Problems of interpretation and application of software exceptions security considerations in WTO rules

Abstract

One of the legitimate exceptions to WTO rules, which allow its members to deviate from fulfilling their WTO obligations, are security exceptions. To date, there are no unified theoretical and practical approaches to the interpretation and application of security exceptions. However, it is precisely the lack of legal certainty regarding this group of exceptions that leads to abuse by some WTO members, who broadly interpret the legal categories of "essential security interests" and "the existence of extraordinary circumstances in international relations." The approaches of the WTO LFS arbitration panel in trade disputes, in which security exceptions were considered, could be used to form a relatively uniform practice of interpreting and applying security exceptions. However, in subsequent trade disputes, the conclusions of the WTO LFS arbitration panel demonstrated the existence of legal uncertainty regarding the interpretation and application of security exceptions. Such a situation does not allow WTO members, including the Russian Federation, to predict WTO LFS decisions regarding the prospects of challenging unilateral restrictive measures imposed for reasons of national security. In this regard, the filing of a complaint by the Russian Federation to the WTO LFS will become possible after the formation of a relatively uniform practice of interpretation and application of exceptions for security reasons.

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