Introduction

This chapter explores one of the thorniest issues of WTO dispute settlement, namely that of the standard – or, in plural, standards – of review. Put simply, this involves the manner in which panels and the Appellate Body should review Members' measures for their conformity with the WTO obligations: the crucial issue is the degree of intensity, rigor, thoroughness or severity – or, alternatively, the lack of these – with which such measures are to be reviewed. Given the extent of coverage of the WTO obligations, their varying impact on the legislative, judicial and administrative competence of Members, the finesse and intricacy of questions of both fact and law that are put before panels and the AB (this list no doubt can be prolonged considerably), it is only natural that one particular standard will not be apposite in reviewing every national measure. Nor will the same standard be appropriate in resolving every issue in the course of such review. Thus, while the expression “standard of review” in its singular form is not an inaccurate description of the underlying problem, it should also be borne in mind that the benchmark of intensity, rigor, thoroughness or severity of review ought to vary for a number of reasons and so should the standard of review. To be sure, it is not a particular standard that WTO adjudicative bodies apply, but increasingly it is possible to identify a range of standards of review that are applied in practice – either explicitly or implicitly (more on these issues in section 5, below). From this perspective, the plural form of the expression is not inapt either.