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OF APPLES AND ORANGES (AND HORMONES IN BEEF): SCIENCE AND THE STANDARD OF REVIEW IN WTO DISPUTES UNDER THE SPS AGREEMENT

Published online by Cambridge University Press:  06 June 2012

Jacqueline Peel
Affiliation:
Associate Professor, Melbourne Law School, University of Melbourne, Australia. Email: j.peel@unimelb.edu.au.

Abstract

The standard of review applied by WTO decision-makers in disputes under the Sanitary and Phytosanitary (SPS) Measures Agreement plays a critical role in determining the scope of SPS risk regulatory authority afforded WTO Members by governing the degree to which such measures must be science-based. The standard of review question in SPS jurisprudence finds resonances in international environmental legal adjudication of highly technical disputes, as well as in comparative law concerning judicial review of science-based risk regulation in the United States and European Union. This article considers recent case law of the WTO Appellate Body in Continued Suspension and Australia–Apples and the extent to which these decisions permit a more deferential approach on the part of WTO decision-makers in evaluating the scientific underpinnings of Members' disputed SPS measures. It is argued that the case law has failed to articulate a strong normative rationale for the current interpretation of the standard of review applied in SPS disputes. Drawing on social scientific findings regarding the limitations of science-based risk assessment in diverse risk settings, the article contends that a more coherent and principled approach to application of the standard of review would allow for its adjustment according to the nature of the risk situation under consideration.

Type
Article
Copyright
Copyright © British Institute of International and Comparative Law 2012

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References

1 Agreement on the Application of Sanitary and Phytosanitary Measures, opened for signature 15 April 1994, 1867 UNTS 493 (in force 1 January 1995) (SPS Agreement).

2 Pauwelyn, Joost, ‘The WTO Agreement on Sanitary and Phytosanitary (SPS) Measures as Applied in the First Three SPS Disputes EC – Hormones, Australia – Salmon and Japan Varietals’ (1999) 2 JIEL 644CrossRefGoogle Scholar.

3 European Communities – Measures Concerning Meat and Meat Products, Report of the Appellate Body, WT/DS26/AB/R & WT/DS48/AB/R (16 January 1998).

4 Article 11.2 of the SPS Agreement provides: ‘In a dispute under this Agreement involving scientific or technical issues, a panel should seek advice from experts chosen by the panel in consultation with the parties to the dispute.’

5 United States – Continued Suspension of Obligations in the EC – Hormones Dispute, Report of the Appellate Body WT/DS320/AB/R, 16 October 2008 (Continued Suspension).

6 Gruszczynski, Lukasz, Regulating Health and Environmental Risks Under WTO Law: A Critical Analysis of the SPS Agreement (2010) 51–2CrossRefGoogle Scholar; Cho, Sungjoon, ‘United States – Continued Suspension of Obligations in the EC – Hormones Dispute’ (2009) 103 AJIL 302CrossRefGoogle Scholar.

7 Australia – Measures Affecting the Importation of Apples from New Zealand, WT/DS367/AB/R, Report of the Appellate Body, 29 November 2010 (Australia–Apples).

8 SPS Agreement, Annex A.1 defines the SPS measures covered by the Agreement.

9 Peel, Jacqueline, ‘A GMO by Any Other Name … Might Be an SPS Risk!: Implications of Expanding the Scope of the WTO Sanitary and Phytosanitary Measures Agreement’ (2006) 17 EJIL 1009CrossRefGoogle Scholar.

10 These frameworks and the parameters of scientific uncertainty and socio-political contestation are discussed further in part III below.

11 Sands, Philippe, ‘Water and International Law: Science and Evidence in International Litigation’ (2010) 22 ELM 15Google Scholar.

12 Button, Catherine, The Power to Protect: Trade, Health and Uncertainty in the WTO (Hart Publishing, Oxford, 2004), 193Google Scholar.

13 SPS Agreement, Annex A 5 and accompanying note.

14 Du, Michael Ming, ‘Autonomy in Setting Appropriate Level of Protection under the WTO Law: Rhetoric or Reality?’ (2010) 13JIEL 1077Google ScholarPubMed. However, the right of a WTO Member to set its own ALOP is not entirely without limits as is evident from Articles 5.4–5.6 of the SPS Agreement.

