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Worth Shopping Around? Defending Regulatory Autonomy under the SPS and TBT Agreements

Published online by Cambridge University Press:  30 March 2015

CHRIS DOWNES*
Affiliation:
The European Consulting Company (ECCO)

Abstract

With its stringent requirements for scientific evidence, the SPS Agreement is commonly considered a greater constraint on WTO Members' regulatory autonomy than the TBT Agreement. It is consequently feared that Members may ‘forum shop’ by reconstructing SPS measures as TBT regulations and hereby circumvent WTO obligations. This article revisits these assumptions in the light of recent TBT jurisprudence and explores the respective challenges of defending policy preferences under the two technical regimes. It argues that in some respects – the characterization of a measure and the chosen level of protection – the SPS Agreement provides a securer basis for Members to defend regulatory choices. While evidential burdens are more explicitly demanding under SPS rules, the challenge of justifying a TBT measure's rationality should not be understated. In light of these reflections, this article concludes that ‘forum shopping’ is an unpromising strategy for protecting controversial SPS measures.

Type
Review Article
Copyright
Copyright © Chris Downes 2015 

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References

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

2 Agreement on Technical Barriers to Trade, opened for signature 15 April 1994, 1868 UNTS 120 (entered into force 1 January 1995).

3 See Echols, M. A., ‘Food Safety Regulation in the European Union and the United States: Different Cultures, Different Laws’, 4 Columbia Journal of European Law (1998) 525Google Scholar.

4 Appellate Body Report, European Communities – EC Measures Concerning Meat and Meat Products, WT/DS26/AB/R and WT/DS48/AB/R, adopted 16 January 1998 (EC–Hormones), para. 214.

5 See, for example, Bohanes, J., ‘Risk Regulation in WTO Law: A Procedure-Based Approach to the Precautionary Principle’, 40 Columbia Journal of Transnational Law (2002) 323Google Scholar; Silverglade, B. A., ‘The WTO Agreement on Sanitary and Phytosanitary Measures: Weakening Food Safety Regulations to Facilitate Trade?’, 55 Food and Drug Law Journal (2000) 517Google ScholarPubMed; Carter, M. D., ‘Selling Science under the SPS Agreement: Accommodating Consumer Preference in the Growth Hormones Controversy’, 6 Minnesota Journal of Global Trade (1997) 625Google Scholar; Wallach, L. M., ‘Accountable Governance in the Era of Globalization: The WTO, NAFTA, and International Harmonization of Standards’, 50 University of Kansas Law Review (2002) 823Google Scholar; Skogstad, G., ‘Internationalization, Democracy, and Food Safety Measures: The (Il)Legitimacy of Consumer Preferences’, 7 Global Governance (2001) 293Google Scholar.

6 See Winickoff, D. et al. , ‘Adjudicating the GM Food Wars: Science, Risk, and Democracy in World Trade Law’, 30 Yale Journal of International Law (2005) 81Google Scholar; Walker, V. R., ‘The Myth of Science as a “Neutral Arbiter” for Triggering Precautions’, 26 Boston College International and Comparative Law Review (2003) 197Google Scholar; Scherzberg, A., ‘EU–US Trade Disputes about Risk Regulation: The Case of Genetically Modified Organisms’, 19 Cambridge Review of International Affairs (2006) 121CrossRefGoogle Scholar; Goh, G., ‘Tipping the Apple Cart: The Limits of Science and Law in the SPS Agreement after JapanApples’, 40 Journal of World Trade (2006) 655Google Scholar; J. Peel, ‘Risk Regulation under the WTO SPS Agreement: Science as an International Normative Yardstick?’ (Jean Monnet Working Paper 02/04 95), centers.law.nyu.edu/jeanmonnet/papers/04/040201.pdf; Scott, J., ‘On Kith and Kine (and Crustaceans): Trade and Environment in the EU and WTO’, in Weiler, J. H. H. (ed.), The EU, the WTO and the NAFTA: Towards a Common Law of International Trade (Oxford University Press, 2000)Google Scholar, at 157.

7 See Section 1 infra.

8 ‘Regulatory autonomy’ in this article is understood, as defined by Du, to encapsulate two concerns: domestic measures should reflect local cultural preferences and these preferences should be respected, even when having a negative impact on trade. Du, M. M., ‘Domestic Regulatory Autonomy under the TBT Agreement: From Non-Discrimination to Harmonization’, 6 Chinese Journal of International Law (2007) 269Google Scholar, at 274.

9 See reflections by S. Cho, ‘The EU's New GMO Compromise: Scientific v. “Non-scientific” Grounds’, International Economic Law and Policy Blog, http://worldtradelaw.typepad.com (30 May 2014). These expectations are also perplexing given the absence of any obvious normative explanation for granting Members greater regulatory autonomy for TBT measures.

10 United States – Measures Affecting the Production and Sale of Clove Cigarettes (WT/DS406); United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (WT/DS381); United States – Certain Country of Origin Labelling Requirements (WT/DS384, WT/DS386); European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (WT/DS400, WT/DS401).

