This is from Lorand Bartels, in the latest AJIL:
The Chapeau of the General Exceptions in the WTO GATT and GATS Agreements: A Reconstruction
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Conclusions
This article argues that the Appellate Body has misunderstood the chapeau and that, in particular, there is no analytic, structural, or even thematic difference between the conditions in the chapeau and those in the subparagraphs of the general exceptions. The primary reason is that all of the conditions in the general exceptions function to limit the right of a WTO member to adopt certain measures. In this broad sense, all of these conditions are directed against “abuses” of the right to adopt measures for legitimate reasons under the general exceptions. As to why some conditions are located in the subparagraphs and others in the chapeau, the explanation is mundane: some of these conditions are specific to certain types of measures, whereas others apply horizontally to all of the measures that can be adopted under the general exceptions. It also follows that, in principle, the order in which the application of these several conditions is to be analyzed should be dictated solely by the requirements of judicial economy.
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