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Proportionality and Balancing in Wto Law: a Comparative Perspective

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Chapter Summary

This chapter discusses proportionality, necessity and balancing in the context of World Trade Organization (WTO), and WTO treaty framework contains several necessity tests. The liberalisation of trade requires that the meaning of and the relationship between these tests are clarified. This chapter sets out a comparative approach for doing so at a general WTO level, and this is now particularly relevant in context of GATS and the liberalisation of trade in services. It concludes that there is no crude balancing of trade and non-trade values and interests in the WTO. The tests written into the WTO Agreements provide for a more sophisticated way of balancing, taking account of individual circumstances at stake and the competing rights and interests involved. The chapter also argues that comparative legal thinking based on insights gained from the principle of proportionality, and the role of principles generally, can structure and rationalise this process.

Keywords: balancing of trade; General Agreement on Trade in Services (GATS); principle of proportionality; trade liberalisation; World Trade Organization (WTO) law



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