Is it rational and consistent? the WTO’s surprising role in shaping domestic public policy

Lydgate, Emily (2017) Is it rational and consistent? the WTO’s surprising role in shaping domestic public policy. Journal of International Economic Law, 21 (2). pp. 1-22. ISSN 1369-3034

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Abstract

What makes regulation rational? And why is rationality important to an international tribunal? In the World Trade Organization (WTO) context, these questions have had significant implications for the public policy of its Member countries. The WTO Appellate Body’s emerging emphasis on means–ends rationality testing is based on the questionable premise that consistent regulation is non-discriminatory. It has led regulators, such as the EU, to defend—and probably even construct—complex regulation in a way that emphasizes conformity to one overarching policy objective. More surprisingly, the Appellate Body has re-cast itself as public policy watchdog, pointing out when governments do not appear to be committed to their cause. In response, governments have strengthened disputed regulation, rather than making it less trade-restrictive. This retreat to rationality can be seen as a result of a difficult challenge facing the Appellate Body: how to review national regulation without passing judgment on it. More specifically, the rationality test pays the price of the Appellate Body’s retreat from proportionality.

Item Type: Article
Keywords: WTO, animal welfare, environmental policy, Appellate Body
Schools and Departments: School of Law, Politics and Sociology > Law
Depositing User: Emily Lydgate
Date Deposited: 25 Sep 2017 15:36
Last Modified: 26 Sep 2017 08:38
URI: http://sro.sussex.ac.uk/id/eprint/70343

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