Standards of review in WTO panel proceedings

Whenever WTO panels are called upon to examine a WTO Member’s measure or law, the question of the applicable standard of review arises. In some cases, the issue is clear and not argued by the parties. In other cases, the substantive outcome of the dispute may well depend on the standard of review applied by the panel. Not surprisingly, a routine criticism by WTO Members who have lost disputes in Geneva has been that panels have applied the wrong standard of review because it was either too intrusive or too deferential. Claus-Dieter Ehlermann, who served as member and Chairman of the Appellate Body from 1995 until 2002, noted at the end of his term in office that ‘the question of standard of review has become one of the most controversial areas of Appellate Body jurisprudence’.