Lukasz Gruszczynski
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199578924
- eISBN:
- 9780191722646
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578924.003.0003
- Subject:
- Law, Public International Law, Environmental and Energy Law
This chapter starts with a brief overview of the disciplines established by the SPS Agreement, including procedural issues such as allocation of burden of proof between the parties to the SPS dispute ...
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This chapter starts with a brief overview of the disciplines established by the SPS Agreement, including procedural issues such as allocation of burden of proof between the parties to the SPS dispute and the standard of review applicable to the examination of national factual determinations. The second part examines two preliminary matters: the applicability of the SPS Agreement and its relationship to GATT 1994 and the TBT Agreement. Although the chapter identifies some deficiencies of the current case law, such as the lack of overall interpretative consistency, it notes that part of the criticism relating to the broad applicability of the SPS Agreement is premature. A separate section is dedicated to measures that serve multiple objectives and those which on their face appear to be TBT regulations, but in fact were adopted due to SPS concerns. The chapter concludes that in both cases, the SPS jurisprudence succeeded in adopting an approach that provides a workable mechanism.Less
This chapter starts with a brief overview of the disciplines established by the SPS Agreement, including procedural issues such as allocation of burden of proof between the parties to the SPS dispute and the standard of review applicable to the examination of national factual determinations. The second part examines two preliminary matters: the applicability of the SPS Agreement and its relationship to GATT 1994 and the TBT Agreement. Although the chapter identifies some deficiencies of the current case law, such as the lack of overall interpretative consistency, it notes that part of the criticism relating to the broad applicability of the SPS Agreement is premature. A separate section is dedicated to measures that serve multiple objectives and those which on their face appear to be TBT regulations, but in fact were adopted due to SPS concerns. The chapter concludes that in both cases, the SPS jurisprudence succeeded in adopting an approach that provides a workable mechanism.
Lukasz Gruszczynski
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199578924
- eISBN:
- 9780191722646
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578924.001.0001
- Subject:
- Law, Public International Law, Environmental and Energy Law
The last sixty years witnessed an unprecedented expansion of international trade. The system created by the General Agreement on Tariffs and Trade and later by the World Trade Organization (WTO) has ...
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The last sixty years witnessed an unprecedented expansion of international trade. The system created by the General Agreement on Tariffs and Trade and later by the World Trade Organization (WTO) has proved to be an efficient tool for the elimination of trade tariff barriers. This process also coincided with the increased national risk regulatory controls. Governments, responding to the demands of their domestic constituencies, have adopted a wide range of regulatory measures aimed at protecting the environment and human health. Although for the most part, these new regulatory initiatives served legitimate objectives, it has also turned out that internal measures might become an attractive vehicle for protectionism, taking the place that was traditionally occupied by tariff barriers. The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) is an attempt by the international community to limit possible abuses while accepting a considerable margin of regulatory discretion of WTO Members. Does it optimally strike a balance between competing objectives of international free trade and regulatory freedom in the field of risk regulation? In answering this question, the book engages in a comprehensive and critical examination of the substantive provisions of the SPS Agreement and the corresponding case law. Special attention is paid to three specific issues: the appropriateness of the disciplines established by the SPS Agreement, the consistency of their interpretation by the WTO case law, and the normative content of those requirements that have not yet been addressed by SPS jurisprudence. The book concludes that despite some failures of the SPS system, the Agreement provides an operable and efficient mechanism for the supervision of domestic SPS measures.Less
The last sixty years witnessed an unprecedented expansion of international trade. The system created by the General Agreement on Tariffs and Trade and later by the World Trade Organization (WTO) has proved to be an efficient tool for the elimination of trade tariff barriers. This process also coincided with the increased national risk regulatory controls. Governments, responding to the demands of their domestic constituencies, have adopted a wide range of regulatory measures aimed at protecting the environment and human health. Although for the most part, these new regulatory initiatives served legitimate objectives, it has also turned out that internal measures might become an attractive vehicle for protectionism, taking the place that was traditionally occupied by tariff barriers. The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) is an attempt by the international community to limit possible abuses while accepting a considerable margin of regulatory discretion of WTO Members. Does it optimally strike a balance between competing objectives of international free trade and regulatory freedom in the field of risk regulation? In answering this question, the book engages in a comprehensive and critical examination of the substantive provisions of the SPS Agreement and the corresponding case law. Special attention is paid to three specific issues: the appropriateness of the disciplines established by the SPS Agreement, the consistency of their interpretation by the WTO case law, and the normative content of those requirements that have not yet been addressed by SPS jurisprudence. The book concludes that despite some failures of the SPS system, the Agreement provides an operable and efficient mechanism for the supervision of domestic SPS measures.
