Legality of Selective Safeguards and the Development of FTA Safeguard System in the mega-FTAs era

Abstract

With an exponential increase of FTAs since 1990s, the rule diversification problem is becoming a controversial issue. Selective safeguard measures that allow the exclusion of RTA partners from applying safeguard actions are one of those controversial issues, because they violate Article 2.2 of the Agreement on Safeguards. The WTO DSBs concept of parallelism was not enough to solve the controversies. Therefore, the first part of this thesis analyzed the three types of selective safeguard rules based on five kinds of global safeguard rules, and argued that GATT Article XXIV can justify selective safeguard measures but not all of them are legal in practice. The second part of the thesis focused on the new trend of mega-FTAs such as TPP or RCEP, where multiple countries agree to conclude a single FTA. This would lead to several systemic changes regarding selective safeguards in the FTA safeguard system. First, there will be a growing need for the sophisticated provisions for selective safeguards due to the increase in the violation of WTO rules by selective safeguards and mounting conflicts surrounding selective safeguards. Based on the analysis, the thesis suggested a desirable type of global safeguard rules in the multilateral FTAs. Second, bilateral and special safeguard measures will be increasingly important in the mega-FTAs era.