This chapter examines relevant rules regulating export restrictions under the WTO framework, covering a set of provisions relating to export restrictions, WTO-plus obligations and commitments in accession protocols and Working Party Reports, proposals in Doha negotiations and regulations in regional trade agreements (RTAs). Under current WTO rules, the most relevant are Article XI of the GATT, Article 12 of the Agreement on Agriculture and Article 11 of the Agreement on Safeguards. In addition, export restrictions may constitute domestic subsidies to domestic downstream producers. The critical point is whether such criteria for a subsidy necessitate ‘a charge on the public account’. Export restrictions may also give rise to anti-dumping investigations where the determination of normal values is a key. The attempt to remedy the regulatory deficiency under the WTO agreements through accession negotiation processes, Doha negotiations and in RTA contexts have resulted in a patchwork of legal rules and given rise a systemic issue: how to integrate obligations and commitments in the accession protocols and Working Party Reports into the WTO Agreemen.

The GATT/WTO regime is built on an export-bias, with trading nations aiming to export goods and services while keeping foreign producers from their domestic market so as to protect domestic producers from competition. Therefore, the vast majority of WTO rules are concerned with regulation on the liberalisation of import restrictions, tariffs and non-tariff barriers, but touch only lightly on export restrictions. The emphasis on the liberalisation of import barriers can be attributed to the built-in mercantilist tendencies of the GATT/WTO system – an arm of the post-World War II international economic order – and viewed as a direct response to the earlier erection of insurmountable import tariffs, which led to the Great Depression and the accompanying political turmoil. The weaknesses of such one-sided regulation out of export-bias are exposed by the proliferation of export restrictive measures adopted in the name of national security and in a time of pandemic. Export restrictions may pose great challenges to the global supply chain, given the geographical distribution of production chains out of economic globalisaiton, and exacerbate food insecurity of food-importing countries.

As a result of the multilateralisation of FDI operations, of the criticism formulated against international investment law and arbitration and of the evolution of States’ policies, limitations placed on the protection of foreign investors have spread and diversified over time in international investment agreements (IIAs). Chapter 7 focuses on these limitations as contained in IIAs concluded in the 2010s, as these IIAs incorporate both traditional limitations and the new limitations that have recently appeared in treaty practice. It provides an analysis of treaty limitations by distinguishing between them on the basis of their scope of application, meaning mainly whether they apply to IIAs as a whole or to specific provisions thereof.