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Giovanelli, Jessica --- "Australia Apples: How the WTO Appellate Body Dealt with the Application of Jurisprudence from the Continued Suspension Dispute" [2010] NZYbkIntLaw 2; (2010) 8 New Zealand Yearbook of International Law 45

Last Updated: 10 August 2015

AUSTRALIA - APPLES: HOW THE WTO APPELLATE BODY DEALT WITH THE APPLICATION OF JURISPRUDENCE FROM THE CONTINUED SUSPENSION DISPUTE

JESSICA GIOVANELLI*

ABSTRACT

This article deals with the issues raised during the Australia — Measures affecting the Importation of Apples from New Zealand (Australia — Apples')1 appeal about the application of the standard of review guidance set down by the Appellate Body in US/Canada — Continued Suspension of Obligations in the EC — Hormones Dispute (US/Canada — Continued Suspension).2 In US/ Canada — Continued Suspension the Appellate Body made what appeared to be a clear statement of what is expected of panels conducting a review of the consistency of a Member's risk assessment with the Member's obligations under the World Trade Organization Agreement on Sanitary and Phytosanitary Measures (lSPS Agreement').3 The Australia — Apples dispute was being conducted before a World Trade Organization Panel when this detailed guidance was provided by the Appellate Body. Australia's appeal from the Panel's findings was the first occasion on which the Appellate Body had the opportunity to return to what it had said on the appropriate standard of review. This article describes the developments in this area of the law, the arguments made and the issues arising in Australia's appeal of the Panel's findings in Australia — Apples. It considers approaches taken to applying this guidance, such as how to assess the expert judgments and scientific opinions of risk assessors where these form the basis of the risk assessment in question. The article also describes how the Appellate Body treated the Panel's attempts to apply the guidance. Finally, the article analyses the development, if any, of the jurisprudence on the standard of review that may be evident from the Appellate Body's approach in Australia — Apples.


I. INTRODUCTION

On the eve of the entry into force of the SPS Agreement, David A Wirth wrote an important article for the Cornell International Law Journal, also published as a monograph for the United Nations Environment Programme.4 In it he discussed what he saw would be the issues and pitfalls presented by using the "presence and integrity of scientific support [as] a principal touchstone for determining the legitimacy of many national regulatory efforts aimed at assuring environmental integrity or safeguarding public health". He aimed to highlight the "quiescent issues" that he saw as already present domestically "at the interface between science and government policy" and to identify that these would be raised by the emphasis on scientific validity in both the Uruguay Round agreements and the North American Free Trade Agreement.5
Drawing on domestic experience with review of the scientific determinations of environmental and health agencies that informed government decision-making,6 Wirth noted that the texts of these agreements:7

.. .expressly address none of the following three central questions:

145 .(Uruguay Round and NAFTA provisions stating that sanitary and phytosanitary measures may be adopted on provisional basis under conditions of uncertainty)

The observation was prescient. These are the issues with which the WTO dispute settlement system continues to grapple in addressing challenges under the SPS Agreement. For example, the Appellate Body in the European Communities — Measures Concerning Meat and Meat Products (Hormones) (EC — Hormones') dispute clarified that Members may base their measures on divergent or minority views, as long as these views are from qualified and respected sources. The Appellate Body in its report on US/Canada — Continued Suspension clarified that if a panel adjudicates the science by giving greater weight to majority rather than minority views within the scientific community on the basis that the views were more commonly held, then it would be applying an incorrect standard of review.9
When the Panel's decision in the Australia — Apples WTO dispute was delivered, comments appeared in international trade law blogs noting, for example,10

It will be interesting to see how the panel applied the concepts of deference elaborated in Hormones — Continued Suspension as the approach taken by the AB in that report is one that has evolved since the Japan — Apples dispute. It will also be interesting to see if Australia appeals.

Australia did appeal. This article will explore whether, in Australia — Apples, the Appellate Body was able to further answer the questions, as identified by Wirth, that have been present since the first disputes under the SPS Agreement.

II. THE ONGOING DEVELOPMENT OF AN APPROPRIATE SCOPE OR STANDARD FOR REVIEWING SCIENTIFIC DETERMINATIONS OF NATIONAL AGENCIES

The major issue in the Australia — Apples dispute was Australia's risk assessment and Australia's evaluation of the scientific evidence, or rather a set of scientific determinations made by a group of scientists and risk assessors in the national agency that assesses quarantine risk, Biosecurity Australia. New Zealand argued that in fact, Australia had not made a proper assessment of the risk, and that there was no scientific justification for Australia's measures.

A. The SPS Agreement Requirement for a 'Valid' Risk Assessment

The SPS Agreement1 provides that an assessment of risks must be "based on scientific principles and not maintained without sufficient scientific evidence" (art 2.2) and that in order to achieve this, Members have more specific obligations: to base their measures on a risk assessment (art 5.1), to take into account available scientific evidence and processing practices and procedures (art 5.2), and that the risk assessment meets the definition set out in Annex A(4) to the SPS Agreement. The relevant provisions are as follows:

Article 2: Basic Rights and Obligations

2. Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of Article 5.

Article 5: Assessment of Risk and Determination of the Appropriate Level of Sanitary or Phytosanitary Protection

  1. Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organizations.
  2. In the assessment of such risks, Members are to take into account available scientific evidence; relevant processes and production methods; relevant inspection, sampling and testing methods; prevalence of specific diseases or pests; existence of pest- or disease-free areas; relevant ecological and environmental conditions; and quarantine or other treatment.

Annex A(4) Risk assessment: The evaluation of the likelihood of entry, establishment or spread of a pest or disease within the territory of an importing Member, according to the sanitary or phytosanitary measures which might be applied, and of the associated potential biological and economic consequences; .

While the SPS Agreement does not use the words a 'proper' or a 'valid' risk assessment, the issue of whether there is a risk assessment or whether a notional risk assessment is indeed a risk assessment 'within the meaning of Article 5.1 and Annex A(4)' has become a way to identify a breach of the specific obligation in art 5.1 and the broader obligations in art 2.2.12 Whether this has a basis in the text or not, since the appeal of the first sanitary/phytosanitary (SPS) dispute, Members have raised claims that art 5.1 has been violated due to inadequacies in the Member's risk assessment.13

B. The Idea of a 'Valid' Risk Assessment Raises the Question of the Scope of Review: EC — Hormones (1997— 1998)

In the first dispute under the SPS Agreement, the 1997 - 1998 EC -Hormones dispute,14 the United States of America (US) and Canada challenged the European Communities' ban on the import of meat and meat products from animals to which growth hormones had been administered as not being appropriately based in science, in contravention of the European Communities' (EC) obligations under art 5.1 of the SPS Agreement. While the US and Canada did not use the words 'proper' or 'valid' risk assessment, the EC described, on appeal, what the Panel had done as "assessing certain acts of, and scientific evidentiary material submitted by, the European Communities".15 The European Communities' submission in its appeal of the Panel decision was that:16

The principal alternative approaches to the problem of formulating the "proper standard of review" so far as panels are concerned are two-fold. The first is designated as "de novo review". This standard of review would allow a panel complete freedom to come to a different view than the competent authority of the Member whose act or determination is being reviewed. A panel would have to "verify whether the determination by the national authority was 'correct' both factually and procedurally". The second is described as "deference". Under a "deference" standard, a panel, in the submission of the European Communities, should not seek to redo the investigation conducted by the national authority but instead examine whether the "procedure" required by the relevant WTO rules had been followed.

