International and Comparative Law Quarterly

Table of Contents - 2010 - Volume 59, Issue 01  

Article

A CRITIQUE OF THE WTO JURISPRUDENCE ON ‘NECESSITY’

Gisele Kapteriana1

a1 Associate, White & Case LLP, Geneva, Switzerland.

Abstract

This paper examines whether the evolving jurisprudence on necessity as developed by the WTO adjudicatory bodies reflects the same balance between trade liberalization and regulatory autonomy as that contained in the WTO treaty texts, particularly with regard to the GATT. It is argued that a divergence can be observed which raises questions of competence, legitimacy and transparency. Specific amendments to the prevailing test are also proposed in order to achieve what the author suggests is a textually consistent, and thus legitimate, necessity test of equal efficacy.

Footnotes

This article was originally written and submitted as the thesis requirement in the Law of the WTO paper taken as part of the LL.M. programme at the University of Cambridge, United Kingdom. The author wishes to thank Margaret Young for her invaluable insights when supervising this paper, Prof Peter Gillies and David Hartridge for their excellent comments on an earlier draft, and Tatiana Falcao for her infinitely helpful review.