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Journal of International Economic Law Advance Access published online on October 17, 2007
Journal of International Economic Law, doi:10.1093/jiel/jgm036
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© Oxford University Press 2007, all rights reserved

The Morals and Order Exceptions in WTO Law: Balancing the Toothless Tiger and the Undermining Mole

Nicolas F. Diebold*

* Research and teaching assistant at the Institute of European and International Economic Law, University of Berne; Associate research fellow with the Swiss National Centre of Competence in Research (NCCR) on Trade Regulation at the World Trade Institute, Berne. E-mail: nicolas.diebold{at}gmail.com. Special thanks for valuable comments to Lothar Ehring, Thomas Cottier, Panagiotis Delimatsis as well as Marco Bronckers and other JIEL anonymous referees; further thanks to Valerie Diebold and Susan Kaplan for editorial assistance. The author is solely responsible for views and shortcomings.


  Abstract

On 10 April 2007, the United States requested consultations with China regarding trading rights for publications and audiovisual products. Following US—Gambling, this case is likely to provoke the next clash between free trade and public morals. This article takes an abstract approach to the scope and content of the public morals and public order exceptions in the GATS and the GATT and, given the absence of a public order exception under the GATT, analyzes how these two concepts interrelate with one another. In this regard, the finding in US—Gambling that Members should individually define the scope of Article XIV(a) GATS is critically examined, but the article suggests that it deserves support based on an interpretation in accordance with general principles of the law of treaties. Following the identification of instruments that limit the risk for abuse of the morals and order exceptions, the article will turn to the scope-related aspect regarding the justifiability of ‘extraterritorial’ measures.


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