Intensity Of Review Research Articles

Judicial Review and Judicial Deference In EU Law

This chapter is concerned with deference as a concept in EU law, and the way in which it informs judicial review. The analysis is divided into four parts. The second part is concerned with the meaning of deference. There is discussion as to why it is important to disaggregate the meaning of the concept from the word itself, which is followed by explication of the relationship between the concept and the standard of judicial review employed by the courts. The third part addresses the relationship between the concept of deference, and the rule of law. The basic normative connection is that it operates as a control device to help determine the intensity of judicial review, and hence the degree of judicial control over public power that is warranted. There is further refinement of the factors that should be taken into account when determining this issue. The fourth part considers the concept of deference in EU law, which is evident in three doctrinal contexts: review for proportionality, review for manifest error, and review for human rights. The role played by deference is then examined in greater detail in relation to proportionality and manifest error review. The final substantive part of the chapter contains reflections on the intensity of review in EU law, and the degree of deference that the EU courts are willing to accord to the administration. The chapter concludes with points relating directly to the application of these precepts to agencies.

Judicial Review of the NCA’s Decisions: Some Problematic Aspects of the EU Damages Directive in the Context of Italian Law

In the Italian legal system, the transposition of Directive 2014/104/EU into Legislative Decree No. 3 of 2017, with a view to improving the efficacy of both ‘follow-on’ and ‘stand-alone’ legal actions in private and public antitrust enforcement, has highlighted the problem of the judicial review of National Competition Authority (NCA) decisions. The Directive established its own ‘binding effect’ designed by the European Union order to increase the effectiveness and procedural efficiency of actions for damages in the Member States. According to the logic of the European Union, the binding effect seeks to ensure that an infringement of competition law, established by a final decision of the NCA or a court of judicial review, is deemed to be irrefutably acknowledged for the purpose of bringing an action for damages before the national courts under Article 101 or 102 Treaty on the Functioning of the European Union (TFEU) or under national competition law. However, in terms of accomplishing this objective, the prevision introduced into Italian law by Article 9(1) of the Directive becomes problematic when set against the current system of judicial review of NCA decisions in Italy, potentially undermining the effectiveness of the legal protection of the individual. The focus of the article is that the Italian system does not – in its current form – allow adequate judicial review of NCA decisions. Taking the interpretation of Articles 6(1) European Convention on Human Rights (ECHR) and 24 of the Italian Constitution as fundamental norms establishing the ‘right to a fair trial’ and the ‘right to a defence’ as its starting point, the article seeks to offer a solution to the problem arising in relation to full judicial review of NCA decisions within the Italian legal context based on the thesis that if there is no full revision of the facts and no full revision of the discretionary powers there can be no full judicial review. EU Damages Directive, Private and public antitrust enforcement systems, The binding effect of the NCA’s decisions, Administrative and technical discretion, Judicial review of the NCA’s fact findings and technical assessments; European Court of Human Rights (ECtHR) case law, Articles 6(1) ECHR and 24 of the Italian Constitution, Intensity of review in Italy, Full jurisdiction of the Italian administrative courts

Is it time to understand Russia rationally? Test of suitability in constitutional adjudication

