The name is absent

25

of adjudication is, however, a delicate and difficult one, for the adjudicators have to be careful not to go
beyond the consensus views on what constitutes fairness. For example, in the EU-U.S. dispute over the
EU ban on imports of genetically modified (GM) foods, the semi-judicial process was called upon to
define the line between commercial activity and collective preferences. In order to accommodate
differences among countries in their collective preferences for health and safety standards, the WTO rules
allow countries to ban imports that do not conform to the standards that they have set for themselves.
However, because of the fear that countries could abuse these rules for protectionist purposes, it was also
agreed during the Uruguay Round that any restrictions imposed on health grounds should be scientifically
defensible. In the case of the GM foods, the EU argued in support of its imposition of a ban on imports
that there was insufficient scientific evidence that the foods did not harm human health. The U.S.
response was that there was no evidence of harm to human health. Thus their disagreement was not on
the scientific evidence but on a difference in assessment of risk. This is a normative difference that
precludes the emergence of a shared view on what is fair, although assessments of risk may change over
time as new scientific evidence becomes available.¹⁷

Provided the dispute-settlement bodies stay within the spirit of the agreed rules, the fairness of the
dispute-settlement machinery then turns on whether its procedures are equitable. One apparent inequity
that many have pointed out is the asymmetry between large and small countries in their capacity to
penalize any failure to comply with a judgment. If a small country is authorized by the Dispute
Settlement Body to raise tariffs on goods from a much larger trading partner, this does not have the same
effect as in the reverse case. The experience is, however, that the larger countries have not been
encouraged to ignore dispute settlement rulings. They have evidently been willing to conform to rules of
conduct that they have agreed to as fair in past negotiations.¹⁸ A practically more important inequity,
absence of sustained economic growth, or the actual worsening of economic circumstances in some countries.
Failure to graduate countries appears to have played only a minor role in enlarging the list. (UN, 2003)

¹⁷The turtle/shrimp dispute raised still subtler issues of the boundary between commercial activities and collective
preferences.

¹⁸ That is, they are recognizing the value of cooperation when the game is endlessly repetitive.

<<   24   25   26   27   28   29   30   >>

More intriguing information