Dispute Resolution in SPS Cases

Abstract

The Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) aims to find the right equilibrium between safeguarding each Member’s interest in protecting its domestic market from products that threaten the life or health of humans, animals or plants and ensuring that these threats are not abusively invoked by individual Members in order to distort international trade patterns.

This article proposes that the DSB should apply a more deferential standard of review when evaluating: (1) the level of risk a state is prepared to tolerate; (2) scientific data; and (3) the relationship between the measure at issue and the ‘risk assessment’ that is required by the SPS Agreement. In fact, it argues that the WTO Body should refuse to review these types of assessments altogether. It is asserted that the DSB should not evaluate state priorities and is inadequately qualified to make complicated scientific evaluations. Moreover, the author contends that errors in this field are more costly than in others, in both political and financial terms. Nevertheless, it is asserted that there should still be vigorous review of state conduct in certain other respects, for instance, to determine whether state measures are arbitrary or discriminatory.