Standards of Scientific Evidence in Preferential Trade Agreements

For a long time, international trade law’s interest in science has been limited to the provisions of the World Trade Organization’s (WTO) Sanitary and Phytosanitary (SPS) Agreement. However, the role of science in international trade law goes beyond the SPS Agreement. The Australia – Plain Packaging dispute has shown that the assessment of non-SPS provisions can also involve complex scientific questions. Moreover, the discussion should be extended to preferential trade agreements (PTAs). Against this background, this article investigates the nature and potential impact of standards of scientific evidence in PTAs. After the introduction, Section II lays out the methodology of the article. Section III opens with a brief recall of the relevant WTO provisions. Section IV reviews the standards of scientific evidence embedded in the PTAs concluded by the European Union (EU) and by the United States (USA), showing that both trading blocs have started introducing more stringent standards in recent PTAs. Section V describes the trends that emerge from the analysis. Some of these innovations seem to expand the application of the SPS science-based provisions to TBT chapters. Others simply introduce new standards of scientific evidence in WTO-X chapters on regulatory cooperation, environment, and labor. In conclusion, the article argues that we should pay much more attention to the role of standards of scientific evidence in PTAs.