Interpreting Exceptions in the WTO Agreement: Lessons from the New Haven School

Abstract

This paper sets out the theoretical framework for the interpretation of exceptions drawing in particular from the New Haven School’s approach to interpreting international agreements. First, it sets out the anatomy of an exception. Second, it focuses on the issue as to whether existing exceptions in the WTO Agreement are exhaustive, using the China Raw Materials case as a basis for the analysis. Third, it examines the New Haven approach to interpretation with specific reference to the lessons it can avail in the interpretation of exceptions. Finally, there is an analysis of the practice of determining and analysing exceptions in the WTO, in particular where the exception is to be implied. The paper concludes that the WTO interpretative practice is in some respects incrementally reflecting the New Haven School’s approach to interpretation.