THE “NECESSITY” TEST IN WTO GENERAL EXCEPTIONS: ASYMMETRY OF THE BURDEN OF PROOF FOR DEVELOPING STATES

Abstract

The article examines the legal nature of the “necessity test” as a key tool for limiting the regulatory autonomy of states within the framework of WTO general exceptions enshrined in Article XX of the 1994 General Agreement on Tariffs and Trade and Article XIV of the General Agreement on Trade in Services. The subject of analysis is the structural asymmetries that arise when applying this test to measures taken by developing states. The relevance of the topic is due to the fact that the Republic of Uzbekistan, having not completed the WTO accession process at the 14th Ministerial Conference held on March 26-30, 2026, in Yaoundé (Cameroon), has entered a period of additional preparation for finalizing membership, which opens up a rare opportunity for in-depth development of a protective legal strategy. The methodological basis consists of comparative-legal, formal-legal, and precedent-analytical methods; the empirical basis consists of reports from arbitration groups and the WTO RATS Appellate Body for US-Gambling (DS285), Brazil-Retreaded Tyres (DS332), and China-Publications and Audiovisual Products (DS363). It has been established that the formally neutral construction of the “weighing and balancing” test in practice creates a systematic burden of proof, which is more burdensome for states with weak institutional and expert infrastructure. Proposals have been formulated to strengthen the negotiation and procedural position of the Republic of Uzbekistan in the remaining period before formal accession, including a strategy for reserving regulatory space at the stage of finalizing lists of obligations. The conclusions of the article can be used in lawmaking activities when implementing WTO norms into national legislation, as well as in the scientific and educational sphere.