-
1
-
-
67650460456
-
-
See Martha S. Davis, A Basic Guide to Standards of Judicial Review, 33 S.D. L. REV. 469, 470 (1988) (identifying six distinct standards of review in domestic litigation).
-
See Martha S. Davis, A Basic Guide to Standards of Judicial Review, 33 S.D. L. REV. 469, 470 (1988) (identifying six distinct standards of review in domestic litigation).
-
-
-
-
2
-
-
67650408207
-
-
See id. at 471, 475-81 identifying six distinct standards of review in domestic litigation and the level of deference each accords
-
See id. at 471, 475-81 (identifying six distinct standards of review in domestic litigation and the level of deference each accords).
-
-
-
-
3
-
-
67650440024
-
-
Id. The same terminology is also used, in similar fashion, to describe judicial review of legislative or administrative actions. See Chevron U.S.A., Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (holding that a court shall apply a deferential standard of review to an agency's reasonable construction of a statute that is silent or ambiguous regarding the issue);
-
Id. The same terminology is also used, in similar fashion, to describe judicial review of legislative or administrative actions. See Chevron U.S.A., Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (holding that a court shall apply a deferential standard of review to an agency's reasonable construction of a statute that is silent or ambiguous regarding the issue);
-
-
-
-
4
-
-
67650454445
-
-
Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363, 365-67 (1986) (discussing the principles of law governing judicial standards of review of agency action). 42 CORNELL INT'L LJ. 45 (2009)
-
Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363, 365-67 (1986) (discussing the principles of law governing judicial standards of review of agency action). 42 CORNELL INT'L LJ. 45 (2009)
-
-
-
-
5
-
-
0344944729
-
-
See Matthias Oesch, Standards of Review in WTO Dispute Resolution, 6 J. INT'L ECON. L. 635, 637-39 (2003) (defining standard of review in the context of the WTO).
-
See Matthias Oesch, Standards of Review in WTO Dispute Resolution, 6 J. INT'L ECON. L. 635, 637-39 (2003) (defining standard of review in the context of the WTO).
-
-
-
-
6
-
-
23044533126
-
-
Id. at 637. The standard of review can also refer to the review of panel decisions by the Appellate Body, but that is a different issue that is not addressed in this article. See, e.g., Claus-Dieter Ehlermann, Six Years on the Bench of the World Trade Court- Some Personal Experiences as Member of the Appellate Body of the World Trade Organization, 36 J. WORLD TRADE 605, 619 (2002).
-
Id. at 637. The standard of review can also refer to the review of panel decisions by the Appellate Body, but that is a different issue that is not addressed in this article. See, e.g., Claus-Dieter Ehlermann, Six Years on the Bench of the "World Trade Court"- Some Personal Experiences as Member of the Appellate Body of the World Trade Organization, 36 J. WORLD TRADE 605, 619 (2002).
-
-
-
-
7
-
-
67650448688
-
-
See Oesch, supra note 4, at 637-38
-
See Oesch, supra note 4, at 637-38.
-
-
-
-
8
-
-
67650451962
-
-
See, e.g., Salve Regina Coll. v. Russell, 499 U.S. 225, 232 (1991) (Courts of appeals ... are structurally suited to the collaborative juridical process that promotes decisional accuracy. With the record having been constructed below and settled for purposes of the appeal, appellate judges are able to devote their primary attention to legal issues.).
-
See, e.g., Salve Regina Coll. v. Russell, 499 U.S. 225, 232 (1991) ("Courts of appeals ... are structurally suited to the collaborative juridical process that promotes decisional accuracy. With the record having been constructed below and settled for purposes of the appeal, appellate judges are able to devote their primary attention to legal issues.").
-
-
-
-
9
-
-
67650407015
-
-
See, e.g., Pierce v. Underwood, 487 U.S. 552, 560 (1988) (stating that due to pretrial activities, a lower court may have insights the record may not convey, and that the only way an appellate court can get full knowledge of the full factual record is to review the entire record).
-
See, e.g., Pierce v. Underwood, 487 U.S. 552, 560 (1988) (stating that due to pretrial activities, a lower court may have insights the record may not convey, and that the only way an appellate court can get full knowledge of the full factual record is to review the entire record).
-
-
-
-
10
-
-
67650407014
-
-
See Appellate Body Report, European Community- Measures Concerning Meat and Meat Products (Hormones), 1 115, WT/DS26/AB/R, WT/DS48/AB/R Qan. 16, 1998) [hereinafter EC-Hormones AB Report] (stating that the standard of review must reflect the balance established in [the SPS] Agreement between the jurisdictional competences conceded by the Members to the WTO and the jurisdictional competences retained by the Members for themselves).
-
See Appellate Body Report, European Community- Measures Concerning Meat and Meat Products (Hormones), 1 115, WT/DS26/AB/R, WT/DS48/AB/R Qan. 16, 1998) [hereinafter EC-Hormones AB Report] (stating that the standard of review "must reflect the balance established in [the SPS] Agreement between the jurisdictional competences conceded by the Members to the WTO and the jurisdictional competences retained by the Members for themselves").
-
-
-
-
11
-
-
67650451963
-
-
Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 493 [hereinafter SPS Agreement].
-
Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 493 [hereinafter SPS Agreement].
-
-
-
-
12
-
-
67650425008
-
-
Agreement on Safeguards art. 2(1), Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Legal Instruments-Results of the Uruguay Round, 1869 U.N.T.S. 154 [hereinafter Safeguards Agreement].
-
Agreement on Safeguards art. 2(1), Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Legal Instruments-Results of the Uruguay Round, 1869 U.N.T.S. 154 [hereinafter Safeguards Agreement].
-
-
-
-
13
-
-
67650428090
-
-
Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15,1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, Legal Instruments-Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter DSU].
-
Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15,1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, Legal Instruments-Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter DSU].
-
-
-
-
14
-
-
67650463784
-
-
Id. art. 11
-
Id. art. 11.
-
-
-
-
15
-
-
67650372747
-
-
For example, a specific standard of review applies in anti-dumping disputes. See Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 art. 17.6, Apr. 15,1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1868 U.N.T.S. 201 [hereinafter AD Agreement].
-
For example, a specific standard of review applies in anti-dumping disputes. See Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 art. 17.6, Apr. 15,1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1868 U.N.T.S. 201 [hereinafter AD Agreement].
-
-
-
-
16
-
-
4544224446
-
-
See Claus-Dieter Ehlermann & Nicolas Lockhart, Standard of Review in WTO Law, 7 J. INT'L ECON. L. 491, 495 (2004) (stating that the standard of 'objective assessment' is couched in rather broad terms that do little to provide substantive guidance on the nature and intensity of the review which panels should apply to national measures).
-
See Claus-Dieter Ehlermann & Nicolas Lockhart, Standard of Review in WTO Law, 7 J. INT'L ECON. L. 491, 495 (2004) (stating that "the standard of 'objective assessment' is couched in rather broad terms that do little to provide substantive guidance on the nature and intensity of the review which panels should apply to national measures").
-
-
-
-
18
-
-
67650372748
-
-
Agreement on Subsidies and Countervailing Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 14 [hereinafter SCM Agreement].
-
Agreement on Subsidies and Countervailing Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 14 [hereinafter SCM Agreement].
-
-
-
-
19
-
-
67650396353
-
-
See generally SPS Agreement
-
See generally SPS Agreement.
-
-
-
-
20
-
-
67650416307
-
-
See generally Safeguards Agreement
-
See generally Safeguards Agreement.
-
-
-
-
21
-
-
67650420056
-
-
OESCH, supra note 16, at 6-7
-
OESCH, supra note 16, at 6-7.
-
-
-
-
22
-
-
67650416306
-
-
See General Agreement on Tariffs and Trade art. XX, Oct. 30,1947, 61 Stat. A-ll, 55 U.N.T.S. 194 [hereinafter GATT].
-
See General Agreement on Tariffs and Trade art. XX, Oct. 30,1947, 61 Stat. A-ll, 55 U.N.T.S. 194 [hereinafter GATT].
-
-
-
-
23
-
-
67650460454
-
-
Bradly J. Condon, GATT Article XX and Proximity-of-Interest: Determining the Subject Matter of Paragraphs B and G, 9 UCLA J. INT'L L. & FOREIGN AFF. 137, 138, 142 (2004).
-
Bradly J. Condon, GATT Article XX and Proximity-of-Interest: Determining the Subject Matter of Paragraphs B and G, 9 UCLA J. INT'L L. & FOREIGN AFF. 137, 138, 142 (2004).
-
-
-
-
24
-
-
0030542061
-
-
See OESCH, supra note 16, at 20 (stating that the issue of the appropriate standard of review to apply arises whenever panels and the AB must interpret and apply domestic law); Steven P. Croley & John H. Jackson, WTO Dispute Procedures, Standard of Review, and Deference to National Governments, 90 AM. J. INT'L L. 193, 194 (1996) (observing that GATT dispute settlement procedures have confronted questions of national sovereignty when determining the degree to which an international body should question a national government's decision).
