Research Handbook on the WTO and Technical Barriers to Trade
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Research Handbook on the WTO and Technical Barriers to Trade

Edited by Tracey Epps and Michael J. Trebilcock

A relatively new frontier for legal and policy analysis, technical barriers to trade (TBT’s) have become more common as traditional border barriers have been reduced. This comprehensive Handbook comprises original essays by eminent trade scholars exploring the implications of the WTO’s TBT Agreement.
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Chapter 5: Standard of review in TBT cases

Michael M. Du


The issue of standard of review in WTO dispute settlement arises where a WTO panel examines the domestic law of a Member as interpreted by domestic authorities and tribunals to determine whether the law, or the actions of those authorities and tribunals (including fact-finding), or both are in compliance with provisions of the covered WTO Agreements. Specifically, how much deference should a panel give to fact-finding and legal interpretation provided by national authorities? Are WTO panels completely free to conduct their own investigation and come to a different conclusion? If not, are they obliged to rely on the substantive determination made by national authorities and simply review their conformity to procedural requirements? In other words, the term ‘standard of review’ describes the nature and intensity of WTO panels’ scrutiny of the legal validity of a WTO Member’s domestic regulatory decisions. If we agree that WTO panels should respect national government determinations up to some point, that point is the crucial issue that has been labeled the ‘standard of review’. As a key feature in the law and policy of the WTO, it marks the boundary of a Member state’s discretion, and determines the power of WTO panels to investigate, evaluate and judge the acts of a Member state against its legal obligations. While fundamentally a legal question, the issue of the standard of review encompasses broader political consequences in the WTO and relates to the allocation of power between Member states and the WTO.

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