Between Intensive Care and the Crematorium: Using the Standard of Review to Restore Balance to the WTO

Abstract

This Article explores the issue of the appropriate standard of review in the WTO dispute
settlement process. The standard of review, whether de novo review, total deference, or somewhere
in between, is incredibly important in international adjudication because it is an expression of the
balance of power between sovereign nations and the WTO. In recent years, the standard of review
has received unprecedented political attention, particularly in the area of health and safety
regulations and dumping (selling goods below fair market value), both of which are discussed in
detail in this Article. This Article synthesizes three areas of law—U.S. administrative law,
constitutional law, and WTO jurisprudence—to argue that the total deference model borrowed
from the U.S. Chevron Doctrine can not work in the WTO for a number of structural and policy
reasons. This Article first describes the WTO’s dispute settlement framework and situates Chevron
within that framework. Next, it highlights why some of the strongest justifications for Chevron,
such as efficiency, coordination and democracy fail in the WTO context. The Article then relies on
recent case law to demonstrate that the WTO is ignoring Chevron, despite the fact that it is required
by one of the WTO agreements. The Article concludes by offering some explanations for why this
is happening and suggests a framework, based on dormant commerce clause analysis, in which it
would be appropriate, if the domestic decision body had undertaken a least restrictive means
analysis, for the WTO to give more deference than it currently does.