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In recent years, investment arbitration has increasingly moved from its private law origins into the realm of public law adjudication, but the standards of review applied by ad hoc arbitral tribunals have generally not followed step to take account of this development. This chapter argues that public law standards of review should be more deferential to determinations made at the national level than those applicable to disputes of a purely commercial and private law nature, and highlights institutional expertise in public law matters as a key criterion to support this claim. Reviewing select standards of review applied by other international courts and tribunals, the margin of appreciation developed by the European Court of Human Rights is identified as the most preferable alternative to strict scrutiny review, an alternative that provides respondent states with sufficient freedom of action in public law matters while preserving the supervisory role of the international judiciary.

This chapter addresses the science-based provisions of the SPS Agreement. The main part of the discussion is dedicated to risk assessment disciplines as elaborated by the SPS case law. This includes the problem of the required structure and the content of risk assessment, the role of scientific minority opinions as a legitimate basis for a SPS measure, and standard of review applicable to evaluation of scientifically complex issues. Against this analysis, the last part of the chapter attempts to identify the ultimate function that is performed by science under the SPS Agreement and to propose some critical observations on its capacity to perform such a role. It concludes that although science-based criteria may compromise the choice of WTO members regarding an acceptable level of risk, a proper interpretation of the SPS Agreement may reduce that danger, maintaining at the same time advantages of the current system.

This chapter analyzes the relevance of the precautionary principle in the context of the SPS Agreement. The first part addresses the principle as such and attempts to assess its impact on the interpretation of various SPS provisions. The second part concentrates on Article 5.7, which is recognized as a specific SPS formulation of the principle. A separate analysis is conducted with respect to systemic (i.e. the applicability of Article 5.7, allocation of burden of proof) and substantive (i.e. the normative content of its obligations) issues. In this context, the chapter identifies a number of limitations in the earlier jurisprudence, including the conceptualization of insufficient scientific evidence as an absolute category independent from normative considerations. Nevertheless, it concludes that more recent case law appears to properly address the major points of concern, leaving WTO Members with a considerable degree of regulatory freedom.

This chapter starts with a brief overview of the disciplines established by the SPS Agreement, including procedural issues such as allocation of burden of proof between the parties to the SPS dispute and the standard of review applicable to the examination of national factual determinations. The second part examines two preliminary matters: the applicability of the SPS Agreement and its relationship to GATT 1994 and the TBT Agreement. Although the chapter identifies some deficiencies of the current case law, such as the lack of overall interpretative consistency, it notes that part of the criticism relating to the broad applicability of the SPS Agreement is premature. A separate section is dedicated to measures that serve multiple objectives and those which on their face appear to be TBT regulations, but in fact were adopted due to SPS concerns. The chapter concludes that in both cases, the SPS jurisprudence succeeded in adopting an approach that provides a workable mechanism.

This chapter turns to the standards of review of facts as such. The standards which panels and the Appellate Body have so far deemed appropriate towards factual findings are analysed. Section I turns to standards of review of the ‘raw’ evidence. Section II assesses the case law concerning standards of review applied towards factual conclusions drawn from the ‘raw’ evidence.

This chapter analyzes the Supreme Court's general substantive standards of constitutional review. The chapter discusses the presence of implicit proportionality principles within each standard. The first section evaluates strict scrutiny and its introduction of proportionality for certain fundamental rights through the use of the language “undue burden” in Casey. The next section reviews intermediate scrutiny, giving attention to the application of proportionality to First Amendment protections of speech, particularly in the overbreadth doctrine and for commercial speech. The section also discusses the more rigorous intermediate scrutiny standard applied in the context of gender discrimination. Last, the chapter discusses rational basis, both its original traditional standards and its more recent “rational basis with bite.”

The notion of standard of review, and thus a somehow limited panel review of allegedly inconsistent measures and practices at the domestic level, developed under the GATT 1947. This going hand-in-hand with the process of juridification of dispute resolution, panels found themselves increasingly in a position to elaborate on the appropriate standards of review applicable in a specific case. This chapter expounds standards of review as developed during the GATT 1947 years and traces the Uruguay Round negotiations in this regard. It then discusses developments in the official rule-making process, as regards new proposals and revisions, since the creation of the WTO.

The Uruguay Round negotiations left the question of standard of review open. The negotiators did not succeed in reaching an agreement on a clearly defined standard of review generally applicable to all covered agreements. Notwithstanding this, some provisions in the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), most prominently Articles 3.2 and 11, bear the potential for describing the parameters for panel jurisdiction and thus touch upon the notion of standard of review. This chapter is organized as follows. Sections I and II examine the meaning of these provisions. The Anti-Dumping (AD) Agreement is the only agreement for which a particular standard of review could have been adopted. Section III analyzes the meaning of Article 17.6 of the AD Agreement. The very existence of Article 17.6, and its deferential language, may allow conclusions to be drawn as to the appropriate standards of review outside the AD Agreement. Thus, Section IV is dedicated to an analysis of the relationship between Article 11 of the DSU and Article 17.6 of the AD Agreement.

This chapter discusses the application of two general principles that may regulate the jurisdictional relations of national and international courts: comity and abuse of right (abus de droit). It explains the policy rationales underlying both principles, the legal basis for applying them, and the promise of overcoming conceptual hurdles which their inherent flexibility provides. It then explores a series of procedural contexts in which they may be applied — stay of proceedings designed to facilitate cross-fertilization between one set of proceedings and more advanced or suitable parallel proceedings, considering the effects of past decisions on similar or related matters, deferential review of previous decisions, providing other courts involved in the litigation process with discretion in implementing judicial decisionsm, and addressing different forms of misconduct by the parties.

