The WTO Agreement on Sanitary and Phytosanitary (SPS) Measures as Applied in the First Three SPS Disputes: EC--Hormones, Australia--Salmon and Japan--Varietals

Joost Pauwelyn

Journal of International Economic Law, 1999, vol. 2, issue 4, 641-64

Abstract: One of the new WTO agreements that panels and the Appellate Body had to deal with in a number of recent disputes is the Agreement on Sanitary and Phytosanitary (SPS) Measures. This article focuses on the legal principles of the SPS Agreement as interpreted and established by Appellate Body and panel jurisprudence in the two most prominent cases under the SPS Agreement, the EC-Hormones case and the Australia-Salmon case, as well as the recently concluded Japan-Varietals case. Substantive rights and obligations such as scope of application, scientific evidence, risk assessment and the factors to be looked at in assessing risk, provisional measures, the acceptable level of risk for WTO Members, non-discrimination under Articles 2.3 and 5.5 SPS, and measures in the presence of international standards are examined. The above-mentioned cases also involved a number of procedural issues with particular relevance to disputes on SPS measures, such as the panel's terms of reference, the burden of proving whether a risk exists, the extent of a panel's investigation and the role of scientific experts. The status of implementation of reports is also briefly addressed. Copyright 1999 by Oxford University Press.

Date: 1999
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