Protecting public morals in a digital age: Revisiting the WTO rulings on US-gambling and China-publications and audiovisual products

Journal of International Economic Law

Volumn 14, Issue 2, 2011, Pages 257-259

  Delimatsis, Panagiotis ^a  

^a TILBURG UNIVERSITY   (Netherlands)

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[No Author keywords available]

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EID: 79960599510     PISSN: 13693034     EISSN: 14643758     Source Type: Journal    
DOI: 10.1093/jiel/jgr012     Document Type: Review

References (274)

1. Mark Wu, 'Free Trade and the Protection of Public Morals: An Analysis of the Newly Emerging Public Morals Clause Doctrine', 33 Yale Journal of International Law 215 (2008).
2. Piet Eeckhout, 'The Scales of Trade-Reflections on the Growth and Functions of the WTO Adjudicative Branch', 13 (1) Journal of International Economic Law 3 (2010), at 21.
3. See, for instance, the uneasiness of the French and American courts when dealing with the case that La Ligue contre le racisme et l'antisemitisme (LICRA) and L'Union des étudiants juifs de France (UEJF) brought against Yahoo! Inc, requesting that the latter render impossible any access via its website to the Nazi artifact auction service and to any other site or service that may be regarded as constituting an apology for Nazism or as contesting Nazi crimes.
4. See Mariangela Benedetti, 'Jurisdiction over Cyberspace: YAHOO! In the French and American Courts', in Sabino Cassese et al. (eds), Global Administrative Law-Cases, Materials, Issues, 2nd ed. (2008), at 214, available at: http://www.iilj.org/GAL/GALCasebook.asp (visited on 1 October 2010).
5. See also Alan Hunt, Governing Morals: A Social History of Moral Regulation (Cambridge: Cambridge University Press, 1999).
6. However, ethics is a common theme that philosophers in Ancient Greece dealt with, among others Socrates, Plato, but also Protagoras, one of the leading figures of the sophistic movement.
7. Steve Charnovitz, 'The Moral Exception in Trade Policy', 38 Vanderbilt Journal of International Law 698 (1998), at 717;
8. Miguel Gonzalez, 'Trade and Morality: Preserving "Public Morals" Without Sacrificing the Global Economy', 39 Vanderbilt Journal of Transnational Law 939 (2006), at 967.
9. It was suggested that core labour rights could also come under an evolutionary interpretation of Article XX(e) GATT.
10. See Peter van den Bossche, The Law and Policy of the World Trade Organization-Text, Cases and Materials, 2nd ed. (Cambridge: Cambridge University Press, 2008), at 640.
11. Such extraterritorial application of the general exceptions aiming at promoting social change abroad seems hard for Panels to accept, not least because it is susceptible to intepretations that open a dangerous Pandora's box.
12. In EC-Tariff Preferences, for instance, the Panel dismissed the European Union's argument that its additional tariff preferences under the Drug Arrangements aimed to protect human health by supporting measures taken by other countries against the illicit production and trafficking of those substances.
13. The Panel noted that the policy reflected in the Drug Arrangements was not designed to protect human life or health in the European Communities.
14. Panel Report, European Communities-Conditions for the Granting of Tariff Preferences to Developing Countries (EC-Tariff Preferences), WT/DS246/R, adopted 20 April 2004, as modified by Appellate Body Report WT/DS/246/AB/R, para. 7.210.
15. WTO, 'The Work Programme on Electronic Commerce', S/C/W/68, 16 November 1998, para 26;
16. WTO, 'Work Programme on Electronic Commerce-Interim Report to the General Council', S/C/8, 31 March 1999, pp. 9-10;
17. WTO, 'Work Programme on Electronic Commerce', Communication from Australia, S/C/W/108, 18 May 1999, paras 13-14.
18. Cf. Joseph Raz, Between Authority and Interpretation (Oxford: Oxford University Press, 2009), at 184-5.
19. Indeed, protecting public morality can only be deemed legitimate if legislation is in line with contemporary beliefs. Cf. Cass Sunstein, 'What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage', Supreme Court Review 27 (2003), at 30 (commenting the US Supreme Court decision on Lawrence v Texas, 539 US 558 (2003)).
20. Cf. Charnovitz, above n 5, at 704-5.
21. Having said this, morality can refer to the values of a given person, or the public morality as enunciated in domestic legislation in written form.
22. See also, Cass Sunstein, 'Incommensurability and Kinds of Valuation: Some Applications in Law', in Ruth Chang (ed.), Incommensurability, Incomparability, and Practical Reason (Cambridge, MA: Harvard University Press, 1997), 234-255.
