The WTO Agreement on Sanitary and Phytosanitary Measures: A Commentary (Oxford Commentaries on International Law)

Cover
Series
THE WTO AGREEMENT ON SANITARY AND PHYTOSANITARY MEASURES
Copyright
Contents
Table of the WTO Cases
Table of Cases
Table of Legislation
List of Abbreviations
Introduction to the Second Edition
Introduction to the First Edition
1 INTRODUCING THE SPS AGREEMENT
	1.1 Introduction
	1.2 The Concept of an SPS Measure (Annex A(1))
		1.2.1 Territorial Limitation
		1.2.2 Functional Limitations: Specific Interests (Objectives) and Risk Factors
		1.2.3 Identifying the Objective of a Measure
		1.2.4 Measures with Multiple Objectives
		1.2.5 Other Constitutive Elements
		1.2.6 Legal Form and Nature of a Measure
		1.2.7 Temporal Dimension
	1.3 Direct or Indirect Effect on International Trade (Article 1.1)
	1.4 The Relationship between the SPS Agreement and the GATT/​TBT (Articles 2.4 and 1.4)
	1.5 Implementation (Article 13)
	1.6 Autonomy in Setting the Appropriate Level of Protection (Article 2.1)
2 COOPERATIVE REGULATION IN THE WTO: THE SPS COMMITTEE
	2.1 Introduction
	2.2 The SPS Committee (Article 12)
	2.3 Information Exchange and Peer Review (Specific Trade Concerns)
	2.4 The SPS Committee and Norm Elaboration
		2.4.1 Regulating the Operation of the Committee
		2.4.2 Monitoring the Process of International Harmonization (Articles 3.5 and 12.4)
		2.4.3 Elaborating the Norms Laid Down in the Agreement
	2.5 Conclusions
3 SCIENCE AND SPS
	3.1 Introduction
	3.2 The Science-​Based Obligations
	3.3 The Relationship between Articles 2.2 and 5.1
	3.4 Article 2.2
		3.4.1 Sufficient Scientific Evidence
	3.5 Risk Assessment (Article 5.1)
		3.5.1 What Counts as Risk Assessment for Article 5.1?
			3.5.1.1 Minimum magnitude of risk
			3.5.1.2 Likelihood and potential
			3.5.1.3 Specificity of risk assessment
			3.5.1.4 Consideration of alternatives
			3.5.1.5 Risk assessment as appropriate to the circumstances
			3.5.1.6 Factors to be taken into account in risk assessment (Articles 5.1–​5.2)
			3.5.1.7 Economic considerations in risk assessment (Annex A(4) and Article 5.3)
		3.5.2 What Does It Mean for a Measure to Be Based on Risk Assessment?
			3.5.2.1 Objective relationship
			3.5.2.2 Minority scientific opinions
	3.6 Temporal Dimension
	3.7 Dispute Settlement Dimensions
		3.7.1 Burden of Proof
		3.7.2 Scientific Experts in SPS Dispute Settlement (Articles 13.2 DSU and 11.2 SPS)
		3.7.3 Standard of Review (Article 11 DSU)
	3.8 Conclusions
4 PROVISIONAL SPS MEASURES
	4.1 Introduction
	4.2 Article 5.7 in the Framework of the SPS Agreement
		4.2.1 The Relationship between Articles 2.2 and 5.7
		4.2.2 The Relationship between Articles 5.1 and 5.7
		4.2.3 Article 5.7 and Other SPS Provisions
	4.3 Article 5.7 and Its Conditions
		4.3.1 Background Condition: Insufficient Scientific Evidence
		4.3.2 Additional Latitude: Basing Measures on Available Pertinent Information
		4.3.3 Provisionality I: Seek Additional Information
		4.3.4 Provisionality II: Review a Measure within Reasonable Period of Time
	4.4 A Brief Note on the Precautionary Principle
	4.5 Dispute Settlement Dimensions
		4.5.1 Burden of Proof
		4.5.2 Standard of Review (Article 11 DSU)
	4.6 Conclusions
5 ADDITIONAL OBLIGATIONS
	5.1 Introduction
	5.2 Non-​Discrimination (Articles 2.3 and 5.5)
		5.2.1 Article 2.3
		5.2.2 Article 5.5
			5.2.2.1 Different levels of protection in different situations
			5.2.2.2 Arbitrary or unjustifiable differences
			5.2.2.3 Discrimination or disguised restriction on international trade
			5.2.2.4 The Article 5.5 Guidelines
			5.2.2.5 The Relationship between Articles 2.3 and 5.5
	5.3 Least Trade-​Restrictive Means (Article 5.6)
	5.4 Equivalence (Article 4)
	5.5 Regionalization (Article 6)
