Independence of experts and standards for evaluation of scientific evidence under the SPS agreement - new directions in the SPS case law

Under Section II of the Rules of Conduct for the DSU,2 the institutional affiliation of experts may be considered as an element that casts doubts on their impartiality and independence. Under Articles 5.1 and 5.7 of the SPS Agreement,3 the level of protection that a particular country is ready to tolerate may inform risk assessment and have an impact on the determination of insufficiency of scientific evidence. In a situation in which there is sufficient scientific evidence for performance of risk assessment in one of the international standard setting-organizations, one may still find insufficiency as provided by Article 5.7 if new data puts into question the relationship between the relevant scientific evidence and the conclusions in relation to risk, thereby not permitting the performance of a sufficiently objective assessment of risk (authors' headnote).