Safeguards in the World Trade Organization Ten Years After a Dissociated State of the Law?

Abstract

This article examines the contradictory functioning of the World Trade Organization Agreement on Safeguards during the first ten years of application On the one hand it shows that by using a literal Interpretive shift and proceduralizing some substantive requirements the WTO case law has established a highly restrictive interpretation of safeguards as an absolutely exceptional safety valve in the case of serious unforeseen developments On the other hand it reviews State practice in order to highlight the emergence of a more lenient pattern according to which safeguards are non compensated short length tariff measures aimed at conveying temporarily protectionist pressures on markets in trouble aggravated by increasing imports This situation has led to two different interpretations in the literature namely the massive infringement scenario and the normative rejection scenario neither of which is fully convincing For this reason the article concludes that the situation is better described as a dissociation scenario between the law as stated and the law as applied Furthermore it analyses the causes of this dissociation and distinguishes between those pertaining to legal technique (the penal features of the WTO dispute settlement system and the different efficiency of the international control devices laid down in the Agreement on Safeguards) and those pertaining to legal theory (namely the conception of safeguards as a discretionary legal power instead of a temporary special treaty regime) Finally the article draws some conclusions about the role of safeguards within the trade remedy context (currently under reconsideration)