Caroline Henckels (Monash University – Faculty of Law), Andrew D. Mitchell (Faculty of Law, Monash University), & Elizabeth Sheargold (Faculty of Law, Monash University) have posted Necessity Testing (Andrew Mitchell and Elizabeth Sheargold, Principles of International Trade and Investment Law (Elgar, 2021) 91) on SSRN. Here is the abstract:
Necessity testing is a critical concept in public international law, as a device for determining the legality of measures that impair protected rights or interests. There is not, however, a uniform or single approach to determining whether a measure is necessary. Variations exist depending upon the language of the relevant treaty rule, and adjudicators may approach different aspects of the necessity assessment with varying degrees of deference. Moreover, there is often confusion between the use of necessity testing in treaty provisions to balance competing interests, and the customary international law defence of necessity, which has more demanding requirements. Thus, while necessity is a concept that is employed in many fields of public international law, its use is far from homogenous. Since the Continental Casualty v Argentina arbitral tribunal directly referred to the jurisprudence of the Appellate Body under GATT Article XX when interpreting a necessity test under a non-precluded measures clause of a BIT, there has been significant scholarly debate as to whether the concept of necessity as interpreted in WTO law is an appropriate model for international investment law. This chapter compares the application of necessity testing in WTO law with its use by investor–state tribunals and seeks to identify whether there is a single principle for determining whether a measure is necessary to protect a public interest that is consistent across international economic law.