The 'Necessity Test' As Expressed by the Enigmatic Article XX(j) of the General Agreement on Tariffs and Trade (1994): Appellate Body Report, India - Certain Measures Relating to Solar Cells and Solar Modules

17 Pages Posted: 25 Nov 2019

See all articles by Clive Vinti

Clive Vinti

University of the Free State

Date Written: October 25, 2019

Abstract

The General Agreement on Tariffs and Trade (1994) (GATT) is premised on the elimination of all barriers to trade in goods. Contrary to this approach, Article XX of the GATT authorises the circumvention of this imperative. More specifically, Article XX(j) of the GATT essentially provides that GATT contracting parties are authorised to promulgate measures that are "essential" to the acquisition of products in general or local short supply. This invariably means that only measures that are "essential" will satisfy the "necessity test" contemplated under Article XX(j). The Appellate Body Report, India - Certain Measures Relating to Solar Cells and Solar Modules is the first World Trade Organisation case to elaborate on the "necessity test" of Article XX(j) of the GATT. This paper seeks to evaluate the Appellate Body's findings on the "necessity test" of Article XX(j).

Keywords: Article XX(j) of the GATT, essential, necessary, dispensable, safeguard measures

Suggested Citation

Vinti, Clive, The 'Necessity Test' As Expressed by the Enigmatic Article XX(j) of the General Agreement on Tariffs and Trade (1994): Appellate Body Report, India - Certain Measures Relating to Solar Cells and Solar Modules (October 25, 2019). Potchefstroom Electronic Law Journal, Vol. 22, 2019, Available at SSRN: https://ssrn.com/abstract=3491610

Clive Vinti (Contact Author)

University of the Free State ( email )

205 Nelson Mandela Drive
Park West
Bloemfontein, Free State 9300
South Africa

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