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A CRITIQUE OF THE WTO JURISPRUDENCE ON ‘NECESSITY’

Published online by Cambridge University Press:  27 January 2010

Gisele Kapterian
Gisele Kapterian
Affiliation:
Associate, White & Case LLP, Geneva, Switzerland.
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Abstract

This paper examines whether the evolving jurisprudence on necessity as developed by the WTO adjudicatory bodies reflects the same balance between trade liberalization and regulatory autonomy as that contained in the WTO treaty texts, particularly with regard to the GATT. It is argued that a divergence can be observed which raises questions of competence, legitimacy and transparency. Specific amendments to the prevailing test are also proposed in order to achieve what the author suggests is a textually consistent, and thus legitimate, necessity test of equal efficacy.

Type
Article
Information
International & Comparative Law Quarterly , Volume 59 , Issue 1 , January 2010 , pp. 89 - 127
Copyright
Copyright © 2010 British Institute of International and Comparative Law

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References

1 The tests that have received the most attention thus far and will be considered in this discussion are: General Agreement on Tariffs and Trade (GATT 1947), in WTO, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations (2007) 423–493; (Legal Texts) arts XX and XXI; Agreement on the Application of Sanitary and Phytosanitary Measures (15 April 1994); Marrakesh Agreement Establishing the WTO (hereinafter WTO Agreement), Annex 1A, Legal Texts, 59–73, arts 2.2 and 5.6 (hereinafter SPS Agreement); Agreement on Technical Barriers to Trade (15 April 1994) WTO Agreement, Annex 1A, Legal Texts 121–143, arts 2.2 and 2.5 (hereinafter TBT Agreement); General Agreement on Trade in Services, WTO Agreement, Annex 1B, Legal Texts, 284–320, arts XIV and VI:4 (hereinafter GATS Agreement).

2 See for example, S Charnovitz, ‘Environment and Health Under WTO Dispute Settlement’ (1998) 32 Int'l Lawyer 901, 920–21 (highlighting environmentalists' distrust of the WTO dispute settlement system); R Howse and E Turk, ‘The WTO Impact on Internal Regulations—A Case Study of the Canada-EC Asbestos Dispute,’ in G de Burca and J Scott (eds), The EU and the WTO: Legal and Constitutional Issues (Hart Publishing, Oxford, 2003) 283; C Button, The Power to Protect: Trade, Health and Uncertainty in the WTO (Hart Publishing, Oxford, 2004).

3 Korea-Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161.169/AB/R, 11 December 2000.

4 The newer SPS, TBT and GATS agreements have not yet been subjected to the same degree of judicial scrutiny as they have only been raised and considered relevant on a limited number of occasions. As such, the discussion relating to these agreements is similarly constrained. In particular, while the GATS jurisprudence will be discussed, it will not be considered as a separate necessity test to the one contained in the GATT due to the almost identical textual content and similar goals of the agreements (see n 134). Necessity under the TRIPs Agreement will not be discussed.

5 VCLT 1155 UNTS 331 art 31.

6 WTO Agreement, preamble.

7 Preamble to the GATT, echoed verbatim in WTO Agreement preamble.

8 McGinnis, J O and ML, Movesian, ‘Commentary: The World Trade Constitution’, (2000) 114 Harv L Review 511, 517CrossRefGoogle Scholar.

9 VCLT art 31. This method of interpretation has been accepted by the adjudicating bodies on a number of occasions which have stated that this provision constitutes ‘customary rules of interpretation of public international law’ for the purposes of DSU art 3.2. See, for example, United States-Section 301–310 of the Trade Act 1974, WT/DS 152/R, 22 December 1999, paras 7.21–7.22; United States-Gasoline, WT/DS2/AB/R, 16; US- Shrimp/Turtle, WT/DS58/AB/R (1998) para 34.

10 That is not to suggest that this is exactly what the EU has achieved: See Mollers, T, ‘The Role of Law in European Integration’ (2000) 48 Am J Comp L 679, 683CrossRefGoogle Scholar noting it has achieved ‘islands’ of integration.

11 Note that Afilalo and Foster also refer to the NAFTA regime as requiring greater integration than the WTO: Afilalo, A and S, Foster, ‘The World Trade Organisation's Anti-Discrimination Jurisprudence: Free Trade, National Sovereignty, and Environmental Health in the Balance’ (2003) 15 Geo Int'l Envtl L Rev 633, 642–647Google Scholar.

