“Deference as respect” in WTO standard of review

Abstract

Purpose

In WTO proceedings The Dispute Settlement Body has generally adopted a standard of review that is less than deferential even in the Anti‐Dumping agreement which envisages a deferential standard of review. What should be the applicable standard of review in WTO proceedings? The purpose of this paper is to present an analysis of the concept of “deference as respect” as developed by David Dyzenhaus and discuss its application to the WTO. This paper argues that the WTO should apply a standard of “deference as respect” in the interest of preserving economic sovereignty and the legitimacy of the WTO.

Design/methodology/approach

The paper involves the analysis of relevant case law and also the analysis and application of the concept of “deference as respect” in WTO proceedings. It also uses a comparative methodology in that it highlights the application of domestic legal principles at the international level.

Findings

The main finding is that within the WTO there is need to balance the requirements of trade liberalisation which eschews protectionism and the requirements of sovereignty and legitimacy. This balance can partly be achieved when a standard of review akin to “deference as respect” is applied.

Originality/value

This paper is different from previous writings on WTO standard of review in that it applies the concept of “deference as respect”. This analysis and application will provide academics and members of the DSB with a new way of assessing the standard of review in the WTO.

Citation

Dye, V.D. (2013), "“Deference as respect” in WTO standard of review", Journal of International Trade Law and Policy, Vol. 12 No. 1, pp. 23-41. https://doi.org/10.1108/14770021311312485