Article XX (B) - TLG

4/26/2020 Annotated Text
GATT 1994 -- Article XX(b)

"(b)"
Article Citator - Article XX(b)

Annotations - Article XX(b)
In order to determine whether a measure is justified under Article XX(b), a
Panel needs to examine: (i) whether the policy reflected in the measure falls
within the range of policies designed to achieve the objective of or, put
differently, or whether the policy objective is for the purpose of, "protect[ing]
human … life or health"; (ii) whether the measure is "necessary" to achieve
said objective; and (iii) whether the measure is applied in a manner
consistent with the chapeau of Article XX + All
European Communities - Conditions for the Granting of Tariff Preferences
to Developing Countries (DS246)
Whether the challenged measure falls within the range of policies designed
to protect human, animal or plant life or health + All
A panel must, first, determine whether the challenged measure falls
within the range of policies designed to protect human, animal or plant
life or health; Panels and the Appellate Body have examined both the
design and structure of a challenged measure to decide whether its
objective is the protection of life and health, generally showing a
degree of deference to Members' policies designed to "protect human,
animal or plant life or health"; a broad range of policies have been
recognized as protecting human, animal, and plant life or health, such
as the reduction of air pollution resulting from the consumption of
gasoline, and the reduction of the risks arising from the accumulation
of waste tyres; panels and the Appellate Body are not entitled to
question a Members' chosen level of protection; WTO Members enjoy
the right to determine the level of protection of health that they
consider appropriate in a given situation + All
China - Measures Related to the Exportation of Various Raw
Materials (DS394,DS395,DS398)
China - Measures Related to the Exportation of Rare Earths,
Tungsten and Molybdenum (DS431, DS432, DS433)
Must consider not only the express provisions of the measure, but
also the design, architecture and structure of the measure + All
European Communities - Conditions for the Granting of Tariff
Preferences to Developing Countries (DS246)
This determination should be done in light of the design and nature
of the challenged measures + All
Members are not limited in justifying their measures under Article
XX(b) to producing one or more instruments stating explicitly that a
challenged measure has been put in place because it is necessary to
protect human, animal or plant life or health, or that such instrument
details the manner in which its objective will be achieved; however, a
Member must do more than simply produce a list of measures
referring, inter alia, to environmental protection and polluting products;
https://www.tradelawguide.com/AnnotDocument?toc=annotSection&agreementID=40&tabcontent=yes&cat= 1/77
a Member must be able to show how these instruments fulfil the

objective it claims to address + All
There is no requirement under Article XX(b) to quantify, as such, the
risk to human life or health; a risk may be evaluated either in
quantitative or qualitative terms + All
European Communities - Measures Affecting Asbestos and
Asbestos-Containing Products (DS135)
Findings on specific measures + All
The mining and production of rare earths, tungsten, and
molybdenum have caused grave harm to the environment in
China, and, as a consequence, to the health of humans, animals
and plants in China; the mere assertion by China that the export
duties form part of a broader "comprehensive policy for
environmental protection" in China is not sufficient to
demonstrate that the export duties themselves are measures
"designed to achieve" this objective; China must show
persuasive evidence of a connection between environmental
protection standards and export restrictions; the mere fact that
the export of such products would be taxed does not
demonstrate the existence of a link between such taxes and the
goal of reducing pollution; the measures imposing export duties
on rare earths, tungsten, and molybdenum indicate no link
between the duties and any environmental or health objective;
evidence seemed to indicate that the export duties at issue
designed and structured to promote increased domestic
production of high value-added downstream products that use
the raw materials at issue as inputs; export duties do not apply
to most downstream, value-added products derived from rare
earth, molybdenum, or tungsten materials; China failed to
demonstrate that its export duties are designed and structured
to protect human, animal or plant life or health + All
Measures imposing export restrictions on energy intensive,
highly polluting, resource-based products" (EPR products)-- i.e.,
export duties on manganese metal, magnesium metal and coke
and export quotas on coke and silicon carbide- do not make any
mention of environmental or health concerns; China referenced
a long list of plans, circulars, arrangements, guidelines, laws,
rules and policies that evidenced its considerable efforts to
regulate in the interest of protecting the environment; while all
are evidence of China's impressive efforts, they do not evidence
a comprehensive framework aimed at addressing environmental
protection and health; more importantly, they do not establish
that the export measures at issue form part of any such
framework; panel concluded that neither the measures
implementing the export restrictions, nor the contemporaneous
laws and regulations, convey in their texts that the export
restrictions are contributing to, or form part of, a comprehensive
programme for the fulfilment of its stated environmental
objective; the collection of documents only seems to constitute a
policy goal declaration, but does not set out how such
environmental goals might be implemented; China unable to
substantiate its claim that its export restrictions on EPRs or
scrap products are part of a comprehensive programme
maintained in order to reduce pollution resulting from the
production of EPRs + All
The objective of the Import Ban is the reduction of the
"exposure to the risks to human, animal or plant life or health
arising from the accumulation of waste tyres + All
Brazil - Measures Affecting Imports of Retreaded Tyres
(DS332)
The policy reflected in the Drug Arrangements is not one
designed for the purpose of protecting human life or health in
the European Communities and, therefore, the Drug
Arrangements are not a measure for the purpose of protecting
human life or health under Article XX(b) + All
The evidence tends to show that handling chrysotile-cement
products constitutes a risk to health rather than the opposite; the
EC has made a prima facie case for the existence of a health
risk in connection with the use of chrysotile, in particular as
regards lung cancer and mesothelioma in the occupational
sectors downstream of production and processing and for the
public in general in relation to chrysotile-cement products; the
policy of prohibiting chrysotile asbestos implemented by the
Decree falls within the range of policies designed to protect
human life or health; the measure falls within the category of
measures embraced by Article XX(b) + All
A policy to reduce air pollution resulting from the consumption
of gasoline is a policy within the range of those concerning the
protection of human, animal and plant life or health mentioned in
Article XX(b) + All
United States - Standards for Reformulated and Conventional
Gasoline (DS2)
Nothing in the text of the regulations implementing this
measure and, in particular, Articles 5 and 8 of MOA 86/2013,
refers to the protection of human, animal or plant life or health
as the policy objective of this measure; on the contrary, this
regulation refers generally to the simplification of the "import
process of horticulture products" and to "providing certainty in
the servicing of Import Recommendation of Horticulture
Products" as its rationale; no connection with human, animal or
plant life or health that could lead panel to conclude that
Measure 4 is "not incapable" of protecting human, animal or
plant life or health; measure appears to relate mainly to import
procedures and specifically govern the timing when some
products might enter Indonesia's customs territory; the evidence
points to the objective as being to ensure that no importation

takes place unless Indonesian authorities deem domestic
production insufficient to fulfill domestic demand; Indonesia has
not demonstrated that there is a relationship between Measure 4
and the protection of human, animal or plant life or health;
Indonesia has not demonstrated that Measure 4 is provisionally
justified under subparagraph (b) of Article XX + All
Indonesia - Importation of Horticultural Products, Animals and
Animal Products (DS477, DS478)
measure and, in particular, Article 8(1)(e) of MOT 16/2013, as
amended, and Article 8(2)(c) of MOA 86/2013, as amended,
refers to the protection of human, animal or plant life or health
as the policy objective of Measure 5; the text of regulation does
not lend itself to a conclusion that it was formulated to protect
human, animal or plant life or health or to address Indonesia's
alleged concerns on the oversupply of some products during the
harvest periods and its effects on public health; no support in the
text of this regulation to conclude that Measure 5 was designed
to ensure that fruits, vegetable and meat products for
consumption are safe, nutritious and of good quality, using
proper cold chain systems; no connection with human, animal or
plant life or health that could lead us to conclude that Measure 5
is "not incapable" of protecting human, animal or plant life or
health; Indonesia has not demonstrated that there is a
relationship between Measure 5 and the protection of human,
animal or plant life or health; Indonesia has not demonstrated
that Measure 5 is provisionally justified under subparagraph (b)
of Article XX + All
The wording of the provisions does not indicate that the
objective of the restrictions is to protect food safety with respect
to horticultural products; goal appears to be the protection of
consumers, promotion of business certainty and transparency,
and the simplification of the licensing process and the
administration of imports; although the text does mention the
protection of consumers, no reference indicating that such
protection is specifically against food safety risks; no connection
with human, animal or plant life or health that could lead us to
conclude that Measure 6 is "not incapable" of protecting human,
animal or plant life or health; Indonesia has not demonstrated
that there is a relationship between Measure 6 and the
protection of human, animal or plant life or health; Indonesia has
not demonstrated that Measure 6 is provisionally justified under
subparagraph (b) of Article XX + All
measure and, in particular, Article 5(4) of MOA 86/2013 and by
Article 14B of MOT 16/2013, as amended, refers to food safety
or food security as policy objectives; the text of these regulations
rather points to objectives that are not related to those policies;
no connection with food safety or food security that could lead
us to conclude that Measure 7 is "not incapable" of protecting

human, animal or plant life or health; Indonesia has not
demonstrated that there is a relationship between Measure 7
and the protection of human, animal or plant life or health;
Indonesia has not demonstrated that Measure 7 is provisionally
justified under subparagraph (b) of Article XX + All
Nothing in the text of the regulations refers to the protection of
human, animal or plant life or health as the policy objective of
this measure; on the contrary, MOA 86/2013 refers generally to
simplification of the "import process of horticulture products" and
to "providing certainty in the servicing of Import
Recommendation of Horticulture Products" as its rationale; food
safety, in the sense of consumers' access to fresh, nutritious,
chemical- and preservative-free horticultural products, is
associated with the storage of certain horticultural products for
more than six months after harvest; thus, in prohibiting the
importation of horticultural products harvested more than six
months before importation, Indonesia may be said to be
pursuing, at least in the sense that Indonesia describes food
safety, a food safety objective in connection with some products;
Measure 8 is not incapable of protecting food safety by
prohibiting imports of horticultural goods that may be unsafe for
human consumption, and this would therefore indicate the
existence of a relationship between this measure and the
protection of human, animal or plant life or health; although not
all horticultural products harvested more than six months prior to
their importation pose a threat to food safety, the existence of a
number of horticultural products that do is sufficient for us to
conclude that there is a relationship between Measure 8 and the
objective of food safety, and that Measure can be said to have
been designed, at least in part, to protect human health + All
Sufficient evidence to demonstrate that there is a risk for
human life and health caused by car accidents and increasing
vehicle safety contributes to protecting human life and health, by
contributing to a lower number of casualties; increasing vehicle
safety is one of the policies covered by subparagraph (b) of
Article XX, given that it can fall within the range of policies that
protect human life or health; the reduction of CO2 emissions is
one of the policies covered by subparagraph (b) of Article XX,
given that it can fall within the range of policies that protect
human life or health; increasing vehicle safety and the reduction
of CO2 emissions are policy objectives that are covered by
subparagraph (b) of Article XX; the discriminatory aspects of the
INOVAR-AUTO programme are not incapable of contributing to
vehicle safety and the reduction of CO2 emissions; it is not
inconceivable to the Panel that under certain circumstances, the
discriminatory aspects of the INOVAR-AUTO programme could
indeed contribute to the claimed objectives in a manner similar
to that explained by Brazil; it is conceivable that the protection
afforded to domestic producers by the discriminatory aspects of
the measure could enable such domestic producers to develop
their industry; the development of the industry could enable an

otherwise uncompetitive domestic industry to become
competitive, resulting in technological development within the
industry, and ultimately enabling the domestic industry to
produce more energy-efficient and safer motor vehicles;
ultimately, by elevating the domestic industry from a position of
technological and competitive inferiority to a position in which
the domestic industry could compete with foreign motor
vehicles, the INOVAR-AUTO programme could conceivably
contribute in the long-run to overall vehicle safety as well as
overall reductions in CO2 emissions; the measure is not
incapable of contributing to the objective of increasing vehicle
safety and reducing CO2 emissions, and therefore could
potentially contribute to these objectives; the measure is
designed to protect human life and health within the meaning of
Article XX(b) + All
Brazil - Certain Measures Concerning Taxation and Charges
(DS472, DS497)
Indonesia has demonstrated the existence of a risk arising
from thawing frozen chicken at tropical temperatures; while
Brazil has submitted a scientific publication demonstrating that
there is no such risk, that publication, at best, represents a
divergent view; the existence of a divergent view would not
prevent Indonesia from relying on the above view which, as the
evidence shows, happens to be the currently prevailing view in
science; Indonesia has established that there is a risk to human
health arising from thawing meat at tropical temperatures; the
intended use requirement completely prevents the sale of
imported frozen chicken in traditional markets; to the extent that
no frozen chicken can be sold in such markets, no risks from
thawing such chicken can possibly arise; viewed this way, the
measure must be considered "not incapable" of achieving the
objective of protecting human health; that it also prevents the
sale of frozen chicken that is perfectly safe, is a question that
matters to the necessity analysis; there is a relationship between
the intended use requirement and the objective of protecting
human health + All
Indonesia - Measures Concerning the Importation of Chicken
Meat and Chicken Products (DS484)
Meaning of "protect" + All
The meanings of "protect" and "protection" are elaborated upon in
the context of: + All
Article XX + All
The ordinary meaning of the verb "protect" includes "defend or
guard against injury or danger, shield from attack or assault,
support, assist …, keep safe, take care of …"; the meaning of "to
protect" in a given provision also requires taking into account the
context in which the phrase is used; the phrase "to protect" is
used in three subparagraphs of Article XX that concern the
"protection" of different non-economic interests and concerns:
Article XX(a) talks of measures "necessary to protect public
morals", Article XX(b) is concerned with measures "necessary to
protect human, animal or plant life or health", and Article XX(f)
talks of measures "imposed for the protection of national

treasures of artistic, historic or archaeological value" + All
European Communities - Measures Prohibiting the Importation and
Marketing of Seal Products (DS400,DS401)
Article XX(a) + All
In order to assess whether a measure has been adopted or
enforced "to protect public morals" or, in other words, whether it is
designed to "protect public morals", it is first necessary to know
the measure's objective; the panel should take into account all the
evidence available to it, including the texts of statutes, legislative
history, and other evidence regarding the structure and operation
of the measure; the objective of a measure could be discerned
from its design, architecture and revealing structure, with
consideration given to all the relevant facts and all the relevant
circumstances of the case; necessary to assess whether the
policy objective pursued by the measure is included among the
series of policies designed to protect public morals; a connection
between the compound tariff and the alleged objective of
combating money laundering has not been demonstrated; when
the relevant facts and relevant circumstances of the case are
taken into account, the design, architecture and revealing
structure of the compound tariff, including the way in which the
price thresholds were determined, the way in which the
compound tariff is applied, the tariff exemptions, the period of
validity of the measure, and the lack of automatic measures for
following up the imports affected, do not make it possible to
conclude that there is a relationship between the compound tariff
and the declared objective of combating money laundering;
Colombia has failed to demonstrate that the compound tariff is
designed to combat money laundering + All
Colombia - Measures Relating to the Importation of Textiles,
Apparel and Footwear (DS461)
The notion of risk in the context of Article XX(b) is difficult to
reconcile with the subject matter of protection under Article XX(a),
namely, public morals; while the focus on the dangers or risks to
human, animal, or plant life or health in the context of Article
XX(b) may lend itself to scientific or other methods of inquiry, such
risk-assessment methods do not appear to be of much assistance
or relevance in identifying and assessing public morals; the term
"to protect", when used in relation to "public morals" under Article
XX(a), does not require a panel to identify the existence of a risk
to EU public moral concerns regarding seal welfare + All
No requirement that a responding Member must regulate
similar public moral concerns in similar ways for the purposes of
satisfying the requirement "to protect" public morals under Article
XX(a); Members have the right to determine the level of
protection that they consider appropriate, which suggests that
Members may set different levels of protection even when
responding to similar interests of moral concern; even if Canada
were correct that the European Union has the same moral
concerns regarding seal welfare and the welfare of other animals,
and must recognize the same level of animal welfare risk in seal
hunts as it does in its slaughterhouses and terrestrial wildlife
hunts, the European Union was not required by Article XX(a)to
address such public moral concerns in the same way + All
Article XX(b) + All
In EC – Asbestos, in addressing the term "to protect" in Article
XX(b), the panel noted that "the notion of 'protection' … impl[ies]
the existence of a health risk"; Article XX(b) focuses on the
protection of "human, animal or plant life or health"; it may be that
the protection of human, animal, or plant life or health implies a
particular focus on the protection from or against certain dangers
or risks; for example, the concepts of "risk" and "protection" are
expressly reflected in the SPS Agreement, which elaborates rules
for the application of Article XX(b) + All
Members have the right to determine the level of protection that
they consider appropriate; although panel had to examine the
particular health risk posed by chrysotile asbestos fibres, it was
not required to assess France's choice to protect its population
against that risk + All
Whether the measure is "necessary" to fulfil the invoked policy objective +
All
The meaning of "necessary" is elaborated upon in the context of: +
All
The meaning of "necessary" is discussed in the context of "Necessity
Tests in the WTO" (Note by the Secretariat)
Article XVIII:9 + All
The "necessity" test (the requirement that measures may not
exceed what is necessary to address the balance-of-payments
situation) is also found in Article XVIII:9 of GATT 1994 + All
India – Quantitative Restrictions on Imports of Agricultural, Textile
and Industrial Products (DS90)
Article XX (generally) + All
It is the necessity of the WTO-inconsistent measure that must
be examined, not the necessity of the policy goal + All
It was not the necessity of the policy goal that was to be
examined, but whether or not it was necessary that imported
gasoline be effectively prevented from benefitting from as
favourable sales conditions as were afforded by an individual
baseline tied to the producer of a product; it was the task of the