Lukasz Gruszczynski
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199578924
- eISBN:
- 9780191722646
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578924.003.0004
- Subject:
- Law, Public International Law, Environmental and Energy Law
This chapter analyzes the harmonizing disciplines of the SPS Agreement. It briefly addresses the normative content of the concept and reviews main arguments for and against international ...
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This chapter analyzes the harmonizing disciplines of the SPS Agreement. It briefly addresses the normative content of the concept and reviews main arguments for and against international harmonization. The second part provides information on the international standard-setting bodies that are explicitly recognized by the SPS Agreement (Codex Alimentarius Commission, World Organisation for Animal Health, and the International Plant Protection Convention). The third part discusses in more detail each of the three options that is available to WTO Members under Article 3 of the SPS Agreement; namely, a situation when a measure conforms to international standards, when it is merely based on such standards, and when it deviates from them. In the context of the last option, the chapter argues that WTO members are permitted to depart from international standards in both directions, as the agreement does not establish any minimum SPS standards.Less
This chapter analyzes the harmonizing disciplines of the SPS Agreement. It briefly addresses the normative content of the concept and reviews main arguments for and against international harmonization. The second part provides information on the international standard-setting bodies that are explicitly recognized by the SPS Agreement (Codex Alimentarius Commission, World Organisation for Animal Health, and the International Plant Protection Convention). The third part discusses in more detail each of the three options that is available to WTO Members under Article 3 of the SPS Agreement; namely, a situation when a measure conforms to international standards, when it is merely based on such standards, and when it deviates from them. In the context of the last option, the chapter argues that WTO members are permitted to depart from international standards in both directions, as the agreement does not establish any minimum SPS standards.
Lukasz Gruszczynski
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199578924
- eISBN:
- 9780191722646
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578924.003.0005
- Subject:
- Law, Public International Law, Environmental and Energy Law
This chapter addresses the science-based provisions of the SPS Agreement. The main part of the discussion is dedicated to risk assessment disciplines as elaborated by the SPS case law. This includes ...
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This chapter addresses the science-based provisions of the SPS Agreement. The main part of the discussion is dedicated to risk assessment disciplines as elaborated by the SPS case law. This includes the problem of the required structure and the content of risk assessment, the role of scientific minority opinions as a legitimate basis for a SPS measure, and standard of review applicable to evaluation of scientifically complex issues. Against this analysis, the last part of the chapter attempts to identify the ultimate function that is performed by science under the SPS Agreement and to propose some critical observations on its capacity to perform such a role. It concludes that although science-based criteria may compromise the choice of WTO members regarding an acceptable level of risk, a proper interpretation of the SPS Agreement may reduce that danger, maintaining at the same time advantages of the current system.Less
This chapter addresses the science-based provisions of the SPS Agreement. The main part of the discussion is dedicated to risk assessment disciplines as elaborated by the SPS case law. This includes the problem of the required structure and the content of risk assessment, the role of scientific minority opinions as a legitimate basis for a SPS measure, and standard of review applicable to evaluation of scientifically complex issues. Against this analysis, the last part of the chapter attempts to identify the ultimate function that is performed by science under the SPS Agreement and to propose some critical observations on its capacity to perform such a role. It concludes that although science-based criteria may compromise the choice of WTO members regarding an acceptable level of risk, a proper interpretation of the SPS Agreement may reduce that danger, maintaining at the same time advantages of the current system.
Joseph McMahon
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199542482
- eISBN:
- 9780191594342
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199542482.003.0014
- Subject:
- Law, Environmental and Energy Law
This chapter examines the interpretation and application by the Panel of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures through an analysis of the decision in EC – ...
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This chapter examines the interpretation and application by the Panel of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures through an analysis of the decision in EC – Biotech. It places the Panel decision in the context of the evolving jurisprudence on the SPS Agreement by looking at its interpretation of the concept of a measure, the role of risk assessment, and the transparency provisions. It concludes that the ‘simple-minded’ decision of the Panel missed the opportunity to reconcile the demands of science with the other factors that must be taken into account in any assessment of risk. As a result, it ignored the complexities arising from divergent national regulation in the area of GMOs.Less
This chapter examines the interpretation and application by the Panel of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures through an analysis of the decision in EC – Biotech. It places the Panel decision in the context of the evolving jurisprudence on the SPS Agreement by looking at its interpretation of the concept of a measure, the role of risk assessment, and the transparency provisions. It concludes that the ‘simple-minded’ decision of the Panel missed the opportunity to reconcile the demands of science with the other factors that must be taken into account in any assessment of risk. As a result, it ignored the complexities arising from divergent national regulation in the area of GMOs.