12 A number of exceptions to this general rule have developed including the obligations imposed under the TRIPS agreement which requires Members to achieve an agreed level of intellectual property protection within their jurisdictions (TRIPS Part II) while the SPS calls for SPS measures to be harmonized ‘on as wide a basis as possible’: (see SPS, art 3). Note, however, even these exceptions do not achieve complete harmonization as they only set minimum standards.

13 GATT art I (Most-Favoured Nation) and art III (National Treatment).

14 McGinnis and Movesian (n 8) 550.

15 See art XX chapeau: ‘… nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures …’

16 The difficulties posed by the negative integration requirement are examined below. See also J R Pritchard and J Benedickson, ‘Securing the Canadian Economic Union’, in M. Trebilcock et al (eds), Federalism and the Canadian Economic Union (1983) (‘[T]he tension between political autonomy and economic integration is inescapable in any non-unitary political system’) 3.3; cited in J C Marwell, ‘Trade and Morality: The WTO Public Morals Exceptions after Gambling’ (2006) 81 NYUL Rev 802, 802.

17 N Walker, ‘The EU and the WTO: Constitutionalism in A New Key’, in G De Burca and J Scott (eds), The EU and WTO: Legal and Constitutional Issues (2003) 47.

18 Olivier Cattaneo notes that the concept of policy space is ‘ambiguous’ and used differently by different Members in different contexts, often in pursuit of conflicting objectives: ‘Has the WTO Gone Too Far or Not Far Enough? Some Reflections on the Concept of Policy Space’ in A. Mitchell (ed) Challenges and Prospects for the WTO (2005) 58; See generally, R Baldwin, C Scott, and C Hood (ed) A Reader on Regulation (1998).

19 MM Du, ‘Domestic Regulatory Autonomy under the TBT Agreement: From Non-Discrimination to Harmonisation’ (2007) 6 Chinese JIL 269, 274.

20 See in particular the difficulty faced by the adjudicating bodies in ascertaining what constituted public morals in the US-Gambling decision (Part II B).

21 This definition adopts Du's perception of what regulatory autonomy means under the TBT Agreement (n. 19), however, the definition appears to fit equally well with what the Member's envisage beyond the TBT.

22 G Marceau and J Trachtman, ‘The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade, A Map of the World Trade Organisation Law of Domestic Regulation of Goods’ in G A Bermann and P C Mavroidis (eds), Trade and Human Health and Safety (2006) 9.

23 Spec (71) 143, 30 September 1971, S III, art I(c) cited in Marceau and Trachtman, ibid 22.

24 See above (n 1).

25 GATT art XX (a), (b), (d). It is unclear whether (i) will be considered to refer to ‘necessary to’ or ‘involving’, the latter being preferred by the US-Gasoline AB, at 17. The sub-clause has not received any formal consideration and is worded differently from (a), (b) and (d).

26 Sub-paras (c) and (e).

27 Sub-para (f).

28 Sub-para (h).

29 Sub-para (j).

30 Howse has suggested that the role of the trade insider network led to an ‘amnesia’ regarding the exact bargain that was struck between ‘freer trade and the welfare state’ and the development of ‘an ideology of free trade’: R Howse, ‘The Boundaries of the WTO: From Politics to Technocracy—and Back Again: The Fate of the Multilateral Trading Regime’ (2002) 96 AJIL 94, 98–99.

31 All three requirements are deemed to ‘impart meaning into each other’ and ‘can be read side by side’: US-Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, 29 April 1996 (US-Gasoline) 25.

32 Emphasis added: ibid 22.

33 ibid.

34 ibid.

35 ibid, citing US-Imports of Certain Automotive Assemblies Report adopted 26 May 1982 BISD 30S/107 para 56; Argentina-Measures Affecting the Export of Bovine Hides and the Import of Finished Leather WT/DS155/R, 19 December 2000, paras 11.288–11.289.

36 US-Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, 12 October 1998 (US-Shrimp/Turtle) para 120: After stating that the standards were ‘necessarily broad in scope and reach’, the AB stated the scope of these three standards ‘will vary as the kind of measure under examination varies’.

37 TJ Schoenbaum, ‘International Trade and Protection of the Environment: The Continuing Search for Reconciliation’ (1997) 91 AJIL 269. Schoenbaum argues in favour of greater deference from the adjudicating body to the regulatory autonomy of the State when applying the exception provisions under art XX as the next logical step is to apply the chapeau: 277.

