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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 (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 15 October 2019

Beyond the Standard of Review

Beyond the Standard of Review

Deference Criteria in WTO Law and the Case for a Procedural Approach

Chapter:
(p.91) 6 Beyond the Standard of Review
Source:
Deference in International Courts and Tribunals
Author(s):

Michael Ioannidis

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198716945.003.0006

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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