ANTI-DISCRIMINATION, ADJUDICATIVE LEGITIMACY AND THE STANDARD OF REVIEW QUESTION IN WTO LITIGATION

The WTO was established in 1995 to deepen freer trade among its members. However, free trade will be beneficial only when a majority of WTO countries implement free trade policies. The WTO is a rules-based system that aims to ensure that its member States adhere to the rules of international trade. How should it go about doing this?Any proposal about how the WTO should implement freer trade must be assessed in the light of the concern that the WTO must also protect legitimate non economic values such as environmental conservation, sovereignty and the development in poor countries. The WTO’s situation is made more difficult by the fact that countries can use protection of legitimate non economic values for covert protectionism. How should the WTO DSB review the measure of a WTO country when there is a complaint that it is using protection of legitimate non economic values as means of protectionism? This raises the standard of review question? Should the DSB place great store on sovereignty and review such a measure with deference or should it promote the rules-based system by reviewing such a measure de novo?I argue that the WTO can respond to the standard of review question by combining McGinnis’ anti-discrimination model and Howse’s theory of adjudicative legitimacy. When it does this it will promote free trade while also protecting legitimate non economic values. It will also be subjecting the DSB system to disciplines which will make its decisions legitimate. This will encourage sovereign States to abide by the decisions of the DSB.