15 Royal Society Study Group, Risk: Analysis, Perception and Management (Royal Society, London, 1992).

16 SPS Agreement, Articles 3.1 and 3.3. International standards are those promulgated for a particular risk issue by the Codex Alimentarius (dealing with food safety), the International Office of Epizootics (dealing with animal health) and the International Plant Protection Convention (dealing with plant health). Domestic measures which conform to relevant international standards are deemed to protect human, animal or plant life or health and are presumed to be consistent with the requirements of the SPS Agreement, as well as those of the General Agreement on Tariffs and Trade (GATT): Article 3.2.

17 SPS Agreement, Article 2.2.

18 SPS Agreement, Article 5.1.

19 SPS Agreement, Articles 5.2 and 5.3.

20 Hormones, para 180. See also Continued Suspension, para 674.

21 SPS Agreement, Article 5.7. The Appellate Body has stated that the general international environmental law principle of precaution finds reflection in this provision: Hormones, para 124; see also Continued Suspension, para 680.

22 Japan – Measures Affecting the Importation of Apples, Report of the WTO Appellate Body, WT/DS245/AB/R, 26 November 2003 (Japan–Apples), para 179.

23 Maruyama, Warren H, ‘A New Pillar of the WTO: Sound Science’ (1998) 32 IntlLaw 651Google Scholar.

24 Lukasz Gruszczynski, ‘The Use of Experts in Environmental and Health Related Trade Disputes: Processes and Outcomes’, forthcoming in an edited book on experts and legitimacy to be published by Cambridge University Press in 2012 (paper on file with author).

25 Pauwelyn, Joost, ‘The Use of Experts in WTO Dispute Settlement’ (2002) 51 ICLQ 325CrossRefGoogle Scholar.

26 See particularly, Foster, Caroline E, Science and the Precautionary Principle in International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality (CUP, Cambridge, 2011)CrossRefGoogle Scholar. See also Shabtai Rosenne, ‘Fact-Finding Before the International Court of Justice’, in Essays on International Law and Practice (Brill, Leiden, 2007) 235; Riddell, Anna and Plant, Brendan, Evidence before the International Court of Justice (BIICL, London, 2009) 353Google Scholar; Clive M Schofield and Chris H Carleton, ‘Technical Considerations in Law of the Sea Dispute Resolution’, in Alex G Oude Elferink and Don R Rothwell (eds), Oceans Management in the 21st Century (Brill, Leiden, 2004) 239ff.

27 Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Judgment) 20 General List No 135, 20 April 2010 (Pulp Mills) para 165. The majority expressed some qualms about the reliability of evidence given by experts appearing as counsel for one or other of the parties and a preference for independent expert testimony: para 167.

28 Pulp Mills, majority judgment, para 168.

29 Pulp Mills, Joint Dissenting Opinion, Judges Al-Khasawneh and Simma, para 3.

30 ibid paras 7–10.

31 For an overview of the pertinent findings of this research see Jasanoff, SheilaWhat Judges Should Know About the Sociology of Science’ (1993) 77 Judicature 2, 77Google Scholar. Decisions about how to ‘frame’ a risk assessment ie what hazards to include, what evidence to consider and so on are critical in determining the scope of the risk assessment conducted.

32 In Continued Suspension, para 686, the Appellate Body recognized that a Member's ALOP plays a role in the ‘scope or method’ of the risk assessment undertaken to justify SPS measures.

33 Hormones, para 187. See also Continued Suspension, para 527.

34 Peel, Jacqueline, Science and Risk Regulation in International Law (CUP, Cambridge, 2010) 104CrossRefGoogle Scholar.

35 Craik, Neil, The International Law of Environmental Impact Assessment (CUP, Cambridge, 2008) 196–8CrossRefGoogle Scholar.

36 Nonetheless, inclusion of public opinion in SPS risk assessment remains highly controversial: Joanne Scott, ‘European Regulation of GMOs: Thinking About “Judicial Review” in the WTO’ in Michelle Everson and Ellen Vos (eds), Uncertain Risks Regulated (Routledge-Cavendish, Milton Park, 2009) 317.

37 This differs from other WTO Agreements, such as the Anti-Dumping Agreement, Article 17.6(i), which articulates a specific standard of review for disputes under that Agreement based on panels determining ‘whether the authorities’ establishment of the facts was proper and whether the evaluation of those facts was unbiased and objective’.

38 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (in force 1 January 1995), annex 2 (Understanding on Rules and Procedures Governing the Settlement of Disputes) 1869 UNTS 401 (DSU).

39 Ehlermann, Claus-Dieter and Lockhart, Nicolas, ‘Standard of Review in WTO Law’ (2004) 7 JIEL 491CrossRefGoogle Scholar.

