India – Solar Cells and Mexico – Taxes on Soft Drinks: Multilevel Rule of Law Challenges in the Interpretation of Art. XX (d) of GATT 1994 in WTO Case Law

Abstract

Rule of law is developed by various institutions of government and judiciaries at national, regional, and international level. The interface of rules of law between various systems poses problems as to how to uphold law as supreme when the various systems do not have a clear connecting factor to translate a rule of law from one system to another. The article discusses multilevel rule of law challenges in the application of Art. XX (d) of GATT 1994 which protects measures, which otherwise are inconsistent with the WTO trade rules, if they are necessary in order to ensure compliance with laws and regulations. Besides identifying some overall rule of law challenges when WTO Members apply Art. XX (d) of GATT 1994 to measures which seek to ensure compliance with domestic laws and regulations, the article has a particular focus on Mexico – Taxes on Soft Drinks and India – Solar Cells as these cases concern the problems when WTO members apply Art. XX (d) of GATT 1994 as justification for complying with their obligations under international law. There are in particular two issues of concern from a rule of law approach; the connection between international law and national law, like incorporation and direct effect; and the potential jurisdictional and norm overlap between WTO law and other international law. Some of the multilevel rule of law challenges identified in Mexico – Taxes on Soft Drinks seem to be overcome in India – Solar Cells but there are still areas of uncertainty in the multilevel rule of law clashes between the WTO and other regimes which need to be addressed in future cases.

Keywords: WTO Law, GATT, Article XX