11 See Request for Consultations by the United States, European Communities-Certain Measures Affecting Poultry Meat and Poultry Meat Products from the United States, WT/DS389/1, G/SPS/GEN/894, G/AG/GEN/81, G/TBT/D/35, G/L/881 (20 January 2009).

12 Van Den Bossche, P., The Law and Policy of the World Trade Organization: Text, Cases and Materials (Cambridge University Press, 2008)CrossRefGoogle Scholar, at 840. See also, Marceau, G. and Trachtman, J. P., ‘The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement Tariffs and Trade – A Map of the World Trade Organization Law of Domestic Regulation of Goods’, 36 Journal of World Trade (2002) 811CrossRefGoogle Scholar, at 863.

13 Gruszczynski, L., Regulating Health and Environmental Risks under WTO Law: A Critical Analysis of the SPS Agreement (Oxford University Press, 2010)CrossRefGoogle Scholar, at 64.

14 Akech, J. M. M., ‘Developing Countries at Crossroads: Aid, Public Participation, and the Regulation of Trade in Genetically Modified Foods’, 29 Fordham International Law Journal (2006) 265Google Scholar, at 281; Thomison, A., ‘A New and Controversial Mandate of the SPS Agreement: The WTO Panel's Interim Report on the ECBiotech Dispute’, 32 Columbia Journal Environmental Law (2007) 287Google Scholar, at 297.

15 Condon, B. J. and Sinha, T., ‘The Effectiveness of Pandemic Preparations: Legal Lessons from the 2009 Influenza Epidemic’, 22 Florida Journal of International Law (2010) 1Google Scholar, at 27.

16 Peel, J., ‘A GMO by Any Other Name … Might be an SPS Risk!: Implications of Expanding the Scope of the WTO Sanitary and Phytosanitary Measures Agreement’, 17 European Journal of International Law (2006) 1009CrossRefGoogle Scholar, at 1019.

17 Lone voices in questioning these assumptions are Bronckers, M. and Soopramanien, R., ‘The Impact of WTO Law and European Food Regulation’, 3 European Food and Feed Law Review (2008) 361Google Scholar, at 365–369 (suggesting that the absence of less explicit scientific demands under the TBT Agreement should not be interpreted to imply less exacting standards).

18 Pollack, M. A. and Schaffer, G. C., When Co-Operation Fails: The International Law and Politics of Genetically Modified Foods (Oxford University Press, 2009)CrossRefGoogle Scholar, at 189. This view is shared by Peel, ‘A GMO by Any Other Name …’, supra note 16, at 1019.

19 SPS Agreement, Article 2.2.

20 SPS Agreement, Article 5.1.

21 Wilson, N. L., ‘Clarifying the Alphabet Soup of the TBT in the SPS and the WTO’, 8 Drake Journal of Agricultural Law (2003) 703Google Scholar, at 722. See also Gruszczynski, Regulating Health and Environmental Risks under WTO Law, supra note 13, at 58; Kysar, D., ‘Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice’, 118 Harvard Law Review (2004) 525CrossRefGoogle Scholar, at 566; Barton, J. H. et al. , The Evolution of the Trade Regime (Princeton University Press, 2006)Google Scholar, at 138.

22 See Prevost, D. and Van den Bossche, P., ‘The Agreement on the Application of Sanitary and Phytosanitary Measures’, in Macrory, P. F. J., Appleton, A. E., and Plummer, M. G. (eds.), The World Trade Organization: Legal, Economic and Political Analysis (Springer, 2005)Google Scholar (claiming ‘[i]t is clear, therefore, that it would be to the advantage of complaining Member to challenge a measure under the SPS Agreement rather than the TBT Agreement’).

23 Pollack and Schaffer, When Co-Operation Fails, supra note 18, at 189.

24 Alemanno, A., Trade in Food: Regulatory and Judicial Approaches in the EC and the WTO (Cameron May, 2007)Google Scholar, at 312. See also Ahn, D., ‘Comparative Analysis of the SPS and TBT Agreements’, 8 International Trade Law Review (2002) 85Google Scholar, at 94 (stating that ‘compared to the TBT Agreement, less discretionary obligations under the SPS Agreement are considered generally more amenable to adjudication’); P. Van Den Bossche, The Law and Policy of the World Trade Organization, supra note 12, at 840 (arguing that ‘[a]s the rules of the SPS Agreement are in some respects stricter than those of the TBT Agreement, it could be to the advantage of complaining Member to challenge a measure under the SPS Agreement rather than the TBT Agreement’).

