The "Necessity Test" as Expressed by the Enigmatic Article XX(j) of the General Agreement on Tariffs and Trade (1994): Appellate Body Report, India - Certain Measures Relating to Solar Cells and Solar Modules

Keywords: Article XX(j) of the GATT, essential, necessary, dispensable, safeguard measures

Abstract

The General Agreement on Tariffs and Trade (1994) (GATT) is premised on the elimination of all barriers to trade in goods. Contrary to this approach, Article XX of the GATT authorises the circumvention of this imperative. More specifically, Article XX(j) of the GATT essentially provides that GATT contracting parties are authorised to promulgate measures that are "essential" to the acquisition of products in general or local short supply. This invariably means that only measures that are "essential" will satisfy the "necessity test" contemplated under Article XX(j). The Appellate Body Report, India - Certain Measures Relating to Solar Cells and Solar Modules is the first World Trade Organisation case to elaborate on the "necessity test" of Article XX(j) of the GATT. This paper seeks to evaluate the Appellate Body's findings on the "necessity test" of Article XX(j).

Author Biography

Clive Vinti, The University of the Free State

Lecturer;Public Law Department

References

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International instruments
Agreement on Safeguards (1994)
Decision on Safeguard Action for Development Purposes of 28 November 1979 (1979)
Doha Ministerial Declaration (2001)
Doha Work Programme: Decision Adopted by the General Council on 1 August 2004 (2004)
General Agreement on Tariffs and Trade (1994)
Vienna Convention on the Law of Treaties (1969)
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Published
2019-10-25
Section
Case Notes