The author discusses the application of the suitability test in constitutional adjudication. Then he puts forward a thesis that in comparison with the essentially philosophical categories of reasonableness and rationality, this prong of proportionality principle has practical value in judicial review of legislation. The political system has to meet the minimum standards of a deliberative democracy in order courts could use the doctrine of rationality. Among such standards are: recognition of the diversity of ideologies, real competition between political parties and other groups, a serious attitude towards discussion in society, etc. High courts, even in countries with long democratic traditions, usually use the self-restraint technique in reviewing the reasonableness of statutes. In illiberal and populist regimes, due to the unification of public discourse and the imitation of democratic institutions, the challenging of reasonableness of majority decisions can be dangerous. The argument on absurdity of legislation is relatively rare in the case-law of the Constitutional Court of the Russian Federation. It can be found in the dissenting opinions of constitutional judges. In regard with the recent legislative ban on the publication of these opinions, the reasoning ad absurdum has rather theoretical significance for constitutional adjudication in Russia. Moreover, criticism of the reasonableness of legislation can now create additional obstacles for the difficult dialogue of the Russian Constitutional Court with the parliament and other “political” branches. An alternative to critically reviewing the unreasonableness of parliamentary decisions in constitutional adjudication are both the borrowing of economic methodology and certain principles of Legisprudence. The author puts forward the argument on utility of these principles on the judicial review of the ability of legislative means to achieve public goals. Suitability has an empirical nature and requires scientific validity of statutes. Selection of regulatory measures should be evidence-based and grounded on outcomes of research. Usually, constitutional judges do not have special knowledge of complex issues of socio-economic policy. More often than not, the absence of such an expertise means deference to the parliamentary and administrative fact-finding, which predetermined the normative decision. The intensity of the review of the suitability of legislation can be increased in those areas where constitutional judges have the necessary expertise or practical background. Constitutional tribunals recognize the broad discretion of representative bodies in forecasting the social, economic and other consequences. Otherwise, the intervention of judges in the goal-setting of regulatory policy is inevitable. Forecasting can be inaccurate and even erroneous due to the targeting of the regulatory decision for the future. A second-guess of the legislative forecast in constitutional adjudication is an exception to the general rule. It is possible due to newly discovered circumstances, changes taking place in society or progress in science. The implementation of regulatory impact assessment in law-making does not replace, but supplements the judicial review of the principle of proportionality. Consistency test in constitutional adjudication is closely related to the principle of legal certainty, which in turn excludes inconsistency and contradictions of legislative measures with public aims. The consistency approach obliges the members of parliament to be logical in the implementation of the legislative intent. Otherwise, citizens’ legitimate expectations in the governmental policy are undermined. The suitability test has an applied meaning in discrimination cases. If unequal treatment affects the fundamental rights of truly vulnerable social groups, constitutional judges could increase the intensity of judicial review of unreasonable laws.

Rationality Review of Legislative Process in Adjudication on Constitutionality of Statutes

