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Provisional measures under Article 5.7 of the WTO's Agreement on Sanitary and Phytosanitary Measures: some criticisms of the jurisprudence so far

Lang, Andrew T. F. (2008) Provisional measures under Article 5.7 of the WTO's Agreement on Sanitary and Phytosanitary Measures: some criticisms of the jurisprudence so far. Journal of World Trade, 42 (6). pp. 1085-1106. ISSN 1011-6702

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Abstract

The purpose of this article is to identify two potential diffi culties in the application of Article 5.7 which appear to follow from certain statements made by panels and the Appellate Body in the jurisprudence under that Article so far. The fi rst relates to the situation in which a WTO Member legitimately takes provisional measures under Article 5.7, but refuses to conduct further research as required by that Article. In such circumstances, it is argued, the relevant violation is the failure to conduct further research, not the taking of provisional measures - and the solution must therefore be to require such further research, rather than to invalidate the provisional measures themselves. The second relates to questions of evolving science, and the extent to which Article 5.7 can and ought to remain available as a safe harbour to Members even once a risk assessment has been carried out. It is argued that in some circumstances it should: where substantive inadequacies and limitations of the earlier risk assessment become apparent to policy makers, if new evidence comes to light, and where a previously unconsidered risk is identified. Under the current jurisprudence, it is not clear that Article 5.7 remains appropriately available in all such circumstances.

Item Type: Article
Official URL: http://www.kluwerlawonline.com/productinfo.php?pub...
Additional Information: © 2008 Kluwer Law International BV
Library of Congress subject classification: H Social Sciences > HF Commerce
H Social Sciences > HB Economic Theory
J Political Science > JX International law
K Law > K Law (General)
Sets: Departments > Law
Collections > Economists Online
Rights: http://www.lse.ac.uk/library/usingTheLibrary/academicSupport/OA/depositYourResearch.aspx
Date Deposited: 29 Apr 2009 12:28
URL: http://eprints.lse.ac.uk/23814/

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