Necessity as a (contentious) element of world trade law

The requirement that a measure should not be more trade-restrictive or burdensome than necessary to achieve a specific goal is a central, but contentious element of the multilateral trading system. Two functionally different contexts of a necessity test need to be distinguished: necessity can be part of the requirements of an exception clause, such as Article XX GATT. In this case, necessity only becomes relevant for the justification of a measure, which would otherwise be GATT-inconsistent. This context is the traditional sedes materiae of necessity and has been part of the world trading system since 1948. More recently, and especially with the entry into force of the WTO Agreement, necessity tests have also been integrated in positive obligations, in particular in the TBT and SPS Agreements. Necessity tests are not restricted to the multilateral trading system. In various degrees, they can also be found in exception clauses and positive obligations of regional integration and bilateral trade agreements.

The GATS contains references to both types of necessity tests: the general exception clause of Article XIV GATS includes necessity tests which are similar to the ones in Article XX GATT. The necessity test in the negotiating mandate of Article VI:4 GATS envisages a positive requirement. As Panos Delimatsis rightly recalls, this necessity test is a controversial subject of the negotiations on disciplines on domestic regulation in the WTO.