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 6: The Application of a New Standard of Review to the Trade Remedy Agreements

Ross Becroft

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


6.1 INTRODUCTION In Chapters 4 and 5 of this book I advanced a theoretical alternative to the current WTO standard of review. Broadly, a two-stage test is proposed, whereby a general standard applies universally to the WTO Agreements, subject to its modification to a specific standard in particular disputes. The general standard centrally concerns the need for sufficient panel scrutiny in panel hearings, whereas the specific standard is a product of the general standard and recognition of the demarcation of responsibilities of the WTO and its members under the WTO Agreements. Chapters 6 and 7 deal with how the new standard of review would apply to various WTO Agreements. This chapter describes how the new standard of review would apply to measures contested under the Anti-Dumping, SCM and Safeguard Agreements. The focus will be on trade remedy measures, but I also deal with subsidies. I also briefly refer to the safeguard mechanisms within the Agreement on Agriculture and the now defunct ATC.1 In Chapters 6 and 7 it is my intention to provide a brief survey of how the new standard of review may be characterized in the selected disciplines, but there is no scope to analyse specific obligations in detail to provide a comprehensive ‘map’ of the standard of review. The Trade Remedy Agreements are important in the development of a new standard of review because they generally involve the assumption of more responsibility by members for the carrying out of WTO obligations. Therefore, pursuant to the new test,...

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