-
See OESCH, supra note 16, at 20 (stating that the issue of the appropriate standard of review to apply arises whenever panels and the AB must interpret and apply domestic law); Steven P. Croley & John H. Jackson, WTO Dispute Procedures, Standard of Review, and Deference to National Governments, 90 AM. J. INT'L L. 193, 194 (1996) (observing that GATT dispute settlement procedures have confronted questions of national sovereignty when determining the degree to which an international body should question a national government's decision).
-
-
-
-
25
-
-
67650396354
-
-
GATT art. XXd
-
GATT art. XX(d).
-
-
-
-
26
-
-
67650407016
-
-
AD Agreement art. 17.6.
-
AD Agreement art. 17.6.
-
-
-
-
27
-
-
67650420057
-
-
Id
-
Id.
-
-
-
-
28
-
-
67650463785
-
-
Id
-
Id.
-
-
-
-
29
-
-
67650372750
-
-
Id
-
Id.
-
-
-
-
30
-
-
67650440032
-
-
See DSU art, note 16, at
-
See DSU art. 11; OESCH, supra note 16, at 98.
-
11; OESCH, supra
, pp. 98
-
-
-
31
-
-
67650448695
-
-
Appellate Body Report, Chile- Price Band System and Safeguard Measures Relating to Certain Agricultural Products, WT/DS207/AB/R (Sept. 23, 2002).
-
Appellate Body Report, Chile- Price Band System and Safeguard Measures Relating to Certain Agricultural Products, WT/DS207/AB/R (Sept. 23, 2002).
-
-
-
-
32
-
-
67650436852
-
-
Id. 1 176
-
Id. 1 176.
-
-
-
-
33
-
-
67650430754
-
-
Id
-
Id.
-
-
-
-
34
-
-
67650416303
-
-
Id, OESCH, supra note 16, at 83
-
Id.; OESCH, supra note 16, at 83.
-
-
-
-
35
-
-
67650413131
-
-
Appellate Body Report, United States-Anti-Dumping Measures on Certain Hot- Rolled Steel Products from Japan, 155, WT/DS184/AB/R (July 24, 2001) [hereinafter Hot- Roiled Steel AB Report],
-
Appellate Body Report, United States-Anti-Dumping Measures on Certain Hot- Rolled Steel Products from Japan, 155, WT/DS184/AB/R (July 24, 2001) [hereinafter Hot- Roiled Steel AB Report],
-
-
-
-
36
-
-
67650407009
-
-
DSU art. 11
-
DSU art. 11.
-
-
-
-
37
-
-
67650451956
-
-
If these two provisions were in tension, the AD Agreement rule would govern. See id. art. 1.2, app. 2 (indicating that to the extent there is a difference between the rules and procedures of the DSU and the rules and procedures set forth in the covered agreements identified in Appendix 2, the rules specified in the covered agreements will prevail).
-
If these two provisions were in tension, the AD Agreement rule would govern. See id. art. 1.2, app. 2 (indicating that to the extent there is a difference between the rules and procedures of the DSU and the rules and procedures set forth in the covered agreements identified in Appendix 2, the rules specified in the covered agreements will prevail).
-
-
-
-
38
-
-
67650420053
-
-
If bilateral attempts between two members to resolve a dispute under the AD Agreement fail, a member may refer the dispute to the Dispute Settlement Body provided for in the AD Agreement. See AD Agreement art. 17.4.
-
If bilateral attempts between two members to resolve a dispute under the AD Agreement fail, a member may refer the dispute to the Dispute Settlement Body provided for in the AD Agreement. See AD Agreement art. 17.4.
-
-
-
-
39
-
-
67650454446
-
-
Hot-Rolled Steel AB Report, supra note 34,1 55
-
Hot-Rolled Steel AB Report, supra note 34,1 55.
-
-
-
-
40
-
-
67650428085
-
-
See id
-
See id.
-
-
-
-
41
-
-
67650407010
-
-
See id. (stating that it is inconceivable that Article 17.6(i) should require anything other than that panels make an objective 'assessment. . . ').
-
See id. (stating that "it is inconceivable that Article 17.6(i) should require anything other than that panels make an objective 'assessment. . . "').
-
-
-
-
42
-
-
67650396350
-
-
See EC-Hormones AB Report, supra note 9
-
See EC-Hormones AB Report, supra note 9.
-
-
-
-
43
-
-
67650372745
-
-
Id. 1 117
-
Id. 1 117.
-
-
-
-
44
-
-
67650454447
-
-
See Ehlermann & Lockhart, supra note 15, at 496 (stating that the scope and intensity of the panel's objective assessment is not the same for every issue, nor in every dispute, and suggesting that the one size fits all approach is therefore not practical);
-
See Ehlermann & Lockhart, supra note 15, at 496 (stating that the scope and intensity of the panel's objective assessment is not the same for every issue, nor in every dispute, and suggesting that the "one size fits all" approach is therefore not practical);
-
-
-
-
45
-
-
67650440026
-
-
see also CATHERINE BUTTON, THE POWER TO PROTECT: TRADE, HEALTH AND UNCERTAINTY IN THE WTO 186 (2004) (stating that instead of looking for a non-existent ready-made standard of review, the AB should balance between regulatory autonomy and international supervision ... in order to support a revised standard of review).
-
see also CATHERINE BUTTON, THE POWER TO PROTECT: TRADE, HEALTH AND UNCERTAINTY IN THE WTO 186 (2004) (stating that instead of looking for a non-existent ready-made standard of review, the AB should "balance between regulatory autonomy and international supervision ... in order to support a revised standard of review").
-
-
-
-
46
-
-
67650448689
-
-
DSU art. 11
-
DSU art. 11.
-
-
-
-
47
-
-
67650448687
-
-
See, e.g., EC-Hormones AB Report, supra note 9,1115 (The standard of review appropriately applicable in proceedings under the SPS Agreement, of course, must reflect the balance established in that Agreement between the jurisdictional competences conceded by the Members to the WTO and the jurisdictional competences retained by the Members for themselves.).
-
See, e.g., EC-Hormones AB Report, supra note 9,1115 ("The standard of review appropriately applicable in proceedings under the SPS Agreement, of course, must reflect the balance established in that Agreement between the jurisdictional competences conceded by the Members to the WTO and the jurisdictional competences retained by the Members for themselves.").
-
-
-
-
48
-
-
67650454448
-
-
BUTTON, supra note 43, at 165 (observing that it makes a great difference to the scope of Members' autonomy whether the panel assesses the existence of a proper scientific justification de novo, or whether it exercises . . . deference).
-
BUTTON, supra note 43, at 165 (observing that it makes a great "difference to the scope of Members' autonomy whether the panel assesses the existence of a proper scientific justification de novo, or whether it exercises . . . deference").
-
-
-
-
49
-
-
33750117034
-
Food Fears: Health and Safety at the WTO, 45 Va
-
See
-
See Andrew T. Guzman, Food Fears: Health and Safety at the WTO, 45 Va. J. Int'l L. 1 (2004).
-
(2004)
J. Int
, vol.50
, Issue.L
, pp. 1
-
-
Guzman, A.T.1
-
50
-
-
67650436853
-
-
See EC-Hormones AB Report, supra note 9,11112-118 (distinguishing the standard of review applicable to factual as opposed to legal disputes).
-
See EC-Hormones AB Report, supra note 9,11112-118 (distinguishing the standard of review applicable to factual as opposed to legal disputes).
-
-
-
-
51
-
-
67650454450
-
-
Ehlermann & Lockhart, supra note 15, at 498
-
Ehlermann & Lockhart, supra note 15, at 498.
-
-
-
-
52
-
-
67650436851
-
-
The DSB has exclusive authority to interpret agreements outside of a formal interpretation by the Ministerial Conference or the General Council. See Marrakesh Agreement Establishing the World Trade Organization art. IX2, Apr. 15, 1994, 1867 U.N.T.S. 154 [hereinafter WTO Agreement
-
The DSB has exclusive authority to interpret agreements outside of a formal interpretation by the Ministerial Conference or the General Council. See Marrakesh Agreement Establishing the World Trade Organization art. IX(2), Apr. 15, 1994, 1867 U.N.T.S. 154 [hereinafter WTO Agreement].
-
-
-
-
53
-
-
67650416302
-
-
Info. & Media Relations Div., World Trade Org., Understanding The WTO 9-10 (3d ed. 2007) (stating that the WTO was created by negotiations and that everything it does is the result of negotiations).
-
Info. & Media Relations Div., World Trade Org., Understanding The WTO 9-10 (3d ed. 2007) (stating that the WTO was created by negotiations and that everything it does is the result of negotiations).
-
-
-
-
54
-
-
2942604317
-
-
See Richard H. Steinberg, Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints, 98 AM. j. INT'L L. 247, 250-51 (2004) (stating that to help ensure the WTO dispute settlement system would not shift the members' rights and responsibilities the DSU says that the AB cannot add or diminish the rights and obligations covered in the agreements).
