This summary has been prepared by the Secretariat under its own responsibility. The summary is for general information only and is not intended to affect the rights and obligations of Members.
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(as cited in request for consultations)
|Request for Consultations received:
|Panel Report circulated:
||14 October 2014
Summary of the dispute to date back to top
The summary below was up-to-date at
Complaint by the United States
On 6 March 2012, the United States requested consultations with India with respect to the prohibitions imposed by India on the importation of various agricultural products from the United States purportedly because of concerns related to Avian Influenza.
The measures at issue are: the Indian Livestock Importation Act, 1898 (9 of 1898) ("Livestock Act"); a number of orders issued by India's Department of Animal Husbandry, Dairying, and Fisheries pursuant to the Livestock Act, most recently S.O. 1663(E); as well as any amendments, related measures, or implementing measures.
The United States claims that the measures appear to be inconsistent with:
- Articles 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 5.7, 6.1, 6.2, 7, and Annex B, paragraphs 2, 5 and 6 of the SPS Agreement; and
- Articles I and XI of the GATT 1994.
The United States also claims that the measures appear to nullify or impair the benefits accruing to the United States directly or indirectly under the cited agreements.
On 15 March 2012, Colombia requested to join the consultations.
On 11 May 2012, the United States requested the establishment of a panel. At its meeting on 24 May 2012, the DSB deferred the establishment of a panel.
Panel and Appellate Body proceedings
At its meeting on 25 June 2012, the DSB established a panel. China, Colombia, Ecuador, the European Union, Guatemala, Japan and Viet Nam reserved their third party rights. Subsequently, Argentina, Australia and Brazil reserved their third-party rights. On 7 February 2013, the United States requested the Director-General to determine the composition of the panel. On 18 February 2013, the Director-General composed the panel. On 5 August 2013, the Chair of the panel informed the DSB that the panel expects to issue its final report to the parties no sooner than June 2014, taking into account the scale and complexity of the dispute.
On 14 October 2014, the panel report was circulated to Members.
Summary of key findings
This dispute concerns India's import prohibition affecting certain agricultural products from countries reporting Notifiable Avian Influenza (NAI) to the World Organisation for Animal Health (OIE). This import prohibition is maintained through India's Avian Influenza (AI) measures, namely:
- the Livestock Importation Act 1898 (9 of 1898) (Livestock Act) published on 12 August 1898, as amended by the Livestock Importation (Amendment) Act 2001 (No. 28 of 2001) (Livestock Amendment Act), and published in the Gazette of India on 29 August 2001; and
- Statutory Order (S.O.) 1663(E) issued by India's Department of Animal Husbandry, Dairying, and Fisheries (DAHD) pursuant to the Livestock Act and published in the Gazette of India on 19 July 2011.
The United States complained that India's AI measures amounted to an import prohibition that was not based on the relevant international standard (the OIE Terrestrial Code) or on a scientific risk assessment. In particular, the United States requested the Panel to find that India's AI measures were inconsistent with a number of provisions of the Sanitary and Phytosanitary (SPS) Agreement: Article 2.2 (that SPS measures be applied only to the extent necessary to protect human, animal or plant life or health and the obligation to base these measures upon scientific principles), Article 2.3 (prohibition of arbitrary or unjustifiable discrimination), Article 3.1 (harmonization of SPS measures based on international standards), Articles 5.1 and 5.2 (risk assessment obligations), Article 5.5 (prohibition of arbitrary or unjustifiable distinctions in appropriate levels of protection (ALOPs)), Article 5.6 (obligation to ensure that SPS measures are not more trade-restrictive than required), Articles 6.1 and 6.2 (adaptation of measures to regional conditions), and Article 7, Annex B(2) and B(5)(a)-(d) (publication, notification and transparency requirements) of the SPS Agreement, as well as Article XI of the GATT 1994 (general elimination of quantitative restrictions).
