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

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journal contribution
posted on 2023-06-09, 08:05 authored by Emily LydgateEmily Lydgate
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.

History

Publication status

  • Published

File Version

  • Accepted version

Journal

Journal of International Economic Law

ISSN

1369-3034

Publisher

Oxford University Press

Issue

2

Volume

21

Page range

1-22

Department affiliated with

  • Law Publications

Full text available

  • Yes

Peer reviewed?

  • Yes

Legacy Posted Date

2017-09-25

First Open Access (FOA) Date

2017-09-26

First Compliant Deposit (FCD) Date

2017-09-25

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