To justify certain sanitary and phytosanitary measures vis-à-vis New Zealand apple fruit, Australian authorities performed an import risk assessment that was riddled with scientific uncertainty. The quality and reliability of this assessment was the central bone of contention between the parties in the Australia–Apples dispute. In consequence, it featured prominently in the Appellate Body's discussion. In commenting on the Appellate Body Report, we are concerned with the standard of review of Members' decisions that are taken in situations of factual uncertainty. We discuss the elements in a Member's risk assessment that, in our view, should be considered ‘off limits’ for review by Panels if such assessment was performed in the presence of uncertain scientific facts, and how high degrees of uncertainty affect a Panel's ability to assess alleged less-trade-restrictive alternatives. Relying on findings from the disciplines of economics, decision analysis, and risk management, we introduce a basic framework for decisionmaking in conditions of uncertainty. We submit that certain types of decisions taken by the risk assessor cannot be subject to external review, since they necessarily contain subjective trade-offs on the part of the risk assessor. Applying our theoretical insights to the Apples case, we offer a series of recommendations concerning Panels' discretion to review Members' risk assessments and suggest concrete modifications to the standard of review currently applied by the Appellate Body.

At the heart of the dispute on EC–IT Products1 is the definition of information-technology (IT) products and the question of how to treat increasingly multifunctional high-tech goods. The dispute was triggered by various measures introduced by the European Union, resulting in the imposition of duties of up to 14% pertaining to the tariff treatment of certain multifunctional IT products. The complaining parties (the United States, along with Japan and Taiwan) argued that, by introducing these duties, the EU had violated the 1996 Information Technology Agreement (ITA). The WTO Panel Report, circulated on 16 August 2010, ruled in favor of the complaining parties, and ordered the EU to repeal the measures leading to the dutiable treatment of the products at stake. We argue that the Panel's ruling enhances the credibility of trade-policy liberalization in the high-tech sector, fostering the development of new technologies.

This paper analyzes the dispute between Thailand and the United States regarding the method of calculating the anti-dumping duty on polyethylene retail carrier bags from Thailand. In December 2006, after a series of WTO Appellate Body reports, the United States ceased zeroing in original investigations. The United States implemented the policy change prospectively, that is only for future cases. Consequently, the margins in this case remained unchanged because they had been calculated in 2004. Thailand challenged the United States' use of zeroing in the final determination. The US did not contest the claim. The Panel confirmed that zeroing was used and, following the long line of Appellate Body rulings, found the United States' practice inconsistent with Article 2.4.2 of the Anti-Dumping Agreement. After the Panel Report was adopted, the United States retroactively applied the policy change to the facts of this case and recalculated the margins without zeroing. The relative simplicity of the panel proceeding and the United States' willingness to amend the calculations following the adoption of the Panel Report may invite other WTO members to pursue a similar course of action in instances where their exporters have been subjected to US zeroing.

US–Poultry (China) was the first Panel decision dealing with an origin-specific SPS measure, or with what the United States referred to as an ‘equivalence regime’. More specifically, it was the first instance in which the basis for the challenged measure was the claimed inability of the complainant country to enforce its own food-safety rules. Unfortunately, as the litigation developed, the very interesting novel issues raised by such a measure were not discussed. This essay discusses those novel issues – in particular, what sort of scientific justification or risk assessment should be required for a measure like this, and what SPS Article 4 says about equivalence regimes. The essay also criticizes the Panel's analysis of some of the issues the Panel does discuss, such as the meaning of the ‘appropriate level of protection’ in SPS 5.5 and 5.6, and the relationship between the SPS and GATT XX(b).

Professor Regan's paper on the US–Poultry (China) case provides highly interesting insight both into the facts of the case and the Panel's reasoning, as well as the broader systemic issues lurking behind them. The author has identified a number of thought-provoking aspects in a case that, at first glance, appears to be a relatively bland SPS dispute.