A fuzzy look at a fuzzy agreement: Risk management under the WTO SPS Agreement

Abstract

Risk management does not appear explicitly in the SPS Agreement. Support for it appears in the Agreement nonetheless. The Appellate Body has acknowledged that the Agreement does not draw a distinction between assessment and management. Our focus is the assessment and management of risk through interpretation of the expression of the SPS Agreement.The Agreement imposes disciplines on measures implemented for protection of human, animal or plant life and health through the subjectivity of standards. This invites discretionary interpretation and application of policy, particularly with regard to assessment, necessary, and sufficient.Fuzzy logic, rooted in subjectivity and possibility, is particularly suited for analyzing and interpreting standards. It is applied to two manifestations of ambiguity in assessing hazards. One is the level of a risk posing a danger when its level is precisely measured. The other is imprecision in measurement when the level of the hazard that poses a danger is known.Failure to guide interpretation of risk plausibly contributes to disputes over policy. The discussion undertaken by this paper introduces a new means for exporting and importing WTO Members to frame their arguments to one another.