25 Gruszczynski, Regulating Health and Environmental Risks under WTO Law, supra note 13, at 64. See also Shaffer, G., ‘A Structural Theory of WTO Dispute Settlement: Why Institutional Choice Lies at the Centre of the GMO Case’, 41 New York University Journal of International Law and Policy (2008) 1Google Scholar, at 10. See also Schramm, D., ‘The Race to Geneva: Resisting the Gravitational Pull of the WTO in the GM Labelling Controversy’, 9 Vermont Journal of Environmental Law (2007) 93CrossRefGoogle Scholar, at 119 (claiming that EU GMO measures that would be ‘better insulated from a potentially adverse WTO ruling … [were they to] clearly state that the regulation serves non-SPS purposes’.

26 The term ‘forum shopping’, as used by others, will be employed here although ‘treaty shopping’ may, strictly speaking, be more appropriate, given that the former more commonly refers to conflicts in jurisdiction rather than potentially overlapping obligations emanating from the same body. See generally, Pauwelyn, J. and Salles, L. E., ‘Forum Shopping before International Tribunals: (Real) Concerns and (Im)possible Solutions’, 42 Cornell International Law Journal (2009) 77Google Scholar.

27 Panel Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/R, adopted 2 September 2011 (US–Clove Cigarettes), para. 7.342; Panel Report, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R, adopted 15 September 2011 (US–Tuna II), para. 7.407.

28 See Marceau and Trachtman, ‘The Technical Barriers to Trade Agreement’, supra note 12, at 877.

29 Panel Report, EC – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS/291/R, WT/DS/292/R, WT/DS/293/R, adopted 26 September 2006 (EC–Biotech), para. 7.159.

30 Ibid., para. 7.165.

Ibid

31 Having established that a Member should not be prevented from presenting a dual SPS and non-SPS measure in a single ‘requirement’ (ibid., para. 7.171), the Panel proceeded to interpret the scope of the SPS Agreement in a way that captured these non-SPS objectives.

32 It is worth noting that other considerations beyond fear of a potential WTO challenge may inspire forum shopping. Given the obligations to notify measures under the SPS and TBT Agreements, a Member may consider that a measure will be more favourably received in the TBT context. It can be speculated, for example, that this was the intention of the European Commission in its notification of novel food-related measures to the TBT Committee. See Downes, C., The Impact of WTO SPS Law on EU Food Regulations (Springer, 2014)CrossRefGoogle Scholar, at 134–135.

33 See supra note 25 and related text.

34 The well-publicized disagreement between the EU and US on growth hormones was undoubtedly instrumental in instigating a specific approach to agricultural products. See Wirth, D. A., ‘The Role of Science in the Uruguay Round and NAFTA Trade Disciplines’, 27 Cornell International Law Journal (1994) 817Google Scholar.

35 However, note that this prospect is disturbing one for some. See Cho, ‘The EU's New GMO Compromise’, supra note 9.

36 On the potential for WTO disciplines to enhance ‘deliberative democracy’, see Howse, R., ‘Democracy, Science, and Free Trade: Risk Regulation on Trial at the World Trade Organization’, 98 Michigan Law Review (2000) 2329CrossRefGoogle Scholar.

37 For an analysis of the impact of WTO rules on regulatory developments, see the case study on novel foods in Downes, The Impact of WTO SPS Law’, supra note 32, at Chapter 5.

38 See Request for Consultations by the United States, supra note 11. The Panel in this case has been established but not yet composed. For further background to this dispute, see R. Johnson, ‘US–EU Poultry Dispute on the Use of Pathogen Reduction Treatments’, US Congressional Research Service (19 November 2012), http://fas.org/sgp/crs/misc/R40199.pdf.

39 Regulation (EC) 853/2004 of the European Parliament and of the Council laying down specific hygiene rules for food of animal origin [2004] OJ L139/55.

40 Euractiv, ‘Outrage at plans to lift “chlorine chicken” ban (29 May 2008)’, http://www.euractiv.com/food/outrage-plans-lift-chlorine-chicken-ban/article-172810.

41 European Parliament, ‘Resolution on Authorization of Chlorinated Chicken’ (B6-0309/2008, 19 June 2008), point 4.

42 See EFSA, ‘Scientific Opinion of the Panel on Biological Hazards, Assessment of the Possible Effect of the Four Antimicrobial Treatment Substances on the Emergence of Antimicrobial Resistance’, 659 EFSA Journal (2008) 1Google Scholar and EFSA Scientific Committee on Health and Environmental Risks and Scientific Committee on Emerging and Newly Identified Health Risks, ‘Environmental impact and effect on antimicrobial resistance of four substances used for the removal of microbial surface contamination of poultry carcasses’ (adopted on 12 March and 2 April 2008 by the respective Committees), ec.europa.eu/health/archive/ph_risk/committees/04_scenihr/docs/scenihr_o_015.pdf.

43 European Commission, ‘Proposal for a Council Regulation implementing Regulation (EC) No. 853/2004 as regards the use of antimicrobial substances to remove surface contamination from poultry carcasses’ (COM(2008) 430 final).

44 Council Decision 2009/121/EC of 18 December 2008 rejecting the proposal from the Commission for a Council Regulation implementing Regulation (EC) No 853/2004 of the European Parliament and of the Council as regards the use of antimicrobial substances to remove surface contamination from poultry carcasses.

