SSRN Id2825203

The Necessity Test in World Trade Law: What Now?
Ming Du ∗
Forthcoming in Chinese Journal of International Law (2016)
Abstract
The necessity test in the GATT/WTO legal system has long been attacked on two
grounds. First, the legal test formulated by the WTO Appellate Body to assess
necessity has been described as ambiguous, illogical and arbitrary. Second, the WTO
Appellate Body’s stringent interpretation of the necessity requirement has interfered
with WTO Members’ domestic choices about policy objectives. This article revisits
these conventional criticisms in the light of the recent WTO case law and attempts to
make three claims in relation to the necessity test in WTO law. First, we now have a
much clearer understanding of the role each element of the necessity test plays, how
different elements interact and how to draw a conclusion after weighing and
balancing these elements. Second, the WTO Appellate Body has gradually and
substantially relaxed the necessity test over the past decade. It is no longer justifiable
to depict the necessity test as a straightjacket. Third, the WTO Appellate Body has
successfully pushed for a broad convergence in necessity tests across various WTO
Agreements, despite their textual and structural differences.
I. Introduction ..................................................................................................................... 2
II. The Evolution of the Necessity Test under GATT Article XX ......................... 4
II.1 The Early Jurisprudence and its Critics .......................................................................... 4
II.2 The Ambiguous and Illogical Weighing and Balancing Test ...................................... 8
III. An Anatomy of the ‘Weighing and Balancing Test’ under GATT Article XX
after EC – Seal Products ................................................................................................. 12
III.1 The Relative Importance of the Non-Trade Values Pursued ................................. 12

∗
Professor of Chinese and Comparative Law, School of Law, University of Surrey, UK. Email:
Michael.mingdu@gmail.com.
1
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III.2 The Contribution Analysis ............................................................................................. 14
III.3 Trade Restrictiveness of the Measure .......................................................................... 20
III.4 ‘Reasonably available’ alternative Measures ............................................................. 21
III.5 A Flexible and Less Stringent Weighing and Balancing Test ................................. 25
IV. The Necessity Test in Other WTO Agreements ............................................... 30
IV.1 Article 2.2 of the TBT Agreement ................................................................................. 30
IV.2 Article 5.6 of the SPS Agreement .................................................................................. 37
IV.3 Article XIV and Article VI:4 of the GATS ................................................................. 40
IV.4 The Convergence of Necessity Tests in the WTO Law ............................................. 41
V. Conclusion .................................................................................................................... 42
I. Introduction
The WTO inherited a basic bifurcated structure of policing trade barriers from the
GATT 1947. On the one hand, substantive WTO obligations, such as Article I (most
favoured nation treatment), Article III (national treatment), and Article XI (general
elimination of quantitative restrictions) prohibit WTO Members from exercising overt
and covert discrimination between like products; on the other hand, GATT Article
XX, on ‘General Exceptions’, contains provisions permitting deviation from trade
liberalization commitments under enumerated circumstances. Permitted deviations
include measures ‘necessary to protect public morals’, ‘necessary to protect human,
animal or plant life or health’ and ‘relating to the conservation of exhaustible natural
resources’, among others. To render one of the Article XX exceptions applicable, the
measure at issue must address the particular interest specified in that paragraph and
that there must be a ‘sufficient nexus' between the measure and the interest protected.1
The ‘sufficient nexus’ required is determined by the wording of the provisions. In
broad brush, the general tendency of GATT Article XX’s jurisprudence may be

1
Appellate Body Report, European Communities – Measures Prohibiting the Importation and
Marketing of Seal Products (EC– Seal Products), WT/DS400/AB/R, adopted on 18 June 2014, para
5.169; Appellate Body Report, United States- Measures Affecting the Cross-Border Supply of
Gambling and Betting Services (US – Gambling), WT/DS285/AB/R, adopted on 7 April 2005, para
292; Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef
(Korea – Beef), WT/DS/161/AB/R, adopted 11 December 2000, para 157.
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characterized as deferential to members’ policy objectives but considerably less
deferential to their choice of policy instruments. 2 Since ‘necessary’ is the most
frequently used nexus requirement in Article XX, WTO adjudicators regularly inquire
whether a measure is ‘necessary’ to achieve the stated objective. If a measure is found
not ‘necessary’, it should be withdrawn and an alternative measure be taken instead.
Despite its central position in justifying trade measures pursuing legitimate public
policy objectives in WTO law, the necessity test has been heavily criticized over the
years. These criticisms centre around two issues. First, the legal standard that the
WTO Appellate Body (‘AB’) formulated has been described as ambiguous, illogical,
arbitrary and unpredictable.3 The opaque legal standard has in turn led to the second
problem of the expansion of the jurisdiction of WTO Panels, demonstrating a
disconcerting dependence on their discretion for the survival of domestic regulatory
choices. 4 This article submits that these oft-repeated criticisms are no longer
justifiable in light of the recent developments in WTO case law. Specifically, this
article makes three claims on the necessity test in WTO law. First, the necessity test
could no longer be described as ambiguous and illogical. The AB has provided clear
instructions on how to examine each element of the test, how different elements of the
necessity test interact and how to draw a conclusion after weighing and balancing

2
Alan Sykes, ‘Economic “Necessity” in International Law’, 109 (2) AJIL 296 (2015), at 303-304.
3
Donald H Regan, ‘The Meaning of ‘Necessary’ in GATT Article XX and GATS Article XIV: The
Myth of Cost- Benefit Balancing’, 6 World Trade Review 347 (2007), at 348; Chad p. Bown and Joel
P. Tratchman, ‘Brazil – Measures Affecting Imports of Retreated Tyres: A Balancing Act’, 8 World
Trade Review 85 (2009), at 129 -131; Filippo Fontanelli, ‘Necessity Killed Article XX GATT and the
Misleading Rhetoric about ‘Weighing and Balancing’, 5 (2) European Journal of Legal Studies 36
(2012), at 55.
4
Gisele Kapterian, ‘A Critique of the WTO Jurisprudence on Necessary’, 59 ICLQ 89 (2010), at 91;
Benn McGrady, ‘Necessity Exceptions in WTO Law: Retreaded Tyres, Regulatory Purpose and
Cumulative Regulatory Measures’, 12 JIEL (2008) 153, at 162-163; Arthur Appleton, ‘GATT Article
XX’s Chapeau: A Disguised ‘Necessary’ Test?’, 6 (2) RECEIL 131 (1997), at 136; Thomas J.
Schoenbaum, ‘International Trade and Protection of the Environment: the Continuing Search for
Reconciliation’,91AJIL 268 (1997), at 276.
3
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these elements. Second, the AB has substantially relaxed the necessity test over the
past decade. This is particularly the case when the values or interests pursued by the
disputed measures are important, such as human life or safety. Third, the AB has
successfully pushed for a broad convergence in necessity tests across WTO
Agreements, despite their textual and structural differences.
The rest of the paper is structured as follows. Part II traces the evolution of the
necessity test from the original ‘least trade restrictive’ test to a more nuanced
‘weighing and balancing’ test under GATT Article XX. Part III provides a closer look
at each element of the necessity test, as well as how different elements interact in light
of the recent WTO case law. The analysis shows that, through a number of important
rulings, the WTO AB has quietly clarified much of the previous confusion about the
necessity test. Part IV extends the analysis to the necessity tests embodied in the
Agreement on Technical Barriers to Trade (the TBT Agreement), the Agreement on
the Application of Sanitary and Phytosanitary Measures (the SPS Agreement) and the
General Agreement on Trade in Services (the GATS). Part V concludes.
II. The Evolution of the Necessity Test under GATT Article XX
II.1 The Early Jurisprudence and its Critics
The term ‘necessary’ in Article XX (d) was first interpreted by the GATT panel in US
- Section 337 case, where the panel stated:
[A] contracting party cannot justify a measure inconsistent with

another GATT provision as ‘necessary’ if an alternative measure
which it could reasonably be expected to employ and which is not
inconsistent with other GATT provision is available to it…[I]n cases
where a measure consistent with other GATT provisions is not
4

reasonably available, a contracting party is bound to use, among the
measures reasonably available to it, that which entails the least degree
of inconsistency with other GATT provisions.5
Subsequently, another GATT panel in Thailand – Cigarettes held that the purpose of
the exceptions in Article XX was ‘to allow contracting parties to impose trade
restrictive measures inconsistent with the GATT to pursue overriding public policy
goals to the extent that such inconsistencies were unavoidable’.6 Such inconsistent
measures could be considered to be ‘necessary’ only if ‘there were no alternative
measure consistent with the GATT, or less inconsistent with it, which a Member
could reasonably be expected to employ’.7 The requirement that a GATT contracting
party must use the least GATT - inconsistent measures reasonably available to it is
generally known as the ‘least trade restrictive’ (LTR) test in WTO law.8
A careful reflection of the LTR test, as outlined in US - Section 337 and Thailand –
Cigarettes, reveals that its definition leaves many critical questions not answered.
Precisely how does a panel determine whether a proposed regulatory choice is a
viable alternative for the disputes measure? When an alternative measure
unquestionably achieves a WTO member’s regulatory objective with less trade-
disruptive effects, the measure at issue fails the LTR test, and should be struck down.
But what if a proposed alternative may be somewhat more costly for a WTO Member
to implement? What if a proposed alternative, although less burdensome on trade, is
less effective in achieving a Member’s desired level of protection? Is the measure at

