The GMO Panel: Applications of WTO Law to Trade in Agricultural Biotech Products

Abstract: One of the most important, and certainly the hardest fought, of World Trade Organization (WTO) dispute settlement cases was 'EC-measures affecting the approval and marketing of biotech products'. Released in September 2006 after a legal process of more than three years, the 'GMO Panel' arguably found against aspects of the EC's legal regime for trading and marketing of genetically modified organisms (GMO) products. This paper examines the implications of three legal questions that flow from the GMO case, and concludes by looking at the political situation the case presents for the EC and the complainants, namely, Argentina, Canada and the USA. First, the paper explains why the Panel relied on the Sanitary and Phytosanitary (SPS) Agreement as opposed to other WTO agreements that might have been more favourable to the EC. Secondly, the limited role of the Precautionary Principle in the Panel's analysis is examined. Thirdly, the paper explores the Panel's view of the meaning and importance of scientific risk assessment in trade policy actions on GMOs. Finally, the paper reviews the political alternatives that face the EC, the complainants and the WTO if compliance with the Panel's recommendation is not achieved.