38 For a fuller exploration of the potential for the chapeau to accommodate non-trade issues see S Gaines, ‘The WTO's Reading of the GATT art XX Chapeau: A Disguised Restriction on Environmental Measures’ (2001) 22 U Pa J Int'l Econ L 739.

39 TBT preamble, paras 5 and 6.

40 SPS Agreement, art 5.6, fn 3.

41 McGinnis and Movesian (n 9) 550.

42 See Marwell (n 16) 808–809.

43 Button makes this comment specifically in relation to health measures adopted by states: above (n 2) 208–9.

44 Joanne Scott argues that the ECJ has been more deferential to the political imperatives driving the introduction of certain measures by the national government: J Scott, ‘On Kith and Kine (and Crustaceans): Trade and Environment in the EU and the WTO’ in JHH Weiler (ed), The EU and WTO and the NAFTA, Towards a Common Law of International Trade (2000) 125–68. cf Button who argues that the ECJ case law shows ‘very little deference’ to Member State preferences when applying the least trade-restrictive alternative test: ibid 208.

45 Neumann, J and E, Turk, ‘Necessity Revisited: Proportionality in World Trade Organization Law after Korea-Beef, EC-Asbestos, and EC-Sardines’ (2003) 37 J World Trade 1 199, 232Google Scholar.

46 Art 1, s 8, clause 3 of the US Constitution states that Congress has the exclusive authority to manage commerce between the states, with foreign nations and Indian tribes.

47 Button (n 2) 202.

48 Hilf has highlighted eight principles and objectives of the WTO found in prominent positions in the legal text and acknowledged by the AB.: Hilf, M, ‘Power, Rules and Principles—Which Orientation for WTO/GATT Law?’ (2001) 4 J Int'l Econ L 111CrossRefGoogle Scholar.

49 The term ‘standard of review’ in this discussion is used in its most general form to refer to its influence over the general allocation of power between the adjudicating bodies and WTO Members by dictating the extent of power to be awarded to each party on issue of law and fact: Andenas, M and S, Zleptnig, ‘Proportionality: WTO Law in Comparative Perspective’ (2007) 42 Tex Int'l L J 371, 395Google Scholar. Consequently, the discussion relating to the application of the ‘necessity’ test will involve reference to both types of review. See also M Oesch, Standards of Review in WTO Dispute Resolution (OUP, Oxford, 2003) for greater consideration of this issue.

50 Button (n 2) 193.

51 With the exception of art 17.6 of the Agreement on Implementation of Article VI of the GATT.

52 EC-Measures Concerning Meat and Meat Products (EC-Hormones), WT/DS48/AB/R, 16 January 1998, para 116.

53 ibid: The AB based its reasoning on art 11 of the Understanding on Rules and Procedures Governing the Settlement of Disputes, WTO Agreement, Annex 2 (DSU).

54 ibid, para 115.

55 ibid, para 117.

56 Andenas and Zleptnig (n 49) 396.

57 Trachtman identifies six broad categories: national treatment, simple means-end rationality test, necessity or least trade restrictive alternative test, proportionality test, balancing test and cost-benefit analysis: see JP Trachtman, ‘Trade and … Problems, Cost-Benefit Analysis and Subsidiarity’, available at: http://ejil.org/journal/Vol19/No1/art3.html, 1.

58 ibid 2.

59 Each of these terms should be interpreted in their most general sense.

60 Trachtman (n 57) 3.

61 ibid.

62 ibid.

63 Neuman and Turk have concluded that the WTO tribunals have not yet adopted a strict proportionality test and that the rules of the WTO necessity test do not incorporate any explicit reference to it: Neuman and Turk, above (n 45) 231. In contrast, Hilf regards it as ‘one of the more basic principles underlying the multilateral trading system’: Hilf, above (n 48) 6. Desmedt concluded in his analysis that there is no uniform interpretation of the proportionality principle in WTO law: Desmedt, A, ‘Proportionality in WTO Law’ (2001) 4 (3) J Int'l Econ Law 441CrossRefGoogle Scholar, available at http://jiel.oxfordjournals.org/cgi/content/abstract/4/3/441, 21.

64 M Kennett, J Neuman and E Turk, ‘Second Guessing National Level Policy Choices: Necessity, Proportionality and Balance in the WTO Services Negotiations’ (2003) CIEL, presented at the WTO's 5th Ministerial Meeting in August 2003, available at: http://www.ciel.org/Publications/Necessity_3Sep03.pdf at 5.

