Law and science: risk assessment and risk management in the WTO agreement on the application of sanitary and phytosanitary measures

Assessing and managing risks relating to the consumption of food stuffs for humans and to the environment has been one of the most complex legal issues in WTO law, ever since the Agreement on Sanitary and Phytosanitary Measures was adopted at the end of the Uruguay Round and entered into force in 1995. The problem was expounded in a number of cases. Panels and the Appellate Body adopted different philosophies in interpreting the agreement and the basic concept of risk assessment as defined in Annex A para. 4 of the Agreement. Risk assessment entails fundamental question on law and science. Different interpretations reflect different underlying perceptions of science and its relationship to the law. The present thesis supported by the Swiss National Research Foundation undertakes an in-depth analysis of these underlying perceptions. The author expounds the essence and differences of positivism and relativism in philosophy and natural sciences. He clarifies the relationship of fundamental concepts such as risk, hazards and probability. This investigation is a remarkable effort on the part of lawyer keen to learn more about the fundamentals based upon which the law – often unconsciously – is operated by the legal profession and the trade community. Based upon these insights, he turns to a critical assessment of jurisprudence both of panels and the Appellate Body. Extensively referring and discussing the literature, he deconstructs findings and decisions in light of implied and assumed underlying philosophies and perceptions as to the relationship of law and science, in particular in the field of food standards. Finding that both positivism and relativism does not provide adequate answers, the author turns critical rationalism and applies the methodologies of falsification developed by Karl R. Popper. Critical rationalism allows combining discourse in science and law and helps preparing the ground for a new approach to risk assessment and risk management. Linking the problem to the doctrine of multilevel governance the author develops a theory allocating risk assessment to international for a while leaving the matter of risk management to national and democratically accountable government. While the author throughout the thesis questions the possibility of separating risk assessment and risk management, the thesis offers new avenues which may assist in structuring a complex and difficult problem

William Harvey revisited

William Harvey's discovery of the circulation of the blood is often described as a product of the Scientific Revolution of the Seventeenth Century. Modern research has, however, shown thatHarvey followed the Aristotelian research tradition and thus tried to reveal the purpose of the organs through examination of various animals. His publication of 1628 has to be read as an argument of natural philosophy, or, more precisely, as a series of linked observations, experiments and philosophical reasonings from which the existence of circulation has to be deduced as a logical consequence. Harvey did not consider experiments as superior to philosophical reasoning nor intended he to create a new system of medicine. He believed in the vitality of the heart and the blood and rejected Francis Bacon's empirism and the mechanistic rationalism of Descartes. Harvey's contribution and originality lied less in his single observations and experiments but in the manner how he linked them with critical reasoning and how he accepted, presented and defended the ensuing radical findings.

Why Do Some International Institutions Contain Strong Dispute Settlement Provisions: New Evidence from Preferential Trade Agreements

To understand why some international institutions have stronger dispute settlement mechanisms (DSMs) than others, we investigate the dispute settlement provisions of nearly 600 preferential trade agreements (PTAs), which possess several desirable case-selection features and are evoked more than is realized. We broaden the study of dispute settlement design beyond “legalization” and instead reorient theorizing around a multi-faceted conceptualization of the strength of DSMs. We posit that strong DSMs are first and foremost a rational response to features of agreements that require stronger dispute settlement, such as depth and large memberships. Multivariate empirical tests using a new data set on PTA design confirm these expectations and reveal that depth – the amount of policy change specified in an agreement – is the most powerful and consistent predictor of DSM strength, providing empirical support to a long-posited but controversial conjecture. Yet power also plays a sizeable role, since agreements among asymmetric members are more likely to have strong DSMs due to their mutual appeal, as are those involving the United States. Important regional differences also emerge, as PTAs across the Americas are designed with strong dispute settlement, as are Asian PTAs, which contradicts the conventional wisdom about Asian values and legalization. Our findings demonstrate that rationalism explains much of international institutional design, yet it can be enhanced by also incorporating power-based and regional explanations.