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This book examines the intersection of WTO trade liberalisation
rules and domestic health protection, a subject that is of
considerable interest to those concerned that the WTO impinges on
national regulatory autonomy. In analysing the tension between
health protection and trade liberalisation, the book focuses on the
way in which this tension is (or is not) resolved through the
dispute resolution process. It offers a detailed analysis of the
relevant WTO rules and case law, identifying particular concerns
relating to the ability of WTO Members to take protective action in
circumstances of scientific uncertainty and the role of social and
cultural factors in the making of health-related regulations. The
nature of scientific evidence and the extent to which the
scientific process internalises uncertainty is further explored,
drawing on documentation relating to the theory and conduct of
scientific risk assessment. Despite the popularity of the
precautionary principle in some quarters, it is suggested that it
may not be advisable for the WTO to adopt that principle. Rather,
further attention should be paid to the role that the standard of
review might play in easing the tensions that arise when a
sovereign state's health regulations are reviewed by the WTO. The
origins of the WTO's 'objective assessment' standard of review are
explained, but the standard itself is criticised. Options for
developing the standard of review are considered, with a
'reasonable regulator' standard based on the Asbestos case
proposed. The book takes a comparative approach, drawing on ECJ
cases reviewing Member State and Community health measures as well
as US judicial review and commerce clause cases.
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