Lookup NU author(s): Ilona Cheyne
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Trade-environment disputes are essentially about the discretion of WTO Member States to make complex decisions based on risk analysis, sometimes using a precautionary approach. When considering the power of panels and the Appellate Body to review those decisions, it is helpful to separate out the stages of risk assessment, risk evaluation and response evaluation. The Appellate Body's approach to risk analysis has been largely developed in the context of the Agreement on Sanitary and Phytosanitary Standards which has specific provisions concerning risk assessment, and Article XX(b) which has no explicit reference to risk. In both sets of provisions, only risk evaluation is free from review but it may be restricted in practice by the weighing and balancing analysis used to decide whether a measure is necessary. This is because one of the relevant factors in the analysis is the importance of the interest or value being protected. This objective standard reveals a reluctance to give Member States full discretion where a risk is highly subjective. It appears that this reluctance is also having an effect on the interpretation of other parts of Article XX, namely paragraph (g) and the chapeau, and greater analytical clarity is needed. © 2006 Kluwer Law International.
Author(s): Cheyne I
Publication type: Article
Publication status: Published
Journal: Journal of World Trade
ISSN (print): 1011-6702
Publisher: Kluwer Law International