65 Trachtman (n 57) 3.

66 ibid.

67 See Part IIB.

68 Trachtman (n 41) 3.

69 McGinnis and Movesian (n 8) 513.

70 Although US-Import of Certain Automotive Spring Assemblies, BISD 30S/107 adopted 26 May 1983, raised the issue, it was never considered by the panel.

71 US- Section 337 of the Tariff Act of 1930, BISD 365/345 adopted 7 November 1989 (US- Section 337).

72 US- Section 337, BISD 365/345, para 5.26; Reaffirmed in US-Measures Affecting Alcoholic and Malt Beverages (US- Malt Beverages) adopted 19 June 1992, BISD 39S/206, para 5.52; and Thailand-Restrictions on Importation of and Internal Taxes on Cigarettes (Thai-Cigarettes) adopted 7 November 1990 BISD 37S/200, para 223.

73 US-Section 337, BISD 365/345, para 5.26.

74 ibid para 5.33.

75 ibid para 4.9.

76 ibid para 6.1.

77 See generally, D Regan, ‘The Meaning of “Necessary” in GATT Article XX and GATS Article XIV: The Myth of Cost-Benefit Balancing’ (2007) 6 World Trade Review 3 347, 348, whose analyses this issue with regard to the balancing test applied in Korea-Beef, 348.

78 Thai-Cigarettes DS10/R- 37S/200, adopted on 7 November 1990.

79 ibid para 76.

80 ibid para 75.

81 The Panel concluded, ‘In both paragraphs the same term was used and the same objective intended: to allow contracting parties to impose trade restrictive measures inconsistent with the General Agreement to pursue overriding public policy goals to the extent that such inconsistencies were unavoidable. The fact that paragraph (d) applies to inconsistencies resulting from the enforcement of GATT-consistent laws and regulations while paragraph (b) applies to those resulting from health-related policies therefore did not justify a different interpretation of the term “necessary”’: Thai-Cigarettes DS10/R- 37S/200, para 74.

82 ibid paras 77–81.

83 Thailand relied on the World Health Organisation's findings that advertising bans were circumvented by multinational tobacco companies through indirect advertising and other modern marketing techniques, ibid, paras 27 (Thailand's submissions), para 55 (WHO submissions).

84 D Osiro, ‘GATT/WTO Necessity Analysis: Evolutionary Interpretation and its Impact on the Autonomy of Domestic Regulation’ (2002) 29 Legal Issues of Economic Integration 2, 123, 127–8; M J Trebilcock and Robert Howse, The Regulation of International Trade (3rd edn, 2005) 518; Neumann and Turk (n 45) 208.

85 Button (n 2) 30. See generally, Correa, C, ‘Implementing National Public Health Policies in the Framework of the WTO Agreements’ (2000) 34 J World Trade 5, 89Google Scholar.

86 US-Standards for Reformulated and Conventional Gasoline, WT/DS2/R, 29 January 1996 (US-Gasoline).

87 See for example, the US argument regarding the difficulty of exercising enforcement jurisdiction with respect to a foreign refinery, the ‘impossibility of determining the refinery origin for each imported shipment’, and the recognition of the fact that not all refineries were able to produce the evidence required to establish an individual baseline: US-Gasoline WT/DS2/R, para 6.23.

88 ibid para 6.36 (emphasis added).

89 ibid para 6.28. The Panel's finding relating to its application of the necessity test under arts XX (b) and (d) were not appealed so the issue did not receive fuller treatment.

90 Regan makes this distinction, calling the latter test the ‘loose LRA (least-restrictive alternative) test’ and notes that the existence of alternatives that achieve all the same benefits as the contested measure are rare: Regan, ‘Judicial Review of Member-State Regulation of Trade within a Federal or Quasi-Federal System: Protectionism and Balancing, Da Capo’ (2001) 99 Mich L Rev 1853, 1899–1900; See also Sykes for the argument that the LRM test is being applied as a form of ‘crude cost-benefit analysis’: A Sykes, ‘The Least Restrictive Means’ (2003) 70 U Chi L Rev 403.

91 US-Gasoline WT/DS2/R, para 6.22.

92 Schoenbaum, above (n 37) 276. See also McLaughlin, R J, ‘Sovereignty, Utility and Fairness: Using US Takings Law to Guide the Evolving Utilitarian Balancing Approach to Global Environmental Disputes in the WTO’ (1999) 78(4) Oregon Law Review 855, 889Google Scholar where he argues that Panels had traditionally relied on ‘strained textual and functional definitions to prevent article XX exemptions from being applied’.