23. Panagiotis Delimatsis, 'Don't Gamble with GATS-The Interaction between Articles VI, XVI, XVII and XVIII GATS in the Light of the US-Gambling Case', 40 (6) Journal of World Trade 1059 (2006).
24. Sascha Wunsch-Vincent, 'The Internet, Cross-Border Trade in Services, and the GATS: Lessons from US-Gambling', 5 (3) World Trade Review 319 (2006), at 323.
25. Protocol on the Accession of the People's Republic of China to the WTO, WT/L/432.
26. It bears mention that China is subject not only to the ordinary obligations enshrined in the WTO agreements, but also to obligations that derive from its commitments laid down in the Accession Protocol or in paragraphs of the Report of the Working Party on the Accession of China to the WTO (China's Accession Working Party Report, WT/ACC/CHN/49 of 1 October 2001) that are incorporated into the Accession Protocol.
27. The Accession Protocol forms an integral part of the WTO Agreement.
28. See Appellate Body Report, China-Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (China-Publications and Audiovisual Products), WT/DS363/AB/R, adopted 19 January 2010, para 133.
29. Also Julia Ya Qin, "'WTO-Plus" Obligations and their Implications for the World Trade Organization Legal System: An Appraisal of the China Accession Protocol', 37 (3) Journal of World Trade 483 (2003).
30. See GATT, Group of Negotiations on Services, 'Services Sectoral Classification List', MTN.GNS/W/120, 10 July 1991.
31. Security concerns associated with cyberspace are outside the scope of this article. It is never theless worrisome that Internet traffic is made possible owing to just 13 clusters of 'potentially vulnerable domain-name servers'.
32. See The Economist, 'War in the Fifth Domain', 3 July 2010.
33. Henrik Horn, Giovanni Maggi, and Robert W. Staiger, 'Trade Agreements as Endogenously Incomplete Contracts', NBER Working Paper No 12745, December 2006. This is also in accordance with Ruggie's concept of embedded liberalism.
34. See Andrew Lang, 'Reconstructing Embedded Liberalism: John Gerard Ruggie and Constructivist Approaches to the Study of the International Trade Regime', 9 (1) Journal of International Economic Law 87 (2006).
35. Appellate Body Report, United States-Standards for Reformulated and Conventional Gasoline (US-Gasoline), WT/DS2/AB/R, adopted 20 May 1996, 22-23;
36. Appellate Body Report, United States-Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, 15-16;
37. Appellate Body Report, EC-Tariff Preferences, para 88; Appellate Body Report, United States-Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April 2005, paras 282, 309.
38. That was the case for instance in the Appellate Body Report, United States-Import Prohibition of Certain Shrimp and Shrimp Products (US-Shrimp), WT/DS58/AB/R, adopted 6 November 1998, which was in line with the rise of public consciousness about the environment.
39. Cf. Andreas Lowenfeld, International Economic Law, 2nd ed. (Oxford: Oxford University Press, 2008), at 411.
40. Cf. Appellate Body Report, US-Shrimp, WT/DS58/AB/R.
41. Petros Mavroidis, Trade in Goods (Oxford: Oxford University Press, 2008), at 254ff.
42. In EC-Hormones, the Appellate Body reiterated that the WTO judicial review is not about a de novo review as such nor 'total deference', but rather the objective assessment of the facts and the applicability of and conformity with the relevant WTO agreements.
43. Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, paras 116-119.
44. Appellate Body Report, Mexico-Taxes on Soft Drinks and Other Beverages (Mexico-Soft Drinks), WT/DS308/AB/R, para 72;
45. also Appellate Body Report, US-Shrimp, para 116.
46. Appellate Body Report, US-Gambling, para 292.
47. See Panagiotis Delimatsis, 'Determining the Necessity of Domestic Regulations in Services-The Best is Yet to Come', 19 European Journal of International Law 365 (2008).
48. Appellate Body Report, US-Gasoline, 23.
49. Appellate Body Report, Korea-Measures Affecting Imports of Fresh, Chilled and Frozen Beef (Korea-Beef), WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001, para 161.
50. Appellate Body Report, Brazil-Measures Affecting Imports of Retreaded Tyres (Brazil-Retreaded Tyres), WT/DS332/AB/R, adopted 17 December 2007, para 156.
51. Appellate Body Report, China-Publications and Audiovisual Products, para 239.
52. In the most recent report on the topic, the Appellate Body clearly attempts to solidify the precedent as to the necessity test under the general exception provision.