45 European Parliament resolution of 19 June 2008 on imports of poultry carcasses [2009] OJ C 286 E/30, recital H.

46 There is at least arguably little to lose in the short term in adopting such a two-pronged SPS and TBT strategy. Of course, if WTO Members were to systematically adopt a TBT-based strategy to avoid SPS obligations in the manner anticipated by Gruszczynski, Regulating Health and Environmental Risks, supra note 13 (see also supra note 25 and related text), tit-for-tat reprisals that are counter-productive for all WTO Members could ensue.

47 Pollack and Shaffer, When Co-Operation Fails, supra note 18, at 189.

48 The AB emphasized the similarity of the legitimate objectives in a GATT and TBT context in EC–Seal Products by pointing out that the EU had not provided an example of a TBT legitimate objective that would not fall under GATT Article XX. Appellate Body Report, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R, WT/DS401/AB/R, adopted 22 May 2014 (EC–Seal Products), para. 5.128.

49 Appellate Body Report, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, adopted 16 May 2012 (US–Tuna II), para. 313.

50 Ibid.

Ibid

51 Appellate Body Report, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/AB/R, WT/DS386/AB/R, adopted 29 June 2012 (US–COOL), para. 435.

52 Ibid., para. 445 (emphasis added).

Ibid

53 The Panel in US–COOL was criticized for reversing the burden of proof in demanding that the US provide proof that consumers require the information generated by the measure. US–COOL (AB), ibid., para. 449.

54 For example, in US–COOL (AB), Canada would have had the distinctly difficult task of providing evidence that provision of information did not help prevent deceptive practices.

55 Andenas, M. and Zleptnig, S., ‘Proportionality: WTO Law: In Comparative Perspective’, 42 Texas International Law Journal (2007) 371Google Scholar, at 422.

56 See Marceau, G., ‘The New TBT Jurisprudence in US–Clove Cigarettes, WTO US–Tuna II, and US–COOL’, 8 Asian Journal of WTO & International Health Law & Policy (2013) 1Google Scholar, at 17.

57 Demonstration that a measure does not serve to, for example, protect human life or health in accordance with the definitions set out in Annex A of the SPS Agreement would require a refutation of the public health risk, in essence, an exercise in challenging the measure's scientific basis. The more logical strategy for a complainant in such a scenario would be to accept its SPS characterization and use such evidence to prove scientific inadequacy under SPS Articles 2.2 and 5.

58 US–Tuna II (AB), para. 314; EC–Seal Products (AB), para. 5.114. Indeed, in US–COOL, the AB roundly criticized the Panel's decision in the first instance to accept the objective as identified by the United States. See US–COOL (AB), paras. 371 and 384.

59 US–Tuna II (AB), para. 314. See also US–COOL (AB), para. 371.

60 US–COOL (AB), respectively paras. 410 (drawing this distinction between the objectives) and 479 (where the secondary objective is no longer considered).

61 As Marceau notes, in recent TBT jurisprudence, ‘the Panel appeared to accord a certain degree of deference to the implementing Member's formulation of the objective of the technical regulation’. Marceau, ‘The New TBT Jurisprudence’, supra note 56, at 15. Mavroidis and Saggi put it somewhat stronger, arguing that panels are ‘typically… deferential’. Mavroidis, P. C. and Saggi, K., ‘What Is Not so Cool about US–COOL Regulations’, 13 World Trade Review (2014) 299CrossRefGoogle Scholar, at 303.

62 It is noted that ‘level of protection’ may not be the appropriate term to reflect regulatory ambition for all TBT legitimate objectives, but is frequently used as shorthand in this article.

63 See Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/, adopted 12 March 2001 (EC–Asbestos), para. 168.

64 Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R, adopted 3 December 2007 (Brazil–Retreaded Tyres), para. 210. In the TBT context, this right is rather one that must be counterbalanced against other obligations to avoid creating trade obstacles. Appellate Body Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/AB/R, adopted 4 April 2012 (US–Clove Cigarettes), paras. 95–96.

65 European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, Appellee Submission by the European Union’ (11 February 2014), para. 159.

66 R. Howse, J. Langille, and K. Sykes, ‘Written Submission of Non-Party Amici Curiae: European Communities – Measures Prohibiting the Importation and Marketing of Seal Products’ (EC–Seal Products Amici Brief) (17 March 2014), para. 74.

67 Du, M. M., ‘Autonomy in Setting Appropriate Level of Protection under WTO Law: Rhetoric or Reality?’, 13 Journal of International Economic Law (2010) 1077Google Scholar, at 1096–1101.

68 In addition to the preamble, this term is referred to in Articles 4, 5, 9, 10, 12, Annexes A and B.

69 Appellate Body Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/AB/R, adopted 20 October 1998 (Australia–Salmon), para. 203.