위헌법률심판에서 헌법재판소는 다투어지는 법률 내용이 헌법에 위반되는지 여부를 심사한다. 헌법재판소는 합리성 내지 비례성 심사를 통해 법률 내용의 헌법합치성을 판단한다. 위헌법률심판에서 헌법재판소는 과잉금지원칙 같은 실체적 사법심사기준을 매개로 문제되는 법률의 내용적 정당성을 판단하고 입법자가 그법률에 이르게 된 입법과정에는 별반 관심이 없다. 그럼에도 불구하고, 헌법재판 소가 실체적 심사기준을 적용하더라도 법률의 내용적 정당성을 판단하기 곤란한 경우가 있다. 다원성과 불확실성을 특징으로 하는 현대사회에서 입법자는 사회적 으로 논란 있는 사안에 대하여 가치판단을 수행하거나 예측이 쉽지 않은 장래 상황을 규율해야 하는 처지에 놓인다. 이러한 경우, 헌법재판소는 일정 정도는 입법의 내용 그 자체의 정당성이 아닌 입법과정의 합리성에 주목하지 않을 수없다. 헌법재판소는 입법과정에서 입법자가 문제되는 쟁점을 빠짐없이 고려하였 는지, 이를 공적 토론에 충분히 개방하였는지, 그리고 입법자가 신뢰할 수 있는 정보에 근거하여 결정하였는지를 고려하여 법률의 헌법합치성을 판단하게 된다. 입법에 대한 실체적 정당성 판단이 헌법재판소 결정의 대부분을 차지하고 실체적 사법심사기준의 정교화가 헌법학의 주된 관심을 끌어온 반면, 입법과정의 합리성에 대한 헌법재판소의 통제가 갖는 의미는 우리 학계에서 비중 있게 다루어 지지 않았던 쟁점이다. 이에, 본고에서는 위헌법률심판에서 입법과정의 합리성에 대한 심사의 허용가능성과 그 내용, 그리고 그것이 실체적 사법심사와 맺는 관계를 중심으로 입법과정의 합리성 심사를 검토한다. 본고는 우선 헌법재판에서 문제될 수 있는 절차적 심사의 유형을 구분하고, 이른바 입법의 내적 과정으로서 광의의 입법과정에 대한 헌법재판소의 통제를 둘러싼 정당성 논란을 고찰한 후 ( ), 입법과정심사는 무엇을 지칭하는지, 그것이 특히 활용될 수 있는 영역은 어디인지를 비교헌법적 사례를 소재로 하여 검토한다( ). 다음으로, 입법과정 심사와 실체적 내용 심사 간 관계를 고찰하고, 입법과정에 대한 심사강도 문제를 검토한다. ( ) 마지막으로, 입법과정심사의 우리 헌법실무에 대한 시사점을 언급하는 것으로 글을 마무리한다. ( )In an adjudication on constitutionality of statutes, the Constitutional Court examines whether the content of questioned law violates the Constitution. The Constitutional Court determines the constitutionality by examining reasonableness or proportionality of the law. In the adjudication on constitutionality of law, the Constitutional Court judges the legitimacy of the law through substantive judicial review standard, such as the principle of proportionality, and has little interest in the legislative process through which the legislator enacted the law. Nevertheless, even when the Constitutional Court applies substantive review criteria, it may be difficult to determine the legitimacy of the law. In modern societies characterized by pluralism and uncertainty, legislator is often forced to make value judgments on socially controversial issues or to determine future situations that are difficult to predict. In this case, the Constitutional Court focuses on not only the content of the law itself but also the rationality of legislative process. The Constitutional Court has no choice but to judge the constitutionality of the law, taking into account whether the legislator has considered all aspects at issue, whether the legislator has opened the issue to public debate, and whether the legislator enacted the law with reliable evidence. While substantive legitimacy review of the law accounts for most of the decisions of the Constitutional Court and the elaboration of substantive judicial review standards has attracted the attention of the constitutional jurisprudence, the significance of the Constitutional Court’s control over the rationality of the legislative process has not been addressed sufficiently. Therefore, this article examines the rationality of the legislative process, focusing on the justification of the legislative process review, its contents, and its relationship with the substantive judicial review. This article first identifies the types of procedural reviews that may be a problem in the constitutional adjudication and considers the controversy surrounding the constitutional court’s control of the internal process of legislation (II). The article examines what the review of legislative process refers to and in which areas it can be particularly used, using comparative constitutional precedents (III). Next, the relationship between the review of the legislative process and the review of substantive content is examined, and the intensity of review on the legislative process is examined. (IV) Finally, the article concludes with an implication of legislative process review to the practice of Constitutional Court. ( )

Judgment of Unconstitutional Discrimination based on a Proportionality Review — With a Focus on Review over the Decision by Constitutional Court of Korea —

