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.
|Title of host publication
|Principles of International Trade and Investment Law
|Andrew D. Mitchell, Elizabeth Sheargold
|Place of Publication
|Edward Elgar Publishing
|Number of pages
|Published - 2021