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Table of contents back to top
I. Preamble
back to top
A. Text of the Preamble
B. Interpretation and Application of the Preamble
1. “international standards, guidelines and
recommendations”
2. The precautionary principle
(a) Status in international law
(b) Relationship with the SPS Agreement
II.
Article 1 back to top
A. Text of
Article 1
B. Interpretation and Application
of Article 1
1. Article 1.1
(a) Scope of the SPS Agreement
(i) General
(ii) Applicable to all SPS measures
in force
(b) Article 1.2: Reference to
Annex A
III.
Article 2 back to top
A. Text of
Article 2
B. Interpretation and Application
of Article 2
1. Article 2.2
(a) “maintained without sufficient scientific
evidence”
(i) General
(ii) “Sufficient”
(iii) “Scientific evidence”
(iv) A rational and objective
relationship
(v) Case-by-case methodology
(vi) Measure to be proportionate to
risk
(b) Burden of proof
(i) Presumption of “no relevant
studies or report”
(ii) Allocation of burden of proof
(iii) Establishing prima facie
case of inconsistency
(c) Standard of review
(i) Panel to take into account the
prudence commonly exercised by governments
(ii) Panel not to conduct own risk
assessment
(iii) Panel to assess relevant
allegations of fact
(iv) Panel to take into account
views of experts while evaluating scientific evidence
(v) Panel not obliged to give
precedence to importing Member’s approach to scientific evidence and
risk
(d) Relationship with other Articles
(i) Article 1.1
(ii) Article 4
(iii) Article 5
2. Article 2.3
(a) Elements of violation
(b) Scope of discrimination (c)
Relationship with other Articles
(i) Article
1.1
(ii) Article
5.5
3. Relationship with other Articles
(a) Articles 3
and 5
(b) Articles 5,
6, 7 and 8
IV.
Article 3 back to top
A. Text of
Article 3
B. Interpretation and Application
of Article 3
1. General
(a) Object and purpose
2. Article 3.1
(a) “base[d] … on”
(b) “international standards,
guidelines or recommendations where they exist”
(i) Panel’s mandate
(ii) Relevance of international standards for
individual diseases
(iii) Validity of OIE standards, guidelines and
recommendations
(c) Burden of proof
(i) Exemptions from establishing prima facie
inconsistency
(d) Relationship with other paragraphs of Article
3
(i) Paragraphs 1, 2 and 3
3. Article 3.2
(a) “… conform to …”
(i) Distinction from “based on”
(ii) Distinction as used in different parts of SPS
Agreement
(b) Burden of proof
(i) Presumption of consistency
(c) Relationship with other paragraphs of Article
3
(d) Relationship with other Articles
4. Article 3.3
(a) General
(b) “based on”
(c) Clarification of conditions
(d) “scientific justification”
(i) Rational relationship
(e) Relationship with other paragraphs of Article
3
(f) Relationship with other Articles
(i) Article 1.1
(ii) Article 5.1
5. Article 3.5
6. Relationship with other
Articles
V.
Article 4 back to top
A. Text of
Article 4
B. Interpretation and Application
of Article 4
(a) Decision on equivalence
(i) General
(ii) Concept of equivalence
(iii) Explanation of SPS measures taken by importing Member
(iv) Procedure for the recognition of equivalence
(v) Technical assistance
(vi) International cooperation
outside the WTO
(vii) Notification
(b) Specific programme for the further implementation of Article 4
VI.
Article 5 back to top
A. Text of
Article 5
B. Interpretation and Application
of Article 5
1. Article 5.1
(a) Standard of review
(b) “based on” an assessment of the risks
(i) Taking into account risk assessment techniques
(ii) Rational relationship between the SPS measure
and the risk assessment
(iii) Determination of relationship on “a
case-by-case” basis
(c) “risk assessment”
(i) General
(ii) Concept of risk assessment versus risk
management
(iii) Three aspects of risk assessment
(iv) Completing the analysis of a risk assessment
(v) Scope of the risk assessment
(vi) Studies not sufficiently specific to the case
at hand
(vii) Who should carry out the risk assessment?
