Reflections on the appellate body decision in the hormones case and themeaning of the SPS agreement

One of the most important and controversial decisions of the WTO dispute settlement system in its early years was the so-called Hormones case, which involved claims by the United States and Canada that an EC ban on the sale and import of meat from cattle treated with growth hormones violated the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). In this chapter, I examine a number of the key issues in that case in light of the Appellate Body report. In particular, I will consider its rulings on several preliminary issues – the questions of burden of proof, standard of review and the precautionary principle – and then turn to its interpretation of Articles 3 and 5 of the SPS Agreement. The chapter concludes with a few observations (i) on the SPS Agreement and the extent to which it constrains governments in adopting the SPS measures of their choice and (ii) on the judicial method of the Appellate Body. Preliminary Issues The Appellate Body dealt with three important preliminary issues before turning to the substantive meaning of the obligations of Article 3 and 5 of the SPS Agreement: the question of burden of proof, the standard that should be applied by a panel in reviewing government action under the SPS Agreement and the position of the so-called precautionary principle under the SPS Agreement.