Common use of Maintaining Clause in Contracts

Maintaining. The Protocol does not define “maintained.” This raises a more complex issue for Mozambique and for SADC. Treaty interpretation practices, however, construe deviations from a provision narrowly. Provisions such as Article 27 have been examined under the GATT. The GATT has treated authority to continue grandfathered provisions narrowly. For example, the GATT Panel on Newsprint, L/5680, paragraphs 50, 52, narrowly construed the GATT’s permission for contracting parties to continue preferences (and margins of preference). These authorized deviations from a GATT obligation were referred to in GATT Article I and the preferences themselves were contained in annexed schedules. The Newsprint Panel was addressing permitted deviation from Most Favored Nation (MFN) treatment as provided in GATT Article I. The panel determined that deviation was permitted only for “maintenance” of preferences (margins of preference) not “modification.” This was interpreted as meaning that “even purely formal changes” to tariff schedules (that did not impair GATT obligations) were “modifications” of preferences requiring renegotiation. Similarly, the GATT Panel on the Manufacturing Clause found that “the Protocol of Provisional Application” (an authority to maintain certain GATT-inconsistent legislation) did not authorize contracting parties to lessen inconsistency and then enact legislation increasing GATT inconsistency even if the extent of inconsistency was only brought back to the level of the grandfathered “existing legislation.” This has been referred to as a “one way street” away from inconsistency. In the Manufacturing Clause case, the United States legislated a termination date for a grandfathered provision, allowed it to terminate, and then extended it after only a gap of several days. This means that “existing” “preferential trade and other arrangements” modified after the Protocol on Trade entered into force might not qualify as having been “maintained.” Therefore, as “modified” arrangements they could be considered “new,” and not qualify for Article 27, paragraph 1.