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What Role for the Precautionary Principle in WTO Law after Japan-Apples?

This article examines the contribution of the Japan-Apples case to the understanding of the role of the precautionary principle in WTO law, in particular under the SPS Agreement. First, the background is set for the discussion by examining the extent to which the precautionary principle, or related concerns, played a role in the negotiation of the SPS Agreement, and its resulting provisions. Then a brief survey of existing case law on the topic is conducted, in order to place the Japan-Apples decision in context. Thereafter, the findings in the Japan-Apples dispute of relevance to the precautionary principle are discussed. Attention is first paid to the interpretation given in that case to the first requirement of Article 5.7, a provision that has been previously held by the Appellate Body to embody the precautionary principle. This first requirement stipulates that the situation be one where "relevant scientific evidence is insufficient", and may be regarded as the "trigger" for the application of Article 5.7. This is the first case where this trigger factor is addressed, and may thus be regarded as a landmark decision in this respect. Second, the Appellate Body's findings regarding the possible relevance of the precautionary principle for the standard of review to be applied by panels when evaluating the scientific evidence before them are considered. This contribution concludes by arguing that the findings in the Japan-Apples case, like other cases before it, have had the effect of limiting the role of the precautionary principle in the SPS Agreement almost entirely to the particular embodiment given to it in Article 5.7. Within the four corners of this Article, measures taken in accordance with the precautionary principle must comply with rigorous, yet realistic, requirements to guard against protectionist measures. Thus, Article 5.7 creates a limited exception for cases where there is a true lack of relevant and reliable scientific evidence on the risk at issue. Reliance on the precautionary principle outside Article 5.7 has once again been unsuccessful.