Here are some thoughts on the Appellate Body decision in the case United States
What is striking about the decision is its “mood,” to use the term used by Justice Frankfurter in a famous US Supreme Court case (Universal Camera Corp. v NLRB, 1951) which addressed the standard of review of a court as regards an administrative agency’s factual findings. In Justice Frankfurter’s words, a court must respect that mood “as a standard for judgment and not as a body of rigid rules.”
In the Continued Suspension case, the Appellate Body expresses a mood that a panel should adopt in reviewing a national SPS measure in terms of whether it is based on a risk assessment or constitutes a precautionary measure where there is “insufficient” relevant scientific evidence (respectively under Articles 5.1 and 5.7 of the SPS Agreement). The Appellate Body effectively requires the panel to adopt a more deferential mood.
The context of WTO judicial review is of course different than in national judicial review of administrative law measures. In national administrative law, a court balances due deference to agency expertise with the need to hold an agency accountable to the parties and the broader public. Judicial review at both the national and international levels uses requirements of transparency, due process and reasoned decisions to make administrative decisions more accountable. Yet in democratic national settings, such transparency mechanisms are linked to democratic political processes. In national settings, the agency is to take account of national legislation which reflects the interests of national constituencies, and it is checked by an elected executive and legislature, as well as courts. In the international context, in contrast, national legislatures and executives are subject to no democratic political accountability checks to ensure that their actions are accountable to non-citizens.
The WTO SPS Agreement provides for some accountability checks to protect from latent discrimination against outsiders. The requirement of a risk assessment, indirectly, is one such check, as it demands that decisions be based on public reason. There are, in addition, related accountability checks, such as the requirements that SPS measures be no more trade-restrictive than required to achieve the government’s decision as to the appropriate level of protection (Article 5.6) and that they “achieve consistency” (in Article 5.5), but these are checks purely of judicial review. Many commentators point to these provisions as offering more direct and thus better accountability checks than those under Article 5.1 in which a panel reviews scientific determinations.
Panels have focused on Article 5.1, however, because they can appeal to “science” instead of being seen as themselves engaging in judicial balancing of the adverse trade impacts and the importance of the policy aim, as under the test that a measure be the “least trade restrictive” alternative measure to meet a policy objective. If panels respond by engaging in less intrusive scientific review under Article 5.1, it will be of interest to see whether greater attention is given to the provisions of Articles 5.5 and 5.6, among others.
The panel’s interpretive choices inevitably have institutional implications. Interpretive choice in fact equals institutional choice, involving different allocations of authority to decide a matter. The concept of appropriate deference entails one such institutional choice. The institutional choices, however, are each imperfect and beset by tradeoffs, and are thus not easy. Nonetheless such choices are and must be made. See Gregory Shaffer, A Structural Theory of WTO Dispute Settlement: Why Institutional Choice Lies at the Center of the GMO Case (forthcoming in 41:1 NYU Journal of International Law and Politics 1), at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1090293.