-
See Richard H. Steinberg, Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints, 98 AM. j. INT'L L. 247, 250-51 (2004) (stating that to help ensure the WTO dispute settlement system would not shift the members' rights and responsibilities the DSU says that the AB cannot add or diminish the rights and obligations covered in the agreements).
-
-
-
-
55
-
-
67650416304
-
-
See Ehlermann & Lockhart, supra note 15, at 494-96
-
See Ehlermann & Lockhart, supra note 15, at 494-96.
-
-
-
-
56
-
-
67650407011
-
-
See Lori M. Wallach, Accountable Governance in the Era of Globalization: The WTO, NAFTA, and International Harmonization of Standards, 50 U. KAN. L. REV. 823, 827 (2002).
-
See Lori M. Wallach, Accountable Governance in the Era of Globalization: The WTO, NAFTA, and International Harmonization of Standards, 50 U. KAN. L. REV. 823, 827 (2002).
-
-
-
-
57
-
-
67650384411
-
-
See DSU art. 3.3; see also GATT art. XXIII
-
See DSU art. 3.3; see also GATT art. XXIII.
-
-
-
-
58
-
-
26844514814
-
-
See Joost Pauwelyn, The Transformation of World Trade, 104 Mich. L. Rev. 1, 25-26 (2005) (noting the impartiality of the WTO judicial body). There are a range of concerns one might have about the impartiality of judges or the objectives they seek to pursue. At the WTO, one might also be concerned that panels and the AB are themselves political players within the WTO system and cannot avoid having their decisions affected by the identity of the parties.
-
See Joost Pauwelyn, The Transformation of World Trade, 104 Mich. L. Rev. 1, 25-26 (2005) (noting the impartiality of the WTO judicial body). There are a range of concerns one might have about the impartiality of judges or the objectives they seek to pursue. At the WTO, one might also be concerned that panels and the AB are themselves political players within the WTO system and cannot avoid having their decisions affected by the identity of the parties.
-
-
-
-
59
-
-
67650413132
-
-
See generally EC-Hormones AB Report, supra note 9. This example is only intended as an illustration. Other real or hypothetical cases face the same issues.
-
See generally EC-Hormones AB Report, supra note 9. This example is only intended as an illustration. Other real or hypothetical cases face the same issues.
-
-
-
-
60
-
-
67650448691
-
-
Id. 1 2
-
Id. 1 2.
-
-
-
-
61
-
-
67650396352
-
-
See Phoenix X.F. Cai, Between Intensive Care and the Crematorium: Using the Standard of Review to Restore Balance to the WTO, 15 TUL. J. INT'L & COMP. L. 465, 507-08 (2007).
-
See Phoenix X.F. Cai, Between Intensive Care and the Crematorium: Using the Standard of Review to Restore Balance to the WTO, 15 TUL. J. INT'L & COMP. L. 465, 507-08 (2007).
-
-
-
-
62
-
-
67650454449
-
-
Guzman, supra note 47, at 11, 15-17 (noting that two countries may employ different policies based on domestic values and attitudes, and that the WTO system does not acknowledge legitimate reasons for divergent state preferences).
-
Guzman, supra note 47, at 11, 15-17 (noting that two countries may employ different policies based on domestic values and attitudes, and that the WTO system does not acknowledge legitimate reasons for divergent state preferences).
-
-
-
-
63
-
-
67650425004
-
-
Id. at 11-15 describing the reasons why allowing competing domestic policies is preferable
-
Id. at 11-15 (describing the reasons why allowing competing domestic policies is preferable).
-
-
-
-
64
-
-
67650408204
-
-
Id. at 12
-
Id. at 12.
-
-
-
-
65
-
-
67650440028
-
-
Id, noting that a poor country may accept a greater risk for less expensive food, while a wealthy country would not
-
Id. (noting that a poor country may accept a greater risk for less expensive food, while a wealthy country would not).
-
-
-
-
66
-
-
67650448690
-
-
See Paul B. Stephan, The Futility of Unification and Harmonization in International Commercial Law, 39 Va. J. Int'l L. 743, 792-93 (1999) (arguing that development on national scales allows for mini-laboratories to provide diverse options, while having one international system of development would eliminate innovation).
-
See Paul B. Stephan, The Futility of Unification and Harmonization in International Commercial Law, 39 Va. J. Int'l L. 743, 792-93 (1999) (arguing that development on national scales allows for mini-laboratories to provide diverse options, while having one international system of development would eliminate innovation).
-
-
-
-
67
-
-
67650372746
-
-
One could add issues of legitimacy to the list of reasons why domestic governments are better situated to make domestic policy. See Guzman, supra note 47, at 14
-
One could add issues of legitimacy to the list of reasons why domestic governments are better situated to make domestic policy. See Guzman, supra note 47, at 14.
-
-
-
-
69
-
-
67650436854
-
-
See id. at 21-24
-
See id. at 21-24.
-
-
-
-
70
-
-
67650448694
-
-
See generally WTO Agreement
-
See generally WTO Agreement.
-
-
-
-
71
-
-
67650430756
-
-
See, e.g, GATT art. XXIII
-
See, e.g., GATT art. XXIII.
-
-
-
-
72
-
-
67650451960
-
-
DSU art. 3.2
-
DSU art. 3.2.
-
-
-
-
73
-
-
67650430755
-
-
Alan O. Sykes, Domestic Regulation, Sovereignty, and Scientific Evidence Requirements: A Pessimistic View, 3 CHI. J. INT'L L. 353, 353 (2002) (stating the reciprocal commitments resulting from the WTO negotiations reduce or eliminate traditional methods of protectionism).
-
Alan O. Sykes, Domestic Regulation, Sovereignty, and Scientific Evidence Requirements: A Pessimistic View, 3 CHI. J. INT'L L. 353, 353 (2002) (stating the reciprocal commitments resulting from the WTO negotiations reduce or eliminate traditional methods of protectionism).
-
-
-
-
74
-
-
67650428088
-
-
Guzman, supra note 47, at 15
-
Guzman, supra note 47, at 15.
-
-
-
-
75
-
-
67650442493
-
-
See, e.g., DSU art. 17.3 (providing that the AB will be comprised of persons unaffiliated with any government who do not have a conflict of interest and that the membership should be broadly representative of the membership of the WTO);
-
See, e.g., DSU art. 17.3 (providing that the AB will be comprised of persons unaffiliated with any government who do not have a conflict of interest and that the membership should be broadly representative of the membership of the WTO);
-
-
-
-
76
-
-
67650436855
-
-
see also Guzman, supra note 47, at 15-16
-
see also Guzman, supra note 47, at 15-16.
-
-
-
-
77
-
-
67650418837
-
-
See, e.g., Guzman, supra note 47, at 14-17 (giving an example of how the WTO's neutrality can lead to a better application and interpretation of the WTO agreements).
-
See, e.g., Guzman, supra note 47, at 14-17 (giving an example of how the WTO's neutrality can lead to a better application and interpretation of the WTO agreements).
-
-
-
-
78
-
-
67650384413
-
-
See, e.g, OESCH, supra note 16, at 30-31
-
See, e.g., OESCH, supra note 16, at 30-31.
-
-
-
-
79
-
-
67650442492
-
-
For example, what areas should have uniformity? Why those areas?
-
For example, what areas should have uniformity? Why those areas?
-
-
-
-
80
-
-
67650451959
-
-
For example, why require uniformity in the facts necessary to claim injury, but not require uniformity in weighing the merits of scientific evidence
-
For example, why require uniformity in the facts necessary to claim injury, but not require uniformity in weighing the merits of scientific evidence?
-
-
-
-
81
-
-
67650440031
-
-
EC-Hormones AB Report, supra note 9
-
EC-Hormones AB Report, supra note 9.
-
-
-
-
82
-
-
0012981826
-
-
See Robert Howse, Democracy, Science, and Free Trade: Risk Regulation on Trial at the World Trade Organization, 98 MICH. L. REV. 2329, 2329-40 (2000) (stating that SPS provisions apply even to nondiscriminatory regulations that would not violate GATT provisions and thereby implying that even if there is a possibility that a state's trade regulation may be discriminatory, the WTO would review it as it did in the beef hormones dispute).
-
See Robert Howse, Democracy, Science, and Free Trade: Risk Regulation on Trial at the World Trade Organization, 98 MICH. L. REV. 2329, 2329-40 (2000) (stating that SPS provisions apply even to nondiscriminatory regulations that would not violate GATT provisions and thereby implying that even if there is a possibility that a state's trade regulation may be discriminatory, the WTO would review it as it did in the beef hormones dispute).
-
-
-
-
83
-
-
67650416305
-
-
See Ehlermann & Lockhart, supra note 15, at 496 (suggesting that a one size fits all approach would not work well).
