Security Exception Clauses under Free Trade Agreements Takemasa Sekine, Yokohama National University

5 SSU-Working Paper Sekine measure on the basis of the elements enumerated in (i) through (iii) in Article XXI(b) of GATT.26 Taking into account the overall situation, including the absence of reference to the UN Charter, it can be said that the US FTAs have expanded the scope of the security exception clause and the discretion of the country introducing the measure.27 US FTAs that adopt similar p. [...] The implications of the FTA’s security exception clause The inclusion of a security exception clause which expands self-judging nature in the US FTAs means that for the party introducing the measure at issue, the scope of policies that could be justified under the clause has expanded. [...] In the first place, if the security exception clause in the FTA concluded with the US is expected to be interpreted in favor of the country invoking the clause, it is unwise for the aggrieved country of the measure (South Korea in this case) to make the dispute under the 37 The US-Korea FTA provides that once a Panel is requested or a "matter" is referred under the dispute settlement procedures in. [...] In this regard, in light of the decision of the Appellate Body in Peru – Agricultural Products,42 the following solution can be drawn: 43 First, while it is permissible to view FTA provisions as “a solution mutually acceptable to the parties to a dispute”44 and to give priority to the content of the WTO agreement,45 the security exceptions in the US FTA cannot 39 If, as in Russia-Tariff in Transit. [...] In the Saudi Arabia-IPRs, backed by the intention of the disputing parties, the Panel both examined a violation of the TRIPS Agreement as well as the applicability of security exception clause of the Agreement.