Critique and Development
Chapter 5: Modification of the General Standard of Review
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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