70 Ibid., para. 199.

Ibid

71 Ibid., para. 204.

Ibid

72 Ibid., para. 203. One possible limitation to the freedom permitted to a WTO Member to determine its level of protection is SPS Article 5.5, which requires consistency across regulatory measures. However, in that a Member's choice of level of protection in a given situation is restricted only to the extent that this choice must not be ‘arbitrary or unjustifiable’, this does not ‘seem to unreasonably constrain the Member's autonomy in setting their [appropriate level of protection]. Du, ‘Autonomy in Setting Appropriate Level of Protection under WTO Law’, supra note 67, 1087.

Ibid

73 Australia–Salmon (AB), para. 206.

74 Ibid., para. 207.

Ibid

75 Du, ‘Autonomy in Setting Appropriate Level of Protection under WTO Law’, supra note 67, at 1102.

76 US–COOL (AB), para. 221.

77 Ibid., para. 389 and footnote 776.

Ibid

78 US–Tuna II (AB), para. 315.

79 Ibid., para. 317.

Ibid

80 Ibid., para. 316.

Ibid

81 This interpretation remains slightly speculative as, when turning to the Panel's application of Article 2.2, the AB did not attempt to distinguish the level of protection from the overall objectives identified by the Panel. In that the alternative measures proposed by Mexico were considered to not meet even these general objectives – ‘allow[ing] more tuna harvested in conditions that adversely affect dolphins to be labelled “dolphin-safe”’ – it was arguably considered unnecessary to do so. Ibid., para. 330.

82 US–COOL (AB), para. 388 (emphasis in original).

83 Ibid., para. 390. The AB's assessment considered the US's provision of information objective in the broadest of terms.

Ibid

84 The AB reinforces this point by noting that while members can adopt measures at the level deemed appropriate, ‘[t]his does not, however, require a separate assessment of a desired level of fulfilment’. Ibid., footnote 779.

85 As Howse and Levy note: ‘A Member could choose a high level of protection, but limitations in resources and other legitimate public-policy objectives might not allow it to fully achieve that level of protection.’ Howse, R. and Levy, P. I., ‘The TBT Panels: US–Cloves, US–Tuna, US–COOL’, 12 World Trade Review (2013) 327CrossRefGoogle Scholar, at 369.

86 The Panel viewed the derogations related to products produced through traditional hunting by Inuit communities or to support marine resource management ‘had the effect of diminishing the degree of the measures’ actual contribution’ to the EU's objective. Panel Report, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/R, WP/DS401/R, adopted 25 November, 2013 (EC–Seal Products), ibid., para. 7.460.

87 Ibid, para. 7.466 (concluding that ‘we do not consider that the level of protection actually achieved by the measure is as high as the European Union claims the measure initially aimed to achieve’).

Ibid

88 See supra note 58 and related text.

89 US–Tuna II (AB), para. 314.

90 US–COOL (AB), para. 373.

91 Compare this description of the evidence relevant to the contribution made by the measure (ibid., para. 373) with that relevant to the objective, namely ‘the texts of statutes, legislative history, and other evidence regarding the structure and operation’ of the measure (US–Tuna II (AB), para. 314). It should be recalled that, in a similar way, the level of protection can be determined from the Member's manner of ‘preparing, adopting, and applying the measure’ (at para. 316).

92 Marceau and Trachtman, ‘The Technical Barriers to Trade Agreement’, supra note 12, at 832. See also Desmedt, A., ‘Proportionality in WTO Law’, 4 Journal of International Economic Law (2001) 441CrossRefGoogle Scholar, at 457.

93 Fontanelli, F., ‘Necessity Killed the GATT – Art XX GATT and the Misleading Rhetoric about “Weighing and Balancing”’, 5 European Journal of Legal Studies (2012) 36Google Scholar, at 39. This has alternatively been termed the ‘less restrictive alternative test’, the ‘least-trade-restrictive-alternative-reasonably-available’ test. See respectively, Regan, D. H., ‘The Meaning of “Necessary” in GATT Article XX and GATS Article XXIV: The Myth of Cost-Benefit Balancing’, 6 World Trade Review (2007) 347CrossRefGoogle Scholar, at 351; Bown, C. P. and Trachtman, J. P., ‘Brazil – Measures Affecting Imports of Retreaded Tyres: A Balancing Act’, 8 World Trade Review (2009) 85CrossRefGoogle Scholar, at 87.

94 Marceau and Trachtman rather suggests that ‘[o]n its face [the clause] appears “non-sequacious”’, but it is only so if one presumes that Article 2.2 was intended to be an ‘least trade-restrictive means’ test. As they later note, an element of proportionality, was clearly contemplated during the Uruguay Round negotiations. Marceau, G. and Trachtman, J. P., ‘A Map of the World Trade Organization Law of Domestic Regulation of Goods: The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement Tariffs and Trade’, 48 Journal of World Trade (2014) 351Google Scholar, at 379–80 (citation at 379).