Erich Vranes
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562787
- eISBN:
- 9780191705366
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562787.003.0008
- Subject:
- Law, Public International Law, EU Law
This chapter analyses the functions and scope of application of the WTO TBT Agreement. It examines its relationship with the GATT and the SPS Agreement, its non-discrimination disciplines, the ...
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This chapter analyses the functions and scope of application of the WTO TBT Agreement. It examines its relationship with the GATT and the SPS Agreement, its non-discrimination disciplines, the prohibition on unnecessary technical barriers to trade, and justification under the TBT Agreement. It also analyses the requirement to base technical regulations on international standards. This chapter argues that the TBT Agreement contains several concretisations of the necessity requirement, but does not introduce a proportionality review.Less
This chapter analyses the functions and scope of application of the WTO TBT Agreement. It examines its relationship with the GATT and the SPS Agreement, its non-discrimination disciplines, the prohibition on unnecessary technical barriers to trade, and justification under the TBT Agreement. It also analyses the requirement to base technical regulations on international standards. This chapter argues that the TBT Agreement contains several concretisations of the necessity requirement, but does not introduce a proportionality review.
Lukasz Gruszczynski
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199578924
- eISBN:
- 9780191722646
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578924.003.0008
- Subject:
- Law, Public International Law, Environmental and Energy Law
This chapter draws some overall conclusions on the substantive disciplines of the SPS Agreement, summarizing the previous discussion alongside the three objectives of the book: the appraisal of the ...
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This chapter draws some overall conclusions on the substantive disciplines of the SPS Agreement, summarizing the previous discussion alongside the three objectives of the book: the appraisal of the standards established by the SPS Agreement, assessment of the consistency of the SPS case law, and identification of the normative content of those provisions of the agreement that have not been yet addressed in SPS jurisprudence. The above analysis leads to the conclusion that despite some defects in the SPS Agreement and some failures of SPS case law, the system seems to provide a generally coherent and effective mechanism for supervising national SPS regulations that is capable of addressing controversial disputes in a sensible manner. Consequently, no paradigm shift is required in the field and the majority of the problems identified can be addressed through more sophisticated interpretation of the agreement.Less
This chapter draws some overall conclusions on the substantive disciplines of the SPS Agreement, summarizing the previous discussion alongside the three objectives of the book: the appraisal of the standards established by the SPS Agreement, assessment of the consistency of the SPS case law, and identification of the normative content of those provisions of the agreement that have not been yet addressed in SPS jurisprudence. The above analysis leads to the conclusion that despite some defects in the SPS Agreement and some failures of SPS case law, the system seems to provide a generally coherent and effective mechanism for supervising national SPS regulations that is capable of addressing controversial disputes in a sensible manner. Consequently, no paradigm shift is required in the field and the majority of the problems identified can be addressed through more sophisticated interpretation of the agreement.
Nico Krisch
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199228317
- eISBN:
- 9780191594793
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199228317.003.0006
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
Chapter 6 focuses on a central area of global governance often regarded as an example of failed cooperation—the regime complex around trade, food safety, and the environment, illustrated in the ...
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Chapter 6 focuses on a central area of global governance often regarded as an example of failed cooperation—the regime complex around trade, food safety, and the environment, illustrated in the dispute over trade in genetically modified organisms (GMOs) around the WTO, the SPS Agreement, and the Biosafety Protocol. The chapter analyses institutional interactions in this area and shows how competing supremacy claims relate to broader claims by various collectives striving for control in the construction of global governance. The chapter suggests that the limits of cooperation evident in this case are due less to institutional than to societal structures. In tracing significant cooperation successes despite highly politicized conflict it also indicates that a pluralist order, by leaving issues of principle open, may provide a safety valve for issues of high salience, thus avoiding the friction a more legalized, constitutionalist order might produce.Less
Chapter 6 focuses on a central area of global governance often regarded as an example of failed cooperation—the regime complex around trade, food safety, and the environment, illustrated in the dispute over trade in genetically modified organisms (GMOs) around the WTO, the SPS Agreement, and the Biosafety Protocol. The chapter analyses institutional interactions in this area and shows how competing supremacy claims relate to broader claims by various collectives striving for control in the construction of global governance. The chapter suggests that the limits of cooperation evident in this case are due less to institutional than to societal structures. In tracing significant cooperation successes despite highly politicized conflict it also indicates that a pluralist order, by leaving issues of principle open, may provide a safety valve for issues of high salience, thus avoiding the friction a more legalized, constitutionalist order might produce.
