Beyond the Standard of Review
Beyond the Standard of Review
Deference Criteria in WTO Law and the Case for a Procedural Approach
Chapter 6 investigates the applicable standard of review in the WTO context. The chapter criticizes the current usage of standards of review by the WTO adjudicating bodies, noting in particular that notions such as ‘objectiveness’ or ‘reasonableness’ fail to give a clear answer to the question why some domestic decisions are awarded greater deference than others. The chapter proposes to abandon the current approach to applicable standard of review based on the indeterminate notion of ‘objectiveness’ in favour of a more qualified perspective, focusing on the concrete reasons offered by the WTO adjudicating bodies. In this context, the chapter identifies national sovereignty, domestic expertise, and respect for basic procedural guarantees as primary reasons. Finally, the chapter argues that decisions resulting from domestic procedures sufficiently open to the consideration of foreign interests should be given greater deference than those taken behind doors, closed to the foreigners affected by them.
Keywords: WTO law, standard of review, deference, participation, due process
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