-
See Ehlermann & Lockhart, supra note 15, at 496 (suggesting that a "one size fits all" approach would not work well).
-
-
-
-
84
-
-
67650440029
-
-
See Mads Andenas & Stefan Zleptnig, Proportionality: WTO Law: In Comparative Perspective, 42 Tex. Int'l L.J. 371, 395-96 (2007).
-
See Mads Andenas & Stefan Zleptnig, Proportionality: WTO Law: In Comparative Perspective, 42 Tex. Int'l L.J. 371, 395-96 (2007).
-
-
-
-
85
-
-
67650384412
-
-
GATT art. III:2. The term like products appears in various other places in the WTO agreements. See, e.g., AD Agreement art. 3.1. For present purposes, however, it is sufficient to focus on this one occurrence.
-
GATT art. III:2. The term "like products" appears in various other places in the WTO agreements. See, e.g., AD Agreement art. 3.1. For present purposes, however, it is sufficient to focus on this one occurrence.
-
-
-
-
86
-
-
67650454451
-
-
Appellate Body Report, Japan- Taxes on Alcoholic Beverages, at 20-21, WT/DS8/ AB/R, WT/DS10/AB/R, WT/DS11/AB/R (Oct. 4, 1996) [hereinafter Japan-Alcoholic Beverages AB Report].
-
Appellate Body Report, Japan- Taxes on Alcoholic Beverages, at 20-21, WT/DS8/ AB/R, WT/DS10/AB/R, WT/DS11/AB/R (Oct. 4, 1996) [hereinafter Japan-Alcoholic Beverages AB Report].
-
-
-
-
87
-
-
67650407013
-
-
See id, stating that given the case-by-case analysis that interpreting like products requires, panels can only apply their best judgment, and this will involve an element of discretionary judgment
-
See id. (stating that given the case-by-case analysis that interpreting "like products" requires, panels can only apply their best judgment, and this will involve an element of discretionary judgment).
-
-
-
-
88
-
-
67650460455
-
-
Oesch, supra note 4, at 640
-
Oesch, supra note 4, at 640.
-
-
-
-
89
-
-
67650418838
-
-
See Guzman, supra note 47, at 17
-
See Guzman, supra note 47, at 17.
-
-
-
-
90
-
-
67650448692
-
-
See Ehlermann & Lockhart, supra note 15, at 496 (stating that one of a panel's basic activities is to make findings that are purely legal in nature).
-
See Ehlermann & Lockhart, supra note 15, at 496 (stating that one of a panel's basic activities is to make findings that are purely legal in nature).
-
-
-
-
92
-
-
67650425005
-
-
See id. (indicating that panels and the AB must reach their own conclusions about legal conclusions regardless of the nation's application of law).
-
See id. (indicating that panels and the AB must reach their own conclusions about legal conclusions regardless of the nation's application of law).
-
-
-
-
93
-
-
67650451961
-
-
Id. at 498 (arguing that allowing individual WTO members to interpret WTO law would lead to loss of uniformity that would undermine the rule-based system because the obligations that members assume would differ from member to member).
-
Id. at 498 (arguing that allowing individual WTO members to interpret WTO law would lead to loss of uniformity that would undermine the rule-based system because the obligations that members assume would differ from member to member).
-
-
-
-
94
-
-
67650440030
-
-
See Oesch, supra note 4, at 643 (arguing that the expertise argument favors panels and the AB regarding questions of law because these judicial organs have expertise and institutional knowledge in WTO law and practice).
-
See Oesch, supra note 4, at 643 (arguing that the "expertise argument" favors panels and the AB regarding questions of law because these judicial organs have expertise and institutional knowledge in WTO law and practice).
-
-
-
-
95
-
-
67650454454
-
-
See OESCH, supra note 16, at 174 ([B]oth panels and the Appellate Body have constantly engaged in a de novo standard of review of WTO law.).
-
See OESCH, supra note 16, at 174 ("[B]oth panels and the Appellate Body have constantly engaged in a de novo standard of review of WTO law.").
-
-
-
-
96
-
-
67650420054
-
-
See Ehlermann & Lockhart, supra note 15, at 519-20 (If the panel is reviewing a purely legal issue, the panel conducts an original or de novo interpretation . . . .); Holger Spamann, Standard of Review for World Trade Organization Panels in Trade Remedy Cases: A Critical Analysis, 38 J. World Trade 509, 553 (2004) ([T]he specialists for WTO law are, after all, the Panels and especially the AB . . . .).
-
See Ehlermann & Lockhart, supra note 15, at 519-20 ("If the panel is reviewing a purely legal issue, the panel conducts an original or de novo interpretation . . . ."); Holger Spamann, Standard of Review for World Trade Organization Panels in Trade Remedy Cases: A Critical Analysis, 38 J. World Trade 509, 553 (2004) ("[T]he specialists for WTO law are, after all, the Panels and especially the AB . . . .").
-
-
-
-
97
-
-
67650408205
-
-
See Ehlermann & Lockhart, supra note 15, at 494-97 (noting that panels and the AB must balance the power between WTO members and the WTO by making an objective assessment of the matter before them, which-in the case of legal interpretations of WTO agreements-requires them to apply customary rules of interpretation of public international law).
-
See Ehlermann & Lockhart, supra note 15, at 494-97 (noting that panels and the AB must balance the power between WTO members and the WTO by making an "objective assessment" of the matter before them, which-in the case of legal interpretations of WTO agreements-requires them to apply customary rules of interpretation of public international law).
-
-
-
-
98
-
-
67650454453
-
-
Id. at 498
-
Id. at 498.
-
-
-
-
99
-
-
67650440027
-
-
Id, stating that the dispute setdement system seeks to preserve the WTO members' balance of rights and obligations by providing for uniform interpretation of WTO law, and that allowing members discretion to interpret WTO law would undermine the core objectives of the rule-based system, It is worth noting at this point that the AB has repeatedly stated that the standard of review applied should not be de novo. See, e.g, Appellate Body Report, United States- Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan, 1 74, WT/DS192/AB/R Oct. 8, 2001, hereinafter US-Cotton Yarn AB Report, PJanels must examine whether the competent authority has evaluated all relevant factors; they must assess whether the competent authority has examined all the pertinent facts and assessed whether an adequate explanation has been provided as to how those facts support the determination; and they must also consider whether the competent authority's explanation addresses fully the natur
-
Id. (stating that the dispute setdement system seeks to preserve the WTO members' balance of rights and obligations by providing for uniform interpretation of WTO law, and that allowing members discretion to interpret WTO law would undermine the core objectives of the rule-based system). It is worth noting at this point that the AB has repeatedly stated that the standard of review applied should not be de novo. See, e.g., Appellate Body Report, United States- Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan, 1 74, WT/DS192/AB/R (Oct. 8, 2001) [hereinafter US-Cotton Yarn AB Report] ("[PJanels must examine whether the competent authority has evaluated all relevant factors; they must assess whether the competent authority has examined all the pertinent facts and assessed whether an adequate explanation has been provided as to how those facts support the determination; and they must also consider whether the competent authority's explanation addresses fully the nature and complexities of the data and responds to other plausible interpretations of the data. However, panels must not conduct a de novo review of the evidence nor substitute their judgement [sic] for that of the competent authority."). The reluctance to conduct a de novo review is understandable, but as this reluctance is stated in the cases it can be misleading. Though the AB does not explicitly frame the standard of review in these terms, panels are to engage in a review of purely legal questions and purely objective facts, as already discussed, in a de novo fashion. See Ehlermann & Lockhart, supra note 15, at 496-98. In this context, the AB's statements are better understood to mean that matters of judgment should not be reviewed de novo. This interpretation is consistent with the normative claims made in this article.
-
-
-
-
100
-
-
67650425006
-
-
EC-Hormones AB Report, supra note 9, TI 118-119
-
EC-Hormones AB Report, supra note 9, TI 118-119.
-
-
-
-
101
-
-
67650408206
-
-
Id. 1 118
-
Id. 1 118.
-
-
-
-
102
-
-
67650425007
-
-
Ehlermann & Lockhart, supra note 15, at 497; see Vienna Convention on the Law of Treaties arts. 31-32, opened for signature May 23, 1969, 1155 U.N.T.S. 331, (entered into force Jan. 27, 1980) [hereinafter Vienna Convention].
-
Ehlermann & Lockhart, supra note 15, at 497; see Vienna Convention on the Law of Treaties arts. 31-32, opened for signature May 23, 1969, 1155 U.N.T.S. 331, (entered into force Jan. 27, 1980) [hereinafter Vienna Convention].
-
-
-
-
103
-
-
67650454452
-
-
Vienna Convention art. 31(1).
-
Vienna Convention art. 31(1).
-
-
-
-
104
-
-
67650448693
-
-
See, e.g., EC-Hormones AB Report, supra note 9, 1 2 (calling upon the AB to review the EC's assessment of the risk of importing meat treated with certain hormones to determine whether the EC had complied with the requirement under the SPS Agreement).
