Alerts & Updates

ELP WTO Alert – Insight on DS 512 (Russia – Traffic in Transit)

Litigation, Arbitration & Dispute Resolution | Apr 10, 2019

In a recent landmark ruling, a WTO Dispute Settlement Body panel, for the first time, upheld the “national security” exception invoked by a Member State under Article XXI(b)(iii) of the GATT 1994. More importantly, the panel noted that: (i) the Member State’s invocation of national security exception to justify its measure under Article XXI(b) of GATT is amenable to review by the panel; and (ii) for a measure to fall under the national security exception i.e. Article XXI of GATT, it must meet the requirements of one of the subparagraphs of Article XXI(b) of GATT 1994 and that is subject to objective determination.

Given that this is the first WTO Dispute Settlement Body panel report dealing with national security exception, it is going to be a starting point of guidance for other Member States in several other ongoing disputes concerning this issue. Particularly, it is plausible that this report may have an impact on the pending WTO disputes concerning United States measures on imports of steel and aluminium products (“Section 232 Disputes”), wherein the United States has been arguing that its measures are justified under the national security exception and that such measures taken for the purpose of national security are not amenable to review by WTO panels.

Please see attached alert for more details on the issues addressed in the panel report as well as the potential impact the panel report may have on some of the ongoing WTO disputes.

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