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V Subsidiary Rule-making

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Chapter Summary

This chapter focuses on whether subsidiary rule-making exists in the WTO and if so what forms it takes. The following clusters of subsidiary rule-making are analysed, beginning with forms of delegated rule-making based on express and implied powers, including a discussion, where appropriate, of the role that soft law may play in that particular process of subsidiary rule-making. The chapter also highlights the contribution of adjudicative rule-making to the body of subsidiary rule-making in the WTO, primarily through procedural rules, and substantive rules that mostly relate to standard of review. It turns to a brief analysis of the phenomenon of rule referencing, whereby law may be created by reference, i.e. by turning nonbinding or soft law rules and standards, which have their provenance in another treaty instrument or institutional norm, into rules. Some conclusions are reached as to the effect of subsidiary rulemaking on normative developments in the WTO.

Keywords: adjudicative rule-making; delegated rule-making; rule referencing; subsidiary rule-making; WTO



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