93 See Part IIB below.

94 Schoenbaum (n 37) 276.

95 GATT art XX(h).

96 An issue that has not been given any attention by the adjudicating bodies.

97 Camilleri also notes this latter point: V Camilleri, ‘An Analysis of the Necessity Tests as Applied by the WTO adjudicator’ (LLM Dissertation, College of Europe University, 2004) 9.

98 See discussion of chapeau (n 34) and surrounding text.

99 Schoenbaum (n 37) 277.

100 US-Gasoline, WT/DS2/AB/R, 23.

101 Korea-Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161.169/AB/R, 11 December 2000, (Korea-Beef).

102 Note, however, Regan's argument that this is a misunderstanding of what the test actually entails: Regan (n 77).

103 EC-Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, 12 March 2001, (EC-Asbestos).

104 It alleged that such differential treatment was necessary to protect consumers against fraudulent practices prohibited under its Unfair Competition Act.

105 Korea-Beef, WT/DS161.169/AB/R, para 161.

106 ibid.

107 ibid para 162.

108 ibid para 164.

109 ibid para 163.

110 ibid.

111 Neumann and Turk (n 45) 211.

112 ibid.

113 Korea-Beef, WT/DS161.169/AB/R, para 173.

114 ibid.

115 ibid para 180.

116 ibid para 178.

117 ibid.

118 The Panel, however, did specifically state that the dual retail system was ‘a disproportionate measure not necessary to secure compliance with the Korean law against deceptive practices’: Panel Report para 675.

119 The AB merely stated that the necessity test formulated in section 337 as modified by Korea-Beef was correctly applied to the case by the Panel: EC-Asbestos, WT/DS135/AB/R, paras 78–79. It is interesting to note that that AB was not obliged engage with the art XX analysis as it decided against the Panel's findings that the art III:4 had been violated. Neumann and Turk have interpreted the AB's decision to continue with the art XX analysis as a reflection of the AB's eagerness to ‘make judicial policy’: Neumann and Turk (n 45) 213.

120 EC-Asbestos, WT/DS135/AB/R, para 172.

121 Brazil-Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R, 3 December 2007.

122 ibid para 156.

123 EC-Asbestos, WT/DS135/AB/R, para 174.

124 ibid para 168.

125 ibid para 178.

126 ibid paras 172–4.

127 ibid para 174.

128 See (n 115) and surrounding text.

129 ibid; EC-Asbestos, WT/DS135/AB/R, para 169.

130 The US-Gambling shows a remarkably similar treatment of the three elements: para 6.494.

131 ibid.

132 Neumann and Turk (n 45) 213.

133 The GATS contains three different provisions incorporating a necessity test of differing construction: See GATS arts XIV and XIV bis. ArtVI:4 imposes an indirect necessity test on Members. However, only XIV has been subject to judicial attention thus far.

134 US-Gambling, WT/DS285/R, paras 3.211, 6.511. The only differences are: first, that GATS art XIV(a) refers to not only the GATT XX(a) exception ‘to protect public morals’ but adds ‘or to maintain public order’; and second, the provision ‘necessary to secure compliance with law or regulations’ includes a slightly different list of goals: art XIV(c). As such, it is safe to say that the differences regarding the necessity provisions are minimal.

135 ibid para 6.448.

136 ibid para 6.461.

137 ibid. This concept is reminiscent of SPS art 5.6: see (n 149) and surrounding text below.

138 ibid (emphasis added).

139 ibid.

140 ibid paras 6.471–4.

141 Dominican Republic-Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/R, 26 November 2004 (Dominican-Cigarettes). The Dominican Republic claimed its tax stamp requirement for cigarette packets was ‘necessary’ to ensure compliance with tax and anti-cigarette smuggling laws.

142 ibid para 7.215.

143 Marwell (n 16) 817–19.

144 US-Gambling, WT/DS285/AB/R, 7 April 2005, para 304.

145 ibid.

146 ibid para 307.

