Standard of review and 'scientific truths' in the WTO dispute settlement system and investment arbitration

Countries may adopt conflicting policies, such as food safety regulations, based on conflicting views on the 'scientific truth', and trade or investment disputes may arise between countries claiming different 'scientific truths'. If such a dispute is referred to the World Trade Organization (WTO) or investment arbitration, a panel or arbitral tribunal faces the question of what the 'scientific truth' really is. This article reveals that a WTO panel is required to apply a deferential standard of review in the sense that the panel should refrain from making its own conclusion on the 'scientific truth' and limit itself to examining the reasonableness of the 'truth' claimed by the parties. In investment arbitration, while the deferential standard of review is hardly discussed explicitly, some arbitral tribunals have recognized the need to pay deference to the host state's decisions regarding the 'scientific truth'. This article also argues why the deferential standard of review should be applied.