Risk Assessment Review Under the WTO Disputes Settlement System

Abstract

Regulations inspecting and restricting imported goods are important tools for any modern nation to protect the health of its citizens and of the living organisms within its borders. In order to prevent nations from using these tools to accomplish protectionist goals, and to further minimize unnecessary barriers to trade, the World Trade Organization (hereinafter “WTO”) requires such measures to be based on a risk assessment conforming to scientific principles. This paper focuses on the review standard adopted by WTO adjudicating bodies when reviewing the consistency with such risk assessment with the Agreement on the Application of Sanitary and Phytosanitary Measures. The standard of review employed by earlier WTO panels in their reviewing of Member’s risk assessment is, or is at least very close to, a de novo one. In order to correct previous trends, the Appellate Body in the Hormone Suspension case indicated that a proper standard of review requires the panel scrutinizing such a measure not to conduct its own risk assessment nor to make its own scientific judgment, but simply to ensure that the assessment was conducted.

Keywords: standard of review, SPS Agreement, dispute settlement, scientific evidence, WTO