Permission to act: the legal character of general and security exceptions in international trade and investment law

Research output: Contribution to journalArticleResearchpeer-review

Abstract

The dyadic rule-exception structure common to many legal systems has posed particular interpretive difficulties in international trade and investment law. Adjudicators have interpreted general and security exceptions in GATT, GATS and cognate provisions of investment treaties in divergent ways, and the analytic character of these provisions is under-theorised in the literature. This article argues that we should understand exceptions from a deontological perspective as permissions that affirm governmental regulatory capacity and thus limit the scope of the commands set out in the treaty. This characterisation of exceptions has both symbolic and practical implications, of which this article discusses two: Determining the exception's applicability as a preliminary matter rather than as a defence, which would in turn permit consideration of regulatory purpose at the point of obligation; and whether the applicability of an exception is properly a question of merits or jurisdiction.

Original languageEnglish
Pages (from-to)557-584
Number of pages28
JournalInternational and Comparative Law Quarterly
Volume69
Issue number3
DOIs
Publication statusPublished - 2020

Keywords

  • defences
  • deontic logic
  • general exceptions
  • international investment law
  • interpretation
  • jurisprudence
  • national treatment
  • public international law
  • regulatory autonomy
  • security exceptions
  • WTO

Cite this