Critique and Development
Chapter 3: Alternative Models and Principles for the Development of a WTO Standard of Review
3.1 INTRODUCTION In this chapter I will examine the major proposals that have been put forward for a WTO standard of review and then I will seek to draw from these proposals some of the main principles upon which a new standard of review should be based. This chapter may be seen as dealing with possible solutions for the creation of a new standard of review, in contrast with Chapter 2, which dealt with the difficulties of the current standard as well as historical and institutional factors relevant to the current standard. WTO dispute settlement is considerably more legalistic in nature than GATT dispute settlement. Further, the measures reviewed by WTO panels are often very factually complex and may have involved prior assessment under domestic law. It is therefore not surprising that the standard of review has become a contentious subject. As pointed out in Chapter 2, the current objective assessment test does not provide any guidance to panels as to what level of scrutiny they should apply when reviewing measures. The fact that the current standard is drawn from DSU Article 11 rather than from more general administrative law principles signifies the reluctance by the Appellate Body to formulate an independent standard of review doctrine.1 The inadequacy of the objective assessment test is evidenced by certain trends in case law, such as the increasing intensity of the standard and the movement towards a more agreement-specific standard, both of which bear no relationship to the concept of objective assessment.2 The...
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