Saving Regulatory Space for States Through the Standard of Review : A Case Study of Tobacco Control-Related International Disputes

The chapter argues that international economic law dispute settlement bodies (IEL DSBs) have generally apply deferential standard of review when analysing national tobacco control measures. While the approaches taken by different IEL DSBs are not identical, all of them seem to aim at guaranteeing a considerable margin of discretion to national regulators, thus promoting unity in the IEL field and reinforcing legitimacy of DSBs’ decisions. This also means that the DSBs have actually broadened in the analysed category of cases, rather than undermined, the regulatory space available to States. Interestingly, this result has been achieved not so much through re-interpretation of relevant treaty provisions but through the application of a specific category of the secondary rules of international law pertaining to the intensity of the judicial review