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7 - The WTO Standard of Review in Health and Safety Disputes

Published online by Cambridge University Press:  27 July 2009

George A. Bermann
Affiliation:
Columbia University, New York
Petros C. Mavroidis
Affiliation:
Université de Neuchâtel, Switzerland
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Summary

“Standard of review” is a term widely used in the law of the United States. It is most relevant when courts are reviewing decisions of administrative agencies. Various “standards” for review are set forth in scores of federal statutes. These include the “substantial evidence,” the “clearly erroneous,” and the “arbitrary and capricious” tests. The trade remedy statutes of the United States, dealing with the imposition of antidumping and countervailing duties, employ the substantial evidence test, i.e., whether there is substantial evidence of record to support an agency's determination. These tests may apply to questions of both law and fact, questions that are not always clearly separable, particularly in an administrative law context. As a general rule, however, an agency's construction of the law it is charged with administering is entitled to judicial deference under the doctrine announced in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.

US courts generally review agency decisions for conformity with the law applied by the agency. An exception is when they review the constitutionality of an agency decision, for example, for conformity to due process requirements. There would be no “Chevron deference” in such a case. Apart from the occasional constitutional review, however, courts and agencies are dealing with the same statute.

Dispute settlement panels of the World Trade Organization often review decisions of national agencies when another WTO Member challenges those decisions. However, this review is very different from the review of an administrative agency's decision by a municipal court.

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Publisher: Cambridge University Press
Print publication year: 2006

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