Lukasz Gruszczynski
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199578924
- eISBN:
- 9780191722646
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578924.003.0001
- Subject:
- Law, Public International Law, Environmental and Energy Law
This introductory chapter sets out the objectives of the book, its scope, the underlying methodology, and the plan for subsequent discussion. The central question of the book is whether the system ...
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This introductory chapter sets out the objectives of the book, its scope, the underlying methodology, and the plan for subsequent discussion. The central question of the book is whether the system established by the SPS Agreement is capable of addressing existing and potential challenges in the field of international risk regulation. The book also assesses the consistency of the case law in its interpretation of SPS provisions and the normative content of those requirements, which have not yet been addressed by the WTO jurisprudence. Its analysis is predominantly based on examination of the text of the SPS Agreement and the corresponding case law. This exegetic approach is justified through reference to the objectives of the book as well as the practice of WTO dispute settlement bodies.Less
This introductory chapter sets out the objectives of the book, its scope, the underlying methodology, and the plan for subsequent discussion. The central question of the book is whether the system established by the SPS Agreement is capable of addressing existing and potential challenges in the field of international risk regulation. The book also assesses the consistency of the case law in its interpretation of SPS provisions and the normative content of those requirements, which have not yet been addressed by the WTO jurisprudence. Its analysis is predominantly based on examination of the text of the SPS Agreement and the corresponding case law. This exegetic approach is justified through reference to the objectives of the book as well as the practice of WTO dispute settlement bodies.
Duncan French
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199542482
- eISBN:
- 9780191594342
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199542482.003.0015
- Subject:
- Law, Environmental and Energy Law
Much has been written on the legal implications of the international regulation of GMOs. This chapter does not reproduce this discussion, but rather considers how general rules of international ...
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Much has been written on the legal implications of the international regulation of GMOs. This chapter does not reproduce this discussion, but rather considers how general rules of international law, together with more general trends in related legal and policy fields, are likely to prove increasingly apposite in the ongoing debate over how to manage and govern GM activity. In particular, it considers two specific issues: first, the role of treaty interpretation in promoting synergies and reconciling apparently conflicting primary rules; and, secondly, the utility of the concept of sustainable development in determining a balanced framework for the inclusion of socio-economic considerations within GM decision-making processes, as permitted under the Cartagena Protocol. The chapter concludes that an approach which concentrates solely on the regulatory detail will invariably ignore the importance of general international law in regulating such an issue.Less
Much has been written on the legal implications of the international regulation of GMOs. This chapter does not reproduce this discussion, but rather considers how general rules of international law, together with more general trends in related legal and policy fields, are likely to prove increasingly apposite in the ongoing debate over how to manage and govern GM activity. In particular, it considers two specific issues: first, the role of treaty interpretation in promoting synergies and reconciling apparently conflicting primary rules; and, secondly, the utility of the concept of sustainable development in determining a balanced framework for the inclusion of socio-economic considerations within GM decision-making processes, as permitted under the Cartagena Protocol. The chapter concludes that an approach which concentrates solely on the regulatory detail will invariably ignore the importance of general international law in regulating such an issue.
Junji Nakagawa
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199604661
- eISBN:
- 9780191731679
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199604661.003.0004
- Subject:
- Law, Public International Law
This chapter analyzes international harmonization of product standards and accreditation (section 1) and of food safety standards (section 2), which are conducted by different standard setting bodies ...
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This chapter analyzes international harmonization of product standards and accreditation (section 1) and of food safety standards (section 2), which are conducted by different standard setting bodies and regulated by separate Agreements of the WTO. While these standards are non-binding, leaving states with discretion as to whether to adopt them in domestic regulation, the WTO Agreements have added legally binding force by mandating members to base domestic standards on harmonized ones. This change and resulting public concern regarding the legitimacy of international harmonization have led to substantive reform of standard setting procedures and of the public information policy of standard setting bodies.Less
This chapter analyzes international harmonization of product standards and accreditation (section 1) and of food safety standards (section 2), which are conducted by different standard setting bodies and regulated by separate Agreements of the WTO. While these standards are non-binding, leaving states with discretion as to whether to adopt them in domestic regulation, the WTO Agreements have added legally binding force by mandating members to base domestic standards on harmonized ones. This change and resulting public concern regarding the legitimacy of international harmonization have led to substantive reform of standard setting procedures and of the public information policy of standard setting bodies.
