1 US- Continued Suspension of Obligations in the EC-Hormones Dispute Report of the Appellate Body WT/DS320/AB/R, adopted 14 November 2008 DSR 2008:X 3507; Canada-Continued Suspension of Obligations in the EC-Hormones Dispute Report of the Appellate Body, WT/DS320/AB/R, adopted 14 November 2008 (references below are to the US Appellate Body Report); Australia – MeasuresAffecting the Importation of Apples from New Zealand, Report of the Appellate Body, WT/DS367/AB/R, 29 November 2010. The implications of this review process will be discussed below.

2 Lawrence Busch, Robin Grove-White, Sheila Jasanoff, David Winickoff, Brian Wynne “Amicus Curiae Brief: Submitted to the Dispute Settlement Panel of the World Trade Organisation in the case of EC: Measures Affecting the Approval and Marketing of Biotech Products” 30 April 2004, at 20.

3 Fisher, Elizabeth, Risk Regulation and Administrative Constitutionalism (Oxford and Portland, Oregon: Hart Publishing 2007) at p. 31 Google ScholarPubMed, referring to Richardson, , Democratic Autonomy: Public Reasoning about the ends of Policy, (New York: Oxford University Press 2002).Google Scholar

4 Steele, Jenny, “Participation and Deliberation in Environmental Law: Exploring a Problem-Solving Approach” 21 Oxford Journal of Legal Studies, (2001) pp 415 et sqq.CrossRefGoogle Scholar

5 Winickoff, David, Jasanoff, Sheila, Busch, Lawrence, Grove-White, Robin, Wynne, Brian “Adjudicating the GM Food Wars: Science, Risk and Democracy in World Trade Law” 30 Yale Journal of International Law (2005) pp. 81 et sqq., at p. 94Google Scholar. See also Risse, Thomas “Social Constructivism Meets Globalization” in Held, David and McGrew, Anthony (eds) Globalization Theory: Approaches and Controversies, (Cambridge: Polity Press 2007), at p. 140.Google Scholar

6 Winickoff, Jasanoff, Busch et al., Adjudicating the GM Food Wars, supra note 5, at p. 96.

7 United States-Certain Measures Affecting Imports of Poultry from China, Report of the Panel, WT/DS392/R 29 September 2010, at para. 7.135. This is consistent with the Decision on the Implementation of Article 4 of the Agreement on the Application of Sanitary and Phyto-Sanitary Measures, Document G/SPS/19/rev.2, 23 July 2004, at para. 2.

8 For detailed analysis of and comment upon the SPS see in particular Scott, Joanne Commentary on the Sanitary and Phytosanitary Measures Agreement, (Oxford: Oxford University Press 2007).Google Scholar

9 Article 2.2 SPS. In EC-Biotech the panel observed that there are three prongs to Article 2.2 SPS (measures (i) cannot go beyond what is ‘necessary’, (ii) must be based upon science, and (iii) must be supported by ‘sufficient’ scientific evidence) however on the facts the panel did not examine the question of ‘necessity’, focussing instead upon the questions of the nature and suffi ciency of scientifi c evidence; it is these which have subsequently prompted the greatest discussion. Measures affecting the Approval and marketing of Biotech Products, Report of the Panel WT/DS291–3/R, 29 September 2006, at para. 7.3394. On the potential interpretation of ‘necessity’ see further Scott, Commentary on the Sanitary and Phytosanitary Measures Agreement, supra note 8, at p.85.

10 Note (2) to the SPS Agreement explains that: “… there is a scientifi c justifi cation if, on the basis of an examination and evaluation of available scientifi c information in conformity with the relevant provisions of this Agreement, a Member determines that the relevant international standards, guidelines or recommendations are not sufficient to achieve its appropriate level of sanitary or phytosanitary protection.”

11 Article 5.1 SPS

12 Article 5.2 SPS.

13 Article 5.3 SPS.

14 Article 5.5 SPS.

15 A note to Article 5.6 SPS clarifies that “a measure is not more traderestrictive than required unless there is another measure, reasonably available taking into account technical and economic feasibility, that achieves the appropriate level of sanitary or phytosanitary protection and is significantly less restrictive to trade”.

