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Journal of International Economic Law Advance Access originally published online on December 15, 2008
Journal of International Economic Law 2009 12(1):153-173; doi:10.1093/jiel/jgn039
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© Oxford University Press 2008, all rights reserved

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

Benn McGrady*

* Benn McGrady is an Australian lawyer who advises non-governmental organizations, particularly on issues of trade and health. E-mail: bennmcgrady{at}hotmail.com.


  Abstract

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.

The author acknowledges the assistance of the anonymous referees as well as that of Professor Jeff Waincymer. The views presented are those of the author alone, as are any errors or oversights.


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