5
GATT Panel Report, United States Section 337 of the Tariff Act of 1930, L/6439, adopted 7
November 1989, BISD 36S/345, para 5.26.
6
GATT Panel Report, Thailand – Restrictions on Importation of and Internal Taxes on Cigarettes
(Thailand – Cigarettes), DS10/R, adopted 7 November 1990, BISD 37S/200, para 74.
7
Ibid, para 75.
8
The requirement for parties to use the ‘least inconsistent’ measure reasonably available is just a
linguistic variant of a least restrictive means test. See Alan O Sykes, ‘The Least Restrictive Means’, 70
University of Chicago Law Review 403 (2003), at 406.
5

issue ‘necessary’ under such circumstances?
For good reason, the early GATT jurisprudence on the LTR test was sharply criticized
as odd and demonstrating a strong ‘pro-trade’ bias.9 To begin with, a textual reading
of GATT Article XX shows that the task of a WTO panel is to address whether a
measure found to be inconsistent with substantive GATT obligations is nevertheless
‘necessary’ for a legitimate regulatory objective. However, the GATT panels
frequently inquired whether the extent of inconsistency between the measure and the
WTO obligations was necessary, rather than on the measure’s relationship with the
regulatory goal. 10 As Schoenbaum criticized: ‘necessary is no longer relates to the
protection of living things, but to whether or not the measure is a necessary departure
from the trade Agreement’.11
Moreover, the language used in some GATT panel reports suggested that a proposed
alternative measure has to be ‘less inconsistent with the GATT’ than the challenged
measure.12 As Voon criticizes, the introduction of the ‘less inconsistent’ concept is
curious, both because of the difficulty of assessing degree of WTO – inconsistency
and because a WTO – inconsistent measure, even if less inconsistent than the
challenged measure, must surely not be reasonably available to the respondent as an
alternative to avoid a WTO violation.13

9
Robert Howse, ‘Human Rights in the WTO: Whose Rights? What Humanity? Comments on
Petersmann’, 13 EJIL 651 (2002), at 657.
10
For example, GATT Panel report, US – Section 337, above n 5, para 5.27; See also Appellate Body
Report, EC – Seal Products, above n 1, para 5.185.
11
Schoenbaum, above n 4, at 269.
12
GATT Panel Report, Thailand – Cigarettes, above n 6, para 74.
13
Tania Voon, ‘Exploring the Meaning of Trade-Restrictiveness in the WTO’, 15 World Trade Review
451 (2015), at 465.
6

Finally, although GATT panels stressed that they respect a contracting party’s desired
of level of enforcement of the law14, in practice they seemed to be bent on finding a
hypothetically available alternative measure with less adverse trade effects, while
neglecting the regulatory prerogatives of the defending GATT contracting parties.15 In
addition, GATT panels were largely insensitive to the practical regulatory experiences
of national governments and little consideration was given to whether the proposed
alternative measures were feasible in light of a Member’s particular social, political
and economic conditions.16 In Thailand – Cigarettes, for example, Thailand put a ban
on imported cigarettes on the basis that the imports came with sophisticated western
marketing techniques that were persuading large numbers of young people to take up
smoking, thereby triggering a future health crisis. The panel found that there was a
less trade restrictive alternative of stringent regulation of advertising and marketing
methods, thus the Thailand ban on cigarettes was not ‘necessary’. However, the panel
ignored evidence before it from the World Health Organization suggesting that in a
number of cases developing countries had discovered that, given their legal and
monetary resources, tobacco multinationals were able to find their way around such
restrictions once their products were on the market in the country concerned. 17
Largely due to the perceived deficiencies of the LTR test, the GATT/WTO panels
were charged with dictating the specific measure to be adopted by a WTO Member18,

14
GATT Panel Report, US – Section 337, above n 5, para 6.1.
15
Kapterian, above n 4, at 103.
16
Deborah Akoth Osiro, ‘GATT/WTO Necessity Analysis: Evolutionary Interpretation and Its Impact
on the Autonomy of Domestic Regulation’, 29 Legal Issues of Economic Integration 123 (2002), at
127-28.
17
GATT Panel Report, Thailand – Cigarettes, above n 6, paras 27, 51.
18
Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products,
WT/DS58, adopted 15 May 1998, para 3.228.
7

or imposing hypothetically available alternative measures that WTO panels deem
desirable on WTO Members.19
II.2 The Ambiguous and Illogical Weighing and Balancing Test
Starting from Korea – Beef, the WTO jurisprudence on ‘necessary’ has begun its slow
evolution from the LTR test.20 In Korea – Beef, the AB explained that the word
‘necessary’ is not limited to that which is ‘indispensable’. The AB added:
The term ‘necessary’ refers, in our view, 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’. We consider that 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’.21
The AB then explained that the determination of whether a measure is ‘necessary’
requires a ‘process of weighing and balancing’. In the AB’s words:
[T]he determination of ‘necessary’… 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.22
In particular, the more vital or important those common interests or values are, the
greater the contribution to the realization of the end pursued; the less trade-restrictive
impact on imports, the easier a measure would be accepted as “necessary”.23

19
Howse, above n 9, at 657.
20
Appellate Body Report, Korea – Beef, above n 1, para 166.
21
Ibid, para 161.
22
Ibid, para 164.
23
Ibid, paras 162-63.
8

In US – Gambling, the AB laid out the detailed procedural steps to conduct the
weighing and balancing process. The US – Gambling case was adjudicated under
Article XIV of the GATS. Nevertheless, the AB’s analysis helps shed light on the
interpretation of ‘necessary’ under Article XX of the GATT. 24 The AB divided the
determination of ‘necessary’ into two separate steps. The first step is the three-factor
weighing and balancing process that the AB outlined in Korea – Beef:
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… in most cases, will be
relevant to a panel’s determination of the ‘necessity’… One factor is
the contribution of the measure to the realization of the ends pursued
by it; the other factor is the restrictive impact of the measure on
international commerce.25
If the first step of the analysis yields a preliminary conclusion that the measure is
‘necessary’, the second step comes into play. The preliminary result must be
confirmed by comparing the measure with possible alternative measures, which may
be less trade restrictive while providing an equivalent contribution to the achievement
of the objective pursued.26 This comparison should be carried out in the light of the
importance of the interests or values at stake.27 The complaining Member bears the
burden of identifying possible alternatives to the measure at issue that the responding
Member could have taken.28 In China – Audiovisual Products, the US challenged the
sequence analysis but the AB upheld it as the correct approach to the necessity test.29

24
Appellate Body Report, US – Gambling, above n 1, para 291.
25
Ibid, para 306.
26
Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres (Brazil – Retreaded
Tyres), WT/DS332/AB/R, adopted 17 Decemeber 2007, para 156.
27
28
Appellate Body Report, Brazil – Retreated Tyres, above n 26, para 156; Appellate Body Report, EC
– Seal Products, above n 1, para 5.261.
29
Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for
Certain Publications and Audiovisual Entertainment Products (China – Publications and Audiovisual
Products), WT/DS363/AB/R, adopted 19 January 2010, para. 248.
9

The weighing and balancing test was frequently criticized as being ambiguous.30 At
best a crude cost-benefit analysis, the AB has only outlined a range of variables that
should be taken into account, but never clearly illustrated how to weigh and balance
these variables and in particular, how the variables of the weighing and balancing test
would interact in making the determination. The AB only offered a mysterious
announcement in US – Gambling:
[T]he 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 judgment.31
Applying a legal standard to pass upon the legality of a disputed measure, whilst
failing to spell out how it works, creates important repercussions to the world trading
system. It enables the AB to keep maximum adjudicatory flexibility; but it leaves
Member states uncertain of the legality of their measures. As Bown and Trachtman
criticized:
[W]hilst the WTO AB has spoken of … weighs and balances to some

degree each of the four factors mentioned above, it has never
documented in an opinion its application of this type of test… Most
importantly, it has shown itself unwilling to evaluate for itself, or to
require a panel to evaluate, in any but the most gross categories, any of
these four factors. Yet, one might ask, if you consider these factors, but
you do not compare them with each other… how do you determine
which domestic measures are acceptable and which are not? … The
result is on an opinion that is so incoherent as to leave states unsure as
to what types of measures may withstand scrutiny.32
Conceptually, four different legal tests may be employed by WTO adjudicators to
determine whether a proper balance is struck between trade liberalization and social
regulation objectives. Juxtaposed in the order of intrusiveness into the domestic

30
Michael Ming Du, ‘Autonomy in Setting Appropriate Level of Protection: Rhetoric or Reality? 13
JIEL1077 (2010), at 1095.
31
Appellate Body Report, US – Gambling, above n 1, at para. 182.
32
Bown & Trachtman, above n 3, at 88.
10

regulatory order, these four tests are suitability test, LTR test, proportionality test and
cost-benefit test. 33 Each of these tests infers a different standard by informing the
vertical allocation of power between adjudicator and Member states.
Where does the weighing and balancing test fit in this conceptual framework? Clearly,
the weighing and balancing test is much more intrusive than the suitability test, which
only requires that the means chosen is indeed a rational means to a purported end.
Also, the weighing and balancing test does not amount to a strict cost-benefit
analysis.34 This is because WTO panels do not require quantifying the costs and
benefits of alternative regulatory policies in any mathematical form. Rather, they
proceed more impressionistically and qualitatively to assess the effects of alternative
policies on trade, the administrative difficulties and resource costs associated with
alternative policies, and the regulatory efficacy of those policies.35
It is unclear how the weighing and balancing test relates to the LTR test as, in the
WTO context, the two tests seem to be inherently inconsistent and cannot be applied
simultaneously.36 Also unclear is to what extent the AB has endorsed the EC law
concept of proportionate strictu sensu in GATT Article XX.37 The confusion derives
from the same source. On the one hand, the AB has held unequivocally the WTO
Members’ autonomous right in setting their own appropriate levels of protection
(ALOP); and on the other hand, the AB has devised a multi-factor weighing and
balancing test, subjecting, inter alia, the importance of the regulatory value to