As is often repeated, the Appellate Body in EC — Hormones did not choose between these two common types of review:17

So far as fact-finding by panels is concerned, their activities are always constrained by the mandate of Article 11 of the [WTO Dispute Settlement Understanding]: the applicable standard is neither de novo review as such, nor "total deference", but rather the "objective assessment of the facts".

Article 11 of the WTO Dispute Settlement Understanding, which in essence describes the role of the panel and gives it the authority to conduct its task, provides:

.... a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreement .

The Appellate Body stated at paragraph 117 of its report in the EC—Hormones dispute that:

Many panels have in the past refused to undertake de novo review81, wisely, since under current practice and systems, they are in any case poorly suited to engage in such a review. On the other hand, "total deference to the findings of the national authorities", it has been well said, "could not ensure an 'objective assessment' as foreseen by Article 11 of the DSU".82

  1. Panel Report, United States - Underwear, adopted 25 February 1997, WT/DS24/R; Panel Report, Korea - Anti-Dumping Duties on Imports of Polyacetal Resins from the United States, adopted 27 April 1993, BISD 40S/205; Panel Report, United States - Imposition of Anti-Dumping Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway, adopted 27 April 1994, ADP/87; and Panel Report, United States - Initiation of a Countervailing Duty Investigation into Softwood Lumber Products from Canada, adopted 3 June 1987, BISD 34S/194.

82 Panel Report, United States - Underwear, adopted 25 February 1997, WT/DS24/R, para. 7.10

The Appellate Body then stated that it considered that:18

the issue of failure to apply an appropriate standard of review. resolves itself into the issue of whether or not the Panel, in making the above and other findings referred to and appealed by the European Communities, had made an "objective assessment of the matter before it, including an objective assessment of the facts .".

Thus, it appears that the Appellate Body considered that if there had been an objective assessment, then there would be a correct application of the standard of review. The Appellate Body examined the Panel's review for bad faith or bias in how it addressed the matter and the testimony of experts assisting it and in that instance could find no failure to make an objective assessment. It declined to reverse the Panel's findings and dismissed the EC's claim that the wrong type of review had been conducted.19
The Appellate Body's approach in the EC — Hormones dispute was such a broad statement that it did little to clarify the kinds of questions a panel was to ask - whether the inquiry should be narrowly focused on the procedural validity of how the risk assessment had been conducted or the substantive validity of the scientific determinations in that risk assessment. It implied that as long as bad faith or bias was absent, then however high or low the qualitative bar was set by a panel, the review would be appropriate; or at least would not be reversed on appeal.

C. Japan — Apples (2003-2004)

In subsequent cases, notably the Japan — Measures Affecting Importation of Apples (Japan — Apples') dispute, the Appellate Body seemed to sanction an approach that arguably delved into the substantive scientific determination and led panels to examine whether they considered that the scientific determination could, in fact, be arrived at based on the evidence that was before them. The Appellate Body's approach in Japan — Apples was that it was permissible for the Panel to make judgments about risk by an evaluation of the science as part of its conclusions on 'facts'. It said:20

As we see it, the Panel examined the evidence adduced by the parties and considered the opinion of the experts. It concluded as a matter of fact that it is not likely that apple fruit would serve as a pathway for the entry, establishment or spread of fire blight in Japan ...

Additionally, Japan — Apples introduced an analysis that discussed the relationship between the measures and the underlying science (linking with the art 2.2 basic obligation that measures should be 'based on' the risk assessment and only taken with 'sufficient' scientific evidence). That question will be revisited in the discussion below.

D. US/Canada — Continued Suspension (2008)

The Appellate Body produced its virtually identical reports in the US — Continued Suspension and Canada — Continued Suspension disputes midway through the panel process in the Australia — Apples dispute. The US/Canada — Continued Suspension reports were issued after the first Australia — Apples submissions had been presented to the Panel and after the first Australia — Apples oral hearing, but before the Panel's consultation of experts, the parties' second submissions, and the second oral hearing before the Australia — Apples Panel. The US/Canada — Continued Suspension reports influenced the parties' and the Panel's approach in Australia — Apples.
Claiming that it was now in compliance with the science-based WTO obligations, the EC relied in US/Canada — Continued Suspension on one of two diverging lines of scientific opinion on whether meat from hormone-treated animals would pose a cancer risk for consumers. The Panel in US/ Canada — Continued Suspension in effect determined which line of scientific opinion was more appropriate to rely on, and then reviewed the EC's measures in light of whether they corresponded to that line of scientific opinion.
While the European Communities 'agreed' with the Appellate Body's interpretation of the standard of review applicable under the SPS Agreement,21 the EC argued that as Members are entitled to rely on "divergent opinion[s] coming from qualified and respected sources" in their risk assessment and that "[a] panel should not substitute its scientific judgement for that of the Member taking the measure and should not 'second guess' Members, particularly in situations where available science is providing competing explanations .. .".22 The EC then argued that the Panel should have asked whether there were divergent opinions in the scientific community, and, if the European Communities based itself on a divergent opinion, if those opinions are qualified and respected.
The Appellate Body's report issued jurisprudence that categorically stated that the role and mandate of panels was limited in respect of art 5.1:

  1. A panel reviewing the consistency of an SPS measure with Article 5.1 must determine whether that SPS measure is "based on" a risk assessment. It is the WTO Member's task to perform the risk assessment. The panel's task is to review that risk assessment. Where a panel goes beyond this limited mandate and acts as a risk assessor, it would be substituting its own scientific judgement for that of the risk assessor and making a de novo review and, consequently, would exceed its functions under Article 11 of the DSU. Therefore, the review power of a panel is not to determine whether the risk assessment undertaken by a WTO Member is correct, but rather to determine whether that risk assessment is supported by coherent reasoning and respectable scientific evidence and is, in this sense, objectively justifiable.

The Appellate Body's next paragraph addressed the question about the extent to which panels must respect expert scientific judgment that reflects minority or controversial views within the scientific community:

  1. The Appellate Body has observed that a WTO Member may properly base an SPS measure on divergent or minority views, as long as these views are from qualified and respected sources.1208 This must be taken into account in defining a panel's standard of review. Accordingly, a panel reviewing the consistency of an SPS measure with Article 5.1 of the SPS Agreement must, first, identify the scientific basis upon which the SPS measure was adopted. This scientific basis need not reflect the majority view within the scientific community but may reflect divergent or minority views. Having identified the scientific basis underlying the SPS measure, the panel must then verify that the scientific basis comes from a respected and qualified source. Although the scientific basis need not represent the majority view within the scientific community, it must nevertheless have the necessary scientific and methodological rigour to be considered reputable science. In other words, while the correctness of the views need not have been accepted by the broader scientific community, the views must be considered to be legitimate science according to the standards of the relevant scientific community. A panel should also assess whether the reasoning articulated on the basis of the scientific evidence is objective and coherent. In other words, a panel should review whether the particular conclusions drawn by the Member assessing the risk find sufficient support in the scientific evidence relied upon. Finally, the panel must determine whether the results of the risk assessment "sufficiently warrant" the SPS measure at issue.1209 Here, again, the scientific basis cited as warranting the SPS measure need not reflect the majority view of the scientific community provided that it comes from a qualified and respected source.

