As the European Law is also a branch of
international law families, it is also worthy to observe the development of standard
of review in reviewing technical measures under international law. In particular,
the European Union is subject to the obligations provided by the World Trade Organization
(WTO) law[1].
It is therefore interesting to observe under the similar circumstances what the
dispute settlement mechanism of the WTO has done in deciding cases involving technical
issues.
First, the notion of standard of review draws
from domestic administrative laws, which does not apply in any formal sense in
disputes over compliance with public international law[2].
The notion refers to the intensity of international judicial scrutiny of
activities of nation states[3].
There is strong advocacy for standard of reviews incorporating a significant
level of deference towards national decision-making[4].
This may be due to the lack of experience and expertise of international
adjudicators to closely engage in scientific and technical issues. More
importantly, it concerns about the loss of sovereignty associated with participating
in the multilateral trade regime[5].
Many discussions relate to how to sustain democratic decision-making about risk
in the hands of nation states[6].
It is even doubtful whether the adjudicative framework is an appropriate
substitute for administrative decision-making of nation states in the highly
technical fields[7].
Although it seems that a standard of reviews
incorporating a significant level of deference towards national decision-making
sounds well in theory, in practice, the Appellate Body of the WTO in European Communities-Measures Concerning
Meat and Meat Products (Hormones)[8]
found that, neither de novo review[9]
nor full deference[10]
is required from a panel assessing the legality of trade measures of a member.
According to Article 11 of the WTO Dispute Settlement Understanding, the panel
has to make an objective assessment of matter before it, including the facts.
Therefore, the type of standard of review by the WTO adjudicative body is neither
the first type nor the fourth type indicated in the former section. In
addition, as Croley and Jackson indicated, reducing international adjudication
to a form of purely procedural review would be extremely inconsistent with operating
a system of substantive international rules intended to regulate a balance of
interests at international level[11].
Furthermore, despite the lack of experience and
expertise of the WTO adjudicative body dealing with scientific and technical
issues, both Article 2.2 of the Agreement on the Application of Sanitary and
Phytosanitary Measures (SPS) and Article XX of the General Agreement on Tariffs
and Trade (GATT 1994) require that, the WTO Adjudicative body shall review
whether the measure of a Member State aim at protecting public health is ‘necessary’.
It is therefore inevitable for the WTO Adjudicative body to both substantially
review the discretions and factual findings exercised by national authorities
of Members[12].
Very similarly, in the context of free
movement of goods and the operation of the internal market, when facing
disputes between Union institutions and Member States, like the WTO
adjudicative body did in cases involving scientific and technical issues, the
European Courts have to resolve the dispute between parties both equipped with sufficient
expertise assessing scientific and complex matters. In this respect, as
mentioned before, the general practice that the court shall defer to the discretion
of the initial decision-makers in cases involving technical matters no longer
applies[13],
since in this situation both parties are qualified factual investigators and
capable of assessing scientific and complex matters. In this respect, the Court
is forced to render a decision between parties, in order to ensure that in the
interpretation and application of the Treaty the law should be observed.
[1] P. Van den Bossche, The Law
and Policy of the World Trade Organization: Texts, Cases and Materials,
Cambridge 2008, at p. 104.
[2] C. E. Foster, Science and the
Precautionary Principle in International Courts and Tribunals-Expert Evidence,
Burden of Proof and Finality, Cambridge 2011, at p. 14.
[4] See D. Wirth, ‘The role of science in the Uruguay
[5] C. E. Foster, Science and the
Precautionary Principle in International Courts and Tribunals-Expert Evidence,
Burden of Proof and Finality, Cambridge 2011, at p. 15.
[6] R. Howse, ‘Democracy, science, and free trade: Risk regulation on
trial at the World Trade Organization’ (2000) 98 Michigan
[8] See Appellate Body Report, European
Communities-Measures Concerning Meat and Meat Products (Hormones),
Complaints by Canada
(WT/DS48) and by the United
States
[9] The de novo review allows the court to substitute his/her own
finding for those of the national authority, see A. Alemanno, Trade in Food, Regulatory and Judicial
Approaches to Food Safety, Cameron 2007, at p. 318.
[10] The full deference prevents the court from substantially reviewing
the investigations conducted by the initial decision-makers, see A. Alemanno, Trade in Food, Regulatory and Judicial
Approaches to Food Safety, Cameron 2007, at p. 318.
[11] See P. S. Croley and J. H. Jackson, ‘WTO dispute procedure,
standard of review, and deference to national governments’ (1996) 90 American Journal of International Law
193, at p. 209.
[12] See P. Van den Bossche, The
Law and Policy of the World Trade Organization: Texts, Cases and Materials,
Cambridge 2008, at pp. 622-628, pp. 858-862.
[13] However, it may not be suitable for an ordinary court to substitute
its own judgment on a statute for a reasonable interpretation made by a special
agency, considering the fact that the agency making the initial judgment may
have significant knowledge, expertise, more than the court. See P. Craig, EU Administrative Law, Oxford 2006, at pp.
436-437.
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