Application of Standard of Review for Safeguard Measure

세이프가드조치의 적법성 평가를 위한 심사기준의 적용에 관한 연구

Examining the standards of review adopted by the dispute settlement body of the WTO in its decision on safeguard measures, the Appellate Body offers no coherent guidance or theory as to the legitimation of the safeguard measures adopted by the domestic authorities. It faults the lack of reasoned and adequate explanation in the national authorities' decision to impose safeguard measures, yet its own explanation of the permissible role for safeguard measure could hardly be less instructive. The Appellate Body has consistently emphasized fidelity to text in its decision but that approach can not work properly when the text is fundamentally deficient from the viewpoints that neither Article XIX nor the safeguard Agreement establish a coherent foundation for safeguard measures due to their vague and abstract provision. Without any coherent theory on guidance as to the legitimation of the safeguard measures, it would be absurd to expect WTO members to produce a reasoned and adequate explanation as to how their safeguard measures are in compliance with the WTO roles. In the absence of a thorough renegotiation for the proper operation of the WTO safeguard system, which seems quite unlikely for the foreseeable future, perhaps the unique method out of the current predicament is for the Appellate Body to lead a movement in establishing a sensible common law of safeguards, drawing on extra-textual guidance including the standards of review about their proper role in the WTO safeguard mechanism.