EC – Asbestos as Watershed
Some cases attain “landmark” status because they constitute a jurisprudential paradigm shift. Others attain such status because in them a decisor, usually a supreme jurisdiction, renders a definitive, “canonical,” ruling. Sometimes it is both reasons. Sometimes, rarely, it is neither. EC – Asbestos is such a rare case. It may well qualify as a landmark. It has, justifiably, attracted huge attention and, understandably, considerable controversy. Its reasoning, however, is so decidedly non-definitive that it is not, consequently, possible to say whether it represents a veritable paradigm shift or is just a badly reasoned case by the Appellate Body (AB), albeit with a non controversial result.
It is a rare, indeed unique, instance that embedded in the decision itself a Member of the Appellate Body Division which decided the case expresses “substantial doubt” as to the core reasoning of the decision. And although the AB rejected the reasoning, not the final outcome, of the Panel's decision, the doctrinal implications of the rejection are not clear and continue to be contested.
The importance of Asbestos must initially be found in its factual matrix, a French Government Decree of 1966 providing, inter alia, in its first article as follows:
I. – For the purpose of protecting workers, … the manufacture, processing, sale, import, placing on the domestic market and transfer under any title whatsoever of all varieties of asbestos fibres shall be prohibited, regardless of whether these substances have been incorporated into materials, products or devices.
II. – For the purpose of protecting consumers, … the manufacture, import, domestic marketing, exportation, possession for sale, offer, sale and transfer under any title whatsoever of all varieties of asbestos fibres or product containing asbestos fibres shall be prohibited …