It is of course unwise to say very much about the Biotech ruling without having the reasons. In fact, it is probably even misleading to say that the EC "lost" or the US "won." The reasons of the panel may overall be of more assistance to the opponents of GM foods etc. than those pushing them. We don't know. As has already been suggested the practical consequences for the current EC regulatory framework may be nil. While trying to cope with the suspense, we can at least think about what questions we as scholars of WTO law might want to bear in mind when we actually do get to see the ruling. Here are some suggestions:
1) The panel treated the EC "measures" as SPS measures; such a characterization was largely inevitable given the the emphasis of EC officials and processes on health and safety considerations. Does the panel ruling have anything to say about how a ban of GMs on ethical or cultural or religious grounds would be considered in WTO law?
2) In the case of the member state "safeuguards" it would have hardly been possible for the panel to conclude that these were based on a risk assessment and indeed sufficient scientific evidence, given the EC's own risk assessments came to a conclusion that the products were "safe." But does the panel nevertheless give any indication of how broadly or narrowly it understands the idea of "risk assessment"? Or how close the connection needs to be between the assessment and the measures?
3) For me, perhaps the most important question: how does the ruling affect the capacity of developing countries to make their own sovereign choices on GMOs? Could a ban be justified in the case of a developing country that takes an overall approach of precaution but does not have the capacity to undertake rigorous pre-approval risk assessment or to verify independently information supplied by producers of GMs?
4) A followup: is there a case for an amendment of SPS to allow a greater degree of special and differential treatment for developing countries, given differences in regulatory and scientific capacity?
(I wonder if SPS has already been raised in the S & D negotiations.)
5) In his previous job, Pascal Lamy floated the idea of "collective preferences" clause, which would allow a WTO Member to continue a measure found in violation by the dispute settlement organs, where the measure, for instance, has large support in pubic opinion, if the Member pays some kind of compensation? There may be cases where science and democracy simply can't be reconciled through sensitive, deferential interpretation of SPS. Is it time to give thought to this idea, how it could be implemented equitably (so both rich and poor countries can afford) to compensate, and the meaning of "compensation"?
6) Was the panel really neutral in the battle over the science itself? Did the at least mplicit credence it gave to the possibility that GMs are or could be risky, represent a defeat for the industry position that concerns about GMs are pure superstition?
