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The Role of Science in Risk Regulation under the SPS Agreement


Lukasz Gruszczynski


Polish Academy of Sciences - Institute of Legal Studies

February 2006

EUI Law Working Paper No. 2006/03

Abstract:     
This paper attempts to present a comprehensive and coherent picture of the role performed by science under the Sanitary and Phytosanitary Measures (SPS) Agreement and SPS case law. It argues that the approach adopted by the Appellate Body is predominantly based on a technical paradigm, supplemented, however, with some considerations arising from other paradigms. The paper argues that the approach adopted in the case law is generally compatible with the text of the SPS Agreement and provides a coherent SPS system. However, it also identifies certain areas which lack coherence, as certain standards seem to violate the right of the member states to establish an appropriate level of protection. These are: ascertainability of the risk as a precondition for valid risk assessment; strict specificity of the risk assessment in low-risk situations; the proportionality between the risk identified and the SPS measure; the notion of negligible risks; and the concept of likelihood in the quarantine risk assessments. The paper claims that these standards cannot be generally applied in SPS disputes as, in certain situations, they will result in the violation of the right of member states to establish an appropriate level of SPS protection. Finally, a number of specific issues are highlighted which require further clarification in case law, such as the issue of the quality of minority scientific opinions and the relationship between the insufficiency of scientific evidence and scientific uncertainty. The paper suggests that the ultimate role ascribed to science under the SPS Agreement can be assessed only after an interpretation of those issues is provided by future case law.

Number of Pages in PDF File: 36

Keywords: WTO, SPS Agreement, Risk Regulation, Science and Risk, Risk Assessment, Risk Management, Precautionary Principle, International Trade

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Date posted: March 20, 2006  

Suggested Citation

Gruszczynski, Lukasz, The Role of Science in Risk Regulation under the SPS Agreement (February 2006). EUI Law Working Paper No. 2006/03. Available at SSRN: http://ssrn.com/abstract=891114 or http://dx.doi.org/10.2139/ssrn.891114

Contact Information

Lukasz Adam Gruszczynski (Contact Author)
Polish Academy of Sciences - Institute of Legal Studies ( email )
Nowy Swiat St. 72
Warsaw, 04-074
Poland
+48 22 8267571 (Phone)
+48 22 8267853 (Fax)
HOME PAGE: http://www.inp.pan.pl
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