Document 1QvyMpBDpMX40QxqgMOVqROBj

Page 44 measure is the preservation of human life and health through the eldLmination, or reduction, of the well-known, and life- threatening, health risks posed by asbestos fibres. The value pursued is both vital and important in the highest, degree. The remaining question, then, is whether there is an alternative measure that would achieve the same end and that is less restrictive of trade than a prohibition. 173. Canada asserts that "controlled use" represents a "reasonably^ available" measure that would serve the same end. The issue is, thus, whether France could reasonably be expected to employ "controlled use" practices to achieve its chosen level of health protection - a halt in the spread of asbestos-related health risks. 174. In our view, France could not reasonably be expected to employ any alternative measure if that measure would involve a continuation of the very risk that the Decree seeks to "halt". Such an alternative measure would, in effect, prevent France from achieving its chosen level of health protection. On the basis of the scientific evidence before it, the Panel found that, in general, the efficacy of "controlled use" remains to be demonstrated. [FN168] Moreover, even in cases where "controlled use" practices are applied "with greater certainty", the scientific evidence suggests that the level of exposure can, in some circumstances, still be high enough for there to be a "significant residual risk of developing asbestos-related diseases." [FN169] The Panel found too that the efiricacy of "controlled use" is particularly doubtful for the building industry and for DIY enthusiasts, which are the most important users of cement-based proclucts containing chrysotile asbestos. [FN170] Given these factual findings by the Panel, we believe that "controlled use" would not allow France to achieve its chosen l_evel of health protection by halting the spread of asbestos-related health risks. " Controlled use" would, thus, not be an alternative measure that would achieve the end sought by France. *49 175. For these reasons, we uphold the Panel's finding, in para_graph 8.222 of the Panel Report, that the European Communities has demonstrated a j>rima facie case that there was no "reasonably available alternative" to the prohibit-ion inherent in the Decree. As a result, we also uphold the Panel's conclusion, in paragraph 8.223 of the Panel Report, that the Decree is "necessary to protect human ... life o'r health" within the meaning of Article XX(b) of the GATT 1994. C. Article 11 of the DSU 176. As part of its argument that the Panel erred in finding that the measure is justified under Article XX(b) of the GATT 1994, Canada also asserts that the Panel failed to make an objective assessment of the matter, as required by" Article 11 of the DSU. According to Canada, the requirement imposed on panels by A_rticle 11 to make an objective assessment of the matter implies "that scientific data must be assessed in accordance with the principle of the balance of probabil ities." [FN171] In particular, Canada asserts that, where the evidence is divergent or contradictory, the "principle of the preponderance of evidence" impl ies that a panel must take a position as to the respective weight of the evidence. [F3J172] Canada also contends that the Panel failed to assess the facts objectively because the Panel accepted "the opinions of experts on the controlled use of chr"ysotile, when those experts had no controlled-use expertise." [FN173] 177. These arguments by Canada on the "balance of probabilities" aaid the "preponderance of evidence" concern the credibility and weight that the Panel ascribed to different elements of evidence. [FN174] In essence, Cana-da argues that the Panel has not taken sufficient account of certain evidence and t3iat the Panel has placed too much weight on certain other evidence. Thus, Canada i s challenging the Panel's exercise of discretion in assessing and weighing the evidence. As we