‘브라질－재생 타이어 수입에 영향을 주는 조치’사건 － GATT1994 XX조의 적용을 중심으로 －

‘Brazil-Measures Affecting Imports of Retreaded Tyres’ (hereinafter ‘Brazil-Tyres case') is the first WTO dispute complained by a developed countries (EC) addressing a trade-restrictive measure introduced by a developing country (Brazil) to achieve public health and environmental goals. The findings of the Appellate Body in this case seems to broaden the scope of the GATT1994 Article XX by showing some defence to non-trade policy objectives and an appreciation of the complexity of environmental problems, and the need for a comprehensive response including various measures. Some implications regarding the application of Article XX in this case are as following: First, regarding the necessity test under para. (b) of Article XX, the WTO Members have rights to decide on the level of protection and the necessity test should include the weighing and balancing of relevant factors such as the public or environmental objectives to achieve through adopted measures or polices, relative importance of the goal pursued by the policy, the contribution of the measure to the achievement of its objective and its trade-restrictive effects. Second, the contribution of the measure to the achievement of its objective exists only when there is a genuine relationship of ends and means between the objective pursued and the measure at issue. The panel, as a trier of the facts, enjoy a certain latitude in designing the appropriate methodology to use and deciding how to structure or organize the analysis of the contribution. Third, in examining the trade-restrictive effect of the measure and possible alternatives to the measure, if the measure at issue plays a role as a component of a comprehensive strategy achieving the policy objective, its possible alternatives should be considered in the context of the overall effect of policy and synergy among the components. Fourth, regarding the application of the chapeau of Article XX, the examination whether the measure at issue constitutes arbitrary or unjustifiable discrimination should be accompanied with an analysis of the reason or cause for discrimination. The Appellate Body was more receptive to the particular conditions and policy objectives of developing WTO members. This change may indicate the early signs of accepting distinction between WTO members based on their need for special or differential treatment when interpreting the GATT exceptions.