RESOLVING DISPUTES RELATED TO ARTICLE XX OF THE GATT AGREEMENT WITHIN THE FRAMEWORK OF THE WTO - RECOMMENDATIONS FOR VIETNAM

The research tasks of the dissertation To achieve the above purposes, the dissertation research will perform the following main tasks: Analyse theoretical issues related to dispute reso

HANOI LAW UNIVERSITY

TÀO THỊ HUỆ

RESOLVING DISPUTES RELATED TO ARTICLE XX

OF THE GATT AGREEMENT WITHIN THE FRAMEWORK

OF THE WTO - RECOMMENDATIONS FOR VIETNAM

SUMMARY OF DOCTORAL DISSERTATION

Hà Nội - 2024

MINISTRY OF

JUSTICE

MINISTRY OF EDUCATION AND TRAINING

The dissertation has been completed at Hanoi Law University

INTRODUCTION

1 The urgency of the dissertation topic

Since January 11, 2007, Vietnam officially became a member

of the World Trade Organization (WTO) Vietnam is under an obligation to conscientiously and willingly implement its commitments under the WTO’s agreements, including the General Agreement on Tariffs and Trade (GATT)

Although the purpose of the GATT is to develop free trade, this Agreement also allows member states to implement domestic policies to protect their social interests and other important non-commercial interests in Article XX “General Exceptions” This provision includes ten exceptions from paragraph a to paragraph j

In the early years of the WTO, the disputes mainly revolved around the two exceptions under paragraph b and paragraph g of Article XX As of February 11, 2024, the number of disputes related

to Article XX of the GATT resolved at the WTO reached 30 cases These disputes not only take place between developed member states, but developing member states also actively participate in resolving disputes as plaintiffs and defendants There are even disputes where both the plaintiff and defendant are developing countries The exceptions cited have been extended to paragraph a, paragraph d, paragraph j of Article XX

Although there have been research projects on disputes related to Article XX of the GATT, there has been no study that systematically and comprehensively studies the theoretical and practical issues related to the dispute resolution related to Article XX of the GATT

Researching the issue of dispute resolution related to Article XX

of the GATT can benefit Vietnam in two ways: First, the exception in

Article XX will be a factor to be considered in the promulgation and

application of measures inconsistent with the GATT regulations; Second,

it is helpful when Vietnam resolves disputes related to Article XX of the GATT as either plaintiff or defendant However, currently there is no research project providing specific recommendations on the application

of this regulation for Vietnam

In addition, in many free trade agreements (FTAs) to which Vietnam is a member, there are provisions referring to Article XX of the GATT Dispute settlement reports related to Article XX of the GATT at the WTO can also be referred to and applied effectively by Vietnam in these FTAs

Based on these reasons, the researcher chose the topic

"Resolving disputes related to Article XX of the GATT Agreement within the framework of the WTO - recommendations for Vietnam"

2 The purpose and research tasks of the dissertation

2.1 The research purpose of the dissertation

The research purpose of the dissertation is to clarify theoretical and practical issues related to the dispute resolution related to Article

XX of the GATT within the framework of the WTO On that basis, the dissertation makes recommendations to help Vietnam proactively apply Article XX of the GATT

2.2 The research tasks of the dissertation

To achieve the above purposes, the dissertation research will perform the following main tasks: Analyse theoretical issues related to dispute resolution related to Article XX of the GATT within the WTO framework ; Analyse and evaluate the practice of resolving disputes related to Article XX of the GATT by the Panels and the AB within the WTO framework; Analyse the experience of resolving disputes

related to Article XX of the GATT of some WTO member states, including the United States and China

3 The subject and scope of research of the dissertation

3.1 The subject of the dissertation

The subject of the dissertation is the provision on the General Exceptions in Article XX of the GATT, the resolution of disputes related to Article XX of the GATT as shown through the reports prepared by the Panels and the AB, and the recommendations for Vietnam in applying Article XX of the GATT

3.2 The scope of the dissertation

With that research subject, the dissertation’s scope of research includes:

- Scope of content: Theoretical issues on the dispute resolution related to Article XX of the GATT; Dispute settlement reports related

to Article XX of the GATT within the WTO framework prepared by the Panels and the AB and approved by the WTO’s Dispute Settlement Body (DSB) The dissertation does not concern with the order and procedures for resolving disputes at the WTO as well as the practices and ethical standards of the Panels and the AB and the implementation

of DSB’s decisions in member states

- Scope of time: The period from January 1, 1948 (the date on which the GATT 1947 took effect) to before January 1, 1995 (the date

on which the WTO was established) and the period from January 1,

1995 to the present

- Scope of space: Dispute related to Article XX of the GATT within the framework of the GATT 1947 and WTO The dissertation also studies the experience of resolving disputes related to Article XX

of the GATT by the United States and China to draw lessons for Vietnam

4 Research methodology and methods

4.1 Methodology

The dissertation is carried out in accordance with the methodology of dialectical materialism, Marxist-Leninist historical materialism, the Party and State's views on the building of State and Law in the context of international integration