Panel to address whether these inconsistent measures were
necessary to achieve the policy goal under Article XX(b); it was
not the task of the Panel to examine the necessity of the
environmental objectives of the Gasoline Rule, or of parts of
the Rule that the Panel did not specifically find to be
inconsistent with the General Agreement + All
Gasoline (DS2)
When Article XX(d) is invoked to justify an inconsistency with
Article III:4, what must be shown to be "necessary" is the
treatment giving rise to the finding of less favourable treatment;
thus, when less favourable treatment is found based on
differences in the regulation of imports and of like domestic
products, the analysis of an Article XX(d) defence should focus
on whether those regulatory differences are "necessary" to
secure compliance with "laws or regulations" that are not
GATT-inconsistent; must justify the differential treatment
afforded to imported versus domestic products under the
measure + All
Thailand - Customs and Fiscal Measures on Cigarettes from the
Philippines (DS371)
It is the WTO-inconsistent measure that a responding party
seeks to justify which must be "necessary" + All
China - Measures Affecting Trading Rights and Distribution
Services for Certain Publications and Audiovisual Entertainment
Products (DS363)
An assessment of "necessity" involves "weighing and
balancing" a number of distinct factors relating both to the
measure sought to be justified as "necessary" and to possible
alternative measures that may be reasonably available to the
responding Member to achieve its desired objective; a
comprehensive analysis of the "necessity" of a measure is a
sequential process; as such, the process must logically begin with
a first step, proceed through a number of additional steps, and
yield a final conclusion + All
Products (DS363)
In analyzing the "necessity" of a measure, a panel cannot
simultaneously assess all relevant factors and undertake the
necessary "weighing and balancing" with respect to the contested
measure and proposed alternative measures; an assessment of
"necessity" involves "weighing and balancing" a number of distinct
factors relating both to the measure sought to be justified as
"necessary" and to possible alternative measures that may be
reasonably available to the responding Member to achieve its
desired objective; once a panel has identified the factors to be
weighed and balanced, a comparison of the challenged measure
and possible alternatives should be undertaken, and the results
considered in the light of the importance of the objective
pursued + All

Products (DS363)
In the context of Article XX of the GATT 1994 and Article XIV of
the GATS, "necessity" is determined on the basis of weighing and
balancing a number of factors; the word "necessary" refers to a
range of degrees of necessity, depending on the context in which
it is used; at one end of this continuum lies "necessary"
understood as "indispensable"; at the other end, is "necessary"
taken to mean as "making a contribution to"; a "necessary"
measure is, in this continuum, located significantly closer to the
pole of "indispensable" than to the opposite pole of simply
"making a contribution to"; it is conceptually useful to distinguish
the degree of contribution that informs the weighing and
balancing exercise, from the question of where on the continuum
the necessity of that measure lies following such a weighing and
balancing exercise; the above statements can be understood in
this context to refer to the latter question + All
United States - Certain Country of Origin Labelling (DS384,
DS386)
United States - Measures Concerning the Importation, Marketing
and Sale of Tuna and Tuna Products (DS381)
Korea - Measures Affecting Imports of Fresh, Chilled and Frozen
Beef (DS161, DS169)
The weighing and balancing is a holistic operation that involves
putting all the variables of the equation together and evaluating
them in relation to each other after having examined them
individually, in order to reach an overall judgement + All
Brazil - Measures Affecting Imports of Retreaded Tyres (DS332)
No pre-determined thresholds in respect of any particular factor
when conducting holistic necessity analysis + All
Appellate Body in Brazil – Retreaded Tyres was careful not
to suggest that its approach in that dispute was requiring the
use of a generally applicable threshold for a contribution
analysis; the Appellate Body was making the more limited
statement that "when a measure produces restrictive effects on
international trade as severe as those resulting from an import
ban, it would be difficult for a panel to find that measure
necessary unless it is satisfied that the measure is apt to make
a material contribution to the achievement of its objective"; the
Appellate Body did not set out a generally applicable standard
requiring the use of a pre-determined threshold of contribution
in analysing the necessity of a measure under Article XX; a
necessity analysis involves a "holistic" weighing and balancing
exercise that involves putting all the variables of the equation
together and evaluating them in relation to each other after
having examined them individually, in order to reach an overall
judgement; a measure's contribution is thus only one

component of the necessity calculus; this means that whether
a measure is "necessary" cannot be determined by the level of
contribution alone, but will depend on the manner in which the
other factors of the necessity analysis, including a
consideration of potential alternative measures, inform the
analysis; it will also depend on the nature, quantity, and quality
of evidence, and whether a panel's analysis is performed in
quantitative or qualitative terms; the very utility of examining
the interaction between the various factors of the necessity
analysis, and conducting a comparison with potential
alternative measures, is that it provides a means of testing
these factors as part of a holistic weighing and balancing
exercise, whether quantitative or qualitative in nature; the
flexibility of such an exercise does not allow for the setting of
pre-determined thresholds in respect of any particular factor; if
the level of contribution alone cannot determine whether a
measure is necessary or not, mandating in advance a pre-
determined threshold level of contribution would not be
instructive or warranted in a necessity analysis + All
European Communities - Measures Prohibiting the Importation
and Marketing of Seal Products (DS400,DS401)
The weighing and balancing process for assessing necessity
involves two steps: (i) a panel must first determine whether the
measure is "necessary" by examining all relevant factors; and (ii)
if it makes a preliminary conclusion that it is necessary, this result
must be confirmed by comparing the challenged measure with
possible alternatives + All
Under the necessity analysis, there is a need to identify
relevant factors and undertake a weighing and balancing
process including, where relevant, with respect to proposed
alternative measures that may be less trade restrictive while
making an equivalent contribution to the relevant objective +
All
Products (DS363)
Where there is a preliminary conclusion that the measure is
necessary, this result must be confirmed by comparing the
challenged measure with possible alternatives suggested by
the complainants; while the responding Member must show
that a measure is necessary, it does not have to show, in the
first instance, that there are no reasonably available
alternatives to achieve its objectives + All
Products (DS363)
In order to determine whether a measure is "necessary"
within the meaning of Article XX(b), a panel must assess all the
relevant factors, particularly the extent of the contribution to the
achievement of a measure's objective and its trade
restrictiveness, in the light of the importance of the interests or

values at stake; if this analysis yields a preliminary conclusion
that the measure is necessary, this result must be confirmed by
comparing the measure with its possible alternatives, which
may be less trade restrictive while providing an equivalent
contribution to the achievement of the objective pursued; it
rests upon the complaining Member to identify possible
alternatives to the measure at issue that the responding
Member could have taken; while the responding Member must
show that a measure is necessary, it does not have to show, in
the first instance, that there are no reasonably available
Products (DS363)
In the context of the general exception in Article XVI(a) of the
GATS, it is not the responding party's burden to show, in the
alternatives to achieve its objectives; in particular, a responding
party need not identify the universe of less trade-restrictive
alternative measures and then show that none of those
measures achieves the desired objective; the WTO
agreements do not contemplate such an impracticable and,
indeed, often impossible burden; it is for a responding party to
make a prima facie case that its measure is "necessary" by
putting forward evidence and arguments that enable a panel to
assess the challenged measure in the light of the relevant
factors to be "weighed and balanced" in a given case; the
responding party may, in so doing, point out why alternative
measures would not achieve the same objectives as the
challenged measure, but it is under no obligation to do so in
order to establish, in the first instance, that its measure is
"necessary"; if the panel concludes that the respondent has
made a prima faciecase that the challenged measure is
"necessary"— that is, "significantly closer to the pole of
'indispensable' than to the opposite pole of simply 'making a
contribution to- then a panel should find that challenged
measure "necessary"; if, however, the complaining party raises
a WTO-consistent alternative measure that, in its view, the
responding party should have taken, the responding party will
be required to demonstrate why its challenged measure
nevertheless remains "necessary" in the light of that alternative
or, in other words, why the proposed alternative is not, in fact,
reasonably available + All
United States - Measures Affecting the Cross-Border Supply of
Gambling and Betting Services (DS285)
Whether both steps of the assessment must be undertaken, the
sequence of those steps, and a "holistic" approach + All
The weighing and balancing exercise can be understood as
a holistic operation that involves putting all the variables of the
equation together and evaluating them in relation to each other
after having examined them individually, in order to reach an
overall judgement + All

Whether a particular degree of contribution is sufficient for a
measure to be considered "necessary" cannot be answered in
isolation from an assessment of the degree of the measure's
trade-restrictiveness and of the relative importance of the
interest or value at stake; for example, a measure making a
limited contribution to protecting public morals may be justified
under Article XX(a) in circumstances where the measure has
only a very low trade-restrictive impact, taking into account the
importance of the specific interest or value at stake; similarly, it
may be that a measure making a significant contribution is not
justified under Article XX(a) if that measure is highly trade
restrictive; thus, if a panel finds some degree of contribution,
but ceases to analyse the other factors (the degree of trade-
restrictiveness and the relative importance of the interest or
value at stake), a weighing and balancing exercise cannot be
conducted, and thus a proper consideration of a respondent's
defence that the measure is necessary is foreclosed + All
[TLG Editorial Note: The following reasoning was presented
in the context of Article 2.2 of the TBT Agreement but appears
applicable to "necessity" under the GATT 1994 and GATS] The
sequence and order is discernible both in the Appellate Body's
past analyses in respect of Article 2.2 of the TBT Agreement,
as well as in the relevant jurisprudence relating to Article XX of
the GATT 1994 and Article XIV of the GATS; the particular
manner of sequencing the steps of the necessity analysis is
adaptable, and may be tailored to the specific claims,
measures, facts, and arguments at issue in a given case; the
sequence and order of analysis appropriate in a given case
may depend on the characteristics of the technical regulation
at issue as revealed through its design and structure, as well
as on the nature of the objective pursued and the quantity,
quality, and availability of evidence; it may also depend on
which elements are the focus of contention between the
disputing parties, and which, if any, are conceded or
undisputed between the parties; this adaptability of the
sequence or order is indicative of a holistic weighing and
balancing of all relevant factors; in the context of Article XX of
the GATT 1994, the sequence and order of analysis in the
circumstances of Brazil – Retreaded Tyres called for a
"preliminary conclusion" on the necessity of the challenged
measure before proceeding to a comparison with proposed
alternatives, whereas such a "preliminary conclusion" was not
considered to be a requisite aspect of the sequence and order
of analysis in the circumstances of EC – Seal Products + All
DS386)
In most cases, a comparison between the challenged
measure and possible alternatives should then be undertaken;
while there may be circumstances in which a weighing and
balancing exercise would not require that a panel proceed to
evaluate alternative measures (for instance, when the

challenged measure is not trade restrictive, or when it makes
no contribution to the objective), such an exercise does not
mandate a preliminary determination of the necessity of the
challenged measure before proceeding to assess those
alternatives; a preliminary determination of necessity is not
required before proceeding to compare the challenged
measure with possible alternatives + All
Examining whether a measure is "necessary" is a process in
which the following factors should be weighed and balanced
holistically: a. the importance of the objective, b. the
contribution of the measure to the achievement of the objective
pursued, c. the trade-restrictiveness of the measure, and d. if
the preliminary conclusion is that the measure is necessary,
the result should be confirmed by comparing the challenged
measure with possible, reasonably available, WTO-consistent
or less inconsistent alternatives that could have less trade-
restrictive effects while making an equivalent contribution to
the achievement of the objective pursued + All
Assessing the necessity of a measure in the light of all relevant
factors + All
Determining whether a measure is "necessary" involves a
process of weighing and balancing a series of factors that
prominently include the contribution made by the measure to
secure compliance with the law or regulation at issue, the
importance of the common interests or values protected by that
law or regulation, and the accompanying impact of the law or
regulation on imports or exports + All
Products (DS363)
The issue of whether a measure is necessary should be
determined through a process of weighing and balancing a
series of factors; two factors that, in most cases, will be
relevant to a panel's determination of the necessity of a
measure are the contribution of the measure to the realization
of the ends pursued by it and the restrictive impact of the
measure on international commerce; a panel's analysis of
"necessity" must include consideration of whether a WTO-
consistent alternative measure which the Member concerned
could reasonably be expected to employ is available + All
Thailand - Customs and Fiscal Measures on Cigarettes from the
Philippines (DS371)
The contribution of the measure to the realization of the ends
pursued by it + All
A panel's duty is to assess, in a qualitative or quantitative
manner, the extent of the measure's contribution to the end
pursued, rather than merely ascertaining whether or not the

measure makes any contribution + All
A party seeking to demonstrate that its measures are
"necessary" should seek to establish such necessity through
"evidence or data, pertaining to the past or the present",
establishing that the measures at issue contribute to the
achievement of the objectives pursued; in examining the
evidence put forward, a panel must always assess the
actual contribution made by the measure to the objective
pursued; this is not the only type of demonstration that could
establish such a contribution; a panel is not bound to find
that a measure does not make a contribution to the
objective pursued merely because such contribution is not
immediately observable or because, in the short-term, it
may prove difficult to isolate the contribution made by one
specific measure from those attributable to the other
measures that are part of the same comprehensive policy; a
panel might conclude that a measure is necessary on the
basis of a demonstration that it is apt to produce a material
contribution to the achievement of its objective; this
demonstration could consist of quantitative projections in
the future, or qualitative reasoning based on a set of
hypotheses that are tested and supported by sufficient
evidence + All
Services for Certain Publications and Audiovisual
Entertainment Products (DS363)
The greater the contribution a measure makes to the
objective pursued, the more likely it is to be characterized
as "necessary" + All
There is no generally applicable standard requiring the
use of a pre-determined threshold of contribution in
analysing the necessity of a measure under Article XX;
since a measure's contribution is only one component of the
necessity calculus under Article XX, the assessment of
whether a measure is "necessary" cannot be determined by
the degree of contribution alone, but will depend on the
manner in which the other factors of the "necessity"
standard inform the analysis + All
A panel's approach to the contribution analysis is
appropriately guided by the particular circumstances of the
case and the evidence at issue, and that a panel will have
certain, but not unbounded, discretion is designing that
approach; a panel's contribution analysis can be done either
in quantitative or in qualitative terms + All
European Communities - Measures Prohibiting the

Importation and Marketing of Seal Products (DS400,DS401)
The accompanying restrictive impact of the law or regulation
on imports or exports + All
A panel must seek to assess the degree of a measure's
trade-restrictiveness, rather than merely ascertaining
whether or not the measure involves some restriction on
trade; the examination of a measure's trade-restrictiveness
may be done in a qualitative or quantitative manner + All
In assessing the restrictive effect of a measure on
international commerce, this test must be applied in the light
of the specific obligation of the covered agreements that the
respective measure infringes; the assessment of the
restrictive effect to be taken into account in a particular
dispute may, in appropriate cases, extend beyond an
assessment of the restrictive effect on imported products, as
this assessment must be undertaken in the light of the
measure at issue, the specific obligation of the covered
agreements that the measure infringes, and the defence
being invoked + All
A measure with a relatively slight impact upon imported
products might more easily be considered as 'necessary'
than a measure with intense or broader restrictive effects +
All
The less restrictive the effects of the measure, the more
likely it is to be characterized as "necessary"; if a Member
chooses to adopt a very restrictive measure, it will have to
ensure that the measure is carefully designed so that the
other elements to be taken into account in weighing and
balancing the factors relevant to an assessment of the
"necessity" of the measure will "outweigh" such restrictive
effect + All
The trade-restrictiveness of a measure is closely linked to
the extent of the measure's contribution to the objective that
must be proved in assessing the overall necessity of a
measure in the context Article XX of the GATT 1994 + All
Importation and Marketing of Seal Products (DS400, DS401)
Trade restrictiveness of measure + All
The meanings of "prohibitions or restrictions",

