期刊名称：University of Ottawa Law and Technology Journal
印刷版ISSN：1710-6028
电子版ISSN：1715-006X
出版年度：2009
卷号：6
期号：1-2
页码：53-78
出版社：University of Ottawa
摘要：the article addresses the problem of insufficiency of scientific evidence in the context of the WTO Agreement on Application of Sanitary and Phytosanitary Measures (SPS Agreement). The analysis is performed in the light of the panel’s report in European Communities – Measures Affecting the Approval and Marketing of Biotech Products, a case that for the first time comprehensively analyzed the legal meaning of the notion of insufficiency of scientific evidence. The article recognizes that insufficiency serves under the SPS Agreement a two-fold function - it triggers the application of Article 5.7 but it also constitutes one of the consistency requirements. As far as the issue of applicability is concerned, the article identifies in the report a number of deficiencies of different nature (e.g. inconsistency with the previous case law, logical flows). This article argues that it was more appropriate to view Article 5.7 as a separate set of obligations that is applicable to the exclusion of other science-based provisions of the SPS Agreement. On the substantive level, the article questions the approach of the panel that conceptualizes insufficiency in absolute terms. The article argues that sufficiency implies relativity and its assessment may legitimately differ between scientists operating in different cultural settings. In this context, the article also disagrees with weighing of scientific opinions and deciding which science is better. Finally, the article criticizes the approach of the Biotech panel to the temporal assessment of insufficiency of scientific evidence (i.e. what is the relevant time for the assessment of insufficiency), noting that such approach leads to complicated practical problems.
