Research On The Applicability Of Public Moral Exceptions Under The WTO Syste

After a prolonged silence,the public morality exception clause of Article 20 of GATT has been invoked in seven WTO cases one after another in the past two decades.As the role of public morality exception clause in international trade becomes more and more important,domestic and foreign scholars’ research on this clause has gone from being unnoticed when the clause was formulated to paying close attention to it now.In order to make the reader understand the article better,the first chapter of this article presents the history of the WTO public morality exception clause and reveals the outer structure and inner value of the clause for the first time.On this basis,the article summarizes the main controversies concerning the application of the clause.The public morality exception clause originates from domestic legislation and has undergone a process from domestic to international.The external structure of this provision includes the non-discrimination requirement in the preamble of Article 20 of GATT 1994 and the purpose and necessity requirements in the subparagraphs.There is an extremely important balancing value inherent in it.There are some disagreements about the practical application of this clause.,such as the overly broad determination of public morality and the inconsistent order of application.The most important aspect in the application of WTO public morality exception is the interpretation of public morality and the determination of the scope of public morality,therefore,Chapter 2 of this paper is devoted to the discussion of this issue.At present,in the practice of WTO dispute settlement bodies,the interpretation of public morality mainly adopts the static interpretation method and the dynamic interpretation method.The advantage of the static interpretation method for determining public morality is that it can guarantee the stability of the trade to the maximum extent,but the drawback is that it is difficult to reflect the new public morality arising from rapidly evolving science and technology.The dynamic interpretation method is more often adopted by WTO dispute settlement bodies and is more in line with the dynamic nature of public morality as a collective term.In terms of the scope of public morality,with the increasing number of WTO members,the heterogeneity among members has become more obvious,and it is very difficult to seek universal morality,so unilateralism is more often adopted by WTO dispute settlement bodies.Chapter 3 of this paper aims to sort out the specific application requirements of the WTO public ethics exception clause from seven cases and analyze them.In the specific application of the public morality exception clause,three preliminary questions need to be clarified.These are the preliminary questions for application,the burden of proof and the order of application.Firstly,it is necessary to take the violation of other WTO provisions by the member party as a prerequisite.Secondly,the rule of allocating the burden of proof to whoever claims should be adopted.The complaining party should retain the burden of proving that the other party has violated WTO rules,while the responding party should retain the burden of prima facie proving that the accused measures comply with the requirements of the public morality exception.After the responding party shows the prima facie evidence of compliance with the necessity of the public morality exception,the subsequent existence of alternative measures should be proved by the complaining party.Finally,in terms of the order of application,the author believes that the preamble and the subparagraphs are inseparable as a whole and that the order of application can be flexibly adjusted in accordance with the actual situation for the sake of efficiency.After analyzing the preliminary questions,the application of the public morality exception clause needs to satisfy the preamble which stipulates the requirement of non-discrimination and the subparagraphs’ requirement of purpose and necessity.First,when examining the nondiscrimination requirement,one needs to focus on whether the reasons for the implementation of discrimination and the effects of the measure are compatible.In order for a measure to be applied in a manner that constitutes "arbitrary or unjustifiable discrimination between countries with identical conditions," the three requirements of discrimination,arbitrary or unjustifiable restrictions,and occurrence between countries with identical circumstances must be met.Secondly,when examining the purpose of the subparagraph,the WTO Dispute Settlement Body adopts a lenient "not impossible" standard,and will examine the legislation,the results of the public investigation when implementing the measures,the structure of the content of the measures and the intended operation of such factors.Third,when examining the necessity requirement of the subparagraph,the three main factors are the relative importance of the common interest or value,the contribution of the measure to the achievement of its objectives,and the extent to which the measure restricts trade.As China’s invocation of the public morality exception has revealed problems such as inadequate domestic legislation and insufficient awareness of the evidence,Chapter 4 of this paper will summarize the problems revealed when China invokes the provision and make recommendations.China should add a statement of public morality to the legislative purpose of specific laws,regulations or rules that relate to foreign trade.Measures should also be taken to establish in advance the initial linkage to satisfy the purpose requirement,focusing on satisfying the necessity requirement and reducing discriminatory expressions that are inconsistent internally and externally.Finally,when invoking the public morality exception,attention should also be paid to the evidentiary and written question-and-answer sessions.