Protection of Non-Trade Values in WTO Appellate Body Jurisprudence: Exceptions, Economic Arguments, and Eluding Questions

Abstract

The article suggests that the constitutional scope of the WTO leaves a wide space for the Appellate Body to protect non-trade values. That has, to some extent, materialized in Appellate Body practice; human health and environment are attaining general protection across the WTO treaties. They are recognized as vital and important values and protected through the exceptions in the WTO treaties. However, the Appellate Body has also found ways to protect those values without resorting to the exceptions. Instead, they are part of an economic argument in national treatment analyses and they are part of economic externality assessments in subsidy determinations. It is, however, still unsettled how other vital values, like those which can fall under peremptory norms, can be protected by the Appellate Body and whether its current approach provides the necessary tools for their protection.