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Law Talk v. Science Talk: The Languages of Law and Science in WTO Proceedings

51 Pages Posted: 29 Nov 2011 Last revised: 4 Mar 2014

Markus Wagner

University of Warwick - School of Law

Date Written: November 29, 2011

Abstract

The languages of law and science differ considerably in their analysis of scientific evidence. Scientific claims are by their nature tied to the conditions under which a given experiment was carried out and the protocol adhered to. In theory at least, science-based discovery processes do not lead to claims regarding a different set of circumstances from those under which a particular problem was analyzed, but rather are open-ended and progressive. Law on the other hand operates in a binary fashion (legal v. illegal) and has – within a confined period of time – to come to a definite conclusion. This dichotomous result is oftentimes ameliorated by the principle of proportionality or other forms of balancing.

WTO law is no exception in this regard. In a considerable number of cases, panels and the AB have had to deal with the question of how to evaluate (often conflicting) scientific evidence brought forth by the parties, such as EC – Asbestos, Japan – Apples, EC – Biotech and US – Continued Suspension. The interplay between law and science is not confined to dispute settlement. The very inclusion of the Agreement on the Application of Sanitary and Phytosanitary Measures recognizes the interplay between scientific evidence to be taken account of in the dispute settlement process of the WTO.

It remains an open question how the two differing languages of law and science can be reconciled and how scientific uncertainty can genuinely be taken into account by the dispute settlement organs. There are a variety of approaches that could be used to “translate” the scientific language into legal decisions. It appears that at least so far, the panels or the AB have not formulated a coherent approach to this question. The article presents and analyzes a variety of available approaches to transmit the findings of science into legal categories: this includes, inter alia, different versions of rational choice theory, precaution and value-based jurisprudence. These approaches are then compared to the body of existing decisions from the WTO dispute settlement organs with a view to developing a more coherent framework.

Keywords: WTO, World Trade Organization, SPS Agreement, sanitatry and phytosanitary measures agreement, science, law

Suggested Citation

Wagner, Markus, Law Talk v. Science Talk: The Languages of Law and Science in WTO Proceedings (November 29, 2011). Fordham International Law Journal, Vol. 35, 2011; University of Miami Legal Studies Research Paper No. 2012-12. Available at SSRN: https://ssrn.com/abstract=1966055

Markus Wagner (Contact Author)

University of Warwick - School of Law ( email )

Gibbet Hill Road
Coventry, CV4 7AL
United Kingdom

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