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.
LSE law, society and economy working papers (11-2008).
Department of Law, London School of Economics and Political Science, London, UK.
Abstract
The purpose of this article is to identify two potential difficulties 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 first 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, where 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.
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