Defining the legal boundaries of export restrictions: A case law analysis

It is widely recognized that the World Trade Organization (WTO) law on export restrictions is an area of ‘under-regulation’—as it neither defines the circumstances that justify quantitative restrictions nor regulates export duties. There are also additional legal uncertainties due to the ‘WTO-plus’ commitments imposed on a few new Members. In the absence of legal clarity, it is crucial to have a consistent interpretation of the existing law and the jurisprudence. In this context, by analysing five relevant cases which have been brought before the WTO/General Agreement on Tariffs and Trade (GATT) Dispute Settlement Body (DSB), including the recent China – Raw Materials, this article attempts to shed light on the legal boundaries of export restrictions. It examines the panels’ interpretation of the definition of the relevant legal terms, such as ‘critical shortage’ of ‘essential products’, and ‘temporarily applied’. It reviews the accession protocols of the new Members, and analyses how the emerging case law might constrain their policy space. It also scrutinizes the panels’ interpretation of GATT Article XX in examining the relationship between the design of export restrictions and their intended environmental objectives. It is envisaged that the case law analysis of the legal scope of export restrictions could inform the future reform efforts in this field