A Precautionary Approach To Decision Making: The Evolving Jurisprudence On Article 5.7 Of The SPS Agreement

Abstract

This article evaluates the evolving jurisprudence on the precautionary approach (Article 5.7 of the SPS Agreement) in World Trade Organization dispute settlement. While the jurisprudence demonstrates that panels and the Appellate Body have balanced a Member’s precautionary autonomy with the WTO obligations of transparency and nondiscrimination, this has not made for fluid jurisprudence and some of the interpretations taken in earlier disputes have not meshed well with the facts or circumstances of subsequent disputes. It is the view of the authors, however, that the interpretive framework developed by the Appellate Body in US/Canada–Continued Suspension could be applied to all circumstances arising from Article 5.7, providing for greater deference to regulatory authorities while at the same time also providing clear boundaries to the scope of Article 5.7. The Appellate Body decision does not answer all remaining questions regarding the scope, coverage and applicability of Article 5.7 or of the SPS Agreement more generally, but it is a step forward in the evolution of decision-making and one that will have continued prominence and importance in the years to come as panels are established in the next generation of SPS Agreement-related disputes.