53. See Appellate Body Report, China-Publications and Audiovisual Products, para 242 and footnote 455.
54. Appellate Body Report, Brazil-Retreaded Tyres, para 151.
55. Appellate Body Report, China-Publications and Audiovisual Products, para 252.
56. Appellate Body Report, Mexico-Soft Drinks, para 74.
57. Appellate Body Report, China-Publications and Audiovisual Products, paras 300-10.
58. See Panagiotis Delimatsis, International Trade in Services and Domestic Regulations-Necessity, Transparency, and Regulatory Diversity (Oxford: Oxford University Press, 2007).
59. Appellate Body Report, China-Publications and Audiovisual Products, para 310.
60. Appellate Body Report, Brazil-Retreaded Tyres, para 178;
61. also Appellate Body Report, China-Publications and Audiovisual Products, paras 240-1.
62. Appellate Body Report, US-Gambling, paras 309-311.
63. See also Appellate Body Report, China-Publications and Audiovisual Products, para 319.
64. Note that it is generally accepted in the WTO context that the level of protection is unilat erally defined by the regulating state.
65. Cf. Appellate Body Report, Korea-Beef, para 176 (level of enforcement);
66. Appellate Body Report, European Communities-Measures Affecting Asbestos and Asbestos-Containing Products (EC-Asbestos), WT/DS135/AB/R, adopted 5 April 2001, para 168 (level of health).
67. Appellate Body Report, Brazil-Retreaded Tyres, para 156.
68. Appellate Body Report, US-Gambling, para 308;
69. also Appellate Body Report, Dominican Republic-Measures Affecting the Importation and Internal Sale of Cigarettes (Dominican Republic-Import and Sales of Cigarettes), WT/DS302/AB/R, adopted 19 May 2005, para 70;
70. also Appellate Body Report, China-Publications and Audiovisual Products, paras 318, 327.
71. Cf. Appellate Body Report, US-Gasoline, 22;
72. Appellate Body Report, US-Gambling, para 339.
73. Appellate Body Report, US-Shrimp, para 150;
74. endorsed by the Panel in US-Gambling, para 6.581.
75. This means that, whereas the respondent has to ensure that he complies with all three stand ards, proving the violation of just one of these standards would suffice for the complainant to establish a violation of the chapeau.
76. Appellate Body Report, US-Gambling, para 339.
77. See below, under Section III.
78. Appellate Body Report, EC-Hormones, para 104.
79. Back in the late 40s, when the GATT was adopted, the exceptions relating to public morals and national security were arguably the most important ones that countries wanted to see protected. It certainly is no coincidence that public morals is the first justification mentioned in Art XX GATT.
80. US Department of State, 'Suggested Charter for an International Trade Organization of the United Nations' (1946).
81. Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, Arts 8-11, 213 U.N.T.S. 221, 230-32.
82. Indeed, its exercise may be subject to restriction, 'if the particular restriction proposed is required in order to protect the State from destruction or from serious injury, political, eco nomic or moral'.
83. See US Supreme Court, Whitney v California, 274 US 357, 373 (1927). Later on, the Supreme Court referred to the duty of the Courts to determine, in case of conflicting interests, the one that demands the greater protection under the specific circum stances of the case.
84. See American Communications Ass'n v Douds, 339 US 382, 399 (1950).
85. In Simon & Schuster, Inc. v Members of N. Y. State Crime Victims Bd, the Supreme Court found that freedom of speech does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children: 502 US 105, 127 (1991).
86. See, for instance, the evolution of the 'clear and present danger' doctrine in the US Supreme Court case law.
87. In Schenck v United States, the Supreme Court, following Justice Holmes, found that freedom of speech can be restricted if words 'are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
88. It is a question of proximity and degree': 249 US 47, 52 (1919).
89. Several years later, the Supreme Court refined this doctrine by underscoring that 'the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe [a given] advocacy unless such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action' (emphasis added).
90. See Brandenburg v Ohio, 395 US 444, 447 (1969).
91. US Supreme Court, Miller v California, 413 US 15, 24-25 (1973).
92. US Supreme Court, Ashcroft v Free Speech Coalition, 535 US 234 (2002)
93. US Supreme Court, New York v Ferber, 458 US 747 (1982).
94. Ashcroft v Free Speech Coalition, above n 57, at 239.
95. Referring to the case United States v Playboy Entertainment Group, Inc, 529 US 803, 814 (2000), where the importance of the identification of less restrictive alternatives was emphasized.
96. Cf. Yuval Shany, 'Toward a General Margin of Appreciation Doctrine in International Law?', 16 European Journal of International Law 907 (2005), at 908-09.
97. See Michael Hutchinson, 'The Margin of Appreciation Doctrine in the European Court of Human Rights', 48 International and Comparative Law Quarterly 638 (1999);
98. also Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Antwerp: Intersentia, 2001).