1208 Appellate Body Report, EC — Hormones, para. 194.

1209 Ibid., para. 193.

The Appellate Body then offered guidance on how to avoid undertaking an impermissible de novo review when dealing with the testimony of experts. It stated that when consulting with experts, it is not the panel's role to rely on the experts in order to come up with its own assessment of the risk. Rather, the role of the experts must reflect the limited task of a panel:

592. ... The panel may seek the experts' assistance in order to identify the scientific basis of the SPS measure and to verify that this scientific basis comes from a qualified and respected source, irrespective of whether it represents minority or majority scientific views. It may also rely on the experts to review whether the reasoning articulated on the basis of the scientific evidence is objective and coherent, and whether the particular conclusions drawn by the Member assessing the risk find sufficient support in the evidence. The experts may also be consulted on the relationship between the risk assessment and the SPS measure in order to assist the panel in determining whether the risk assessment "sufficiently warrants" the SPS measure. The consultation with the experts, however, should not seek to test whether the experts would have done a risk assessment in the same way and would have reached the same conclusions as the risk assessor. In other words, the assistance of the experts is constrained by the kind of review that the panel is required to undertake.

The Appellate Body in US/Canada — Continued Suspension also stated that if a panel disregarded the testimony of experts appointed to assist the panel in its review, where that testimony appeared approving of the substantive determinations, this was potentially relevant to the party's case and that to ignore peer approval of the substantive determinations was incompatible with a review of whether the risk assessment was justifiable. They stated:23

The United States and Canada argue that the Panel properly exercised its discretion as the trier of facts.1243 ... we have found instances in which the Panel exceeded its authority in the assessment of the testimony of the scientific experts. By merely reproducing testimony of some experts that would appear to be favourable to the European Communities' position, without addressing its significance, the Panel effectively disregarded evidence that was potentially relevant for the European Communities' case. This cannot be reconciled with the Panel's duty to make an "objective assessment of the facts of the case" pursuant to Article 11 of the DSU.

In addition, the Appellate Body rejected the US/Canada — Continued Suspension Panel's interpretation that 'risk management' was to be excluded from the process of assessing risk. Instead, the Appellate Body stated that the Member's chosen level of tolerance of the risk and the level to which they sought to protect against this risk would sometimes influence the risk assessment, but with a caveat. They stated:24

The risk assessment cannot be entirely isolated from the appropriate level of protection. There may be circumstances in which the appropriate level of protection chosen by a Member affects the scope or method of the risk assessment. ... However, the chosen level of protection must not affect the rigour or objective nature of the risk assessment, which must remain, in its essence, a process in which possible adverse effects are evaluated using scientific methods.

In summary, the US/Canada — Continued Suspension jurisprudence appeared to provide guidance on the questions that a panel should ask in order to avoid making a de novo review of the risk assessment. The jurisprudence seemed to indicate that the enquiry would be a procedural one, but it gave content to the procedural enquiry (whether its reasoning was objective and coherent) and thus indicated that the review was not limited to a bare minimum enquiry that would simply be satisfied by the existence of a notional risk assessment. It thus seemed to reject a procedural enquiry which could equate to 'total deference' to Members' assessments. It also indicated that it was appropriate to review the respectability of the science underlying the risk assessment. It seemed to indicate that if a risk assessment met these tests, the scientific determinations would be "in this sense, objectively justifiable".25 Further, it seemed to indicate that the supportive testimony of experts assisting the Panel should not be disregarded, and that if a single expert agreed with the substantive outcome of the assessment on risk, then this would need to be engaged with and addressed by the Panel.

III. ISSUES ARISING REGARDING HOW THIS JURISPRUDENCE SHOULD BE APPLIED IN AUSTRALIA - APPLES AND HOW THIS WAS DEALT WITH BY THE APPELLATE BODY

In carrying out their task of determining whether Australia's import risk assessment was a 'valid' risk assessment within the meaning of art 5.1 (as informed by art 2.2), the Panel in Australia — Apples focused on the validity of individual scientific determinations made by the Australian risk assessors. This followed the lines of argument presented by New Zealand. The Panel in Australia — Apples found against Australia because it considered that there was not "sufficient" scientific support for the determinations made by the risk assessors.26 The manner in which the Panel came to this finding raised several questions about whether its reasoning was consistent with the Appellate Body's jurisprudence in US/Canada — Continued Suspension.

A. Arguments Made by Australia

1. Uncertainty and Scientific Judgments or Determinations That May Reflect a Conservative Approach

In assessments of risk under art 5.1, risk assessors making scientific determinations will, sometimes, be faced with uncertainties on a particular point. Australia — Apples raised the question whether, at specific points where there is uncertainty, panels are to defer to scientific determinations in risk assessment that reflects a conservative or cautious approach. Where there were gaps in the evidence, the risk assessors in the Australia — Apples case had applied their judgment, for example, to assign statistical ranges that they thought would best represent situations where there was considerable variability in the results of studies.27 Where Australia had exercised these judgments, the Panel had in several places decided that these were not acceptable, for different reasons. One reason was that in the Panel's assessment the highly variable data would not allow the risk assessors to come to any conclusion.28 Australia submitted that:29

What ought to have been recognised as real-world gaps and ambiguities in the scientific data in existence and accessible to Biosecurity Australia and as calling for the interstitial application of expert judgement in an intensely practical setting have been translated by the Panel into an insufficiency of scientific data.

Australia argued that the making of such judgments was within the purview of a 'valid' risk assessment, and that there must be 'flexibility' for a Member to adapt its risk assessment methodologies30 in circumstances of scientific uncertainty arising from incomplete, inconsistent or conflicting data.31
Australia considered that the Panel had based its conclusions on whether the experts would have come to the exact same scientific determination, in these circumstances, rather than concentrating on whether the process of making the determination was, more broadly, legitimate according to the standards of the scientific community.32 Australia considered that the Panel had concluded that the expert judgments in the risk assessment were not 'correct', or did not represent the appraisal of the science that would have been made by the Panel (or, at least, by the experts assisting it). Australia argued that the Panel should have reviewed the judgments by reference to whether the judgments led to conclusions that were within the range that could be considered legitimate by the standards of the scientific community:33

The standard required for such expert judgement... where the scientific evidence is incomplete or inconclusive, ought be no different from the standard recognized in US/ Canada — Continued Suspension at [591] as that required for the scientific evidence itself: each need do no more than fall within a range that could be considered "legitimate by the standards of the scientific community".

A further issue that arose was whether the risk assessors had thoroughly documented their reasoning and the expert judgments that they had made. For example, with regard to whether the fire blight bacteria would survive the washing process, the risk assessment stated that it would not give weight to studies on Eschera Coli ("E. Coli") bacteria, because that is a different organism and may differ in how easily it is washed from surfaces. The risk assessment stated it would be dangerous to extrapolate from that bacteria to the fire blight bacteria Erwinia amylovora.34 The Panel, however, stated that the risk assessment "does not properly explain its reasons for seemingly disregarding the conclusions of ... the Sapers (1999) study for E. Coli."35 On appeal, Australia argued in this regard that there was no requirement in the SPS Agreement for this high level of documentation.

