Studies On Standard Of Review In WTO Disputes

Generally speaking, the dispute settlement body of WTO (hereinafter referred to as DSB) makes judgments to the domestic law or the administrative decision of the party during the trial processing, thus leading to the conflict between the national sovereignty and the jurisdiction of WTO. The problem shall be resolved through the research of standard of review with regard to the question how to distribute the power between them. For China, there are many cases that came out during these years, and China has already modified some domestic law to implement DSB reports, which makes the research even pertinent. In this thesis, after having analyzed the norms, the author analyzed two cases relating to China, DS342 and DS397. The former is a non- anti-dumping case, and the latter is an anti-dumping one. And then the author provided some suggestions on how to resolve the problems which may arise in future cases.First of all, The thesis introduces and analyzes the basic theory of standard of review in WTO, which consists of three sub-parts. The first sub-part is to define the meaning of standard of review, and make distinction between factual problem and legal problem. The second sub-part is to analyze the relationship between standard of review and other procedural rules, such as jurisdiction and rules of evidence. The third sub-part is about its development trends, which comprise three periods from GATT until the Doha Round negotiations.As following, the thesis focuses on normative analysis of article 17.6 of Anti-dumpling Agreement and article 11 of DSU. After analyzing article 17.6, the conclusion is that DSB adopts different standards of review to different kinds of issues: appropriate standard for factual evidence, objective standard for factual conclusion and de novo review standard for legal problem. After analyzing article 11, the conclusion is that DSB adopt the same standard, which is considered as objective standard of review, to different kinds of issues. After comparing the articles, the conclusion is the following: (1) for factual problems in other kinds of cases, the panel has great discretion than that in anti-dumpling cases; (3) for legal problems in all cases, the DSB adopts the de novo review standard.The last part of the thesis analyzes two cases in which China is one party. After analyzing the two cases, the author finds that the standard of review in specific cases could be seen as the following problems: the distinction between factual problems and legal problems, the interpretation of domestic law in member states, the jurisdiction to jurisdiction, etc. After analyzing the cases, the conclusion is: (1) DSB makes clear standard of review for anti-dumpling cases, while it is not so clear in other cases, (2) there is inverse relationship between the clarity of standard of review and judicial activism of DSB, (3) DSB complements the interpretation of domestic law as a way to review the facts. Then the author provides some suggestions on how to resolve the problems that may arise in future cases.