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2021 | OriginalPaper | Buchkapitel

8. Judicial Review of Science-Based Measures Under WTO Law

verfasst von : Lukasz Gruszczynski

Erschienen in: The Contestation of Expertise in the European Union

Verlag: Springer International Publishing

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Abstract

This chapter looks at the various ways in which the WTO dispute settlement bodies (DSBs) have engaged with science and scientific expertise when deciding trade disputes between WTO Members. In this context, it pays a special attention to the approach taken by the DSBs to the problems posed by scientific uncertainty, the development of specific science-based standards (such as insufficiency of scientific evidence or the specificity of risk assessment), and the conceptualization of the applicable standard of review. The chapter concludes that science has become an important and, in some instances, decisive element in the assessment of any national health and environmental-related trade measure. At the same time, it also identifies certain challenges posed by the employment of the strict science-based criteria. In particular, the WTO case law clearly shows that regulatory science is not as value- and policy-free as initially anticipates. Although the DSBs have tried to respond to these challenges by adjusting their science-based standards (e.g. by softening the specificity requirements, accepting that no minimum risk threshold should be required), some specific problems remain either still unrecognized or have been addressed only partially (e.g. the standard of review applicable to scientific determinations). It therefore remains to be seen whether the DSBs will be able to elucidate science-based standards in a way that will satisfy the expectations of the different constituencies.

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Vorheriges Kapitel Climate Science in the Courts

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Hormone-treated beef is actually very competitive. The application of growth hormones accelerates the production process and thus decreases the overall costs of production.

Agreement on the Application of Sanitary and Phytosanitary Measures, Marrakesh Agreement Establishing the World Trade Organization, Annex 1, 15 April 1994, 1867 UNTS 493.

Note that the early GATT 1994 case law was concerned more with the external legitimacy of national measures (i.e. the absence of alternative less trade-restrictive measures that could meet the health or environmental policy objectives) than with the internal aspect (e.g. the existence of a scientific justification). For a detailed analysis of the changes that took place in the approach of the WTO dispute settlement bodies, see Gruszczynski (2014a, pp. 11–29).

General Agreement on Tariffs and Trade, Marrakesh Agreement Establishing the World Trade Organization, Annex 1, 15 April 1994, 1867 UNTS 187.

Agreement on Technical Barriers to Trade, Marrakesh Agreement Establishing the World Trade Organization, Annex 1, 15 April 1994, 1868 UNTS 120.

E.g. various ‘risks’ associated by the general public with the cultivation and consumption of genetically modified plants (cf. also Bohanes 2002, p. 355).

SPS measures are defined as measures applied to protect human, animal and plant life and health from certain enumerated risks (e.g. those which arise from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs). The notion of a ‘measure’ is very broad and includes all relevant laws, decrees, regulations, requirements and procedures (cf. Annex A.1 of the SPS Agreement).

Note, however, that every risk assessment also involves a number of semi-scientific and non-scientific elements (cf. e.g. Silbergeld 1991).

Annex A.4 of the SPS Agreement.

Participation of experts in the SPS dispute settlement process is governed by ad hoc guidelines adopted by each panel for the purpose of a specific dispute (cf. e.g. The Working Procedures for Consultations with Scientific and/or Technical Experts [Annex A-5] in Panel Report, US—Continued Suspension).

The latter chapter identifies a number of problems that can emerge in the process of communication between a panel and its experts (i.e. those which result from differences between legal and scientific logic and their respective methodologies, or the use of non-scientific terms as objective categories of a scientific nature).

The TBT Agreement applies to technical regulations, standards, and conformity assessment procedures (for the definition of those terms see its Annex 1) that may affect international trade. The TBT and SPS Agreements are mutually exclusive. If a specific measure is qualified as an SPS measure, it is only assessed under the SPS Agreement (and vice versa with respect to the TBT Agreement).

In US—Clove Cigarette (a dispute concerning the US ban on production and sale of flavoured cigarettes), the WTO panel was confronted, under the necessity analysis, with the question about the effectiveness of US measure. In answering this question, the panel engaged in the detailed analysis of scientific evidence and ultimately found that scientific research supported the conclusion that banning clove and other flavoured cigarettes could contribute to the achievement of regulatory objectives sought by the US (i.e. reducing youth smoking).

The GATT 1994 applies to all measures that have an impact on trade in goods between WTO Members. Its scope is broad as it covers both TBT and SPS measures.

Art. XX of the GATT 1994. Note that science may be also used for the purpose of the Art. III analysis (i.e. the national treatment principle which prohibits discrimination between domestic and imported like products). In the Asbestos case, the Appellate Body relied on scientific evidence in order to determine likeness of two products (domestic cellulose fibres/PVA/glass fibres v. imported asbestos) (Appellate Body Report, EC—Asbestos, para. 125).

Panels Reports, Australia—Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, 28 June 2018, WT/DS435/R, WT/DS441/R, WT/DS458/R, and WT/DS467/R. The Australian law requires all tobacco products to be marketed in plain packaging. This means, among other things, that trademark owners are prevented from using their graphic trademarks on such products.