	5.6 Conclusions
6 THE TRANSPARENCY OBLIGATIONS
	6.1 Introduction
	6.2 Legal Framework (Article 7 and Annex B)
	6.3 SPS Regulations (Annex B(1))
	6.4 Notification (Annex B(5) and B(6))
		6.4.1 Notification, International Standards, and Substantial Sameness
		6.4.2 Significant Effect on Trade
		6.4.3 Regular Notification
		6.4.4 Notification of Emergency Measures
		6.4.5 SPS and TBT Notifications
		6.4.6 Notification of Equivalence Agreements
	6.5 Publication (Annex B(2))
	6.6 Responding to Enquiries (Annex B(3))
	6.7 Transparency: The Language Dimension (Annex B(11)(a))
	6.8 Transparency: An Assessment
	6.9 The Role of the Secretariat
		6.9.1 Facilitates Understanding
		6.9.2 Dissemination of Information
		6.9.3 Reflexivity
		6.9.4 Transparency about Transparency
7 CONTROL, INSPECTION, AND APPROVAL PROCEDURES
	7.1 The Procedural Turn in Law
	7.2 Article 8 and Annex C: Control, Inspection, and Approval Procedures
		7.2.1 Annex C(1)
			7.2.1.1 Annex C(1)(a) first clause
			7.2.1.2 Annex C(1)(a) second clause
			7.2.1.3 Annex C(1)(b)
			7.2.1.4 Annex C(1)(c)–​(i)
		7.2.2 Annex C(2)
		7.2.3 Annex C(3)
8 INTERNATIONAL STANDARDS
	8.1 Introduction
	8.2 What Are International Standards in the SPS System (Annex A(3))?
	8.3 The Sister Organizations
		8.3.1 The Codex Alimentarius Commission (Codex)
		8.3.2 The World Organization for Animal Health (OIE)
		8.3.3 The International Plant Protection Convention (IPPC)
	8.4 WTO Members and International Standards
		8.4.1 Basing Measures on International Standards (Article 3.1)
			8.4.1.1 When will international standards be deemed to ‘exist’?
			8.4.1.2 What does it mean to say that an SPS measure is (or is not) based on such standards?
			8.4.1.3 When can members choose not to base their measures on international standards (Article 3.3)?
		8.4.2 Measures Conforming to International Standards (Article 3.2)
		8.4.3 International Standards and the Burden of Proof
		8.4.4 Can International Standards Be Used to Ratchet Up Members’ Levels of Protection?
	8.5 Monitoring the Use of International Standards (Articles 3.5 and 12.4)
	8.6 Participation of Developing Country Members in International Standard-​Setting (Articles 3.4 and 10.4)
	8.7 Conclusions
9 THE SPS AGREEMENT AND DEVELOPING COUNTRIES
	9.1 The SPS Agreement and the Development Challenge
	9.2 The SPS Agreement and Developing Countries: Special and Differential Treatment and Technical Assistance
		9.2.1 Special and Differential Treatment (Article 10)
			9.2.1.1 Taking account of special needs of developing countries (Article 10.1)
			9.2.1.2 Phased introduction of new SPS measures (Article 10.2)
			9.2.1.3 Other relevant SPS provisions
			9.2.1.4 S&D treatment in the WTO practice
		9.2.2 Technical Assistance (Article 9)
	9.3 Private Standards
		9.3.1 Private Standards as a Challenge for Developing Countries
		9.3.2 Members’ Obligations with Regard to Non-​Governmental Entities (Article 13)
	9.4 Dispute Settlement and Developing Countries
	9.5 Conclusions
10 LOOKING BEYOND THE SPS AGREEMENT
	10.1 Introduction
	10.2 SPS Requirements in FTAs
		10.2.1 General Remarks
		10.2.2 Harmonization
		10.2.3 Science-​Based Obligations
		10.2.4 Regionalization
		10.2.5 Equivalence
		10.2.6 Control, Inspection, and Approval Procedures
			10.2.6.1 Audits and verifications
			10.2.6.2 Certification
			10.2.6.3 Import checks
			10.2.6.4 Conclusions
		10.2.7 Transparency
		10.2.8 Emergency Measures
		10.2.9 Trade in Biotechnology Products
		10.2.10 Institutional Arrangements
		10.2.11 Technical Consultations and Dispute Settlement
	10.3 Conclusions: Understanding the Relationship between the SPS Agreement and FTA Chapters
Appendix: Agreement on the Application of Sanitary and Phytosanitary Measures
Index