The final panel report on the EU-Biotech dispute has just been released. http://www.wto.org/english/news_e/news06_e/291r_e.htm I found this report politically savvy but legally ambivalent.
First, a moratorium, whether de facto or de jure, is a "ban" or a "total import prohibition." In Thai Cigarette, the panel also constructed a similar de facto moratorium as a measure which would violate GATT Article XI. In Australian Salmon, the AB also ruled that the measure in that case was an import restriction, not a heat treatment. Second, the panel itself held that the EC’s approval legislation is an SPS measure. (para. 8.4) Then, the de facto moratorium was an outcome, i.e., application, of that approval legislation. Therefore, the moratorium could be an SPS measure on its own, i.e., "as applied." In other words, it is not that the moratorium affected the application of the EC’s approval procedures, as the panel viewed (para.8.6), but that the moratorium itself was an application of the procedures.
Perhaps, the panel’s nebulous position over the de facto moratorium might be understood by its subsequent findings. Since the panel ruled that the moratorium was not an SPS measure, the panel could effectively avoid the hot potato, i.e., its determination on whether such a moratorium ever violated various SPS provisions, such as art. 5.1 (risk assessment). Whatever ruling on this provision might have irked either the complainants (the U.S., Canada, and Argentina) or the defendant (the EC). Yet, since the panel ducked this issue, it could safely generated a presumption that the moratorium was still OK ("not inconsistent") in terms of major obligations under the SPS (a boon to the EC), while it did give something to the complainants as well by finding that the moratorium nonetheless violated procedural disciplines under art. 8 and Annex C of SPS ("undue delay").
Would this be a kind of (political) balancing act? Of course, the panel did find that some EC Member states’ domestic safeguard measures violated SPS art. 5.7, but such finding seems to be also politically safe since those states’ measures were any way rebellious to the EC’s original risk position. The panel simply sided with the EC (vis-à-vis some of its Member states). (Of course, even from a legal standpoint, it seems sound that the panel based its negative conclusion as to the insufficiency of scientific evidences, which eventually illegalized those provisional measures (safeguards), on the previous scientific conclusion in the EC context.)
However, the more problematic aspect of the panel’s ruling is its finding on the mootness. The EC argued that even if there was a moratorium between June 1999 to August 2003, this case was "moot" since the moratorium "ceased to exist" after the establishment of the panel. (para.7.1286) The panel rejected the EC’s argument and went ahead on the grounds that due to its murky and complex nature the moratorium might be re-imposed in the future and deciding on this issue here and now would "secure a positive solution" to this dispute. (paras. 7.1310-1311). That means the moratorium is potentially still in effect and thus does not cease to exist. Nonetheless, the panel refused to decide so. (para. 7.1319) This self-contradition led the panel to reach very ambivalent, contingent, and conditional recommendations on the moratorium. The panel recommended that the EC comply "if, and to the extent that, that measure has not already ceased to exist." (para.8.16). This hypothetical recommendation would be hardly a "positive" solution. The panel should have ruled either that this issue was moot since the moratorium ended because the EU did resume the approval process or introduced a new approval procedure, or that the moratorium did not cease to exist and thus still existed. This clear ruling might better contribute to the stability and predictability of the WTO dispute settlement system.
Yet, one laudable aspect of the panel report lies in its very helpful summary which the panel itself presented in the conclusion section. If you are too busy to embrace all the over 1000 pages report, you can just read paras. 8.1-8.10 (pp 1067-1069, two and half pages) http://www.wto.org/english/tratop_e/dispu_e/291r_conc_e.pdf. But, it would have been better for the Secretariat to issue a nice 10 to 20 pages summary of the report, including the panel’s major findings on facts and law. But, it would have been best if the panel had written a much shorter report by minimizing its unnecessarily complicated reasoning (often based on overly textual interpretation) and more getting to the point by simpler logic.
Or, this case itself, or at least some issues in it, should not have brought to the panel in the first place. What kind of values or benefits do we get from this vague outcome (remedies)? Would this type of WTO adjudication be cost-effective? Even politically sound? Law is not a panacea and this is also true in the WTO. Parties concerned could have resolved this type of dispute in a more professional and incremental fashion through a regulatory dialogue among working-level officials and professionals, not necessarily among diplomats and politicians. The latter group often generates, not resolve, disputes.
After all, "Great cases, like hard cases, make bad law." (Holmes, dissenting in Northern Securities in 1904).
