A Study On Standards Of Review In WTO Dispute Settlement Mechanism

There are no escaping standards of review in WTO dispute settlement. Whenever panels and the Appellate Body are called upon to examine a WTO member's administrative decision or domestic law, the question of the applicable standards of review arises. The standards of review mean the degree to which panels and the Appellate Body should review a WTO member's administrative decision or domestic law, which are alleged inconsistent with the WTO rules. In many cases, the substantive outcome of the dispute depends to a large extent on the standards of review adopted by panels and the Appellate Body. However, there are no specific standards of review which could be applicable to all cases in the WTO legal text. In practice, the standards of review adopted by panels and the Appellate Body are different.This paper looks back the issues of standards of review under GATT and the debate on standards of review during the Uruguay Round Negotiations and then analyzes standards of review in the WTO legal texts and WTO Legal practices so that standards of review are discussed and analyzed to a great extent. First, the current standards of review adopted by panels and the Appellate Body are summarized. Then, the reason why panels and the Appellate Body adopt such kinds of standards of review is analyzed:standards of review are affected by some factors like the principle of national sovereignty and the aim of WTO. Finally, the paper brings up three suggestions about standards of review panels and the Appellate Body should adopt. When examine a WTO member's administrative decision or domestic law, panel and the Appellate Body should consider the factors and adopt the appropriate standards of review so that WTO disputes can be well solved to ensure the certainty and predictability of multilateral trade.Apart from the introduction and conclusion, this paper mainly includes five parts.Part One:It defines the issue of standards of review and introduces two extremes of standards of review. Then it distinguishes basic categories of standards of review: standards of review of facts and standards of review of law.Part Two:It recalls the history of GATT, expounds the Uruguay Round negotiations as regards standards of review and introduces the subsequent developments in the negotiation process since the creation of the WTO.Part Three:It turns to the current WTO text. The meaning of Article 3.2 and Article 11 of the DSU and that of Article 17.6 of the AD Agreement are examined.Part Four:Owing to the indefinite and vague language of Article 11 of the DSU and Article 17.6 of the AD Agreement, panels and the Appellate Body can't draw from these provisions much guidance for appropriate standards of review in specific disputes. Therefore, the standards of review of fact evidences, fact conclusion and legal interpretations are found in turn through case analysis. This paper chooses two cases: United States—definitive safeguard measures on imports of certain steel product and United States—anti-dumping measures on certain hot-rolled steel product. Standards of review are discussed through the application of the article 11 of DSU and the article 17.6 of ADA in two cases. In the case of United States—definitive safeguard measures on imports of certain steel product, the relationship between the article 17.6 of ADA and the Article 11 of DSU is analyzed. At last, the current standards of review adopted by panels and the Appellate Body are summarized.Part Five:There are some factors that affect the standards of review. Namely:The principle of national sovereignty, the aim of WTO, political factors, respective advantages of panel and WTO members and resource allocation issue and maintenance of unity of WTO rules. Some suggestions are brought up. The appropriate standards of review should avoid two extremes. The appropriate standards of review should keep balance of powers between the judiciary of the WTO and its members. The appropriate standards of review should keep balance of the interests of WTO members.