by: Daniel Lovric
USD price: $182.00
Challenges to domestic legislation before international tribunals are a
growing phenomenon in public international law. Consequently, in the field of
global trade, the degree of deference given by WTO tribunals to domestic
legislatures in challenges to their legislation is an area of increasing
importance to practitioners, government officials and academics.
This timely work takes a new perspective on the way domestic law is treated at
the international level. Using techniques of domestic constitutional law, it
examines how international tribunals have treated challenges to legislation.
The particular focus is WTO tribunals, but the book also draws on experiences
from other international adjudicators, such as the European Court of Human
Rights. Drawing from these examples, the author examines how international
tribunals have (or have not) deferred to the opinions of the domestic
legislature, and the legal techniques they've used in doing so. The treatment
is detailed and comprehensive, contrasting and summarizing the relevant WTO
List of Abbreviations. Preface. Acknowledgements. Prelude: A Brief History of
International Challenges to Legislation. Chapter 1 Introduction 1.1.
The Subject of This Book 1.2. Why This Subject Is Important 1.3. Why Focus on
the WTO? 1.4. Methodology and Terminology 1.4.1. Methodology 220.127.116.11. Legal
Method in General 18.104.22.168. Issues of Comparative Method 1.4.2. Terminology
1.5. The Structure of This Book Chapter 2 The Nature of Legislation
2.1. Introduction 2.2. The Types of Legislation 2.3. The Legislative
Environment 2.4. The Temporal Aspect of Legislation 2.4.1. The Inter-temporal
Principle 2.4.2. The Inter-temporal Principle in WTO Challenges to Legislation
Chapter 3 Procedural Deference 3.1. Introduction 3.2. Justiciability
3.2.1. Justiciability Generally 3.2.2. Justiciability without Discretion:
Jurisdiction 3.2.3. Discretionary Justiciability: Judicial Economy 3.3.
Remedies 3.3.1. Remedies Generally 3.3.2. Remedies for Challenges to
Legislation: The Declaration of Inconsistency 3.3.3. WTO Rules on Remedies
22.214.171.124. Outline of WTO Rules on Remedies 126.96.36.199. Recommendations as
Declarations of Inconsistency 188.8.131.52. Limits to Deference to the Legislature
in the WTO Remedial System 184.108.40.206.1. Limited Deference by Underlying
Reasoning 220.127.116.11.2. Limited Deference by Time Limits 18.104.22.168.3. Limited
Deference by Express Suggestions 3.4. Concluding Remarks Chapter 4
Substantive Deference 4.1. Introduction 4.2. Raw Facts Deference 4.2.1.
Procedures in Fact Finding: Deference as to Gathering Raw Facts 4.2.2. The
Extent of Fact-Finding: Deference as to Admissibility of Raw Facts 4.3.
Inference Deference 4.4. International Obligations Providing a Standard of
Deference 4.4.1. Allowing States Discretion in Applying an International
Obligation 4.4.2. Determining the Content of an International Obligation via
Domestic Law 4.5. General Concepts of Deference in General Public
International Law 4.5.1. The Reserved Domain of Domestic Jurisdiction 4.5.2.
The Margin of Appreciation 4.6. The WTO Standard of Review 4.6.1. Introduction
to the Standard of Review 22.214.171.124. The Standard of Review of WTO Law 126.96.36.199.
The Standard of Review of Facts 4.7. Concluding Remarks Chapter 5
Introduction to the Concept of Legislative Characterization 5.1. What is
Characterization? 5.2. Three Types of Characterization Chapter 6
Substantive Deference: Factor Characterization 6.1. Introduction 6.2. The
Concept of Factor Characterization 6.3. Factor Characterization in the WTO
6.4. Deference and Factor Characterization in the WTO 6.4.1. Standards and
Deference 6.4.2. Legal and Practical Operations and Deference 6.4.3.
Legislative Purpose and Deference 6.5. Concluding Remarks Chapter 7
Substantive Deference: Proportionality Characterization 7.1. Introduction
7.2. The Concept of Proportionality Characterization 7.3. Proportionality in
the WTO 7.3.1. Balance Analysis: The Right Policy Mix 7.3.2. Effectiveness
Analysis: Causation 7.3.3. Optimality Analysis: Reasonably Available
Alternatives 7.4. Deference and Proportionality Characterization in the WTO
7.4.1. Deference and Balance 7.4.2. Deference and Effectiveness 7.4.3.
Deference and Optimality 188.8.131.52. Incapacity 184.108.40.206. Costs and Resources
220.127.116.11. The ALOP 7.5. Concluding Remarks Chapter 8 Substantive Deference:
Certainty Characterization 8.1. Introduction 8.2. The Concept of Certainty
8.2.1. The German Bestimmtheitsgebot 8.2.2. The Requirement for Certainty
Applied by theECtHR 8.3. Certainty in the WTO 8.3.1. The
Mandatory/Discretionary Distinction and Its Recent Decline 8.3.2. Certainty in
WTO Law Today: The Importance of the Legislative Environment and the Two-Stage
Approach 18.104.22.168. Consistency of Legislation on Its Face 22.214.171.124. WTO
Obligations That Prohibit Ambiguity 126.96.36.199. WTO Obligations That Allow
Ambiguity: The Legislative Environment in Curing Prima Facie Inconsistency or
Making Prima Facie Ambiguity into Inconsistency 8.4. Deference and Certainty
Characterization in the WTO 8.4.1. Deference When the Legislative Environment
Is Used to Defend against Inconsistency 8.4.2. Deference When Legislative
Environment Is Used to Convert Ambiguity into Inconsistency 8.5. Concluding
Remarks Chapter 9 Concluding Comments. Bibliography. Table of WTO