Tackling diversity inside WTO : the GATT moral clause after Colombia – Textiles

Abstract

After lying dormant for more than five decades, WTO 'public morals' exceptions have been more frequently invoked in recent times. During the last fifteen years, the number of disputes settled through the application of GATT 1994 Art. XX(a) and the homologue GATS Art. XIV has gone from zero to four – and it is likely to keep growing. This could be partially due to WTO expanding membership which facilitates trade connections between countries with different, sometimes opposite cultural and social backgrounds. The interpretation and application of the moral clause entail difficult challenges for WTO Panels and for the Appellate Body (AB). They are called to find a balance not only between trade and non-trade values, but also and most of all between WTO Members' regulatory autonomy and their standard of review. However, WTO case law shows an ongoing struggle to find the best way to accomplish this task. Moving on from the analysis of the Colombia – Textiles dispute, this article will discuss the judicial application of the 'moral clause'. It will compare Colombia – Textiles with the former case law, paying particular attention to some crucial aspects of the AB's legal reasoning in Colombia – Textiles and their potential implications for future case law.