Standard of Review of Health and Environmental Regulations by WTO Panels

Abstract

This paper assesses the applicable standard of review in sanitary and phytosanitary (SPS) disputes with complex factual issues. In particular, the paper analyzes how the new deferential standard, set out by the Appellate Body (AB) in US/Canada - Continued Suspension of Obligations in the EC – Hormones Dispute, is actually applied in practice (determining reasonableness of risk assessment, not its correctness). To this end, the AB report in Australia – Measures Affecting the Importation of Apples from New Zealand is scrutinized. The conclusion is reached that although the applicable standard of review under the SPS Agreement (particularly under Articles 2.2 and 5.1) is not de novo, the investigations of WTO panels remain intrusive when assessing the objectivity and coherence of the reasoning used in a contested risk assessment. The same is true with respect to the permissible inquiry into the underlying methodology. The paper concludes that this may indicate that WTO dispute settlement bodies are unwilling to resign from their investigative prerogatives when adjudicating on national SPS measures.

Keywords: SPS Agreement, standard of review, WTO, science and law

JEL Classification: K33