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This paper is based on a presentation given in a symposium session on 'The World Trade Organization as a Global Risk Regulator' at the 20th SRA-Europe Meeting, Stuttgart, 8 June 2011. I am grateful for the feedback received from other participants in the symposium including Alberto Alemanno, Lukasz Gruszczynski, Alexia Herwig and Jonathon Wiener. I also benefitted from the comments and feedback of an anonymous peer reviewer of the article.
I.
Introduction
The Sanitary and Phytosanitary (SPS) Agreement has attracted academic interest and political controversy since its conclusion as part of the World Trade Organization's (WTO) Uruguay Round agreements in 1995.1 The Agreement contains novel, science-based requirements that function as the principal mechanism for distinguishing genuine health, environmental and quarantine risk regulatory measures from other trade measures, presumed to be motivated by protectionism.2 If a dispute arises over a Member's measures, it may be taken before the WTO dispute settlement body where legal decision-makers (panels and a standing Appellate Body) evaluate questions such as the 'sufficiency' of the scientific evidence underlying a measure and its relationship to a science-based risk assessment. Potentially these provisions may require international judicial bodies to undertake a searching review of the scientific underpinnings of SPS risk regulation, with the potential to place significant constraints on the scope of domestic regulatory autonomy in this field.
While many found the first SPS dispute brought under the Agreement--that of Hormones in 1998--reassuring given the efforts made by the Appellate Body to articulate a flexible notion of risk assessment applicable under the SPS Agreement,3 later decisions evolved in a direction that gave a large role to science (and experts advising panels)4 in evaluating the international legal legitimacy of SPS measures. In November 2008, the WTO Appellate Body issued its decision in a further round of the Hormones dispute (this time examining whether amended European measures complied with the earlier Appellate Body rulings, warranting the suspension of trade sanctions).5 The Continued Suspension decision articulated new requirements around the so-called 'standard of review' to be applied by panels in evaluating the scientific basis and adequacy of a Member's risk assessment. The standard of review governs the extent of the investigative authority enjoyed by WTO...