99. The ECtHR emphasized that the ECHR itself is a 'living instrument which must be inter preted in light of present-day conditions': Tyrer v United Kingdom, judgment of 25 April 1978, para 31.
100. See also George Letsas, 'Strasbourg's Interpretive Ethic: Lessons for the International Lawyer', 21 European Journal of International Law 509 (2010), at 527.
101. ECtHR, Handyside v United Kingdom, judgment of 7 December 1976, para 48.
102. Also ECtHR, Müller and Others v Switzerland, 133 Eur. Ct. HR (ser A) (1988).
103. For the inconsistencies of the ECtHR when examining justifications of possible derogations from substantive obligations, see Janneke Gerards and Hanneke Senden, 'The Structure of Fundamental Rights and the European Court of Human Rights', 7 (4) International Journal of Constitutional Law 619 (2009).
104. See ECtHR, Leander v Sweden, 9 EHRR (1987) 433, para 59.
105. For a critique of the ECtHR's methodology which may affect its long-term legitimacy, see Aileen McHarg, 'Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights', 62 (5) Modern Law Review 671 (1999), at 687.
106. Francis Jacobs, 'The Evolution of the European Legal Order', 41 Common Market Law Review 303 (2004).
107. Note, however that the Preamble of the Charter of Fundamental Rights of the EU (which after the Treaty of Lisbon has become primary law, equivalent to the Treaties pursuant to Art 6(1) of the Treaty on European Union), refers to the Union's 'spiritual and moral heritage' as if a common denominator existed.
108. See Neil Walker, 'Reframing EU Constitutionalism' in Jeffrey Dunoff and Joel Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance (Cambridge: Cambridge University Press, 2009), 149-177.
109. Note that the protection of public morality is one of the express derogations that the Treaty on the Functioning of the European Union (TFEU) incorporates.
110. The morality exception is to be found in Art 36 TFEU.
111. Interestingly, such an exception is allowed only in the case of restrictions relating to free movement of goods.
112. When it comes to free movement of persons, services or freedom of establishment, the TFEU allows deroga tions which are based not on public morality, but public policy considerations.
113. Arguably, a textual interpretation of the TFEU would lead us to conclude that public policy does not cover public morality, because in the chapter on free movement of goods, the two objectives are distinct.
114. Thus the absence of public morality in the other free movement chapters should have some meaning.
115. Nevertheless, as we explain below, moral considerations have been dis cussed under the other chapters as well, either through the imperative requirements doctrine or as part of the public policy express derogation.
116. ECJ Case 34/79, Henn and Darby [1979] ECR 3795, para 15.
117. ECJ Case 41/74, Van Duyn [1974] ECR 1337, para 18.
118. See also joined Cases C-316, 358, 359, 360, 409 and 410/07, Stoß, judgment of 8 September 2010 (nyr), para 75.
119. Just as in the US-Gambling ruling, the Court here fails to distinguish between public order and public morality, but the maintainance of public order seems to be the consequence of successfully protecting public morals.
120. ECJ Case, C-268/99, Jany [2001] ECR I-8615, para 60.
121. ECJ Case, C-275/92, Schindler [1994] ECR I-1039, paras 60-61;
122. see also Case C-6/01, Anomar and Others [2003] ECR I-8621, para 88.
123. See joined Cases C-316, 358, 359, 360, 409
124. and 410/07, Stoß, above n 75, para 80.
125. See also ECJ, Case C-36/02, Omega [2004] ECR I-9609, paras 37-38.
126. ECJ, Case C-244/06, Dynamic Medien [2008] ECR I-505, para 49.
127. ECJ, Case 121/85, Conegate [1986] ECR 1007.
128. ECJ, Case 41/74, Van Duyn, paras 21-22.
129. ECJ, Cases 115 and 116/81, Adoui and Cornuaille [1982] ECR 1665; C-268/99, Jany.
130. Compare with the Lawrence case where the US Supreme Court, by using human-rights-like argumentation, outlawed legislation in Texas which was considering homosexual sodomy as a criminal offence based on moral grounds.
131. See 539 US 558, 564-567 (2003);
132. also Todd E Pettys, 'Sodom's Shadow: The Uncertain Line Between Public and Private Morality', University of Iowa Legal Studies Research Paper No 10-01, January 2010, pp 25-27, avail able at: http://ssrn.com/abstract=1528446 (visited on 9 September 2010);
133. and Christian Grostic, 'Evolving Objective Standards: A Developmental Approach to Constitutional Review of Morals Legislation', 105 Michigan Law Review 151 (2006).