16 While Annex A.4 SPS provides a definition this relates to the nature of the substantive risks to be evaluated, rather than the process itself: “the evaluation of the likelihood of entry, establishment or spread of a pest or disease within the territory of an importing Member … and of the associated potential biological and economic consequences; or the evaluation of the potential for adverse effects on human or animal health arising from the presence of additives, contaminants, toxins or disease causing organisms in food, beverages or feedstuffs.”

17 European Communities-Measures Concerning Meat and Meat Products (Hormones), Panel Report, WT/DS26/R/USA, WT/DS248/R/ Canada adopted 18 August 1997, at US Panel Report, paras. 8.94– 8.95, Canada Panel report, paras. 8.97–8.98. US- Continued Suspension Panel Report,WT/DS320/R at para. 6.99, Panel Report Canada – Continued Suspension WT/DS321/R at para. 6.91.

18 See for example the White Paper on Food Safety COM (99) 719. See further Alberto Alemanno, “Science and EU Risk Regulation: The Role of Experts in Decision-making and Judicial Review”, available on the Internet at <http://papers.ssrn.com/so13/papers.cfm?abstract_id=1007401> (last accessed on 1November 2012). Such a distinction also applies in the US and under the Codex.

19 EC-Measures Concerning Meat and Meat Products (Hormones), Report of the Appellate Body WT/DS26/AB/R, WT/DS248/AB/R adopted 13 February 1998, DSR 1998:I, 135 at para. 181.

20 Supra note 1 at para. 542.

21 Supra note 19 at para. 115.

22 Ibid. at para. 180

23 Ibid. at para. 117.

24 Ibid. at para. 187.

25 Fisher, Risk Regulation and Administrative Constitutionalism, supra note 3 at p. 189.

26 Australia-Measures Affecting Importation of Salmon, Panel Report, WT/DS18/R, adopted 12 June 1998.

27 Australia-Measures Affecting Importation of Salmon, Report of the Appellate Body, WT/DS18/AB/R, adopted 20 October 1998.

28 Japan-Measures Affecting the Importation of Apples, Report of the Appellate Body, WT/DS245/AB/R, adopted 10 December 2003, DSR 2003: IX, 4391 paras. 162 and 163, referring to Japan-Measures Affecting Agricultural Products II, Report of the Appellate Body WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, 277.

29 Japan-Apples, Appellate Body Report, ibid. at para. 164, again referring to Japan–Agricultural Products II, ibid. at para. 84.

30 Continued Suspension, supra note 1.

31 Ibid. at para. 590.

32 Ibid. at para. 591.

33 US-Continued Suspension Appellate Body Report, supra note1 at para. 542.

34 Ibid. at para. 685. “A WTO Member that adopts an SPS measure resulting in a higher level of protection than would be achieved by measures based on international standards must nevertheless ensure that its SPS measure complies with the other requirements of the SPS Agreement, in particular Article 5”.

35 Ibid. at para 592.

36 Ibid.

37 Ibid.

38 See below.

39 Australia-Apples, supra note 1.

40 Australia's Appellant's submission para 76, quoted at para. 22, Appellate Body Report, ibid. (emphasis in original).

41 Australia-Apples, Appellate Body Report ibid. at para. 220.

42 Ibid. at para. 222.

43 Ibid. at para. 224.

44 US-Continued Suspension Appellate Body Report, supra note 1.

45 Gruszczynski posits that “it is also possible that the Appellate Body wants to apply a more deferential standard of review in human health related trade disputes (such as Continued Suspension), while in traditional phytosanitary cases the applicable standard will remain intrusive.” See Gruszczynski, Lukasz, “How Deep Should We Go? – Searching for an Appropriate Standard of review in the SPS Cases”, 2 European Journal of Risk Regulation (2011), pp. 55 et sqq, at p. 58.CrossRefGoogle Scholar

46 EC-Hormones, supra note 19. at para. 187.

47 EC-Hormones, supra note 19 and US-Continued Suspension supra note 1. See text accompanying notes 19, 24–25 and 33 above.

48 Hoekman, Bernard and Trachtman, Joel “Case Comment: Continued Suspense: EC-Hormones and WTO disciplines on discrimination and domestic regulation: Appellate Body Reports: Canada/United States – Continued Suspension of Obligations in the EC-Hormones Dispute, WT/DS320/AB/R, WT/DS321/AB/R, adopted 14 November 2008”, 9 World Trade Review (2010) pp. 151 et sqq, at p. 176.CrossRefGoogle Scholar

49 Ibid. Note that this is not to suggest that the test based on science will necessarily exclude all protectionist measures.