4.2 Methods of conducting the research

The dissertation is carried out through the combined use of multiple research methods such as analysis method, hypothesis method, historical method, case law research and analysis method, statistical method and Systematization, and comparison method

5 The scientific and practical significance of the dissertation

The dissertation is a systematic and comprehensive study of theoretical, legal and practical issues related to dispute resolution related to Article XX of the GATT within the WTO framework It also develops recommendations for Vietnam regarding the criteria that must be met when invoking the exceptions under paragraph a, paragraph b, paragraph d, paragraph g and paragraph j, as well as the Chapeau of Article XX of the GATT

6 The structure of the dissertation

The dissertation includes the introduction, the body, the conclusion, and a list of references The body includes four chapters, with a summary for each chapter:

- Chapter 1: Literature review on the research issues of the dissertation

- Chapter 2: Theoretical issues on the resolution of disputes related to Article XX of the GATT within the WTO framework

- Chapter 3: The resolution of disputes related to Article XX

of the GATT within the WTO framework

- Chapter 4: Some recommendations for Vietnam to improve the effectiveness of the application of Article XX of the GATT

CHAPTER 1 LITERATURE REVIEW ON THE RESEARCH

ISSUES OF THE DISSERTATION 1.1 The research on theoretical issues regarding the dispute resolution related to Article XX of the GATT within the WTO framework

Domestic and foreign projects have conducted research on: the concept of disputes related to Article XX of the GATT within the WTO framework, the criteria for applying Article XX of the GATT in resolving disputes within the WTO framework, the legal value of the Reports on dispute resolution related to Article XX of the GATT within the WTO framework, the drafting history, development and application of Article XX of the GATT in resolving international trade disputes

1.2 The research on practical issues regarding the dispute resolution related to Article XX of the GATT within the WTO framework

International and domestic works regarding the practices of dispute resolution related to Article XX of the GATT can be divided into five groups: dispute resolution practices regarding the necessary exception to protect public morals under paragraph a, paragraph b, paragraph g; regarding the studies on the relationship between the measure being sued and the interests protected related to Article XX

of the GATT; regarding the research works on the interpretation and

application of the Chapeau of Article XX of the GATT, these works have generally mentioned the interpretations of paragraph a, paragraph

b, paragraph d, paragraph g and the Chapeau of Article XX of the GATT from the practice of dispute settlement at the WTO

1.3 The studies on the recommendations for the application of Article XX of the GATT for WTO member states and Vietnam

Numerous works have provided their perspectives on the weighing and balancing application of Article XX of the GATT in the context of free trade from the practice of resolving one or several disputes related to Article XX of the GATT In Vietnam, there have also been several journal articles that have made recommendations to the application of the Proportionality principle, the Chapeau of Article

XX and paragraph a of Article XX of the GATT

1.4 Evaluation of the current discussion of the dissertation topic

Compared to the works published abroad, there have not been many works published in Vietnam researching issues related to the dispute resolution related to Article XX of the GATT These works only make general recommendations, and there has been no study on the burden of proof imposed on the plaintiff and the defendant when resolving their disputes related to Article XX of the GATT Also, there has been no work which recommends the study of the WTO dispute settlement reports to help implementing the provisions on general exceptions related to those FTAs which refer to or contain a similar provision to Article XX of the GATT

1.5 Some issues which need further discussion in the dissertation

Based on the review of domestic and foreign research works, it

is determined that there are several theoretical and legal issues relating

to the dispute resolution related to Article XX of the GATT, especially

the practice of resolving disputes at the WTO, that need further clarification

Regarding theoretical issues in resolving disputes related to Article XX of the GATT within the WTO framework: These include the

development of the definition of “dispute” related to Article XX of the GATT, the characteristics of this type of dispute within the WTO framework, the criteria for applying Article XX of the GATT in the WTO dispute settlement mechanism In addition, the dissertation analyses the process of formation and development of Article XX of the GATT and the practice of resolving disputes related to this article through the GATT’s Panels before the establishment of the WTO The dissertation will also comprehensively research the theories that form the basis for creating the General Exceptions in Article XX of the GATT, in order to interpret the GATT regulations and understand the approaches taken by the Panels and the AB in their reports

Regarding legal issues in the practice of settling disputes related to Article XX of the GATT within the WTO framework

Firstly, the dissertation systematizes and comprehensively

analyses the dispute resolution reports related to Article XX of the GATT as prepared by the Panels and the AB and approved by the WTO Dispute Settlement Body (DSB) These disputes concern paragraph a, paragraph b, paragraph d, paragraph g and paragraph j of Article XX of the GATT

Secondly, the dissertation analyses and presents the experience

in resolving disputes related to Article XX of the GATT of the United States and China within the WTO framework

