The Standard of Review in WTO Dispute Settlement
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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.
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Chapter 5: Modification of the General Standard of Review

Ross Becroft


5.1 INTRODUCTION In Chapter 4, a new test for a general standard of review was described and arguments for its adoption were given. This general standard advantages stakeholders in WTO disputes in that it provides a clear and uniform approach to the panel review process. It is also relatively intrusive and undeferential, thereby ensuring that panels are not prevented from being in a position to determine whether measures comply with WTO obligations. In short, the general standard is an appropriate form of review to apply in many WTO disputes. However, the WTO Agreements deal with very diverse subjects, and the measures under review, as well as the procedures giving rise to them, are also extremely diverse.1 This suggests that a general standard of review may not be appropriate in all cases. There are aspects of this diversity of subject matter that support the idea that there should be some kind of ‘tailoring’ of the standard of review. From a practical standpoint, panels may not have the resources to examine the veracity of raw or technical evidence in certain trade remedy matters in order to satisfy the general standard.2 Further, the general standard may not be appropriate in cases where it may duplicate scrutiny that has already been carried out by a domestic authority.3 There are also broader policy questions about the need for differential approaches to review for agreements that deal with ‘core’ issues like tariff reductions versus agreements that provide for newer types of obligations, such as in the...

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