The Standard of Review Strikes Back: the US–Korea Drams Appeal
* Senior Associate, Louis Gross & Associates, Customs and Trade Lawyers, 17/390 St Kilda Road, Melbourne, Australia 3004, email: ross{at}louisgross.com.au. The author is also presently undertaking a PhD at the University of Melbourne on the development of the standard of review in WTO disputes.
This article contains a brief analysis of how the WTO Appellate Body identified and applied a standard of review in the recent US–Korea DRAMS Appeal and its implications for this aspect of WTO jurisprudence in the future. Section I discusses the formulation of the objective assessment test and its development through subsequent cases. Section II sets out the background to the US–Korea DRAMS decision and summarizes the reasoning of the Appellate Body in determining that the panel had not complied with its obligations under Article 11 of the Dispute Settlement Understanding. Section III discusses the implications of this decision for panels and parties. It is suggested that this decision evidences the significant development of the standard of review under the WTO dispute-settlement system. However, it is suggested that the standard is becoming more complex in nature, and it may be increasingly difficult for panels to comply with Article 11 without a clear restatement of applicable principles by the Appellate Body.