40 Hormones, para 117.

41 The Appellate Body described de novo review as ‘complete freedom to come to a different view than the competent authority of the Member whose act or determination is being reviewed’: ibid, para 111.

42 See Japan–Apples, para 165.

43 Tickner, Joel A and Wright, Sara, ‘The Precautionary Principle and Democratizing Expertise: a US Perspective’ (2003) 30 Science and Public Policy 213CrossRefGoogle Scholar.

44 I am grateful to Jonathon Wiener for this succinct articulation of the doctrine.

45 Ethyl Corporation v EPA, 541 F 2d 1, 68–9 (1976).

46 Bazelon, David L, ‘Science and Uncertainty: A Jurist's View’ (1981) 5 HarvEnvtlLRev 212Google Scholar.

47 See, eg Natural Resources Defense Council v Nuclear Regulatory Commission, 547 F 2d 633 (1976).

48 Jasanoff, Sheila, Science at the Bar (Harvard University Press, Cambridge, MA, 1995), 77Google Scholar.

49 Wagner, Wendy E, ‘The Science Charade in Toxic Risk Regulation’ (1995) 95 ColumLRev 1613Google Scholar.

50 Vermont Yankee Nuclear Power Corp. v Natural Resources Defense Council, 435 U.S. 519 (1978).

51 See, eg the Supreme Court decision in Industrial Union Department, AFL-CIO v American Petroleum Institute, 448 U.S. 607 (1980). See also McGarity, Thomas, ‘The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld’ (1997) 75 TexLRev 525Google Scholar.

52 Alberto Alemanno, ‘Science and EU Risk Regulation: The Role of Experts in Decision-Making and Judicial Review’, in Ellen Vos (ed), European Risk Governance: its Science, its Inclusiveness and its Effectiveness, CONNEX Report Series No 6, 37. In EU law the precautionary principle is construed as follows: ‘where there is uncertainty as to the existence or extent of risks to human health, protective measures may be taken without having to wait until the reality and seriousness of those risks become fully apparent’: Case C-236/01, Monsanto Agricoltura Italia [2003] ECR I-8105, para 111. See also Case C-180/96, United Kingdom v Commission [1998] ECR I-2265, para 99; Case C-157/96 National Farmers’ Union and Others [1998] ECR I-2211, para 63; Case E-3/00 EFTA Surveillance Authority v Norway [2001] EFTA Ct Rep 73, para 31.

53 The judicature ‘must confine itself to ascertaining whether the exercise by the institutions of their discretion in that regard is vitiated by a manifest error or a misuse of powers or whether the institutions clearly exceeded the bounds of their discretion’: Case T-13/99, Pfizer Animal Health SA v Council of the European Union [2002] ECR II-3305 (Pfizer), para 169. Judicial deference to discretion in decision-making in the context of scientific uncertainty has a long tradition in EU law. See, eg Case C-331/88, R v Minister of Agriculture, Fisheries and Food and Secretary of State for Health ex parte Fedesa [1990] ECR I-4023.

54 Scott, Joanne, ‘International Trade and Environmental Governance: Relating Rules (and Standards) in the EU and the WTO’ (2004) 15 EJIL 307CrossRefGoogle Scholar.

55 See particularly, Pfizer, (n 53); Case T-70/99 Alpharma Inc. v Council of the European Union [2002] ECR II-3495 (Alpharma); and Case C-79/09, Gowan Comércio Internacional e Serviços Lda v. Ministero della Salute, Judgment of the Court of Justice (Second Chamber) of 22 December 2010. For analysis of the broadly deferential approach taken by the European Court of Justice in the latter case see Alemanno, Alberto, ‘Case C-79/09, Gowan Comércio Internacional e Serviços Lda v. Ministero della Salute, Judgment of the Court of Justice (Second Chamber) of 22 December 2010’ (2011) 48 CML Rev 1329Google Scholar.

56 Heyvaert, Veerle, ‘Facing the Consequences of the Precautionary Principle in European Community Law’ (2006) 31 EL Rev 203Google Scholar.

57 Some commentators already see evidence of a convergence in US and EU risk regulatory approaches with supranational/WTO review as an important driver: Vogel, David, ‘The Hare and the Tortoise Revisited: The New Politics of Consumer and Environmental Regulation in Europe’ (2003) 33 British J Pol Sci 567Google Scholar.

58 Jacqueline Peel, ‘Risk Regulation under the WTO SPS Agreement: Science as an International Normative Standard?’ (2004) Jean Monnet Working Paper No 2/2004.