자유권의 비례성 심사와 평등권의 비례성 심사는 ‘피해의 최소성’(필요성) 내지 ‘차별대우의 필요성’(불가피성)에서 차이를 발견할 수 있다. 즉, 헌법에서 특별히 평등을 요구하고 있는 경우에 ‘차별대우의 불가피성’은 바로 ‘차별대우가 입법목적을 달성하기에 불가피한 것인지’ 여부를 심사하는 것을 의미한다. 다만, 차별적 취급으로 인하여 관련 기본권에 대한 중대한 제한을 초래하게 되는 경우는 자유권에서 말하는 ‘최소침해성’과 별반 다를 바가 없다. 따라서 비례원칙에 의한 자유권 심사와 평등권 심사는 상당히 일치하고 중복된다고 할 것이다. 개별적 평등권의 경우는 헌법에서 특별히 평등을 요구하고 있는 경우이기 때문에 입법자에게 인정되는 입법형성권이 축소되는 것은 당연하다고 할 것이다. 왜냐하면 형성의 자유는 일차적으로 규율영역에 관한 헌법규정의 존부에 따라 달라지기 때문이다. 그리고 평등권은 독자적인 보호영역을 갖지 않음으로 인하여 관련 기본권에 대한 제한의 정도에 따라 심사기준을 달리 적용하여야 하는 특수성이 존재한다. 이러한 점에서 헌법재판소가 판시한 ‘관련 기본권의 중대한 제한이 초래되는 경우’에 비례성 원칙에 의한 심사를 해야 한다는 것은 기본적으로 타당하다고 할 것이다. 비례원칙에 따라 심사하는 경우에도 심사기준의 문제가 아닌 심사강도의 문제로서 엄격한 심사에 대비되는 개념으로 완화된 심사를 생각해 볼 수 있을 것이다. 즉, 비례원칙에 의한 심사를 함에 있어서도 심사강도의 차이를 인정할 수 있을 것이므로, 이를 비례원칙에 의한 엄격한 심사와 비례원칙에 의한 완화된 심사라는 표현으로 구별해 볼 수 있다. 이것은 절대적인 구별이 아니라 기능법적 접근에 따른 동일한 심사기준에 의한 상이한 심사강도를 나타내기 위한 일응의 기능적 개념으로 이해해 볼 수 있을 것이다. 다만, 완화된 비례성 심사라 하더라도 비례원칙에 의한 심사인 이상 비례원칙을 구성하는 개별원칙들은 모두 적용된다고 보아야 할 것이다. 헌법에서 차별대우(우대)를 명령하고 있으나 차별적 취급으로 인하여 관련 기본권에 대한 중대한 제한을 초래하게 되는 경우는 헌법이 직접 차별을 요청하고 있기 때문에 헌법의 통일성 관점 내지 규범조화적 해석의 방법에 따라 비례원칙에 의하지만 완화된 심사를 하는 것이 타당할 것이다. 그리고 간접차별은 엄격한 심사를 요하는 은폐된 (헌법이 금지하는) 차별기준에 의해 발생한 차별대우에 대하여 강화된 심사를 하는 데 의미가 있기 때문에 입법자의 물적 차별이 간접적으로 인적 집단의 차별을 초래하는 경우에도 완화된 비례성 심사를 해야 할 것이다.There are differences in “minimization of damage”(necessity) or “necessity for discriminatory treatment”(inevitability) between proportionality reviews for the right of freedom and those for right to equality. That is, when the Constitution has a special request for equality, “inevitability of discriminatory treatment” means a review of “whether discriminatory treatment will be inevitable to the fulfillment of a legislative goal.” If there are major limitations to the concerned fundamental right due to discriminatory treatment, however, it will be not different from “minimum damage” in the right of freedom. Even though it is difficult to say that a review for the right of freedom is the same as a review for right to equality based on the principle of proportionality, a considerable part of the review content will match or overlap between them. Even in the case of a review based on the principle of proportionality, an issue emerges from the intensity of review rather than the criteria of review. A moderate review can be an opposite concept to a strict review. In other words, differences in the intensity of review can be recognized in reviews even based on the principle of proportionality, which makes it possible to distinguish a moderate review based on the principle from a strict one based on the principle. This is not absolute distinction, but it can be understood as a function concept of prima facie to show different intensity levels in reviews based on the same criteria of review according to a functional approach. It is, however, needed to apply all the individual principles in the principle of proportionality even in the case of a moderate proportionality review as long as the review is based on the principle of proportionality. In cases of major limitations to the concerned fundamental right due to discriminatory treatment under the constitutional order of discriminatory treatment(preferential treatment), it will be valid to do a moderate review based on the principle of proportionality according to the perspective of unity in the Constitution or interpretation of harmony between different norms since the Constitution makes a request for direct discrimination. Since indirect discrimination is meaningful to do a reinforced review for discriminatory treatment by the concealed (prohibited by the Constitution) criteria of discrimination that requests a strict review, a moderate review of proportionality will be required even in case of indirect discrimination against a human group by the legislators material discrimination.

Constitutional Review and the Economic Crisis: In the Courts We Trust?

