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Regulating Health and Environmental Risks under WTO LawA Critical Analysis of the SPS Agreement$
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Lukasz Gruszczynski

Print publication date: 2010

Print ISBN-13: 9780199578924

Published to Oxford Scholarship Online: May 2010

DOI: 10.1093/acprof:oso/9780199578924.001.0001

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Precaution and the SPS Agreement

Precaution and the SPS Agreement

(p.157) 5 Precaution and the SPS Agreement
Regulating Health and Environmental Risks under WTO Law

Lukasz Gruszczynski

Oxford University Press

This chapter analyzes the relevance of the precautionary principle in the context of the SPS Agreement. The first part addresses the principle as such and attempts to assess its impact on the interpretation of various SPS provisions. The second part concentrates on Article 5.7, which is recognized as a specific SPS formulation of the principle. A separate analysis is conducted with respect to systemic (i.e. the applicability of Article 5.7, allocation of burden of proof) and substantive (i.e. the normative content of its obligations) issues. In this context, the chapter identifies a number of limitations in the earlier jurisprudence, including the conceptualization of insufficient scientific evidence as an absolute category independent from normative considerations. Nevertheless, it concludes that more recent case law appears to properly address the major points of concern, leaving WTO Members with a considerable degree of regulatory freedom.

Keywords:   burden of proof, hormones, indeterminacy, precaution, precautionary principle, rules of interpretation, standard of review, uncertainty, variability, Vienna Convention

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