The potency of the SPS Agreement’s ‘excessivity test’: The impact of Article 5.6 on trade liberalization and the regulatory power of WTO members to take sanitary and phytosanitary measures

The article investigates the current and potential relevance of Article 5.6 SPS in deciding SPS disputes, and its impact on trade liberalization and WTO Members’ power to take sanitary and phytosanitary measures.
Article 5.6 of the SPS Agreement states that SPS measures may not be more trade restrictive than required to achieve a Member's appropriate level of protection. This obligation is self-standing and separate (in Article 5.6) from the necessity test (Article 2.2). We argue that its autonomous nature makes Article 5.6 SPS a distinct type of trade-off instrument (‘excessivity test’).
Using the software ATLAS.ti, we conducted a systematic content analysis of all SPS disputes invoking Article 5.6. In particular, we surveyed the jurisprudential development of the provision (outcomes of 5.6 SPS cases over time, DSB application of the three cumulative conditions and their respective outcome determinacy).

Our findings show that the importance of Article 5.6 has significantly increased over time, and holds immense potential for challenges to WTO Members domestic SPS measures for being excessively trade restrictive.