Mobilising scientific expertise against trade restrictions. A case of dispute over the regulation of gmos at the world trade organization
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Abstract
The World Trade Organization (WTO) dispute settlement procedure is a key area for establishing global legal standards for what is considered relevant knowledge. As a high-profile case, the WTO trade dispute over GMOs mobilized and appropriated scientific knowledge in somewhat novel ways. The Panel interpreted the Sanitary and Phitosanitary Agreement (SPS)framework as a requirement for "risk assessment", i.e. the quantification of probabilities and consequences, and the imposition of additional burdens on the defendant for the production of evidence. By imposing "the most restricted applications to date of the notion of SPS risk assessment" (Peel, 2010: 244), the WTO Panel further globalized a "science-based risk assessment" that had emerged during the Reagan administration of the United States (Jasanoff, 2011).From the outset, the Panel placed the dispute under the Sanitary and Phytosanitary Agreement (SPS) through a new legal ontology; classified transgenes as potential pests; and limited all environmentalissues to the category of "plant and animal health. Within the SPS framework, which focused on the respondent's regulatory procedures, the Panel organized scientific expertise specifically to establish how the experts were to be questioned, the answers they would give, their specific role in the legal arena, and how their statements would complement the Panel's findings.In addition, the Panel gave a procedural twist to WTO jurisprudence by presenting its findings as a purely legal-administrative judgment on whether EC regulatory procedures violated the SPS Agreement. In the meantime, the Panel implicitly maintained its own judgments on substantive risk issues. As this case illustrates, the WTO dispute settlement process creates new scientific experience for the main task of challenging trade restrictions as overly cautious.
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