Reinterpreting WTO Law to Discipline Resilient Trade: A Compliance Exception Proposal

The geopolitical confrontation, including the Ukraine-Russia war and the power rivalry between the United States and China, has brought the concept of “resilient trade” to contemporary international economic law. The emphasis on economic security and trade resilience has undeniably slowed the pace of trade liberalization and jeopardized multilateralism. This paper addresses whether and how to discipline resilient trade under the existing WTO law. It provides the economic and strategic account for resilient trade, but it also identifies the prevention of protectionist measures in the mask of resilient trade as the key challenge for WTO law.
Acknowledging the WTO dispute settlement’s inherent dilemma in assessing prospective economic security risk, this paper advocates that the compliance exception, i.e., GATT Article XX(d) or GATS Article XIV(c), is a more suitable ground for accommodating and disciplining resilient trade measures. It proposes that, compared with other exceptions, the compliance exception has the advantages of addressing the knowledge and legitimacy dilemmas of the WTO dispute settlement and guiding Members to institutionalize their economic resilience and security concerns. It finally revisits previous WTO disputes involving resilient trade measures and finds reflections on its viewpoints.

Keywords: resilient trade, economic resilience, economic security, security exception, trade disruption, general exception, shortage exception, public order exception, compliance exception, security exception