Chapter 3. Evolution Of The "Necessary Test" Of Article XX(B): From Thai Cigarettes To The Present

Abstract

This chapter describes the facts that gave rise to the dispute in the Thai Cigarettes case, centering specifically on those relevant for the analysis of the test. It analyzes the origins of the test in the Thai Cigarettes case and describes the development of General Agreement on Tariffs and Trade (GATT) jurisprudence concerning the test. The chapter also examines the jurisprudence after the creation of the World Trade Organization (WTO). It then focuses on the test under its current interpretation, and sketches a comparative analysis between the least trade restrictive approach of the test and the not more trade restrictive than required approach from the Sanitary and Phytosanitary Measures (SPS) Agreement. Finally, it circumscribes the sphere of application of Article XX(b), the SPS, and the Technical Barriers to Trade (TBT) Agreements, and presents the conclusions to this analysis. Keywords: Article XX(b); General Agreement on Tariffs and Trade (GATT); necessary test; Sanitary and Phytosanitary Measures (SPS) agreement; Technical Barriers to Trade (TBT) agreement; Thai Cigarettes case; trade restrictive approach; World Trade Organization (WTO)