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International Business

Notes are “unjustifiable” and illegal under SPS agreement. In May 2006, the WTO’s dispute resolution
panel issued a complex ruling which took issue with some aspects of the EU’s regulation of
GMOs, but dismissed many of the claims made by the U.S.
Criticism: Quarantine policies play an important role in ensuring the protection of human,
animal and plant health. Yet under the SPS agreement, quarantine barriers can be a ‘technical
trade barrier’ used to keep out foreign competitors.
The SPS agreement gives the WTO the power to override a country’s use of the precautionary
principle – a principle which allows them to act on the side of caution if there is no scientific
certainty about potential threats to human health and the environment. In EC measures Concerning
Meat and Meat Products (Hormones) WT/DS/26/AB/R the Appellate Body of the WTO held that
it was “less than clear” whether the precautionary principle had crystallized into a principle
of customary international law, (EC-Hormones paragraph 123) and even if it had, it could not
override the provisions of Articles 5.1 and 5.2 of the Agreement on the Application of Sanitary and
Phytosanitary Measures (SPS Agreement) that require members to base their measures on a risk
assessment. (EC-Hormones paragraphs 123, 124 and 125. See discussion K Kennedy “Resolving
International Sanitary and Phytosanitary Disputes in the WTO: Lessons and Future Directions”
(2000) Volume 55 Food and Drug Law Journal 81 at 95) The Appellate Body also pointed out that
the principle had not been written into the SPS Agreement, although the Appellate Body conceded
that the principle was reflected in the sixth paragraph of the preamble of the SPSA, as well as
articles 3.3 and 5.7.(EC-Hormones paragraph 124) Article 3.3 allows members to implement
quarantine measures higher than those found in international standards, as long as the measures
otherwise comply with the SPS Agreement; while Article 5.7 allows provisional measures where
there is insufficient scientific evidence. Additionally, the Appellate Body acknowledged that
article 5.7 does not necessarily exhaust the relevance of the precautionary principle and that,
where there are risks of irreversible damage, governments often act from the point of view of
prudence. (EC-Hormones paragraph 124)
Under SPS rules, the burden of proof is on countries to demonstrate scientifically that something
is dangerous before it can be regulated, even though scientists agree that it is impossible to predict
all forms of damage posed by insects or pest plants.

Task Analyse the Berne Convention.

8.1.9 Agreement on Trade Related Investments Measures (TRIMs)

The Agreement on Trade Related Investment Measures (the ‘TRIMs Agreement’) applies to
investment measures related to trade in goods only. The Agreement restrains members from
applying any investment measure that is inconsistent with the provisions of Article III (National
Treatment on Internal Taxation and Regulation) or Article XI (General Elimination of Quantitative
Restrictions) of the GATT 1994. The Agreement carries an illustrative list of trade related
investment measures that are inconsistent with the obligation of national treatment provided for
in Paragraph 4 of Article III and the obligation of general elimination of quantitative restrictions
provided for in Paragraph I of Article XI of GATT 1994.

TRIMS Inconsistent

1. TRIMS that are inconsistent with the obligation of national treatment provided for in
Paragraph 4 of Article III include those which are mandatory or enforceable under domestic
law or under administrative rulings, or compliance with which is necessary to obtain an
advantage, and which require

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