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 4: A New General Standard of Review

Ross Becroft

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

Extract

INTRODUCTION In the first three chapters of this book, I have identified and critiqued the current WTO standard of review. Chapter 2 highlighted some of the problems associated with the current standard, and Chapter 3 dealt with alternative approaches as to how an improved standard might be formulated. This chapter marks the beginning of the second part of this work, in which a new standard of review is proposed. The new standard consists of two discrete tests, the first of which is a general standard that may be applied in relation to all WTO Agreements. The second test involves a modification of the general standard where the structure or wording of WTO Agreements provides for a change in the review process undertaken by panels. The second test therefore seeks to take into account the differing nature of WTO Agreements. This new standard of review would accordingly be applied as a singular general standard, or as a variation of the general standard depending upon which WTO obligations were the subject of a dispute. It is a singular standard, but the result may be to vary the standard that is actually applied in different types of disputes. References in subsequent chapters to ‘the new standard of review’ or ‘new test’ shall refer to the new standard of review as a whole, whereas references to a ‘general standard’ and ‘specific standard’ shall refer to the separate limbs of the new standard.1 In this chapter I shall deal with the general standard of review...

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