Skip to main content
×
×
Home

Commentary on the Appellate Body Report in Australia–Apples (DS367): judicial review in the face of uncertainty

  • SIMON A.B. SCHROPP (a1)
Abstract

To justify certain sanitary and phytosanitary measures vis-à-vis New Zealand apple fruit, Australian authorities performed an import risk assessment that was riddled with scientific uncertainty. The quality and reliability of this assessment was the central bone of contention between the parties in the Australia–Apples dispute. In consequence, it featured prominently in the Appellate Body's discussion. In commenting on the Appellate Body Report, we are concerned with the standard of review of Members' decisions that are taken in situations of factual uncertainty. We discuss the elements in a Member's risk assessment that, in our view, should be considered ‘off limits’ for review by Panels if such assessment was performed in the presence of uncertain scientific facts, and how high degrees of uncertainty affect a Panel's ability to assess alleged less-trade-restrictive alternatives. Relying on findings from the disciplines of economics, decision analysis, and risk management, we introduce a basic framework for decisionmaking in conditions of uncertainty. We submit that certain types of decisions taken by the risk assessor cannot be subject to external review, since they necessarily contain subjective trade-offs on the part of the risk assessor. Applying our theoretical insights to the Apples case, we offer a series of recommendations concerning Panels' discretion to review Members' risk assessments and suggest concrete modifications to the standard of review currently applied by the Appellate Body.

    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      Commentary on the Appellate Body Report in Australia–Apples (DS367): judicial review in the face of uncertainty
      Available formats
      ×
      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

      Commentary on the Appellate Body Report in Australia–Apples (DS367): judicial review in the face of uncertainty
      Available formats
      ×
      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

