The standard of review in WTO law: An analysis of law, legitimacy and the distribution of legal and political authority

Abstract:

Dispute settlement in the WTO is a sensitive issue and subject to a lively debate among trade scholars and engaged citizens. It is the purpose of this paper to focus on one particular aspect of judicial review within the WTO: the standard of review. This legal concept determines how much deference international adjudicators should give to the national fact-finding and to legal determinations. In other words, it reflects the relationship between supranational adjudication and national sovereignty. The paper will, firstly, analyse the standard of review's legal basis and the relevant case law. Next, a broad contextual discussion will explore the full significance of the standard of review within the global trading regime: it will be argued that the standard of review is an important 'constitutional' feature of WTO law, framing and limiting the exercise of national sovereignty as well as judicial power. Furthermore, the standard of review plays a crucial role in resolving disputes involving sensitive non-economic (national) policies within the WTO system. Ultimately, this paper is concerned with the important issue of strengthening the legitimacy of the dispute settlement system, and a possible role for the standard of review herein. For this purpose, the author argues for a strong proceduralist bias for the standard of review, which could include a so-called 'deliberation test'.