Interpretation of “Necessity Test” under GATT Article XX and Regulation Autonomy after Brazil-Tyres Case

WTO Members are entitled to enjoy regulatory autonomy to pursue specific and innovative solutions to their domestic problems, while their regulatory autonomy is required to be regulated properly in the context of the international legal and multilateral trading system. Thus, in terms of “necessity test”, in disputed cases, panels should carefully examine the establishment of the facts that closely related to policy aims, the level of protection, characteristics of the measure at issue and reasonably available alternatives, and actively weight of the persuasiveness of the quality and quantity of evidence, rather than drawing conclusions in lights of theories. Positive conclusions towards “necessity test” might be welcomed, particularly, by the environmental groups within the WTO. However, careless assessment attempted by WTO adjudicating bodies in juridical examination process could undermine the basis of the WTO system, as well as the legal stability and predictability of its judicial determinations. Besides, being easy to pass the “necessity test” does not necessarily imply that the WTO adjudicating body provides Members with more regulatory autonomy because restrict requirements has been transferred to scrutiny conducted under the chapeau of Article XX, which has been evidenced in the disputes including Brazil-Tyres case.