59 Hormones, para 194. See also Continued Suspension, para 529.

60 Hormones, para 193.

61 Hormones, para 200. See also Continued Suspension, para 530. The Appellate Body in Continued Suspension indicated some loosening of this requirement, particularly in the case of cumulative risks: see paras 562–3.

62 As the Appellate Body itself acknowledged in Hormones, para 193.

63 SPS Agreement, Annex A 4.

64 Hormones, para 184.

65 Australia – Measures Affecting Importation of Salmon, Report of the WTO Appellate Body, WT/DS18/AB/R, 20 October 1998 (Salmon), para 173.

66 For further details see Peel, (n 34) ch 5.

67 Salmon, paras 124 and 128.

68 Japan – Measures Affecting Agricultural Products, Report of the WTO Appellate Body, WT/DS76/AB/R, 22 February 1999 (Varietals), para 84.

69 Landwehr, Oliver, ‘Decisions of the Appellate Body of the World Trade Organization: Japan – Measures Affecting Agricultural Products’ (1999) 10 EJIL 803CrossRefGoogle Scholar.

70 Japan – Measures Affecting the Importation of Apples, Report of the Panel, WT/DS245/R, 15 July 2003 (Japan–Apples Panel Report), para 8.198. Despite the fact that this ruling calls into question whether it was Japan or the panel determining an acceptable level of risk, on appeal the Appellate Body affirmed the Panel's methodology noting it did ‘not exhaust the range of methodologies available to determine whether a measure is maintained “without sufficient scientific evidence” within the meaning of Article 2.2’: Japan–Apples, para 164.

71 European Communities – Measures Affecting the Approval and Marketing of Biotech Products, Reports of the Panel, WT/DS291/R, WT/DS292/R and WT/DS293/R, 29 September 2006 (Biotech), para 8.9.

72 Herwig, Alexia, ‘Whither Science in WTO Dispute Settlement?’ (2008) 21 LJIL 834CrossRefGoogle Scholar.

73 Identical reports were issued in the dispute brought by the US as in that brought by Canada: see US – Continued Suspension of Obligations in the EC – Hormones Dispute, Report of the Panel, WT/DS320/R, 31 March 2008 (US – Continued Suspension Panel Report), [7.612]; Canada – Continued Suspension of Obligations in the EC – Hormones dispute, Report of the Panel, WT/DS321/R, 31 March 2008 (Canada – Continued Suspension Panel Report).

74 Continued Suspension, paras 597, 598 and 602.

75 Adams, John, Risk (UCL Press, London, 1995), 8Google ScholarPubMed.

76 Ortwin Renn, ‘Concepts of Risk: A Classification’ in Sheldon Krimsky and Dominic Golding (eds), Social Theories of Risk (Praeger Publishers, Westport, CT, 1992) 53.

77 Horlick-Jones, Tom and Sime, Jonathan, ‘Living on the Border: Knowledge, Risk and Transdisciplinarity’ (2004) 36 Futures 447CrossRefGoogle Scholar.

78 The term ‘normal science’ was famously employed by Thomas Kuhn to describe the standard business of scientific research within a given (unchallenged) paradigm: Kuhn, Thomas S, The Structure of Scientific Revolutions (3rd edn, University of Chicago Press, Chicago, IL, 1996)CrossRefGoogle Scholar.

79 Examples include Klinke, Andreas and Renn, Ortwinn, ‘A New Approach to Risk Evaluation and Management: Risk-Based, Precaution-Based, and Discourse-Based Strategies’ (2002) 22 Risk Analysis 1071CrossRefGoogle ScholarPubMed; Renn, Ortwin et al, The Application of the Precautionary Principle in the European Union (Precaupri Project, European Commission, Stuttgart, 2003)Google Scholar; Andrew Stirling, ‘On Science and Precaution in the Management of Technological Risk, vol I: A Synthesis Report of Case Studies’ (European Science and Technology Observatory, 1999); Andrew Stirling, ‘On Science and Precaution in the Management of Technological Risk, Volume II: Case Studies’ (European Science and Technology Observatory, 2001).

80 Brian Wynne, ‘Science and Social Responsibility’ in Jake Ansell and Frank Wharton (eds), Risk: Analysis, Assessment and Management (John Wiley & Sons, Chichester, 1992) 142.

