Deference to the Legislature in WTO Challenges to Legislation - 9041131450 - 9789041131454

Photo of the title: Deference to the Legislature in WTO Challenges to Legislation - 9041131450 - 9789041131454

by: Daniel Lovric
November 2009, ISBN 9041131450
ISBN 13: 9789041131454
264 pp. Hardcover

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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 case law.

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 1.4.1.1. Legal Method in General 1.4.1.2. 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 3.3.3.1. Outline of WTO Rules on Remedies 3.3.3.2. Recommendations as Declarations of Inconsistency 3.3.3.3. Limits to Deference to the Legislature in the WTO Remedial System 3.3.3.3.1. Limited Deference by Underlying Reasoning 3.3.3.3.2. Limited Deference by Time Limits 3.3.3.3.3. 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 4.6.1.1. The Standard of Review of WTO Law 4.6.1.2. 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 7.4.3.1. Incapacity 7.4.3.2. Costs and Resources 7.4.3.3. 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 8.3.2.1. Consistency of Legislation on Its Face 8.3.2.2. WTO Obligations That Prohibit Ambiguity 8.3.2.3. 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 Cases. Index.