95 Andenas and Zleptnig, ‘Proportionality’, supra note 55, at 390. Analysis predating case law on these provisions tends towards this interpretation. See Desmedt, ‘Proportionality in WTO Law’, supra note 92, at 459–60.

96 US–COOL (AB), para. 133. See also comments by Brazil in US–Tuna II (Panel), para. 5.70 (arguing that ‘for example, if the legitimate objective were the protection of human life and health, then the risks of non-fulfilment would be likely extremely high. If the objectives were different, the risks could be lower’).

97 Indonesia proposed a raft of measures ranging from banning advertising near schools to increasing fines for underage smoking. US–Clove Cigarettes (Panel), para. 7.422.

98 Ibid., para. 7.370.

Ibid

99 Ibid., para. 7.424. The Panel judged that it could not complete this analysis as the mere listing of the alternative measures did not allow determination of whether they met the US's objective to the extent sought by the US.

Ibid

100 US–Tuna II (Panel), para. 7.467.

101 For a discussion on the AB's treatment of ‘the risk that non-fulfilment would create’, see infra note 105 and related text.

102 Those raising questions about the capacity and the legitimacy of a WTO tribunal to balance economic and non-economic factors include, for example, Neumann, J. and Türk, E., ‘Necessity Revisited: Proportionality in World Trade Organization Law after Korea–Beef, EC–Asbestos, and EC–Sardines’, 37 Journal of World Trade (2003) 199Google Scholar, at 232; Howse, R. and Türk, E., ‘The WTO Impact on Internal Regulations – A Case Study of the CanadaEC Asbestos Dispute’, in Bermann, G. A. and Mavroidis, P. C. (eds.), Trade and Human Health and Safety (Kings University Press, 2006)Google Scholar, at 326.

103 See Mavroidis, P. C., ‘Driftin’ Too Far from the Shore – Why the Test for Compliance with the TBT Agreement Developed by the WTO Appellate Body is Wrong, and What Should the AB Have Done Instead’, 12 World Trade Review (2013) 509CrossRefGoogle Scholar, at 525 (arguing that ‘Panels are ill-equipped to rank social preferences which should be decided at state-level’).

104 The considerable discrepancy in the prominence of the level of protection in the SPS and TBT Agreements cannot be too readily dismissed. The Panel's judgement in Sardines that the TBT Agreement ‘accords a degree of deference with respect to the domestic policy objectives which Members wish to pursue’ is perhaps more apposite. See Panel Report, European Communities–Trade Description of Sardines, adopted 29 May 2002, WT/DS231/R, para. 7.210 (emphasis added).

105 US–Tuna II (Panel), para. 7.467; US–Clove Cigarettes (Panel), para. 7.424.

106 Certain commentators fall into the same trap. See, for example, Mitchell, A. D. and Henckels, C., ‘Variations on a Theme: Comparing the Concept of “Necessity” in International Investment Law and WTO Law’, 14 Chicago Journal of International Law (2013) 93Google Scholar, at 144.

107 The AB in US–Tuna II ruled that ‘a complainant may also seek to identify a possible alternative measure’ suggesting that an initial judgement of the necessity of the measure does not require consideration of alternative measures (para. 323, emphasis added). It went on to clarify in footnote 647 (emphasis added): ‘We can identify at least two instances where a comparison of the challenged measure and possible alternative measures may not be required. For example, it would seem to us that if a measure is not trade restrictive, then it may not be inconsistent with Article 2.2. Conversely, if a measure is trade restrictive and makes no contribution to the achievement of the legitimate objective, then it may be inconsistent with Article 2.2.’ This therefore does not entirely exclude a third instance, namely where the risks to trade evidently outweigh the risks associated with non-fulfilment. Admittedly, the AB's subsequent and arguably non-sequacious extrapolation of its US–Tuna II ruling (US–COOL, para. 469) – where a measure makes some contribution to the legitimate objective, the burden of proof is on the complainants to propose alternative measures – has further reduced this possibility.

108 This dubious sleight of hand, not addressed by the AB, was noted by Canada. See US–Tuna II (AB), para. 153.

109 See, for example, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 12 October 1998, para. 131 and EC–Asbestos (AB), para. 172.

110 As discussed below – see infra note 128 and related text – the issue was indirectly treated by the AB in US–COOL.

111 US–Tuna II (AB), para. 323.

112 US–COOL (AB), para. 379.

113 Contrast, for example, Sykes, A. O., ‘The Least Restrictive Means’, 70 University of Chicago Law Review (2003) 403CrossRefGoogle Scholar, at 416 (noting an ‘important degree of (crude) cost-benefit balancing’ in Article XX analysis) and Fontanelli, ‘Necessity Killed the GATT’, supra note 93 (pointing to the absence of the explicit application of proportionality with regard to Article XX). For Kapterian, the explicit inclusion of the ‘not be more trade restrictive than necessary’ wording in the SPS and TBT Agreements absent in GATT Article XX demonstrates that ‘the word “necessity” under the WTO is not synonymous with the least-restrictive means test’. Kapterian, G., ‘A Critique of the WTO Jurisprudence on the “Necessity”’, 59 International & Comparative Law Quarterly (2010) 89CrossRefGoogle Scholar, at 117.