-
See, e.g., EC-Hormones AB Report, supra note 9, 1 2 (calling upon the AB to review the EC's assessment of the risk of importing meat treated with certain hormones to determine whether the EC had complied with the requirement under the SPS Agreement).
-
-
-
-
105
-
-
67650440023
-
-
See Alexis Goh, The WTO Dispute Settlement System, 2001 Austl. Int'l L.J. 208, 230 (2001).
-
See Alexis Goh, The WTO Dispute Settlement System, 2001 Austl. Int'l L.J. 208, 230 (2001).
-
-
-
-
106
-
-
67650384406
-
-
Id
-
Id.
-
-
-
-
107
-
-
67650448685
-
-
Id
-
Id.
-
-
-
-
108
-
-
67650428083
-
-
This distinction is imperfect, of course. In the SPS Agreement, for example, it is often difficult to separate the formal requirement that a measure be based on a risk assessment from the substantive question of how the applicable science is evaluated. See SPS Agreement art. 3.3. Despite these problems, the distinction in the text is useful to frame the standard of review inquiry
-
This distinction is imperfect, of course. In the SPS Agreement, for example, it is often difficult to separate the "formal" requirement that a measure be based on a risk assessment from the substantive question of how the applicable science is evaluated. See SPS Agreement art. 3.3. Despite these problems, the distinction in the text is useful to frame the standard of review inquiry.
-
-
-
-
109
-
-
67650384408
-
-
Appellate Body Report, United States-Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia, 1103, WT/DS177/AB/R, WT/DS178/AB/R (May 1, 2001) [hereinafter US-Lamb AB Report].
-
Appellate Body Report, United States-Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia, 1103, WT/DS177/AB/R, WT/DS178/AB/R (May 1, 2001) [hereinafter US-Lamb AB Report].
-
-
-
-
110
-
-
67650451955
-
-
Id. 11 103-104
-
Id. 11 103-104.
-
-
-
-
111
-
-
67650372744
-
-
Id. 1 103. The first WTO case to discuss the standard of review to be applied was US- Underwear, in which the panel concluded that there must be a review of all relevant facts and an adequate explanation of how the facts as a whole supported the determination made. Panel Report, United States-Restrictions on Imports of Cotton and Man-Made Fibre Underwear, 1 7.13, WT/DS24/R (Nov. 8, 1996) [hereinafter US-Underwear Panel Report].
-
Id. 1 103. The first WTO case to discuss the standard of review to be applied was US- Underwear, in which the panel concluded that there must be a review of "all relevant facts" and an adequate explanation of how the "facts as a whole supported the determination made." Panel Report, United States-Restrictions on Imports of Cotton and Man-Made Fibre Underwear, 1 7.13, WT/DS24/R (Nov. 8, 1996) [hereinafter US-Underwear Panel Report].
-
-
-
-
112
-
-
67650425002
-
-
See, e.g., US- Underwear Panel Report, supra note 108,111.1, 7.13. (addressing the Agreement on Textiles and Clothing).
-
See, e.g., US- Underwear Panel Report, supra note 108,111.1, 7.13. (addressing the Agreement on Textiles and Clothing).
-
-
-
-
113
-
-
67650440025
-
-
See, e.g, SCM Agreement
-
See, e.g., SCM Agreement.
-
-
-
-
114
-
-
67650448686
-
-
OESCH, supra note 16, at 119
-
OESCH, supra note 16, at 119.
-
-
-
-
116
-
-
67650396348
-
-
See, e.g, id
-
See, e.g., id.
-
-
-
-
117
-
-
67650416301
-
-
See Safeguards Agreement art. 4.2(a) (providing a list of factors that the AB or panel should consider, including the rate and amount of the increase in imports of the product concerned!,] ... the share of the domestic market taken by increased imports, changes in the level of sales, production, productivity, capacity utilization, profits and losses, and employment). Given that the Safeguards Agreement provides a list of factors, the relevance of these factors will be clear within each context.
-
See Safeguards Agreement art. 4.2(a) (providing a list of factors that the AB or panel should consider, including "the rate and amount of the increase in imports of the product concerned!,] ... the share of the domestic market taken by increased imports, changes in the level of sales, production, productivity, capacity utilization, profits and losses, and employment"). Given that the Safeguards Agreement provides a list of factors, the relevance of these factors will be clear within each context.
-
-
-
-
118
-
-
67650396346
-
-
See, e.g., US-Cotton Yarn AB Report, supra note 96,I 7.35.
-
See, e.g., US-Cotton Yarn AB Report, supra note 96,I 7.35.
-
-
-
-
119
-
-
67650384407
-
-
See Safeguards Agreement art. 3.1 (requiring that an investigation by competent authorities with respect to a safeguard measure include reasonable public notice to all interested parties ... or other appropriate means in which . . . interested parties could present evidence and their views and requiring authorities to publish a report setting forth their findings and reasoned conclusions!,] which suggests that not following these requirements would result in protectionism).
-
See Safeguards Agreement art. 3.1 (requiring that an investigation by competent authorities with respect to a safeguard measure include "reasonable public notice to all interested parties ... or other appropriate means in which . . . interested parties could present evidence and their views" and requiring authorities to "publish a report setting forth their findings and reasoned conclusions!,]" which suggests that not following these requirements would result in protectionism).
-
-
-
-
120
-
-
67650408203
-
-
See id. arts. 2.1.4.2a
-
See id. arts. 2.1.4.2(a).
-
-
-
-
121
-
-
67650425003
-
-
See, e.g., Appellate Body Report, Argentina-Safeguard Measures on Imports of Footwear, 11129-131, WT/DS121/AB/R (Dec. 14, 1999) [hereinafter Argentina- Footwear AB Report] (stating the stringent requirement that the increase in imports must be recent enough, sudden enough, sharp enough, and significant enough, both quantitatively and qualitatively, to cause or threaten to cause 'serious injury').
-
See, e.g., Appellate Body Report, Argentina-Safeguard Measures on Imports of Footwear, 11129-131, WT/DS121/AB/R (Dec. 14, 1999) [hereinafter Argentina- Footwear AB Report] (stating the stringent requirement that the increase in imports must be "recent enough, sudden enough, sharp enough, and significant enough, both quantitatively and qualitatively, to cause or threaten to cause 'serious injury'").
-
-
-
-
122
-
-
67650396347
-
-
OESCH, supra note 16, at 120
-
OESCH, supra note 16, at 120.
-
-
-
-
123
-
-
67650384410
-
-
See AD Agreement art. 17.6(i).
-
See AD Agreement art. 17.6(i).
-
-
-
-
124
-
-
67650396349
-
-
See U.N. DEP'T OF ECON. & SOC. AFFAIRS, INTERNATIONAL MERCHANDISE TRADE STATISTICS COMPILERS MANUAL at 43-45, U.N. Doc. ST/ESA/STAT/SER.F/87, U.N. Sales No. E.02.XVII.17 (2004), available at http://unstats.un.org/unsd/publication/SeriesF/ seriesf-87e.pdf (providing suggestions for increasing data quality control).
-
See U.N. DEP'T OF ECON. & SOC. AFFAIRS, INTERNATIONAL MERCHANDISE TRADE STATISTICS COMPILERS MANUAL at 43-45, U.N. Doc. ST/ESA/STAT/SER.F/87, U.N. Sales No. E.02.XVII.17 (2004), available at http://unstats.un.org/unsd/publication/SeriesF/ seriesf-87e.pdf (providing suggestions for increasing data quality control).
-
-
-
-
125
-
-
67650428084
-
-
Panel Report, United States-Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan, 1 7.97, WT/DS192/R (May 31, 2001) [hereinafter US-Cotton Yarn Panel Report].
-
Panel Report, United States-Transitional Safeguard Measure on Combed Cotton Yarn from Pakistan, 1 7.97, WT/DS192/R (May 31, 2001) [hereinafter US-Cotton Yarn Panel Report].
-
-
-
-
126
-
-
67650416298
-
-
Id
-
Id.
-
-
-
-
127
-
-
67650396153
-
-
See US-Lamb AB Report, supra note 106, II 103-106.
-
See US-Lamb AB Report, supra note 106, II 103-106.
-
-
-
-
128
-
-
67650396341
-
-
See Guzman, supra note 47, at 12
-
See Guzman, supra note 47, at 12.
-
-
-
-
129
-
-
67650428074
-
-
See Ehlermann & Lockhart, supra note 15, at 508 (stating that panels generally accept a national authority's establishment of the facts).
-
See Ehlermann & Lockhart, supra note 15, at 508 (stating that panels generally accept a national authority's establishment of the facts).
-
-
-
-
130
-
-
67650428081
-
-
See supra Part 1V.A.3.
-
See supra Part 1V.A.3.
-
-
-
-
131
-
-
67650448683
-
-
See Ehlermann & Lockhart, supra note 15, at 508
-
See Ehlermann & Lockhart, supra note 15, at 508.
