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Adopted 31 August 2015
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Complainant Argentina
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Respondent United States
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Third Parties Australia; Brazil; China; European Union; India; Korea, Republic of
Measures at Issue
Following an outbreak of foot-and-mouth disease (FMD) in Argentina in 2001, the United States maintained import prohibitions on certain animals and animal products from Argentina. In this dispute, Argentina challenged two sets of measures: (1) the United States' prohibition on importation of fresh (chilled or frozen) beef from a portion of northern Argentina and on the importation of animals, meat, and other animal products from the Patagonia region as a consequence of the failure to recognize Patagonia as an FMD-free region; and (2) the undue delay of the United States’ application of certain regulatory procedures under which the United States assessed Argentina's requests for re-authorization to import fresh (chilled or frozen) beef from a certain area of northern Argentina and for the recognition of the Patagonia region as FMD-free.Footnote 1
Main Adopted Findings of the Panel
SPS Article 8, Annex C(1)(a) and Annex C(1)(b)
The Panel found that the United States acted inconsistently with Article 8 and Annex C(1)(a) of the SPS Agreement because the United States did not undertake and complete evaluating Argentina's requests without undue delay.Footnote 2 Also, the United States violated Article 8 and Annex C(1)(b) of the SPS Agreement because the United States failed to inform Argentina, upon request, of the stage of its review processes of Argentina's requests or to explain the delays incurred by such processes.Footnote 3
SPS Article 3.1 (International Standards)
The Panel found that the challenged US import prohibitions are inconsistent with Article 3.1 of the SPS Agreement because they are not based on the relevant international standard, i.e. relevant provisions of the World Animal Health Organization Terrestrial Code.Footnote 4
SPS Articles 2.2, 5.1, and 5.7 (Risk Assessment)
The Panel found that the US measures did not fall within the scope of Article 5.7 of the SPS Agreement because the United States did not seek to obtain additional necessary scientific information with which to perform a more objective risk assessment or to review the measures within a reasonable period of time, and therefore that Article's qualified exemption to the obligations contained in Articles 2.2 and 5.1 was unavailable.Footnote 5 The Panel then found that the US measures are inconsistent with Articles 2.2 and 5.1 of the SPS Agreement because, although they were based on a risk assessment appropriate to the circumstances at the time of adoption, they were henceforth maintained without being based on a risk assessment appropriate to the circumstances.Footnote 6
SPS Article 5.6 (More Trade-Restrictive than Necessary)
The Panel found that the US import prohibitions are inconsistent with Article 5.6 of the SPS Agreement because alternative measures existed that: (1) would achieve the United States' appropriate level of protection with respect to FMD; (2) are significantly less trade restrictive; and (3) are technically and economically feasible.Footnote 7
SPS Article 2.3 (Non-Discrimination and Disguised Restriction on Trade)
The Panel found that the US 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 (i.e. northern Argentina vis-à-vis Uruguay, on the one hand, and Patagonia vis-à-vis Santa Catarina (Brazil) and Chile, on the other) and are applied in a manner that constitutes a disguised restriction on international trade.Footnote 8
SPS Article 6.1 (SPS Regional Characteristics)
The Panel found that the United States acted inconsistently with Article 6.1 of the SPS Agreement because its failure to recognize Patagonia as a FMD-free area constituted a failure to adapt its import prohibition on FMD-susceptible animals and animal products from Argentina to the SPS characteristics of the Patagonia region.Footnote 9
SPS Articles 1 and 3.3
The Panel found that, as a consequence of the United States' violations of the above-discussed provisions of the SPS Agreement, the US measures are also inconsistent with Articles 1 and 3.3 of the SPS Agreement.Footnote 10
Judicial Economy
The Panel exercised judicial economy with respect to Argentina's claims under Articles I:1 and XI:1 of the GATT 1994 as well as the United States' asserted defense under Article XX(b) of the GATT 1994 because ‘when the United States brings its measures into conformity with the SPS Agreement, any inconsistency with the GATT 1994 will also be addressed’.Footnote 11
