Akin Trade Lawyers Pen Article on the Impact on the WTO of US Invocation of GATT Article XXI Security Exception

In “US Security Exception Proposal May Undermine The WTO,” written for Law360, international trade partners Yujin McNamara and Steve Kho, counsel Sarah Kirwin and associate Brooke Davies discuss recent cases in the World Trade Organization (WTO) regarding U.S. invocation of the security exception in Article XXI of the 1994 General Agreement on Tariffs and Trade.

Article XXI, they write, “allows members to impose otherwise prohibited trade restrictions for the sake of their essential security interests under certain conditions.” They note that the U.S. position has been that the security exception “is—and has always been—wholly self-judging, in that each member may unilaterally invoke the security exception without review by a WTO dispute settlement panel.” In each of the cases against the U.S. concerning proper invocation of this exception, however, the WTO panels have sided against the U.S. position, yet the U.S. has remained “unwavering in its position.”

The authors analyze the text of Article XXI and look ahead at the success of the WTO’s dispute settlement reform “and arguably the future of the WTO” in light of what appears to be the U.S. insistence on tying the WTO and member states’ acquiescence to the U.S. interpretation of Article XXI.

They close by noting, “To avoid destabilizing the WTO further at this critical juncture, it may be important now to rebuild trust in the WTO and its dispute settlement mechanism. The text of the WTO treaty may not be perfect, but an imperfect rule of law remains far preferable to none at all.”

Read the full article here.