-
-
-
-
132
-
-
67650451951
-
-
Even an examination of individual covered agreements is not sufficient because the standard of review that has been applied differs from one agreement and one clause to another. Id. at 503
-
Even an examination of individual covered agreements is not sufficient because the standard of review that has been applied differs from one agreement and one clause to another. Id. at 503.
-
-
-
-
133
-
-
67650442479
-
-
Id. at 495
-
Id. at 495.
-
-
-
-
134
-
-
67650407007
-
-
See, e.g., EC-Hormones AB Report, supra note 9,1 15 (discussing the standard of review as a balance of jurisdictional competencies both retained by member states and conceded to the WTO).
-
See, e.g., EC-Hormones AB Report, supra note 9,1 15 (discussing the standard of review as a balance of "jurisdictional competencies" both retained by member states and conceded to the WTO).
-
-
-
-
135
-
-
67650416296
-
-
See generally Argentina-Footwear AB Report, supra note 118
-
See generally Argentina-Footwear AB Report, supra note 118.
-
-
-
-
136
-
-
67650430753
-
-
Id, 121
-
Id.? 121.
-
-
-
-
137
-
-
67650420052
-
-
Id
-
Id.
-
-
-
-
138
-
-
67650463780
-
-
Id
-
Id.
-
-
-
-
139
-
-
67650428080
-
-
See US- Cotton Yarn AB Report, supra note 96, 1 74 (stating that panels must consider whether the competent authority's explanation addresses fully the nature and complexities of the data and responds to other plausible interpretations of the data).
-
See US- Cotton Yarn AB Report, supra note 96, 1 74 (stating that panels must "consider whether the competent authority's explanation addresses fully the nature and complexities of the data and responds to other plausible interpretations of the data").
-
-
-
-
140
-
-
67650442488
-
-
Id, see Argentina-Footwear AB Report, supra note 118, 1 121
-
Id.; see Argentina-Footwear AB Report, supra note 118, 1 121.
-
-
-
-
141
-
-
67650448682
-
-
The requirement of an adequate explanation is not unique to the Argentina- Footwear case. It was first established in the United States-Underwear case, and has been repeated in several places since. See US-Underwear Panel Report, supra note 108;
-
The requirement of an adequate explanation is not unique to the Argentina- Footwear case. It was first established in the United States-Underwear case, and has been repeated in several places since. See US-Underwear Panel Report, supra note 108;
-
-
-
-
142
-
-
67650451952
-
-
see, e.g, US-Lamb AB Report, supra note 106,1141;
-
see, e.g., US-Lamb AB Report, supra note 106,1141;
-
-
-
-
143
-
-
67650407006
-
-
Panel Report, Argentina-Definitive Safeguard Measure on Imports of Preserved Peaches, 1 7.102, WT/DS238/R (Feb. 14, 2003);
-
Panel Report, Argentina-Definitive Safeguard Measure on Imports of Preserved Peaches, 1 7.102, WT/DS238/R (Feb. 14, 2003);
-
-
-
-
144
-
-
67650418830
-
-
Panel Report, Korea-Definitive Safeguard Measure on Imports of Certain Dairy Products, 1 7.30, WT/DS98/R (June 21, 1999);
-
Panel Report, Korea-Definitive Safeguard Measure on Imports of Certain Dairy Products, 1 7.30, WT/DS98/R (June 21, 1999);
-
-
-
-
145
-
-
67650451954
-
-
Panel Report, Thailand-Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beamsfrom Poland, 1 7.256, WT/DS122/R (Sept. 28, 2000);
-
Panel Report, Thailand-Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beamsfrom Poland, 1 7.256, WT/DS122/R (Sept. 28, 2000);
-
-
-
-
146
-
-
67650436848
-
-
Panel Report, United States-Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea, 1 7.194, WT/DS202/R (Oct. 29, 2001);
-
Panel Report, United States-Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea, 1 7.194, WT/DS202/R (Oct. 29, 2001);
-
-
-
-
147
-
-
67650372743
-
-
Panel Report, United States-Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities, 18.5, WT/DS166/ R (July 31, 2000);
-
Panel Report, United States-Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities, 18.5, WT/DS166/ R (July 31, 2000);
-
-
-
-
148
-
-
67650460452
-
-
Panel Report, United States-Measures Affecting Imports of Woven Wool Shirts and Blouses from India, 1 7.27, WT/DS33/R (Jan. 6,1997); US-Cotton Yarn Panel Report, supra note 122,1 7.29 (quoting US- Underwear Panel Report, supra note 108,1 7.13).
-
Panel Report, United States-Measures Affecting Imports of Woven Wool Shirts and Blouses from India, 1 7.27, WT/DS33/R (Jan. 6,1997); US-Cotton Yarn Panel Report, supra note 122,1 7.29 (quoting US- Underwear Panel Report, supra note 108,1 7.13).
-
-
-
-
149
-
-
67650463779
-
-
Safeguards Agreement art. 4 (describing the application of safeguard measures).
-
Safeguards Agreement art. 4 (describing the application of safeguard measures).
-
-
-
-
150
-
-
67650451947
-
-
See Ehlermann & Lockhart, supra note 15, at 501-03, 507-10.
-
See Ehlermann & Lockhart, supra note 15, at 501-03, 507-10.
-
-
-
-
151
-
-
67650454439
-
-
Id
-
Id.
-
-
-
-
152
-
-
67650428082
-
-
Id. at 507-10
-
Id. at 507-10.
-
-
-
-
153
-
-
67650463781
-
-
Guzman, supra note 47, at 15
-
Guzman, supra note 47, at 15.
-
-
-
-
154
-
-
67650440022
-
-
See Ehlermann & Lockhart, supra note 15, at 504-05 (noting that a panel must often confront mixed questions of law and fact which require it to balance objective and subjective factors).
-
See Ehlermann & Lockhart, supra note 15, at 504-05 (noting that a panel must often confront mixed questions of law and fact which require it to balance objective and subjective factors).
-
-
-
-
155
-
-
67650440021
-
-
See, e.g., Guzman, supra note 47, at 20-21 (WTO review is valuable. . . as a mechanism to discourage states from engaging in conduct prohibited by WTO rules. Yet, WTO dispute resolution bodies ⋯ are more likely to err in their evaluation of the level of risk that a state's population is prepared to accept.).
-
See, e.g., Guzman, supra note 47, at 20-21 ("WTO review is valuable. . . as a mechanism to discourage states from engaging in conduct prohibited by WTO rules." Yet, "WTO dispute resolution bodies ⋯ are more likely to err in their evaluation of the level of risk that a state's population is prepared to accept.").
-
-
-
-
156
-
-
67650454444
-
-
See generally Ehlermann & Lockhart, supra note 15 (exploring how panels and the AB have approached the review of legal and factual determinations, as well as different national measures).
-
See generally Ehlermann & Lockhart, supra note 15 (exploring how panels and the AB have approached the review of legal and factual determinations, as well as different national measures).
-
-
-
-
157
-
-
67650448684
-
-
US-Cotton Yarn Panel Report, supra note 122,1 7.97.
-
US-Cotton Yarn Panel Report, supra note 122,1 7.97.
-
-
-
-
158
-
-
67650372742
-
-
Id
-
Id.
-
-
-
-
159
-
-
67650420045
-
-
Id, suggesting that the panel would have objected if the methods of the United States were unjustifiable
-
Id. (suggesting that the panel would have objected if the methods of the United States were unjustifiable).
-
-
-
-
160
-
-
67650428073
-
-
See, e.g., Guzman, supra note 47, at 17-18 (stating that cases involving health and safety call for a more deferential review because domestic governments are better at identifying the wishes of their citizens, including attitudes toward risk, and they are better at evaluating science).
-
See, e.g., Guzman, supra note 47, at 17-18 (stating that cases involving health and safety call for a more deferential review because "domestic governments are better at identifying the wishes of their citizens, including attitudes toward risk, and they are better at evaluating science").
-
-
-
-
161
-
-
67650463778
-
-
Id. at 21-24
-
Id. at 21-24.
-
-
-
-
162
-
-
67650448678
-
-
See id. at 20
-
See id. at 20.
-
-
-
-
163
-
-
67650384400
-
-
SPS Agreement art. 2.2.
-
SPS Agreement art. 2.2.
-
-
-
-
164
-
-
67650454438
-
-
Id. art. 5.1
-
Id. art. 5.1.
-
-
-
-
165
-
-
67650424997
-
-
Oesch, supra note 16, at 123
-
Oesch, supra note 16, at 123.
-
-
-
-
166
-
-
67650413125
-
-
See id. at 122-24
-
See id. at 122-24.
-
-
-
-
167
-
-
67650420047
-
-
Id
-
Id.
-
-
-
-
168
-
-
67650420046
-
-
See Howse, supra note 79, at 2342
-
See Howse, supra note 79, at 2342.
-
-
-
-
169
-
-
67650440014
-
-
Id
-
Id.
