Bartels: The Chapeau of Article XX GATT: A New Interpretation

Lorand Bartels (Univ. of Cambridge - Law) has posted The Chapeau of Article XX GATT: A New Interpretation. Here's the abstract:

This article presents a new interpretation of the Chapeau of Article XX of the GATT. The basis for this interpretation is a structural analysis of Article XX according to which this provision establishes a right to adopt measures for specific purposes that is subject to specific conditions set out in the subparagraphs of Article XX and horizontal conditions set out in the Chapeau. The article argues that the conditions in the subparagraphs are focused on the trade restrictive effects of these measures. The horizontal conditions in the Chapeau, on the other hand, are focused on two different aspects of these measures. One condition is focused on the discriminatory effects of these measures, which can be justified, and which in practice result from the non-application of the restrictive effects of these measures (these restrictive effects being justified under the subparagraphs) to competitive products from other origins. The second condition is focused on any protectionist purpose of these measures that is ‘disguised’ by a legitimate purpose, and this cannot be justified. The article goes on to interpret these conditions, based on a fundamentally economic conception of the discrimination conditions, and concludes by drawing some analogies between Article XX and Articles 2.1 and 2.2 of the TBT Agreement.