"quantitative restrictions", "import restrictions" and
"disguised restrictions" are elaborated upon in the
context of: + All
Article XI ("quantitative restrictions") + All
Article XI:1 ("prohibitions or restrictions other than
duties, taxes or other charges") + All
Article XI:2(a) ("export prohibitions or restrictions") + All
Article XI:2(c) ("import restrictions") + All
Article XIII ("quantitative restrictions") + All
Article XIII:1 ("prohibition or restriction") + All
Article XX ("disguised restriction on international
trade") + All
"Arbitrary discrimination", "unjustifiable
discrimination" and "disguised restriction" on
international trade may be read side-by-side; they
impart meaning to one another + All
The fundamental theme is to be found in the
purpose and object of avoiding abuse or
illegitimate use of the exceptions to substantive
rules available in Article XX + All
United States - Standards for Reformulated and
Conventional Gasoline (DS2)
"disguised restriction" includes
disguised discrimination in international trade + All
Generally + All
This appears to signify that the word
"restriction" should not be given a narrow
meaning + All
European Communities - Measures Affecting
Asbestos and Asbestos-Containing Products
(DS135)
Concealed or unannounced restriction or
discrimination in international trade does not
exhaust the meaning of "disguised restriction" + All
Generally + All
This seems to imply that a measure that was
not published would not satisfy the requirements
of the second proposition of the introductory
clause of Article XX + All
(DS135)
"disguised restriction" may properly be read as
embracing restrictions amounting to arbitrary or
unjustifiable discrimination in international trade
taken under the guise of a measure formally within
the terms of an exception listed in Article XX + All
A restriction need not be formally "hidden" or
"dissimulated" in order to constitute a disguised
restriction on international trade within the meaning
of the chapeau + All
Brazil – Measures Affecting Imports of Retreaded
Tyres (DS332)
The kinds of considerations pertinent in deciding
whether the application of a particular measure
amounts to "arbitrary or unjustifiable discrimination"
may also be taken into account in determining the
presence of a "disguised restriction" on
international trade + All
The key to understanding what is covered by
"disguised restriction on international trade" is not
so much the word "restriction", inasmuch as, in
essence, any measure falling within Article XX is a
restriction on international trade, but the word
"disguised" + All
(DS135)
Three elements need to exist for a violation to
arise under this part of the chapeau: (a) first, this
assessment relates to the manner in which the
measure is applied; (b) secondly, the measure is
applied in a manner that would constitute
a restriction on international trade; and (c) thirdly, a
violation arises if this restriction on international
trade is disguised + All
Tyres (DS332)
Panel of the view that the standard of "disguised
restriction" under the chapeau differs from the
standard of "prohibition or restriction" referred to in
Article XI:1 of GATT 1994 + All
Tyres (DS332)
Panel not of the view that a single test might
uniformly apply in all cases to determine the
existence of a "disguised restriction on international

trade" + All
Tyres (DS332)
The existence of a "disguised restriction on
international trade" might be derived from a variety
of situations where a restriction on international
trade, arising in the application of a measure
provisionally justified under a specific paragraph of
Article XX, would lead to that exception being
abused or illegitimately used + All
Tyres (DS332)
No single element will necessarily be
determinative in each and every case, and that a
range of factors may be relevant to our
determination + All
Tyres (DS332)
An examination of intent may be helpful in
determining whether a measure is applied in a
manner that constitutes a disguised restriction, in
that it may reveal whether a restriction which
formally meets the requirements of Article XX(b) is
in fact only a disguise to conceal the pursuit of
trade-restrictive objectives + All
Tyres (DS332)
(DS135)
Appellate Body rejected the approach of a panel
that conditioned a finding of a disguised restriction
on international trade on the existence of significant
imports of the product at issue that would
undermine the achievement of the objective of the
measure + All
Tyres (DS332)
Appellate Body reversed panel finding that
imports of the products at issue through court
injunctions have resulted in the measure at issue
(an import ban) being applied in a manner that
constitutes a disguised restriction on international
trade only to the extent that these imports are
taking place in such quantities that they significantly
undermine the objective of the measure; panel had
found that, since imports of the product at issue
have been taking place in such amounts that the
achievement of the Member's declared objective is
being significantly undermined, the measure at
issue is being applied in a manner that constitutes a

disguised restriction on international trade + All
Tyres (DS332)
Quota utilization can be a relevant factor in
establishing the existence and nature of a quota's
restrictive effects; the fact that the quota was not
filled does not necessarily mean that there was no
restriction on foreign consumers accessing certain
rare earth elements, leading to instances of
discrimination + All
China - Measures Related to the Exportation of
Rare Earths, Tungsten and Molybdenum (DS431,
DS432, DS433)
The eligibility criteria are applied in a manner that
does not constitute a disguised restriction on trade;
setting on dolphins is a "particularly harmful" fishing
method, and other fishing methods do not cause
the same kinds of unobserved harms to dolphins as
are caused by setting on dolphins, although they
may, in some circumstances, cause the same kinds
of observed harms; the eligibility criteria are in line
with the fundamental rationale and objective of the
amended tuna measure, i.e. to contribute to the
protection of dolphins; any restrictions they cause
are directly connected to the main goal of the
amended tuna measure and therefore cannot be
considered "disguised"; this aspect of the measure
is not inconsistent with the requirements of the
chapeau + All
United States - Measures Concerning the
Importation, Marketing and Sale of Tuna and Tuna
Products (DS381)
Article XX (assessment of the restrictive effect of a
measure in context of necessity test) + All
The assessment of the restrictive effect of a measure
on international trade is part of the "weighing and
balancing" approach for assessing "necessity"—
including within the meaning of Article XX(a); the text
of Article XX(a) refers only to measures "necessary to
protect public morals" and does not provide explicit
guidance on the question of whether, in assessing
"necessity", a panel may take into account only the
restrictive effect the measures have on imports of
relevant products, or whether a panel may also
consider the restrictive effect of the measures on
importers or potential importers; while in principle a
panel must assess the restrictive effect of a measure
on international commerce, this test must be applied in
the light of the specific obligation of the covered
agreements that the respective measure infringes; the
assessment of the restrictive effect to be taken into
account in a particular dispute may, in appropriate
cases, extend beyond an assessment of the restrictive

effect on imported products, as this assessment must
be undertaken in the light of the measure at issue, the
specific obligation of the covered agreements that the
measure infringes, and the defence being invoked;
measures inconsistent with, inter alia, China's
obligation in paragraph 5.1 of its Accession Protocol to
grant the right to trade to all enterprises with respect to
goods which is not only concerned with the question of
what can be traded, but more directly with the question
of who is entitled to engage in trading; no error in the
Panel's tailoring its assessment of the restrictive effect
of the provisions of China's measures to take into
account the restrictive effect on beneficiaries of the
right to trade + All
The fact that exports of the subject products
increased during the application of the measure at
issue is one appropriate parameter to establish
whether the measure at issue has a restrictive impact
on relevant trade, provided it is put in its proper
context; a comparison of the import data of subject
goods before and after the imposition of the measures
may not by itself prove helpful if that data mostly
reflects the import volumes pertaining to the time
where the prior restrictions were in force; the relevant
question is not whether imports increased in absolute
terms, but whether or not importation was suppressed,
in other words, whether the imports would have
increased to an even greater extent had the measure
not been in place + All
The growth (in terms of value) of imports arriving in
Colombia from the points of departure from the rest of
the world (which are thus not subject to the ports of
entry measure) provides a useful point of comparison
in assessing what might have been a reasonable
growth rate for imports arriving from Panama + All
Restrictions of the right to import may have an
adverse impact on imports. For instance, if no
enterprise or individual were granted the right to import
a particular product, imports of the particular product
would obviously be adversely affected + All
Article XX(g) ("restrictions on domestic production or
consumption") + All
The term "restriction" is defined as: "A thing
which restricts someone or something, a limitation
on action, a limiting condition or regulation" and as "
[t]he action or fact of limiting or restricting someone
or something," specifically "[d]eliberate limitation of
industrial output the action or fact of confining or
binding the extent, amount, duration, etc. of
permitted - in the case of Article XX(g) - domestic
production or consumption; the ordinary meaning of
"restriction" is that which has a limiting effect + All

DS432, DS433)
Various Raw Materials (DS394,DS395,DS398)
A "restriction" on domestic production or
consumption is not necessarily the same as a
"constriction" or a "reduction" on domestic
production or consumption; the word "restriction" in
Article XX(g) requires the positive establishment of
a quantitative limit on domestic production or
consumption, but does not necessarily require that
such limit reduce or constrict domestic production
or consumption below the level of any previous
year; rather, the quantitative restriction must be set
at a level that is lower than the expected demand
for the period of time over which the restriction is
intended to apply; to meet its burden of proof, a
regulating Member must show that its domestic
restrictions are capable of limiting the amount of
production or consumption below the amount that
would be produced or consumed but for that
measure; "capable of limiting" requires more than
just a restriction "on the books"; a restriction
embodied in a legal instrument, if not accompanied
by actual enforcement, cannot be a real "restriction"
capable of limiting domestic production or
consumption; Article XX(g) requires that domestic
restrictions be effective; although the words "made
effective in conjunction with" in Article XX(g) relate
directly to the measure being challenged, they
imply that both the foreign restriction and the
domestic restriction must be "effective" before
subparagraph (g) can be satisfied; a domestic
restriction that is not enforced cannot be considered
"effective"; non-enforcement will affect the
restrictive character or nature of an apparent
restriction where such non-enforcement is so
important as to be considered systemic; an
apparent domestic restriction that is systemically
unenforced is, as a matter of law, no "restriction" at
all, at least for the purposes of Article XX(g) + All
DS432, DS433)
China appears to impose a resource tax on
entities exploiting mineral products; according to
China, the objective of the mineral resources tax is
to increase extraction costs and, hence, prices of
the mineral; initial level of the tax appears to be
very low about 0.1 percent of refractory-grade
bauxite or fluorspar prices in China; China has not
demonstrated that its 1% tax rate operates as an
effective restriction on extraction + All

China subjects the extraction of refractory-grade
bauxite or fluorspar ores to a 2 percent
compensation fee; mining companies may reduce
the incidence of the fee below the 2%
compensation rate by increasing their actual mining
recovery rate; potentially, the incidence of the
compensation fee may become so low that it is
unlikely to limit mineral production; China has not
demonstrated that the compensation fee operates
as an effective restriction on extraction or
production + All
Extraction cap of 11 million metric tonnes of
fluorspar ores imposed by the 2010 Quota exceeds
the total 2009 extraction of 9.4 million metric tonnes
of fluorspar ores; mining cap is also well above the
pre-2009 fluorspar extraction levels, which never
exceeded 5.89 million metric tonnes; China's 2010
extraction cap on high alumina clay of 4.5 million
metric tonnes is above the 2009 actual extraction of
high alumina clay, amounting to 2.4 million metric
tonnes; the 2010 Quota of High-alumina refractory-
Grade Bauxite and Fluorspar set a production cap
of 4.71 million metric tonnes for fluorspar blocks
(metallurgical grade fluorspar) and 2.44 million
metric tonnes for fluorspar powder (acid grade
fluorspar), however, data on fluorspar production for
the years 2008 and 2009 suggest that these caps
are not likely to limit production + All
Ad Article XXVIII:1, paragraphs 4, 6 and 7
("discriminatory quantitative restrictions") + All
Annex I, Ad Articles XI, XII, XIII, XIV and XVIII ("import
restrictions") + All
Methodology and degree of precision in assessing relevant
factors + All
applicable to "necessity" under the GATT 1994 and GATS] It
will not always be possible to quantify a particular factor, or to
do so with precision; this may be due to, inter alia, the nature
of the objective pursued and the level of protection sought, as
well as the nature, quantity, and quality of evidence existing at
the time the analysis is made, and the characteristics of the
technical regulation at issue as revealed by its design and
structure; in Brazil – Retreaded Tyres, the Appellate Body
considered that there was no obligation to quantify the
contribution of the challenged measure but, rather, in the
specific circumstances of that case, it sufficed to demonstrate
in qualitative terms that the measure was "apt to produce a

material contribution" to its objective at some point in time; in
EC – Seal Products that there was "limited and uneven
information relating to the actual operation of the measure on
the [p]anel record"; in that context, while the panel's conclusion
on contribution did not provide "much information" as to the
precise degree or extent of the measure's contribution, the
Appellate Body also recognized that "it [was] not clear what
greater clarity or precision the [p]anel could have achieved in
the circumstances of this case"; thus, the Appellate Body did
not find fault with the statement made by the panel in EC –
Seal Products that the measure at issue was "capable of
making and does make some contribution" to its objective, or
that it did so "to a certain extent"; when a factor can be
assessed only with a lesser degree of precision, a panel
should not end its analysis and conclude that the complainant
failed to make its prima facie case in this regard; in EC – Seal
Products, the Appellate Body considered in respect of Article
XX of the GATT 1994 that "a measure's contribution is … only
one component of the necessity calculus under Article XX",
and that "whether a measure is 'necessary' cannot be
determined by the level of contribution alone, but will depend
on the manner in which the other factors of the necessity
analysis, including a consideration of potential alternative
measures, inform the analysis"; the Appellate Body continued
that "the very utility of examining the interaction between the
various factors of the necessity analysis, and conducting a
comparison with potential alternative measures, is that it
provides a means of testing these factors as part of a holistic
weighing and balancing exercise, whether quantitative or
qualitative in nature" + All
DS386)
Confirming a preliminary conclusion that the measure is
necessary by comparing the challenged measure with possible
alternatives + All
In most cases, a panel must compare the challenged
measure and possible alternative measures that achieve the
same level of protection while being less trade restrictive + All
As part of an overall evaluation of "necessity" using the
"weighing and balancing" process, a panel must examine
whether the responding party could reasonably be expected to
employ an alternative measure, consistent (or less
inconsistent) with the covered agreements, that would achieve
the objectives pursued by the measure at issue; an alternative
measure may be found not to be "reasonably available" where
it is merely theoretical in nature, for instance, where the
responding party is not capable of taking it, or where the
measure imposes an undue burden on that Member, such as
"prohibitive costs or substantial technical difficulties"; a
"reasonably available" alternative measure must be a measure
that would preserve the responding party's right to achieve its
desired level of protection with respect to the objective pursued

under Article XX of the GATT 1994 + All
Products (DS363)
Under the analysis of "necessity" in the context of Article XX
of the GATT 1994 and Article XIV of the GATS, a measure
found to be inconsistent with a relevant obligation is to be
compared with reasonably available less trade-restrictive
alternative measures + All
DS386)
United States - Measures Concerning the Importation,
Marketing and Sale of Tuna and Tuna Products (DS381)
Alternative must achieve the responding Member's desired
level of protection + All
In order to qualify as a "genuine alternative", the proposed
measure must be not only less trade restrictive than the
original measure at issue, but should also "preserve for the
responding Member its right to achieve its desired level of
protection with respect to the objective pursued + All
Alternative must be reasonably available + All
An alternative measure may be found not to be
reasonably available where it is merely theoretical in nature,
for instance, where the responding Member is not capable
of taking it, or where the measure imposes an undue burden
on that Member, such as prohibitive costs or substantial
technical difficulties + All
(DS332)
United States - Measures Affecting the Cross-Border Supply
of Gambling and Betting Services (DS285)
An alternative measure should not be found not to be
reasonably available merely because it involves some
change or administrative cost; changing an existing
measure may involve cost and a Member cannot
demonstrate that no reasonably available alternative exists
merely by showing that no cheaper alternative exists; rather,
in order to establish that an alternative measure is not
"reasonably available", the respondent must establish that
the alternative measure would impose an undue burden on
it, and it must support such an assertion with sufficient
evidence; adopting any alternative measure will, by
definition, involve some change, and this alone does not
suffice to demonstrate that the alternative would impose an