2. Materiality of Flaws

By way of explaining how it had decided whether the risk assessment had met the threshold of a 'valid' risk assessment within the meaning of art 5.1, or was 'inadequate', the Panel stated:36

It is only under the circumstances of each case, that a panel can assess whether any flaws or misconceptions in a risk assessment, alleged and demonstrated by the complainant, are only minor or whether they are serious enough to conclude that the risk assessment is not supported by coherent reasoning and respectable scientific evidence and is, in this sense, not objectively justifiable ... a number of "minor flaws and misconceptions at a detailed level" may have a cumulative effect so as to call into question the coherence and objectivity of the conclusions drawn by the Member assessing risk.

Australia considered that the Panel's report revealed that the reasons it had 'doubts' about Australia's risk assessment and found some of the figures 'questionable' was due to flaws that were immaterial to the overall figure. Australia thus argued that the Panel had failed to assess the materiality of any flaws that it found. Australia considered that in many instances, corrections to these minor flaws would not have made a difference to the final rating of the risk, and that the 'flaws' should not have meant that the risk assessment was not able to meet the exigencies of art 5.1 of the SPS Agreement.

3. Treatment of Expert Testimony

Recalling the Appellate Body's statements that to disregard the positive testimony of experts appointed to assist it would not be consistent with an objective assessment of the facts, Australia submitted that the Panel, in setting out the reasons for its decision, had in several key respects arbitrarily chosen between and had distorted some parts of the testimony given by experts, and ignored other parts. Australia argued that this was akin to the level of arbitrariness that was present in the US/Canada — Continued Suspension reports. As described in the Appellate Body report, the EC in that case argued that "the Panel decided to accept only those expert opinions that it considered 'acceptable', and in so doing 'arbitrarily chose between different scientific opinions' instead of establishing whether the European Communities had 'followed a scientifically plausible alternative'. Consequently, the Panel found that the [Opinions on which the EC's measure was based] 'came to the wrong scientific conclusions' and thus conducted a de novo review of the facts, contrary to the requirements in art 11 of the DSU to make an objective assessment of the facts, as reflected in the European Communities' risk assessment".37
According to Australia in Australia — Apples, the Panel had failed to address, or failed to engage, with appointed experts' testimony that supported both the coherence and objectivity requirement and several of the substantive conclusions. Australia raised, for example, its view that all but one of the experts had agreed with Australia's assessment that the potential consequences of the introduction of the fire blight bacteria into Australia would be "high".38

B. The Appellate Body's Treatment of the Panel's Review in Australia — Apples

1. Uncertainty and Scientific Judgments or Determinations That Reflect a Conservative Approach

In response to Australia's submission that the Panel should have reviewed the expert judgments made by the risk assessors in situations of incomplete or inconclusive evidence by reference to whether it gave rise to a conclusion that could be considered legitimate by the standards of the relevant scientific community, the Appellate Body "[understood] the Panel to have accepted that Australia could resort to expert judgement in the presence of scientific uncertainty".39 However, it hinted that what might be considered excessive reliance on expert judgment might indicate that the Member should probably have elected to put in place provisional measures and seek further information.40
What this does not address is when the uncertainty is unresolvable, as was confirmed in several instances by the experts consulted by the Panel in the Australia — Apples case;41 nor does it reflect that the uncertainties in the Australia — Apples situation existed despite the fact that the diseases were well-studied.
The Appellate Body in Australia — Apples indicated that its jurisprudence in US/Canada — Continued Suspension was meant to be understood as requiring two separate aspects of review, (i) scrutiny of the underlying scientific basis and (ii) scrutiny of the reasoning of the risk assessor based upon such underlying science, and that these were to be held to different standards. It stated:42

With respect to the first aspect, the Appellate Body saw the panel's role as limited to reviewing whether the scientific basis constitutes "legitimate science according to the standards of the relevant scientific community". The Appellate Body perceived the second aspect of a panel's review as involving an assessment of whether the reasoning of the risk assessor is objective and coherent, that is, whether the conclusions find sufficient support in the scientific evidence relied upon.

Thus, the standard of "legitimate according to the relevant scientific community" was only to be a yardstick concerning the underlying scientific basis, which in this dispute, was "the scientific and technical works reviewed" by the risk assessors.43 It would appear from these statements that while panels should seek the assistance of experts, neither the reasoning behind the scientific judgment nor the scientific determination should be judged according to whether it is within the bounds of what is reasonable according to the individual views of the expert or the scientific community of which that expert is a representative. If the panel does not itself have the requisite scientific expertise or background, and if the panel is not to substitute its scientific judgment for that of the risk assessor, and if the experts' role is to be likewise constrained, then it cannot be anchored in the personal views of that expert. Combined with the Australia — Apples jurisprudence that it may neither be anchored in what would be legitimate according to the scientific community more broadly, this gives rise to a degree of uncertainty about what the panel is to use as a reference point.

2. Materiality of Flaws

With respect to Australia's submissions on the materiality of the flaws, the Appellate Body stated that there was no "general standard as to when individual flaws in a risk assessment will taint the risk assessment as a whole".44 It stated that "[w]e do not consider that a panel is required to establish whether each fault it finds with a risk assessment is, in itself, serious enough to undermine the entire risk assessment. A comprehensive analysis of all the steps and factors reviewed may be sufficient to determine whether various flaws are, when taken together, serious enough to render a risk assessment one that does not constitute a proper risk assessment within the meaning of art 5.1 of the SPS Agreement"45
Commonly, a feature of a review about whether a decision maker came to the 'best' decision involves a low tolerance of error on the part of the decision maker.46 If the reviewer finds small faults that do not accord with the way they would evaluate the matter, then they remake the decision afresh to rectify those faults. As observed by Guzman, procedural review often has a higher tolerance of factual error, such that the decision will only be overturned if it does not meet the requisite procedural — legal — standards.47 The vague articulation of a threshold for 'flaws' in a risk assessment making the result 'questionable' gives panels significant leeway, in their discretionary appreciation of the facts, to have a low tolerance of any flaws at all in the risk assessment. It encourages panels to judge whether there is error in the reasoning against their own appreciation of what the underlying scientific evidence suggests the scientific determination should be.

3. Treatment of Expert Testimony

In addressing Australia's argument that the Panel had acted arbitrarily and had misrepresented or ignored expert testimony that was relevant to Australia's case, the Appellate Body confirmed that "[i]n US/Canada — Continued Suspension, the Appellate Body further clarified that a panel should not disregard and has a duty to engage with evidence that is relevant to the case of one of the parties".48
However, in stating how the Panel's treatment of expert testimony in Australia — Apples was acceptable, the Appellate Body then appeared to qualify the position that the US/Canada — Continued Suspension jurisprudence seemed to have taken, by stating that in that latter case, the disregard of expert testimony had been part of a broader error, and had not in and of itself constituted a legal error. The Appellate Body stated that, "'[a]s was the case in US/Canada — Continued Suspension, a panel's disregard of certain experts' testimony may be evidence of a more systematic fault in the standard of review applied by that panel in its overall assessment of the facts of the case."49 The Appellate Body explained that a panel cannot use the evidence, including the testimony of its appointed experts, to conduct its own risk assessment. Rather, the panel must use such evidence to review the risk assessment of the WTO Member.50
The Appellate Body described why it considered that the Panel's treatment of the expert testimony was acceptable. For example, with regards to the affirmative testimony on the assessment of the consequences of a fire blight introduction as 'high':51

On balance, we do not consider that Australia has established that the Panel disregarded the general statements by Dr. Deckers and Dr. Paulin that the consequences of fire blight can be classified as "high", because the Panel did not set out to, and did not, decide whether the [risk assessment's] qualification of the potential consequences of fire blight as " high" was right or wrong, but instead assessed whether the [risk assessment's] conclusions were objective and coherent, that is, based on the scientific evidence. Again however, the fact that on their face these statements appear to contradict the Panel's findings that the [risk assessment's] analysis of the potential consequences of fire blight was not objective and coherent means that the Panel's reasoning would have been clearer if it had explained its treatment of these two statements and their relationship to its conclusions.

