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The SPS Agreements within the WTO System

Lukasz Gruszczynski

in Regulating Health and Environmental Risks under WTO Law: A Critical Analysis of the SPS Agreement

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 ... More

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

Harmonization Disciplines of the SPS Agreement

Lukasz Gruszczynski

in Regulating Health and Environmental Risks under WTO Law: A Critical Analysis of the SPS Agreement

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 ... More

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

Science, Risk Assessment, and the SPS Agreement

Lukasz Gruszczynski

in Regulating Health and Environmental Risks under WTO Law: A Critical Analysis of the SPS Agreement

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 ... More

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

The EC—Biotech Decision: Another Missed Opportunity?

Joseph McMahon

in The Regulation of Genetically Modified Organisms: Comparative Approaches

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 – ... More

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

The Trade Disciplines Arising under the TBT Agreement

Erich Vranes

in Trade and the Environment: Fundamental Issues in International Law, WTO Law, and Legal Theory

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 ... More

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

Concluding Remarks

Lukasz Gruszczynski

in Regulating Health and Environmental Risks under WTO Law: A Critical Analysis of the SPS Agreement

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 ... More

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

Introduction

Lukasz Gruszczynski

in Regulating Health and Environmental Risks under WTO Law: A Critical Analysis of the SPS Agreement

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 ... More

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

Pluralism in Postnational Risk Regulation

Nico Krisch

in Beyond Constitutionalism: The Pluralist Structure of Postnational 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 ... More

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

The Regulation of Genetically Modified Organisms and International Law: A Call for Generality

Duncan French

in The Regulation of Genetically Modified Organisms: Comparative Approaches

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 ... More

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

Harmonization of Standardization and Certification

Junji Nakagawa

in International Harmonization of Economic Regulation

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 ... More

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

Standard of Review and Scientific Evidence in WTO Law and International Investment Arbitration: Converging Parallels?

Valentina Vadi

Lukasz Gruszczynski (ed.)

in Deference in International Courts and Tribunals: Standard of Review and Margin of Appreciation

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 ... More

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

Introductory Note: The WTO Dispute Settlement System in 2017

Joanna Gomula

in The Global Community Yearbook of International Law and Jurisprudence 2018

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 ... More

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

International Trade, Public Health, and Human Rights

Chuang-Feng Wu and Chien-Huei Wu

in Foundations of Global Health & Human Rights

This chapter explores how to navigate health-related human rights in the trade and public health complex by tracing the intersection of international trade and public health and examining the role of ... More

This chapter explores how to navigate health-related human rights in the trade and public health complex by tracing the intersection of international trade and public health and examining the role of international trade in global health law. An intrinsic tension exists between international trade, public health, and human rights in this globalizing world. Even though growing global interconnectedness has generated economic growth and information sharing, it is also characterized by threats—to access to medicine, commercialization of health care, and widening health inequality. Although this tension was well recognized in the development of the World Trade Organization, it has become much more complicated in recent decades. By addressing critical questions surrounding trade and public health, examining the transformation of risks into opportunities through global efforts, it will be possible to investigate possible venues to resolve trade and public health tensions in light of human rights.Less

Necessity Testing

Caroline E. Foster

in Global Regulatory Standards in Environmental and Health Disputes: Regulatory Coherence, Due Regard, and Due Diligence

Part III comprises two chapters, Chapter Five and Chapter Six. These chapters together investigate the decisions of WTO panels and the Appellate Body in environmental and health cases. The chapters ... More

Part III comprises two chapters, Chapter Five and Chapter Six. These chapters together investigate the decisions of WTO panels and the Appellate Body in environmental and health cases. The chapters examine the major contribution made through WTO dispute settlement to the emerging global regulatory standard of regulatory coherence. Specifically, Chapter Five analyses the elaboration of the ‘necessity’ formula in the GATT and the GATS general exceptions’ subparagraphs, as well as under the TBT and SPS Agreements. The WTO adjudicatory process appears to have been protecting the traditional procedural justification of international law’s relative authority claim by enabling respect for domestic decision-making through democratic processes. Members’ entitlement to choose their level of protection against a risk is still at present fully recognised and there is vital scope for recognition of the importance to WTO Members of long-term non-economic interests requiring a multifaceted policy response.Less

Rational Relationships

Caroline E. Foster

in Global Regulatory Standards in Environmental and Health Disputes: Regulatory Coherence, Due Regard, and Due Diligence

Chapter Six continues Chapter Five’s examination of the regulatory coherence standard in WTO dispute settlement, this time focusing on ‘rational relationship’ testing under the non-discrimination ... More

Chapter Six continues Chapter Five’s examination of the regulatory coherence standard in WTO dispute settlement, this time focusing on ‘rational relationship’ testing under the non-discrimination provisions in the chapeau to the GATT and GATS general exceptions, as well as under the TBT and SPS Agreements. WTO non-discrimination jurisprudence looks for a rational relationship between a regulatory measure’s otherwise discriminatory aspects and the measure’s policy objectives. Rational relationship tests, like necessity tests, embody the emerging global regulatory standard of regulatory coherence, calling for a certain relationship between trade measures and their objectives. Like necessity testing, rational relationship testing lends itself to application in a way that accommodates decision-making at the domestic level on matters requiring important value judgements.Less