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Global Regulatory Standards in Environmental and Health DisputesRegulatory Coherence, Due Regard, and Due Diligence$
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Caroline E. Foster

Print publication date: 2021

Print ISBN-13: 9780198810551

Published to Oxford Scholarship Online: August 2021

DOI: 10.1093/oso/9780198810551.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 22 January 2022

Necessity Testing

Necessity Testing

(p.135) 5 Necessity Testing
Global Regulatory Standards in Environmental and Health Disputes

Caroline E. Foster

Oxford University Press

Part III comprises two chapters, Chapter Five and Chapter Six. These chapters together investigate the decisions of WTO panels and the Appellate Body in environmental and health cases. The chapters examine the major contribution made through WTO dispute settlement to the emerging global regulatory standard of regulatory coherence. Specifically, Chapter Five analyses the elaboration of the ‘necessity’ formula in the GATT and the GATS general exceptions’ subparagraphs, as well as under the TBT and SPS Agreements. The WTO adjudicatory process appears to have been protecting the traditional procedural justification of international law’s relative authority claim by enabling respect for domestic decision-making through democratic processes. Members’ entitlement to choose their level of protection against a risk is still at present fully recognised and there is vital scope for recognition of the importance to WTO Members of long-term non-economic interests requiring a multifaceted policy response.

Keywords:   Appellate Body crisis, Article XX, necessary, public morals, human, animal or plant life and health, short supply, ‘level of protection’, SPS Agreement, TBT Agreement

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