undue burden + All
The statement by the Appellate Body in Brazil -
Retreaded Tyres suggests that the prohibitive costs or
substantial technical difficulties" are those associated with
the burden placed on a Member; this language does not
foreclose the possibility that there may be other indications
that the alternative measure is "merely theoretical in nature";
if there are reasons why the prospect of imposing an
alternative measure faces significant, even prohibitive,
obstacles, it may be that such a measure cannot be
considered "reasonably available"; cannot exclude a
priori the possibility that an alternative measure may be
deemed not reasonably available due to significant costs or
difficulties faced by the affected industry, in particular where
such costs or difficulties could affect the ability or willingness
of the industry to comply with the requirements of that
measure; an assessment of the reasonable availability of an
alternative measure could potentially include the burden on
the industries concerned + All
Consideration of regimes applicable in other situations
when determining the reasonable availability of the
alternative measure + All
Panel did not err in concluding that the situations in
which other measures are applied are not sufficiently
similar to the circumstances of the seal hunt to assist in
determining the availability of alternative measures;
although it acknowledged that the examination of
measures applied to other product areas may provide
useful input in determining whether an alternative
measure is reasonably available, the Panel also recalled
the following: (i) its findings regarding the particular
characteristics, risks, and challenges of seal hunting, (ii)
that the evidence did not establish comparable effective
stunning rates in seal hunts and commercial abattoirs,
and (iii) in any case that the two situations differ
significantly in areas of great relevance to the application
of humane killing methods; the Panel provided a
reasonable explanation as to why it did not consider
regimes applicable in other situations helpful in
determining the reasonable availability of the alternative
measure + All
Importation and Marketing of Seal Products
(DS400,DS401)
Where several alternatives proposed, there is no need to
examine each of the alternatives, provided that the panel is
satisfied that at least one of them constitutes a genuine
alternative and is reasonably available, taking into account the

interest being pursued and the desired level of protection + All
Products (DS363)
Burden of proof + All
The complaining Member bears the burden of identifying
possible alternatives to the measure at issue that the
responding Member could have taken; a complaining party
must identify any alternative measures that, in its view, the
responding party should have taken; a responding party
need not identify the universe of less trade-restrictive
agreements do not contemplate such an impracticable and
impossible burden + All
(DS332)
United States - Measures Affecting the Cross-Border Supply
of Gambling and Betting Services (DS285)
As regards the burden of proof with respect to "reasonably
available alternatives", the Appellate Body explained in US
– Gambling that a responding party invoking Article XIV(a)
of the GATS bears the burden of demonstrating that its
GATS-inconsistent measure is "necessary" to achieve the
objective of protecting public morals; this burden does not
imply that the responding party must take the initiative to
demonstrate that there are no reasonably available
alternatives that would achieve its objectives; when,
however, the complaining party identifies an alternative
measure that, in its view, the responding party should have
taken, the responding party will be required to demonstrate
why its challenged measure nevertheless remains
"necessary" in the light of that alternative or, in other words,
why the proposed alternative is not a genuine alternative or
is not "reasonably available"; if a responding party
demonstrates that the alternative is not "reasonably
available", in the light of the interests or values being
pursued and the party's desired level of protection, it follows
that the challenged measure must be "necessary" + All
The aspect of the measure to be justified as "necessary" is the
necessity of the measure for the achievement of the objective +
All
Article 2.2 of the TBT Agreement refers to technical
regulations that are more trade restrictive than necessary to
fulfil a legitimate objective, whereas Article XX of the GATT
1994 refers to "measures necessary" to protect public morals,
to protect human, animal or plant life or health, to secure

compliance with laws or regulations; under Article 2.2 of the
TBT Agreement, unlike in Article XX of the GATT 1994, the
aspect of the measure to be justified as "necessary" is its trade
restrictiveness rather than the necessity of the measure for the
achievement of the objective + All
United States - Measures Concerning the Importation,
Marketing and Sale of Tuna and Tuna Products (DS381)
Approach of panel to conduct necessity analysis + All
The challenge faced by the panel in deciding how to tackle
the series of factors to be weighed and balanced in its analysis
of the "necessity" of the multiple provisions it had found to be
inconsistent with China's trading rights commitments was
heightened by the large number of measures challenged by
the United States in this dispute; the panel chose to group
together all of the relevant provisions for purposes of certain
steps of its analysis but to analyze these provisions individually
for purposes of other steps in its analysis; while this was not
necessarily the only way that the panel could have approached
its task, in the circumstances of this case the panel's approach
did not amount to an error or contradict the approach set out in
previous Appellate Body reports + All
Products (DS363)
Relationship with necessity test in TBT Agreement + All
Given the close relationship between the GATT 1994 and the
TBT Agreement and the need to interpret relevant provisions
under both Agreements in a consistent and harmonious
manner, an analysis of a measure's contribution to an objective
under Article 2.2 of the TBT Agreement is also relevant to such
analysis under Article XX + All
and Marketing of Seal Products (DS400, DS401)
Article XX(a) + All
The necessity of a measure within the meaning of Article XX(a)
is determined through "a process of weighing and balancing" of
"all the relevant factors, particularly the extent of the contribution
to the achievement of a measure's objective and its trade
values at stake"; the more vital or important the values or
interests furthered by a measure are, the easier it will be to
accept that measure as necessary; if this analysis yields a
preliminary conclusion that the measure is necessary, this result
must be confirmed by comparing the measure with its possible
alternatives, which may be less trade restrictive while providing
an equivalent contribution to the achievement of the objective
pursued + All
Marketing of Seal Products (DS400, DS401)

All
Products (DS363)
Products (DS363)
Products (DS363)

Whether both steps of the assessment must be undertaken and
the sequence of those steps + All

DS386)

To determine whether the compound tariff is necessary to
combat money laundering (i.e., necessary to protect public
morals), panel will weigh and balance the following factors: (i) the
importance of the fight against money laundering in Colombia; (ii)
the contribution of the compound tariff to the achievement of the
objective of combating money laundering; (iii) the trade-
restrictiveness of the compound tariff; and (iv) if the Panel
reaches a preliminary conclusion that the measure is necessary, it
will confirm the result by comparing the compound tariff with the
alternatives identified by Panama + All
There was a lack of sufficient clarity regarding the degree of
contribution of the measure at issue to the objective of combating
money laundering and the degree of trade-restrictiveness of the
measure; without sufficient clarity in respect of these factors, a
proper weighing and balancing that could yield a conclusion that
the measure is "necessary" could not be conducted; in the light of
these considerations, the Panel's findings support the conclusion
that Colombia has not demonstrated that the conclusion resulting
from a weighing and balancing exercise is that the measure at
issue is "necessary" to protect public morals + All
factors + All
"Necessity" must be assessed through a process of
"weighing and balancing" a number of factors; the process
begins with an assessment of the relative importance of the
interests or values furthered by the challenged measure; a
panel should then turn to the other factors that are to be
weighed and balanced, which will in most cases include: (i) the
contribution of the measure to the realization of the ends
pursued by it; and (ii) the restrictive effect of the measure on
international commerce; additional factors may be relevant in
specific cases + All
Products (DS363)
Criteria that should be taken into consideration (including
weighing and balancing of factors individually) + All
The relative importance of the common interests or values
that the laws or regulations to be enforced are intended to
protect + All
The protection of public morals ranks among the most
important values or interests pursued by Members as a
matter of public policy; it is not simply accident that the
exception relating to "public morals" is the first exception
identified in the ten sub-paragraphs of Article XX; the
protection of public morals is a highly important value or

interest + All
China - Measures Affecting Trading Rights and
Distribution Services for Certain Publications and
Audiovisual Entertainment Products (DS363)
In determining the importance of a particular objective,
it is more pertinent to assess the importance of the
particular societal interest being protected, rather than
assuming that by virtue of its status as a "public moral"
objective the interest is per se vital or important to the
highest degree + All
Brazil - Certain Measures Concerning Taxation and
Charges (DS472, DS497)
The moral concern with regard to the protection of
animals and the protection of such public moral concerns
is an important value or interest + All
Importation and Marketing of Seal Products (DS400,
DS401)
In Colombia the objective of combating money
laundering reflects social interests that can be described
as vital and important in the highest degree + All
Colombia - Measures Relating to the Importation of
Textiles, Apparel and Footwear (DS461)
The objective of bridging the digital divide and
promoting social inclusion is internationally recognized as
an important policy objective, and indeed is recognized
as a target of the UN MDGs; the importance of the MDGs
should not be understated; this is true in any developing
country, but the specific MDG target at issue here is
particularly important in Brazil, where the percentage of
households and individuals with internet access or
computer access is low; overall, the objective of bridging
the digital divide and social inclusion and access to
information is a reasonably important policy objective +
All
The contribution of the measure to the realization of the
ends pursued by it + All
In assessing a measure's contribution to the objective
pursued under Article XX of the GATT 1994, such a
contribution exists when there is a genuine relationship of
ends and means between the objective pursued and the
measure at issue; it ultimately depends on the nature,
quantity, and quality of evidence existing at the time the
analysis is made; the analysis of the contribution can be
done either in quantitative or qualitative terms + All
DS401)
No minimum level of contribution is required in order

for a particular measure to be "necessary" within the
meaning of Article XX; mandating in advance a pre-
determined threshold level of contribution would not be
instructive or warranted in a necessity analysis and
whether a measure is necessary cannot be determined
by the level of contribution alone, but will depend on the
manner in which the other factors of the necessity
analysis, including a consideration of potential alternative
measures, inform the analysis; a panel's contribution
analysis can be done either in quantitative or in
qualitative terms + All
In light of the particular circumstances of the present
dispute, and given the guidance by the Appellate Body,
for a preliminary finding that the measure as a whole is
"necessary" within the meaning of paragraph (a), the
contribution made by the "ban" to the identified objective
must be shown to be at least material given the extent of
its trade-restrictiveness; the actual degree of the
contribution by the ban must also be assessed by taking
account of the impact of the explicit and implicit
exceptions on the operation of the ban; this will allow an
objective evaluation of the necessity of the measure
against any reasonably available GATT-consistent or less
trade-restrictive alternative measures that make an
equivalent or greater contribution to the objective than
the measure in question + All
DS401)
State-ownership requirement requires that an
enterprise be wholly State-owned in order to be eligible
for approval as a publications import entity; measure
adopted by China in light of high level of protection of
public morals within its territory; China explained that the
requirement was necessary because the Chinese
Government could not require enterprises with private
investment in China to bear the substantial cost of
performing the policy function of content review, but could
require only those enterprises in which the State owns all
of the equity to bear the cost of carrying out content
review; in addition, only wholly State-owned enterprises
are capable of satisfying the requirement -that publication
import entities must have a suitable organization and
qualified personnel and only those enterprises have the
capacity to perform content review in a manner that
preserves China's desired level of protection; panel found
that China had not demonstrated that the cost associated
with content review would be so high that it would be
unreasonable to impose it on private enterprises, or that
only wholly State-owned enterprises are able, or should
be expected, to bear the cost associated with content
review; not apparent that wholly state-owned enterprises
would be inherently more careful in conducting content

review than privately; China has not demonstrated that
the requirement in question is "necessary" to protect
public morals in China owned ones + All
Measure prohibited foreign-invested enterprises from
engaging in the importation of publications and
audiovisual entertainment products; China submits that
foreign-invested enterprises may not have the requisite
understanding and knowledge of the applicable
standards of Chinese public morals and would not be
capable of efficiently communicating with the
administrative authorities; having considered that the
provisions prohibiting foreign-invested enterprises from
engaging in the importation of the products at issue
reflect the same prohibition as the State-ownership
requirement, by necessary implication, panel not
persuaded that the provisions prohibiting foreign-invested
enterprises from being approved or designated import
entities of the relevant products contribute to the
protection of public morals in China; panel not convinced
that enterprises with private investment would be unable
to attract qualified personnel or unable to obtain the
expertise needed to conduct content review properly; the
mere fact that an entity involves some foreign investment
does not necessarily imply that content review would be
carried out by professionals who are not familiar with
Chinese values and public morals, or incapable of
efficiently communicating with and understanding the
authorities; China did not establish that the exclusion of
foreign-invested enterprises from engaging in the
importation of the relevant products contributes to the
protection of public morals in China + All
The ban does contribute to the European Union's
objective by reducing, to a certain extent, the global
demand for seal products and by helping the EU public
avoid being exposed to seal products on the EU market
that may have been derived from seals killed inhumanely;
to the extent that such seal products are prohibited from
the EU market, we find that the ban makes a material
contribution to the objective of the measure; however, the
degree of the contribution made by the ban is diminished
by both the explicit and implicit exceptions under the
measure; overall, the EU Seal Regime as a whole
contributed to a certain extent to its objective of
addressing the EU public moral concerns on seal welfare
the EU Seal Regime can be provisionally deemed
"necessary" within the meaning of Article XX(a) of the
GATT 1994, unless it is demonstrated that the European
Union could have adopted a GATT-consistent or less
trade-restrictive measure as an alternative to the EU Seal

Regime + All
DS401)
The Panel opted for a qualitative analysis that focused
mainly on the design and expected operation of the
measure; it projected what the impact of the prohibitive
aspect of the measure would be; the approach bore
similarities with the analysis in Brazil – Retreaded Tyres,
where the panel concluded that the measure at issue
was "capable of making a contribution to the objective";
the Panel found that the ban was "capable of making a
contribution" to public moral concerns relating to the EU
public's participation as consumers in the market for
products derived from inhumanely killed seals; with
respect to the second aspect of the measure's objective,
the Panel found that the measure "makes a contribution"
to reducing the demand for seal products within the
European Union, and contributes "to a certain extent" to
reducing global demand; no appreciable difference
between a finding that a measure "makes a contribution"
and a finding that it "contributes to a certain extent"; the
Panel's findings did not provide much information as to
the precise degree or extent of the contribution; a Panel's
inquiry ultimately depends on "the nature, quantity, and
quality of evidence existing at the time the analysis is
made"; the Panel faced significant limitations in
examining aspects of the measure other than through its
design, structure, and expected operation; it is not clear
that the Panel could have done more; Panel did not err in
concluding that the EU Seal Regime "is capable of
making and does make some contribution" to its
objective, or that it makes a contribution "to a certain
extent" + All
(DS400,DS401)
The same findings of the Panel that led to the
conclusion that the compound tariff is not incapable of
combating money laundering, such that there is a
relationship between that measure and the protection of
public morals, also indicate that there may be at least
some contribution by the compound tariff to the objective
of combating money laundering; it cannot be ruled out
that the importation of goods at prices below the
thresholds established in Decree No. 456 could, in
practice, reflect artificially low prices that do not reflect
market conditions; the information available suggests that
the undervaluation of imports is, in fact, one of the
methods used for money laundering detected by the
Colombian authorities; since the compound tariff entered
into force, Colombian imports of the products in question
have declined and average import prices have increased
and the compound tariff could reduce the incentives for
importing textile products, apparel and footwear at prices

below the thresholds; these findings demonstrate that at
least some goods priced at or below the thresholds could
be imported into Colombia at artificially low prices for
money laundering purposes, and would thus be subject
to the disincentive created by the higher specific duties
that apply to these goods; these findings establish that
there may be at least some contribution by the measure
to the objective of combating money laundering;
however, while the Panel's findings discussed above
indicate that there may be at least some contribution,
they are also indeterminate as to the degree of such
contribution; do not indicate whether the amount or
proportion of goods imported at prices at or below the
thresholds is low or high, or anywhere in between; do not
indicate the frequency or scope of this method as a
means for laundering money; the uncertainty surrounding
the amount or proportion of imported goods below the
thresholds that are actually used for money laundering
purposes, as well as the extent to which the compound
tariff acts as a disincentive to money laundering, indicate
that Colombia had not demonstrated with sufficient clarity
the degree of contribution made by the compound tariff to
the objective of combating money laundering + All
Although it is possible that the PATVD programme will
contribute to the objective of the bridging the digital divide
and promoting social inclusion, the evidence indicates
that the PATVD is unlikely to actually make much, if any,
contribution to this objective; there is an inherent
contradiction of a measure that is designed to ensure that
a particular market is supplied with particular products at
affordable prices, by discriminating against imported
products in that particular market; this contradiction is
evident both in the market for finished digital television
equipment products, as well as the market for
components to be used in the production of the finished
digital television equipment product; no reason to
conclude that the discriminatory aspects of the PATVD
programme will necessarily lead to any increase in
market supply, nor that the discriminatory aspects are
likely, or apt, to lead to such an increase; Brazil has not
demonstrated that the manner in which the PATVD
programme incentivises domestic production has led, will
lead, or is apt to lead, to an increase in social inclusion or
access to information; although it is possible that the
PATVD programme could, in theory, contribute to social
inclusion and access to information, Brazil has not
demonstrated that the PATVD programme does, or will, in
fact, contribute to the realisation of Brazil's policy goal; it
is likely that the PATVD programme will not make much,
if any, contribution to the objective of social inclusion and
access to information + All
The accompanying restrictive impact of the law or