Valentina Vadi
Lukasz Gruszczynski (ed.)
- Published in print:
- 2014
- Published Online:
- November 2014
- ISBN:
- 9780198716945
- eISBN:
- 9780191785627
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198716945.003.0009
- Subject:
- Law, Public International Law, Comparative Law
The chapter compares the standards of review applied by WTO panels and investment tribunals in assessing national measures that are based on prior complex factual determinations of a scientific ...
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The chapter compares the standards of review applied by WTO panels and investment tribunals in assessing national measures that are based on prior complex factual determinations of a scientific character. It shows that the practices in both areas express many similarities. Although none of the systems has developed an abstract and general standard of deference, the analysis of the jurisprudence shows that a considerable degree of deference is granted to States in this specific context. This deference expresses itself in dispute settlement bodies’ focus on ‘reasonableness’ rather than ‘correctness’ of specific scientific claims, showing that these bodies are well aware of their epistemic limitations. On the other hand, the chapter recognizes certain differences existing between the two systems. Investment tribunals remain more concerned with the overall quality of the regulatory process, while WTO panels are more active in testing the internal (scientific) legitimacy of measures.Less
The chapter compares the standards of review applied by WTO panels and investment tribunals in assessing national measures that are based on prior complex factual determinations of a scientific character. It shows that the practices in both areas express many similarities. Although none of the systems has developed an abstract and general standard of deference, the analysis of the jurisprudence shows that a considerable degree of deference is granted to States in this specific context. This deference expresses itself in dispute settlement bodies’ focus on ‘reasonableness’ rather than ‘correctness’ of specific scientific claims, showing that these bodies are well aware of their epistemic limitations. On the other hand, the chapter recognizes certain differences existing between the two systems. Investment tribunals remain more concerned with the overall quality of the regulatory process, while WTO panels are more active in testing the internal (scientific) legitimacy of measures.
Joanna Gomula
- Published in print:
- 2019
- Published Online:
- September 2019
- ISBN:
- 9780190072506
- eISBN:
- 9780190072520
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190072506.003.0022
- Subject:
- Law, Public International Law
In 2017 panel and Appellate Body reports were adopted in nine disputes. The disputes concerned alleged violations under the General Agreement on Tariffs and Trade of 1994 (GATT 1994), the Agreement ...
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In 2017 panel and Appellate Body reports were adopted in nine disputes. The disputes concerned alleged violations under the General Agreement on Tariffs and Trade of 1994 (GATT 1994), the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement), the Agreement on Subsidies and Countervailing Measures (SCM Agreement), the Anti-Dumping Agreement, and the Agreement on Agriculture. Four of the disputes concerned restrictions placed on the importation of animal products (mainly poultry and pigs), such as licensing requirements and import restrictions, tariff rate quotas established following re-negotiations with principal suppliers, and SPS measures. The dispute over a ban on importation of pigs featured an important issue relating to the “regionalization” of SPS measures. Two disputes provided clarification as to the relationship between WTO agreements, in particular, the relationship between GATT 1994 and the Agreement on Agriculture. The year 2017 also saw another case in the “series” of the Airbus/Boeing subsidies disputes, with the United States scoring a victory over the European Union.Less
In 2017 panel and Appellate Body reports were adopted in nine disputes. The disputes concerned alleged violations under the General Agreement on Tariffs and Trade of 1994 (GATT 1994), the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement), the Agreement on Subsidies and Countervailing Measures (SCM Agreement), the Anti-Dumping Agreement, and the Agreement on Agriculture. Four of the disputes concerned restrictions placed on the importation of animal products (mainly poultry and pigs), such as licensing requirements and import restrictions, tariff rate quotas established following re-negotiations with principal suppliers, and SPS measures. The dispute over a ban on importation of pigs featured an important issue relating to the “regionalization” of SPS measures. Two disputes provided clarification as to the relationship between WTO agreements, in particular, the relationship between GATT 1994 and the Agreement on Agriculture. The year 2017 also saw another case in the “series” of the Airbus/Boeing subsidies disputes, with the United States scoring a victory over the European Union.
