Journal Article

Necessity Exceptions in WTO Law: Retreaded Tyres, Regulatory Purpose and Cumulative Regulatory Measures

Benn McGrady

in Journal of International Economic Law

Volume 12, issue 1, pages 153-173
Published in print March 2009 | ISSN: 1369-3034
Published online December 2008 | e-ISSN: 1464-3758 | DOI: https://dx.doi.org/10.1093/jiel/jgn039
Necessity Exceptions in WTO Law: Retreaded Tyres, Regulatory Purpose and Cumulative Regulatory Measures

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The recent decisions of the panel and Appellate Body in Brazil – Measures Affecting Imports of Retreaded Tyres touched upon a number of issues of ongoing significance to the application of necessity tests, such as those in Article XX of the General Agreement on Tariffs and Trade. This article argues that the dispute represents a mixed outcome for the application of necessity tests. The express recognition that some regulatory measures are complementary to one another rather than reasonably available alternatives constitutes a welcome step forward. On the other hand, the panel's characterization of Brazil's regulatory goal highlights an approach common to a number of panel reports that could justify a perception of arbitrariness in application of necessity tests. Similarly, comments made by the Appellate Body to the effect that a panel is obliged to consider the importance of a state's regulatory goal extend the role of a panel in an unjustifiable manner.

Journal Article.  9223 words. 

Subjects: Financial Law ; Public International Law ; Economics

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