Necessity Killed the Gatt - Art XX Gatt and the Misleading Rhetoric about ‘Weighing and Balancing’

European Journal of Legal Studies, Volume 5, Issue 2 (Autumn/Winter 2012/13), pp 36-56

22 Pages Posted: 27 Jan 2013

See all articles by Filippo Fontanelli

Filippo Fontanelli

University of Edinburgh - School of Law

Date Written: November 30, 2012

Abstract

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

Keywords: WTO, Art. XX GATT, necessity, proportionality, deference

Suggested Citation

Fontanelli, Filippo, Necessity Killed the Gatt - Art XX Gatt and the Misleading Rhetoric about ‘Weighing and Balancing’ (November 30, 2012). European Journal of Legal Studies, Volume 5, Issue 2 (Autumn/Winter 2012/13), pp 36-56, Available at SSRN: https://ssrn.com/abstract=2207206

Filippo Fontanelli (Contact Author)

University of Edinburgh - School of Law ( email )

Old College
South Bridge
Edinburgh, EH8 9YL
United Kingdom

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