In the China - Raw Materials appeal (the AB report, circulated today, is here), China argued 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." (para. 270)
In examining this issue, the Appellate Body considered, inter alia, the text, certain context and China's "right to regulate trade." In the end, it concluded that the Panel did not err in finding that "there is no basis in China's Accession Protocol to allow the application of Article XX of the GATT 1994 to China's obligations in Paragraph 11.3 of the Accession Protocol." (see paras. 271-307)
The Appellate Body previously held that Article XX was available as a defense to a claim under Paragraph 5.1 of China's Accession Protocol. But Paragraph 5.1 makes reference to the rest of the WTO Agreement, whereas Paragraph 11.3 does not. As a result, the Paragraph 5.1 finding could be seen as somewhat narrow; by contrast, a finding that Article XX applied to Paragraph 11.3 would have been a broader one, with possible implications for other WTO agreements.
After a first read of the Appellate Body's reasoning, I think it has not completely closed the door on finding that GATT Article XX could be a defense applied to violations of other non-GATT agreements. The answer will depend on the specific language of these agreements.
Any thoughts on this from others?
