Beyond the Science/Democracy Dichotomy: The World Trade Organisation Sanitary and Phytosanitary Agreement and Administrative Constitutionalism

CONSTITUTIONALISM, MULTI-LEVEL TRADE GOVERNANCE, AND SOCIAL REGULATION, C. Joerges, E-U. Petersmann, eds., Hart Publishing, 2006

Oxford Legal Studies Research Paper No. 30/2006

43 Pages Posted: 7 Jun 2006

See all articles by Elizabeth C. Fisher

Elizabeth C. Fisher

University of Oxford - Faculty of Law

Abstract

It has become popular to characterise the WTO SPS Agreement as imposing scientific requirements in relation to democratic processes of national risk regulation standard setting. This is an incorrect characterisation of risk regulation standard setting and the role of the SPS Agreement. It is incorrect because risk regulation standard-setting is primarily an activity for public administration and not democratic institutions. As such the SPS Agreement is concerned with regulating administrative action and interpretations of the Agreement rest on assumptions about how legitimate public administration is constituted, limited and held to account, or, in other words, theories of administrative constitutionalism. This is illustrated with examining the different approaches taken to interpreting the SPS Agreement by the Panel and the Appellate Body in EC-Hormones. It is also argued that the present focus on the on the science/democracy dichotomy is dangerous because it is resulting in scholars and lawyers pursuing the wrong lines of inquiry in thinking about the SPS Agreement, dispute settlement and the interface between trade regulation and social regulation.

Suggested Citation

Fisher, Elizabeth C., Beyond the Science/Democracy Dichotomy: The World Trade Organisation Sanitary and Phytosanitary Agreement and Administrative Constitutionalism. CONSTITUTIONALISM, MULTI-LEVEL TRADE GOVERNANCE, AND SOCIAL REGULATION, C. Joerges, E-U. Petersmann, eds., Hart Publishing, 2006, Oxford Legal Studies Research Paper No. 30/2006, Available at SSRN: https://ssrn.com/abstract=907021

Elizabeth C. Fisher (Contact Author)

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