134. In Adoui and Cornuaille, above n 82, the Court found that 'Community [sic] law does not impose upon the Member States a uniform scale of values as regards the assessment of conduct which may be regarded as contrary to public policy': para 8.
135. See, inter alia, ECJ Case C-112/00, Schmidberger [2003] ECR I-5659, para 71.
136. Dynamic Medien, above n 79, para 44.
137. See, by analogy, the 'professional qualifications' cases: C-340/89, Vlassopoulou [1991] ECR I-2357, or, more recently, C-345/08, Peśla, judgment of 10 December 2009 (nyr).
138. Recently, the ECJ explicitly stated that a national authorization scheme which duplicates the equivalent evidence and safeguards required in the Member State of establishment without taking ac count of controls and verifications already carried out in the latter country violates the prin ciple of proportionality.
139. See ECJ, Case C-458/08, Commission v Portugal, judgment of 18 November 2010 (nyr).
140. Cf. ECJ, Case 222/86, Heylens [1987] ECR 4097.
141. See Alan Littler, 'Regulatory Perspectives on the Future of Interactive Gambling in the Internal Market', 33 (2) European Law Review 211 (2008).
142. Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market, OJ 2006 L 376/36.
143. See ECJ, Case C-42/07, Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I-7633, para 57.
144. See the Opinion of AG Stix-Hackl in Omega, above n 78, para 102;
145. and C-338/04, C-359/04 and C-360/04, Placanica and Others [2007] ECR I-1891, para 47.
146. See also Catherine Barnard, The Substantive Law of the EU-The Four Freedoms (Oxford: Oxford University Press, 2010), at 534.
147. Such considerations may also be brought forward by the ECJ in other 'sensitive' areas such as road traffic.
148. See ECJ, Case C-518/06, Commission v Italy [2009] ECR I-3491, para 84.
149. C-203/08, Sporting Exchange, judgment of 3 June 2010 (nyr), para 33.
150. See also joined Cases C-316, 358, 359, 360, 409[
151. and 410/07, Stoß, above n 75, para 112.
152. C-203/08, Sporting Exchange, above n 93, para 34.
153. See also, Case C-42/07, Liga Portuguesa, above n 91, para 70.
154. Cf. Panel Report, US-Gambling, paras 6.498-6.521, 6.533;
155. and Appellate Body Report, US-Gambling, paras 323, 346-7.
156. Joined Cases C-316, 358, 359, 360, 409
157. and 410/07, Stoß, above n 75, para 83.
158. ECJ, Case C-67/98, Zenatti [1999] ECR I-7289, paras 36-37.
159. The Court elaborated on the meaning of this requirement in Stoß and Ladbrokes (ECJ, Case C-258/08, judgment of 3 June 2010, nyr).
160. See also Gjermund Mathisen, 'Consistency and Coherence as Conditions for Justification of Member State Measures Restricting Free Movement', 47 (4) Common Market Law Review 1021 (2010).
161. Also C-338/04, C-359/04 and C-360/04, Placanica, above n 92, para 55.
162. ECJ, Case C-64/08, Engelmann, judgment of 9 September 2010 (nyr), paras 32, 34-38.
163. Cf. Andrew D Murray, The Regulation of Cyberspace: Control in the Online Environment (Abingdon: Routledge, 2007), at 208.
164. Bernhard Maier, 'How has the Law Attempted to Tackle the Borderless Nature of the Internet?', 18 International Journal of Law and Information Technology 142 (2010).
165. For these categories, see John Palfrey and Urs Gasser, Born Digital-Understanding the First Generation of Digital Natives (New York: Basic Books, 2008).
166. For a depiction of this, see Global Kids, Inc. (The GoodPlay Project at Harvard University's Project Zero), 'Meeting of Minds: Cross-Generational Dialogue on the Ethics of Digital Life', October 2009.
167. Murray, above n 100, at 210.
168. For a detailed analysis of Art XIV GATS, see Thomas Cottier, Panagiotis Delimatsis and Nicolas Diebold, 'Article XIV GATS (General Exceptions)' in Rüdiger Wolfrum, Peter-Tobias Stoll and Clemens Feinäugle (eds), Max-Planck Commentaries on World Trade Law, Volume 6: WTO-Trade in Services (Leiden: Brill Publishers, 2008), at 287.
169. Appellate Body Report, China-Publications and Audiovisual Products, para 394.
170. Appellate Body Report, US-Shrimp, para 121, where the Appellate Body famously ruled that 'conditioning access to a Member's domestic market on whether exporting Members comply with, or adopt, a policy or policies unilaterally prescribed by the importing Member may, to some degree, be a common aspect of measures falling within the scope of one or another of the exceptions (a) to (j) of Article XX [GATT].'
