General Exceptions and Public Interest Regulation: An Analysis of the EU-UK Trade Cooperation Agreement
General Exceptions and Public Interest Regulation:
An Analysis of the EU-UK Trade Cooperation Agreement
Clair Gammage
 
ABSTRACT: This article explores the scope of the general exceptions in Title XII of the EU-UK Trade and Cooperation Agreement (TCA) and critically assesses the extent to which public interest regulation is addressed in the agreement. The scope of the TCA is far-reaching and it incorporates ‘WTO-plus’ obligations in relation to social and environmental issues. Furthermore, the TCA is the first EU-free trade agreement to incorporate climate change as an ‘essential element’ of the agreement. With a focus on the legal architecture of the TCA and its governance mechanisms, this article will argue that the general exceptions protect the right to regulate public interest only insofar as the contested trade measure does not operate to discriminate in an arbitrary or unjustifiable manner. With a focus on social and environmental public interest regulation, this article offers a critique of the recent EU-Ukraine Export Ban on Wood dispute to demonstrate how public interest regulation has been addressed in the first trade case to be brought under an EU-free trade agreement dispute settlement mechanism.

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