European Communities – Measures Affecting the Approval and Marketing of Biotech Products

The EC-Biotech dispute exposed the WTO dispute settlement system to a more challenging test than any previous dispute. Not only did the Panel have to take a stand on the limits of science, or technocratic regulatory controls, to protect against objective risk, but in this regard faced more complex issues than ever addressed before by an adjudicating body. The dispute also concerned an extremely charged political issue, partly because of inherent ethical sensitivities with regard to foodstuffs, partly due to public skepticism about the role of science, and partly due to a common public perception of the complaint as being driven by the interests of an untrustworthy industry. Because of these and other challenges, the Panel faced an almost impossible task. This paper discusses how the Panel addressed some of these issues. The recently (after our report was drafted) decided appeal in EC–Hormones Suspension is likely to reduce the significance for WTO jurisprudence of some of the Panel’s findings in EC–Biotech, given the apparently different approach of the AB to fundamental interpretative issues under SPS concerning the meaning of risk assessment and precaution.