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15 Tul. J. Int'l & Comp. L. 465 (2006-2007)
Between Intensive Care and the Crematorium: Using the Standard of Review to Restore Balance to the WTO

handle is hein.journals/tulicl15 and id is 469 raw text is: Between Intensive Care and the Crematorium: Using the Standard of Review to Restore Balance to the WTO Phoenix X.E Cai This Article explores the issue of the appropnate standard of review in the WTO dispute settlnementprocess The standard ofeview, whether de novo review, total deference, or somewhere in betwee, is incredibly important in international adjudication because it is an expression of the balance ofpower between sovereign nations and the WMU In recent yer, the standard of review has received unprecedented political attention, particulady in the area of health and safety regulations aid dumping (selling goods below fair market value), both of which am discussed in detal in tis Article. This Article synthesizes three areas of law-US adminstrative law, constitutdonal law, and WTOjurisprudence-to argue that the total deference model borrowed firom the US Chevron Doctrine can not work in the W7O for a number of stuctural and policy reasons. TisArticle first describes the WTO9 dispute settlement #-rnework and situatesChevron within that framework Nex=4 it highlighta why some of the strongestjustifications for Chevron, such as efficiency, coordination and democracy fal in the WTO context. TheAftcle then relies on recent case law to demonsate that the WTO is ignoingChevron, despite the fact that it is required by one of the WI0 agreements. TheArtile concludes by offering some explanations for why tis is happening and suggests a finmewour based on dormant commerce clause analysis, in which it would be appropriate, if the domestic decision body had undertaken a least mstrictive means anasis, for the WTO to give more deference than it currently does I. INTRODUCTION ................................................................................. 466 II. A BRIEF HISTORY OF THE WTO ....................................................... 470 A. Dispute Settlement Understanding ........................................ 473 B. History of Trade Dispute Settlement Procedures .................. 474 C The Dispute Settlement Undestanding Mending the Leaky R oof ............................................................................. 478 IIL STANDARDS OF REvIEw ................................................................... 483 A. Standards ofReview Codfied in the GA7T/WTO .............. 483 B Why a Chevron Model Is Inappropnate in the WT Context .................................................................................... 490 C The Search fora New Comparative Model: Dormant Commerce Clause Analysis .................................................... 494 * Assistant Professor of Law, University of Denver Sturm College of Law. B.A., Washington University; J.D., U.C. Berkeley (Boalt Hall). I dedicate this Article to my parents, Jian Bin Cai and Yu Lan Huang, for all that they have taught me. I would also like to thank my colleagues at the University of Denver Sturm College of Law who provided helpful comments and suggestions. Tamara Qureshi and Emily Robbins provided valuable research assistance. Any errors in the Article are my responsibility.

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