50 See Angelo, Mary Jane, “Harnessing the Power of Science in Environmental Law: Why we should, why we don't and how we can (notes)”, 86 Texas Law Review (2008), pp. 1527 et sqq.Google Scholar

51 Perez, Oren, “Anomalies of the precautionary kingdom: reflections on the GMO Panel's decision”, 6 WTR (2007), pp. 265 et sqq.CrossRefGoogle Scholar

52 EC-Hormones supra note 17, US Panel Report at para. 8.152. Canada Report at 8.155.

53 EC-Hormones, AB Report supra note 19 at para. 186.

54 Jasanoff, Sheila, Designs on Nature (Princeton: Princeton University Press 2005).CrossRefGoogle Scholar

55 Ibid., at p. 260.

56 See inter alia Winickoff, Jasanoff, Busch et al., Adjudicating the GM Food Wars, supra note 5; Fisher, Risk Regulation and Administrative Constitutionalism, supra note 3; Kritikos, Mihail, “Traditional Risk Analysis and Releases of GMOs into the European Union: space for non-Scientific Factors?” 34 European Law Review (2009), pp. 405 et sqq Google Scholar; Howse, Robert and Mavroidis, Petros C “Europe’s evolving regulatory strategy for GMOs – The Issue of Consistency with WTO Law: Of Kine and Brine” 24 Fordham International Law Journal (2000), pp. 317 et sqq Google Scholar; Sunstein, Cass R and Pildes, Richard, “Experts, Economists and Democrats” in Sunstein, Cass R, Free markets and Social Justice (Oxford: Oxford University Press, 1997)Google Scholar; Food and Agricultural Organization of the United Nations (FAO), FAO Expert Consultation on Food Safety: Science and Ethics September 2002, available on the Internet at <http://www.fao.org/docrep/006/j0776e/j0776e00.htm> (last accessed on 01November 2012).

57 EC-Hormones AB Report, at para. 181 supra note 19 and accompanying text. See also text accompanying notes 24–25, 33 and 47 above.

58 US-Continued Suspension Appellate Body Report, supra note 1 at para. 590, emphasis added.

59 See further Howse, Robert “Democracy, Science and Free Trade: Risk Regulation on Trial at the World Trade Organization”, 98 Michigan Law Review (1999–2000), pp. 2329 et sqq., at p. 2335.CrossRefGoogle Scholar

60 Fisher, Risk Regulation and Administrative Constitutionalism, supra note 3, at pp. 16–18.

61 See Howse, “Democracy, Science and Free Trade”, supra note 59 at p. 2335 referring to Sunstein and Pildes, “Experts, Economists and Democrats”, supra note 56.

62 See text accompanying note 8.

63 Such justification can only be on the grounds of a specifi ed (exhaustive) list of objectives (including human animal or plant health) (Article 36 TFEU) or, for “indistinctly applicable” measures only (those which apply to both imported and domestically produced products without distinction) by reference to a “mandatory requirement”, that is an over-riding public policy objective or value (demonstrably of particular signifi cance to the regulating state.) See Case 120/78 Rewe Zentral AG v. Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] ECR 649. See further Barnard, Catherine, EU Substantive Law, 3rd Ed. (Oxford: Oxford University Press 2010).Google Scholar

64 This is not to suggest that the Appellate Body could or should follow the ECJ's example in its interpretative approach. The Appellate Body does not have the same interpretative role as the ECJ (and the WTO does not have the same objectives as the EU) and questions would arise relating to the AB's (lack of) mandate were it to seek to apply an activist interpretative approach.

65 Fisher, Risk Regulation and Administrative Constitutionalism, supra note 3, at 178–9.

66 See Opinion of Advocate General Tesauro in Case C-292/92 Hunermund v. Landesapthekerkammer [1993] ECR I-6787; Opinion of Advocate General Maduro in Case C-158/04 Alfa Vita Vassilopoulos (Trofo Super-Markets) [2006] I-8135, paras 43–45.

67 See Reid, Emily, “Regulatory Autonomy in the EU and WTO: Defining and Defending its Limits”, 44 Journal of World Trade (2010), pp. 977 et sqq.Google Scholar