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The intrusive effects of the WTO on Members regulatory freedom have been a growing concern since the establishment of the WTO Dispute Settlement System (DSS). An assessment of the WTO case law exposes that the Appellate Body (AB) has introduced some elements within the necessity test under GATT (General Agreement on Tariffs and Trade) article XX which do not find support in the text of the agreement and are potentially invasive of countries regulatory autonomy. This paper examines the evolution of the WTO case law in relation to the necessity concept within GATT 1994. Finally, an adjustment in the application of the necessity test to make it more consistent with the GATT text and to achieve greater balance between free trade and WTO members’ regulatory autonomy is suggested.

The concept of necessity under the GATT and national regulatory autonomy