Risk regulation in WTO law: A procedure-based approach to the precautionary principle

The use of scientific justification under WTO law as a distinguishing criterion between protectionist and permissible national environmental and health regulation does not adequately address situations where expert risk assessment diverges from public, i.e., nonexpert, perceptions of risk. Since democratic deliberation, rather than potentially inconclusive science, should be the ultimate arbiter of risk regulation, WTO law should respect democratic choices, provided that protectionist legislation is avoided. One possible solution to this difficult dilemma lies in substituting procedural criteria for the current content-oriented requirements imposed on national legislation by the WTO. Procedural requirements could be designed to prevent protectionist legislation disguised as environmental or health measures, while allowing implementation of informed democratic outcomes reflecting societal preferences where the scientific evidence concerning risk is inconclusive.