Examples abound of highly politicized instances of risk controversies, such as the climate debate, counterterrorism, and the commercialization of genetically modified organisms (GMOs). Numerous reasons, such as divergent perspectives, ways of communication, and interests, explain why involved actors often find themselves locked in a controversy.

For instance, in the GMO debates environmental politicians, NGOs, industrial parties, consumers, and GMO scientists have exerted very distinct ways of communication, resulting in a highly polarized and contested gene-risk landscape. As a consequence, some industrial players have left or terminated R&D activities in the EU, while other scientists escape the gaze of EU-regulations and started experimenting in places with a different approach to GMO regulation and control.

This section highlights the interface between international trade and investment law and municipal and international risk regulation. It is meant to cover cases and other legal developments in WTO law (SPS, TBT and TRIPS Agreements and the general exceptions in both GATT 1994 and GATS), bilateral investment treaty arbitration and other free trade agreements such as NAFTA. Pertinent developments in international standardization bodies recognized by the SPS and TBT Agreement are also covered.

In the wake of the global financial crisis, the trajectory of legal reforms is likely to turn towards more transparency regulation. This article argues that transparency regulation will take on a new role of surveillance as intelligence and data mining expand in the wholesale financial sector, supporting the creation of designated systemic risk oversight regulators.

The role of market discipline, which has been acknowledged to be weak leading up to the financial crisis, is likely to be eclipsed by a more technocratic governance in the financial sector. In this article, however, concerns are raised about the expansion of technocratic surveillance and whether financial sector participants would internalise the discipline of regulatory control. Certain endemic features of the financial sector will pose challenges for financial regulation even in the surveillance age.

The Book Reviews section will introduce you to the latest and most interesting books on a wide range of topics pertaining to the law and policy of risk regulation. EJRR Book Reviews will strive to be present in every edition and will accept reviews from all disciplines. For further information on the submission of reviews please contact the Book Reviews Editor at david.hornsby@wits.ac.za.

Beneath the calm and measured prose of Dr. Caroline Foster lies a tsunami for the field of risk assessment in international adjudication.

Dr. Foster, a senior lecturer at the Faculty of Law, University of Auckland, looks boldly in the eye the difficult question of the influence of scientific evidence on international courts and tribunals. In an era where international law is endeavouring to come to terms with environmental protection, sustainable development, and public health and safety regulations and policies, international tribunals are called upon to adjudicate matters of extreme scientific complexity and, in this context, to understand the scientific approach to risk. One can no longer escape the realisation that judges and arbitrators on international tribunals rely on scientific expertise, and that this has a significant impact on their decision-making. This is one of the central tenets of Dr. Foster's book, and the basis for her analysis.

In February 2016, the Feasibility Report on options for an EU ecolabel scheme for fishery and aquaculture products was published. The study did not make a strong case for the introduction of a seafood EU Ecolabel and it is unlikely that the European Commission will pursue this policy option. We argue that sustainability information on seafood should not be framed through the EU Ecolabel debate. The more pressing issue concerns self-declared sustainability claims on seafood products. As a possible solution, we propose to address these by re-invigorating the labelling rules on seafood information in the Regulation on the Common Organisation of the Markets in Fishery and Aquaculture Products.

Case C-528/13, Léger v. Ministre des Affaires sociales, de la Santé et des Droits des femmes; Établissement français du sang [2015] ECLI: EU:C:2015:288 (Fourth Chamber).

In the case of Léger commented on, the Court of Justice of the European Union dealt with a blanket ban on blood donation for men who had sexual relations with other men (MSM) in France. The Court found that such restrictions can be justified in light of specific epidemiological context and scientific knowledge available in Member States. The judgment, therefore, sheds lights on the boundaries of public health justifications, discrimination of gay and bisexual individuals, as well as the rising scope of EU sexual risk regulation. The present annotation argues that the Court has undermined the principle of non-discrimination and shows how the matter of blood donations should have been treated instead as a prerequisite of active sexual citizenship.

The sharing economy phenomenon is expected to expand and grow steadily in the coming years. Yet, this sector lacks solid regulation, which raises concerns about its potential risks. However, users continue to engage in sharing economy practices, as opportunities appear to outweigh the perceived risks. This article argues that it is important to look beyond regulatory frameworks, and unravel the social embeddedness of sharing practices in order to provide complementary approaches to risk analysis. In particular, the focus of this article will be placed on the opportunities for building and deploying social capital in the sharing economy and its fundamental role in the development of new sharing economy practices.

The EC-Seal Products case raises a number of interesting issues for scholars researching in the broad area of risk regulation. This symposium addresses a selection of them through innovative, analytical contributions whose goals are to test central assumptions and question the logic of the findings and to bring fresh solutions to problems faced by the Appellate Body and the panel. In keeping with this analytical focus, this introduction to the symposium will not just present a summary of the key legal findings. Instead, it attempts to draw some further conclusions from the different contributions, to place the contributions in their broader legal context and to make connections between aspects (not) decided in Seals and scholarship on risk regulation, more generally.

In April 2015, the European Commission (hereinafter, Commission) adopted a package on the authorisation of genetically modified organisms (hereinafter, GMOs) as food and feed in the EU. The package, which derives from the Political Guidelines presented to the European Parliament in July 2014 on the basis of which the current Commission was elected, consists of a Communication (titled Reviewing the decision-making process on genetically modified organisms) and a legislative draft (i.e., Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1829/2003 as regards the possibility for the Member States to restrict or prohibit the use of genetically modified food and feed on their territory, and hereinafter, the Proposal).

