The Asbestos Case: A Comment on the Appointment and Use of Nonpartisan Experts in World Trade Organization Dispute Resolution Involving Health Risk

The World Trade Organization is currently evolving its approach to incorporating scientific and technological evidence into its dispute‐resolution process. In European Communities—Measures Affecting Asbestos and Asbestos‐Containing Products, the Panel was faced with a large amount of complex and conflicting scientific evidence presented by the partisan experts. The Asbestos Panel's solution was to appoint independent, nonpartisan experts to help it understand and evaluate the scientific evidence. While this was far better than trying to unravel the conflicting scientific evidence on its own, two aspects of the Panel's adopted procedure merit scrutiny. First, the expert‐selection process used by the Panel may not assure that the collective expertise of the appointed experts is broad enough when the dispute involves multidisciplinary scientific issues. Second, the process adopted by the Panel for consulting the appointed experts—which involved individual consultation rather than a consensus process—may leave a panel with a distorted or confused picture of the science. A consensus approach is the best means of obtaining scientific advice from appointed experts; it is most calculated to provide a clear and accurate report of the scientific information needed by a panel to make a fair and informed decision on the dispute before it. The underlying principle of world trade agreements is that it is beneficial to all of us to have free trade. Among other things, this requires an effective means of resolving disputes, and increasingly that includes disputes involving complex scientific and technological issues. This can be achieved only if the parties have confidence that their disputes will be decided in a fair and informed manner, based on the best science available. To achieve this goal, we suggest that future WTO panels depart in certain respects from the procedures utilized by the Asbestos Panel.