Regarding the recommendations for applying Article XX of the GATT to Vietnam: the dissertation evaluates the practical

implementation and application of Article XX of the GATT in the current Vietnamese legal system On that basis, it proposes specific criteria which must be met when Vietnam applies Article XX of the GATT in two cases: when developing domestic policies and legal documents and when participating in dispute resolution at the WTO Vietnam can also refer to the explanations of Article XX of the GATT

in the reports prepared by the Panels and the AB and approved by the WTO Dispute Settlement Body (DSB), to apply the corresponding provisions in some FTAs

1.6 The theoretical basis of the research, research questions and research hypotheses

- Research theories:

The theory of trade liberalization and the theory of proportionality in international trade

- Research question and Research hypotheses:

Question 1: What are the characteristics of “disputes related

to Article XX of the GATT” within the WTO framework?

Hypotheses 1: Disputes related to Article XX of the GATT

within the WTO framework have the following characteristics: Firstly,

the disagreement over the incompatibility of the sued measures with the GATT obligations is a premise leading to disputes related to

Article XX of the GATT Secondly, concerning the scope of

application of Article XX of the GATT in resolving international trade

disputes at the WTO Thirdly, disputes related to Article XX of the GATT demonstrate the need to recognize the protection of domestic non-commercial interests by WTO member states

Question 2: How about the exceptions related to Article XX

of the GATT have been explained and applied in the WTO dispute settlement reports?

Hypotheses 2: In the dispute resolution reports, the Panels and the AB have consistently explained and applied the five specific exceptions at paragraph a, paragraph b, paragraph d, paragraph g, paragraph j and the Chapeau of Article XX

Question 3: What experience can be drawn from settlement of disputes related to Article XX of the GATT within the WTO framework by the United States and China as plaintiffs and defendants?

Hypotheses 3: The experience of the United States and China when resolving disputes related to Article XX of the GATT regarding the burden of proof The burden of proof imposed on the plaintiff and defendant are different, but they both follow a two-tier analysis according to the explanations and conclusions in previous reports of the Panels and the AB

Question 4: What orientations and solutions are there for Vietnam when applying Article XX of the GATT?

Hypotheses 4: Vietnam should apply Article XX of the GATT

in three directions: (i) apply Article XX of the GATT to ensure the weighing and balancing when promulgating trade restrictive measures

in Vietnam; (ii) apply Article XX of the GATT when participating in dispute settlement at the WTO; (iii) apply Article XX of the GATT when participating in dispute resolution in some free trade agreements

Based on these orientations, specific solutions can be proposed for

Vietnam Specifically: Firstly, Vietnam should internalize all

provisions in Article XX of the GATT as a legal basis for applying

Article XX of the GATT; Secondly, Vietnam can utilize the

appropriate experience of the United States and China when participating in dispute resolution as either plaintiff or defendant in resolving disputes related to Article XX of the GATT at the WTO; Vietnam can proactively cite explanations of Article XX of the GATT

to increase the persuasiveness of its arguments in disputes related to the general exceptions of the CPTPP, EVFTA, UKVFTA and RCEP Agreement

CHAPTER 2 THEORETICAL ISSUES RELATED TO THE RESOLUTION OF DISPUTES RELATED TO ARTICLE XX

OF THE GATT WITHIN THE WTO FRAMEWORK 2.1 The concept of disputes related to Article XX of the GATT within the WTO framework

2.1.1 The definition of disputes related to Article XX of the GATT within the WTO framework

Disputes related to Article XX of the GATT are "international

trade disputes brought to settlement at the WTO, in which the defendant invokes Article XX of the GATT as the legal basis for the application of measures which are inconsistent with the obligations stipulated in the GATT, and are allowed by the Panels and the AB to apply Article XX of the GATT to the defendant's sued measure"

2.1.2 The characteristics of disputes related to Article XX of the GATT within the WTO framework

Disputes related toArticle XX of the GATT within the WTO framework have the following characteristics:

Firstly, the disagreement over the incompatibility of the sued

measures with the GATT obligations is a premise leading to disputes related toArticle XX of the GATT

Secondly, concerning the scope of application of Article XX

of the GATT in resolving international trade disputes at the WTO

demonstrate the need to recognize the protection of domestic commercial interests by WTO member states

non-2.1.3 Classification of disputes related to Article XX of the GATT within the WTO framework

The classification of disputes related to Article XX of the GATT within the WTO framework facilitates the research and the collection of statistics on disputes The classification can be based on the following criteria: Based on the specific exceptions specified in Article XX of the GATT; Based on the structure of Article XX of the GATT; Based on the content of the dispute related to each specific exception in Article XX of the GATT

2.2 The theoretical foundation for the general exceptions related

to Article XX of the GATT

2.2.1 The theory of trade liberalization

According to the theory of trade liberalization, WTO member states shall open their markets and use their comparative advantages for economic development WTO member states have the obligation

to ensure trade liberalization as stipulated in the GATT Article XX of