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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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Risk Management Disciplines and the SPS Agreement

Risk Management Disciplines and the SPS Agreement

(p.219) 6 Risk Management Disciplines and the SPS Agreement
Regulating Health and Environmental Risks under WTO Law

Lukasz Gruszczynski

Oxford University Press

This chapter concentrates on the risk management dimension of the SPS Agreement. It submits that the concept of risk management may be legitimately used in the context of the SPS Agreement, while its recognition helps to reconcile the WTO's obligations with international and domestic practice in the SPS field. The second part addresses the specific SPS requirements that are relevant to risk management actions. This includes disciplines pertaining to the determination of an appropriate level of protection, options evaluation, implementation and maintenance of SPS measures, and their monitoring and review. The chapter notes the moderate success of case law in elucidating the normative content of relevant provisions and identifies those developments that appear unsatisfactory (e.g. the proportionality requirement). Special attention is also given to the problem of risk perception as a possible justification for divergences in domestic risk regulations. In this context, the chapter argues that the role of Article 5.5 is limited to detection of discrimination rather than imposing any technocratic rationality.

Keywords:   ALOP, level of protection, consistency, equivalence, GATT, necessity, non-discrimination, proportionality, regionalization, risk management

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