81 Funtowicz, Silvio O and Ravetz, Jerome R, ‘Science for the Post-Normal Age’ (1993) 25Futures 740Google Scholar.

82 Silvio Funtowicz and Jerome Ravetz, ‘Three Types of Risk Assessment and the Emergence of Post-Normal Science’ in Sheldon Krimsky and Dominic Golding (eds), Social Theories of Risk (Praeger Publishers, Westport, CT, 1992) 253.

83 Funtowicz and Ravetz (n 81) 744.

84 ibid.

85 ibid 745–7.

86 ibid 749.

87 Funtowicz, and Ravetz, (n 82) 253–4. The notion of trans-science draws on the work of Alvin Weinberg, ‘Science and Trans-Science’ (1972) 10 Minerva 209Google Scholar.

88 Funtowicz and Ravetz, ibid 254. See also the concept of ‘border work’ developed by Horlick-Jones and Sime (n 77) 445.

89 Funtowicz and Ravetz, ibid 273.

90 Stirling, Andrew, ‘Risk at a Turning Point?’ (1999) 1 J Environ Med 1193.0.CO;2-K>CrossRefGoogle Scholar.

91 For a similar classification see Wynne, Brian, ‘Uncertainty and Environmental Learning: Reconceiving Science and Policy in the Preventative Paradigm’ (1992) 2 Global Environ Change 111CrossRefGoogle Scholar.

92 Andrew Stirling, ‘Risk, Precaution and Science: Towards a More Constructive Policy Debate’ (2007) 8 EMBO Reports 311.

93 Winickoff, David et al. , ‘Adjudicating the GM Food Wars: Science, Risk, and Democracy in World Trade Law’ (2005) 30 YaleJIntlL 81Google Scholar.

94 Incertitude is often employed as a broader term to capture different states of incomplete knowledge including ambiguity, uncertainty and ignorance. However, in this article the term ‘uncertainty’, broadly construed, is preferred as it has been more commonly used in the legal literature and case law.

95 Winickoff et al (n 93). The authors of the article were David Winickoff, Sheila Jasanoff, Brian Wynne, Lawrence Busch and Robin Grove-White.

96 Cass Sunstein describes these situations as ones involving ‘hot’ risks for which normative or cultural commitments play a central role in people's assessments of risk: Sunstein, Cass R, ‘Misfearing: A Reply’ (2006) 119 HarvLRev 1115Google Scholar.

97 For an analysis of the Appellate Body's rulings in this regard see Arcuri, Alessandra, Gruszczynski, Lukasz and Herwig, Alexia, ‘Independence of Experts and Standards for Evaluation of Scientific Evidence under the SPS Agreement – New Directions in the SPS Case Law’ (2010) 2 European Journal of Risk Regulation 183CrossRefGoogle Scholar and Cho (n 6) 302.

98 Continued Suspension, para 590.

99 ibid para 591.

100 ibid para 592.

101 Gruszczynski (n 6) 146.

102 ibid.

103 Daubert v Merrell Dow Pharmaceuticals, 113 S Ct 2786 (1993).

104 Saks, Michael and Faigman, David, ‘Expert Evidence After Daubert’ (2005) 1 Annual Review of Law and Social Science 105CrossRefGoogle Scholar.

105 Frye v. United States, 54 App. D.C. 46, 47, 293 F. 1013, 1014 (1923).

106 Gruszczynski (n 6) 52.

107 WorldTradeLaw.net LLC, Appellate Body Reports: Canada/United States – Continued Suspension of Obligations in the EC – Hormones Dispute (2008) 30.

108 Biosecurity Australia (2006) Final import risk analysis report for apples from New Zealand, Part A, Biosecurity Australia, Canberra.

109 Australia – Measures Affecting the Importation of Apples from New Zealand, Report of the Panel, WT/DS367/R, 9 August 2010, para 7.508, quoting the New Zealand submission.

110 Australia–Apples, para 216.

111 ibid para 225.

112 Continued Suspension, para 591.

113 Australia–Apples, para 224.

114 ibid paras 222–4.

115 ibid para 237.

116 ibid para 241.

117 Gruszczynski, Lukasz, ‘How Deep Should We Go? – Searching for an Appropriate Standard of Review in the SPS Cases’ (2011) 1 European Journal of Risk Regulation 58Google Scholar.

118 Gruszczynski, Lukasz, ‘Science in the Process of Risk Regulation under the WTO Agreement on Sanitary and Phytosanitary Measures’ (2006) 7 German Law Journal 382Google Scholar.