147 Marwell notes that the balancing process by the Panel was opaque: (n 16) 813.

148 Though art 5.6 does not explicitly refer to the word ‘necessary’, it has been accepted to constitute a ‘necessity test’: see, for example, its general treatment in Australia-Measures Affecting Importation of Salmon, WT/DS18/R, 12 June 1998, (Australia-Salmon) and Marceau and Trachtman (n 22), (n 29). Arts 2.3 and 5.5 are also highly relevant to the interpretation of art 5.6. Art 2.2 has not received any judicial consideration to date that focuses simply on whether the measure was ‘necessary’ but only looks at whether the measure was based on scientific evidence: Australia-Salmon, para 8.99.

149 SPS Agreement, art 5.6, fn 3 (emphasis added).

150 Australia-Salmon, WT/DS18/AB/R, 20 October 1998, para 199. This case involved Australia's import ban on uncooked salmon intended to keep fish diseases out of Australia.

151 SPS Agreement Annex A, para 5. See also SPS arts 5.3 and 5.4.

152 No consideration has been given to the meaning of this element. While Japan-Measures Affecting the Importation of Apples WT/DS245/R, 15 July 2003 (Japan-Apples) and Japan-Measures Affecting Agricultural Products, WT/DS76/R, 22 October 1998, examined and applied art 2.2, they did not rule on the issue of necessity but rather whether the measure was based on scientific evidence (though note that in Japan-Apples the Panel stated that the absence of scientific evidence made the measure ‘disproportionate” to the risk: para 8.179).

153 Button (n 2) 71.

154 Case law has shown ‘zero risk’ to be an appropriate level if Members so wish: J Pauwelyn, ‘The WTO Agreement on SPS Measure as Applied in the First Three SPS Disputes’ (1999) JIEL 641, 646.

155 Interestingly, this was held to be so without any consideration for the impact of art 5.4 requesting (not requiring) Members to take into account the objective of minimizing negative trade effects.

156 Australia-Salmon, WT/DS18/R, para 8.172.

157 Australia-Salmon WT/DS18/AB/R, para 199.

158 ibid para 207.

159 ibid.

160 Note that the Panel never engaged in ascertaining the precise level of protection sought by Thailand. It simply examined alternatives believed to reduce the quantity and ensure the quality of cigarettes generally rather than to any particular extent.

161 Japan-Varietals, WT/DS/76/AB/R paras 126 and 130.

162 US-Gambling, WT/DS285/R, 6.531.

163 Japan-Varietals, WT/DS/76/AB/R, 129.

164 US-Gambling, WT/DS285/R, 6.531.

165 See (n 123) and surrounding text above.

166 US-Gambling AB expressly condemned the Panel's action in this regard: WT/DS285/AB/R, para 320.

167 Brazil-Tyres, WT/DS332/AB/R para 156.

168 cf Canada-Wheat Exports and Grain Imports, WT/DS276/R, 6 April 2004, para 6.308 where the Panel suggested its own alternative (though note that this case occurred before both US-Gambling and Brazil-Tyres).

169 SPS art 5.6, footnote 3.

170 Button (n 2) 71.

171 See, in particular, Brazil-Tyres, WT/DS332/AB/R, para 156 referred to above at fn 129. See also US-Gambling, WT/DS285/AB/R, para 308 under the GATS. Though mentioned by the EC-Asbestos AB, the Panel's findings on the matter were not appealed so the AB declined to address the issue: EC-Asbestos, WT/DS135/AB/R, 169.

172 As seen by the fact that Korea-Beef and EC-Asbestos did not address the issue.

173 cf F Garcia, ‘The Salmon Case: Evolution of Balancing Mechanisms for Non-Trade Values in WTO’, in Bermann and Mavroides (n 2) 150–151 who notes substantial similarity between the test and notes the direct influence of Australia-Salmon in the development of the GATT necessity test.

174 TBT, art 2.2.

175 Neumann and Turk (n 45) 218. cf, Hilf, who argues that this does amount to proportionality: (n 48) 120. Marceau and Trachtman note that the original draft at the end of the Uruguay Round included a footnote after the additional sentence of art 2.2 which read ‘this provision is intended to ensure proportionality between regulations and the risks non-fulfilment of objectives would create’. Though the footnote was removed, the Note from the Secretariat affirmed that the degree of restrictiveness in the context of standard setting ‘should be proportional to the risk of non-fulfilment … in the case of the TBT’: (n 22) citing Document TER/W/16 and corr 1, (n 83) and (n 84).

176 Neaumann and Turk (n 45) 219.

177 ibid, 220 citing Korea-Beef, WT/DS161.169/AB/R,162.

