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Part IV Balancing Trade and Non-Trade Objectives, Ch.27 National security

Isabelle Van Damme

From: The Oxford Handbook of International Trade Law (2e) (2nd Edition)

Edited By: Daniel Bethlehem, Donald McRae, Rodney Neufeld, Isabelle Van Damme

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 16 July 2024

Burden of proof — Standard of review

This chapter focuses on the relationship between trade and essential security interests. Until recently, the WTO legal community paid relatively little attention to security exception clauses in trade agreements. What has changed today is not the use of trade measures for protecting essential security. Rather, a change can be seen in the openness with which WTO Members are invoking Article XXI of the GATT 1994 and their acceptance of the risk that a third party may review their measures. What is also new is the assertion that essential security interests might also cover, for example, economic interests, public health risks or concerns relating to climate change or cybersecurity. This chapter focuses on Article XXI of the GATT 1994, and particularly the jurisdiction of panels and the applicable standard of review and the burden of proof in cases where that defence is invoked.

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