171. Indeed, in the US-Gambling ruling, the Appellate Body clearly suggested that the different wording between the two provisions, with the GATS including the maintenance of public order, should have some meaning.
172. See Appellate Body Report, US-Gambling, para 291, fn 349.
173. However, this statement is somehow tempered by the US-Gambling ruling, where the Appellate Body left untouched the Panel's finding that the public morals and public order, while two distinct concepts, may overlap, as they seek to protect largely similar societal values. Panel Report, US-Gambling, para 6.468.
174. Cf. ECJ Case 30/77, Bouchereau [1977] ECR 1999, para 35.
175. This same wording finds now expression in footnote 5 to the GATS.
176. Panel Report, US-Gambling, para 6.467
177. and Appellate Body Report, US-Gambling, para 323.
178. Panel Report, US-Gambling, para 6.469;
179. in para 6.470, the Panel noted that '[Judge Lauterpacht] further stated that "the protection of the interest of minors . . . falls naturally within the notion of ordre public."' (emphasis added). Cf. ECJ Case C-42/07, Liga Portuguesa, para 56.
180. Cf. Cottier et al., above n 105.
181. Appellate Body Report, US-Gambling, para 298.
182. Panel Report, US-Gambling, para 6.461.
183. Also Panel Report, China-Publications and Audiovisual Products, para 7.759.
184. For a criticism of the WTO judiciary's practice to use dictionaries to identify the ordinary meaning of a given WTO provision, see Petros Mavroidis, 'No Outsourcing of Law? WTO Law as Practiced by WTO Courts', 102 (3) American Journal of International Law 421 (2008), at 446.
185. Also Christoph Feddersen, 'Focusing on Substantive Law in International Economic Relations: The Public Morals of GATT's Article XX(a) and "Conventional" Rules of Interpretation', 7 Minnesota Journal of Global Trade 75 (1998), at 106.
186. Panel Report, US-Gambling, paras 6.470-2.
187. Note that Antigua's Article XVII GATS claim was not discussed based on judicial economy considerations.
188. Panel Report, US-Gambling, para 3.155, fn 281.
189. WTO, 'Work Programme on Electronic Commerce', Submission by the United States, WT/GC/16, 1999.
190. See also Natasha Dow Schull, 'Digital Gambling: The Coincidence of Desire and Design', 597 Annals of the American Academy of Political and Social Science 65 (2005).
191. Panel Report, US-Gambling, paras 6.498-6.521, 6.533.
192. Appellate Body Report, US-Gambling, para 323.
193. See Tim Wu, 'The World Trade Law of Censorship and Internet Filtering', 7 Chicago Journal of International Law 263 (2006), at 264.
194. Cf. the case of audiovisual services and the EU's exception culturelle. Also Sascha Wunsch-Vinvent and Joanna McIntosh, WTO, E-Commerce and Information Technologies-From the Uruguay Round through the Doha Development Agenda (UN ICT Task Force, 2005), at 136.
195. See Mira Burri-Nenova, 'Trade versus Culture in the Digital Environment: An Old Conflict in Need of a New Definition', 12 (1) Journal of International Economic Law 17 (2009).
196. Francesco Francioni, 'Beyond State Sovereignty: The Protection of Cultural Heritage as a Shared Interest of Humanity', 25 Michigan Journal of International Law 1209 (2004).
197. See, for instance, MTN.GNS/AUD/1, paras 25-30.
198. Cf. Appellate Body Report, China-Publications and Audiovisual Products, para 195.
199. These include the scope of the accession protocol; whether Art. XX GATT can be invoked as an affirmative defence to justify a violation of a commitment enshrined in the accession protocol; the remit of the public morals exception;
200. the nature of goods that incorporate services; the content of the terms 'trading right' and 'right to regulate; or the (evolutionary or not) interpretation of GATS schedules.
201. Panel Report, China-Publications and Audiovisual Products, para 7.1237.
202. Appellate Body Report, China-Publications and Audiovisual Products, paras 396-7.
203. Panel Report, China-Publications and Audiovisual Products, paras 7.1248ff, and notably 7.1258.
204. Nonetheless, the Appellate Body did allude to this principle.
205. See Appellate Body Report, China-Publications and Audiovisual Products, paras 377-9.
206. The principle of technological neutrality was referred to in a progress report within the auspices of the work programme on e-commerce, which was adopted by the Council for Trade in Services in 1999.
207. WTO, 'Work Programme on Electronic Commerce-Progress Report to the General Council', adopted by the Council for Trade in Services on 19 July 1999, S/L/74, 27 July 1999, para 4.