Article 14 of EU General Food Law Regulation1 178/2002 provides that a food product may not be placed on the market if it is unsafe. Article 19 of the Regulation imposes an obligation on food business operators to withdraw a product if they have reason to believe that it poses a health risk. Though it seems obvious that unsafe foods should be withdrawn from the market, the matter of when exactly a food product can be considered unsafe often leads to discussion. How much room is there for doubt as to the safety of a product and how many obligations do the provisions impose on food business operators? While it is ultimately always up to the courts to decide, on a day-to-day basis food business operators need to navigate within the interpretations of these provisions made by national authorities.

This report will discuss the topic in the light of two recent Danish cases that have highlighted the problems that can arise in this context – especially concerning the legal rights of the food business operators involved.

Judgment of the Court (Third Chamber) delivered on 10 September 2015 in Case C-106/14, Fédération des entreprises du commerce et de la distribution (FCD) and Fédération des magasins de bricolage et de l’aménagement de la maison (FMB) v Ministre de l’écologie, du développement durable et de lʼénergie.

Cases C-236/08 to C-238/08 Google France SARL, Google Inc. v. Louis Vuitton Malletier SA (C.236/08) and Google France SARL v. Viaticum, Luteciel SARL (C-237/08) and Google France SARL v. Centre national de recherche en relations humaines (CNRRH) SARL, Pierre-Alexis Thonet, Bruno Raboin, Tiger SARL (C-238/08)

1. The proprietor of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with that trade mark which that advertiser has, without the consent of the proprietor, selected in connection with an internet referencing service, goods or services identical with those for which that mark is registered, in the case where that advertisement does not enable an average internet user, or enables that user only with difficulty, to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party.

In Nudge (2008) Richard Thaler and Cass Sunstein suggested that public policy–makers arrange decision–making contexts in ways to promote behaviour change in the interest of individual citizens as well as that of society. However, in the public sphere and Academia alike widespread discussions have appeared concerning the public acceptability of nudgebased behavioural policy. Thaler and Sunstein's own position is that the anti–nudge position is a literal non–starter, because citizens are always influenced by the decision making context anyway, and nudging is liberty preserving and acceptable if guided by Libertarian Paternalism and Rawls’ publicity principle. A persistent and central tenet in the criticism disputing the acceptability of the approach is that nudging works by manipulating citizens’ choices. In this paper, we argue that both lines of argumentation are seriously flawed. We show how the anti–nudge position is not a literal non–starter due to the responsibilities that accrue on policy–makers by the intentional intervention in citizens’ life, how nudging is not essentially liberty preserving and why the approach is not necessarily acceptable even if satisfying Rawls’ publicity principle. We then use the psychological dual process theory underlying the approach as well as an epistemic transparency criterion identified by Thaler and Sunstein themselves to show that nudging is not necessarily about “manipulation”, nor necessarily about influencing “choice”. The result is a framework identifying four types of nudges that may be used to provide a central component for more nuanced normative considerations as well as a basis for policy recommendations.

In this judgment, the General Court annulled two Commission decisions authorising the placing on the market of the GM potato Amflora. The Court did not base its decision on the arguments put forward by the applicant Hungary, which contested the underlying scientific assessment of the European Food Safety Authority, but found of its own motion a breach of an essential procedural requirement in the applicable comitology procedure.Whilst the Court’s proactive role in scrutinising the Commission's behaviour in the authorisation procedure of GMOs is to be welcomed, the Court arguably missed an opportunity to exercise its role as a deliberative forum for normative controversies underlying the scientific risk assessment.

Directive 2001/18 on the deliberate release into the environment of genetically modified organisms, OJ 2001 L 106;Regulation 1829/2003 on geneticallymodified food and feed,OJ 2003 L 268; Article 5 of Commission Decision 1999/468 laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ 1999 L 184.

The EU has taken influence on the administrative laws of the Member States by introducing elements of public information, participation of stakeholders and private enforcement, and environmental law was the frontrunner of this development. The same tendency can be observed at the international level, culminating in the adoption of the Århus Convention in 1998. This has created tensions with traditional administrative law systems that have strongly relied on public authorities to produce the correct outcome whilst severely restricting private participation and private access to justice. The Trianel case, dealing with the protection of habitats against a coal power plant, demonstrates the need for fundamental adjustment of German administrative law, and it may lead to subsequent changes of the modalities of administrative procedural law in order to really allow the private enforcement of the public interest (authors’ headnote).

The dialectic between the technically (or scientifically) possible and the legally possible, which is implied in decision-making in conditions of uncertainty, raises crucial issues from a constitutional perspective. In particular, the emergence of a new factor of legitimacy – which could be envisaged as a form of “scientific legitimacy” – can be detected and needs to be integrated within the constitutional discourse.

Through an overview of the case law of the Italian Constitutional court, the paper aims at highlighting the possible approaches to the need of a deeper integration of technical and scientific knowledge within the public decision-making processes, in an attempt to strike a balance capable of avoiding the two extremes of scientifically weak decisions on one hand, and of “technical deference” to experts on the other.