Necessity testing

Research output: Chapter in Book/Report/Conference proceedingChapter (Book)Otherpeer-review


The WTO Appellate Body has developed an approach to necessity testing under its general exceptions clauses that considers the extent to which a measure contributes to its objective and the extent to which it restricts trade, along with a comparison with reasonably available alternative measures that would preserve the right of the Member to achieve its desired level of protection. In contrast, the use of necessity testing by investor-state arbitral tribunals has been inconsistent. Consequently, it cannot currently be said that there is a clear principle that is used across international economic law to determine when a measure will be seen as necessary to protect a legitimate public interest. There is, however, a trend toward greater harmony and convergence as more investor-state arbitral tribunals adopt an approach that is similar to that taken by the Appellate Body, particularly in the application of least-restrictive means testing.
Original languageEnglish
Title of host publicationPrinciples of International Trade and Investment Law
EditorsAndrew D. Mitchell, Elizabeth Sheargold
Place of PublicationCheltenham UK
PublisherEdward Elgar Publishing
Number of pages34
ISBN (Electronic)9781788973670
ISBN (Print)9781788973663
Publication statusPublished - 2021

Cite this