In the H1N1 pandemic of 2009, a new form of protectionism has come to the
fore which calls into question the commitment of governments to the rule of law in
international trade and considerably increases the risks firms face in the international
commercial environment. This paper finds that countries certainly have the option to bring a complaint forward to the WTO’s dispute settlement system, as the H1N1-related import bans were imposed without a scientific justification or a risk assessment.10 The WTO disputes process, however, takes too long and is too cumbersome to deal with this type of capricious imposition of import bans. The damage has been done to exporters, and it is likely that the bans will be lifted long before a formal dispute could wind its way through the WTO disputes system. In any case, the WTO disputes system was not designed to deal with this type of trade policy making. Governments largely live up to their
international commitments – flagrant flouting of the rules has been the exception. The rules, however, were agreed when scientific expertise was better respected and before the revolution in electronic media technology. Thus, no restraints on the exercise of political precaution were built into the rules. Trade policy makers and those with an interest in engaging in international commercial activities should be worried because, once it becomes apparent that barriers to imports can be imposed despite a scientific consensus to the contrary, the progress achieved in international trade rule making since the inception of the GATT may have been considerably eroded. The balance between the strong rules of trade desired by firms wishing to engage in international commerce and the need, at times,
for politicians to respond to requests for protection may be changing in favour of more protection.