This chapter describes the notion of standard of review in the WTO context and sets the general framework of definition which is followed throughout this book. Section I presents a conceptual definition of standards of review. Section II explains the spectrum between de novo review and ‘total deference’. Section III turns to the principal distinction between issues of facts and issues of law. This dichotomy is traditionally adopted in domestic judicial systems and is equally followed in WTO dispute resolution. The characteristics of the basic categories of facts and law are outlined, as well as the additional categories of domestic law and international (other than WTO) law. The WTO dispute settlement procedures contain another standard-of-review issue, namely that of Appellate Body review of panel reports. Section IV introduces this standard of review.

This chapter considers three distinct matters which are informative for the determination of the appropriate standards of review of facts. Section I examines the question whether the characteristics of the lower instance which dealt with a contested measure prior to a WTO panel may influence the approach of panels towards the factual record. Section II analyzes the role of the Appellate Body in the process of fact-finding. The famous Article 17.6 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) limits an appeal to ‘issues of law covered in the panel report and legal interpretations developed by the panel’. Thus, the Appellate Body does not seem empowered actively to review, and if necessary remedy, a panel's assessment of the facts. Section III considers the issue of burden of proof, and its relationship to and distinction from the notion of standard of review.

The aim of the chapter is twofold. First, it investigates the extent to which investment treaties include a guarantee of ‘substantive reasonableness’ as one of the key protections granted to foreign investments. Second, it attempts to identify the standard of review that have been employed by investment tribunals in assessing the lawfulness of host States’ conduct. The analysis focuses on the following treaty provisions: (a) full protection and security; (b) non-impairment through arbitrary or unjustifiable measures; and (iii) fair and equitable treatment. This chapter also examines the application by investment tribunals of the ‘police powers’ doctrine in defining an indirect expropriation. One key finding stems from the present analysis. While investment treaty tribunals have (at least for the most part) applied these open-ended standards as reasonableness-based provisions, tribunals have crucially differed with regard to the specific reasonableness test employed in order to review the lawfulness of the host State conduct.

Chapter 6 investigates the applicable standard of review in the WTO context. The chapter criticizes the current usage of standards of review by the WTO adjudicating bodies, noting in particular that notions such as ‘objectiveness’ or ‘reasonableness’ fail to give a clear answer to the question why some domestic decisions are awarded greater deference than others. The chapter proposes to abandon the current approach to applicable standard of review based on the indeterminate notion of ‘objectiveness’ in favour of a more qualified perspective, focusing on the concrete reasons offered by the WTO adjudicating bodies. In this context, the chapter identifies national sovereignty, domestic expertise, and respect for basic procedural guarantees as primary reasons. Finally, the chapter argues that decisions resulting from domestic procedures sufficiently open to the consideration of foreign interests should be given greater deference than those taken behind doors, closed to the foreigners affected by them.

This chapter examines and rejects demands for a special doctrine of judicial deference to safeguard the legitimacy of judicial review. It contends that considerations of legitimacy and expertise are implicit constraints on review, inherent in the proper application of legal principle to particular cases. Distinctions drawn between contrasting standards of review, such as Wednesbury reasonableness and proportionality, are also questioned: they play a mainly descriptive rather than deliberative role. A judgement of rationality or irrationality is the conclusion of an analysis reflecting the constitutional context of executive action. Procedure shades in practice into substance as courts uphold requisite standards of due process (protecting both common law and European Convention rights). The ‘principle of legality’ is reinterpreted as a requirement of respect for the rule of law, which prohibits unjustified or disproportionate interference with fundamental rights. No statute can be correctly read as permitting such interference.

This chapter provides a concluding summary of the results which have been arrived at in the course of this work. A final reflection on the panels' and the Appellate Body's overall approach towards standards of review so far, and a tentative outlook as to future practice, complete the book.

This chapter deals with the issue of standard of review relating to domestic law. The crucial question is to what extent and with what intensity a panel should review the interpretation of domestic law and, if not convinced, come up with its own interpretative conclusion. Section I examines the panels' and the Appellate Body's jurisdiction to decide on the correct interpretation and application of domestic law. Section II turns to the case law concerning standards of review. For methodological purposes, the practice is reviewed case-by-case before the common traits are filtered out. Section III summarizes the practice and critically assesses it in the light of general standard-of-review principles.

This chapter deals with the issue of standard of review relating to international law. The crucial question is to what extent and with what intensity a panel should review the interpretation of international legal instruments and, if not convinced, come up with its own interpretative conclusion. Section I turns to the panels' and the Appellate Body's general competence to examine matters which turn on the correct interpretation and application of international law other than WTO law. For methodological purposes, it seems advisable to categorize the various legal sources stemming from the wide and heterogeneous body of international law. Each of the categories of international law is then examined as to the standards of review applied by panels and the Appellate Body so far. This is done in Sections II to IV. Finally, Section V summarizes the practice and critically assesses it in the light of general standard- of-review principles.

Chapter 12 compares the standards of review in necessity and proportionality analysis in the jurisprudence of the CJEU concerning the internal market and WTO dispute settlement bodies. It argues that judicial deference by the CJEU and WTO is appropriate to questions of fact and mixed legal-factual questions whenever the facts or considered normative judgments are uncertain, as is frequently the case in necessity and proportionality analysis. In particular, the chapter submits that the nature of handling uncertainties (ie through fair and inclusive decision-making procedures that provide legitimacy for subsequent decisions) requires the court to put an emphasis on the procedure rather than on substance of the decision under review. This means that deference with respect to substance should be combined with an intrusive review exercised by courts over the procedural fairness of the way the decision was taken.