Special and Differential Treatment in Biotech

Still ploughing on with Biotech! I am struck today by the panel's (excessively) cautious approach to the interpretation of the special and differential treatment obligation in Article 10.1 of the SPS Agreement. The panel concluded that while Members must take the interests of developing countries into account in the formulation of their SPS measures, this neither prescribes any specific result to be achieved, nor prevents Members from having regard to other intersts; consumer, environmental and so on. Fine. But the panel insists that the initial burden of demonstrating that the interests of developing countries have been taken into account rests with the complaining party (in this case, Argentina). That burden will not be satisfied by showing that special and differential treatment has not been granted, nor by showing that there is no reference to such treatment in the measure. The absence of any reference does not demonstrate fails to take these interests into account. So how is the complaining party meant to show this? Given the issue at stake, this would be a good area for the AB to consider a reversal in the initial burden of proof, or the introduction of a weaker or stronger procedural obligation to show that such interests have been taken into account, perhaps through the imposition of a reason giving requirement. The panel went out of its way to rule on this issue, giving Argentina the benefit of interpretative doubt in the manner in which its case was presented. Given the subject matter at hand, it read Argentina's argument as pertaining both to the de facto moratorium (not an SPS measure) and the EC approval procedures (an SPS measure). Small consolation when the panel's reading of the obligation is so restrictive. (See paras. 7.1598-7.1616.)