33
For a detailed explanation of these four different tests, see Joel P Trachtman, ‘Trade and…
Problems, Cost-Benefit Analysis and Subsidiarity’, 9 EJIL32 (1998), at 35-6.
34
Regan, above n 3, at 348; Joel P. Trachtman, ‘Regulatory Jurisdiction and the WTO’, 10 JIEL 631
(2007), at 647.
35
Sykes, above n 8, at 415-416.
36
Regan, above n 3, at 351-352.
37
Proportionate strictu sensu examines whether the means are proportionate to the ends, i.e., whether
the costs are excessive in relation to the benefits.
11

scrutiny. The problem is that, simply in moving from the LTR test to a weighing and
balancing test, the AB would seem to be violating the freedom of Members to set
their own ALOP in their political economy.38 If, as the AB has repeatedly insisted, it
respects the ALOP set by a Member, then the only question to be asked is whether the
measure adopted to achieve that level is the least restrictive in its trade effects. By
contrast, the weighing and balancing test, at least from the wording, may prompt a
panel to balance the benefits obtained by the measure, the trade loss associated to the
measure, and to strike down the measure if the cost-benefit analysis is
disproportionate. In doing this, however, a WTO panel will be substituting its value
judgment for that of the Member in determining the level of acceptable risk. The
Member’s autonomy in setting its ALOP will not be as absolute as the AB claimed.39
III. An Anatomy of the ‘Weighing and Balancing Test’ under GATT Article XX
after EC – Seal Products
To what extent do the criticisms discussed above still hold true today? It is submitted
that, though there are still some lingering doubts, the AB has clarified much of the
previous confusion about the weighing and balancing test in more recent cases,
particularly China – Audiovisual Products and EC – Seal Products. Importantly, the
AB has provided clear instructions on how to examine each element of the weighing
and balancing test, and what constitutes a ‘reasonably available’ alternative measure,
the key issue of the necessity analysis.
III.1 The Relative Importance of the Non-Trade Values Pursued

38
JHH Weiler, ‘Comment on Brazil – Retreaded Tyres’, 8 World Trade Review 137 (2009), at 141.
39
Du, above n 30, at 1096.
12

The relative importance of the values furthered by the challenged measure plays an
important role in the weighing and balancing test. First, the weighing and balancing
process begins with an assessment of the ‘relative importance of the interests or
values’ pursued. 40 Second, the importance of the values at stake informs the
comparison between the measures in dispute and possible alternative measures.41
It is rather surprising that the AB has sanctioned a review of the relative importance
of the values pursed by the disputed measure. One may wonder why the AB has a
legitimate role in evaluating the importance of domestic policy goals that are
explicitly listed in Article XX as exceptions to substantive obligations in the GATT. 42
Aren’t all values so listed important for all WTO Members? In any case, there is no
textual warrant for the AB to second-guess the relative importance of values pursued.
Nevertheless, the WTO case law shows that the relative importance of the value
protected by the measure at issue plays an important role in the weighing and
balancing process, particularly in ascertaining the efficacy of proposed alternative
measures in achieving a Member’s regulatory objective. If the value at stake is high,
for example, human health and safety, the AB tends to respect the Member’
regulatory choice and considers necessary very strict enforcement aimed at even zero
risk, even if that meant a very heavy burden on imports. EC – Asbestos, US –
Gambling and Brazil – Retreated Tyres are typical examples in which important
values were at stake. By contrast, where the interests and values furthered by the
disputed measure are perceived as relatively unimportant, and the proposed

40
41
Ibid, para 304.
42
Robert Howse and Elisabeth Turk, ‘The WTO Impact Upon Internal Regulations: A Case Study of
the Canada – EC Asbestos Dispute’, in George A Bermann and Petros C Mavroidis (eds). Trade and
Human Health and Safety (Cambridge University Press, 2006), at 113; Steve Charnovitz, ‘The Law of
Environmental “PPMs” in the WTO: Debunking the Myth of Illegality’, 27 Yale J. Int’L L. 59 (2002),
at 101.
13

alternative measure is considerably less trade restrictive, the AB will condemn the
challenged regulation even when the efficacy of the proposed alternative may be less
than the efficacy of the challenged regulation. 43 Korea – Beef and Dominican
Republic – Cigarettes fall into this category.44
In EC – Seal Products, Canada argued that although the protection of public morals
was in principle a highly important value, it did not agree that the specific public
moral concern over the seal welfare was important.45 Canada’s argument raised an
interesting question of how to assess the importance of the value or interest protected.
The AB dodged the question but insisted that a panel has authority to assess the
importance of the value. Also, the AB noted the panel had concluded that it did not
consider ‘the level of protection actually achieved by the measure is as high as the
European Union claims the measure initially aimed to achieve’ and that it would ‘bear
this in mind’ in its assessment of the alternative measure.46 This seems to indicate that
the importance of the value could at least partially be inferred from the contribution of
the measure to achieve the Member’s claimed level of protection.
III.2 The Contribution Analysis
The second important factor in the weighing and balancing test is the contribution of
the measure to the realization of the regulatory objective. In Brazil – Retreated Tyres,
the AB found:
[S]uch a contribution exists when there is a genuine relationship of

ends and means between the objective pursued and the measure at
issue. The selection of a methodology to assess a measure’s
contribution is a function of the nature of the risk, the objective

43
Sykes, above n 8, at 416.
44
Du, above n 30, at 1095 – 1096.
45
Appellate Body Report, EC – Seal Products, above n 1, para 5.202.
46
Ibid, para 5.203.
14

pursued, and the level of protection sought. It ultimately depends on
the nature, quantity, and quality of evidence existing at the time the
analysis is made… The Panel should enjoy certain latitude in
designing the appropriate methodology to use and deciding how to
structure or organize the analysis of the contribution of the
measure…47
In Brazil – Retreated Tyres, the panel concluded that the prohibition on the
importation of retreaded tyres was capable of making a contribution to the objective
pursued by Brazil. The EC appealed this finding and argued that the panel should
have sought to establish the ‘actual contribution’ of the measure to its stated goals, as
well as the importance of such contribution. Accordingly, the panel erred by not
quantifying the reduction of waste tyres resulting from the import ban. 48 The AB
rejected the EC’s argument and held that the assessment of the contribution could be
performed either quantitatively or qualitatively.49
If the contribution does not need to be quantified, to what extent should the measure
contribute to the regulatory objective? The AB stated:
[W]hen a measure produces restrictive effects … as severe as those

resulting from an import ban… It would be difficult for a panel to find
that measure necessary unless … the measure is apt to make a material
contribution to the achievement of its objective.50
Thus, it seems that the extent of the contribution required depends on the trade
restrictiveness of the measure at issue. The more restrictive the measure, the more
contribution needs to be demonstrated.
The AB’s ruling in Brazil – Retreated Tyres has raised some difficult questions. For
example, the AB used ‘capable of making a contribution’ at one place whilst ‘apt to

47
Appellate Body Report, Brazil – Retreated Tyres, above n 26, para 145.
48
Ibid., para 137.
49
Ibid, paras 146-47.
50
Ibid, para 150.
15

make a material contribution’ at another place. The AB also rejected the EC’s
argument that the panel should assess the actual contribution of the measure to
asserted regulatory objective. Then, is there a pre-determined threshold in the
contribution analysis in the sense that the contribution must be ‘material’ under
certain circumstances? How does a panel determine whether the contribution of the
measure is ‘material’ or not? Do the phrases ‘capable of making a contribution’ and
‘apt to make a material contribution’ used by the AB imply that a panel should only
identify possible, instead of actual, contribution of the measure at issue? Do they
mean the same thing? Do they represent a generally applicable standard in the
contribution analysis, or only applicable to the specific facts in Brazil – Retreated
Tyres?
Almost immediately after EC – Retreated Tyres, the AB retreated from its position on
the contribution analysis. In China – Audiovisual Products, the AB explicitly required
that a panel should always perform the ‘actual contribution’ analysis:
A party should seek to establish necessity through ‘evidence or data,

pertaining to the past or the present’, establishing that the measure at issue
contribute to the achievement of the objective pursued. In examining the
evidence, a panel must always assess the actual contribution made by the
measure to the objective pursued.51
In this case, the panel simply stated that the Chinese State Plan, which limited the
number of import entities, could make a material contribution to the protection of
public morals. The AB faulted the panel’s approach as problematic:
The Panel neither addressed quantitative projections nor provided qualitative

reasoning based on evidence before it to support that finding. The Panel report

51
Appellate Body Report, China – Audiovisual Products, above n 29, para 252.
16

contains no discussion of how or to what extent that State plan requirement
can or does make a contribution52
Similarly, in EC – Seal Products, the panel examined only the design, structure, and
expected operation of the EU Seal Regime, and concluded that the EU regime was
‘capable of making’, and did make, some contribution to protecting public morals.
The AB found that this finding ‘was not very detailed, nor provided much information
as to the precise degree or extent of the contribution’. Because there was only limited
and uneven information relating to the actual contribution of the measure, the AB
refused to overrule the panel on this issue since it was ‘not clear that the panel could
have done more’.53 Nevertheless, the inference must be that if there were additional
evidence supporting an analysis of the precise degree or extent of the contribution, a
panel would be obliged to do so.
In EC – Seal Products, the AB has made some important clarifications of the
contribution analysis. First, there is no pre-determined threshold of ‘material
contribution’ in the contribution analysis, even if the measure at issue is highly trade
restrictive. This is because a measure’s contribution to its regulatory objective is only
one component of the necessity calculus under Article XX. The flexibility of such an
exercise does not allow for the setting of pre-determined thresholds in respect of any
particular factor.54
Second, despite the AB’s requirement for the ‘actual contribution’ analysis, there is
still an important role for the ‘capable of making a contribution’ or ‘apt to make a
material contribution’ test to play in the contribution analysis under certain
circumstances. In EC – Seal Products, the AB highlighted the very special nature of

