Public Morality Exception at the WTO: Much Ado About Nothing?

Abstract

Public morality is one of the stated objectives for which WTO Members may seek to justify a measure that impedes trade. The value of considering this single objective is twofold. First, while all six trade disputes relating to the public morality exception have passed the public morality test, no measure has passed both the necessity test and the test in the chapeau paragraph. Second, it is questionable whether it is possible for a panel or the Appelate Body (AB) to recognize a measure as being of public morality. Moreover, if the EC – Seal Products dispute is the focus of the morality exception, it is important to look more closely at subsequent interpretations by panels and the AB, as nothing is less certain about the interpretation of this exception. Two trilogies emerge, firstly the US – Gambling, China – Publications and Audiovisual Products and the EC – Seal Products, and then Colombia – Textiles, Indonesia – Import Licensing and Brazil – Taxation, with the Canada-European dispute as the tipping point. This article is constructed in three parts that draw on the lessons learned from these two trilogies to highlight what remains of the public morality exception at the WTO. public morality exception, WTO law, US – Gambling, China – Publications and Audiovisual Products, EC – Seal Products, Colombia – Textiles, Indonesia – Import Licensing, Brazil – Taxation