Food Safety at the WTO After ‘Continued Suspension’ : A Paradigm Shift?

This article explores one dimension of the World Trade Organization (WTO) international legal framework relevant for food safety regimes. Rather than looking at individual norms, the article tries to understand what regulatory philosophies are compatible with this international legal regime. Against this background, it is investigated whether the interpretation of concepts such as ‘risk assessment’ and ‘insufficiency of scientific evidence’ is consistent throughout jurisprudence on the Sanitary and Phytosanitary (SPS) Agreement and whether the interpretative choices made by the WTO ‘courts’ are rooted in different approaches to risk. Two hypotheses are tested: the first is that, until recently, the interpretation of a number of key concepts in the SPS Agreement was influenced by different and, at times, conflicting approaches to risk, hereafter, the ‘juggling hypothesis’. With regards to the ‘juggling hypothesis’, it is postulated that the WTO ‘courts’ are juggling with the core beliefs of different ‘knowledge-based groups’, a term that this paper defines as a cluster of experts and scholars in the field of risk analysis. The two knowledge-based groups identified in the paper are following a quantitative-risk logic and a holistic-risk logic respectively. The first group is mainly composed by ‘law and economics’ scholars, whereas the second has a broader membership, including social scientists, cognitive psychologists, philosophers and lawyers. The second hypothesis tested examines the question whether the Appellate Body in Canada/US – Continued Suspension has shifted towards a ‘new paradigm’. In particular, it is argued that the Appellate Body has mainly followed the holistic-risk logic. This conclusion will be substantiated by discussing two distinct issues addressed in the case: (1) the notion of acceptable level of protection and its bearing on the concepts of risk assessment and insufficient scientific evidence; and (2) the criteria followed to assess the impartiality and independence of scientific experts