The assessment of the restrictive effect of a measure
on international trade is part of the "weighing and
balancing" approach for assessing "necessity"—including
within the meaning of Article XX(a); the text of Article
XX(a) refers only to measures "necessary to protect
public morals" and does not provide explicit guidance on
the question of whether, in assessing "necessity", a panel
may take into account only the restrictive effect the
measures have on imports of relevant products, or
whether a panel may also consider the restrictive effect
of the measures on importers or potential importers;
while in principle a panel must assess the restrictive
effect of a measure on international commerce, this test
must be applied in the light of the specific obligation of
the covered agreements that the respective measure
infringes; the assessment of the restrictive effect to be
taken into account in a particular dispute may, in
appropriate cases, extend beyond an assessment of the
restrictive effect on imported products, as this
assessment must be undertaken in the light of the
measure at issue, the specific obligation of the covered
agreements that the measure infringes, and the defence
being invoked; measures inconsistent with, inter alia,
China's obligation in paragraph 5.1 of its Accession
Protocol to grant the right to trade to all enterprises with
respect to goods which is not only concerned with the
question of what can be traded, but more directly with the
question of who is entitled to engage in trading; no error
in the Panel's tailoring its assessment of the restrictive
effect of the provisions of China's measures to take into
account the restrictive effect on beneficiaries of the right
to trade + All
In analyzing whether the provisions could be justified
as "necessary" under Article XX(a), panel assessed to
what extent the provisions restrict those wishing to
engage in importing, as well as how the restrictive effect
comports with the degree of contribution to the
achievement of the objective, and the societal importance
and value of the legitimate objective concerned; panel
examined whether the Chinese measures at issue were
necessary to protect public morals, and, for each relevant
provision or requirement, assessed its restrictive effect
on imports and on potential importers; panel correctly
assessed the restrictive effect of the specific measures at
issue + All
The Panel identified differences in the restrictive effect

on potential importers of the different measures at issue;
the panel found that the State-ownership requirement
and the provisions excluding foreign-invested enterprises
from engaging in the importation of the relevant products
are the most restrictive provisions, because they a
priori exclude certain enterprises from the right to engage
in importing the relevant products; the panel found a
lesser restrictive effect in China's State plan requirement
and in the suitable organization and personnel
requirement; with respect to both, the panel found that
the requirements did not a prioriexclude particular
enterprises in China from the right to engage in
importing; panel did not err in taking into account the
restrictive effect that the relevant provisions and
requirements have on those wishing to engage in
importing as part of its assessment of the restrictive
effect of the measures found to be inconsistent with
China's trading rights commitments + All
Panel chose to weigh not only the restrictive impact the
measures at issue have on imports of relevant products,
but also the restrictive effect they have on those wishing
to engage in importing, in particular on their right to
trade + All
The trade-restrictiveness of the compound tariff is
undeniable and is recognized by both parties; at the
same time, the compound tariff is less restrictive on
international trade than an import ban or a measure
having the effects of a ban; Panel's findings that the
measure is less restrictive than an import ban and that
the trade-restrictiveness is "undeniable" do not
sufficiently elucidate the degree of trade-restrictiveness
of the compound tariff; findings indicate the uncertainty
as to the degree to which the compound tariff can be
considered to be less trade restrictive than an import ban,
and thus support the view that Colombia had not
established with sufficient clarity the degree of trade-
restrictiveness of the measure + All
The discriminatory aspects of the PATVD programme
result in a disincentive to purchase imported products
(both finished products and the components used to
produce those finished products), which will have a
material impact on imports of those products; the actual
and potential overall trade-restrictiveness of the PATVD
programme is material + All

context of: + All
Article XI:2(a) ("export prohibitions or restrictions") +
All
trade") + All
consumption") + All
Annex I, Ad Articles XI, XII, XIII, XIV and XVIII
("import restrictions") + All
alternatives + All
If a panel reaches the preliminary conclusion that a
challenged measure is necessary, this result must be
confirmed by comparing the measure with possible
alternatives, which may be less trade restrictive while providing
an equivalent contribution to the achievement of the objective;
this comparison should be carried out in the light of the
importance of the interests or values at stake + All
Products (DS363)
Chosen level of protection + All
It is up to each Member to determine what level of
protection is appropriate in a given situation; several of the
measures at issue contain provisions which prohibit relevant
products (reading materials and finished audiovisual
products) from carrying certain content, and which require
that the content of such products must be reviewed before
they can be imported into China; these provisions are
consistent with China's contention that it seeks to achieve a
high level of protection of public morals in respect of the

relevant products; reviewing the necessity of the provisions
at issue, panel will bear in mind the high level of protection
of public morals China has determined to be appropriate for
its territory in respect of the relevant products + All
In its analysis of the alternative measure proposed by the
United States— which the Panel found to have "significantly
less restrictive impact, specifically on those who wish to
engage in importing"— the panel did not err merely because it
took account of the impact the alternative measure would have
on potential importers + All
Products (DS363)
Panel did not ignore the fact that the proposal put forward by
the United States would require changes to the current system,
and that these could entail additional costs for China; panel
noted China's argument that implementing the proposal would
impose an undue burden, create the risk of undue delays, and
demand substantial resources given the large quantities of
imports involved and the time-sensitive nature of newspapers
and periodicals; panel expressly recognized that the alternative
might require China to allocate additional human and financial
resources to content review authorities, in particular for content
review of reading materials; recognition tempered observation
that, for products other than reading materials (electronic
publications, audiovisual products and films for theatrical
release), the Chinese Government already makes the final
content review decision under its current system; panel not
convinced that the cost to the Chinese Government would
necessarily be higher under the alternative proposed; given
that all import entities are wholly owned by the State, it was not
apparent that the cost to the Chinese Government of having
non-incorporated offices of the Government of China conduct
content review would necessarily be higher than the cost of
having incorporated State-owned enterprises conduct such
review; in any event, China had not provided any data or
estimate that would suggest that the cost to the Chinese
Government would be unreasonably high or even prohibitive,
and that the Publication Regulation already authorizes the
Government to charge fees for providing a content review
service, which could lessen any financial burden associated
with the proposed alternative measure; China had not
demonstrated that alternative would impose on China an
undue burden, whether financial or otherwise and that
alternative was not reasonably available; China did not provide
evidence to the Panel substantiating the likely nature or
magnitude of the costs that would be associated with the
proposed alternative, as compared to the current system + All
Products (DS363)
The alternative measure proposed by the complainants was

not reasonably available to the European Union given inter
alia the animal welfare risks and challenges found to exist in
seal hunting in general; the EU Seal Regime is provisionally
deemed necessary within the meaning of Article XX(a) + All
and Marketing of Seal Products (DS400, DS401)
The first alternative is for Brazil to exempt from IPI, PIS-
PASEP, COFINS, PIS/PASEPImportation, and COFINS-
Importation contributions, the sales of all digital television
transmitters that comply with Brazil's digital television
standards, regardless of whether they are imported or
domestically produced; the second alternative is for Brazil to
exempt from custom duties all digital television transmitters
that are currently incentivised under the programme; the third
alternative is for Brazil to provide subsidies directly to
producers of digital television equipment, regardless of the
origin of the manufactured products; any of the three proposed
alternatives would be not only WTO-consistent and less trade-
restrictive than the discriminatory aspects of the PATVD
programme, but can make a more substantial contribution to
the claimed objective than the discriminatory aspects of the
PATVD programme; these alternative measures, which if
adopted would make a clear contribution to the stated objective
of bridging the digital divide through increased supply of more
affordable digital television products to the market, stand in
stark contrast to the PATVD programme; the alternative
measures suggested by the complaining parties are
reasonably available to Brazil, WTO-consistent, less trade-
restrictive than the PATVD programme, and are likely to result
in a greater contribution than the PATVD programme to the
objective of bridging the digital divide and promoting social
inclusion; Brazil has not demonstrated that the aspects of the
measure found to be inconsistent with provisions of the GATT
1994 are "necessary" to achieve social inclusion and access to
information, within the meaning of Article XX(a) + All
(DS472, DS497)
Article XX(b) + All
Article XX(b) requires that a Member's measure is "necessary"
to achieve the objective it pursues + All
The weighing and balancing process involves two steps: (i) a
panel must first determine whether the measure is "necessary" by
examining all relevant factors; and (ii) if it makes a preliminary
conclusion that it is necessary, this result must be confirmed by
comparing the challenged measure with possible alternatives +
All

All
Products (DS363)
Products (DS363)
Products (DS363)

DS386)
factors + All
A "necessary" measure is, in a continuum, located

significantly closer to the pole of "indispensable" than to the
opposite pole of simply "making a contribution to"; an
assessment of necessity involves "a process of weighing and
balancing a series of factors which prominently include the
contribution made by the compliance measure to the
enforcement of the law or regulation at issue, the importance of
the common interests or values protected by that law or
regulation, and the accompanying impact of the law or
Korea - Measures Affecting Imports of Fresh, Chilled and
Frozen Beef (DS161, DS169)
To be characterized as necessary, a measure does not have
to be indispensable; however, its contribution to the
achievement of the objective must be material, not merely
marginal or insignificant, especially if the measure at issue is
as trade restrictive as an import ban; the contribution of the
measure has to be weighed against its trade restrictiveness,
taking into account the importance of the interests or the
values underlying the objective pursued by it + All
In order to determine whether a measure is necessary within
the meaning of Article XX(b) of the GATT 1994, a panel must
consider the relevant factors, particularly the importance of the
interests or values at stake, the extent of the contribution to the
achievement of the measure's objective, and its trade
restrictiveness + All
In assessing the "necessity" of a measure within the
meaning of Article XX(d), several criteria should be taken into
consideration, including a weighing and balancing of these
aspects: (i) the relative importance of the common interests or
values that the law or regulation to be enforced is intended to
protect - the more vital or important those common interests or
values are, the easier it would be to accept as "necessary" a
measure designed as an enforcement instrument; (ii) the
extent to which the measure contributes to the realization of
the end pursued, the securing of compliance with the law or
regulation at issue - the greater the contribution, the more
easily a measure might be considered to be "necessary"; and
(iii) the extent to which the compliance measure produces
restrictive effects on international commerce, that is, in respect
of a measure inconsistent with Article III:4, restrictive effects on
imported goods - a measure with a relatively slight impact upon
imported products might more easily be considered as
"necessary" than a measure with intense or broader restrictive
effects + All
Criteria that should be taken into consideration (including

weighing and balancing of factors individually) + All
protect + All
The more vital or important the common interests or
values behind the policies pursued, the easier it would be
to accept as necessary a measure designed as an
enforcement instrument" + All
China - Measures Related to the Exportation of Various
Raw Materials (DS394,DS395,DS398)
Korea - Measures Affecting Imports of Fresh, Chilled and
Frozen Beef (DS161, DS169)
European Communities - Measures Affecting Asbestos
and Asbestos-Containing Products (DS135)
Applied to Article XX(b), few interests are more vital
and important than protecting human beings from health
risks; protecting the environment is no less important +
All
(DS332)
The protection of human health is an interest of the
highest importance + All
Indonesia - Measures Concerning the Importation of
Chicken Meat and Chicken Products (DS484)
The reduction of pollution and the protection of health +
All
Reduction of the exposure to the risks to human,
animal or plant life or health arising from the
accumulation of waste tyres + All
(DS332)
Increasing vehicle safety is an interest of high
importance; the reduction of CO2 emissions is important;
few interests are more vital and important than protecting
human beings from health risks, and that protecting the
environment is no less important; the level of importance
of the interests pursued by Brazil (i.e. increase of vehicle
safety and reduction of CO2 emissions) is high + All
The contribution of the measure to the realization of the
ends pursued by it + All
The greater the contribution a measure makes to the

objective pursued, the more likely it is to be characterized
as necessary + All
China - Measures Related to the Exportation of Rare
Earths, Tungsten and Molybdenum (DS431, DS432,
DS433)
Two types of contributions: the measure that "brings
about" a material contribution to the achievement of its
objective; and the measure that "is apt to produce" a
material contribution to the objective pursued + All
(DS332)
DS433)
A measure contributes to the achievement of the
objective when there is a genuine relationship of ends
and means between the objective pursued and the
measure at issue and that a measure is necessary if it is
apt to make a material contribution to the achievement of
its objective + All
(DS332)
DS433)
Material contribution in order to justify import ban + All
In order to justify an import ban under Article XX(b),
a panel must be satisfied that it brings about a
material contribution to the achievement of its
objective; such a demonstration can be made by
resorting to evidence or data, pertaining to the past or
the present, that establish that the import ban at issue
makes a material contribution to the protection of
public health or environmental objectives pursued; this
is not, however, the only type of demonstration that
could establish such a contribution; a panel might
conclude that an import ban is necessary on the basis
of a demonstration that the import ban at issue is apt
to produce a material contribution to the achievement
of its objective; this demonstration could consist of
quantitative projections in the future, or qualitative

reasoning based on a set of hypotheses that are
tested and supported by sufficient evidence + All
(DS332)
Appellate Body in Brazil – Retreaded Tyres was
confronted with the particular challenge of assessing
the contribution of a measure that formed part of a
broader policy scheme, and that was not yet having,
or likely itself to produce, an immediately discernible
impact on its objective; the Appellate Body sought to
determine whether the measure was "apt to make a
material contribution" to its objective; the Appellate
Body was careful not to suggest that its approach in
that dispute was requiring the use of a generally
applicable threshold for a contribution analysis; the
Appellate Body was making the more limited
statement that "when a measure produces restrictive
effects on international trade as severe as those
resulting from an import ban, it would be difficult for a
panel to find that measure necessary unless it is
satisfied that the measure is apt to make a material
contribution to the achievement of its objective"; the
Appellate Body did not set out a generally applicable
standard requiring the use of a pre-determined
threshold of contribution in analysing the necessity of
a measure under Article XX + All
(DS400,DS401)
Current and future contribution + All
An import ban, or another trade-restrictive measure,
the contribution of which is not immediately
observable, can be justified under Article XX(b);
certain complex public health or environmental
problems may be tackled only with a comprehensive
policy comprising a multiplicity of interacting
measures; in the short-term, it may prove difficult to
isolate the contribution to public health or
environmental objectives of one specific measure from
those attributable to the other measures that are part
of the same comprehensive policy; moreover, the
results obtained from certain actions—for instance,
measures adopted in order to attenuate global
warming and climate change, or certain preventive
actions to reduce the incidence of diseases that may
manifest themselves only after a certain period of time
—can only be evaluated with the benefit of time; in
order to justify an import ban under Article XX(b), a
panel must be satisfied that it brings about a material
contribution to the achievement of its objective; such a
demonstration can be made by resorting to evidence
or data, pertaining to the past or the present, that
establish that the import ban at issue makes a material
contribution to the protection of public health or
environmental objectives pursued; this is not,

however, the only type of demonstration that could
establish such a contribution; a panel might conclude
that an import ban is necessary on the basis of a
demonstration that the import ban at issue is apt to
produce a material contribution to the achievement of
its objective. This demonstration could consist of
quantitative projections in the future, or qualitative
reasoning based on a set of hypotheses that are
tested and supported by sufficient evidence + All
(DS332)
The Panel's analysis was not only directed at an
assessment of the current situation and the immediate
effects of the Import Ban on the reduction of the
exposure to the targeted risks; it also focused on
evaluating the extent to which the Import Ban is likely
to result in a reduction of the exposure to these risks +
All
(DS332)
Contribution as part of a multiplicity of interacting
measures + All
A measure could be considered "necessary" even if
the contribution of the measure is not immediately
observable; certain complex public health or
environmental problems may be tackled only with a
comprehensive policy comprising a multiplicity of
interacting measures; a "necessary" measure could
contribute to one of the objectives protected under
Article XX(b) as part of a policy framework comprising
different measures, resulting in possible synergies
between those measures; in the short-term, it may
prove difficult to isolate the contribution to public
health or environmental objectives of one specific
measure from those attributable to the other measures
that are part of the same comprehensive policy + All
(DS332)
DS433)
Indirect contribution + All
The fact that the intended result is achieved
indirectly would not, in and of itself, undermine the
validity of an argument regarding material
contribution + All
DS433)
Methodology to assess a measure's contribution + All
The selection of a methodology to assess a
measure's contribution is a function of the nature of
the risk, the objective pursued, and the level of
protection sough; it ultimately also depends on the
nature, quantity, and quality of evidence existing at the
time the analysis is made; because the Panel, as the
trier of the facts, is in a position to evaluate these
circumstances, it should enjoy a certain latitude in
designing the appropriate methodology to use and
deciding how to structure or organize the analysis of
the contribution of the measure at issue to the
realization of the ends pursued by it; this latitude is not
boundless; a panel must analyze the contribution of
the measure at issue to the realization of the ends
pursued by it in accordance with the requirements of
Article XX of the GATT 1994 and Article 11 of the
DSU + All
(DS332)
The contribution of a measure to the realization of
the objective pursued by it (e.g., the reduction of a
risk) can be done either in quantitative or in qualitative
terms; there is no requirement that such a contribution
be quantified, however, the Panel's choice of a
qualitative analysis was within the bounds of the
latitude it enjoys in choosing a methodology for the
analysis of the contribution + All
(DS332)
DS433)
There is no requirement under Article XX(b) to
quantify, as such, the risk to human life or health; a
risk may be evaluated either in quantitative or
qualitative terms; the Panel assessed the nature and
the character of the risk posed by chrysotile-cement
products and found, on the basis of the scientific
evidence, that "no minimum threshold of level of
exposure or duration of exposure has been identified
with regard to the risk of pathologies associated with
chrysotile, except for asbestosis; the pathologies
which the Panel identified as being associated with
chrysotile are of a very serious nature, namely lung
cancer and mesothelioma, which is also a form of
cancer + All
Limitations on a qualitative analyses + All

