A Precautionary Approach to Decision Making: The Evolving Jurisprudence on Article 5.7 of the SPS Agreement

Trade, Law and Development, Vol. 2, No. 2, pp. 195-223, 2010

31 Pages Posted: 23 Jul 2011

See all articles by Bryan Christopher Mercurio

Bryan Christopher Mercurio

Chinese University of Hong Kong - Faculty of Law; University of New South Wales - Faculty of Law

Dianna Shao

affiliation not provided to SSRN

Date Written: December 31, 2010

Abstract

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.

Keywords: WTO, Precautionary Approach, Precautionary Principle, SPS Agreement, Regulatory Authority

JEL Classification: K33, K23, K32, I18

Suggested Citation

Mercurio, Bryan Christopher and Shao, Dianna, A Precautionary Approach to Decision Making: The Evolving Jurisprudence on Article 5.7 of the SPS Agreement (December 31, 2010). Trade, Law and Development, Vol. 2, No. 2, pp. 195-223, 2010. Available at SSRN: https://ssrn.com/abstract=1892508

Bryan Christopher Mercurio (Contact Author)

Chinese University of Hong Kong - Faculty of Law ( email )

6/F Western Teaching Complex
Shatin, New Territories
Hong Kong
(852) 2696 1139 (Phone)

University of New South Wales - Faculty of Law

Kensington, New South Wales 2052
Australia

Dianna Shao

affiliation not provided to SSRN ( email )

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