-
-
-
-
170
-
-
67650396342
-
-
Id
-
Id.
-
-
-
-
171
-
-
67650442477
-
-
See id. at 2354-56 arguing that it is difficult for members to regulate themselves so that their protective measures are not more trade-restrictive than required
-
See id. at 2354-56 (arguing that it is difficult for members to regulate themselves so that their protective measures are not more trade-restrictive than required).
-
-
-
-
172
-
-
67650430747
-
-
Id. at 2334 (Judgments by the WTO dispute settlement organs about what constitutes de minimus scientific evidence, however, would themselves entail substantive judgments of value concerning the regulatory process, begging the question of which regulatory values should determine the 'minimum.'); Sykes, supra note 71, at 355 (WTO law must then choose between an interpretation of scientific evidence requirements that essentially eviscerates them and defers to national judgments about 'science,' or an interpretation that gives them real bite at the expense of the capacity of national regulators to choose the level of risk that they will tolerate.).
-
Id. at 2334 ("Judgments by the WTO dispute settlement organs about what constitutes de minimus scientific evidence, however, would themselves entail substantive judgments of value concerning the regulatory process, begging the question of which regulatory values should determine the 'minimum.'"); Sykes, supra note 71, at 355 ("WTO law must then choose between an interpretation of scientific evidence requirements that essentially eviscerates them and defers to national judgments about 'science,' or an interpretation that gives them real bite at the expense of the capacity of national regulators to choose the level of risk that they will tolerate.").
-
-
-
-
173
-
-
67650436841
-
-
See Theofanis Christoforou, Settlement of Science-Based Trade Disputes in the WTO: A Critical Review of the Developing Case Law in the Face of Scientific Uncertainty, 8 N.Y.U. ENVTL. LJ. 622, 622-23 (2000) (observing that the WTO has now been given the binding authority to adjudicate science-based international trade disputes and noting the new procedural and substantive issues that result).
-
See Theofanis Christoforou, Settlement of Science-Based Trade Disputes in the WTO: A Critical Review of the Developing Case Law in the Face of Scientific Uncertainty, 8 N.Y.U. ENVTL. LJ. 622, 622-23 (2000) (observing that the WTO has now "been given the binding authority to adjudicate science-based international trade disputes" and noting the new procedural and substantive issues that result).
-
-
-
-
174
-
-
67650407002
-
-
Id. at 635 (arguing that WTO panels are not qualified to judge the plausibility of competing parties' scientific views because they are composed of laypersons lacking in scientific knowledge).
-
Id. at 635 (arguing that WTO panels are not qualified to judge the plausibility of competing parties' scientific views because they are composed of laypersons lacking in scientific knowledge).
-
-
-
-
175
-
-
67650436842
-
-
DSU art. 13
-
DSU art. 13.
-
-
-
-
176
-
-
67650372737
-
-
Howse, supra note 79, at 2342 ([S]cience cannot tell us just how conservative or protective it is reasonable to be in the presence of a given level of error or uncertainty in a scientific assessment of risk. In a democracy, this will depend on citizens' preferences about risk.).
-
Howse, supra note 79, at 2342 ("[S]cience cannot tell us just how conservative or protective it is reasonable to be in the presence of a given level of error or uncertainty in a scientific assessment of risk. In a democracy, this will depend on citizens' preferences about risk.").
-
-
-
-
177
-
-
67650420044
-
-
See generally EC-Hormones AB Report, supra note 9; Panel Report, European Communities- Measures Affecting the Approval and Marketing of Biotech Products, WT/ DS291/R, WT/DS292/R, WT/DS293/R (Sept. 29, 2006).
-
See generally EC-Hormones AB Report, supra note 9; Panel Report, European Communities- Measures Affecting the Approval and Marketing of Biotech Products, WT/ DS291/R, WT/DS292/R, WT/DS293/R (Sept. 29, 2006).
-
-
-
-
178
-
-
67650442478
-
-
See OESCH, supra note 16, at 141-42
-
See OESCH, supra note 16, at 141-42.
-
-
-
-
179
-
-
67650413128
-
-
See infra notes 171-172 and accompanying text
-
See infra notes 171-172 and accompanying text.
-
-
-
-
180
-
-
67650416291
-
-
See infra notes 171-172 and accompanying text
-
See infra notes 171-172 and accompanying text.
-
-
-
-
181
-
-
67650413124
-
-
Appellate Body Report, Japan-Measures Affecting the Importation of Apples, 1 165, WT/DS245/AB/R (Nov. 26, 2003).
-
Appellate Body Report, Japan-Measures Affecting the Importation of Apples, 1 165, WT/DS245/AB/R (Nov. 26, 2003).
-
-
-
-
182
-
-
67650454437
-
-
Appellate Body Report, Australia-Measures Affecting Importation of Salmon, 1 267, WT/DS18/AB/R (Oct. 20, 1998) [hereinafter Australia-Salmon AB Report].
-
Appellate Body Report, Australia-Measures Affecting Importation of Salmon, 1 267, WT/DS18/AB/R (Oct. 20, 1998) [hereinafter Australia-Salmon AB Report].
-
-
-
-
183
-
-
67650420048
-
-
OESCH, supra note 16, at 123
-
OESCH, supra note 16, at 123.
-
-
-
-
184
-
-
67650424999
-
-
EC-Hormones AB Report, supra note 9,1 194
-
EC-Hormones AB Report, supra note 9,1 194.
-
-
-
-
185
-
-
67650424996
-
-
See Australia-Salmon AB Report, supra note 172, 11 198-200; Panel Report, European Communities- Measures Concerning Meat and Meat Products (Hormones), Com- ∥plaint by Canada, 11 8.100, 8.163, WT/DS48/R/CAN (Aug. 18, 1997) [hereinafter EC- Hormones, Complaint by Canada] (defining risk management). But see EC-Hormones AB Report, supra note 9, 1 181 (rejecting the panel's distinction between risk assessment and risk management).
-
See Australia-Salmon AB Report, supra note 172, 11 198-200; Panel Report, European Communities- Measures Concerning Meat and Meat Products (Hormones), Com- ∥plaint by Canada, 11 8.100, 8.163, WT/DS48/R/CAN (Aug. 18, 1997) [hereinafter EC- Hormones, Complaint by Canada] (defining "risk management"). But see EC-Hormones AB Report, supra note 9, 1 181 (rejecting the panel's distinction between "risk assessment" and "risk management").
-
-
-
-
186
-
-
67650454440
-
-
Australia-Salmon AB Report, supra note 172,1 199
-
Australia-Salmon AB Report, supra note 172,1 199.
-
-
-
-
187
-
-
67650396343
-
-
EC-Hormones, Complaint by Canada, supra note 175, TI 8.100, 8.163.
-
EC-Hormones, Complaint by Canada, supra note 175, TI 8.100, 8.163.
-
-
-
-
188
-
-
67650416293
-
-
See Guzman, supra note 47, at 20-23, 38
-
See Guzman, supra note 47, at 20-23, 38.
-
-
-
-
189
-
-
67650407003
-
-
Id. at 23; see DSU art. 8; see also Christoforou, supra note 163, at 647-48
-
Id. at 23; see DSU art. 8; see also Christoforou, supra note 163, at 647-48.
-
-
-
-
190
-
-
67650384402
-
-
It is true that panels and the AB can consult with experts to assist them in their decision. DSU art. 13. Although this improves their capacity to handle scientific issues, it is far from a substitute for the capabilities of domestic authorities.
-
It is true that panels and the AB can consult with experts to assist them in their decision. DSU art. 13. Although this improves their capacity to handle scientific issues, it is far from a substitute for the capabilities of domestic authorities.
-
-
-
-
191
-
-
67650407005
-
-
See Guzman, supra note 47, at 22;
-
See Guzman, supra note 47, at 22;
-
-
-
-
192
-
-
67650372739
-
-
see also Steve Charnovitz, Improving the Agreement on Sanitary and Phytosanitary Standards, in TRADE, ENVIRONMENT, AND THE MILLENNIUM 171, 171-72 (Gary P. Sampson & W. Bradnee Chambers eds., 1999).
-
see also Steve Charnovitz, Improving the Agreement on Sanitary and Phytosanitary Standards, in TRADE, ENVIRONMENT, AND THE MILLENNIUM 171, 171-72 (Gary P. Sampson & W. Bradnee Chambers eds., 1999).
-
-
-
-
193
-
-
67650416292
-
-
See Charnovitz, supra note 181, at 171-72; Guzman, supra note 47, at 21-24.
-
See Charnovitz, supra note 181, at 171-72; Guzman, supra note 47, at 21-24.
-
-
-
-
194
-
-
67650430749
-
-
See Guzman, supra note 47, at 21
-
See Guzman, supra note 47, at 21.
-
-
-
-
195
-
-
67650424998
-
-
See id. at 15; see also SPS Agreement art. 5.8
-
See id. at 15; see also SPS Agreement art. 5.8.
