Risk, Science and Law in the WTO: The Centrality of Institutional Choice

Abstract

It is sometimes observed that in our complex, technologically-dynamic world, legal institutions attempt to import science into law and export law’s problems to science. This essay assesses the relation of risk, science and law in the World Trade Organization (WTO). It responds to the question what ought a WTO panel to do in light of the texts of the WTO agreements. Although it focuses on the Agreement on Sanitary and Phytosanitary Measures, it provides a general framework of analysis. At a first order of analysis, the essay notes how we can view WTO dispute settlement as involving a double delegation of authority to two non-majoritarian institutions for resolving disputes over risk regulation that affects trade: (i) step 1: a quasi-judicial body; (ii) step 2: independent scientific experts who cognitively shape the way the judicial body views the issues. From a second order of analysis, however, WTO panels and the Appellate Body face interpretive choices of how to weigh science and the application of a risk assessment that will have institutional implications. The essay views the interpretive choices as implicating different allocations of institutional authority, which are categorized into five ideal types. The essay contends that the choice of process-based review is typically the best one, since it is one where judicial panels have relative experience and capacity. Yet it also maintains that WTO panels have good reason to maintain the option of engaging in more than purely procedural review, while remaining aware of the limitations of scientific methods. The arguments were presented at the ASIL annual meeting in 2010.

Keywords: International, International Economic Law, International Law, Science, Risk, Risk Assessment, WTO, SPS Agreement, GMOs, comparative institutional analysis