Chapter 12. Assessing The Standard Of Review For Trade-Restrictive Measures In The Sanitary And Phytosanitary Agreement

Abstract

The Beef Hormones case presents an opportunity to examine the standard of review that World Trade Organization (WTO) panels should use when deciding cases under the Sanitary and Phytosanitary Measures (SPS) Agreement. This chapter examines the background of the case and analyzes some of the more important parts of the SPS Agreement that relate to science. It reviews how the panel and Appellate Body handled these principles, and presents the best way to handle them in future cases. A review of the Agreement and the Appellate Body decision in the Beef Hormones case suggests that a three-part test may develop for trade-restrictive measures based on standards that are higher than international standards. This test provides a sound foundation for discussing the validity of SPS measures, and requires that such measures be based on scientific principles, based on a valid risk assessment, and not maintained without sufficient scientific evidence. Keywords: Appellate Body; Beef Hormones case; international standards; Sanitary and Phytosanitary Measures (SPS) Agreement; three-part test; trade-restrictive measures; World Trade Organization (WTO) panels