|Volume 26||2003||Number 2|
Abstract: This article demonstrates that science cannot be a neutral arbiter for triggering precautionary measures, because both making and warranting findings of risk require non-scientific decisions. Making a risk finding requires decisions about the meaning of risk of harm, about the meaning of any modifiers for that predicate, and about the degree of confidence asserted for the finding as a whole. Determining that the available scientific evidence warrants a finding of risk requires decisions about acceptable degrees of various types of uncertaintynamely, conceptual uncertainty, measurement uncertainty, sampling uncertainty, modeling uncertainty, and causal uncertainty. This article illustrates these decisions using examples from the food safety law of the United States, recent animal feed cases in the European Community, and Appellate Body decisions in WTO trade disputes. Finding a risk that triggers precautions cannot be a purely scientific act, notwithstanding the myth that a value-neutral science can do so.
Abstract: NAFTA Chapter 11 permits eligible foreign investors to use binding international arbitration to seek compensation for the harmful economic impacts of most regulatory measures. This mechanism effectively provides a second avenue of redress for individuals affected by risk regulation, in addition to any remedies that may be available to their governments acting through the WTO. However, because not all risks are equal, neither are all regulations of equal importance. It follows that the international regimes, which regulate the use of these measures, must be able to differentiate between them. In this regard, there is a need to interpret the more general investment obligations of NAFTA to take into account the importance of regulating risks to human, plant, or animal life or health. This article explains the way in which principles drawn from much more detailed WTO sanitary and phyto-sanitary rules can be used to achieve this result.
Abstract: Just a few votes shy of entering into force, the Cartagena Pro-tocol on Biosafety is poised to become the next multilateral environ-mental agreement that has the potential to pit trade interests against en-vironmental concerns. Nevertheless, concerns over impending conflict with the WTO trade regime may be misplaced. A detailed analysis of the rights and obligations of the parties to the Protocol and the applicable WTO disciplines reveals few instances of probable conflict. The United States, one of the largest exporters of LMOs, has not signed or ratified the Protocol. Thus, the determination that no conflict exists is of partic-ular importance if the Protocol is to be effective in the likely scenario where the exporting country is not a party to the Protocol but both it and the importing country are members of the WTO.
Abstract: Rising prescription drug prices have been a point of contention in the United States for decades. Questions such as who should shoulder the cost and what role the government should play in setting drug prices are central to the debate. Other nations face similar concerns and have developed prescription drug plans that incorporate various cost containment strategies. An analysis of prescription drug coverage in other nations may help educate domestic lawmakers on the complexities of these cost containment strategies. The United States could benefit from the lessons learned abroad.
Abstract: Project Finance has become an increasingly attractive tech-nique for financing infrastructure projects in developing countries over the last twenty years. Furthermore, the use of project financing raises difficult legal issues with respect to the ability of developing countries governments to control the provision of public services that are intimately connected to these infrastructure projects. Sponsors of project finance transactions have been relatively successful in dealing with these legal issues by negotiating for international arbitration as the primary forum for resolving potential disputes with the host gov-ernment. However, as the Himpurna and Patuha power projects in Indonesia reveal, a disciplinary bias exists in the minds of international arbiters with respect to project finance disputes between foreign in-vestors and state entities. This bias has important implications for the future of economic relations between rich and poor nations and the prospects for economic growth in developing countries.
Abstract: Following the 1994 genocide in Rwanda, the Government of National Unity embarked upon the ambitious task of trying over 100,000 detainees suspected of participating, at some level, in the genocide. By 1998, having experienced little success with formal trials, the government began developing plans to amend the traditional dispute resolution mechanism, known as gacaca, in an attempt to achieve both justice and reconciliation. Serious criticism has been voiced over the gacaca jurisdictions, claiming, in part, that they fail to meet Rwandas due process obligations under the International Covenant on Civil and Political Rights (ICCPR). While perhaps not conforming to the letter of the law, the gacaca jurisdictions do have the potential to embody its spirit by serving the need for justice and accountability in Rwanda while fostering a culture of human rights protection in a country that has long ignored them.