(viii) Format of the risk assessment
(ix) Relevance of the timing of publication of
risk assessment
(x) Identifying the SPS measure
(xi) Evaluation of risk in a risk assessment (“Zero
risk”)
(xii) No threshold level of risk required
(d) “as appropriate to the circumstances”
(i) Flexibility
(ii) Does not waive duty of risk assessment
(e) Taking into account risk assessment techniques
(i) Mention of scientific studies in preambular
sections of the domestic directives
(f) Relationship with other paragraphs of Article
5
(i) Article 5.2
(ii) Article 5.5
(g) Relationship with other Articles
(i) Article 1.1
2. Article 5.2
(a) Risk factors to be taken into account
(i) Risk ascertainable by scientific and non
scientific processes
(ii) Risks arising from control of compliance with
certain requirements
(iii) Risks arising from abuse of controlled
substances not to be excluded on an a priori basis
(b) Relationship with other Articles
(i) Articles 2.2 and 5.1
3. Article 5.3
4. Article 5.4
(a) General
(b) Relationship with other
paragraphs of Article 5
5. Article 5.5 (a)
Standard of review (b) Cumulative elements of
Article 5.5 (c) “appropriate level of protection” (i)
Legal status of the first part of Article 5.5 (ii)
“distinctions in the levels of protection in different situations” (iii)
“Arbitrary or unjustifiable” distinctions in levels of protection (iv)
Distinctions which “result in discrimination or a disguised
restriction on international trade”
(d) “guidelines to further practical
implementation …”
(e) Relationship with other paragraphs of Article
5
(f) Relationship with other Articles
(i) Article 1.1
6. Article 5.6
(a) Cumulative elements
(b) “achieves the appropriate level of …
protection”
(i) Determining “appropriate level of …
protection” as a “prerogative” of the Member concerned
(ii) Implied or explicit level of protection
(c) “significantly less restrictive to trade”
(d) “taking into account technical and economic
feasibility”
(ii) “Reasonably available”
(iii) Burden of proof
(iv) Relationship with other Articles
7. Article 5.7
(a) General
(i) Four cumulative requirements
(b) “where relevant scientific evidence is
insufficient”
(i) Meaning
(c) “seek to obtain additional information”
(d) “review … within a reasonable period of
time”
(e) Burden of proof
(f) Treatment of the precautionary principle
(g) Relationship with other Articles
(i) Article 2.2
8. Article 5.8 (a)
General (b) Relationship with other Articles (i)
Article 2.2 (c) Article 3
VII.
Article 6 back to top
A. Text of
Article 6
B. Interpretation and Application
of Article 6
VIII.
Article 7 back to top
A. Text of
Article 7
B. Interpretation and Application
of Article 7
1. General
2. Notification requirements
(a) Recommended notification
procedures
(b) “significant effect on
trade of other Members”
3. Reference to Annex B
IX.
Article 8 back to top
A. Text of
Article 8
B. Interpretation and Application
of Article 8
X.
Article 9 back to top
A. Text of
Article 9
B. Interpretation and Application
of Article 9
XI.
Article 10 back to top
A. Text of
Article 10
B. Interpretation and Application
of Article 10
1. General
2. Article 10.2: “phased
introduction of new sanitary and phytosanitary measures”
(a) “longer time frame for compliance”
(b) Impossibility of phased introduction of SPS
measures
XII.
Article 11 back to top
A. Text of
Article 11
B. Interpretation and Application
of Article 11
1. General
2. Article 11.2
(a) Appointment of scientific experts advising the panel
(i) Individual experts
(ii) Expert appointment
procedures
(iii) Procedures for obtaining advice from
scientific experts
(iv) Role of scientific experts
(b) Standard of review
XIII.
Article 12 back to top
A. Text of
Article 12
B. Interpretation and Application
of Article 12
1. General
2. Article 12.3
(a) International Intergovernmental Organizations having observer status on a regular basis
(b) International Intergovernmental Organizations having observer status on an
ad hoc basis
(c) International Intergovernmental Organizations whose request is pending
3. Article 12.4
4. Article 12.7
XIV.
Article 13 back to top
A. Text of
Article 13
B. Interpretation and Application
of Article 13
1. Scope of the SPS Agreement
(a) Measures of a provincial
government
XV.
Relationship with other WTO Agreements back to top
A. WTO
Agreement
1. Article XVI:4
B. TBT Agreement
1. Article 1.5
C. GATT 1994
1. Order of analysis
2. Article III and Article XI
3. Article XX(b)
XVI.
Annex A back to top
A. Text of Annex A
B. Interpretation and Application of Annex A
1. Relationship between paragraph 1(a) and 1(b) of
Annex A
2. Paragraph 4: “risk assessment”
(a) General
(b) First part of paragraph 4: First definition of
risk assessment
(i) Types of risks
(ii) Elements of a “risk assessment”
(iii) Identifying risk on a disease-specific basis
(iv) “likelihood”
(v) “according to … which might be applied”
(vi) “Evaluation of likelihood of entry,
establishment or spread of a pest or disease …”
(c) Second part of paragraph 4: Second definition
of risk assessment
(i) General
(ii) Methodology of risk assessment
XVII.
Annex B back to top
A. Text of Annex B
B. Interpretation and Application of Annex B
1. Paragraphs 1 and 2: Publication requirements
2. Paragraph 2: “reasonable interval”
3. Paragraph 3: Enquiry points
(a) Paragraph 3(d)
4. Paragraph 5: Conditions for notification requirements
XVIII.
Annex C back to top
A. Text of Annex C
B. Interpretation and Application of Annex C
1. Paragraphs 1 (c)
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