Abstract

A critical issue in World Trade Organization (WTO) dispute settlement is what standard of review dispute panels ought to apply to questions of fact when assessing the consistency of a country's measures with trade rules. This question has arisen most acutely in the context of the SPS Agreement which requires countries to ensure that any SPS measure not based on international standards is not maintained without scientific evidence and is based on a risk assessment. This article explores how WTO dispute panels and the Appellate Body can strike a balance between a standard of review that, on the one hand, affords countries a degree of deference or flexibility and, on the other, ensures that they do not have open rein to justify any trade-restrictive measure on health-related grounds. Looking at recent cases, it finds that the Appellate Body has moved towards a balanced approach that requires panels to undertake a primarily procedural review and scrutinize the method by which the member reaches the decision in question, rather than focusing on the outcome of the decision.

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Additional Information

ISSN
1710-1174
Print ISSN
0042-0220
Pages
pp. 201-227
Launched on MUSE
2012-04-24
Open Access
No
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