52
Ibid., Para 294.
53
54
Ibid., para 5.213 – 5.216.
17

the Brazilian measure in EC – Retreated Tyres. To begin with, the Brazilian import
ban formed part of a comprehensive policy designed and implemented to deal with
the public health and environmental consequences of waste tyres. This has caused
some practical difficulty of ‘isolating the contribution to public health of one specific
measure from those contributing to other measures that are part of the same
comprehensive policy’.55 Moreover, the impact of the measure was not yet realized,
but it was ‘apt to’ induce changes over time in the behaviour and practices of
commercial actors in a manner contributing to the regulatory objective. Such changes
were not measurable at the time of the WTO legal proceeding and ‘can only be
evaluated with the benefit of time’. In such circumstances, it is appropriate for the
panel to ‘project what contribution will be brought about by the measure’56
However, it does not necessarily mean that an argument for a measure being apt to
make a contribution in the future is an easy route to prove the ‘necessary’ nexus. In
China – Audiovisual Products, the AB rejected the panel’s conclusion that the
requirement of complying with the Chinese State plan was apt to make a material
contribution to the protection of Chinese public morals’:
The panel neither addressed quantitative projections nor provided qualitative

reasoning based on evidence before it to support that finding. The Panel report
contains no discussion of how or to what extent the State plan requirement can
or does make a contribution.57
This shows that even the AB acknowledges the possible consideration of the
predictable effects of a measure, such predictable effects must be supported by
evidence and convincing reasoning. Simple assertions of such effects are not adequate.

55
Ibid, para 5.224.
56
Ibid.
57
18

Finally, the EC – Seal Products dispute has raised the issue of how to conduct a
contribution analysis for a measure with multiple, and even mutually contradictory,
features. In this case, the contribution of the EU Seal Regime to its objective of
protecting EU public morals was lowered by the exceptions of the measure since the
exceptions allowed imports of seal products that caused the exactly same public moral
concerns. For each regulatory objective, the Panel identified both the positive and
negative contributions of the different elements of the measure and assessed whether
the measure has resulted in a net overall contribution.58
The contribution analysis in GATT Article XX necessity test bears a close
resemblance to the ‘relating to’ test in Article XX (g). To begin with, both tests
demand a ‘close and genuine relationship of ends and means’.59 Furthermore, both
analyses take into account the fact that measure at issue may form part of a
comprehensive policy or only be ‘apt to’ to contribute to environment conservation
since the results of regulatory actions may not be immediately observable.60 However,
there are also differences between the two tests. Different from the AB’s requirement
for assessing the ‘actual contribution’ of the measure in the necessity test, the AB
does not demand an ‘empirical effects test’ when assessing the ‘relating to’ nexus,
even though panels are not precluded from doing so.61 Moreover, while the ‘relating
to’ test is an independent nexus test under Article XX (g), the contribution analysis is
only one element of the more sophisticated weighing and balancing test designed to
interpret ‘necessary’ in GATT Article XX (a), (b) and (d).

58
59
Appellate Body Report, China – Measures Related to the Exportation of Rare Earths, Tungsten and
Molybdenum (China – Rare Earth), WT/DS431/AB/R, adopted 20 May 2014, para 5. 90.
60
Ibid., para 5.113 and para 5.115.
61
Ibid., para 5.113.
19

III.3 Trade Restrictiveness of the Measure
The third element to be weighted and balanced is the restrictive impact of the disputed
measure on international trade. In China – Audiovisual Products, the AB stated that
the meaning of trade restrictiveness in the context of Article XX should be understood
in light of the substantive GATT obligations being violated, and the assessment may
extend beyond the restrictive effects on imported products.62 It must be emphasized
that a violation of substantive GATT obligations such as Article I, III and XI does not
require the demonstration of any actual trade effects, and the focus of analysis is on
the protection of competitive opportunities available to imported products.63 So is the
trade restrictiveness test. Actual trade flows are not required to demonstrate trade
restrictiveness. Trade restrictiveness exists if the measure negative affects the
competitive opportunities available to imported products.64
In China – Audiovisual Products, China submitted evidence showing that the number
of titles of newspapers and publications imported into China had increased from 2002
to 2006. However, the panel found that this increase did not necessarily indicate that
China’s measures had not had any trade restrictive effects because the statistics did
not indicate what import levels might have been if the measures had not been
imposed.65 The AB endorsed the panel’s approach of assessing not only the restrictive
impact of the measures on imports, but also their ‘restrictive effect . . . on those
wishing to engage in importing, in particular on their right to trade’. 66 The

62
63
Panel Report, Argentina – Measures Affecting the Export of Bovine Hides and Import of Finished
Leather, WT/DS155/R, adopted 16 February 2001, para 11.20.
64
Panel Report, United States – Certain Country of Origin Labeling (COOL) Requirements (US –
Cool), WT/DS384//R, para 7.572.
65
Appellate Body Report, China- Audiovisual Products, above n 29, para 300.
66
Ibid, para 311.
20

introduction of this additional element reflects a novel and thoughtful approach to
applying GATT Article XX in the context of trading rights.67
III.4 ‘Reasonably available’ alternative Measures
The last step of the weighing and balancing test contemplates a determination as to
whether a WTO-consistent, or a less WTO-inconsistent measure is reasonably
available.68 In China – Audiovisual Products, the AB clarified that the identification
of a reasonably available alternative measure is usually done by the panel assessing
the contribution that the alternative measure would make to the protection of the
legitimate interests, and its restrictive impact, and then compare these to the panel’s
previous analysis of these same factors in the first step of the weighing and balancing
test.69
A ‘reasonably available’ alternative must meet four conditions. First, it must be less
trade restrictive than the measure at issue. 70 Second, it must preserve for the
responding Member its right to achieve its desired ALOP. Third, it is not merely
theoretical in nature and will not impose an undue burden on the Member, such as
prohibitive costs or substantial technical difficulties.71 Finally, the alternative measure
must be consistent or less inconsistent with the WTO.72

67
Tania Voon, ‘China – Measures Affecting Trading Rights and Distribution Services for Certain
Publications and Audiovisual Entertainment Products’, 103 AJIL 710 (2009), at 715.
68
Appellate Body Report, EC – Seal Products, above n 1, para 5.261; Appellate Body Report, Korea –
Beef, above n 1, para 166;
69
70
Appellate Body Report, Brazil – Retreated Tyres, above n 26, para 156; Appellate Body Report, EC
71
Appellate Body Report, US – Gambling, above n 1, para 308; Appellate Body Report, Brazil –
Retreaded Tyres, above n 26, para 156.
72
Appellate Body Report, EC – Seal Products, above n 1, para 5.261; Appellate Body Report, Korea –
Beef, above n 1, para 166.
21

In practice, a complainant’s assertion that a proposed alternative measure is less trade
restrictive is not routinely challenged, perhaps because a complainant would have
little incentive to propose a more trade restrictive measure. 73 Similarly, the
consistency or inconsistency of a proposed alternative measure with the WTO
Agreements has never become an issue in the WTO dispute settlement processes. The
phrase ‘less inconsistent with the WTO’ is a remnant from the early GATT
jurisprudence and it should be properly understood as ‘less trade restrictive’.
Most controversy on the necessity test centres on the extent to which a proposed
alternative measure could achieve the responding Member’s desired ALOP and/or
whether it is practically feasible for a responding Member to adopt the alternative
measure. In EC – Asbestos, Canada argued that ‘controlled use’ of asbestos-
containing products was a reasonably available alternative measure. The AB rejected
the proposition because, according to the available scientific evidence, controlled use
of asbestos was not able to achieve the EC’s desired level of protection of zero-risk
from Asbestos.74 In China – Audio-visual Products, the AB found that giving the
Chinese government sole responsibility for conducting content review on imported
cultural goods was a reasonably available alternative measure because it would both
allow China to preserve its desired level of protection of public morals and be
significantly less trade restrictive. China argued that the proposed alternative was not
reasonably available because it would impose an undue financial and administrative
burden on China. Though the AB admitted that the alternative measure might involve

