Neither Fact Nor Law:  Domestic Law, The Standard-Of-Review Deficit, And The Misdiagnosis Of The Article 17.6 Controversy In WTO Dispute Settlement

Abhishek Rajan

doi:10.36948/ijfmr.2026.v08i03.81804

Neither Fact Nor Law: Domestic Law, The Standard-Of-Review Deficit, And The Misdiagnosis Of The Article 17.6 Controversy In WTO Dispute Settlement

Author(s)	Mr. Abhishek Rajan
Country	India
Abstract	The charge that the World Trade Organization Appellate Body exceeded its mandate under Article 17.6 of the Dispute Settlement Understanding by “making determinations under domestic law” has become a fixed point in the literature on the dispute settlement crisis and a recurring item in the United States’ indictment of the institution. This article argues that the charge rests on a category error. It conflates a jurisdictional question, whether the meaning of municipal law is an “issue of law” reviewable on appeal, with a standard-of-review question concerning the intensity of that review and the deference owed to the respondent’s own authoritative institutions. The jurisdictional question is largely a red herring: reviewing a panel’s characterisation of municipal law for treaty-consistency is ordinary legal interpretation and is consistent with the practice of the International Court of Justice, investment tribunals and human rights courts, which routinely examine domestic law without surrendering jurisdiction over it. The real and neglected problem is a standard-of-review deficit. By assimilating the ascertainment of municipal law’s meaning to the de novo interpretation of treaty text, the Appellate Body left a deference vacuum that became indefensible only where a treaty provision , Article 17.6 (ii) of the Anti-Dumping Agreement , expressly mandated deference and was then read out of existence. Reframing the controversy from jurisdiction to standard of review dissolves the overreach charge in its strong form, isolates a genuine but narrow failing, and exposes the misdirection of a reform agenda preoccupied with jurisdictional carve-outs. The article develops a calibrated standard of review for municipal law , deference in ascertainment, independence in consistency assessment, and contends that the Appellate Body crisis was sustained, in part, because a standard-of-review grievance was misdescribed as a jurisdictional violation, rendering it rhetorically potent yet impervious to the Appellate Body’s otherwise sound jurisdictional defence
Keywords	WTO Appellate Body, Article 17.6 DSU, Standard of review Municipal Law as fact; Judicial overreach; Anti-Dumping Agreement Article 17.6(ii), Dispute settlement reform
Published In	Volume 8, Issue 3, May-June 2026
Published On	2026-06-20
DOI	https://doi.org/10.36948/ijfmr.2026.v08i03.81804

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Neither Fact Nor Law: Domestic Law, The Standard-Of-Review Deficit, And The Misdiagnosis Of The Article 17.6 Controversy In WTO Dispute Settlement

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