The role of experts in environmental and health-related trade disputes in the WTO: deconstructing decision-making processes

Abstract

Participation of scientific experts has become a characteristic feature of contemporary decision-making and adjudication processes. The prominent role played by experts is not limited to the national level; in fact it is probably even more important at the international niveau, where their employment is indispensable not only because of complexities involved but also because of their legitimizing function. The legal system created by the World Trade Organization (WTO) in not the exception. It requires, either implicitly or explicitly, recourse to science and scientific expertise to assess the legality of national measures that have an impact on international trade. The most elaborated framework is provided by the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), which openly designates science as a criterion for distinguishing between permitted and prohibited sanitary and phytosanitary (SPS) measures. This chapter analyses the organization of scientific experts’ advice as well as the role of experts in the settlement of SPS-related trade disputes, linking these issues with the problem of input legitimacy (and corresponding compensatory mechanisms used to compensate for lack of democratic credentials). In particular, the chapter argues that there are, as far as the participation of experts in the WTO proceedings is concerned, certain problematic aspects in the practice of dispute settlement bodies. The potential challenges relate to various issues such as modes of consultation, guarantees for impartiality of experts or the communication process that take place between panellist and scientists (experts). The chapter submits in this context that failures in those areas may compromise two compensatory mechanisms that are used to ensure input legitimacy (i.e. quality of a decision-making process and decision maker) and therefore affect the overall legitimacy of rendered decisions.