The Waiver power of the WTO: Opening the WTO for political debate on the reconciliation of competing interests

Abstract

This article analyses the potential of the WTO waiver as a legal instrument to reconcile conflicting norms and interests. It is argued that conflicts between WTO law and other international legal regimes are often an expression of underlying conflicts of interest and that these should be addressed in political processes. The article proposes that the waiver process has the potential to become a forum for political debate which is open not only to economic interests, but also to other public interests and perspectives. The waiver decision which concludes such a process can provide a solution to conflicts of interest either by modifying the existing rules of WTO law or by limiting the WTO's jurisdiction in favour of another international legal regime. These theses are explored with reference to the TRIPS and Kimberley waiver decisions. © EJIL 2009.