10.3 Necessity for the respondent to invoke exceptions

There is one important deviation from the principle that panels and the Appellate Body are free autonomously to apply (WTO) law in reviewing the complainant’s claims and to develop their own legal reasoning. It relates to the application of WTO legal exceptions. When the respondent intends to rely on a legal exception to the obligation, a violation of which the complainant has claimed, the respondent must expressly invoke such an exception. Examples of such exceptions are Article XX of GATT 1994¹ or Article 5.7 of the SPS Agreement.² A panel and the Appellate Body cannot apply such exceptions if they have not been invoked by the respondent.

Notes:

1. Appellate Body Report, US - Shrimp, paras. 125 and 146.  back to text

2. Appellate Body Report, EC - Hormones, paras. 120-125.  back to text