73
Voon, above n 13, at 468.
74
WTO Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-
Containing Products (EC – Asbestos), WT/DS135/AB/R, adopted 5 April 2001, para 169.
22

some change or administrative cost, China failed to provide evidence to prove that it
would impose an undue burden on it.75
In EC – Seal Products, the proposed alternative measure consisted of market access
for seal products that would be conditioned on compliance with animal welfare
standards, certification and labelling requirements.76 Because the contours of the EU
animal welfare standards were not clearly defined, the panel considered the possibility
of stringent versus lenient versions of a certification system and what impact they
might have on the objective of the EU Seal Regime.77 The AB found that even the
most stringent certification system would be difficult to implement and enforce, and
would lead to increased numbers of inhumanly killed seals.78 The AB further found
that making the welfare standards or the certification and labelling requirements more
lenient would make the alternative measure more reasonably available but would not
meaningfully contribute to addressing EU public moral concerns regarding seal
welfare.79 On this basis, the AB held that the alternative measure was not reasonably
available to the EU.
Whether a proposed alternative measure is ‘reasonably available’ may be considered
either from a WTO Member’s perspective or the perspective of the affected industry.
In Brazil – Retreated Tyres, for example, the AB stated that an alternative measure is
not reasonably available ‘where the responding Member is not capable of taking it, or
where the measure imposes an undue burden on that Member, such as prohibitive

75
Appellate Body Report, China – Audio-visual Products, above n 29, para 328.
76
77
Ibid, para 5.272.
78
Ibid, para 5.279.
79
Ibid.
23

costs or substantial technical difficulties’. 80 In EC – Seal Products, Canada and
Norway argued that a Panel should not consider the costs and burdens on the
industries concerned; only the burdens and costs imposed on the responding WTO
Member are relevant for a finding of whether the alternative measure is reasonably
available.81 The AB held that it would not 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.82
A reasonably available alternative cannot be determined by reference to the efforts
undertaken by a Member to negotiate an alternative measure because necessity is a
property of the measure itself. In US – Gambling, the AB rejected Antigua’s
contention that its engagement in consultations with the US with a view to arriving at
a negotiated settlement that achieves the same objective, was a reasonably available
alternative because consultations are a process, the results of which are uncertain and
therefore not capable of comparison with the measure at issue.83
A complementary measure in a broader regulatory scheme is not a reasonably
available alternative measure. Frequently, two or more measures may each be
necessary in order to achieve a particular regulatory goal. They have different effects
and work cumulatively, rather than interchangeably, towards a broader regulatory
scheme. In this sense, the necessity of one measure is not undermined by the

80
Appellate Body Report, Brazil – Retreated Tyres, above n 26, para 156. Also see Appellate Body
Report, US – Gambling, above n 1, para 308.
81
82
Ibid, para 5.277.
83
Appellate Body Report, US – Gambling, above n 1, paras 316 – 317.
24

availability of another measure that will advance the same regulatory goal.84 In Brazil
– Retreated Tyres, the EC proposed a series of alternatives such as measures to
encourage domestic retreading or to improve the retreadability of tyres, a better
enforcement of the import ban on used tyres, and a better implementation of existing
collection and disposal schemes, are complementary to the import ban. The AB
considered that all these measures constitute mutually supportive elements of a
comprehensive policy to deal with waste tyres and they could be considered real
alternative to the import ban.85
III.5 A Flexible and Less Stringent Weighing and Balancing Test
Starting from Korea – Beef, and continuously refined through EC – Asbestos, US –
Gambling, Brazil – Retreated Tyres, China – Audiovisual Products and EC – Seal
Products, the AB has developed a sophisticated weighing and balancing test. As can
be seen above, the AB has provided clear instructions on how to examine each
element of the weighing and balancing test. As a result, we have a much better
understanding of how the AB draws a conclusion after weighing and balancing these
elements.
In EC – Seal Products, the AB reversed its previous holding that the two-step
sequence analysis it originally outlined in US – Gambling must be strictly followed.86
The AB made it clear that the two-step analysis was not a rigid requirement; a
preliminary conclusion was not considered a requisite aspect of the sequence and
order of analysis.87 This holding eliminated the previous puzzle of how to reach a

84
McGrady, above n 4, at 166-68.
85
Appellate Body Report, Brazil – Retreaded Tyres, above n 26, para 211.
86
87
Appellate Body Report, EC – Seal Products, above n 1, fn 1299 to para 5.215.
25

preliminary conclusion on the necessity of the measure after consideration of the
relative importance of the interests or values, the contribution of the measure, and the
trade restrictiveness of the measure.
It is now clear that the weighing and balancing test, despite whatever its name implies,
is in essence a refined LTR test. 88 The key of the weighing and balancing test is to
determine whether or not there exists alternative measures, which may be less trade
restrictive compared to the challenged measure, while providing an equivalent
contribution to the achievement of the objective pursued.89 The purpose of examining
the other two elements, the contribution of the measure to the ends pursued and the
trade restrictiveness of the challenged measure, is simply to make the comparison
between the challenged measure and the proposed alternative measure more explicit
and straightforward. This comparison is essential to determine whether or not the
challenged measure is ‘necessary’.
The only wild card is the role of the relative importance of the interests or values
pursued by the challenged measure. In US – Gambling, the AB stated that the
comparison of the measure at issue with possible alternative measures should be
carried out in the light of the importance of the interests or values at stake.90 Previous
research argues that the importance of the values at stake provides a powerful
explanation of why the AB sometimes respects a WTO member’s regulatory choice
and considered necessary very trade restrictive measures, whilst on other occasions

88
Regan, above n 3, at 347-369; Fontanelli, above n 3, at 48 -49.
89
Appellate Body Report, Brazil – Retreated Tyres, above n 26, para 156.
90
Appellate Body Report, US – Gambling, above n 1, para 304. However, in all the cases, WTO Panels
and the Appellate Body only examined the four factors that the Appellate Body explicitly identified in
Korea – Beef. Other factors have never been examined.
26

condemned the challenged regulation even when the efficacy of the proposed
alternative may be less than the efficacy of the challenged regulation.91
The more recent development in the TBT Agreement cast in doubt the continuing
explanatory power of this value-based interpretation. In US – Cool, the regulatory
objective of the US labelling scheme was to provide consumer information on origin
of meat, arguably a value of less importance compared to human health and safety.92
Nevertheless, the AB demonstrated great sensitivity when evaluating whether
proposed alternative measures were able to achieve the US regulatory objective. For
example, Mexico proposed voluntary origin labelling as a less trade restrictive
alternative. The AB noted the unwillingness of US consumers to pay for origin
information and low participation in voluntary labelling programs in the past and
expressed doubts on the effectiveness of a voluntary labelling scheme to achieve the
US objective.93 With regard to a mandatory labelling scheme based on the country of
substantial transformation, the AB observed that this could only partially contribute to
the US objective of providing information to consumers.94 To what extent will this
new development in the TBT jurisprudence influence the jurisprudence under GATT
Article XX remains to be seen.
It is further submitted that the weighing and balancing test, after the AB’s constant
refinement, tends to give more respect to WTO Members’ domestic regulatory
autonomy than the GATT/WTO panels did in the earlier years.95 To begin with, in

91
Du, above n 30, at 1100- 1101.
92
Appellate Body Report, United States – Certain Country of Origin Labeling (COOL) Requirements
(US – Cool), WT/DS384/AB/R, adopted 29 June 2012, para 453.
93
Ibid., para 483.
94
Ibid, para 485.
95
Jan Neumann and Elisabeth Turk, Necessity Revisited: Proportionality in World Trade Organisation
Law after Korea – Beef, EC – Asbestose and EC – Sardines’, 37 Journal of World Trade 199 (2003), at
214- 216.
27

interpreting ‘necessary’, the AB does not simply endorse an alternative measure with
less trade restrictive effects and then imposes it on the responding Member. Instead,
the AB has repeatedly stressed that a reasonably available alternative must be able to
fulfil the responding Member’s ALOP as well as truly feasible in view of the
Member’s particular political, cultural and economic situations. In Brazil – Retreaded
Tyres, after recognizing that the interpretation of the term ‘necessary’ illustrates the
tensions that may exist between international trade and public health and
environmental concerns, the AB stated:
In this respect, the fundamental principle is the right that WTO

Members have to determine the level of protection that they consider
appropriate in a given context. 96
In EC – Seal Products, the AB clarified that a measure’s contribution to the
regulatory objective is only one component of the necessity calculus. There is no pre-
determined threshold of ‘material contribution’ in the contribution analysis, even if
the measure at issue is highly trade restrictive.97 To recall, in Korea – Beef, the AB
held that the measure must be ‘closer to the pole of indispensable than merely making
a contribution to the policy goal’ in order to be necessary.98 This interpretation has
clearly lowered the threshold of the necessity test.
Furthermore, the AB held that the assessment of ‘necessary’ should take into account
the possibility that a measure at issue is apt to induce changes over time in the
behaviour and practices of commercial actors in a manner contributing to the
objective. Evidence demonstrating a measure’s contribution to the regulatory goal in
the past or present would be strong indications of a genuine relationship between the

96
Appellate Body Report, Brazil – Retreaded Tyres, above n 26, para 210.
97
Appellate Body Report, EC – Seal Products, above n 1, para 5.213 – 5.216.
98
Appellate Body Report, Korea – Beef, above n 1, para 161.
28

measure and its regulatory objective. However, just because a contribution is not
immediately observable does not mean that it cannot be justified under the necessity
test.99
Moreover, when considering ‘reasonably available’ alternatives, the AB has
demonstrated enhanced sensitivity to take account of the complexity of the regulatory
environment. In US – Gambling, the AB held that necessity couldn’t be determined by
reference to the efforts undertaken by a Member to negotiate an alternative measure.
Thus negotiation with trading partners who may be negatively affected is not a
prerequisite for a WTO Member to adopt a trade restrictive measure. In Brazil –
Retreated Tyres, the AB held that the necessity of one measure is not undermined by
the availability of another complementary measure that will advance the same
regulatory goal.100 This recognition should increase the chance that some types of
measures will be considered necessary, particularly where a Member adopts a range
of measures to achieve an overarching regulatory goal.101 In EC – Seal Products, the
AB held that if an alternative measure may impose significant costs or difficulties to
the affected industry of a WTO Member, even if not an undue burden on this WTO
Member itself, it is still possible that such an alternative measure is not reasonably
available.102
The burden of proof under the necessity test is also revealing. Under GATT Article
XX, a responding Member needs to bear the burden of proof by making a prima facie
case that its measure is ‘necessary’. For this purpose, the responding Member needs to