114 See Bown and Trachtman, ‘Brazil – Measures Affecting Imports of Retreaded Tyres, supra note 93; Regan, ‘The Meaning of “Necessary”’, supra note 93; Weiler, J. H. H., ‘Brazil – Measures Affecting Imports of Retreaded Tyres’, 8 World Trade Review (2009) 137CrossRefGoogle Scholar.

115 The Korea–Beef framework is, for example, referred to in Brazil–Retreaded Tyres (AB), para. 142; Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/TS363/AB/R, adopted 21 December 2009 (China–Audiovisual Products), para. 239.

116 Assessing necessity requires the: ‘weighing and balancing a series of factors which prominently include the contribution made by the compliance measure to the enforcement of the law or regulation at issue, the importance of the common interests or values protected by that law or regulation, and the accompanying impact of the law or regulation on imports or exports’. Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R,, adopted 11 December 2000 (Korea–Beef), para.164.

117 The AB ruled in Korea–Beef that ‘[i]t is not open to doubt that Members of the WTO have the right to determine for themselves the level of enforcement of their WTO-consistent laws and regulations’. Ibid., para. 176. See also Brazil–Retreaded Tyres (AB), para. 170; China–Audiovisual Products (AB), para. 318.

118 Bown and Trachtman, Brazil – Measures Affecting Imports of Retreaded Tyres, supra note 93, at 131.

119 Ibid., at 86. While accepting its vagueness, other commentators are more upbeat about the ‘sophisticated framework’ for assessing necessity developed by the AB. See Mitchell and Henckels, ‘Variations on a Theme’, supra note 106, at 130.

Ibid

120 See Regan, ‘The Meaning of “Necessary”’, supra note 93, at 350 (referring to the danger that the AB ‘will be taken in by its own misdescription of what it has been doing and will start actually trying to balance the domestic benefits of a measure against the cost in reduced to trade’).

121 Howse and Levy, ‘The TBT Panels’, supra note 85, at 348.

122 US–COOL (AB), para. 42.

123 Korea–Beef (AB), para. 161.

124 The parallel, so central to the Panel's analysis, is referred to only in passing by the AB. US–Tuna II (AB), para. 643.

125 Ibid., para. 321.

Ibid

126 Ibid., para. 318.

Ibid

127 US–COOL (AB), para. 376.

128 Ibid., para. 479.

Ibid

129 See, for example, Shaffer, G., ‘International Decision: United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products’, 107 American Journal of International Law (2013) 192Google Scholar, at 198 (suggesting that the AB ‘is more comfortable assessing whether a national regulatory measure is “discriminatory” than whether it is “unnecessary”’). See also Marceau, ‘The New TBT Jurisprudence’, supra note 56, at 22.

130 It should be noted that the focus here has been on the different type of necessity test applicable to the SPS and TBT Agreements. SPS Article 5.6 establishes an additional threshold to TBT Article 2.2, namely that the complainant has to propose, in accordance with footnote 3, a ‘significantly less restrictive’ alternative measure. In US–Tuna II, Brazil dismissed the relevance of this footnote to the TBT Agreement, recalling negotiators’ explicit rejection of its inclusion. See US–Tuna II (AB), footnote 304.

131 See Scott, J., The WTO Agreement on Sanitary and Phytosanitary Measures (Oxford University Press, 2007)Google Scholar, at Chapter 3; Gruszczynski, Regulating Health and Environmental Risks, supra note 13, at Chapters 4 and 5.

132 Ibid., at 94–95.

Ibid

133 Ibid., at 105–106.

Ibid

134 Ibid., at 78.

Ibid

135 See supra notes 19–22 and related text.

136 Appellate Body Report, Japan–Measures Affecting Agricultural Products, WT/DS76/AB/R,, adopted 22 February 1999 (Japan–Agricultural Products II), para. 84.

137 The panels in recent TBT cases have consistently drawn on this standard derived from the AB's assessment of the ‘contribution’ in determining ‘necessary’ measures under GATT XX. See Brazil–Retreaded Tyres (AB), para. 145; US–Clove Cigarettes (Panel), para. 7.379; Panel Report, United States – Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/R, WT/DS386/R, November 18, 2011, para. 7.693; EC–Seal Products (Panel), para. 7.633.

138 The ‘policy goal’ will be reflected in the SPS measure, which will influence the rationality of the relationship between evidence and measure. Likewise, ‘supporting evidence’ will be decisive to determining the ‘genuine’ nature, or otherwise, of the relationship between the ‘means’ (measure) and the ‘ends’ (policy goal).

