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The Necessity Test in World Trade Law: What Now?

Du, M (2016) The Necessity Test in World Trade Law: What Now? Chinese Journal of International Law, 15 (3).

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Abstract

The necessity test in the GATT/WTO legal system has long been attacked on two grounds. First, the legal test formulated by the WTO Appellate Body to assess necessity has been described as ambiguous, illogical and arbitrary. Second, the WTO Appellate Body’s stringent interpretation of the necessity requirement has interfered with WTO Members’ domestic choices about policy objectives. This article revisits these conventional criticisms in the light of the recent WTO case law and attempts to make three claims in relation to the necessity test in WTO law. First, we now have a much clearer understanding of the role each element of the necessity test plays, how different elements interact and how to draw a conclusion after weighing and balancing these elements. Second, the WTO Appellate Body has gradually and substantially relaxed the necessity test over the past decade. It is no longer justifiable to depict the necessity test as a straightjacket. Third, the WTO Appellate Body has successfully pushed for a broad convergence in necessity tests across various WTO Agreements, despite their textual and structural differences.

Item Type: Article
Subjects : Law
Divisions : Faculty of Arts and Social Sciences > School of Law
Authors :
AuthorsEmailORCID
Du, MUNSPECIFIEDUNSPECIFIED
Date : 2016
Copyright Disclaimer : This is a pre-copyedited, author-produced PDF of an article accepted for publication in Chinese Journal of International Law following peer review. The version of record The Necessity Test in World Trade Law: What Now? will be available online at: http://chinesejil.oxfordjournals.org/
Related URLs :
Depositing User : Symplectic Elements
Date Deposited : 06 Sep 2016 13:01
Last Modified : 06 Sep 2016 13:03
URI: http://epubs.surrey.ac.uk/id/eprint/811990

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