99
Appellate Body Report, Brazil – Retreaded Tyres, above n 26, para 151; Appellate Body Report, EC
100
Ibid., para 211.
101
McGrady, above n 4, at 154.
102
29

put forward evidence that enable a panel to assess the challenged measure in light of
the relevant factors to be ‘weighed and balanced’ in a given case. However, it is not
the responding Member’s burden to show, in the first instance, that there are no
reasonably available alternatives to achieve its objectives. In particular, a responding
Member need not identify the universe of less trade-restrictive alternative measures
and then show that none of those measures achieves the desired objective. It is only
after the complaining Member raises a WTO-consistent alternative measure that the
responding Member will be required to demonstrate why the challenged measure
remains necessary in the light of alternatives.103
Empirical evidence corroborates the argument that the necessity test is no longer as
stringent as some commentators claimed. In sharp contrast to the GATT era, during
which almost no challenged measures had passed the necessity test, a series of highly
trade restrictive measures have passed the necessity test since Korea – Beef, the first
time that the AB formulated the weighing and balancing test. EC – Asbestos, US –
Gambling, Brazil – Retreated Tyres and EC – Seal Products are some of the examples.
IV. The Necessity Test in Other WTO Agreements
IV.1 Article 2.2 of the TBT Agreement
Article 2.2 of the TBT Agreement provides that technical regulations shall not be
‘more trade-restrictive than necessary’ to fulfil a legitimate objective, taking account
of the risks non-fulfilment would create. In contrast to the necessity test embodied in
GATT Article XX, Art. 2.2 of the TBT Agreement is independent of any substantive
TBT obligations. For example, even if a technical regulation does not discriminate

103
Appellate Body Report, US – Gambling, above n 1, paras 309-311.
30

against imported like products, it could still violate Art. 2.2 if it is found ‘more trade
restrictive than unnecessary’.104 Similar to GATT Article XX, Article 2.2 recognizes a
wide spectrum of legitimate values from human health and safety to the prevention of
deceptive practices.
To find a violation of Article 2.2, a panel usually follows four steps. The first step is
to identify the objectives of the measure at issue. In US – Cool, the AB stresses that it
is important to identify the objective pursued by a Member with sufficient clarity and
consistency.105 When identifying the objective, a Panel should take into account a
Member’s articulation of what objectives it pursues, but is not bound by it. Instead the
Panel must independently and objectively assess the objectives. For this purpose, a
panel must take into account of all the evidence before it, including the texts of
statutes, legislative history, and other evidence regarding the structure and operation
of the measure. 106
The second step is to determine whether the objectives pursued through the measure
are legitimate.107 An objective is of course legitimate if it is among those explicitly
listed in Article 2.2.108 However, the use of the words ‘inter alia’ in Article 2.2
suggests that the provision does not set out a closed list of legitimate objectives. 109 In
practice, Panels have generally adopted a deferential attitude towards the regulating
WTO Member when it comes to reviewing the legitimacy of an objective pursued.110

104
Michael Ming Du, ‘From Non – Discrimination to Harmonization, Autonomy under the TBT
Agreement’, 6 Chinese Journal of International Law 269 (2007), at 280.
105
Appellate Body Report, US – Cool, above n 92, para 387.
106
Ibid, para 314.
107
Ibid, para 313.
108
Ibid, para 372.
109
Ibid, para 444.
110
Petros C. Mavroidis and Kamal Saggi, ‘What is not so Cool about US–Cool Regulations? A Critical
Analysis of the Appellate Body’s Ruling on US–Cool’, 13(2) World Trade Review 299 (2014), at 305.
31

In US – Cool, one issue is whether the provision of consumer information on origin of
meat according to the countries in which the livestock from which it is derived were
born, raised, and slaughtered, an objective not explicitly listed in Article 2.2, can be
considered ‘legitimate’. The AB observed that the objective of the COOL measure
bears some relation to the objective of preventing deceptive practices reflected in both
Article 2.2 itself and GATT Article XX(d).111 The AB ultimately held that the U.S.
objective was legitimate on the grounds that the complainants had failed to satisfy
their burden of proof and establish that this was not the case.112
The third step is to evaluate the degree to which the measure ‘fulfils’ a legitimate
objective. In US – Cool, the panel concluded that the US measure did not fulfil the
identified objective because it failed to convey meaningful origin information to
consumers.113 The AB overturned the panel, emphasizing that a panel must seek to
ascertain to what degree, if at all, the challenged technical regulation actually
contributes to the achievement of the legitimate objective.114 This is because neither
Article 2.2 nor the TBT Agreement in general requires a panel to answer the question
of whether the measure fulfils the objectives completely or satisfies some minimum
level of fulfilment of that objective.115
The last step is for the Panel to determine whether the challenged measure is ‘more
trade-restrictive than necessary’ to fulfil the legitimate objective, taking account of
the risks that non-fulfilment would create. The AB observed in US – Tuna II that the
assessment of ‘more trade restrictive than necessary’ in the context of Article 2.2

111
Appellate Body Report, US – Cool, above n 92, para 445.
112
Ibid, para 453.
113
Ibid, para 459.
114
Appellate Body Report, United States – Measures Concerning the Importation, Marketing and Sale
of Tuna and Tuna Products (US – Tuna II), WT/DS381/AB/R, adopted 13 June 2012, para. 317.
115
Appellate Body Report, US- Cool, above n 92, para 468.
32

involves a ‘relational analysis’ of the following factors: the trade-restrictiveness of the
technical regulation; the degree of contribution that it makes towards the achievement
of a legitimate objective; and the risks non-fulfilment would create.116In summary, the
AB explained the analytical framework under Article 2.2 as follows:
A Panel should begin by considering factors that include: (i) the degree of
contribution made by the measure to the legitimate objective at issue; (ii) the
trade-restrictiveness of the measure; and (iii) the nature of the risks at issue
and the gravity of consequences that would arise from non-fulfilment of the
objectives pursued by the Member through the measure. In most cases, a
comparison of the challenged measure and possible alternative measures
should be undertaken. In particular, it may be relevant for the purpose of this
comparison to consider whether the proposed alternative is less trade
restrictive, whether it would make an equivalent contribution to the relevant
legitimate objective, taking account of the risks non-fulfilment would create,
and whether it is reasonably available.117
Under Article 2.2, the complainant must make a prima facie case to establish that the
challenged measure is more trade restrictive than necessary to achieve the
contribution it makes to the legitimate objective, taking into account the risks non-
fulfilment would create. A complainant also needs to seek to identify a possible
alternative measure that is less trade restrictive, makes an equivalent contribution to
the relevant objective, and is reasonably available. It is then for the respondent to
rebut the complainant’s prima facie case.118
Generally speaking, the AB’s interpretation of Article 2.2 of the TBT Agreement is
very similar to its GATT Article XX jurisprudence. 119 The analysis under both
provisions considers almost the identical factors. The only difference may be that
Article 2.2 explicitly requires consideration of the risks of non-fulfilment of the

116
Appellate Body Report, US – Tuna II, above n 114, para 318.
117
Ibid, para 322.
118
Ibid, para 323.
119
Panel Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes (US
– Clove Cigarettes), WT/DS406/R, adopted 24 April 2012, paras 7.368 – 7.369; Panel Report, US –
Cool, above n 64, para 7.670; Voon, above n 13, at 458.
33

regulatory objective, but this factor is akin to making an assessment of the relative
importance of interests and values pursued in the necessity test under GATT Article
XX. Similar to the AB’s approach to contribution analysis in US – Cool, the AB has
recently clarified in EC – Seal Products that there is no generally applicable standard
requiring the use of a pre-determined threshold of contribution, and that the panel
must seek to ascertain to what extent the challenged measure actually contributes to
the legitimate objective, in analysing the necessity of a measure under GATT Article
XX. 120 In the same vein, similar to the necessity test under GATT Article XX, the AB
in US – Cool Article 21.5 proceedings stated that the particular manner of sequencing
the steps of the necessity analysis in Article 2.2 of the TBT Agreement was adaptable,
and may be tailored to the specific claims, measures, facts, and arguments at issue in a
given case.121
Although many scholars expressed concerns about the potential of Art 2.2 to be
interpreted as severely constraining WTO Members’ right to regulate, 122 such
concerns have not materialized. To begin with, in TBT cases, the AB appeared to
accord national regulators a large amount of discretion to set their own policy
objectives. 123 This is consistent with prior GATT practice. Moreover, the AB has
clarified in US – Cool that a panel’s assessment under Article 2.2 should focus on
ascertaining the actual degree of contribution achieved by the measure, rather than on
answering the questions of whether the measure fulfils the objectives completely or

