WTO Asbestos Case 

by Laurie Kazan-Allen



The World Trade Organisation (WTO) became front page news last year when a coalition of political groups, NGO’s, trade unions, environmentalists and individuals gathered to oppose the secrecy and injustice of one of the world’s most powerful institutions. Few of the protesters were aware that as the tear gas was exploding in the streets of Seattle, the WTO was already deliberating on whether or not a national government should be allowed to protect its citizens from exposure to an acknowledged carcinogen. The case stems from efforts by the international asbestos lobby to reverse a 1997 French law prohibiting the import and use of chrysotile (white asbestos). Although France was the eighth European Union (EU) country to unilaterally ban chrysotile, having been preceded by Austria, Belgium, Denmark, Finland, Germany, Italy, the Netherlands and Sweden, the French ban became a rallying point for pro-industry forces.

On May 28, 1998 the Government of Canada lodged a request with the WTO for consultation with the European Communities "concerning certain measures taken by France for the prohibition of asbestos and products containing asbestos." On November 25, 1998, Canada confirmed its request that the WTO Dispute Settlement Body set up a panel to examine the complaint. Appointments made to the three man dispute tribunal convened on March 29, 1999 included Adrian Macey, William Ehlers and Ake Linden. Canada’s submission condemning the prohibitions as ill-founded and restrictive was supported by briefs from Brazil and Zimbabwe, other asbestos-producing countries. The EU’s defence of France and the US support of the EU position were received by the panel in May, 1999. Throughout the Summer, a persistent dispute over the commissioning of independent scientific advice dragged on; the Canadians objected to experts from any European countries. Eventually, agreement was reached on the appointment of one American and three Australian scientists. Despite strict procedural timetables limiting deliberations to nine months from the setting up of the panel, no decision has been announced. The ruling originally expected in December, 1999 was initially delayed until March, 2000 and further delayed until June, 2000. When proceedings began, the Government of Brazil was unsurprisingly a staunch Canadian ally; in 1997, the income produced by Brazil’s asbestos cement industry was US$540 million. Twenty-seven factories in ten states manufactured two million tons of finished products annually. Forty per cent of production was exported to Japan, Thailand, India and dozens of other countries. But that was then and this is now. Things have moved on and Brazil has reacted in a way which the Canadians could not have anticipated. On July 26, 1999, a written procedure adopted by the EU signalled the end to the use of chrysotile in all Member States. Three days later, Brazil’s Environment Minister announced the government’s intention to follow the EU lead. On April 13, 2000, he promised that legislation to phase out the use of chrysotile by 2005 would be in place by June, 2000. In addition, Brazil intends to withdraw its support of Canada at the WTO. Whether this will have any effect on the deliberations of Macey et al remains to be seen. At the very least, the panellists must be aware by now that the WTO will no longer be permitted to carry out in secrecy decisions which trample on the environment and injure public health. The lessons learned in Seattle, will not be unlearned.

April 28, 2000



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