Standards of Review in WTO Dispute Resolution

Matthias Oesch

Journal of International Economic Law, 2003, vol. 6, issue 3, 635-659

Abstract: This article explores the issue of standard of review in WTO dispute resolution. Standards of review have over the last years gained unprecedented political and systemic significance in panel and Appellate Body proceedings. They express a deliberate allocation of vertical power between WTO adjudicating bodies and national authorities to decide upon factual and legal issues. Therefore, this article contributes to the debate on the balance of powers between the judiciary of the WTO and its members. At the outset, it defines the issue of standard of review (Section I) and examines the commonly invoked rationales for deference towards members' perceptions of their obligations under the WTO (Section II). Then, it expounds the Uruguay Round negotiations (Section III) and turns to the current state of law and practice (Section IV). The analysis of the case law to date reveals that panels and the Appellate Body have in general applied intrusive standards of review. Such a conclusion holds true in particular for the interpretation of WTO law, but it also stands to reason with regard to factual findings. It is submitted that the policy of intrusiveness is correct from a legal perspective but contrasts with the various rationales speaking in favour of a more deferential attitude. Copyright Oxford University Press 2003, Oxford University Press.

Date: 2003
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