The Panel recognizes that China's qualitative
argument relies on the standard economic theory of
the effects of an export restriction: an export
restriction on polluting raw materials, by reducing
foreign demand for the good on which it is imposed,
shifts supply of the good to the domestic market,
thus putting downward pressure on the domestic
price of the product; the reduction of the domestic
price of the good will decrease production and this,
in turn, will lower pollution; when analysed in
"isolation" (that is, for a single market and a single
policy measure), standard economics predicts that
an export restriction will reduce domestic
production; however, the Panel has reservations on
the validity of conducting an analysis of the effects
of an export restriction on a product in a specific
sector in "isolation"; it is important to consider the
export restrictions imposed on products in other
related sectors at the same time + All
Limitations on quantitative analyses + All
To determine the impact of its export restrictions
on manganese metal, magnesium metal, and
silicon carbide, China uses a simulation model,
whereas for its export restrictions on coke, it uses
an econometric regression model; the simulations
provide estimates as to what the effects of the
removal of a duty would be on the basis of a
demand and supply model of the market at issue,
whereas regressions measure what the effect of a
trade policy measure (in place for a certain time
period) has been; panel concerned about the
quality of the data used; analysis assumes that the
domestic supply and demand elasticities (that
measure the degree of responsiveness of supply
and demand to price changes, respectively) for
these products are the same as those it estimates
for coke when demand elasticities usually would be
different for different products; any quantitative
estimation of the comparative effects of an export
restriction on the EPRs at issue is highly
speculative given the lack of adequate data;
estimates based on incorrect data or incorrect
estimation procedures are not reliable; several
methodological issues with regression estimates +
All
The Panel analyzed the contribution of the Import
Ban to the achievement of its objective in a coherent
sequence; it examined first the impact of the

replacement of imported retreaded tyres with new
tyres on the reduction of waste; secondly, the Panel
sought to determine whether imported retreaded tyres
would be replaced with domestically retreaded tyres,
which led it to examine whether domestic used tyres
can be and are being retreaded in Brazil; thirdly, it
considered whether the reduction in the number of
waste tyres would contribute to a reduction of the risks
to human, animal, and plant life and health; panel's
analysis supports its conclusion that the Import Ban is
capable of making a contribution and can result in a
reduction of exposure to the targeted risks; fewer
waste tyres will be generated with the Import Ban in
place; Import Ban is likely to bring a material
contribution to the achievement of its objective of
reducing the exposure to risks arising from the
accumulation of waste tyres; Import Ban contributes to
the achievement of its objective; as a key component
of a comprehensive policy aiming to reduce the risks
arising from the accumulation of waste tyres, the
Import Ban produces a material contribution to the
realization of its objective; this contribution is sufficient
to conclude that the Import Ban is necessary, in the
absence of reasonably available alternatives + All
(DS332)
Panel unable to accept argument regarding material
contribution; the effect of an export tax is, by definition,
to increase the price of the products at issue when
destined for consumption outside China; China has
not identified any corresponding measure that it
applies to increase the price of the products at issue
when destined for consumption inside China; China
has not met its burden of proof in asserting that its
export duties are "apt to make a material contribution"
to the protection of human, animal and plant life and
health + All
DS433)
Panel not persuaded by the evidence provided by
China in support of its claim that its export restrictions
on EPR products currently make a material
contribution to the objective pursued; panel concerned
about the quality of the data used for the analysis and
the shortcomings of the estimation methods; even
assuming that the quantitative analysis is reliable, the
Panel of the view that given the importance of the
vertical structure of the metals industry, China's
economic analysis should have taken into account the
effects that export restrictions have on pollution
through the upstream and downstream sectoral
linkages, and the impact of measures that counter that
of the export restrictions; it may be that it is possible to
prove a material contribution with additional or

different evidence, but what we have before us does
not provide enough for us to conclude that the export
restrictions currently provide a material contribution +
All
China argued that export restrictions are apt to
make a material contribution in the long run because
export restrictions on EPR products will help China, as
a developing country, to reach its long-term
environmental goals by facilitating China's economic
growth which, in turn, leads to substantial
environmental protection; panel found that China's
claim that export restrictions on the EPRs at issue will
necessarily foster China's economic growth not
substantiated by sufficient evidence; even if growth
makes environmental protection statistically more
likely, this does not prove that export restrictions are
necessary for environmental gains; panel mindful of
the potential systemic consequences of accepting
China's argument about the long-term benefits of any
export restrictions as instruments to promote
sophisticated exports thereby favouring environmental
protection; if accepted as justifying WTO-inconsistent
measures, this would support the use of export
restrictions under Article XX(b) for any raw material +
All
China has not proved that the export measures it
has in place on scrap are currently making a material
contribution to the pollution reducing objective; China
even asserts that at present the effect of export duties
on scrap products is at best modest; such contribution,
if any, cannot be material, at least, in the present + All
China argues that its export duties on metal scrap
products are "apt to" make a material contribution in
the future to the objective recognized under Article
XX(b) as these measures are necessary for the
development of the recycling industry; to justify the
use of export restrictions on scrap, China identifies
high foreign demand for scrap and the unstable
foreign supply thereof as two factors that frustrate
China's long-term objective of substituting secondary
for primary production; however, there is no evidence
that supports China's claim that foreign demand for
scrap is a cause of the low level of development in
China of the recycling industry for magnesium,
manganese and zinc metals; furthermore, China does
not explain how, given its low level of exports of scrap,
the imposition of an export restriction would help
guarantee a critical mass of scrap resources and help

develop the recycling industry + All
In order to determine where the Drug Arrangements
are situated along this continuum between
"contribution to" and "indispensable", the Panel is of
the view that it should determine the extent to which
the Drug Arrangements contribute to the European
Communities' health objective; given the decreasing
trend of GSP benefits, the contribution of the Drug
Arrangements to the realization of the European
Communities' claimed health objective is insecure for
the future; it is difficult to deem such measure as
"necessary" in the sense of Article XX(b); given that
the benefits under the Drug Arrangements themselves
are decreasing, the Panel cannot come out to the
conclusion that the "necessity" of the Drug
Arrangements is closer to the pole of "indispensable"
than to that of "contributing to" in achieving the
objective of protecting human life or health in the
European Communities; the EC Regulation provides
for no monitoring mechanism on the effectiveness of
the Drug Arrangements for protecting human life or
health in the European Communities; the Drug
Arrangements and other preferential trade
arrangements can be suspended for any one of
several reasons at any time, regardless of the
seriousness of the drug problem in the country
concerned; given this fact, it is difficult to see how the
Drug Arrangements can be seen to be a "necessary"
means to achieve such an important objective as the
protection of human life or health; the whole design of
the EC Regulation does not support the European
Communities' contention that it is "necessary" to the
protection of human life and health in the European
Communities, because such design of the measure
does not contribute sufficiently to the achievement of
the health objective; with one or more of the main
drug-producing or trafficking countries outside the
scheme, it is difficult to see how the Drug
Arrangements are in fact contributing sufficiently to the
reduction of drug supply into the European
Communities' market to qualify as a measure
necessary to achieving the European Communities'
health objective + All
European Communities - Conditions for the Granting of
Tariff Preferences to Developing Countries (DS246)
Insofar as the intended objective is vehicle safety
and the reduction of CO2 emissions, measures that
discriminate against imported products do not appear
to make any contribution; to the contrary, if imported
vehicles subject to the same requirements as
domestic vehicles were not discriminated against, it is
possible that the number of safe and energy-efficient
vehicles within Brazil would actually increase,

particularly in the short term, meaning that far from
contributing to the stated objectives, the discriminatory
aspects actually detract from the attainment of that
objective; Brazil has not demonstrated that the
discriminatory aspects of the INOVAR-AUTO
programme have led, will lead, or are apt to lead, to an
increase in vehicle safety or energy efficiency;
although it is possible that the INOVAR-AUTO
programme could, in theory, contribute to these
objectives, Brazil has not demonstrated that the
discriminatory aspects of the programme are likely or
apt to contribute to the realisation of those goals; it is
likely that the INOVAR-AUTO programme will not
make much, if any, contribution to these objectives +
All
The intended use requirement effectively reduces
the risks arising from thawing chicken meat at tropical
temperatures in the traditional market to a significant
degree, since it does not allow any frozen chicken to
reach that market; the intended use requirement
makes an important contribution to protecting human
health; however, the specific risk to human health
associated with thawing meat at tropical temperatures,
does not arise, for example if frozen chicken remains
frozen by being kept, where available, in cold storage.
For such perfectly safe chicken, the intended use
requirement does not make any contribution to
ensuring that (only) safe chicken is sold in the
market + All
The accompanying restrictive impact of the law or
The less restrictive the effects of the measure, the
more likely it is to be characterized as necessary; in the
event of a very restrictive measure, the respondent
Member must demonstrate that the measure is carefully
designed so that the other elements to be taken into
account in weighing and balancing the factors relevant to
an assessment of the "necessity" of the measure will
"outweigh" such restrictive effect + All
When a measure produces restrictive effects on
international trade as severe as those resulting from an
import ban, it would be difficult for a panel to find that
measure necessary unless it is satisfied that the measure
is apt to make a material contribution to the achievement

of its objective; incorrect to suggest that, because it aims
to reduce risk exposure to the maximum extent possible,
an import ban that brings a marginal or insignificant
contribution can nevertheless be considered necessary +
All
(DS332)
context of: + All
Article XI:2(a) ("export prohibitions or restrictions") +
All
trade") + All
consumption") + All
Annex I, Ad Articles XI, XII, XIII, XIV and XVIII
("import restrictions") + All
The measures in place (export quotas and export
duties) are less restrictive than full "bans" would be
(except for zinc; China's arguments do not confirm that
the measures are not restrictive; the impact of an
export restriction on the world market does not depend
on the global availability of the raw natural resources
to manufacture EPR products, but on a country's
export market share in the EPR market; evidence
appears to show that China's share of global exports
in some of these products is quite significant (43.5%
for coke, 74.2% for magnesium containing ≥99.8% by
weight of magnesium, 57.9% for magnesium
containing <99.8% by weight of magnesium, and
74.2% of manganese); thus China's export
restrictions, even if modest, can have an important
impact worldwide; in absolute terms, the level of the
export duties is relatively low and the quotas are also

relatively open (with some of them not having been
filled in 2009); the impact of an export restriction
depends on the size of the exporting country + All
The measure is as trade-restrictive as can be, as far
as retreaded tyres from non-MERCOSUR countries
are concerned, since it aims to halt completely their
entry into Brazil + All
(DS332)
With respect to the reduced tax rates for certain
motor vehicles, this discriminatory aspect of the
INOVAR-AUTO programme results in a disincentive to
purchase imported motor vehicles; will have a material
impact on imports of those products; the overall trade-
restrictiveness of the INOVAR-AUTO programme is
material; the discriminatory rules on accreditation of
presumed IPI tax credits is highly trade-restrictive
because it prevents foreign companies operating
outside Brazil from obtaining accreditation, regardless
of their level of investment or expenditure in Brazil;
those aspects of the accreditation requirements
requiring the performance of a minimum number of
production-steps within Brazil (in respect of
accreditation as a "domestic manufacturer"), and the
purchase of Brazilian laboratory equipment, constitute
local content requirements, which discriminate against
imported automotive components and laboratory
equipment, are highly trade-restrictive for these
imported products; discriminatory rules on calculation
of presumed IPI tax credits particularly trade-restrictive
given that they penalize foreign companies and
imported strategic inputs and tools (whose level of
Brazilian content is likely to be non-existent or very
low); the discriminatory rules on the use of presumed
IPI tax credits, the Panel has noted that these rules
prioritize domestic vehicles over imported vehicles are
particularly trade-restrictive, because this aspect of the
measure incentivises the purchase of domestically
manufactured vehicles, which has a material impact
on imports of like motor vehicles; the level of trade-
restrictiveness of these aspects of the rules on
accreditation in order to receive the presumed IPI tax
credits, calculation of the amount of presumed IPI tax
credits to be accrued, and the use of presumed IPI tax
credits resulting from expenditure in strategic inputs
and tools, is material + All
The intended use requirement operates generally as
a trade restriction directly impacting the volume of
chicken that may be imported into Indonesia; this
restriction most notably affects access to modern

markets and traditional markets, which are altogether
excluded from the allowed uses + All
Weighing and balancing of the factors collectively + All
In the light of the importance of the interests protected by
the objective of the Import Ban, the contribution of the
Import Ban to the achievement of its objective outweighs its
trade restrictiveness + All
(DS332)
alternatives + All
In the first instance, the burden is upon the complaining
party to identify possible alternatives to the measure at issue
that the responding Member could have taken; the burden then
shifts to the responding party to demonstrate that the measure
proposed by the complaining party is not a genuine alternative
or is not "reasonably available", taking into account the
interests or values being pursued and the responding
Member's desired level of protection + All
In order to qualify as an alternative, a measure proposed by
the complaining Member must be not only less trade restrictive
than the measure at issue, but should also preserve for the
protection with respect to the objective pursued; if the
complaining Member has put forward a possible alternative
measure, the responding Member may seek to show that the
proposed measure does not allow it to achieve the level of
protection it has chosen and, therefore, is not a genuine
alternative; the responding Member may also seek to
demonstrate that the proposed alternative is not, in fact,
reasonably available; an alternative measure may be found not
to be reasonably available where it is merely theoretical in
nature, for instance, where the responding Member is not
capable of taking it, or where the measure imposes an undue
burden on that Member, such as prohibitive costs or
substantial technical difficulties; if the responding Member
demonstrates that the measure proposed by the complaining
Member is not a genuine alternative or is not reasonably
available, taking into account the interests or values being
pursued and the responding Member's desired level of
protection, it follows that the measure at issue is necessary +
All
Alternative measures must be WTO-consistent while

providing an equivalent contribution to the achievement of the
objective pursued through the challenged measure; the mere
existence of an alternative measure is not sufficient to prove
that the disputed measure is not necessary; a proposed
alternative must preserve for the responding Member its right
to achieve its desired level of protection with respect to the
objective pursued"; an alternative cannot be merely theoretical
in nature, for instance, where the responding Member is not
capable of taking it, or where the measure imposes an undue
burden on that Member, such as prohibitive costs or
substantial technical difficulties; if the complaining Member has
put forward a possible alternative measure, the responding
Member may seek to show that the proposed measure does
not allow it to achieve the level of protection it has chosen and,
therefore, is not a genuine alternative that is, in fact,
Is there an alternative measure consistent with the General
Agreement, or less inconsistent with it, which could reasonably
be expected to be employed to achieve the policy objectives; is
there an alternative measure that would achieve the same end
and that is less restrictive of trade; in cases where a measure
consistent with other GATT provisions is not reasonably
available, must use, among the measures reasonably
available, that which entails the least degree of inconsistency
with other GATT provisions + All
A comparison of the challenged measure with possible
alternative measures is not required when the challenged
measure makes no contribution to the achievement of the
stated objective + All
Chosen level of protection + All
A measure or practice will not be viewed as an alternative
unless it preserves for the responding Member its right to
achieve its desired level of protection with respect to the
objective pursued + All
(DS332)
Authority of a Member to set the public health or
environmental objectives it seeks to achieve and the level of
protection that it wants to obtain + All
It is within the authority of a WTO Member to set the
public health or environmental objectives it seeks to
achieve, as well as the level of protection that it wants to
obtain, through the measure or the policy it chooses to
adopt + All