120
Appellate Body Report, EC- Seal Products, above n 1, para 5.213; Appellate Body Report, US –
Tuna II, above n 114, para 317.
121
Appellate Body Report, United States – Certain Country of Origin Labeling (COOL)
Requirements, WT/DS384/AB/RW, adopted 18 May 2015, para 5.205.
122
Du, above 104, at 288.
123
Gabrielle Marceau, ‘The New TBT Jurisprudence in US – Clove Cigarettes, US – Tuna II, and US –
COOL’, 8 (1) Asian Journal of WTO and International Health Law and Policy 1 (2014), at 15.
34

satisfies some minimum level of fulfilment of that objective.124 In this regard, the AB
did not impose any particular standards in terms of the quantity or clarity of
information the label needs to convey to consumers so long as it has made some
contribution. This leaves WTO Members with significant flexibility when designing
labeling schemes.125
Finally, the AB has demonstrated great sensitivity when evaluating whether proposed
alternative measures are able to achieve the WTO Members’ regulatory objectives.
This is the case even when the values or interests pursued by the challenged measure
are not particularly important. In US – Cool, Mexico proposed voluntary origin
labelling as a less trade restrictive alternative. The AB noted the unwillingness of US
consumers to pay for origin information and low participation in voluntary labelling
programs in the past, and expressed doubts on the effectiveness of a voluntary
labelling scheme to achieve the US objective.126 With regard to a mandatory labelling
scheme based on the country of substantial transformation, the AB observed that this
could only partially contribute to the US objective of providing information to
consumers.127
In US – Tuna II, the US regulatory objectives were (i) ensuring that consumers are not
misled or deceived about whether tuna products contain tuna that was caught in a
manner that adversely affects dolphins (the ‘consumer information objective’), and
(ii) contributing to the protection of dolphins, by ensuring that the US market is not
used to encourage fishing fleets to catch tuna in a manner that adversely affects

124
Ibid, para 468.
125
Joshua Meltzer, ‘The WTO Ruling on U.S. Country of Origin Labeling’ (“COOL”), 16 (23) ASIL
Insight (2012).
126
Appellate Body Report, US- Cool, above n 92, para 483.
127
Ibid, para 485.
35

dolphins (the ‘dolphin protection objective’).128 The panel found that the coexistence
of the US ‘dolphin-safe’ label and the AIDCP label provided a reasonably available,
less trade-restrictive means of achieving the objectives pursued by the US at its
chosen level.129 The co-existence of both AIDCP label and the US ‘dolphin-safe’
label arguably better suits the need of consumers: some consumers may be only
concerned about dolphin mortality but do not care about the additional ‘unobserved
harm’ to dolphins from setting upon them. In fact, only 10% of US consumers
interpreted US ‘dolphin-safe’ label as dolphins were not encircled in the capture of
the tuna, the current US policy.130 However, allowing the existence of AIDCP does
not make an equivalent contribution to the achievement of the US dolphin protection
objective. The AB’s rejection of the co-existence of two labels supports the argument
that a WTO Member is entitled to achieve all of the legitimate objectives it pursues. A
WTO Member cannot be required to accept a trade-off between the fulfilments of two
different objectives that the Member itself has not chosen.131
In all the decisions under the TBT Agreement, the AB found that the defending party
had not violated Art 2.2. In a general sense, one might conclude that the AB is likely
to grant more leeway to Members in determining what is necessary to achieve a
legitimate policy goal.132 This is consistent with the loosening of the necessity test
under GATT Article XX discussed in Part III.

128
Ibid, para 302.
129
Ibid, para 324.
130
Mark J Robertson, ‘The Fairy Tale of US ‘Dolphin Safe’ Labelling: False Claims, Unintended
Consequences’, 6(1) BIORES 14 (2012), at 16.
131
Meredith A. Crowley and Robert Howse, ‘Tuna – Dolphin II: A Legal and Economic Analysis of the
Appellate Body Report’, 13 World Trade Review 321 (2014), at 337.
132
Tania Voon, Andrew Mitchell and Catherine Gascoigne, ‘Consumer Information, Consumer
Preferences and Product Labels under the TBT Agreement’, in Tracey Epps and Michael Trebilcock,
Research Handbook on the WTO and Technical Barriers to Trade (Edward Elgar, 2013), at 473.
36

IV.2 Article 5.6 of the SPS Agreement

Article 5.6 of the SPS Agreement provides that, when establishing or maintaining
SPS measures to achieve the appropriate level of protection, Members shall ensure
that such measures are not more trade-restrictive than required to achieve the ALOP,
taking into account technical and economic feasibility. The footnote to Article 5.6
clarifies that a measure is not more trade-restrictive than required unless there is
another measures (1) ‘reasonably available’, taking into account technical and
economic feasibility; (2) achieves the Member’s ALOP; and (3) is significantly less
restrictive to trade.133 Article 5.6 should be read in context in light of Article 2.2 of
the SPS Agreement, which provides that ‘Members shall ensure that any sanitary
measure is applied only to the extent necessary to protect human, animal or plant life
or health’. In EC – Biotech Products, the panel states that Article 5.6 is a more
specific expression of the general obligation found in Article 2.2, a measure that is
found to be in violation of Article 5.6 must also be presumed to violate Article 2.2.134
It is usually easy to identify an alternative SPS measure that is significantly less
restrictive to trade, the third limb of the necessity test in the SPS Agreement. The
most controversial aspect, as the Australia – Salmon Article 21.5 panel recognizes, is
how to determine with confidence whether the less trade restrictive alternative
measure would meet a WTO Member’s predetermined ALOP.135 Part of the difficulty
arises from the fact that the Member’s ALOP is usually expressed in vague terms.
Though the ALOP does not need to be determined in quantitative terms, the panel

133
Appellate Body Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/AB/R,
adopted 20 October 1998, para 194.
134
WTO Panel Report, European Communities – Measures Affecting the Approval and Marketing of
Biotech Products (EC – Biotech), WT/DS291/R, adopted 21 November 2006, para 7.3374.
135
Panel Report, Australia – Measures Affecting Importation of Salmon – Recourse to Article 21.5 of the
DSU by Canada, WT/DS18/RW (Feb. 18, 2000), paras 7.128- 7.131.
37

noted parenthetically that a more explicit and in particular a quantitative expression of
a Member’s ALOP would greatly facilitate the consideration of compliance with the
necessity test in Article 5.6 of the SPS Agreement.136
As it is a ‘prerogative right’ for a WTO Member to set its preferred ALOP, no trade-
off is demanded between trade restrictiveness of an SPS measure and the achievement
of a Member’s ALOP. In the shadow of this ‘prerogative’ right, the panel examines
whether the means used are less trade restrictive to reach the ALOP.137 In this respect,
the AB seems to be fully appreciative of the importance of respecting a WTO
Member’s ALOP when evaluating possible alternative measures. In Australia –
Salmon, the AB refused to accept Canada’s argument that an alternative measure was
available on the basis that its ability to achieve Australia’s ALOP has not been
scientifically established.138 In Japan – Agricultural Products II, the panel rejected
the test by products as a viable alternative to test by varieties as the scientific experts
it consulted could not state with appropriate level of certainty that the alternative
measure would be able to achieve Japan’s ALOP.139 In Australia – Salmon 21.5 Panel
Report, the panel found that, based on the evidence submitted by the parties and
scientific experts’ testimony, other alternative protective measures, without imposing
consumer-ready requirements, would reduce risk significantly and may achieve
Australia’s ALOP. Even so, the panel remains reluctant to hold out no consumer-

136
Ibid., para 7.128.
137
Joanne Scott, The WTO Agreement on Sanitary and Phytosanitary Measures: A Commentary (OUP,
2007), at 157.
138
Appellate Body Report, Australia – Salmon, above n 133, paras 210-213.
139
WTO Appellate Body Report, Japan – Measures Affecting Agricultural Products, WT/DS76/AB/R,
adopted 19 March 1999, paras 8.83-4.
38

ready requirement as a viable alternative and did not reach any definitive
conclusion.140
It is important to note that, in all these cases, the panels relied heavily on scientific
experts in determining whether the alternative measures were able to achieve the
defending party’s ALOP. If scientific experts were highly confident of the feasibility
and effectiveness of the alternative measure in achieving the defending party’s ALOP,
the panel was more likely to endorse the alternative measure. Although there are
various good reasons to challenge whether science is indeed able to provide definitive
answers to regulatory choices,141 the heavy reliance on science does show that the
panel is in full respect of the need to respect the Member’s ALOP and choice of
means to achieve it.
Although the specification of the ALOP is a prerogative of a WTO Member and a
WTO panel typically accords weight to the responding party’s articulation of its
ALOP, the AB made it clear in India – Agricultural Products that it does not mean
that a panel must defer completely to a respondent’s characterization of its own
ALOP. Rather, a panel is required to ascertain the respondent’s ALOP on the basis of
the totality of the arguments and evidence on the record.142 This ruling runs the risk of
acting as a double-edge sword. On the one hand, it deals effectively with the problem
of a WTO Member specifying its ALOP in an insufficiently precise way, or an
assertion of an unfounded ALOP. On the other hand, it potentially enables the panel
to second-guess and re-characterize a WTO Member’s ALOP, a prerogative right of a

140
Panel Report, Australia – Salmon 21.5 Panel Report, above n 135, paras 7.132-7.137.
141
Vern R Walker, ‘The Myth of Science As a “Neutral Arbiter” For Triggering Precautions’, 26 B. C.
Int’l & Comp. L. Rev. 197 (2003), at 204-12.
142
Appellate Body Report, India – Measures Concerning the Importation of Certain Agricultural
Products, WT/DS430/AB/R, adopted 15 June 2015, para 5.221.
39

