Critique and Development
Chapter 8: Conclusion
8.1 8.1.1 OVERVIEW OF THIS WORK Critique and Contentions In this book, it is argued that the current WTO standard of review is inadequate, and a new standard of review should be developed. The challenge is to formulate a standard that provides sufficient oversight of domestic measures in order for the WTO to ensure compliance by members with WTO obligations, but without undermining the legitimacy of the WTO as an institution. The current standard of review is inadequate largely because it is based on Article 11 of the DSU.1 Article 11 refers to a panel’s obligation to conduct an objective assessment of the matter before it. This obligation extends both to the facts of the case, and the ultimate legal question of whether a measure is in conformity with the WTO Agreements. This standard, however, does not give any material guidance to panels about the manner and level of scrutiny of both factual and legal questions.2 This is because Article 11 only refers to the need for objectivity and, by implication, to fulfil a minimum due process requirement when conducting cases. The current standard of review therefore has the propensity to lead to panels ‘over’ or ‘under’ scrutinizing cases. This inadequacy of the current standard of review is also evidenced by the fact that the Appellate Body has seen fit to make statements in a number of decisions, both about the nature of the standard of review generally, and how the standard may be applied in relation to specific WTO...
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