Keeping the WTO from Becoming the World Trans-science Organization : Scientific Uncertainty, Science Policy, and Factfinding in the Growth Hormones Dispute

In Part I of the Article, I analyze the relevant provisions of the SPS Agreement. In that context, I examine the distinction between risk assessment and risk management, as well as the concepts of scientific uncertainty and science policy. Part II sets forth my proposal for how the WTO should review the sanitary measures established by members. The focus of attention is the fact-finding process in dispute settlement proceedings and, in particular, the substantive issues that should come before a panel, the evidence that a panel should consider, and the proper standard and burdens of proof. Finally, in Part III, I analyze the reports of the Hormones Panel and argue that the Panel made numerous and serious errors of law. I also argue that the Appellate Body, while it clarified a number of issues, also left many important questions unresolved. I conclude by suggesting the proper role of the WTO in fact-finding about the regulatory programs of WTO members