With regards to the potential consequences of apple leafcurling midge, the Appellate Body noted:52

Australia argues that the Panel reproduced Dr. Cross' testimony opining that certain individual impact scores assigned by the [risk assessment] were too severe and that a more credible score could have been assigned, but failed to reproduce or assess the significance of Dr. Cross' testimony that, even assuming that the most severe scores were reassigned, this would not result in a change of the rating of the overall consequences as "low" and that, in this respect, "the conclusion of Australia's analysis was objective and credible.53 According to the applicable standard of review, the Panel was required to verify that the [risk assessment's] conclusions on the potential consequences of the pests were objective and coherent, not that they were correct. It follows that the general statements by the appointed experts on the overall qualification of the consequences of pests were not determinative of the Panel's reasoning and objective assessment of the facts on this issue. (Emphasis added.)

While the view of an expert that the conclusion in the risk assessment was objective and credible would suggest that this conclusion met the standard required of it under the SPS Agreement, the Appellate Body indicated that, to the contrary, experts' testimony approving of the substantive conclusions would not be dispositive of whether the risk assessment met the requirements of art 5.1.
In predicting the pitfalls of the SPS Agreement, Wirth made some salient points regarding the role of experts appointed to assist the Panel, and the 'peer review' of the risk assessment that this could, in effect, entail. Wirth noted that peer review as a vehicle for validating the "correctness" of a scientific determination had certain weaknesses.54 He had noted that the kind of tests that were considered appropriate in the domestic context when reviewing scientific determinations were "the scientific analogue of a procedural, not a substantive test".55 If peer review concluded that the substantive conclusions were sound, then this should suggest that the inquiry that preceded that particular conclusion has been minimally "scientific" and thus satisfy the procedural test. He stated that:56

[the peer review] process should be adequate for assessing whether the inquiry that preceded a particular conclusion has been minimally "scientific." Accordingly, any domestic scientific determination that has withstood scientific peer review should be categorically presumed to satisfy the science-based disciplines ... The absence of approval through a peer review process, however, ought not be dispositive. ... regulatory authorities must often operate at the frontiers of scientific knowledge in advance of general acceptance and in the face of disputes over science policy choices.


For "those regulatory measures whose scientific support does not satisfy a peer review test", it was then for a panel to make the determination, by a 'procedural' evaluation.57
However, under the Australia — Apples jurisprudence, even if the scientific experts consulted by the Panel ultimately agreed with the risk assessment's overall conclusion, if they had identified inaccuracies or shortcomings in the reasoning then this would potentially give rise to a violation of art 5.1. It is a curious outcome that if a risk assessment's conclusions do receive support from experts assisting the Panel, then this support may not necessarily be determinative of its objectivity and coherence. It begs the question why a Member's conclusions on risk can be regarded as sound, yet still give rise to a violation of art 5.1.

IV. DEVELOPMENTS IN THE STANDARD OF REVIEW JURISPRUDENCE AS A RESULT OF THE APPELLATE BODY'S REPORT
IN AUSTRALIA - APPLES

A. Is the Review Procedural Only or is There an Additional Element Whereby the Panel Reviews the Substantive Determination Made?

In US/Canada — Continued Suspension, the Appellate Body provided guidance on the questions to be asked in determining whether a risk assessment is 'valid' or 'proper', within the limited mandate of the panel. The elaboration of those questions by the Appellate Body in Australia — Apples is in italics as follows:



The reasoning of the risk assessment must be objective, according to the assessment of the panel; the approval of experts on the substantive conclusions need not be dispositive.

These identified questions or legal standards seem to echo the first part of the standard of review set out art 17.6 (i) of World Trade Organization Anti-Dumping Agreement ("Anti-Dumping Agreement"):58

In its assessment of the facts of the matter, the panel shall determine whether the authorities' establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned.

Under the Anti-Dumping Agreement, if the assessment is 'proper', then the question of whether it is in compliance with the Agreement will be answered. The task of a panel under this Agreement is argued to be an essentially 'procedural' review.59 The applicability of this standard in the SPS context was rejected early on by the Appellate Body. The European Communities, in the EC — Hormones appeal, describing this as a "deferential 'reasonableness' standard", had submitted that such a standard should be applied by the Panel in that case. The Appellate Body found, however, "no indication in the SPS Agreement of an intent on the part of the Members to adopt or incorporate into that Agreement the standard set out in art 17.6(i) of the Anti-Dumping Agreement. Textually, Article 17.6(i) is specific to the Anti-Dumping Agreement."60

B. Is the Enquiry into Whether a Risk Assessment is 'Objective and Coherent' Dispositive of Whether it is Sufficiently Supported by Scientific Evidence?

The US/Canada — Continued Suspension guidance indicated, it may be recalled, that:61

.... the review power of a panel is not to determine whether the risk assessment undertaken by a WTO Member is correct, but rather to determine whether that risk assessment is supported by coherent reasoning and respectable scientific evidence and is, in this sense, objectively justifiable. (Emphasis added.)

It then stated that:

... A panel should also assess whether the reasoning articulated on the basis of the scientific evidence is objective and coherent. In other words, a panel should review whether the particular conclusions drawn by the Member assessing the risk find sufficient support in the scientific evidence relied upon ... (Emphasis added.)

When restating its guidance from US/Canada — Continued Suspension, the Appellate Body in Australia — Apples identified two aspects of a panel's review of a risk assessment, and that these required separate determinations. These were:62

(i) a determination that the scientific basis of the risk assessment comes from a respected and qualified source and can accordingly be considered "legitimate science" according to the standards of the relevant scientific community; and (ii) a determination that the reasoning of the risk assessor is objective and coherent and that, therefore, its conclusions find sufficient support in the underlying scientific basis. (Emphasis added.)

In concluding that Australia's risk assessment was not a 'proper' risk assessment, the Panel stated, with respect to fire blight, that:63

... [in regards to four out of eight intermediate conclusions] the IRA's estimation[s] do not find sufficient support in the scientific evidence relied upon and, accordingly, are not coherent and objective.

The Appellate Body sanctioned the approach of the Panel in Australia — Apples in determining whether a risk assessment's reasoning was coherent and objective. It described how:64

Because the Panel found that some of the individual likelihoods were flawed, it determined that the [risk assessment's] estimation of the overall probability of importation was not supported by adequate scientific evidence and, accordingly, was not coherent and objective.