Agreement on Trade-related Aspects of Intellectual Property Rights, Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994, Annex 1C, 1869 UNTS 299.

The panel was not overruled in this respect by the Appellate Body. Interestingly in another dispute the Appellate Body rejected the concept of a ‘not scientifically identifiable risk’ that was also characterized by a risk range between 0 and 1 to a million (see Appellate Body Report, EC—Hormones, para. 186).

Uncertainty may be defined as the ‘lack of precise knowledge as to what the truth is, whether quantitative or qualitative’ (National Research Council 1994, p. 161).

See e.g. Panel Report, US—Tuna (Second recourse to Art. 21.5 DSU) (noting that ‘[i]n relation to the issue of whether our analysis should be qualitative, quantitative, or a mix of the two, we agree with the parties that, given the inherent difficulties of quantifying unobservable harms, our approach should encompass both a quantitative and a qualitative dimension’).

Cf. e.g. panel’s analysis of the genotoxicity of oestradiol-17β in the US—Continued Suspension dispute (Appellate Body Report, US—Continued Suspension, para. 610).

Noting that ‘the Panel does not consider that a detailed proof of actual tyre fires and associated negative impacts on health within the territory of Brazil is required’.

The distinction between different types of uncertainty is based on Klinke and Renn (2002).

Cf. Panel Report, EC—Biotech Products, para. 7.3243; Panel Report, US—Continued Suspension, para. 7.612. See also Gruszczynski (2010, pp. 194–196).

Of course, this is not to say that under the Appellate Body’s approach the assessment of insufficiency is a purely subjective exercise. Its statement should be read simply as recognition of the complex nature of such an assessment, which encompasses both scientific and non-scientific elements.

For detailed discussion on the concept of standard of review in different international fora, see Gruszczynski and Werner (2014, pp. 1–15).

The only exception is the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement), which provides for the applicable standard of review in its Art. 17.6.

Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 15 April 1994, 1869 UNTS 401. Art. 11 specifically provides in the relevant part that ‘a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements.’

Panel Report, EC—Biotech Products, Annex H, ‘Replies by the Scientific Experts Advising the Panel to Questions Posed by the Panel’, H-171, paras. 785–786, 791 (one of the experts particularly noted that ‘France had valid reasons … to carry out more research to ‘supplement existing scientific knowledge and validate methods for managing the cultivation of genetically modified oilseed rape’).

For a more detailed discussion, see Gruszczynski (2010, pp. 194–195).

Cf. e.g. the treatment by the panel of the opinions provided by its own experts with respect to the question of the existence of a threshold for substances having genotoxic potential (in this case for oestradiol-17β). Despite genuine disagreement between them, the panel found some answers to be the most straightforward, and as a consequence correct according to the panel. For a more detailed analysis, see Gruszczynski (2013, pp. 744–745).

It should be noted, however, that the problem of the applicable standard of review is rarely directly addressed.

See also Panel Report, US—Tuna (II) (Second recourse to Art. 21.5 DSU), para. 7.238.

See generally Sykes (2016).

But note that we may currently be witnessing an opposite tendency, with the US imposing punitive tariffs on its trading partners (with corresponding retaliatory measures introduced or planned by other WTO Members). It is difficult to say whether this is beginning of a new trend or merely a temporary deviation.

This role of science is however, as explained in the introductory chapter of this book, increasingly contested in the contemporary world.

This aspect has been highlighted numerous times by the current US administration and has been one reason (at least formally) for the US blocking of the appointment of Appellate Body members (see e.g. Center for Strategic and International Studies 2017). In this context, the USTR Lighthizer particularly mentioned the WTO dumping and countervailing-duty cases. See also footnote 40 below.

See also the discussion in the introductory chapter. The editors particularly note in the context of the EU that ‘reliance on technocratic expertise has traditionally been considered as a key factor legitimating an emerging polity’.

Cf. also with the discussion in the introductory chapter, particularly with the observation by Weingart (1999): ‘the intensified use of scientific expertise has not increased the degree of certainty on the part of judges, administrators and policy-makers; on the contrary, it has left them witnessing the ongoing debates among scientific experts and forces them to decide between conflicting advice.’

See also Introductory chapter.

This new strategy (from multilateralism to bilateralism, from an international free trade regime to protectionism, and from a rule-based to power-based system) is reflected in the approach taken by the US towards the WTO. In particular, the Trump administration is blocking the election of new members of the Appellate Body. Currently, there are only four members, leaving three open unfilled seats. The lack of Appellate Body members has already led to delays in the consideration of appeals. If the situation is not remedied by 2019, when the terms of office of two of the remaining members expire, the Appellate Body will be completely paralyzed, as the remaining two members will be unable to form a three-person bench. For additional details, see M. Elsig et al. (2017).

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Titel: Judicial Review of Science-Based Measures Under WTO Law
verfasst von: Lukasz Gruszczynski
Verlag: Springer International Publishing
Buch: The Contestation of Expertise in the European Union
Print ISBN: 978-3-030-54366-2

Electronic ISBN: 978-3-030-54367-9

Copyright-Jahr: 2021
DOI: https://doi.org/10.1007/978-3-030-54367-9_8