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India – Agricultural Products, DS430

Published online by Cambridge University Press:  28 October 2015

Geoffrey Carlson
Geoffrey Carlson*
Affiliation:
Works in the WTO Secretariat but writes in a wholly personal capacity
*
Email:gcarls@gmail.com
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Extract

This dispute concerned India's import prohibition affecting certain agricultural products from countries reporting Notifiable Avian Influenza to the World Organisation for Animal Health (OIE). India maintains this import prohibition through certain legal instruments concerning Avian Influenza (AI) – the AI Measures.

Information

Type
Case Summaries
Information
World Trade Review , Volume 14 , Issue 4 , October 2015 , pp. 723 - 725
Copyright
Copyright © Geoffrey Carlson 2015 

  • Adopted   19 June 2015

  • Complainant   United States

  • Respondent   India

  • Third Parties   Argentina; Australia; Brazil; China; Colombia; Ecuador; European Union; Guatemala; Japan; Viet Nam

Measures at Issue

This dispute concerned India's import prohibition affecting certain agricultural products from countries reporting Notifiable Avian Influenza to the World Organisation for Animal Health (OIE). India maintains this import prohibition through certain legal instruments concerning Avian Influenza (AI) – the AI Measures.

Main Adopted Findings of the Panel and Appellate Body

SPS Articles 3.1 and 3.2 (International Standards)

The Panel found that the AI Measures neither are ‘based on’ nor do they ‘conform to’ the relevant international standard (i.e. Chapter 10.4 of the OIE Terrestrial Code) within the meaning of Articles 3.1 and 3.2 of the SPS Agreement, respectively. Thus, the AI Measures were not entitled to a presumption of consistency with the SPS Agreement.Footnote 1 On appeal, India argued that the Panel's analysis violated Article 11 of the DSU in assessing the meaning of the OIE Code, and that the Panel acted inconsistently with Article 11.2 of the SPS Agreement or Article 13.2 of the DSU in consulting the OIE regarding the OIE Code's meaning. The Appellate Body rejected all such claims, and as a result the Panel's finding with respect to Articles 3.1 and 3.2 was upheld.Footnote 2

SPS Articles 2.2, 5.1 and 5.2 (Risk Assessment)

The Panel found that the AI Measures are inconsistent with Articles 5.1, 5.2, and 2.2 of the SPS Agreement because they were not based on a proper risk assessment.Footnote 3 On appeal, after rejecting India's arguments in this context under Article 11 of the DSU,Footnote 4 the Appellate Body upheld the Panel's finding that the AI Measures violate Articles 5.1 and 5.2.Footnote 5 The Appellate Body further agreed with the Panel that the AI Measures' inconsistency with Articles 5.1 and 5.2 raises a presumption of inconsistency with Article 2.2.Footnote 6 The Appellate Body, however, concluded that the Panel erred in failing to consider whether certain evidence and arguments presented by India rebutted this presumption with respect to certain products. Thus, the Appellate Body reversed the Panel's finding that the AI Measures violated Article 2.2 with respect to those particular products,Footnote 7 and further found that it could not complete the legal analysis with respect to this issue.Footnote 8

SPS Article 2.3 (Discrimination and Disguised Restrictions)

The Panel found that the AI Measures are inconsistent with Article 2.3 of the SPS Agreement because they arbitrarily and unjustifiably discriminate between WTO Members where identical or similar conditions prevail and are applied in a manner that constitutes a disguised restriction on international trade.Footnote 9 On appeal, India argued that the Panel acted inconsistently with Article 11 of the DSU in multiple respects with respect to this issue when consulting with certain experts. The Appellate Body rejected these arguments, and as a result the Panel's finding that the AI Measures violate Article 2.3 was upheld.Footnote 10

SPS Articles 2.2 and 5.6 (Alternative Measures and Trade Restrictiveness)

The Panel found that the AI Measures are inconsistent with Article 5.6 of the SPS Agreement because they are significantly more trade-restrictive than required to achieve India's appropriate level of protection with respect to the products covered by Chapter 10.4 of the OIE Terrestrial Code. Consequently, the AI Measures are also applied beyond the extent necessary to protect human and animal life or health in violation of Article 2.2 of the SPS Agreement.Footnote 11 On appeal, India argued that the Panel's conclusions with respect to Articles 5.6 and 2.2 were improper because the Panel: (1) acted inconsistently with Article 11 of the DSU in this context; (2) erred in finding that the United States identified alternative measures that would achieve India's appropriate level of protection; and (3) failed to precisely identify the alternative measures. The Appellate Body rejected all such claims, upheld the Panel's finding that the AI Measures violate Article 5.6,Footnote 12 and therefore found it unnecessary to address India's request that the Appellate Body reverse the Panel's consequential finding that the AI Measures also violate Article 2.2.Footnote 13

SPS Articles 6.1 and 6.2 (Regional Conditions)

The Panel found that the AI Measures are inconsistent with Articles 6.1 and 6.2 of the SPS Agreement because they do not recognize the concept of disease-free areas and areas of low disease prevalence, and because they are not adapted to the SPS characteristics of such areas.Footnote 14 On appeal, India argued that the Panel: (1) acted inconsistently with Article 11 of the DSU in this context; (2) interpreted the relationship between Articles 6.1 and 6.3 incorrectly; and (3) erred in applying Article 6.2 to the AI Measures. The Appellate Body rejected all such claims, and as a result the Panel's finding that the AI Measures are inconsistent with Articles 6.1 and 6.2 was upheld.Footnote 15

Notification and Publication Requirements

The Panel found that India acted inconsistently with Article 7, Annex B(2) and Annex B(5)(a), (b), and (d) of the SPS Agreement because India failed to comply with certain notification and publication requirements contained therein.Footnote 16

References

1 Panel Report, India – Agricultural Products, paras. 7.272‒7.275.

2 Appellate Body Report, India – Agricultural Products, paras. 5.89 and 5.110‒5.111.

3 Panel Report, India – Agricultural Products, paras. 7.318–7.319 and 7.332–7.334.

4 Appellate Body Report, India – Agricultural Products, paras. 5.43–5.46.

5 Ibid., para. 5.54.

6 Ibid., paras. 5.33–5.34.

7 Ibid., paras. 5.35–5.40.

8 Ibid., para. 5.51.

9 Panel Report, India – Agricultural Products, para. 7.479.

10 Appellate Body Report, India – Agricultural Products, paras. 5.245–5.287.

11 Panel Report, India – Agricultural Products, paras. 7.597 and 7.615–7.617.

12 Appellate Body Report, India – Agricultural Products, paras. 5.227, 5.233, and 5.242–5.244.

13 Ibid., para. 5.244.

14 Panel Report, India – Agricultural Products, paras. 7.707–7.709 and 7.713–7.714.

15 Appellate Body Report, India – Agricultural Products, paras. 5.160, 5.176, and 5.185–5.187.

16 Panel Report, India – Agricultural Products, paras. 7.759, 7.784, 7.790, and 7.796–7.797.