A reflection on the constitutional effects of the economic crisis is now both possible and useful. The paper assesses the judicial reaction to the national and EU measures introduced for containing the economic crisis. The focal point of analysis is the intensity of review and the judicial justifications given during that period. The working hypothesis is that the jurisprudence is characterized by the utilization of the ‘crisis vocabulary’, by the application of a low intensity review yardstick, by the application of a narrower in scope version of the principle of proportionality and by the wide margin of discretion recognized for the decision-maker. The analysis concludes that the jurisprudence was not uniform; significant differentiations exist both in approach and in the impact of the relevant case law on the respective legal order. The courts are divided between those of Member States and supranational courts (CJEU and ECtHR). The CJEU approached the matter in jurisdictional terms and formalistically, thus placing the burden on the national constitutions. The Strasbourg court applied the margin of appreciation doctrine, thus limiting review to cases where the impact of the legislative measures resulted in danger to survival. On the other hand, the national courts are classified as either ‘lenders’ (Germany) or ‘borrowers’ (Greece, Portugal and Cyprus). Constitutional review in fuller effect can be found in the German example, while in the case of ‘borrowers’ the national courts faced a moral and existential dilemma. The result was that crisis laws were approached as requiring light review, thus transforming national legal orders and unsettling the equilibrium of constitutional coexistence. National constitutional orders were transformed and the courts were placed in the impossible position of adjusting constitutional review to the economic needs. During the crisis, pragmatism became the new norm.

Two Myths of Administrative Law

In an upcoming set of cases, the Supreme Court of Canada will review its approach to the standard of review of administrative action. In this paper, the author suggests that the Court must go back to the foundation of judicial review in redesigning the standard of review, namely, the task of courts to police the legal boundaries of the administrative body. To do so, courts must authentically interpret the legislative grant of authority to the administrative decision-maker, particularly to determine the appropriate intensity of review. To that end, the author suggests that the Court should discard two myths that have pervaded modern administrative law: (1) that administrative decisionmakers should be granted deference based on purported expertise in matters of statutory interpretation; and (2) that jurisdictional questions exist separately from questions of law. The myths may impose a different standard of review than the one discernible with the ordinary tools of statutory interpretation. The author argues that these court-created devices should not exist at the expense of the constitutionally prescribed duty of the courts to exercise their policing function and engage in genuine statutory interpretation to determine the appropriate standard of judicial review in a given case.

The Margin of Appreciation Doctrine, the Very Weighty Reasons Test and Grounds of Discrimination

When deciding non-discrimination cases, the European Court of Human Rights (Court) operates in a complex context. It is asked to hand down binding judgments in cases of a widely varying nature, which are brought by individuals from all over Europe. The Court tends to be very strict in dealing with clear discriminatory treatment, such as direct discrimination based on race, sexual orientation or gender. It may be more difficult for it, however, to set uniform standards regarding contentious issues, such as same-sex marriage, adoption by single parents, language regulations, social benefits and integration policies for immigrants. Although the Court has to guarantee a minimum level of protection against discrimination also in relation to such difficult matters, it can reasonably be expected to pay heed to the divergent views and values. It is almost overly well-known that one of the ways in which the Court has endeavoured to find a way through such fields of tension is by means of its famous margin of appreciation doctrine. Clearly this doctrine is just as relevant for discrimination cases as for cases about substantive Convention rights. From that perspective it is the more interesting to see that in the field of non-discrimination law, the Court traditionally uses the margin of appreciation doctrine in a different form, i.e. in the form of the 'very weighty reasons test'. Seemingly, the difference between the margin of appreciation doctrine and the 'very weighty reasons test' is simply one of phraseology, without any concrete bearing on the Court's reasoning. It is quite well possible, however, that, indeed, the different labels do relate to a different content. If that would be the case, the question might be raised which differences can be observed and whether and to what extent they can explain and justify the use of different 'brands' of intensity of review in the Court's case-law. This chapter aims to answer these questions by looking into the common starting point of the margin of appreciation doctrine and the very weighty reasons test as well as by analysing the similarities and differences between the Court's application of the two doctrines or tests.

