Thread by @StevePeers

On free trade agreements and export bans: the withdrawal agreement provides for free trade between the EU and NI. For the UK as a whole, the recent trade deal applies. 1/

https://twitter.com/PoliticoTeacher/status/1354847189705650176

2/ Article EXC.1 of the Brexit trade deal provides for exceptions to the free trade rules. It applies WTO law - GATT Art XX - which provides for trade restrictions "necessary to protect human, animal or plant life or health" - but this is subject to conditions...

3/ Art XX allows trade restrictions on health grounds if "such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade"

4/ Article OTH.4a of the Brexit trade deal says that the interpretation of the trade part "shall take into account relevant interpretations" in WTO case law. The case law on GATT Art XX is summarised here: wto.org/english/res_e/…
Nothing specifically on vaccine export bans...

5/ Seems to me the UK could challenge the EU under either the WTO or Brexit deal dispute settlement systems. Article INST.12 lets the complainant choose which forum to challenge in. (It can't have a crack at both if its first choice system rules on the merits).

6/ As long as the WTO appellate body isn't functioning the UK would be better off using the Brexit deal system. (Some WTO Members have patched up a temporary alternative to WTO appeals, but AFAIK UK hasn't signed up to it).

7/ The provisional application clause in the Brexit deal seems to assume that the treaty will fully apply during the period of provisional application.

https://twitter.com/Murrman2020/status/1354856874156425221?s=20

8/ This bit of the Brexit deal seems to be about authorisation of medicine, not trade as such - although one objective is 'to facilitate the availability of medicines in each Party’s territory'. Big issue tho: dispute settlement is switched off (Art 13)

https://twitter.com/AndrewDuffEU/status/1354857964029489156?s=20

9/ Good point - EU might try to rely on this GATT provision to adopt 'export prohibitions or restrictions temporarily applied to prevent or relieve critical shortages of foodstuffs or other products essential to the exporting
contracting party'

https://twitter.com/chwherrmann/status/1354855941406142466?s=20

10/ Like Art XX GATT, Art XI GATT is also incorporated into the Brexit deal (Article GOODS.10) - so the same points I made above about application of the case law and choice of dispute settlement forum apply again.

11/ There *is* some case law re the critical shortages/export ban clause in GATT Art XI: wto.org/english/res_e/…
although the facts about that Chinese bauxite export ban seem quite different to the argument over vaccines.

12/ I would assume that if it came to it, EU would argue the Art XI GATT export ban clause as its first line of defence, with Art XX GATT (public health general exception) as an argument in the alternative.

13/ For urgent disputes, the Brexit deal says that consultations take 20 days and then the arbitrators must rule within 65 days (or 80 if they can't make 65). Indeed it's possible there'd be more vaccine supply etc in the meantime.

https://twitter.com/VidigalGeraldo/status/1354864391523606528?s=20

14/ The arbitration is much quicker than that (see tweet 13) but then there's a reasonable period of time to comply, which might take 70 days to define. Once that period expires, if the ruling isn't complied with, the winning party can do trade retaliation

https://twitter.com/odtorson/status/1354866179148546050?s=20

15/ Brexit deal says trade retaliation can apply if there's no compliance with an arbitration ruling in time - see tweet 14. This might arguably be proportionate. If UK jumped gun before that, EU could start dispute settlement process against it in turn.

https://twitter.com/TheMightyKM/status/1354863456290275330?s=20

16/ Maybe - there might be arguments as to why this is a different kettle of fish though

https://twitter.com/nathansldennis/status/1354869273324384257?s=20

17/ Another possibility. Guzzle a bottle after your vaccination!

https://twitter.com/dan_mccurry/status/1354868550855438341?s=20

18/ Trade retaliation rule is that 'suspension of obligations shall not exceed the level equivalent to the nullification or impairment caused by the violation'. If there's a dispute that it's excessive (common in WTO), arbitrators rule within 30 days.

https://twitter.com/odtorson/status/1354870611579981824?s=20