Chapter 7: The Application of a New Standard of Review to Selected Non-trade Remedy Agreements
7.1 INTRODUCTION In this chapter, I will be examining how the new standard of review will apply to three WTO Agreements: the SPS Agreement, the TBT Agreement and GATT 1994. The first major reason for selecting these agreements is that each of them involves differing levels of responsibility for members in the carrying out of their WTO obligations. This helps to demonstrate how the new standard would apply in different situations. The relation between these agreements may be described as a sliding scale, where the SPS and TBT Agreements and GATT 1994, in that order, prescribe a lesser degree of responsibility for domestic authorities to exercise any kind of oversight in relation to measures. This is to be contrasted with the trade remedy agreements, where formal review processes are required to be followed by domestic authorities. In addition, many of the other WTO Agreements, such as GATS, the Agreement on Customs Valuation or the Agreement on Import Licensing Procedures are quite similar to GATT 1994, in that they do not retain specific competencies for members to safeguard WTO commitments.1 1 GATS, art VI (2)(a) does prescribe some generalized review obligations. The first sentence of this Article provides: ‘Each Member shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services.’ This would not be a sufficient basis to...
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