Ex post review of legislatorial prognoses by the European Court of Justice: the temporal dimension of rational law-making

ABSTRACTJudicial review of legislatorial prognoses may either rely exclusively on the knowledge available at the time of legislation (ex ante perspective) or also take later developments into account (ex post perspective). The European Court of Justice (ECJ) is not fully coherent in its approach. While it has predominantly taken the ex ante perspective, there are some notable exceptions. The paper examines the need for ex post review of legislatorial prognoses primarily from a doctrinal methodology standpoint, but to a limited extent also from an interdisciplinary and a comparative law perspective. It argues that the Court ought to be less hesitant with respect to such. This result is supported namely by the general tendency towards stricter review under the European Charter of Human Rights, the ECJ’s recent case law on Commission decisions as well as by policy arguments. With respect to the intensity of review, a distinction is warranted: European legislation is subject to less strict review. There is an elevated evidentiary threshold with respect to the evidence required and the interests involved. Even where the prognosis is erroneous, the law is also in general not immediately void. Instead, the legislator is merely obliged to adapt the law. By contrast, legislation by Member States based on defective prognoses must be brought in line with the EU law requirements immediately.

Transformative Unfair Discrimination Jurisprudence: The Need for a Baseline Intensity of Review

ABSTRACTThe Constitutional Court holds that the prohibition of unfair discrimination is aimed at preventing and addressing patterns of group disadvantage. However, there is a striking inconsistency between this transformative aim and the court's decisions in a set of five controversial cases. In Hugo, Harksen, Jordan, Volks, and Union of Refugee Women, slender majorities found discrimination to be fair despite clear indications that it entrenched patterns of group disadvantage. Existing critiques of these judgments have focused on the court's failure to conduct a fully contextualised assessment of the impact of the discrimination. In doing so, commentators have generally overlooked an equally significant flaw in these decisions. In this article, I demonstrate that the majority judgments all adopted an indefensibly weak intensity of review in assessing the state's justifications for the discrimination, leading the court to uphold discrimination on flimsy grounds. The error was that the majority judgments did not satisfy the ‘baseline’ intensity of review, the non-negotiable threshold of review which, I argue, ought to be applied in all unfair discrimination cases. I demonstrate that this baseline has four central requirements which were flouted in these decisions: (a) the discriminator must present a justification for the discrimination; (b) the court must subject this justification to a proportionality analysis; (c) it must apply a full proportionality analysis, exploring the legitimacy, suitability, necessity, and proportionality stricto senso of the discrimination; and (d) the court must place the evidential and argumentative burden squarely on the discriminator in assessing its justifications. These baseline requirements would have left the court with little option but to find the discrimination to be unfair in these five cases. In this light, I argue that consistent application of this baseline can help to make the court better at addressing patterns of group disadvantage in future decisions.

Splitting the Baby

This article examines the review of un Security Council resolutions by the European Court of Human Rights. Analysing recent decisions in the Nada and al-Dulimi cases against the background of the conclusion of the long-running Kadi saga, it builds upon the wealth of literature on the subject by proposing a theoretical basis for incidental review. It argues that the ECtHR directly review the lawfulness of an impugned resolution against a customary human rights standard, which would determine the applicability of Article 103 of the un Charter to displace those Convention rights that are not accepted in custom by modifying the Bosphorus doctrine of equivalent protection to one of ‘adequate protection’. It thereby argues that it is possible to compromise between what are at present diametrically polarised positions, thus transcending from the issue of the power to judicially review to that of the standard or intensity of review. It would thus become possible to not only embed the European Convention on Human Rights and the European Court of Human Rights in the wider legal system but also to increase bottom-up pressure to entrench the protection of basic human rights in un Security Council practice.

