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Making WTO SPS Dispute Settlement Work: Challenges and Practical Solutions

Eric Gillman

Abstract

The Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) represents an effort by the Members of the World Trade Organization (WTO) to balance competing interests in liberalizing trade, on one hand, and protecting human, animal, and plant life from risks posed by the free flow of goods on the other. SPS disputes center around a core question: Does the imported product at issue present a sufficiently serious threat to national health to warrant the imposition of trade-restrictive measures? Over twelve years and six disputes, panels and the Appellate Body (AB) have addressed this question by evaluating respondents' risk assessments. The attendant scientific inquiry has strained the capacity of panels and the Secretariat and spurred controversy regarding the WTO's role in deciding scientific questions that often involve cultural norms and ethical standards. As the duration of SPS cases balloons, and as the WTO experiences an influx of SPS cases, Members and the Secretariat must confront functional difficulties that arise in SPS cases, while being mindful of the political discourse surrounding the SPS Agreement. Reviewing the history of SPS jurisprudence and the nature of some of these challenges, this paper presents a series of practical recommendations to address procedural and logistical shortcomings of SPS dispute settlement

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