WTO legal system, as well as importantlegal grounds of judgment of the DSB. Procedures and conditions of using general exceptionsclause could be seen on Article20of GATT1994and Article14of GATS, in respect of tradein goods and trade in services.The Appellate Body of WTO has made some comments on public morals in the case ofU.S. Gambling, which is the first GATS case relating to public morals, and the case of ChinaAudiovisual Services. However, there are lots of arguments on the application of generalexceptions clause. Measures which would restrict gambling and betting services on internet,have been admitted by the Appellate Body of U.S. Gambling, for the reason of protectingpublic morals. There is no definitive standard for the term of public morals and the AppellateBody need to analyze more deeply. So, this article is mainly about the exceptions of publicmorals and public order.The first part of this article is about theory of foundations on general exceptions clauseof GATS. The foundation of jurisprudence for general exceptions clause of GATS is consentfrom members of WTO in advance, which is called harmonization and reveals balancebetween the rights of application of exceptional measures and the rights of other members’.GATS is one part of WTO agreements and need to be explained because of its fuzziness. DSBneed to explain the term of public morals and public order more deeply.The second part is text analysis. Compared with general exceptions clause of GATT1994, it analyses the general exceptions clause of GATS. First, it analyses the clauses ofpublic morals and public order. Then, it analyses the clause of chapeau. Such an approach ofstudy is called "two-tier-analysis", which would, firstly, find out whether a measure inquestion is consistent with one particular exception; then check whether such measure isconsistent with requirements of chapeau in GATS Article14.The third part is empirical analysis. Combining public morals’ analysis in cases of U.S.Gambling and China Audiovisual Services, it holds that measures in question need to befulfilled Provisional Justification and the requirements of non-discrimination clause. Then, itcomments four definitive approaches, which are originalism, universalism, transnationalismand restriction-sensitive approaches, and it holds that the restriction-sensitive approaches is appropriate for defining the meaning of public morals.The forth part of this article presents some suggestions in aspects of internationalnegotiation, disputes settlement and application of domestic measures. In all, China couldsolve problems from the perspective of law and politics with its trade partners.

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CLC: > Political, legal > Legal > International law > International Economic Law > International Business Law ( International Trade Law )
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