Defending Due Deference: Probing Procedural Propriety in Proportionality

Two problems plague the proportionality test under the Human Rights Act 1998. The first is the tension between substantive and process review. Another is potential judicial fallibility. This article aims to pull these seemingly unrelated issues together to provide the court with some useful guidance on calibrating a suitable intensity of review in the application of proportionality test and interpretation of the Human Rights Act. When the court is uncertain about the cogency of the substance of the case, judges are required to examine the second-order reasoning to determine the level of deference, if any, to be accorded to the government. The author argues that adoption of a thorough and conscientious legislative or policy-making procedure can increase the democratic and institutional legitimacy of the parliament or administration under the second order reasoning. In this premise, the author proposes a comprehensive process-oriented review whereby procedural evidence leading up to the consultation documents, select committee reports and Hansard should be admissible to prove the propriety of the decision-making process. The higher quality the procedure is, the more persuasive the second-order reasoning is. Courts should thus ascribe more weight to these types of evidence to strengthen the substantive merits of the case in applying the proportionality review under the Human Rights Act.

Adjudicating social welfare rights in Hong Kong

Since the inception of the Basic Law of the Hong Kong Special Administrative Region in 1997, the Hong Kong courts have not been short of opportunities to tackle difficult issues concerning civil and political rights. In relation to socioeconomic rights, the common conception that these were aspirational and nonjusticiable rights had made them modest grounds of progress until recent years. However, the Hong Kong Court of First Instance in two recent cases has adjudicated on the constitutional protection of social welfare rights in Hong Kong. These two cases demonstrated the Court’s approach in adjudicating cases that concern social and economic policies, particularly, when the decisions affect the distribution of scarce public expenditure. The intensity of review was at issue, and the Court’s view of the justification provided by the government accounts for the difference in results of the two cases. It can be seen clearly that the Court was greatly influenced by the political and economic implications of their decisions. The author argues that the Court’s internal restraints on adjudicating socioeconomic rights are misplaced, and that there is room for a more principled approach to dealing with social rights, especially in relation to the decision-making process by the government, while respecting the freedom of the democratic government to determine its own policies.

STANDARD OF REVIEW IN WTO LAW

There is no escaping standard of review in WTO dispute settlement. While the contested national measure and the claims made change from case to case, standard of review is a constant feature. In every case, panels and the Appellate Body must decide how intensively a measure should be reviewed and how much deference should be granted to national decision makers. Standard of review, therefore, plays a central role in defining the powers of national authorities in the trade field. In recent years, perhaps the most frequent criticism made of panels and the Appellate Body is that they have been overly intrusive in their review of national measures. This article explores the role and operation of standard of review in WTO law. It begins with the basic requirement that panels must make an 'objective assessment of the matter' and argues that this requirement does not specify the precise nature or intensity of review that panels undertake. The article goes on to consider how panels and the Appellate Body have approached the review of legal and factual determinations, as well as of different types of national measure. In particular, the article examines the review of trade remedy measures, SPS and TBT measures, and measures covered by the GATT 1994. The case-law indicates that the character of review changes with the nature of the determination at issue and also with the obligations in the covered agreement in consideration. The article suggests that the differing approaches to review reflect differences in the covered agreements themselves regarding the respective roles of panels and national authorities. Oxford University Press 2004; all rights reserved, Oxford University Press.

Intensity of Judicial Review in Equal Treatment Cases

Courts are frequently confronted with complaints about unequal treatment of various sorts, varying from legislative acts limiting the rights of inheritance of illegitimate children, to unequal taxation criteria for property taxes. The need to assess different cases of unequal treatment against the equality principle places before the courts a difficult task. The equality principle demands that the courts examine the reasonableness and justifiability of each specific case of unequal treatment, however different the subject. In doing so, the courts need to respect both the discretion or freedom of the party that is responsible for the difference in treatment, and the interests of the person or group that is disadvantaged by it. In order to enable the courts to take account of all interests at stake in any relevant equal treatment case, some variation in the intensity of review is indispensable. In some cases, it is appropriate to exercise restraint in assessing the justification for an inequality in treatment, while other cases call for the strictest scrutiny. In this contribution, the various factors that are relevant to the determination of the appropriate level of review are identified on the basis of a comparative study of the case law of the European Court of Justice, the European Court of Human Rights and the US Supreme Court. In addition, a standard is offered to balance intensity-determining factors pointing in different directions.