THE CONSISTENCY AND JUSTIFICATION OF THE MEASURES UNDER THE GATS AND THE GATT 1994

• Elsa Octaria Geraryn Panjaitan

  Universitas Airlangga

  Author

This paper analyzes the consistency of selected regulatory measures governing digital services, audiovisual content, investment screening, and cross-border data flows with the legal framework of the World Trade Organization (WTO). The purpose of this study is to assess whether measures that may prima facie be inconsistent with obligations under the General Agreement on Trade in Services (GATS) and the General Agreement on Tariffs and Trade 1994 (GATT 1994) can be justified under the relevant general exceptions. The research employs a normative legal approach based on doctrinal analysis, treaty interpretation, and a review of WTO jurisprudence, focusing on Article XIV(a) and Article XIV(c)(ii) of the GATS and Article XX(d) of the GATT 1994. The analysis applies the necessity test, examines the requirement of securing compliance with laws or regulations, and evaluates conformity with the respective chapeau provisions. The results indicate that, although the measures may affect market access and trade flows, they can be justified where they pursue legitimate public policy objectives, contribute materially to those objectives, are not more trade-restrictive than necessary, and are applied in a transparent and non-arbitrary manner. The paper concludes that properly designed and proportionate regulatory measures may fall within the scope of the WTO general exceptions and remain consistent with WTO law.

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