WTO Member. It is thus strongly suggested that a WTO panel exercise this power
cautiously.
Compared to the necessity test in the GATT and the TBT Agreement, Article 5.6 of
the SPS Agreement and its related footnote are more specific. Indeed, as the SPS
Agreement was drafted and incorporated into the WTO only in 1995, it may be
reasonable to conclude that the drafters of Article 5.6 had paid due regard to the
conventional criticisms against the LTR test in early 1990s. In addition, the Article
5.6 of the SPS Agreement, at least from its wording, could be said to be more
protective of domestic regulatory autonomy compared to the necessity test in GATT
Article XX because It explicitly eliminates any possibility of balancing the purported
regulatory objective of the measure against its trade restrictive effects.143
IV.3 Article XIV and Article VI:4 of the GATS
Like the GATT 1994, the GATS also provides for a general exceptions provision
allowing WTO Members to deviate from obligations and commitments under the
GATS, if certain conditions are met. Both the structure and several terms used in
GATS Article XIV mirror the corresponding GATT Article XX.144 As a consequence,
the AB allows the jurisprudence under GATT to inform the interpretation of GATS
Article XIV. As the AB made it clear in US – Gambling, the determination of
necessity under GATS Article XIV is the same weighing and balancing process as
GATT Article XX.145

143
Neumann and Turk, above n 95, at 221-222; Frank J Garcia, ‘The Salmon Case: Evolution of
Balancing Mechanisms for Non-Trade Values in WTO’, in Bermann and Mavroidis, above n 42, at
134; Trachtman, above n 33, at 71.
144
Peter Van den Bossche and Werner Zdouc, The Law and Policy of the World Trade Organization
(Cambridge University Press, 2013), at 583.
145
40

For trade in services, border restrictions are limited and ‘behind the border’, usually
non-discriminatory but still unduly burdensome, regulations are the main barriers.146
However, WTO Members were unable to agree on the wording of a provision
tackling origin-neutral domestic regulations. Article VI:4 of the GATS contains a
negotiating mandate which requires WTO Members to develop any necessary
disciplines that shall aim to ensure that domestic regulations are … not more
burdensome than necessary to ensure the quality of the service. Though various
proposals have been advanced in the Working Party on Domestic Regulation (WPDR)
under the GATS regarding the creation of a horizontal necessity test, the negotiations
have not yielded any concrete outcome and there appears to be considerable
confusion as to the exact meaning of the necessity wording in Article VI:4.147
IV.4 The Convergence of Necessity Tests in the WTO Law
At first glance, there does not exist one uniform necessity test in the WTO law.
Rather, these necessity obligations in various WTO agreements differ in their
procedural and materials aspects.148 For example, the necessity tests under GATT
Article XX and GATS Article XIV are ‘exceptions’, implying that the burden of
proof lies with the responding WTO Member. By contrast, in TBT, SPS and GATS
Article XI:4, the necessity test is an independent obligation, so the non-fulfilment of
the necessity test has to be asserted by the complaining party. Whilst GATT Article
XX provides an exhaustive list of general exceptions, the TBT Article 2.2 embodies
an open list. One may also point to the seemingly more relaxed necessity test under

146
Bernard Hoekman and Michel Kostecki, The Political Economy of the World Trading System: The
WTO and Beyond (Oxford University Press, 2001), at 242.
147
Panagiotis Delimatsis, ‘Determining the Necessity of Domestic Regulations in Services: The Best is
Yet to Come’, 19 EJIL 365 (2008), at 392-397.
148
Neumann and Turk, above n 95, at 226 – 227; Gabrielle Marceau and Joe Trachman, ‘A Map of the
World Trade Organization Law of Domestic Regulation of Goods: The Technical Barriers to Trade
Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on
Tariffs and Trade’, 48 (2) Journal of World Trade 351 (2014), 351-432.
41

the SPS Agreement as it requires the alternative measure not only feasible, but also
significantly less trade restrictive.
Nevertheless, beyond technicalities and rhetoric, the essence of the necessity test in
WTO law is the same. The key question to be answered is whether there is an
alternative measure not only less trade restrictive, but also reasonably available and be
able to achieve the end pursued by the regulating WTO Member. The weighing and
balancing test was designed to perform this essential inquiry in a reasonable and
transparent manner. For example, the explicit requirement to consider the extent of
contribution that the disputed measure makes to the regulatory objective facilitates the
later analysis of whether an alternative measure will be as effective as the disputed
measure in achieving the ALOP desired by the responding party. As we can see from
the discussions in part III and part IV above, the necessity test across the WTO
Agreements considers identical elements and follows the same line of inquiry. There
are no material differences between these necessity obligations.
V. Conclusion
The necessity test plays a key role in assessing the compatibility with the WTO of
otherwise trade-restrictive national measures that are designed to protect non-
economic values. It reflects the balance between a WTO Member’s prerogative right
to regulate in its own jurisdiction and the multilateral interest in progressive
liberalization of trade. Over the years, the assessment of ‘necessity’ in WTO law has
morphed from the LTR test to a more nuanced and sophisticated weighing and
balancing test. This article has examined critically some conventional criticisms
against the necessity test and found that, even though these criticisms were valid and
legitimate for the early WTO case law, the WTO AB’s recent jurisprudence has
42

largely corrected its earlier blind spots. It is now no longer justifiable to label the
necessity test in WTO law as ambiguous, illogical, arbitrary and extremely stringent.
Instead, the necessity test has become more relaxed, more predictable and the AB’s
rulings on this issue more consistent. It is reasonable to propose that one uniform,
horizontally applicable necessity test has emerged from the WTO jurisprudence.
43

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The Necessity Test in World Trade Law: What Now?

Forthcoming in Chinese Journal of International Law (2016)

Appellate Body’s stringent interpretation of the necessity requirement has interfered

Agreements, despite their textual and structural differences.

elimination of quantitative restrictions) prohibit WTO Members from exercising overt

XX, on ‘General Exceptions’, contains provisions permitting deviation from trade

liberalization commitments under enumerated circumstances. Permitted deviations

include measures ‘necessary to protect public morals’, ‘necessary to protect human,

The ‘sufficient nexus’ required is determined by the wording of the provisions. In

deferential to their choice of policy instruments. 2 Since ‘necessary’ is the most

whether a measure is ‘necessary’ to achieve the stated objective. If a measure is found

not ‘necessary’, it should be withdrawn and an alternative measure be taken instead.

problem of the expansion of the jurisdiction of WTO Panels, demonstrating a

disconcerting dependence on their discretion for the survival of domestic regulatory

Electronic copy available at: https://ssrn.com/abstract=2825203

successfully pushed for a broad convergence in necessity tests across WTO

Agreements, despite their textual and structural differences.

Agreement on Technical Barriers to Trade (the TBT Agreement), the Agreement on

General Agreement on Trade in Services (the GATS). Part V concludes.

II. The Evolution of the Necessity Test under GATT Article XX

II.1 The Early Jurisprudence and its Critics

- Section 337 case, where the panel stated:

[A] contracting party cannot justify a measure inconsistent with

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measures could be considered to be ‘necessary’ only if ‘there were no alternative

could reasonably be expected to employ’.7 The requirement that a GATT contracting

Precisely how does a panel determine whether a proposed regulatory choice is a

viable alternative for the disputes measure? When an alternative measure

unquestionably achieves a WTO member’s regulatory objective with less trade-

to implement? What if a proposed alternative, although less burdensome on trade, is

less effective in achieving a Member’s desired level of protection? Is the measure at

Electronic copy available at: https://ssrn.com/abstract=2825203

measure found to be inconsistent with substantive GATT obligations is nevertheless

‘necessary’ for a legitimate regulatory objective. However, the GATT panels

regulatory goal. 10 As Schoenbaum criticized: ‘necessary is no longer relates to the

from the trade Agreement’.11

measure.12 As Voon criticizes, the introduction of the ‘less inconsistent’ concept is

curious, both because of the difficulty of assessing degree of WTO – inconsistency

challenged measure, must surely not be reasonably available to the respondent as an

alternative to avoid a WTO violation.13

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of level of enforcement of the law14, in practice they seemed to be bent on finding a

neglecting the regulatory prerogatives of the defending GATT contracting parties.15 In

alternative measures were feasible in light of a Member’s particular social, political

less trade restrictive alternative of stringent regulation of advertising and marketing

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desirable on WTO Members.19

II.2 The Ambiguous and Illogical Weighing and Balancing Test

‘necessary’ is not limited to that which is ‘indispensable’. The AB added:

The term ‘necessary’ refers, in our view, to a range of degrees of

The AB then explained that the determination of whether a measure is ‘necessary’

requires a ‘process of weighing and balancing’. In the AB’s words:

[T]he determination of ‘necessary’… involves in every case a process

impact on imports, the easier a measure would be accepted as “necessary”.23

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interpretation of ‘necessary’ under Article XX of the GATT. 24 The AB divided the

weighing and balancing process that the AB outlined in Korea – Beef:

The process begins with ‘an assessment of the ‘relative importance’ of

be less trade restrictive while providing an equivalent contribution to the achievement

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would interact in making the determination. The AB only offered a mysterious

[T]he weighing and balancing is a holistic operation that involves

system. It enables the AB to keep maximum adjudicatory flexibility; but it leaves