(DS332)
Members have a large measure of autonomy to
determine their own policies on the environment
(including its relationship with trade), their environmental
objectives and the environmental legislation they enact
and implement; so far as concerns the WTO, that
autonomy is circumscribed only by the need to respect
the requirements of the General Agreement and the other
covered agreements + All
It is undisputed that WTO Members have the right to
determine the level of protection of health that they
consider appropriate in a given situation + All
In examining tensions that may exist between, on the
one hand, international trade and, on the other hand,
public health and environmental concerns arising from
the handling of waste generated by a product at the end
of its useful life, the fundamental principle is the right that
WTO Members have to determine the level of protection
that they consider appropriate in a given context + All
(DS332)
Brazil's chosen level of protection is the reduction of the
risks of waste tyre accumulation to the maximum extent
possible + All
(DS332)
The chosen level of health protection by France is a "halt"
to the spread of asbestos-related health risks; by prohibiting
all forms of amphibole asbestos, and by severely restricting
the use of chrysotile asbestos, the measure at issue is
clearly designed and apt to achieve that level of health
protection; conclusion not altered by the fact that PCG fibres
might pose a risk to health; the scientific evidence indicated
that the risk posed by the PCG fibres is, in any case, less
than the risk posed by chrysotile asbestos fibres, although
that evidence did not indicate that the risk posed by PCG
fibres is non-existent; perfectly legitimate for a Member to
seek to halt the spread of a highly risky product while
allowing the use of a less risky product in its place + All
"disguised restrictions" are elaborated upon in the context

of: + All
Article XI:1 ("prohibitions or restrictions other than duties,
taxes or other charges") + All
Article XI:2(a) ("export prohibitions or restrictions") + All
Article XX ("disguised restriction on international trade") +
All
consumption") + All
Ad Article XXVIII:1, paragraphs 4, 6 and 7 ("discriminatory
quantitative restrictions") + All
Annex I, Ad Articles XI, XII, XIII, XIV and XVIII ("import
restrictions") + All
Reasonableness of proposed alternative measure + All
In determining whether a suggested alternative measure is
"reasonably available", several factors must be taken into
account, besides the difficulty of implementation; one aspect of
the weighing and balancing process comprehended in the
determination of whether a WTO-consistent alternative measure
is reasonably available is the extent to which the alternative
measure contributes to the realization of the end pursued; the
more vital or important the common interests or values pursued,
the easier it would be to accept as "necessary" measures
designed to achieve those ends; + All
An alternative measure which is impossible to implement
is not "reasonably available" + All
Also relevant in a panel's assessment of available
alternatives is the capacity of the challenged Member to
implement remedial measures that would be particularly
costly, or would require advanced technologies + All
A panel cannot reject an environmental protection
measure, or a public health measure, by pointing to a WTO-
consistent or less trade-restrictive alternative, unless that
alternative is both practically and financially feasible for the
Member seeking to justify a WTO-inconsistent measure
under Article XX(b) and provides an equivalent contribution
to the achievement of the objective pursued + All

The capacity of a country to implement remedial
measures that would be particularly costly, or would require
advanced technologies, may be relevant to the assessment
of whether such measures or practices are reasonably
available alternatives to a preventive measure, such as the
Import Ban, which does not involve prohibitive costs or
substantial technical difficulties + All
(DS332)
Risks arising from the proposed alternative measure + All
Panel could not undertake a meaningful comparison of
the measure at issue with a possible alternative while
disregarding the risks arising out of the implementation of
the possible alternative; in this case, the Panel examined as
proposed alternatives landfilling, stockpiling, and waste tyre
incineration, and considered that, even if these disposal
methods were performed under controlled conditions, they
nevertheless pose risks to human health similar or
additional to those Brazil seeks to reduce through the Import
Ban; because these practices carry their own risks, and
these risks do not arise from non-generation measures such
as the Import Ban, these practices are not reasonably
available alternatives + All
(DS332)
Proposed alternative measures that is already part of a
comprehensive strategy + All
The European Communities referred to measures to
encourage domestic retreading or improve the retreadability
of used tyres, as well as a better enforcement of the import
ban on used tyres and of existing collection and disposal
schemes; like the Import Ban, 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; panel did not err in rejecting as
alternatives to the Import Ban components of Brazil's policy
regarding waste tyres that are complementary to the Import
Ban + All
(DS332)
Collective assessment of all the proposed alternatives + All
The European Communities argues that the Panel failed
to make a proper collective assessment of all the proposed
alternatives, a contention that does not stand for the
following reasons; first, the Panel did refer to its collective
examination of these alternatives in concluding that "none of
these, either individually or collectively, would be such that
the risks arising from waste tyres in Brazil would be safely

eliminated, as is intended by the current import ban";
secondly, some of the proposed alternatives are not real
substitutes for the Import Ban since they complement each
other as part of Brazil's comprehensive policy; finally, having
found that other proposed alternatives were not reasonably
available or carried their own risks, these alternatives would
not have weighed differently in a collective assessment of
alternatives + All
(DS332)
Indonesia did not address each of the individual variables
under this test, i.e. the importance of the objective, the
contribution of the measure to that objective and the trade-
restrictiveness of the measure; Indonesia has only made
some general comments about the measure, such as that
the health authorities prefer that horticultural products are
stored domestically within six months of harvest time in
order to facilitate inspection of stored imported horticultural
products; Measure 8 appears to be more concerned with
the management of inspection procedures than with food
safety issues posed by some horticultural products that
have been harvested more than six months prior to
importation; fail to see how Measure 8 contributes to
ensuring that fresh horticultural products consumed by
Indonesian people are still nutritious, safe and of good
quality when this Measure does not concern itself with the
harvesting time of products actually sold to consumers;
Measure 8 only regulates the harvesting time of imported
products for purposes of allowing their importation; this calls
into question any contribution Measure 8 can be said to
make to the stated policy objective of ensuring food safety
and thereby protecting human health; Indonesia has chosen
to impose an absolute ban on the importation of horticultural
products that have been harvested for more than six months
prior to importation which is the most trade-restrictive
measure that Indonesia could have chosen to address its
food safety concerns; existing health and phytosanitary
certificates for fresh horticultural products at the port of
origin can achieve the food safety objective of ensuring
consumers access to fresh, nutritious, chemical- and
preservative-free horticultural products; moreover, as the
measure already exists in Indonesia, it is clear that such a
measure would not suffer from being "merely theoretical in
nature" because Indonesia is "not capable of taking it"; nor
would the measure "impose an undue burden" on Indonesia
because it is already in place; bearing in mind Indonesia's
lack of argumentation concerning the "necessity" of
Measure 8 and the absence of any evidence supporting the
contribution of Measure 8 to the protection of human health
and the high degree of trade-restrictiveness that this
measure involves, Indonesia has not demonstrated that
Measure 8 is necessary to protect human, animal or plant
life or health in the sense of Article XX(b) of the GATT 1994;
Indonesia has not demonstrated that Measure 8 is
provisionally justified under subparagraph (b) of Article XX +

All
Indonesia - Importation of Horticultural Products, Animals
and Animal Products (DS477, DS478)
The complaints have identified alternative measures;
China has confirmed that it is already using a "diverse range
of complementary measures" to achieve its objective of
environmental protection; measures include: (i) its
requirement of strict compliance with environmental
requirements as a condition for access to the rare earth,
tungsten, and molybdenum industry and for obtaining a
share of the production and export quotas, (ii) compliance
with the Emission Standards of Pollutants from Rare Earths
Industry, (iii) the requirement for mines to make a deposit for
ecological recovery, and (iv) and the imposition of a
resource tax; China could increase the resource tax on ores
significantly enough to deter domestic production; China
could impose a pollution tax or "Pigouvian tax" whereby
producers are made to pay for each unit of pollution they
generate, thus matching the social cost of pollution; China
could increase volume restrictions on mining and production
or establish effective pollution controls on how mining or
production takes place; China offered no response to these
arguments; China has not met its burden of demonstrating
that the alternative measures identified by the complainants
are not reasonably available to China, or do not make the
same contribution as the challenged measure + All
China not able to justify why less trade restrictive and
WTO-consistent alternatives available, as identified by the
complainants and acknowledged to exist by China, cannot
be used in lieu of applying export restrictions; it is not a
question of imposing more onerous production-limiting
environmental measures, but of enhancing and
implementing existing environmental measures, as well as
establishing new ones where none exists, that have a direct
impact on pollution relating to the production of EPR
products; panel impressed by the breadth and the depth of
China's environmental actions and the regulatory potential
in the light of the various stated policy goals; this confirms
the complainants' contention that China has the regulatory
framework that puts in place high environmental standards
that could be used to obviate the need for export
restrictions; panel not informed of any specific operational
standards that these measures put in place, nor of any
specific procedural requirements and implementation
processes; a number of the measures also do not concern
or do not specifically mention the EPR or scrap products at
issue in this dispute, while others only express the intention
to apply export restrictions on certain products; these are
additional examples of measures that have the potential to
serve as an alternative to China's export restrictions on
EPRs; a number of other documents simply identify goals
rather than specific standards and that do not provide

evidence as to whether any policies were implemented to
seek to achieve these goals; panel finds it difficult to assess
to what extent these measures have affected the steel and
aluminium producers, and whether and how they have
contributed to the reduction of EPR pollution; no evidence
why these standards could not be used to replace the use of
export restrictions; China seems to have a regulatory
framework to put in place the alternative measures
suggested by the complainants; China has not
demonstrated that its export restrictions on EPRs, in
particular its export duties on manganese metal,
magnesium metal and coke, and its export quotas on coke
and on silicon carbide, are justified pursuant to Article
XX(b) + All
There are a number of measures that could promote more
effectively the supply of scrap and the development of
secondary production; China itself recognises the role that
measures such as the introduction of a labelling
requirement, incentive schemes, research grants, and low
import tariffs for secondary inputs, have had in developed
countries on the development of a secondary industry;
China recognizes that a major impediment to the
development of the recycling sector in China is the lack of
recycling infrastructure; but the recycling sector is expected
to be transforming rapidly or at least China states that it has
put in place measures aimed at promoting "the rapid growth
of domestic recycling and reprocessing industries"; there
are recycling infrastructure measures that China is in the
process of setting up to facilitate the development of scrap
supply; China has not demonstrated that its export duties on
manganese, magnesium and zinc scrap products are
justified pursuant to Article XX(b) + All
Measures to encourage domestic retreading or improve
the retreadability of used tyres, as well as a better
enforcement of the import ban on used tyres and of existing
collection and disposal schemes not reasonable alternative;
these measures already figure as elements of a
comprehensive strategy designed by Brazil to deal with
waste tyres and 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; non-generation measures are more apt to
achieve the objectives because they prevent the
accumulation of waste tyres, while waste management
measures dispose of waste tyres only once they have
accumulated; panel examined as proposed alternatives
landfilling, stockpiling, and waste tyre incineration, and
considered that, even if these disposal methods were
performed under controlled conditions, they nevertheless
pose risks to human health similar or additional to those
Brazil seeks to reduce through the Import Ban; because

these practices carry their own risks, and these risks do not
arise from non-generation measures such as the Import
Ban, these practices are not reasonably available
alternatives; material recycling not a reasonably available
alternative to the Import Ban because it is not as effective as
the Import Ban in reducing the exposure to the risks arising
from the accumulation of waste tyres; material recycling
applications are costly, and hence capable of disposing of
only a limited number of waste tyres; some of them might
require advanced technologies and know-how that are not
readily available on a large scale; none of the proposed
options was a reasonably available alternative to the Import
Ban + All
(DS332)
At least one, less-inconsistent alternative is available to
the European Communities to achieve its health objective,
that of financial and technical assistance combined with
multilaterally negotiated tariff reductions that provide
sufficient tariff reductions on products of export interest to
drug-affected countries; while the European Communities
states that tariff reductions, offered more generally, would
dilute the effect of the preferences to the beneficiary
countries, the European Communities has not demonstrated
to the satisfaction of the Panel that such alternatives are not
reasonably available to it and would not achieve the
equivalent effect as the Drug Arrangements; multilaterally
negotiated tariff reductions on products for which the drug-
affected countries have a real export interest would provide
equivalent benefits to these countries; such an approach to
taking care of the interests of a certain group of countries
was already sanctioned in the Agreed Conclusions for the
least-developed countries + All
Indonesia could have chosen to address its food safety
concerns; existing health and phytosanitary certificates for
fresh horticultural products at the port of origin can achieve
the food safety objective of ensuring consumers access to
fresh, nutritious, chemical- and preservative-free
horticultural products; moreover, as the measure already
exists in Indonesia, it is clear that such a measure would not
suffer from being "merely theoretical in nature" because
Indonesia is "not capable of taking it"; nor would the
measure "impose an undue burden" on Indonesia because
it is already in place + All
Indonesia - Importation of Horticultural Products, Animals
and Animal Products (DS477, DS478)
First alternative is to provide tax exemptions to users for
sales of all the products at issue that comply with its energy
efficiency and vehicle safety standards, regardless of its
origin; second alternative is the elimination or substantial
reduction of customs duties on the products at issue that
comply with Brazil's energy efficiency and vehicle safety

standards; third alternative is the granting of IPI tax credits,
or other types of tax credits, to all cars and components that
satisfy specific efficiency targets, regardless of the
manufacturing steps performed in Brazil or the level of
domestic content; fourth alternative is to provide subsidies
for all products that comply with Brazil's energy efficiency
and vehicle safety standards, regardless of the origin of the
product; fifth alternative is the imposition of direct
requirements relating to energy efficiency and vehicle safety
that apply to all products regardless of their origin;
alternatives identified are WTO-consistent and less-trade-
restrictive than the discriminatory aspects of the INOVAR-
AUTO programme, and which would achieve an equivalent
or higher degree of contribution to the claimed objective as
the challenged measures; not demonstrated that the
alternative measures identified by the complaining parties
were not reasonably available, were not less trade-
restrictive, or failed to make an equivalent contribution to the
claimed policy objectives + All
(DS472, DS497)
Two categories of proposed alternative measures: (a)
those that (potentially) address Indonesia's concern
regarding the thawing of chicken meat at tropical
temperatures in the market and (b) those that address
potential concerns regarding the refreezing of previously
frozen chicken; a third alternative not proposed but plainly
before the panel; the cold storage requirement a less-trade
restrictive alternative that is reasonably available and meets
Indonesia's objective; a cold storage requirement could be
considered to fall under "rules regulating the thawing of
frozen chicken"; given that an alternative less-trade-
restrictive measure exists that equally meets Indonesia's
objective, the measure does not comply with the
requirements of the necessity test + All
Indonesia - Measures Concerning the Importation of Chicken
Meat and Chicken Products (DS484)
Article XX(d) + All
Where it is shown that measure not designed to secure
compliance, there is no need to assess whether measure is
necessary + All
A measure that is not suitable or capable of securing compliance
with the relevant laws or regulations will not meet the "necessity"
requirement + All
When Article XX(d) is invoked to justify an inconsistency with Article
III:4, what must be shown to be "necessary" is the treatment giving
rise to the finding of less favourable treatment; thus, when less
favourable treatment is found based on differences in the regulation of
imports and of like domestic products, the analysis of an Article XX(d)
defence should focus on whether those regulatory differences are
"necessary" to secure compliance with "laws or regulations" that are
not GATT-inconsistent; must justify the differential treatment afforded

to imported versus domestic products under the measure + All
All
Products (DS363)
Products (DS363)
Products (DS363)
GATS, it is not the responding party's burden to show, in the first
instance, that there are no reasonably available alternatives to
achieve its objectives; in particular, a responding party need not

identify the universe of less trade-restrictive alternative measures
and then show that none of those measures achieves the desired
objective; the WTO agreements do not contemplate such an
impracticable and, indeed, often impossible burden; it is for a
responding party to make a prima faciecase that its measure is
"necessary" by putting forward evidence and arguments that
enable a panel to assess the challenged measure in the light of the
relevant factors to be "weighed and balanced" in a given case; the
challenged measure, but it is under no obligation to do so in order
to establish, in the first instance, that its measure is "necessary"; if
the panel concludes that the respondent has made a prima
facie case that the challenged measure is "necessary"— that is,
"significantly closer to the pole of 'indispensable' than to the
opposite pole of simply 'making a contribution to- then a panel
should find that challenged measure "necessary"; if, however, the
complaining party raises a WTO-consistent alternative measure
that, in its view, the responding party should have taken, the
responding party will be required to demonstrate why its
challenged measure nevertheless remains "necessary" in the light
of that alternative or, in other words, why the proposed alternative
is not, in fact, reasonably available + All
[TLG Editorial Note: The following reasoning was presented in
the context of Article 2.2 of the TBT Agreement but appears