In this instance, it appears that a panel's assessment that a risk assessment is not 'adequate' can mean that a risk assessment is not objective and coherent. This introduces a tension. It is not clear how a panel can avoid re-assessing the underlying scientific basis and coming to its own scientific judgment against which to compare the determination made by the risk assessor.

C. A Restatement of the 'Proportionality' Test?

In Australia — Apples, one of the Appellate Body's statements of its prior jurisprudence concerning standard of review was that:

210. We observe that, in its decisions under Articles 2.2 and 5.1 of the SPS Agreement, the Appellate Body has identified the role of a panel assessing compliance with these provisions as an inquiry into whether there is a "rational or objective relationship" between the SPS measures and the scientific evidence and between the SPS measures and the risk assessment.342 (Emphasis added.)

342 In Japan — Agricultural Products II, the Appellate Body stated that "the obligation in Article 2.2 that an SPS measure not be maintained without sufficient scientific evidence requires that there be a rational or objective relationship between the SPS measure and the scientific evidence". (Appellate Body Report, Japan — Agricultural Products II, para. 84) See also Appellate Body Report, Japan — Apples, paras. 162 and 163.

The Appellate Body further noted in Australia — Apples:

215. ... The Appellate Body perceived the second aspect of a panel's review as involving an assessment of whether the reasoning of the risk assessor is objective and coherent, that is, whether the conclusions find sufficient support in the scientific evidence relied upon. Having done so, the panel must determine whether the results of the risk assessment sufficiently warrant the challenged SPS measures.346 (Emphasis added.)

346 Appellate Body Reports, US/Canada — Continued Suspension, para. 591 (referring to Appellate Body Report, EC Hormones, para. 193).

In US/Canada — Continued Suspension, the Appellate Body refrained from citing Japan — Apples, and footnoted only its jurisprudence in EC — Hormones. The reinclusion of the Japan — Apples jurisprudence on 'proportionality' in the footnote in the Appellate Body's statement on the applicable law in Australia — Apples, as well as the indication that an inquiry should be undertaken into the relationship between the SPS measures and the scientific evidence, apparently separate from and independent of the review of a Member's risk assessment, seems to generate a tension with the prohibition on de novo review articulated in the US/Canada — Continued Suspension jurisprudence.

The US/Canada — Continued Suspension jurisprudence, it may be recalled, was that:

Finally, the panel must determine whether the results of the risk assessment "sufficiently

warrant" the SPS measure at issue.1209

1209 Appellate Body Report, EC — Hormones, para. 194.

The US/Canada — Continued Suspension jurisprudence in fact could be read to suggest that the 'rational relationship' question could be answered by reference to the risk assessment and the results of the risk assessment. If it were otherwise, this last aspect of the panel's role would go beyond that of reviewing a risk assessment. It would be more than a review for coherence and objectivity; it gives panels the opportunity to judge whether the SPS measures are warranted — that is, after the assessment of the validity of a risk assessment and whether the measures are based on that risk assessment, it may decide whether the 'right' to take measures should be curtailed because the measure itself does not bear a relationship to the risk that is, in the panel's view, warranted.

As Scott has observed,65

The premises according to which the nature of the measure is to be assessed are nowhere specified. In [Japan — Apples], the element of risk which was seen as relevant was its scale in terms of the propensity of the hazard to materialize.

This would seem to imply a substitution of the panel's own determination on risk, contrary to the US/Canada — Continued Suspension statement that "[w]here a panel goes beyond this limited mandate and acts as a risk assessor, it would be substituting its own scientific judgement for that of the risk assessor and making a de novo review and, consequently, would exceed its functions under Article 11 of the DSU."66
If the panel is to determine whether the measures are 'warranted', then this must be reconciled with the Appellate Body's statements that the panel's role is not to act as a risk assessor, or to determine what the panel or the experts should have done. Frequent reference is made to the fact that panels are composed not of scientific experts but of trade and legal professionals. They are, indeed, 'poorly suited' to evaluate the probity and weight to be attributed to scientific data, and scientific concepts, that are often difficult to comprehend. The Appellate Body noted in its art 5.1 discussion in Australia — Apples that, reiterating the observation it first made in EC — Hormones, "a panel is not well suited to conduct scientific research and assessments itself".67
Whether the measures are 'warranted' also appears to be contemplated by the text of the SPS Agreement itself; it appears to resonate with art 5.6, in which a Member's SPS measures may be said not to be 'necessary' or 'warranted' only if complaining Members can demonstrate that there is another reasonably available measure that has a significantly less trade restrictive effect.

D. Standard of Review as it Applies in Art 5.6 of the SPS Agreement

Finally, in an interesting twist for standard of review jurisprudence, in response to Australia's contention that the Panel had erred in its application of the burden of proof in making its finding under art 5.6, the Appellate Body held that the Panel had indeed erred. This was because the Panel did not realize that they were, at that point, to determine the actual risk — that is, to conduct a de novo review of risk. The Appellate Body stated that:68

Caution not to conduct a de novo review is appropriate where a panel reviews a risk assessment conducted by the importing Member's authorities in the context of Article 5.1. However, the situation is different in the context of an Article 5.6 claim. The legal question under Article 5.6 is not whether the authorities of the importing Member have, in conducting the risk assessment, acted in accordance with the obligations of the SPS Agreement. Rather, the legal question is whether the importing Member could have adopted a less trade-restrictive measure. This requires the panel itself to objectively assess, inter alia, whether the alternative measure proposed by the complainant would achieve the importing Member's appropriate level of protection.

This article has not discussed the Appellate Body's application of the US/ Canada — Continued Suspension jurisprudence in relation to art 5.6. However, it may be recalled that the Appellate Body previously observed that panels have neither the technical expertise nor the facilities to undertake risk assessments that take some time and expend no small amount of resources, and at the present time remain "poorly suited to engage in such a review".69 This art 5.6 finding is therefore surprising and promises to provoke much discussion.

V. Conclusion

As seen above, in various respects, the Appellate Body's jurisprudence in Australia — Apples tends away from a 'procedural' review, which would avoid a reappraisal of the science, and towards a substantive or de novo review. The vague articulation of a threshold for 'flaws' in a risk assessment making the result 'questionable' gives panels significant leeway, in their discretionary appreciation of the facts, to have a low tolerance of any flaws at all in the risk assessment, which is a feature of more rigorous and less deferential standards of review. Combined with the leeway to avoid discussing whether the scientific judgments made by risk assessors are within the range of what would be considered legitimate by their peers, but by reference to the panel's own appreciation of what the scientific evidence would 'support', this tends towards a panel's substitution of its own scientific judgment for that of the risk assessor.
In other respects, as seen above in relation to the question of the weight to be given to expert testimony that is supportive of the substantive determination, the Appellate Body's jurisprudence applies a strict 'procedural' approach in assessing the reasoning of the risk assessors, that does not allow for peer approval of the substantive outcomes to be dispositive of whether the scientific determination is legitimate and whether it serves the requirements of art 5.1.
The Appellate Body faced a difficult task after the US/Canada — Continued Suspension dispute. It had departed from its previous reluctance to impugn the fact-finding of panels and had made the first determination that a panel had failed to make an objective assessment, a "very serious allegation, [that] goes to the very core of the integrity of the WTO dispute settlement process itself".70 By insisting that its decision in US/Canada — Continued Suspension was consistent with and indeed a continuation of its prior discussions of the appropriate standard of review and what would constitute an 'objective assessment of the matter', it seems to have sought to circumscribe the encouraging effect that US/Canada Continued Suspension might otherwise have for Members seeking to claim error regarding the standard of review applied by a panel or a panel's compliance with art 11 of the Dispute Settlement Understanding.