208. However, the Report points to several concerns by certain Members as to the complexity of issues relating to digital trade and new technologies.
209. Cf. Anupam Chander, 'International Trade and Internet Freedom', UC Davis Legal Studies Research Paper No 201, January 2010.
210. Raj Bhala, 'Enter the Dragon: An Essay on China's WTO Accession Saga', 15 American University International Law Review 1469 (2000), at 1473-74.
211. See Aaditya Mattoo, 'China's Accession to the WTO: The Services Dimension', 6 (2) Journal of International Economic Law 299 (2003).
212. A precise set of products listed in Annexes 2A and 2B of the Protocol, which is subject to state trading, was excepted from this obligation.
213. Panel Report, China-Publications and Audiovisual Products, paras 7.249, 7.251-2.
214. Appellate Body Report, China-Publications and Audiovisual Products, para 141;
215. also, gen erally, Tania Voon, Cultural Products and the World Trade Organization (Cambridge: Cambridge University Press, 2007).
216. Panel Report, China-Publications and Audiovisual Products, para 7.712-7.714.
217. Cf. Panel Report, China-Publications and Audiovisual Products, para 7.762.
218. Appellate Body Report, China-Publications and Audiovisual Products, para 205.
219. Panel Report, paras 7.712, 7.766;
220. left untouched by the Appellate Body.
221. Appellate Body Report, United States-Measures Relating to Shrimp from Thailand/United States-Customs Bond Directive for Merchandise Subject to Anti-Dumping/Countervailing Duties (US-Shrimp (Thailand)/US-Customs Bond Directive), WT/DS343/AB/R/WT/DS345/AB/R, adopted 1 August 2008, para 310.
222. Cf. Appellate Body Report, China-Publications and Audiovisual Products, para 213.
223. Chinese-owned enterprises which are not wholly state-owned are equally prohibited from engaging in importation of the products at stake.
224. When viewed together with the state-ownership requirement, this measure is the flip side of the same coin.
225. Appellate Body Report, China-Publications and Audiovisual Products, para 307.
226. Cf. Panel Report, United States-Sections 301-310 of the Trade Act of 1974 (US-Section 301 Trade Act), WT/DS152/R, adopted 27 January 2000, where the indirect effect of the WTO agreements over individuals was acknowledged for the first time.
227. See ECJ, Case C-390/99, Canal Satélite Digital [2002] ECR I-607, para 41.
228. See Section II above.
229. Appellate Body Report, Brazil-Retreaded Tyres, para 171.
230. In this regard, one should not lose sight of the fact that the objective of the US complaint was to ensure better access for its music and film industry to the Chinese market and not to open a discussion about democracy or institutional change in China.
231. In this respect, possible indices of bad faith should play against the respondent.
232. See Nicolas Diebold, 'The Morals and Order Exceptions in WTO Law: Balancing the Toothless Tiger and the Undermining Mole', 11 (1) Journal of International Economic Law 43 (2008), at 60.
233. See, however, in favour of a broader mission for the WTO adjudicating bodies which would encompass the interpretation of WTO law in conformity with universally recognized human rights, Ernst-Ulrich Petersmann, 'Time for a United Nations "Global Compact" for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration', 13 European Journal of International Law 621 (2002).
234. This view point is controversial and was contested by several scholars, most notably Robert Howse and Philip Alston.
235. See, generally, Robert Baldwin, Martin Cave and Martin Lodge (eds), The Oxford Handbook of Regulation (Oxford: Oxford University Press, 2010).
236. Cf. Herbert L A Hart, 'Social Solidarity and the Enforcement of Morality', 35 University of Chicago Law Review 1 (1967-1968).
237. Cf. Rafael Domingo, The New Global Order (Cambridge: Cambridge University Press, 2010), at 53.
238. Harold Hongju Koh, 'Transnational Legal Process', 75 Nebraska Law Review 181 (1996), at 183-4;
239. and for the quote at Anupam Chander, 'Globalization and Distrust', 114 Yale Law Journal 1193 (2005), at 1196.
240. Fabrizio Cafaggi, 'New Foundations of Transnational Private Regulation', EUI Working Paper RSCAS 2010/53, June 2010;
241. also Panagiotis Delimatsis, 'The Fragmentation of International Trade Law', 45 (1) Journal of World Trade 87 (2011), at 91.
242. Cf. Mireille Hildebrandt and Bert-Jaap Koops, 'The Challenges of Ambient Law and Legal Protection in the Profiling Era', 73 (3) Modern Law Review 428 (2010).
243. Cyberethics is becoming a conundrum for every agent involved in the drafting of norms regulating human behaviour.
244. See Herman Tavani, Ethics and Technology-Controversies, Questions, and Strategies for Ethical Computing, 3rd ed. (Hoboken, NJ: Wiley, 2010).