-
-
-
-
196
-
-
67650428075
-
-
See SPS Agreement Annex A 1 5 (defining the appropriate level of protection as that deemed appropriate by the Member).
-
See SPS Agreement Annex A 1 5 (defining the appropriate level of protection as that "deemed appropriate by the Member").
-
-
-
-
197
-
-
67650454443
-
-
See id. art. 3.3 n.2
-
See id. art. 3.3 n.2.
-
-
-
-
198
-
-
67650440017
-
-
See supra notes 175-177 and accompanying text.
-
See supra notes 175-177 and accompanying text.
-
-
-
-
199
-
-
67650372738
-
-
See Australia-Salmon AB Report, supra note 172, 11 198-200;
-
See Australia-Salmon AB Report, supra note 172, 11 198-200;
-
-
-
-
200
-
-
67650451949
-
-
EC-Hormones, Complaint by Canada, supra note 175, 11 8.100, 8.163 (defining risk management). But see EC-Hormones AB Report, supra note 9,1 181 (rejecting the panel's distinction between risk assessment and risk management).
-
EC-Hormones, Complaint by Canada, supra note 175, 11 8.100, 8.163 (defining "risk management"). But see EC-Hormones AB Report, supra note 9,1 181 (rejecting the panel's distinction between "risk assessment" and "risk management").
-
-
-
-
201
-
-
67650428077
-
-
See Christoforou, supra note 163, at 635 (noting that WTO panels lack scientific knowledge and thus are not qualified to judge competing parties' scientific views).
-
See Christoforou, supra note 163, at 635 (noting that WTO panels lack scientific knowledge and thus are not qualified to judge competing parties' scientific views).
-
-
-
-
202
-
-
67650440015
-
-
See Guzman, supra note 47, at 17-18, 23 (arguing that panels and the AB are poorly equipped to evaluate scientific evidence, while domestic governments are better at evaluating science). It is also worth noting that deference may sometimes be required to preserve the legitimacy and stability of the dispute settlement system. When a review at the WTO impinges too much on traditional areas of sovereignty, even if judgments require only limited domestic expertise, it may be appropriate to defer to national authorities. See Ehlermann & Lockhart, supra note 15, at 493-94 (noting that panels and the AB are criticized for their level of scrutiny of national measures and that they are accused of usurping WTO members' powers).
-
See Guzman, supra note 47, at 17-18, 23 (arguing that panels and the AB are poorly equipped to evaluate scientific evidence, while domestic governments are better at evaluating science). It is also worth noting that deference may sometimes be required to preserve the legitimacy and stability of the dispute settlement system. When a review at the WTO impinges too much on traditional areas of sovereignty, even if judgments require only limited domestic expertise, it may be appropriate to defer to national authorities. See Ehlermann & Lockhart, supra note 15, at 493-94 (noting that panels and the AB are criticized for their level of scrutiny of national measures and that they are accused of usurping WTO members' powers).
-
-
-
-
203
-
-
67650428078
-
-
See, e.g, SPS Agreement arts
-
See, e.g., SPS Agreement arts. 7-9.
-
, vol.7-9
-
-
-
204
-
-
67650418831
-
-
Id. art. 7
-
Id. art. 7.
-
-
-
-
205
-
-
67650451948
-
-
Id. art. 7, Annex B 1 1.
-
Id. art. 7, Annex B 1 1.
-
-
-
-
206
-
-
67650442480
-
-
Id. Annex B i 2
-
Id. Annex B i 2.
-
-
-
-
207
-
-
67650430750
-
-
Id. Annex B I 3
-
Id. Annex B I 3.
-
-
-
-
208
-
-
67650413130
-
-
Id. Annex B I 5d
-
Id. Annex B I 5(d).
-
-
-
-
209
-
-
67650420049
-
-
Id. art. 5.1, Annex B I 3(c).
-
Id. art. 5.1, Annex B I 3(c).
-
-
-
-
210
-
-
67650396345
-
-
Id. Annex B 1 3c
-
Id. Annex B 1 3(c).
-
-
-
-
211
-
-
67650408200
-
-
Guzman, supra note 47, at 35
-
Guzman, supra note 47, at 35.
-
-
-
-
212
-
-
67650436844
-
-
Id.; see Howse, supra note 79, at 2330 (arguing that the SPS provisions can be, and should be, understood not as usurping legitimate democratic choices for stricter regulations, but as enhancing the quality of rational democratic deliberation about risk and its control).
-
Id.; see Howse, supra note 79, at 2330 (arguing that the SPS "provisions can be, and should be, understood not as usurping legitimate democratic choices for stricter regulations, but as enhancing the quality of rational democratic deliberation about risk and its control").
-
-
-
-
213
-
-
67650436847
-
-
AD Agreement art. 17.6(i).
-
AD Agreement art. 17.6(i).
-
-
-
-
214
-
-
67650428079
-
-
Croley & Jackson, supra note 23, at 208 n.65 (noting that Article 17.6 gives the panels an obligation to evaluate the fact-finding process).
-
Croley & Jackson, supra note 23, at 208 n.65 (noting that Article 17.6 gives the panels an obligation to evaluate the fact-finding process).
-
-
-
-
215
-
-
67650420050
-
-
AD Agreement art. 17.6.
-
AD Agreement art. 17.6.
-
-
-
-
216
-
-
67650442483
-
-
Id. art. 17.611
-
Id. art. 17.6(11).
-
-
-
-
217
-
-
67650418832
-
-
Hot-Rolled Steel AB Report, supra note 34, 1 57;
-
Hot-Rolled Steel AB Report, supra note 34, 1 57;
-
-
-
-
218
-
-
67650442482
-
-
Daniel K. Tarullo, The Hidden Costs of International Dispute Settlement: WTO Review of Domestic Anti-Dumping Decisions, 34 LAW & POL'Y INT'L BUS. 109, 119-20 (2002);
-
Daniel K. Tarullo, The Hidden Costs of International Dispute Settlement: WTO Review of Domestic Anti-Dumping Decisions, 34 LAW & POL'Y INT'L BUS. 109, 119-20 (2002);
-
-
-
-
219
-
-
67650442484
-
-
see Vienna Convention arts
-
see Vienna Convention arts. 31-32.
-
, vol.31-32
-
-
-
220
-
-
67650454441
-
-
AD Agreement art. 17.6(ii).
-
AD Agreement art. 17.6(ii).
-
-
-
-
221
-
-
67650372740
-
-
See id
-
See id.
-
-
-
-
222
-
-
67650442481
-
-
See Croley & Jackson, supra note 23, at 200 (arguing that if the national interpretation is within the set of permissible interpretations, the panel must defer to the interpretation given the provision by the national government).
-
See Croley & Jackson, supra note 23, at 200 (arguing that if the national interpretation is within the set of "permissible" interpretations, "the panel must defer to the interpretation given the provision by the national government").
-
-
-
-
223
-
-
67650442486
-
-
Id
-
Id.
-
-
-
-
224
-
-
67650460451
-
-
See AD Agreement art. 5.
-
See AD Agreement art. 5.
-
-
-
-
225
-
-
67650430751
-
-
Id. art. 6
-
Id. art. 6.
-
-
-
-
226
-
-
67650372741
-
-
See Ehlermann & Lockhart, supra note 15, at 507 (arguing that the AD Agreement gives a pre-eminent position to the national investigation).
-
See Ehlermann & Lockhart, supra note 15, at 507 (arguing that the AD Agreement "gives a pre-eminent position to the national investigation").
-
-
-
-
227
-
-
67650448681
-
-
Id. (The role of the panel is . . . confined to reviewing the investigation and determination that has been carried out at the national level.).
-
Id. ("The role of the panel is . . . confined to reviewing the investigation and determination that has been carried out at the national level.").
-
-
-
-
228
-
-
67650418833
-
-
See AD Agreement art. 17.6.
-
See AD Agreement art. 17.6.
-
-
-
-
229
-
-
67650436845
-
-
Id
-
Id.
-
-
-
-
230
-
-
67650416294
-
-
See supra Part III.B.
-
See supra Part III.B.
-
-
-
-
231
-
-
67650440020
-
-
See supra Part IV.
-
See supra Part IV.
-
-
-
-
232
-
-
67650384404
-
-
See Australia-Salmon AB Report, supra note 172, 11 198-200;
-
See Australia-Salmon AB Report, supra note 172, 11 198-200;
-
-
-
-
233
-
-
67650408201
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EC-Hormones, Complaint by Canada, supra note 175, 11 8.100, 8.163 (defining risk management). But see EC-Hormones AB Report, supra note 9,1 181 (rejecting the panel's distinction between risk assessment and risk management).
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EC-Hormones, Complaint by Canada, supra note 175, 11 8.100, 8.163 (defining "risk management"). But see EC-Hormones AB Report, supra note 9,1 181 (rejecting the panel's distinction between "risk assessment" and "risk management").
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