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Independence of Experts and Standards for Evaluation of Scientific Evidence under the SPS Agreement – New Directions in the SPS Case Law

Published online by Cambridge University Press:  20 January 2017

Alessandra Arcuri ,
Lukasz Gruszczynski  and
Alexia Herwig
Alessandra Arcuri
Affiliation:
Erasmus School of Law, Erasmus University Rotterdam
Lukasz Gruszczynski
Affiliation:
Institute of Legal Studies, Polish Academy of Sciences
Alexia Herwig
Affiliation:
Centre for Law and Cosmopolitan Values, and University of Antwerp
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Abstract

Under Section II of the Rules of Conduct for the DSU, the institutional affiliation of experts may be considered as an element that casts doubts on their impartiality and independence. Under Articles 5.1 and 5.7 of the SPS Agreement, the level of protection that a particular country is ready to tolerate may inform risk assessment and have an impact on the determination of insufficiency of scientific evidence. In a situation in which there is sufficient scientific evidence for performance of risk assessment in one of the international standard setting-organizations, one may still find insufficiency as provided by Article 5.7 if new data puts into question the relationship between the relevant scientific evidence and the conclusions in relation to risk, thereby not permitting the performance of a sufficiently objective assessment of risk (authors’ headnote).

Type
Case Notes
Information
European Journal of Risk Regulation , Volume 1 , Issue 2 , June 2010 , pp. 183 - 188
Copyright
Copyright © Cambridge University Press 2010

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References

1 United States – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/AB/R and Canada – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS321/AB/R, 16 October 2008 (both adopted 14 November 2008).

2 Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes (WT/DSB/RC1), Section II (Governing Principle).

3 Agreement on the Application of Sanitary and Phytosanitary Measures, 1867 U.N.T.S. 493, Articles 5.1 and 5.7.

4 Rules of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes (WT/DSB/RC1).

5 AB Reports, US & Canada – Continued Suspension, para. 433 (quoting AB Report, Chile – Price Band System, para. 176).

6 Idem, para. 482.

7 Panel Report, US – Continued Suspension, para. 6.22; Panel Report, Canada – Continued Suspension, para. 6.21.

8 AB Reports, US & Canada – Continued Suspension, para. 481.

9 European Communities’ appellant's submission, para. 203.

10 AB Reports, US & Canada – Continued Suspension, para. 455.

11 Idem, paras. 456–84.

12 Idem, para. 459.

13 Idem, para. 461.

14 Idem, paras. 466–67.

15 Idem, paras. 462–65.

16 Annex A(5) of the SPS Agreement.

17 Article 5.5 of the SPS Agreement prohibits arbitrary or unjustifiable distinctions in ALOPs in different but comparable situations if they result in discrimination or a disguised restriction on international trade.

18 AB Reports, US & Canada – Continued Suspension, para. 523.

19 Compare, Panel Report, US – Continued Suspension, para. 7.607; Panel Report, Canada – Continued Suspension, para. 7.585.

20 Panel Report, US – Continued Suspension, para. 7.611; Panel Report, Canada – Continued Suspension, para. 7.589.

21 Panel Report, US – Continued Suspension, para. 7.612; Panel Report, Canada – Continued Suspension, para. 7.590.

22 AB Reports, US & Canada – Continued Suspension, para. 685.

23 Idem, para. 534.

24 Idem, para. 685.

25 Panel Report, US – Continued Suspension, para. 7.644; Panel Report, Canada – Continued Suspension, para. 7.622.

26 Panel Report, US – Continued Suspension, para. 7.813; Panel Report, Canada – Continued Suspension, para. 7.799.

27 Panel Report, US – Continued Suspension, para. 7.648; Panel Report, Canada – Continued Suspension, para. 7.626.

28 Idem.

29 AB Reports, US & Canada – Continued Suspension, para. 677.

30 Idem, paras. 694–5.

31 Idem, para. 695.

32 Idem, paras. 705–6.

33 Idem, paras. 703, 706.

34 Idem, para. 703.

35 Idem, para. 708.

36 Cho, S., “United States: Continued Suspension of Obligations in the EC-Hormones Dispute. WT/DS320/AB/R”, 103 The American Journal of International Law, 2009, pp. 299, 302CrossRefGoogle Scholar.

37 Panel Report, US – Continued Suspension, para. 6.22; Panel Report, Canada – Continued Suspension, para. 6.21.

38 Jasanoff, S., “Just Evidence: The Limits of Science in the Legal Process”, Journal of Law, Medicine and Ethics, 2006, pp. 328, 339CrossRefGoogle Scholar.

39 A particular determination of a risk assessor, irrespectively from the impact that the ALOP may have on it, needs to be defendable on valid methodological grounds.

40 Article 2.1 gives members the right to take sanitary and phytosanitary measures necessary for the protection of human, animal or plant life or health, provided that such measures are not inconsistent with the provisions of this Agreement. The preamble affirms that no member should be prevented from adopting or enforcing measures necessary to the protection of human, animal or plant life or health and expresses the desire to improve the protection of these in all members.