119 Alessandra Arcuri, ‘Food Safety at the WTO after Continued Suspension: a Paradigm Shift?’ in Antonis Antoniadis, Robert Schütze and Eleanor Spaventa (eds), The European Union and Global Emergencies: A Law and Policy Analysis (Hart Publishing, London, 2011) 205.

120 Alessandra Arcuri, ‘Interpreting the Concepts of “Risk Management” and “Insufficiency of Scientific Evidence”: Juggling between the Logics of Different Knowledge-based Groups?’ in Maria-Chiara Malaguti et al (eds), Science and Law – Scientific Evidence in International and European Law (Argo Editore, Rome, 2009) 66.

121 Gregg Bloche, M, ‘WTO Deference to National Health Policy: Toward an Interpretive Principle’ (2002) 5 JIEL 825CrossRefGoogle Scholar.

122 Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Report of the WTO Appellate Body, WT/DS169/AB/R, 11 December 2000, para 164. In the context of article XIV of the General Agreement on Trade in Services, which also includes a necessity test, the Appellate Body indicated in United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Report of the WTO Appellate Body, WT/DS285/AB/R, 7 April 2005 that the weighing and balancing process ‘begins with an assessment of the “relative importance” of the interests or values furthered by the challenged measure’: para 306.

123 European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, Report of the WTO Appellate Body, WT/DS135/AB/R, 12 March 2001 (Asbestos), para 172.

124 Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/R, 12 June 2007 (Report of the Panel), para 7.112; Brazil – Measures Affecting Imports of Retreaded Tyres, Report of the Appellate Body, WT/DS332/AB/R, 3 December 2007 (Retreaded Tyres), para 179.

125 Retreaded Tyres, para 179.

126 Reif, Timothy and Eckert, Julie, ‘Courage You Can't Understand: How to Achieve the Right Balance Between Shaping and Policing Commerce in Disputes Before the World Trade Organization’ (2004) 42 ColumbJTransnatlLaw 689Google Scholar.

127 Consequently Article 5.2 of the SPS Agreement provides that in risk assessment Members shall take into account, inter alia, ‘prevalence of specific diseases and pests; existence of pest- or disease-free areas; relevant ecological and environmental conditions’.

128 Button (n 12) 4.

129 Claims under the GATT were raised by Canada and Argentina but not addressed by the panel in the Biotech case.

130 For a legal audience a useful typology is found in Walker, Vern, ‘The Siren Songs of Science: Toward a Taxonomy of Scientific Uncertainty for Decisionmakers’ (1991) 23 ConnecticutLRev 567Google Scholar.

131 Winickoff et al (n 93) 116.

132 Pauwelyn (n 25).

133 See particularly the Appellate Bodies’ reports in Hormones and Continued Suspension. On the question of the level of scientific uncertainty (or insufficiency of the scientific evidence in the terminology of the SPS Agreement), the Appellate Body in Continued Suspension demonstrated how this concept can be understood as a spectrum running from well-settled scientific theories to situations where new theories generate a ‘paradigm shift’ in prevalent scientific thinking: para 703.

134 This evidence amounted to hundreds of pages in the Biotech case: see para 739 and Annexes H–J.

135 This is a somewhat familiar analysis given the requirements of Article 5.5 of the SPS Agreement. For a note of caution with respect to the comparability of risk situations see Atik, Jeffery, ‘The Weakest Link: Demonstrating the Inconsistency of “Appropriate Levels of Protection” in Australia–Salmon' (2004) 24 Risk Analysis 483CrossRefGoogle Scholar.

136 Articles 5.5 (requiring consistency in the treatment of similar risk situations) and Article 5.6 (requiring that SPS measures adopted to achieve a Member's ALOP are not more trade-restrictive than required) could provide the legal underpinning for such an approach.

137 See further, Fraiberg, Jeremy D and Trebilcock, Michael J, ‘Risk Regulation: Technocratic and Democratic Tools for Regulatory Reform’ (1998) 43 McGillLJ 835Google Scholar.

138 Scope for such measures is offered by Article 5.7 of the SPS Agreement.

139 Foster (n 26) 16–17.

140 Peel (n 58).

141 United States – Standards for Reformulated and Conventional Gasoline, Report of the WTO Appellate Body, WT/DS2/AB/R, 29 April 1996.

142 Pertinent examples include Methanex Corporation v United States of America, NAFTA Chapter 11 Arbitral Tribunal (2005) 44 ILM 1345, Part IIIA, paras 37–40 and Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) (Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, ITLOS Case No 17, 1 February 2011), para 131.

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