139 Scott, The WTO Agreement on Sanitary and Phytosanitary Measures, supra note 131, at 79.

140 US–COOL (AB), para. 476.

141 Marceau and Trachtman, ‘The Technical Barriers to Trade Agreement’, supra note 12, at 385.

142 Scott, The WTO Agreement on Sanitary and Phytosanitary Measures, supra note 131, at 79.

143 Ibid.

Ibid

144 See Bronckers and Soopramanien, ‘The Impact of WTO Law and European Food Regulation’, supra note 17, at 365.

145 Consider, for example, discussions on whether fishing techniques adversely affect dolphins. US–Tuna II (Panel), paras. 7.517–7.531.

146 Howse, R. and Horn, H., ‘European Committees/Measures Affecting the Approval and Marketing of Biotech Products’, 8 World Trade Review (2009) 49CrossRefGoogle Scholar, at 67. This view was echoed by the AB in EC–Seal Products (AB), para. 5.198.

147 See, for example, the EU's evidence in support of their public's moral concern about cruelty to seals. European Union, EC–Seal Products, First Written Submission by the European Union (Geneva, 21 December 2012), paras. 73–74.

148 US–COOL (AB), para. 379. Japan–Agricultural Products II (AB), para. 122.

149 Note the discussion on treatment of scientific arguments in dispute settlement, infra note 157 and related text.

150 It should be recalled in this context, that a Member has considerable liberty in presenting scientific arguments, for example, relying on a risk assessment undertaken by another Member or an international body, or drawing on minority science. See EC–Hormones (AB), paras. 190 and 194 respectively.

151 US–Tuna II (Panel), para. 7.481.

152 Ibid., para. 7.513.

Ibid

153 EC–Seals (Panel), para. 7.456–7.457.

154 However, see Cho, S., ‘Of the World Trade Court's Burden’, 20 European Journal of International Law (2009) 675CrossRefGoogle Scholar, at 701–705 (discussing how the scientific presumptions on what is safe and not safe made by the AB can sometimes quickly shift the burden of proof of SPS measures onto the defendant).

155 Understanding on Rules and Procedures Governing the Settlement of Disputes, 1869 UNTS 401; 33 ILM 1226 (1994).

156 EC–Hormones (AB), paras. 116–117. As Du nevertheless points out, the term ‘objective assessment’ itself caters for different levels of intrusion. Du, M. M., ‘Standard of Review under the SPS Agreement of the EC–Hormones II’, 59 International and Comparative Law Quarterly (2010) 441CrossRefGoogle Scholar, at 444–445.

157 See Peel, J., ‘Of Apples and Oranges (And Hormones in Beef): Science and the Standard of Review in WTO Disputes under the SPS Agreement’, 61 International and Comparative Law Quarterly (2012) 427CrossRefGoogle Scholar, at 437 (pointing to a ‘trend in cases from the Hormones decision towards an approach coming close to de novo review’).

158 Ibid., at 450.

Ibid

159 See generally Peel, ‘A GMO by Any Other Name …’, supra note 16.

160 See generally Funtowicz, S. O. and Ravetz, J. R., ‘Uncertainty, Complexity and Post-Normal Science’, 13 Environmental Toxicology and Chemistry (1994) 1881CrossRefGoogle Scholar.

161 EC–Seal Products, para. 7.410 and footnote 676.

162 Ibid., footnote 676.

Ibid

163 The AB did not assess the EU's DSU Article 11 claim, deeming this issue not to be determinant in its finding that the EU's indigenous communities exception was arbitrary or unjustifiable. EC–Seal Products (AB), footnote 1617.

164 See, for example, Driesen, D. M., ‘What Is Free-Trade?: The Real Issue Lurking behind the Trade and Environment Debate’, 41 Virginia Journal of International Law (2001) 279Google Scholar, at 296 and Epps, T., ‘Recent Developments in WTO Jurisprudence: Has the Appellate Body Resolved the Issue of an Appropriate standard of Review in SPS Cases?’, 62 University of Toronto Law Journal (2012) 201CrossRefGoogle Scholar, at 203.

165 See, however, Regan, D. H., ‘United States – Certain Measures Affecting Imports of Poultry from China: The Fascinating Case That Wasn't’, 11 World Trade Review (2012) 273CrossRefGoogle Scholar, at 280–283 (arguing that traditional risk assessment is not appropriate to all measures such as those aiming to respond to systemic origin-specific food risks).

166 EC–Hormones (AB), para. 187.

167 Appellate Body Report, United States/Canada – Continued Suspension of Obligations in the EC–Hormones Dispute, WT/DS320/R, WT/DS321/R, adopted 31 March 2008, para. 677.

168 US–COOL (Panel), para. 7.693 drawing on Brazil–Retreaded Tyres (AB), para. 145 (that established that the chosen methodology ‘ultimately also depends on the nature, quantity, and quality of evidence existing at the time the analysis is made … [T]he Panel … should enjoy a certain latitude in designing the appropriate methodology to use and deciding how to structure or organize the analysis of the contribution of the measure at issue to the realization of the ends pursued by it.’)

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