Abstract
This Article examines WTO’s jurisprudence on the introductory clause (the “chapeau”) of the general exceptions in the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS). These general exceptions allow WTO members to depart from GATT and GATS obligations in order to pursue specific nontrade policies, such as public health and the environment. In practice, it has proven difficult for countries to invoke the general exceptions successfully. One major obstacle has been the chapeau requirement of nondiscrimination, which, under jurisprudence developed by WTO’s Appellate Body (AB), has become the final barrier for the availability of policy exceptions. Despite such difficulty, new free trade agreements have routinely adopted the same chapeau language in their general exceptions, raising issues of policy space available for a broader range of subject matter under these agreements.
This study makes three major findings. First, the chapeau language was originally included in GATT by a drafting oversight; and its inclusion has created an incoherent order of values under the treaty. Second, the chapeau is largely unnecessary for its originally intended purpose of preventing abuse of the general exceptions. A survey of all relevant WTO cases supports this finding. Third, as a matter of treaty interpretation, the purpose of the chapeau is not necessarily limited to that originally intended. This finding validates the AB’s expansive interpretive approach; but conversely, it also opens the door for the chapeau to play an exculpatory function of excusing measures with legitimate policy objectives not specified in the general exceptions, thereby expanding the policy space of regulating states.
Recommended Citation
Julia Y. Qin,
WTO "Chapeau" Jurisprudence and Its Discontent,
36 Fla. J. Int'l L.
129
(2024).
Available at: https://scholarship.law.ufl.edu/fjil/vol36/iss1/3