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How Deep Should We Go? – Searching for an Appropriate Standard of Review in the SPS Cases

Published online by Cambridge University Press:  20 January 2017

Lukasz Gruszczynski
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Extract

Although the applicable standard of review under Articles 2.2/5.1 of the SPS Agreement is not de novo, an investigation of the WTO panel remains intrusive in terms of objectivity and coherence of risk assessment. Moreover, the panel's review does not end with a final conclusion reached by the WTO Member in the risk assessment. It also extends to the quality of the reasoning and the intermediate interferences that led to the conclusion. If a WTO Member exercises expert judgment in its risk assessment, this needs to be sufficiently transparent and well documented (author's headnote).

The obligations of Article 5.1 and 5.6 are distinctive and independent from each other. Therefore, a violation of the first provision does not imply infringement of the latter one (author's headnote).

Type
Case Notes
Information
European Journal of Risk Regulation , Volume 2 , Issue 1 , March 2011 , pp. 111 - 114
Copyright
Copyright © Cambridge University Press 2011

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References

1 Australia – Measures Affecting the Importation of Apples from New Zealand, WT/DS367/AB/R, 29 November 2010 (adopted on 17 December 2010).

2 Panel Report, Australia – Measures Affecting Importation of Apples from New Zealand, WT/DS367/R, 9 August 2010 (adopted on 17 December 2010 as modified by the Appellate Body Report).

3 For more detailed description of facts of the dispute, inlcuding specific claims made by New Zealand and legal determinations made by the panel, see A. Arcuri, L. Gruszczynski and A. Herwig, Risky Apples Again? Australia – Measures Affecting the Importation of Apples from New Zealand, 4 European Journal of Risk Regulation (2010), pp. 437–443.

4 Appellate Body Report, Australia – Apples, paras. 212–13.

5 Ibidem, para. 215.

6 Ibidem, para. 231.

7 Ibidem, para. 230.

8 Ibidem, para. 248.

9 Ibidem, para. 244.

10 Ibidem, para. 247.

11 Ibidem, paras. 259–60.

12 Ibidem, para. 354 (in particular, the panel was required to “establish that the importing Member has, in its risk assessment, overestimated the risk associated with the imported product or has erred in concluding that SPS measures are necessary at all”).

13 Cf. Panel Report, Australia – Apples, para. 7.1144.

14 Appellate Body Report, Australia – Apples, para. 354.

15 Ibidem, para. 341.

16 Ibidem, paras. 385 and 402.

17 Annex C(1)(a) provides that “Members shall ensure, with respect to any procedure to check and ensure the fulfilment of sanitary or phytosanitary measures, that: (a) such procedures are undertaken and completed without undue delay and in no less favourable manner for imported products than for like domestic products.”

18 Article 8 provides that “Members shall observe the provisions of Annex C in the operation of control, inspection and approval procedures, including national systems for approving the use of additives or for establishing tolerances for contaminants in foods, beverages or feedstuffs, and otherwise ensure that their procedures are not inconsistent with the provisions of this Agreement.”

19 Appellate Body Report, Australia – Apples, para. 441.

20 Appellate Body Report, United States – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/AB/R (adopted 14 November 2008).

21 For the extensive discussion on the drawbacks of such an approach, see Gruszczynski, Lukasz, Regulating Health and Environmentl Risks under WTO Law. A Critical Analysis of the SPS Agreement (Oxford: Oxford University Press, 2010), pp. 139–46Google Scholar.

22 Appellate Body Report, Australia – Apples, para. 591.

23 The Appellate Body noted, for example, that panel's role is limited when “reviewing whether the scientific basis constitutes ‘legitimate science according to the standards of the relevant scientific community’” (Ibidem, para. 215).

24 Button, Catherine, Power to Protect. Trade, Health and World Trade Organization, (Oxford and Portland: Hart Publishing, 2004), p. 186Google Scholar (if a reviewing body goes into details of underlying methodology its task is not so different from the body that reviews substance of evidence, the only difference is that a body would concentrate on methodological issues rather than substantive).

25 As noted by the Appellate Body in reality “it is not possible to review the ultimate conclusions reached by the risk assessor in isolation from the reasoning and the intermediate conclusions that lead up to them” (Appellate Body, Australia – Apples, para. 226).