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Agricultural trade has generated more than its share of disputes in the past fifty years. Lack of a clear structure of rules to constrain government activity in these markets, coupled with the particularly sensitive nature of trade in basic foodstuffs, has been the main cause of this disproportion. New rules agreed in the Uruguay Round provided an improved framework for government policy in this area, and a temporary exemption was given to certain subsidies from challenge in the WTO (the Peace Clause). However, the expiry of the Peace Clause in 2003 and a growing willingness on the part of exporters to challenge domestic farm programs in other countries through action under the Dispute Settlement Understanding has once again stirred the agricultural pot. Now trade disputes are frequently leading to litigation, encouraged by the slow progress in the Doha Round of trade negotiations. In particular, the scope for domestic subsidies, under the Agreement on Agriculture and the Agreement on Subsidies and Countervailing Measures, has increasingly become the subject of litigation. Countries may have to further modify their domestic policies so as to reduce their vulnerability to challenge in the WTO.

A principle reason for the inability of the General Agreements on Tariffs and Trade (GATT) to serve as the vehicle for international trade liberalization was that it was the protocol for the establishment of the International Trade Organization. It was never intended to become a functioning institution. As such, it did not have a well-designed system for the settlement of trade disputes. At least partially because the GATT was not intended to function as an institution, an arguably excessive reliance on consensus emerged as the vehicle for the resolution of trade disputes. A consensus to accept the recommendations of a dispute panel became the standard for resolution under the GATT. Because the defendant could always object to implementation of the panel's recommendation, thus denying consensus, successful resolution of disputes were relatively infrequent. In the 47 years, during which the GATT was the principle international trade forum, 101 panel reports were adopted. Given that it is possible to file disputes on the basis of nullification and impairment of expected benefits, which is a considerably weaker standard than the allegation of a legal breach, it is apparent that the ineffectiveness of the dispute resolution mechanism was a deterrent to the filing of complaints. As the GATT increased in membership and pressures to address increasingly complex trade issues (intellectual property rights and agricultural subsidies, for example) emerged, it became apparent that the GATT could be undermined by an inability to resolve disputes.

The purpose of this paper is to demonstrate by text and empirical facts, the need to reform the rules in force.

This study confronts current standards with empirical facts. To do this, it is postulated that even though current market access standards are better that the Gatt 1947 rules, they leave the possibility for some members to hijack them to eventually increase their protection effective tariff.

Market access standards for agricultural products should be reformed because of their asymmetry. To put an end to this asymmetry, these standards should be rebalanced. This is precisely the challenge of the current multilateral negotiations.

Unlike the studies conducted on this subject (to my knowledge), which are mainly based on economic or political science methods, this analysis is essentially based on legal reasoning law.

This paper aims to examine options under the General Agreement on Tariffs and Trade (GATT) for exempting or justifying export restrictions or prohibitions that are in principle prohibited under Article XI:1 GATT. The paper begins by examining the exception under Article XI:2 (a) GATT, before going on to the arguments under GATT Article XX (b) and (j). In addition, the analysis considers the national security exception in Article XXI (b) (iii) GATT, given that WTO members have increasingly invoked this provision in recent years, as well as during the pandemic, when Namibia implemented COVID-19-related trade restrictions under the Agreement on Technical Barriers to Trade based on national security concerns.

The impacts of the COVID-19 pandemic on trade have been far-reaching. Countries have attempted to place export restrictions on personal protective equipment and COVID-19 vaccines. Even though export restrictions are generally unlawful under the GATT, countries have decided it is necessary at this time. Members have relied heavily on the “national security” and “critical shortage” exceptions outlined in the GATT.

This paper concludes that, depending on the circumstances of a particular case, a pandemic may constitute an emergency in international relations, as defined in Article XXI (b) (iii) GATT, and that, in such a situation, a WTO member may legitimately take action to protect its vital security interests.

The paper provides an original conclusion based on WTO case law on an issue of contemporary relevance.

The formulated proposals for this legal principle in the trade battern of the European Community have again appeared in the EEC draft Directive. It has been many years in coming, indicating the extreme difficulties encountered in bringing some sort of harmony in the different laws of Member‐states including those of the United Kingdom, relating to the subject. Over the years there were periods of what appeared to be complete inactivity, when no progress was being made, when consultations were at a stand‐still, but the situation was closely monitored by manufacturers of goods, including food and drink, in the UK and the BFJ published fairly detailed reviews of proposals being considered — in 1979 and 1981; and even as recently as the last few months — in “Consumerism in the Community”, the subject was briefly discussed.