Necessity testing

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Abstract

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
Chapter4
Pages91-124
Number of pages34
Edition1st
ISBN (Electronic)9781788973670
ISBN (Print)9781788973663
DOIs
Publication statusPublished - 2021

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