A Critical Assessment of the WTO’s SPS Agreement
Elgar International Economic Law series
Chapter 12: The Facts of the Health Cases
12.1 INTRODUCTION This chapter provides an overview of cases concerning health regulations decided under the GATT and SPS Agreement and discusses the tensions between health and trade objectives that arise in them. It will be recalled that Chapter 6 sorted cases involving disputes over SPS measures into a typology based on a traffic light analogy, with the colour amber being assigned to cases where health and trade objectives conflict. A number of the health-related disputes that have been adjudicated in the WTO to date can be classified as amber, although some might also be classified as green (serious risk to health) or red (clear case of protectionism). To recap, while cases classified as amber overlap and are not exclusive, at least six possible categories can be identified, namely, cases where: (1) risks are of high probability but not serious; (2) risks are of low probability and not serious; (3) risks are of low probability but are serious; (4) public risk perceptions differ from expert risk perceptions; (5) there is unresolved scientific uncertainty; and (6) there are mixed motives for regulation. The cases are shown and classified in Table 12.1. The classification is not intended to be definitive and all cases are classified under different headings simultaneously. Cases are classified according to how the facts as set out in the parties’ submissions would have looked on their face as this is how panels would have first had to approach their task of adjudication. However, it must be noted that the way...
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