The asbestos case: a comment on the appointment and use of nonpartisan experts in world trade organization dispute resolution involving health risk

Our plain-English summary of The asbestos case: a comment on the appointment and use of nonpartisan experts in world trade organization dispute resolution involving health risk, by R.S. Carruth, B.D. Goldstein (Risk Analysis, 2004).

The study

• Authors: R.S. Carruth, B.D. Goldstein
• Journal: Risk Analysis
• Published: 2004;24(2):471-81
• Cited by: 3 articles, as counted by NIH iCite
• Read it: PubMed · Publisher

Abstract

The World Trade Organization is currently evolving its approach to incorporating scientific and technological evidence into its dispute-resolution process. In European Communities-Measures Affecting Asbestos and Asbestos-Containing Products, the Panel was faced with a large amount of complex and conflicting scientific evidence presented by the partisan experts. The Asbestos Panel's solution was to appoint independent, nonpartisan experts to help it understand and evaluate the scientific evidence. While this was far better than trying to unravel the conflicting scientific evidence on its own, two aspects of the Panel's adopted procedure merit scrutiny. First, the expert-selection process used by the Panel may not assure that the collective expertise of the appointed experts is broad enough when the dispute involves multidisciplinary scientific issues. Second, the process adopted by the Panel for consulting the appointed experts-which involved individual consultation rather than a consensus process-may leave a panel with a distorted or confused picture of the science. A consensus approach is the best means of obtaining scientific advice from appointed experts; it is most calculated to provide a clear and accurate report of the scientific information needed by a panel to make a fair and informed decision on the dispute before it. The underlying principle of world trade agreements is that it is beneficial to all of us to have free trade. Among other things, this requires an effective means of resolving disputes, and increasingly that includes disputes involving complex scientific and technological issues. This can be achieved only if the parties have confidence that their disputes will be decided in a fair and informed manner, based on the best science available. To achieve this goal, we suggest that future WTO panels depart in certain respects from the procedures utilized by the Asbestos Panel.

In plain English

This article was a commentary, not a medical study, and reported no new health data. The authors examined how a World Trade Organization (WTO) panel obtained scientific advice in the "Asbestos Case," in which Canada, an exporter of chrysotile asbestos, challenged France's 1996 ban on asbestos and asbestos-containing products. As the authors recounted from the Panel Report, the panel found chrysotile to be a known carcinogen that causes mesothelioma and lung cancer, and it upheld the ban. The panel appointed four experts to whom neither side objected and consulted them individually in writing. It then held one meeting with all four experts and both parties on January 17, 2000. The authors reported wide variation in the experts' answers. For the first question, the longest answer was two single-spaced pages and the shortest was eight lines. They said the meeting allowed no collective search for consensus. The authors agreed with the panel's decision. They concluded that future panels should use a consensus approach and safeguards to make sure the experts' combined expertise is broad enough. They acknowledged that consensus approaches are not infallible.

We wrote this plain-English summary from the full article with the help of AI, and a second AI model checked each sentence against the article. It is not the authors' wording; the abstract and the article are their own account.

What the study did and found

• Design: Commentary and critique of a legal procedure: the authors analysed how a WTO dispute panel selected and consulted nonpartisan scientific experts. It is not an epidemiological or clinical study.
• Who was studied: The WTO panel in the dispute 'European Communities—Measures Affecting Asbestos and Asbestos-Containing Products' (Canada v. the European Communities over France's ban), and the four experts the panel appointed. The authors described these as three Australian academics and one American epidemiologist.
• Exposure: No exposure was studied. The dispute concerned France's 1996 decree banning, with few exceptions, the import and use of asbestos and asbestos-containing products, which Canada, an exporter of chrysotile asbestos, challenged.
• Main results:
  • As reported by the authors, the WTO panel (not this article) found that chrysotile asbestos is a known carcinogen causing both mesothelioma and lung cancer.
  • As reported by the authors, the panel also found that no threshold had been shown below which chrysotile is not carcinogenic.
  • The panel upheld the French ban.
  • The panel sent its written questions to each of the four appointed experts separately rather than seeking a joint report.
  • The panel later held a single meeting attended by the panel, its staff, all four experts and large delegations from each party.
  • The authors found remarkable variance among the four experts' written answers. For the first question, the longest answer was two pages single-spaced and the shortest was eight lines.
  • Only one of the four experts routinely tried to distinguish how much agreement or divergence there was in scientific opinion.
  • The January 17, 2000 meeting lasted one day only. In the authors' view, its format permitted neither a collective search for consensus among the experts nor effective cross-examination.
  • The Panel Report did not disclose how many candidates were nominated, in which disciplines, or what objections were made. This left uncertainty about whether the experts' collective expertise was adequate.
  • The authors argued that safeguards are needed to assure the balance and breadth of appointed experts' expertise. Examples they gave were letting the parties request additional experts and using a consensus approach.
• The authors' conclusion: The authors stated that they agreed with the panel's ultimate decision. They concluded that future WTO panels should foster a consensus approach among appointed experts in order to obtain the best available science.
• Limitations the authors state:
  • The authors did not address whether the panel had legal authority to consult the experts individually, only whether doing so was wise.
  • The authors acknowledged that consensus approaches are imperfect and did not claim they are infallible.

Related studies

• The precautionary principle and/or risk assessment in World Trade Organization decisions: a possible role for risk perception — B. Goldstein, R.S. Carruth (2004)
• WTO confidential: the case of asbestos. World Trade Organization — B. Castleman (2002)
• Asbestos poisons World Trade Organization atmosphere — L. Kazan-Allen (2001)
• Health effects of World Trade Center (WTC) Dust: An unprecedented disaster's inadequate risk management — M. Lippmann, M.D. Cohen, et al. (2015)
• Global mesothelioma deaths reported to the World Health Organization between 1994 and 2008 — V. Delgermaa, K. Takahashi, et al. (2011)
• How conflicted authors undermine the World Health Organization (WHO) campaign to stop all use of asbestos: spotlight on studies showing that chrysotile is carcinogenic and facilitates other non-cancer asbestos-related diseases — X. Baur, C.L. Soskolne, et al. (2015)

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