The Standard of Review in WTO Dispute Settlement

The Standard of Review in WTO Dispute Settlement

Critique and Development

Ross Becroft

This detailed book critiques how the World Trade Organization scrutinizes domestic measures to determine compliance with the WTO Agreements. This scrutiny, known as the standard of review, is particularly relevant when WTO panels are examining measures involving controversial domestic policy issues. The author argues that the current WTO standard of review is inadequate and a flexible standard based on the responsibilities that WTO members have retained for themselves under the WTO Agreements is preferable. This new standard of review would better reflect the autonomy contemplated for members under the WTO rules and reduce scope for the contention that the WTO overreaching its mandate.

Chapter 2: The Development of the WTO Standard of Review

Ross Becroft

Subjects: law - academic, international economic law, trade law


2.1 INTRODUCTION This chapter concerns the historical development of the standard of review in GATT and WTO law. I will seek to put the WTO standard of review in its historical and institutional context before identifying and discussing the current standard of review test in WTO law. This chapter is divided into three major sections: its treatment under the GATT (1947–1994), during the Uruguay Round of negotiations (1986–1994), and under the WTO (1995 to the present). There is discussion of both the structure of the GATT and WTO agreements and case law as they relate to the standard of review. The bulk of the chapter concerns the ‘objective assessment’ test formulated in the decision of EC-Hormones, and its development in subsequent decisions. The final section deals with the unique standard of review prescribed for anti-dumping disputes. This historical chapter is intended to identify trends in the current WTO standard of review and draw out any difficulties in its operation within the WTO system. The difficulties that I will seek to highlight include the lack of any clear theoretical foundation for the standard, the inconsistency in the way the standard is described and applied, and the fact that a separate standard exists solely for anti-dumping disputes. Two of the major trends in the development of the standard are adaptation of the standard depending upon the type of obligations under review, and the movement of the standard closer to de novo review.1 This chapter will seek to show that whilst...

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