The Necessity Test in World Trade Law: What Now?

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.