Necessity Killed the GATT: Art XX GATT and the misleading rhetoric about 'weighing and balancing'
Title: Necessity Killed the GATT: Art XX GATT and the misleading rhetoric about 'weighing and balancing'
Author: FONTANELLI, Filippo
Citation: European Journal of Legal Studies, 2012, Vol. 5, No. 2, pp. 36-56
External link: http://www.ejls.eu/
Art XX GATT, listing the policy grounds available to WTO Members that wish to deviate from their GATT obligations, makes some of them conditional on a requirement of necessity in relation to the pursued interest. In their reports, Panels and the AB have developed the analysis of this element in two separate but interlaced tests: one whereby they allegedly perform an exercise of ‘weighing and balancing’ of the interests involved (a value-judgment), the other ascertaining the trade-restrictiveness of the measures challenged (an optimization analysis). It is submitted that an appraisal of the case-law demonstrates that this distinction is artificial, and most importantly, that no real balancing is ever performed - or in any event, relied on - to determine the outcome of a dispute (Claim 1). However, a diffuse trend of ‘strict proportionality’ is discernible in the case-law, not so much within the ‘weigh and balance’ analysis, but within the trade-restrictiveness test. The latter, therefore, is arguably less value-neutral than the quasi-judicial bodies would claim it to be, and then WTO Members tend to understand, when construing the necessity requirement (Claim 2).
Type of Access: openAccess