17 May 2005BIICL Annual WTO Conference1 Balancing trade and non-trade policy objectives in GATS: Potentials and limits of Article XIV Markus Krajewski University of Potsdam

17 May 2005BIICL Annual WTO Conference2 Trade and non-trade policy objectives Methods of balancing Potentials of Art. XIV GATS: US – Gambling and Betting Stretching the limits of Art. XIV GATS –Human rights –Cultural diversity Outline

17 May 2005BIICL Annual WTO Conference3 limited references in WTO law –Art. 20 (c) AoA: “non-trade concerns” –EC – Tariff Preferences: “measure of ‘non- trade’ nature” versus extensive use in WTO literature but: What are “non-trade” objectives? (“I know it when I see it”?) Trade and non-trade policy objectives

17 May 2005BIICL Annual WTO Conference4 interpreting „necessary“ to include “weighing and balancing” (Korea – Beef) deference to national regulatory autonomy (in dubio mitius) (EC – Hormones) using other international agreements as context of WTO provisions (US – Shrimp) Methods of balancing

17 May 2005BIICL Annual WTO Conference5 US – Gambling and Betting: Art. XIV (a) leaves scope for Members to define and apply concepts according to own systems and values includes –internal security (criminal offences) and –protection of youth and other vulnerable groups Potentials of Art. XIV GATS

17 May 2005BIICL Annual WTO Conference6 Protection of human rights?  ECJ, Omega Spielhallen: „public policy“ includes protection of human dignity  a model for WTO dispute settlement? Cultural diversity?  Draft UNESCO convention: deviation from GATS to protect cultural diversity  can it become context of Art. XIV (a)? Stretching the limits of Art. XIV GATS

17 May 2005BIICL Annual WTO Conference7 Art. XIV „sedes materiae“ for balancing trade and non-trade policy objectives in GATS but can it be stretched far enough so that GATS is „not more burdensome than necessary“ on non-trade policy objectives? Conclusion