India's main argument in response was that its AI measures “conform to” an international standard (OIE Terrestrial Code and, in particular, Chapter 10.4 of the Code), pursuant to Article 3.2 of the SPS Agreement, and that consequently, compliance with other provisions of the SPS Agreement (including those requiring that SPS measures have a scientific foundation) and the GATT 1994 must be presumed. Accordingly, India maintained that it was not under an obligation to provide to the Panel the scientific risk assessment conducted pursuant to Articles 5.1 and 5.2 for its AI measures, and that its AI measures were based on scientific principles and evidence in accordance with Article 2.2 of the SPS Agreement. India also submitted to the Panel two separate requests for a preliminary ruling concerning the consistency of the United States' panel request with Article 6.2 of the DSU (identify specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly).
As with the majority of SPS cases, the Panel decided to seek advice on certain aspects of the dispute from experts and international organizations. The Panel consulted with the OIE on the interpretation of the OIE Terrestrial Code and with three individual experts on AI surveillance regimes with particular respect to India's domestic measures and its disease situation.
With respect to India's first request for a preliminary ruling, the Panel issued a preliminary ruling on 22 May 2013 that was circulated to Members on 28 June 2013 and was later incorporated by reference into the Panel's Report. The Panel found, inter alia, that:
- The panel request was sufficiently precise in identifying the measure at issue as required by Article 6.2 of the DSU; and
- The products listed in S.O. 1663(E) and the United States' panel request were within the scope of the dispute.
The Panel responded to India's second request for a preliminary ruling in its Report. The Panel found, inter alia, that:
- Two of India's legal instruments that had not been explicitly mentioned in the United States' panel request were not measures at issue; and
- The United States was under no obligation to identify in its panel request India's rules applicable to domestic products in order to be able to rely on them in support of its arguments under Article 2.3 of the SPS Agreement.
In respect of the United States' claims pursuant to the SPS Agreement, the Panel found as a preliminary matter that India's AI measures are SPS measures within the meaning of Annex A(1) of the SPS Agreement and are subject to the disciplines of the Agreement.
The Panel further found that:
- India's AI measures are inconsistent with Article 3.1 of the SPS Agreement because they are not “based on” the relevant international standard (Chapter 10.4 of the OIE Terrestrial Code). Furthermore, India's AI measures do not “conform to” the relevant international standard (Chapter 10.4 of the OIE Terrestrial Code), within the meaning of Article 3.2 of the SPS Agreement;
- India's AI measures are inconsistent with Articles 5.1, 5.2 and 2.2 of the SPS Agreement because they are not based on a risk assessment;
- India's AI measures are inconsistent with Article 2.3 of the SPS Agreement because they arbitrarily and unjustifiably discriminate between Members where identical or similar conditions prevail and are applied in a manner which constitutes a disguised restriction on international trade;
- India's AI measures are inconsistent with Articles 5.6 and 2.2 of the SPS Agreement because they are significantly more trade-restrictive than required to achieve India's appropriate level of protection (ALOP) with respect to the products covered by Chapter 10.4 of the OIE Terrestrial Code, and therefore are also applied beyond the extent necessary to protect human and animal life or health;
- India's AI measures are inconsistent with Articles 6.2 and 6.1 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 these areas;
- India acted inconsistently with Article 7, Annex B(2) and Annex B(5)(a), (b) and (d) of the SPS Agreement because it failed to comply with a number of notification and publication requirements therein.
Having found that India's AI measures are inconsistent with Article 2.3 of the SPS Agreement, the Panel found it unnecessary to rule on the United States' alternative claim under Article 5.5 of the SPS Agreement. The Panel also found that the United States failed to make a prima facie case of violation of Annex B(5)(c) of the SPS Agreement (provide upon request to other Members copies of proposed regulations).
Finally, having found that India's AI measures are inconsistent with the provisions of the SPS Agreement as described above, the Panel found it unnecessary to rule on the United States' claim under Article XI of the GATT 1994 (general elimination of quantitative restrictions).
On 6 November 2014, India and the United States requested the DSB to adopt a draft decision extending the 60-day time period stipulated in Article 16.4 of the DSU, to 26 January 2015. At its meeting on 18 November 2014, the DSB agreed that, upon a request by India or the United States, the DSB, shall no later than 26 January 2015, adopt the panel report, unless the DSB decides by consensus not to do so or India or the United States notifies the DSB of its decision to appeal pursuant to Article 16.4 of the DSU.
On 26 January 2015, India notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretation in the panel report.
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