The Changing Faces of Deference under the WTO SPS and TBT Agreements

Review of scientific evidence by World Trade Organization (WTO) panels in disputes under the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) has been a frequent subject of scholarly literature. Despite the deferential standard of review established by the Appellate Body back in EC – Hormones and US/Canada – Continued Suspension, panels tend to put WTO member’s risk assessments to close scrutiny sometimes resembling a de novo review, which invariably leads to findings of violation. The transposition of the same standard into the TBT Agreement, however, has produced markedly different outcomes and secured a win for the respondents on essential issues in the most recent disputes over Australia’s tobacco plain packaging (TPP) regulation and the EU’s biofuels regime. This essay identifies the differences in the approaches adopted by SPS and TBT panels in the evaluation of scientific evidence and contemplates on the potential causes for such differences.