| The WTO legal system requires all the parties to cancel or restrict various trade barriers, in the mean time, place some restriction on the state sovereignty of the parties involved in order to realize the freedom of international trades. But on the other hand, the parties are entitled to take measures to administrate their domestic affairs according to the related circumstances, so the measures which were taken in the aims of public policy would, to some degree, limit the freedom of international trades, while these give rise to the value conflict of the freedom of international trades between the aims of public policies Thus, the balance of the above-mentioned two, which weighs heavily at both theoretical and practical level, is the very starting point of this dissertation.Among the agreements of WTO, there are clauses of necessity test. What are necessity test and its elements? How does it work and why is it significant? These are the questions that First Chapter"Basic theory of necessity test" tries to answer. Necessity test is the vital conception of WTO agreements in that necessity test, as under the circumstances of the mounting conflicts between member states pursuing public policies and regulations of multinational trades, is a tool of balancing the administrative power of relevant parties with the freedom of international trades. The basic prerequisites of necessity test is that, if the measures or rules issued by the members create an effect of restriction on multinational trades, then the degree of the measures or rules should not surpass the necessary degree that the realization of the public policies require to achieve. The fundamental value of necessity test lies in the balancing of the potential conflicts that the members would face with, one is to acknowledge the right of taking measures to realize the policy ends, the other is to prevent the members take measures too excessively. In WTO law, the principle of proportionality and the principle of good faith are the theoretical basis to necessity test.What are the substantial problems of necessity test? And what are the differences when they are applied in the WTO agreements? In most parts of this dissertation, the author analyzes the three elements of the necessity test:measures (the applicable objects of necessity test), the legitimate goals and judging criteria. Therefore the substantive issues of the necessity test are discussed in three parts:"The applicable objects of necessity test" (Chapterâ…¡), "Legitimate goals of necessity test" (Chapterâ…¢) and the "Judging criteria of necessity test (â… ) "(Chapterâ…£) and the" Judging criteria of necessity test (â…¡) "(chapterâ…¤). As the judging criteria issues are the most complex ones in necessity test and therefore the dissertation probes into them in details, after analyzing the measures and legal objectives.Chapter IV sets forth the changes and development and implications of the judging criteria, based on the practice of judging criteria about Article 20 of the GATT of the panel or the Appellate Body. During the GATT, necessity test was explained as the following:when the exceptional stipulation of Article 20 is invoked by the prosecuted, it has to be proved that in the purpose of achieving its goal, there are no other measures satisfy the WTO agreements or the measures taken are within the lowest restriction of the freedom of international trades.Consequently, during GATT, the necessity test in the Article 20 refers that the discussed measures in the aims of realizing its protection or policy ends, is supposed to be the ones that violates the GATT rules to the minimal degree provides reasonable prerequisites. In other words, if there are any other replaceable and reasonable measures that would not violate the GATT rules or violate the GATT rules at a minimal degree, then the measures are considered not to live up to the necessity standard, that is, what is called the criterion of the lowest restriction of the freedom of international trades.But as is stepping into WTO times, a standard of necessity test that differs from GATT's came into being with the development of cases. For instance, in the Korean Beef case, when the Appellate Body judges the factors of necessity, it introduces a concept of interest balance, which is the balancing between trade interests and policy ends. Several elements are taken into consideration, such as, if the discussed measures do any contribution to the pursuing policy ends of domestic rules, the significance of the value and public interests that the domestic rules protect, together with the impact that the domestic rules exert on the import and export activities, and so forth. Thus, the more important the value and interests protected are, the easier for the measures to meet the requirements of necessity, that is, the more that the measures can achieve the goals that domestic rules had set, the more necessary the measures are considered, meanwhile, the lesser impact that the measures exert on the imported products, the easier for the measures to be taken as necessity, and vise versa.Therefore, in the GATT period, the meaning of the necessity test is limited to the so-called principle of minimal harm, the second principle in the principle of proportionality, but in the WTO era, especially after the South Korea Beef case, the balancing between the value of trade protection and the cost of trade resistance is added. In terms of the concepts, it can be said to have acceded the third principle to the principle of proportionality, namely, the concept of a narrow proportionality principle, making the necessity judgment of Article 20 of the GATT expand as the judgment of the principle of proportionality. Thus, the standard of the necessity, has been extended from the lowest trade restrictions, through a narrow interpretation of the principle of proportionality, to the lower standard of trade restrictions.Chapter V mainly discusses the necessity test criteria in other WTO agreements out of GATT. Although the necessity test in other agreements of WTO is not the same as in Article 20, the practice of the necessity test in Article 20 of GATT had a significant impact on the necessity test in SPS and TBT, which also include balancing consideration. In the case of TRIPS, there is no any dispute about the application of necessity test so far, however, the necessity test in TRIPS will absorb the element of balance in the future.Article 14 of GATS and Article 20 of GATT, with certain similar words, are general exceptional provisions. These two articles allow members'departure from substantial obligations under the GATS or the GATT in order to achieve legitimate objectives of public policies. Since the similarity of these two articles, the interpretation of Article 20 of the GATT of the panel or the Appellate Body in the past is of important significance for interpretation of Article 14 of GATS. Thus, in the U.S. Gambling case, the analyzes of the necessity test of the Appellate Body on GATS Article 14 followed the course of interpreting necessity of Article 20 of the GATT. In addition, necessity test as an important topic in negotiations on domestic regulations, the Working Group in the service trade has been widely discussed, If, in accordance with the authority of Paragraph 4, Article 6, the necessity test rules are made for all the service sectors, They undoubtedly have instructive significance for the interpretation of necessity of other WTO agreements, and ensure the stability and predictability of necessity test of WTO agreements.In short, the Panel and Appellate Body made certain similar interpretations about the application of necessity test in practice, and thus help make consistent interpretation of the necessity test of WTO agreements in order to avoid conflicts in the judgment of necessity to some extent.In addition to these substantive issues about the necessity test, there is an important procedural issue, the burden of proof. Chapterâ…¤, " the burden of proof in the necessity test" discusses this issue in details. According to the different legal nature, the various terms about necessity test in WTO agreements can be divided into positive claim terms arid vigorous defense terms. The basic principle is that the burden of proof does not distinguish between the complainant and the defend, therefore, those who make a positive claim or defense have the burden of proof. Particular party (in principle, as the Complainant) claims the other members (in principle, as the respondent party) violated certain provisions of WTO agreements, it must submit its claims and prove the claim. Therefore, the standards of allocating of the burden of proof is the legal nature of terms about the disputes, positive claim terms or vigorous defense terms, as is the same with the terms about the necessity test.Chapterâ…¦, based on Chapterâ…¡toâ…¥, analyses the similarities and differences of the necessity test of various WTO agreements, and probes into the possibility of cross-references and citing about the necessity test, and the principles of interpretation and application in the situation of overlap and concurrence of the necessity test terms, and points that stari decisis in fact is the main method of the necessity test in WTO agreements to converge.Finally, this dissertation ends with a brief summary.
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