      Commentary on the Appellate Body Report in Australia–Apples (DS367): judicial review in the face of uncertainty
      Available formats
      ×
Copyright
Corresponding author
*Email: sschropp@sidley.com
References
Hide All
AQIS (2011), ‘Draft Report for the Non-Regulated Analysis of Existing Policy for Apples from New Zealand’, available at http://www.daff.gov.au/__data/assets/pdf_file/0010/1906507/Draft_report_NZ_apples_May_2011.pdf (last visited 14 December 2011).
Arrow, Kenneth J. (1963), Social Choice and Individual Values, 2nd edn, New Haven, CT: Yale University Press.
Arrow, Kenneth J. (1974), The Limits of Organization, New York, NY: W.W. Norton & Co.
Bernstein, Peter L. (1996), Against the Gods: The Remarkable Story of Risk, New York, NY: John Wiley & Sons.
Biosecurity Australia (2006), ‘Final Import Risk Analysis Report for Apples from New Zealand’, available at http://www.daff.gov.au/ba/ira/final-plant/apples-nz (last visited 15 December 2011).
Bohanes, Jan and Lockhart, Nicolas (2009), ‘Standard of Review in WTO Law’, in Bethlehem, Daniel, McRae, Donald, Neufeld, Rodney, and Damme, Isabelle Van (eds.), The Oxford Handbook of International Trade Law, Oxford: Oxford University Press.
European Science and Technology Observatory (May 1999), ‘On Science and Precaution in the Management of Technological Risk, Volume I’, European Science and Technology Observatory, Brussels, Belgium, available at http://ftp.jrc.es/EURdoc/eur19056en.pdf (last visited 14 December 2011).
Gibbons, Robert (1992), A Primer in Game Theory, London: Prentice Hall.
Gruszczynski, Lukasz (2010), ‘The Standard of Review in International SPS Trade Disputes: Some New Developments’, mimeo, available at http://regulation.upf.edu/dublin-10-papers/7F4.pdf (last visited 15 December 2011).
Gruszczynski, Lukasz (2010), Regulating Health and Environmental Risks under WTO Law: A Critical Analysis of the SPS Agreement, Oxford: Oxford University Press.
Holdren, John P. (1982), ‘Energy Hazards: What to Measure, What to Compare’, Technology Review, 85(3): 3238, 7475.
Klinke, Andreas and Renn, Ortwin (2002), ‘A New Approach to Risk Evaluation and Management: Risk-Based, Precaution-Based, and Discourse-Based Strategies’, Risk Analysis, 22(6): 10711094.
Knight, Frank H. (1921), Risk, Uncertainty and Profit, Boston, MA: Houghton Mifflin.
Kolsky Lewis, Meredith (2011), ‘Australians Get Their First Taste of New Zealand Apples in Ninety Years’, ASIL Insights, 15(25), available at http://www.asil.org/pdfs/insights/insight110912.pdf (last visited 14 December 2011).
Krimsky, Sheldon (1997), ‘Biotechnology Safety: Enabling the Safe Use of Biotechnology: Principles and Practice and Appropriate Oversight for Plants with Inherited Traits for Resistance to Pests’, Environment, 39(5): 2730.
Luce, R. Duncan and Raiffa, Howard (1957), ‘An Axiomatic Treatment of Utility’, in Luce, R.D. and Raiffa, H., Games and Decisions: Introduction and Critical Survey, New York, NY: John Wiley & Sons, Chapter 2.5.
Mercurio, Bryan Christopher and Shao, Dianna (2010), ‘A Precautionary Approach to Decision Making: The Evolving Jurisprudence on Article 5.7 of the SPS Agreement’, Trade, Law and Development, 2(2): 195223.
O'Riordan, Timothy and Cameron, James (eds.) (1994), Interpreting the Precautionary Principle, London, UK: Earthscan.
O'Riordan, Timothy and Jordan, Andrew (1995), ‘The Precautionary Principle, Science, Politics and Ethics’, CSERGE Working Paper PA 95–02.
Prévost, Denise (2005), ‘What Role for the Precautionary Principle in WTO Law after Japan–Apples?’, EcoLomic Policy and Law: Journal of Trade & Environment Studies, 2(4): 114.
Renn, Ortwin and Klinke, Andreas (November 2001), ‘Risk Evaluation and Risk Management for Institutional and Regulatory Policy’, in European Science and Technology Observatory ‘On Science and Precaution in the Management of Technological Risk, Volume II’, Brussels, Belgium: European Science and Technology Observatory, pp. 1135, available at http://ftp.jrc.es/EURdoc/eur19056IIen.pdf (last visited 15 December 2011).
Rosenberg, Nathan (1996), ‘Uncertainty and Technological Change’, in Landau, Ralph, Taylor, Timothy, and Wright, Gavin (eds.), The Mosaic of Economic Growth, Stanford, CA: Stanford University Press, pp. 334356.
Royal Society (2002), ‘Genetically Modified Plants for Food Use and Human Health – an Update’, Royal Society, London, available at http://royalsociety.org/uploadedFiles/Royal_Society_Content/policy/publications/2002/9960.pdf (last visited 15 December 2011).
Salanié, Bernard (1997), The Economics of Contracts: A Primer, Cambridge, MA: MIT Press.
Scott, Joanne (2007), The WTO Agreement on Sanitary and Phytosanitary Measures: A Commentary, Oxford, UK: Oxford University Press.
Stirling, Andrew (November 2001), ‘On “Precautionary” and “Science Based” Approaches to Risk Assessment and Environmental Appraisal’, in European Science and Technology Observatory ‘On Science and Precaution in the Management of Technological Risk, Volume II’, Brussels, Belgium: European Science and Technology Observatory, pp. 3693, available at http://ftp.jrc.es/EURdoc/eur19056IIen.pdf (last visited 15 December 2011).
Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

World Trade Review
  • ISSN: 1474-7456
  • EISSN: 1475-3138
  • URL: /core/journals/world-trade-review
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Metrics

Full text views

Total number of HTML views: 1
Total number of PDF views: 47 *
Loading metrics...

Abstract views

Total abstract views: 418 *
Loading metrics...

* Views captured on Cambridge Core between September 2016 - 26th April 2018. This data will be updated every 24 hours.