178 Though raised in a number of cases such as EC-Asbestos, EC-Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291.292.293/R, 29 September 2006 and EC-Protection of Trade-Marks and Geographical Indications for Agricultural Products and Foodstuffs WT/DS290/R. 15 March 2005, the TBT necessity provisions were deemed inapplicable or unnecessary to consider.

179 EC-Trade Description of Sardines, WT/DS231/R, 29 May 2002, WT/DS231/AB/R, 26 September 2002 (EC-Sardines).

180 ibid, WT/DS231/AB/R, 286.

181 EC-Sardines, WT/DS231/R, para 7.118.

182 ibid para 7.120, (emphasis added).

183 ibid.

184 ibid para 7.121.

185 EC-Sardines, WT/DS231/AB/R, para 286.

186 See Neumann and Turk, above (n 45) 218.

187 Camilleri, above (n 97) 26.

188 EC-Sardines, WT/DS231/R, para 7.120.

189 ibid para 7.121 referring to Canada-Patent Protection of Pharmaceutical Products, WT/DS114/R, adopted 7 April 2000, para 7.69.

190 Art 3.2 of the DSU specifically endows the dispute settlement system with the responsibility for providing ‘security and predictability to the multilateral trading system’. Note, however, that the Working Party on Domestic Regulation recently reiterated that the necessity tests cannot be used interchangeably: WTO Secretariat WPDR Note ‘“Necessity Tests” in the WTO’, S/WPDR/W/27, 2 December 2003.

191 Part IIA(2).

192 Korea-Beef, WT/DS161.169/AB/R, para 162 (emphasis added).

193 See (n 181) and surrounding text.

194 Marceau and Trachtman (n 22) 850.

195 Dominican-Cigarettes, WT/DS302/R, para 7.209.

196 Korea-Beef, WT/DS161.169/AB/R, para 157 (emphasis added).

197 See (n 34) and following.

198 US-Shrimp, WT/DS58/AB/R, para 156.

199 ibid para 159.

200 ibid. Though the AB also mentioned that the balance was not fixed, in order to maintain consistency with its previous statements, this can only be interpreted to refer to the need for adjudicating bodies to be flexible in their application of art XX rather than providing the Panel or AB with the jurisdiction to shift the balance as it sees fit. Given the circumstances of the case (where the facts challenged the adjudicating bodies to assess the meaning of ‘exhaustible natural resources’ under art XX(g)), flexibility was required in order to give effect to the balance contained in the text of the treaty.

201 Part IIA(2).

202 US-Gasoline, WT/DS2/AB/R, 18.

203 See also, Colombia-Ports of Entry, WT/DS366/R.

204 See, for example, China-Publications and Audiovisual Products, WT/DS363/R.

205 Dominican-Cigarettes, WT/DS302/R, 7.215, (emphasis added).

206 Brazil-Tyres, WT/DS332/R, 7.108-7.114; WT/DS332/AB/R para.144; Van Calster also notes the absence of a substantive weighing process: Van Calster, G, ‘Faites vos jeux- Regulatory Autonomy and the World Trade Organisation after Brazil-Tyres’ (2008) 20 J Environ L 1 121, 133Google Scholar.

207 See generally GATT art XXI.

208 Brazil-Tyres, WT/DS332/AB/R, para. 144, citing the Panel Report at para 7.102.

209 Brazil-Tyres, WT/DS332/AB/R, para 137.

210 ibid para 146.

211 ibid para 150.

212 ibid para 151 (emphasis added).

213 ibid.

214 ibid para 155.

215 In rejecting the possible alternatives suggested by the EC, the AB noted that these measures ‘already figure as elements of a comprehensive strategy designed by Brazil to deal with waste tyres. Substituting one element of this comprehensive policy for another would weaken the policy by reducing the synergies between its components, as well as its total effect’: ibid para 172.

216 United States-Continued Suspension of Obligations in the EC-Hormones Dispute; WT/DS320/AB/R, Canada-Continued Suspension of Obligations in the EC-Hormones Dispute, WT/DS321/AB/R.

217 Marwell (n 16) 829.

218 ibid 828.

219 See Korea-Beef, Thai-Cigarettes, US-Gambling.

220 Osiro (n 84) 140.

221 ibid.

222 See Part II generally.

223 Neumann and Turk (n 45) 232.

224 ibid 232. Howse and Turk (n 2) 326.

225 ibid.

226 ibid.

227 See Kennet et al (n 64) 6–9.