A critical analysis of EC-Biotech : the panel's approach to other rules of international law and the application of the SPS agreement

The United States and the European Communities have developed different regulatory strategies to address the challenges posed by agricultural and food biotechnology. Examining the development of biotechnology regulation in both the US and the EC, it becomes apparent that while EC regulation of biotechnology can generally be characterised as precaution-oriented and restrictive, comparatively, US regulation can be considered technology promoting and permissive. The complaint brought by the United States (and Canada and Argentina) at the World Trade Organization against the European Communities' approval regime for biotechnology products was significant as it served to highlight the disparate regulatory approaches to biotech products taken in the US and the EC. The dispute raised issues concerning not only the WTO-compatibility of the more precautionary EC biotech approval regime with WTO trade rules, but also the nature of genetically modified organisms for the purpose of their classification under the WTO agreements. However, the Panel in EC ‚ÄövÑvÆ Biotech managed to avoid many of the potentially contentious issues raised by the dispute by narrowly focusing the majority of its conclusions on technical grounds. This thesis argues that in order to avoid such questions, the Panel used legally questionable reasoning in regard to two specific issues: the relevance of other international law rules to the provisions of the WTO, and the scope of application of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures. It is argued that the Panel's approach to these issues is problematic as there may be negative repercussions for the resolution of future WTO disputes.