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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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Standard of Review and Scientific Evidence in WTO Law and International Investment Arbitration

Standard of Review and Scientific Evidence in WTO Law and International Investment Arbitration

Converging Parallels?

Chapter:
(p.152) 9 Standard of Review and Scientific Evidence in WTO Law and International Investment Arbitration
Source:
Deference in International Courts and Tribunals
Author(s):
Lukasz Gruszczynski

Valentina Vadi

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198716945.003.0009

The chapter compares the standards of review applied by WTO panels and investment tribunals in assessing national measures that are based on prior complex factual determinations of a scientific character. It shows that the practices in both areas express many similarities. Although none of the systems has developed an abstract and general standard of deference, the analysis of the jurisprudence shows that a considerable degree of deference is granted to States in this specific context. This deference expresses itself in dispute settlement bodies’ focus on ‘reasonableness’ rather than ‘correctness’ of specific scientific claims, showing that these bodies are well aware of their epistemic limitations. On the other hand, the chapter recognizes certain differences existing between the two systems. Investment tribunals remain more concerned with the overall quality of the regulatory process, while WTO panels are more active in testing the internal (scientific) legitimacy of measures.

Keywords:   standard of review, World Trade Organization, WTO, investment treaty tribunals, scientific determination, science and law, deference, de novo review, SPS Agreement, epistemic superiority

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