245. This transboundary element has arguably transformed previous theories relating to sovereignty.
246. It was argued that the concept of state sovereignty is being transformed in a manner that allows state action only if the latter aims to respect and promote human rights, interests, needs and security.
247. For this discussion arguing for an 'individual-centered' international system, see Anne Peters, 'Humanity as the A and Q of Sovereignty', 20 European Journal of International Law 513 (2009).
248. Gunther Teubner, 'Foreword: Legal regimes of Global Non-State Actors' in
249. Such emergence, however, may be leading to new forms of re-localization. See Hans Lindahl, 'A-Legality: Postnationalism and the Question of Legal Boundaries', 73 (1) Modern Law Review 30 (2010).
250. One can anticipate at least two reasons for this, both relating to power: First, even if societies evolve, the role of the state as the ultimate power-seeker which competes with other states remains the same throughout the centuries; a second, more benign explanation can be that governments may want to avoid domination of the medium, the Internet, by an uncontrolled corporate power.
251. For this second view, see Tim Wu, The Master Switch-The Rise and Fall of Information Empires (New York: Knopf 2010).
252. For a highly influential treatise on this issue, see Lawrence Lessig, Code and Other Laws of Cyberspace (New York: Basic Books, 1999).
253. Cf. Jack Goldsmith and Tim Wu, Who Controls the Internet? Illusions of a Borderless World (Oxford: Oxford University Press, 2008).
254. See also Lawrence Lessig, 'The Law of the Horse: What Cyberlaw Might Teach', 113 Harvard Law Review 501 (1999).
255. Regulation should be regarded here as a broader concept which may consist of a patchwork of state regulation, mandatory and voluntary technical standards as well as informal codes of conduct.
256. See Jürgen Feick and Raymund Werle, 'Regulation of Cyberspace' in Baldwin et al. (eds), above n 166, at 523.
257. Sandra Braman, Change of State, Information, Policy, and Power (Cambridge, MA: MIT Press, 2006).
258. Cf. Jonathan Zittrain and John Palfrey, 'Internet Filtering: the Politics and Mechanics of Control' in Ronald Deibert, et al. (eds), Access Denied: The Practice and Policy of Global Internet Filtering (Cambridge, MA: MIT Press, 2008), at 45.
259. Filtering of course can be the result of private action nowadays, in our attempt to only receive information that matches our personal search criteria.
260. See Cass Sunstein, 'Democracy and the Internet' in Jeroen van den Hoven and John Weckert (eds)
261. Information Technology and Moral Philosophy (Cambridge: Cambridge University Press, 2008), at 93.
262. Cf. 34/79, Henn and Darby, above n 73.
263. ECJ, Case C-71/02, Karner [2004] ECR I-3025, paras 50-51.
264. Cf. Andrea Fischer-Lescano and Gunther Teubner, 'Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law', 25 Michigan Journal of International Law 999 (2004).
265. See Charles Ess, 'Culture and Global Networks: Hope for a Global Ethics?' in van den Hoven and Weckert (eds), above n 182, at 195.
266. Philosophers would recognize here the teachings of one of the leaders of the sophistic move ment in Athens, Protagoras, which were based on human subjectivism ('navxaiv xpr\fiaxa〉v fierpov avOpamog').
267. See also, Peter Nicholson, 'The Sophists' in David Boucher and Paul Kelly (eds), Political Thinkers-From Socrates to the Present (Oxford: Oxford University Press, 2003), 23, at 26.
268. For an excellent acount of what a reasonable state interference is nowadays, see Francis H. Buckley, Fair Governance-Paternalism and Perfectionism (Oxford: Oxford University Press, 2009).
269. Such an approach could draw from the political liberalism theory arguing for individualism, individual freedom and autonomy, reminiscent of Walt Whitman's 'Democratic Vistas'.
270. See Justin Kaplan (ed), Walt Whitman: Poetry and Prose (New York: Library of America, 1982), at 929.
271. Anupam Chander, 'Trade 2.0', 34 Yale Journal of International Law 282 (2009).
272. Wu, above n 1.
273. In China, the State Council is the highest executive body. In the China-Audiovisual Products case, none of the measures at stake were laws enacted by China's legislature, that is, the National People's Congress or its Standing Committee.
274. Cf. the Appellate Body's aphorism in Japan-Alcoholic Beverages II as to the role of the Panels to 'sort through the many reasons legislators and regulators often have for what they do and weigh the relative significance of those reasons. . .'. Appellate Body Report, Japan-Alcoholic Beverages II, p. 27.