sequence and order is discernible both in the Appellate Body's past
analyses in respect of Article 2.2 of the TBT Agreement, as well as
in the relevant jurisprudence relating to Article XX of the GATT
1994 and Article XIV of the GATS; the particular manner of
sequencing the steps of the necessity analysis is adaptable, and
may be tailored to the specific claims, measures, facts, and
arguments at issue in a given case; the sequence and order of
analysis appropriate in a given case may depend on the
characteristics of the technical regulation at issue as revealed
through its design and structure, as well as on the nature of the
objective pursued and the quantity, quality, and availability of
evidence; it may also depend on which elements are the focus of
contention between the disputing parties, and which, if any, are
conceded or undisputed between the parties; this adaptability of
the sequence or order is indicative of a holistic weighing and
balancing of all relevant factors; in the context of Article XX of the
GATT 1994, the sequence and order of analysis in the
circumstances of Brazil – Retreaded Tyres called for a "preliminary
conclusion" on the necessity of the challenged measure before
proceeding to a comparison with proposed alternatives, whereas
such a "preliminary conclusion" was not considered to be a
requisite aspect of the sequence and order of analysis in the
circumstances of EC – Seal Products + All
In most cases, a comparison between the challenged measure
and possible alternatives should then be undertaken; while there
may be circumstances in which a weighing and balancing exercise
would not require that a panel proceed to evaluate alternative
measures (for instance, when the challenged measure is not trade
restrictive, or when it makes no contribution to the objective), such
an exercise does not mandate a preliminary determination of the
necessity of the challenged measure before proceeding to assess
those alternatives; a preliminary determination of necessity is not
required before proceeding to compare the challenged measure
with possible alternatives + All
holistically: a. the importance of the objective, b. the contribution of
the measure to the achievement of the objective pursued, c. the
trade-restrictiveness of the measure, and d. if the preliminary
conclusion is that the measure is necessary, the result should be
confirmed by comparing the challenged measure with possible,
reasonably available, WTO-consistent or less inconsistent
alternatives that could have less trade-restrictive effects while
making an equivalent contribution to the achievement of the
objective pursued + All
In examining necessity in the context of Article XX(d) of the GATT
1994 the following factors should be comprehensively weighed and
balanced: a. the importance of securing compliance with the law or
regulation at issue, b. the contribution of the measure to securing
compliance with the law or regulation at issue, and c. the trade-
restrictiveness of the measure, d. if the preliminary conclusion is that
the measure is necessary, the result should be confirmed by
comparing the measure with possible, reasonably available
alternatives that could have less trade-restrictive effects and make an
equivalent contribution to securing compliance with the law or

regulation at issue + All
factors + All
In order to be considered "necessary" to secure compliance, a
measure does not need to be "indispensable", but should constitute
something more than strictly "making a contribution to"; measures
which are indispensable or of absolute necessity to secure
compliance certainly fulfil the requirements of Article XX(d); other
measures may fall within the ambit of this exception; as used in
Article XX(d), the term "necessary" refers to a range of degrees of
necessity; at one end of this continuum lies "necessary"
understood as "indispensable"; at the other end, is "necessary"
taken to mean as "making a contribution to"; a "necessary"
measure is, in this continuum, located significantly closer to the
pole of "indispensable" than to the opposite pole of simply "making
a contribution to" + All
The determination of whether a measure, which is not
"indispensable", may nevertheless be "necessary" within the
contemplation of Article XX(d), involves in every case a process of
weighing and balancing a series of factors which prominently
include the contribution made by the compliance measure to the
enforcement of the law or regulation at issue, the importance of the
common interests or values protected by that law or regulation, and
the accompanying impact of the law or regulation on imports or
exports; the weighing and balancing of factors should be
conducted through consideration of the factors individually and in
relation to each other; weighing and balancing is a holistic
operation that involves putting all the variables of the equation
together and evaluating them in relation to each other after having
examined them individually, in order to reach an overall
judgement + All
In assessing the "necessity" of a measure within the meaning of
Article XX(d), several criteria should be taken into consideration,
including a weighing and balancing of these aspects: (i) the relative
importance of the common interests or values that the law or
regulation to be enforced is intended to protect - the more vital or
important those common interests or values are, the easier it would
be to accept as "necessary" a measure designed as an
enforcement instrument; (ii) the extent to which the measure
contributes to the realization of the end pursued, the securing of
compliance with the law or regulation at issue - the greater the
contribution, the more easily a measure might be considered to be
"necessary"; and (iii) the extent to which the compliance measure
produces restrictive effects on international commerce, that is, in
respect of a measure inconsistent with Article III:4, restrictive
effects on imported goods - a measure with a relatively slight
impact upon imported products might more easily be considered as
"necessary" than a measure with intense or broader restrictive
effects + All
The weighing and balancing process is comprehended in the
determination of whether a WTO-consistent alternative measure
which the Member concerned could "reasonably be expected to
employ" is available, or whether a less WTO-inconsistent measure
is "reasonably available" + All
There was a lack of sufficient clarity with respect to several key

aspects of the "necessity" analysis concerning the defence that
Colombia presented to the Panel under Article XX(d); in particular,
there was a lack of sufficient clarity regarding the degree of
contribution of the measure at issue to securing compliance with
Article 323 of Colombia's Criminal Code, and the degree of trade-
restrictiveness of the measure; without sufficient clarity in respect
of these factors, a proper weighing and balancing that could yield a
conclusion that the measure is "necessary" could not be
conducted; in the light of these considerations, the Panel's findings
support the conclusion that Colombia has not demonstrated that
the conclusion resulting from a weighing and balancing exercise is
that the measure at issue is "necessary" to secure compliance with
Article 323 of Colombia's Criminal Code; Colombia has not
demonstrated that the compound tariff is a measure "necessary to
secure compliance with laws or regulations which are not
inconsistent" with the GATT 1994, within the meaning of Article
XX(d) + All
Criteria that should be taken into consideration + All
protect + All
The contribution of the measure to the realization of the ends
pursued by it + All
The accompanying restrictive impact of the law or regulation
on imports or exports + All
Assuming, for the sake of argument, that the compound tariff
was designed to secure compliance with the Colombian anti-
money laundering legislation, Panel concludes that, even
though the objective of securing compliance with the Colombian
anti-money laundering legislation reflects social interests that
could be characterized as vital and important in the highest
degree, Colombia has failed to demonstrate the contribution of
the compound tariff to the alleged objective of securing
compliance with the Colombian anti-money laundering
legislation; for this reason, and taking into account the restriction
on international trade caused by the compound tariff, Colombia
has failed to demonstrate that the compound tariff is a measure
necessary to secure compliance with the Colombian anti-money
laundering legislation and, more specifically, Article 323 of the
Criminal Code + All
Whether the DCR measures are "essential" or "necessary"
would need to reflect a coherent perspective and even-handed
approach with respect to the assessment of the DCR measures'
trade-restrictiveness and the assessment of the DCR measures'
contribution to ensuring Indian SPDs' access to a continuous
and affordable supply of the solar cells and modules needed to
generate solar power; thus, if it were concluded that the DCR
measures have had a "relatively slight impact upon imported
products" based on the facts that the DCR measures apply only
to projects within the National Solar Mission rather than more
broadly within India's solar energy market, and that the scope
and coverage of the applicable DCR measure did not extend to
all types of cells, modules, and/or projects, then those same

facts would also have to be taken into account in the
assessment of the contribution of the DCR measures to their
objective + All
alternatives + All
A measure will not be considered "necessary" within the
meaning of Article XX(d) if an alternative measure which a Member
could reasonably be expected to employ and which is not
inconsistent with other GATT provisions is available to it; the
complaining Member has the burden to identify possible
alternatives to the measure at issue that the respondent could have
taken + All
In most cases, a comparison between the challenged measure
and reasonably available alternative measures should then be
undertaken + All
The complaining member has the burden to identify possible
alternatives + All
An alternative measure must be one that preserves for the
protection with respect to the objective pursued and is reasonably
available to it; in addition to the difficulty of implementing a
measure, consideration should be given to the following: (i)
whether it is a WTO-consistent measure or entails a lesser degree
of inconsistency, (ii) the extent to which it contributes to the
realization of the end pursued, and (iii) whether it has effects less
trade-restrictive than the measure at issue + All
Whether a WTO-consistent alternative measure which the
Member concerned could "reasonably be expected to employ" is
available, or whether a less WTO-inconsistent measure is
"reasonably available" + All
The fundamental issue for the purpose of determining whether the
DCR measures are "necessary" under Article XX(d) is whether the
DCR measures ensure, or reduce the risk of a disruption in, Indian
SPDs' access to a continuous and affordable supply of the solar cells
and modules needed to generate solar power; India argues that the
DCR measures "have been designed to secure compliance with
India's obligations under its law and regulations which require it to
ensure ecologically sustainable growth and sustainable development",
and it explains that they do so "by creating a local manufacturing base
for solar PV cells and modules, in order to ensure the ability of
[domestic manufacturers to] satisfy the requirements for such cells
and modules" by Indian SPDs + All
Authority of a Member to set the public health or environmental objectives
it seeks to achieve and the level of protection that it wants to obtain + All
It is within the authority of a WTO Member to set the public health or
environmental objectives it seeks to achieve, as well as the level of
protection that it wants to obtain, through the measure or the policy it
chooses to adopt + All

Members have a large measure of autonomy to determine their own
policies on the environment (including its relationship with trade), their
environmental objectives and the environmental legislation they enact
and implement; so far as concerns the WTO, that autonomy is
circumscribed only by the need to respect the requirements of the
General Agreement and the other covered agreements + All
Gasoline (DS2)
It is undisputed that WTO Members have the right to determine the level
of protection of health that they consider appropriate in a given situation +
All
In examining tensions that may exist between, on the one hand,
international trade and, on the other hand, public health and
environmental concerns arising from the handling of waste generated
by a product at the end of its useful life, the fundamental principle is
the right that WTO Members have to determine the level of protection
that they consider appropriate in a given context + All
The party invoking an exception bears the burden of proof in
demonstrating that the inconsistent measures come within its scope + All
United States - Standards for Reformulated and Conventional Gasoline
(DS2)
Sanitary and phytosanitary measures + All
Sanitary or phytosanitary measures which conform to the relevant
provisions of the SPS Agreement shall be presumed to be in
accordance with Article XX(b) + All
SPS Agreement, Article 2.4 (Annotated) view in new window
An interpretation of the covered agreements that resulted in sovereign
States being legally prevented from taking measures that are necessary to
protect the environment or human, animal or plant life or health would likely
be inconsistent with the object and purpose of the WTO Agreement; such a
result could even rise to the level of being "manifestly absurd or
unreasonable + All
China - Measures Related to the Exportation of Rare Earths, Tungsten and
Molybdenum (DS431, DS432, DS433)
Relationship with other provisions + All
GATT 1994 + All
Relationship between Articles III:4 and XX(b) + All
Relationship between Articles XX(b) and XX(d) + All
Same approach of analysis under the two provisions +
All
European Communities - Conditions for the Granting of
Tariff Preferences to Developing Countries (DS246)
Article XX(b) of the GATT 1994 is concerned with
measures that are "necessary" to protect human, animal,
or plant life or health, whereas Article XX(g) of the GATT

1994 is concerned with measures "relating to" the
conservation of exhaustible natural resources; in the light
of the different connecting words used, a mixing of the
different tests under Article XX(b) and Article XX(g),
absent of context, would result in an approach that ignores
the important distinctions between the various
subparagraphs of Article XX; "contribution" is only one
aspect of the "weighing and balancing" analysis called for
in an assessment of "necessity" under Article XX(b); even
if one were to contemplate applying the analytical
framework for the "necessity" test to determine whether a
measure "relates to" conservation, China has not
persuaded us that a piece-meal application of a single
element of the "necessity" test, absent of context, suffices;
this does not suggest that an examination of the
"contribution" that a challenged measure makes to a
conservation objective could never be useful in assessing
whether a "close and genuine relationship of ends and
means" exists between that measure and the conservation
objective for the purposes of Article XX(g); nevertheless,
using a "contribution" test for the "relating to" analysis, is
not, by itself, an appropriate substitute for a holistic
assessment of whether a measure has a close, genuine,
and substantial relationship to conservation for the
purposes of Article XX(g) + All
DS433)
Relationship between Articles XX(b) and XXIII:1(b) + All
SPS Agreement + All
Relationship between Articles XX(b) of the GATT 1994 and 2
of the SPS Agreement + All
Article 2 of the SPS Agreement is an example of rules
that elaborate Article XX(b); an SPS measure that has
been found inconsistent with Articles 2 and 5 of the SPS
Agreement, cannot be justified under Article XX(b) of the
GATT 1994 + All
United States - Certain Measures Affecting Imports of Poultry
from China (DS392)
Relationship between Articles XX(b) of the GATT 1994 and
2.2 of the SPS Agreement + All
GATT 1994 + All
from China (DS392)

GATT 1994 + All
from China (DS392)
Article XX(b) of GATT 1994 does not impose the same
constraints as Article 3.3 of the SPS Agreement + All
Relationship between Articles XX(b) of the GATT 1994 and 5
of the SPS Agreement + All
An SPS measure that has been found inconsistent with
Articles 2 and 5 of the SPS Agreement, cannot be justified
under Article XX(b) of the GATT 1994 + All
from China (DS392)
GATT 1947 Jurisprudence (pre-WTO) - Article XX(b)

Article XX (B) - TLG

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4/26/2020 Annotated Text

GATT 1994 -- Article XX(b)

Article Citator - Article XX(b)

a Member must be able to show how these instruments fulfil the

points to the objective as being to ensure that no importation

us to conclude that Measure 7 is "not incapable" of protecting

their industry; the development of the industry could enable an

talks of measures "imposed for the protection of national

baseline tied to the producer of a product; it was the task of the

China - Measures Affecting Trading Rights and Distribution

judgement; a measure's contribution is thus only one

restrictiveness, in the light of the importance of the interests or

Colombia - Measures Relating to the Importation of Textiles,

evaluate alternative measures (for instance, when the

pursued, rather than merely ascertaining whether or not the

European Communities - Measures Prohibiting the

The meanings of "prohibitions or restrictions",

existence of a "disguised restriction on international

issue is being applied in a manner that constitutes a

cases, extend beyond an assessment of the restrictive

China - Measures Related to the Exportation of

China - Measures Related to the Exportation of

in qualitative terms that the measure was "apt to produce a

desired level of protection with respect to the objective pursued

suffice to demonstrate that the alternative would impose an

alternative and is reasonably available, taking into account the

to protect human, animal or plant life or health, to secure

The weighing and balancing process for assessing necessity

alternative measures and then show that none of those

[TLG Editorial Note: The following reasoning was presented

Colombia - Measures Relating to the Importation of Textiles,

protection of public morals is a highly important value or

No minimum level of contribution is required in order

would be inherently more careful in conducting content

trade-restrictive measure as an alternative to the EU Seal

importing textile products, apparel and footwear at prices

The accompanying restrictive impact of the law or

The Panel identified differences in the restrictive effect

Brazil - Certain Measures Concerning Taxation and

high level of protection of public morals in respect of the

The alternative measure proposed by the complainants was

Under the necessity analysis, there is a need to identify

factors to be "weighed and balanced" in a given case; the

A "necessary" measure is, in a continuum, located

Criteria that should be taken into consideration (including

The greater the contribution a measure makes to the

quantitative projections in the future, or qualitative

environmental objectives pursued; this is not,

Limitations on a qualitative analyses + All

sequence; it examined first the impact of the

prove a material contribution with additional or

guarantee a critical mass of scrap resources and help

vehicles within Brazil would actually increase,

is apt to make a material contribution to the achievement

export duties is relatively low and the quotas are also

restriction most notably affects access to modern

Alternative measures must be WTO-consistent while

Brazil - Measures Affecting Imports of Retreaded Tyres

"disguised restrictions" are elaborated upon in the context

China - Measures Related to the Exportation of Various Raw

the risks arising from waste tyres in Brazil would be safely

provisionally justified under subparagraph (b) of Article XX +