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Deference in International Courts and TribunalsStandard of Review and Margin of Appreciation$
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Lukasz Gruszczynski and Wouter Werner

Print publication date: 2014

Print ISBN-13: 9780198716945

Published to Oxford Scholarship Online: November 2014

DOI: 10.1093/acprof:oso/9780198716945.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 18 September 2020

Standard of Review for Necessity and Proportionality Analysis in EU and WTO Law

Standard of Review for Necessity and Proportionality Analysis in EU and WTO Law

Why Differences in Standards of Review Are Legitimate

(p.209) 12 Standard of Review for Necessity and Proportionality Analysis in EU and WTO Law
Deference in International Courts and Tribunals

Alexia Herwig

Asja Serdarevic

Oxford University Press

Chapter 12 compares the standards of review in necessity and proportionality analysis in the jurisprudence of the CJEU concerning the internal market and WTO dispute settlement bodies. It argues that judicial deference by the CJEU and WTO is appropriate to questions of fact and mixed legal-factual questions whenever the facts or considered normative judgments are uncertain, as is frequently the case in necessity and proportionality analysis. In particular, the chapter submits that the nature of handling uncertainties (ie through fair and inclusive decision-making procedures that provide legitimacy for subsequent decisions) requires the court to put an emphasis on the procedure rather than on substance of the decision under review. This means that deference with respect to substance should be combined with an intrusive review exercised by courts over the procedural fairness of the way the decision was taken.

Keywords:   standard of review, margin of appreciation, EU law, CJEU, WTO law, necessity, proportionality, Article 36 TFEU, general exceptions

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