A Precautionary Approach to Decision Making: The Evolving Jurisprudence on Article 5.7 of the SPS Agreement
Bryan Christopher Mercurio
Chinese University of Hong Kong - Faculty of Law; University of New South Wales - Faculty of Law
affiliation not provided to SSRN
December 31, 2010
Trade, Law and Development, Vol. 2, No. 2, pp. 195-223, 2010
This article evaluates the evolving jurisprudence on the precautionary approach (Article 5.7 of the SPS Agreement) in World Trade Organization dispute settlement. While the jurisprudence demonstrates that panels and the Appellate Body have balanced a Member’s precautionary autonomy with the WTO obligations of transparency and nondiscrimination, this has not made for fluid jurisprudence and some of the interpretations taken in earlier disputes have not meshed well with the facts or circumstances of subsequent disputes. It is the view of the authors, however, that the interpretive framework developed by the Appellate Body in US/Canada – Continued Suspension could be applied to all circumstances arising from Article 5.7, providing for greater deference to regulatory authorities while at the same time also providing clear boundaries to the scope of Article 5.7. The Appellate Body decision does not answer all remaining questions regarding the scope, coverage and applicability of Article 5.7 or of the SPS Agreement more generally, but it is a step forward in the evolution of decision-making and one that will have continued prominence and importance in the years to come as panels are established in the next generation of SPS Agreement-related disputes.
Number of Pages in PDF File: 31
Keywords: WTO, Precautionary Approach, Precautionary Principle, SPS Agreement, Regulatory Authority
JEL Classification: K33, K23, K32, I18Accepted Paper Series
Date posted: July 23, 2011
© 2013 Social Science Electronic Publishing, Inc. All Rights Reserved.
This page was processed by apollo3 in 0.375 seconds