Document Type


Publication Date

Fall 2010


The creation of the WTO in 1995 has brought GATT Article X (and other procedural provisions) and Article XX to the forefront of WTO jurisprudence. The provisions of the WTO Agreements reflect the reality of the administrative state and with it the recognition that categories of regulation (such as sanitary and phyto-sanitary regulations or technical regulations or standards) are legitimate irrespective of their impact on trade. The focus of WTO panels and the Appellate Body has shifted from harmonization and mutual recognition to transparency in application and administration. It has also required the WTO dispute settlement mechansim to engaged in constant balancing of interests on a case by case basis and this in turn requires the WTO bodies to focus on the legitimacy of the process both at the national and international level. This means that the WTO will increasingly focus on: (1) internal transparency of its own domestic decision-making and (2) domestic transparency and predictability in the application of national measures that are a restraint on trade or are discriminatory, but nevertheless may be justificed as upholding important values consistent with the meaning of sustainable development.

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