* Jessica Giovanelli is a legal officer in the Office of International Law in the Australian Attorney-General's Department. She was involved in the preparation of Australia's case in the Australia —Apples dispute. The views expressed in this article are the author's own and do not necessarily represent the views of the Australian Government or the Attorney-General's Department. This is the edited version of a paper presented at the inaugural research symposium of the Economic Law Interest Group of the Australian and New Zealand Society for International Law.

1 - Australia — Measures Affecting the Importation of Apples from New Zealand WTO DOC WT/ DS367/AB/R, AB-10-6392 (2010) (Report of the Appellate Body) [Australia — Apples'].
2 - United States — Continued Suspension of Obligations in the EC—Hormones Dispute WTO DOC WT/DS320/AB/R, AB-08-4928 (2008) (Report of the Appellate Body); Canada — Continued Suspension of Obligations in the EC — Hormones Dispute WTO DOC WT/DS321/AB/R, AB-08-4927 (2008) (Report of the Appellate Body). [US/Canada — Continued Suspension}.
3 - US/Canada — Continued Suspension, ibid at [590]—[591] and [598].
4 - David A Wirth "The Role of Science in the Uruguay Round and NAFTA Trade Disciplines" (1994) 27 Cornell Intl LJ 817.
5 - Ibid, at 818.
6 - In particular, the experiences of William D Ruckelshaus, former Administrator of the US Environmental Protection Agency (citing William D Ruckelshaus "Risk, Science, and Democracy" (1985) Issues in Science and Technology 19, and cases such as Daubert v Merrell Dow Pharmaceuticals Inc [1993] USSC 99; 113 S Ct 2786 (1993)).
7 - Ibid, at 853.
8 - EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/ AB/R, (1998) (Report of the Appellate Body) ('EC — Hormones').
9 - As the Appellate Body noted, the Panel in that case "seem[ed] to have conducted a survey of the advice presented by the scientific experts and based its decisions on whether the majority of the experts, or the opinion that was most thoroughly reasoned or specific to the question at issue, agreed with the conclusion drawn in the European Communities' risk assessment. This approach is not consistent with the applicable standard of review under the SPS Agreement": US/Canada — Continued Suspension, above n 2, at [598]. See also [590]-[592].
10 - Meredith Kolsky Lewis "International Economic Law and Policy Blog" (2010) University of Victoria, Wellington <www.worldtradelaw.typepad.com/ielpblog/2010/04/new-zealand-australia-apples-dispute.html>.
11 - World Trade Organization Agreement on Sanitary and Phytosanitary Measures (signed 15 April 1994, entered into force 1 January 1995).
12 - See for example, Australia—Measures Affecting Importation of Salmon WTO DOC WT/DS18/ AB/R, AB-98-4035 (1998) at [119], [121], [127]-[129], [134]-[136] (Report of the Appellate Body); US — Continued Suspension of Obligations in the EC — Hormones Dispute WTO DOC WT/DS320/R, PR-08-898 (2008) (Report of the Panel); US/Canada — Continued Suspension, above n 2, at [69].
13 - While this claim has become a way of attacking the importing Member's sanitary or phytosanitary measures as not having scientific justification, the concept has also been used by importing Members who have been found in breach of art 5.1, to confine any violation to a faulty risk assessment, rectify the risk assessment and preserve the integrity of the underlying scientific basis of the measures. For example, the first time that the concept of a 'proper' or 'valid' risk assessment was couched in these terms was in the European Communities — Measures Concerning Meat and Meat Products (Hormones) compliance arbitration:

"... the Appellate Body did not find that the EC's import prohibition per se was inconsistent with the SPS Agreement, but only that the EC had violated its obligations under the SPS Agreement by not conducting a proper risk assessment within the meaning of Article 5.1 as the basis for the import prohibition. The EC is entitled, therefore, to bring its measure into conformity with the SPS Agreement by basing it on a properly specific risk assessment, as this concept has now been clarified for the first time by the Appellate Body." European Communities — Measures Concerning Meat and Meat Products (Hormones) Arbitration under Article 21.3(c) of the DSU, WT/DS26/15, WT/DS48/13, 29 May 1998, DSR 1998:V, 1833 (Award of the Arbitrator) [8], citing para 64 of the European Communities' written submission.
14 - European Communities — Measures Concerning Meat and Meat Products (Hormones), WT/ DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, 135 (Report of the Appellate Body), at [4].
15 - Ibid, at [110], citing para 140 of the European Communities' appellant's submission.
16 - Ibid, at [111], citing para 123 of the European Communities' appellant's submission.
17 - Ibid, at [117].
18 - Ibid at [119].
19 - Ibid. The issue of failure to apply an appropriate standard of review... resolves itself into the issue of whether or not the Panel, in making the above and other findings referred to and appealed by the European Communities, had made an "objective assessment of the matter before it, including an objective assessment of the facts ...". That particular issue is addressed (in substantial detail) below. Here, however, we uphold the findings of the Panel appealed by the European Communities upon the ground of failure to apply either a "deferential reasonableness standard" or the standard of review set out in Article 17.6(i) of the AntiDumping Agreement.
20 - Japan — Measures Affecting Importation of Apples WTO DOC WT/DS245/AB/R, AB-03-6276 (2003) at [163] (Report of the Appellate Body) [Japan — Apples''].
21 - US/Canada — Continued Suspension, above n 2, at [75].
22 - Ibid.
23 - Ibid at [613]-[615]. The relevant testimony did not answer the procedural questions of objectivity or coherence, but rather agreed on the existence of risk.
24 - Ibid at [534]. In its footnote, the Appellate Body recalled the views in Japan — Apples that the "evaluation . should not be distorted by preconceived views on the nature and the content of the measure to be taken": Japan — Apples, above n 20, at [208].
25 - US/Canada — Continued Suspension, above n 2, at [590]: "the review power of a panel is not to determine whether the risk assessment undertaken by a WTO Member is correct, but rather to determine whether that risk assessment is supported by coherent reasoning and respectable scientific evidence and is, in this sense, objectively justifiable." (emphasis added)
26 - Australia — Measures Affecting the Importation of Apples from New Zealand WTO DOC WT/ DS367/R, PR-10-3998 (2010) at [7.448] (Report of the Panel) ['Panel Report, Australia — Apples']. See also Australia — Apples, above n 1, at [191].
27 - For example, for some parts of the life cycle of the pests at issue in Australia — Apples, there were issues where phenomena have not been observed but must happen, such as the mechanism by which the bacteria spread from tree to tree and orchard to orchard. The mechanism and frequency of the phenomena are not very susceptible to reliable experimentation and observation. Uncertainty might also exist because of high variation in the scientific evidence before the risk assessor. In Australia — Apples, on some issues such as whether clean fruit could become contaminated with fire blight bacteria during processing, studies had been conducted with different methodology and had yielded different results. If there was a large range of variation in results of disparate studies and the risk assessors considered it was just as likely that the risk could be at the upper end as at the lower end of the results on a particular issue, they judged what would be an appropriate distribution model — for example, taking the average of the results of those studies.
28 - For example: "because of the wide variation in the information reported in the various studies cited in the IRA, it is not possible to find justification from these studies for the probability range assigned to importation step 2 by the IRA.": Panel Report, Australia — Apples, above n 26, at [7.274]; "The IRA's estimation of this particular importation step is based on some scientific evidence. The two studies on which the calculation of the probability range and the most likely value are based, however, have important limitations, mainly because of the small sample size in the first paper and the lack of information on the methodology and on the details of the results of the second paper. In such conditions, these studies cannot constitute an adequate scientific basis for a coherent and objective analysis." Panel Report, Australia — Apples, above n 26, at [7.289]; "the probability value assigned to such event should be commensurate to the extremely low likelihood of transmission through the browsing insects scenario": Panel Report, Australia — Apples, above n 26, at [7.403].
29 - Para 92 of Australia's appellant's submission in Australia — Apples, above n 1.
30 - Para 74 of Australia's appellant's submission in Australia — Apples, above n 1.
31 - Ibid.
32 - See Australia — Apples, above n 1, at [27].
33 - Para 77 of Australia's appellant's submission in Australia — Apples, above n 1. See also [93(4)], [94]-[95] of Australia's appellant's submission.
34 - Biosecurity Australia (2006) Final Import Risk Analysis for Apples from New Zealand, Part B, Canberra, November 2006, at 78.
35 - Panel Report, Australia — Apples, above n 26, at [7.318].
36 - Panel Report, Australia — Apples, above n 26, at [7.228].
37 - US/Canada — Continued Suspension, above n 2, at [94]. Footnotes omitted.
38 - "Dr Paulin: The qualification of "high" for the impact of fire blight is to my eyes appropriate, based on the possible international consequences of this introduction": Panel Report, Australia — Apples, above n 26, Annex B-1 at [94]. Dr Deckers: The biological and economical consequences of a fire blight introduction can indeed be classified as "high": Panel Report, Australia — Apples, above n 26, Annex B-1 at [85]. See para 116 of Australia's appellant submission in Australia — Apples, above n 1.
39 - Australia — Apples, above n 1, at [240].
40 - Australia — Apples, above n 1, at [238]: "We observe that, if a Member chooses to base SPS measures on a risk assessment, it must have made the preliminary determination that the relevant scientific evidence is sufficient to perform a risk assessment. If, however, the Member considers that scientific evidence is insufficient to perform a risk assessment, it may instead choose to take provisional SPS measures based on Article 5.7 of the SPS Agreement."
41 - For example, Panel Report, Australia — Apples, above n 26, at Annex B-2 at [254]-[255] per Dr Paulin and Dr Deckers: "... It doesn't mean that it happened, but you have to consider that it can happen. I think for most of these questions that is the basis of the answer. You can conceive that it may exist sometimes and because you cannot experiment you have to accept this possibility, even if it is very low, but you have to accept it. . It is a possibility which can never be excluded 100 per cent. That's what we are trying to say."
42 - Australia — Apples, above n 1, at [215].
43 - Ibid, at [224].
44 - Ibid, at [250].
45 - Ibid, at [258].
46 - Andrew T Guzman "Determining the Appropriate Standard of Review in WTO Disputes" (2009) 42 Cornell Intl LJ 45.
47 - "A low, or deferential standard of review implies that a higher court will reverse a lower court's ruling only if the lower court commits a serious error. A high, or stringent, standard of review implies that a higher court will reverse a lower court's decision if the appellate court finds there to have been any error at all": Ibid, at 45. Though making reference to appellate review in the judicial system, the reasoning is analogous to review of scientific determinations — if a review body (the panel) exercises a low tolerance of error, it is comparing the decision with what it believes should have been the decision, and using its own appraisal of the facts, or scientific evidence, as the reference point against which to find error.
48 - Australia — Apples, above n 1, at [270], citing paras 553 and 615 of US/Canada — Continued Suspension, above n 2.
49 - Australia — Apples, above n 1, at [276].
50 - Ibid, at [272].
51 - Ibid, at [302].
52 - Ibid, at [313].
53 - Ibid at [311].
54 - "... scientists often disagree among themselves, especially on issues at the cutting edge of regulatory policy that may involve considerable scientific uncertainty. Even in the supposedly strictly technical process of risk assessment, there may be considerable conflict among scientists. ... there is unlikely to be a single, unique way to analyze even the purely scientific significance of much empirical data ... peer review does not anticipate the sort of bipolar, "yes or no" result contemplated by adjudicatory process. Instead, peer review is responsive to a characterization of science as an ongoing search for knowledge against a constantly shifting and evolving background that, by its very nature is always operating on new frontiers": Wirth, above n 4, at 841.
55 - Wirth, above n 4, at 857, citing Daubert v Merrell Dow Pharmaceuticals Inc [1993] USSC 99; 113 S Ct 2786 (1993) at 2797.
56 - Ibid, at 855.
57 - The questions he proposed were:

Was the adoption of the measure preceded by an attempt to gather empirical data? Are the data characterized by any indicia of reliability, eg, reproducibility? Do the principles underlying the attempts to gather empirical data, as through toxicological tests, enjoy any following in the scientific community? Are numerical conclusions, such as risk probabilities, based on calculations from empirical data? Are the assumptions made in performing the risk assessment disclosed? To ensure consistency, is there evidence of the application of objective principles that might govern a class of similar cases? For example, was the risk assessment performed using assumptions or inference guidelines that have been published or that have been utilized in other cases? Are the scientific conclusions as to effects sufficiently specific to permit the adoption of a minimally coherent regulatory standard? For example, if the concern is for birth defects, is there a finding of teratogenicity?
58 - World Trade Organization Anti-Dumping Agreement (signed 15 April 1994, entered into force 1 January 1995).
59 - See for example, discussion in chs 2, 3 and 4 of Michelle T Grando Evidence, Proof and Factfinding in WTO Dispute Settlement (Oxford University Press, Oxford, 2009) and Guzman, above n 46.
60 - EC — Hormones, above n 13, at [190].
61 - US/Canada — Continued Suspension, above n 2, at [590].
62 - Australia — Apples, above n 1, at [220] and [215].
63 - Panel Report, Australia — Apples, above n 26, at [7.448]. See also Australia — Apples, above n 1, at [191].
64 - Australia — Apples, above n 1, at [192], citing Panel Report, Australia — Apples, above n 26, at [7.447] and [7.448].
65 - Joanne Scott The WTO Agreement on Sanitary and Phytosanitary Measures: A Commentary (Oxford University Press, Oxford, 2007) at 90—91.
66 - US/Canada — Continued Suspension, above n 2, at [590].
67 - Australia — Apples, above n 1, at [224].
68 - Ibid, at [356].
69 - As observed by the Appellate Body in EC — Hormones, above n 13, at [117].
70 - European Community — Measures Affecting the Importation of Certain Poultry Products WTO DOC WT/DS69/AB/R, AB-98-2688 (1998) at [133] (Report of the Appellate Body).


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