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Article
A CRITICAL ANALYSIS OF WTO TRIBUNALS’ CHARACTERIZATION OF NATIONAL LAW INTERPRETATION
Author(s)
Xiuyan Fei
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DOI:10.17265/1548-6605/2017.07.001
Affiliation(s)
ABSTRACT
In
WTO dispute settlement, the issue about the characterization of national law
interpretation is concerned with judicial deference and the allocation of power
between the WTO and Member States. This article examines WTO tribunals’ claim
about their characterization of national law interpretation and their practice.
On the one hand, WTO tribunals have claimed to characterize national law
interpretation as a question of law; on the other hand, they have applied the
same rule on the burden of proof for national law interpretation with that for
other facts and provided deference to the legislating states especially in the
circumstances where there is any suspicion or uncertainty about the meaning of
national law. Therefore, WTO tribunals’ claim about the characterization is not
consistent with their practice. WTO tribunals’ national law interpretation, in
essence, is reinterpretation of national law, and should be characterized as a
mixed question of law and fact.
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