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United States: Certain Measures Affecting Imports of Poultry from China – Just Another SPS Case?

Published online by Cambridge University Press:  20 January 2017

Lukasz Gruszczynski
Lukasz Gruszczynski*
Affiliation:
Institute of Legal Studies, Polish Academy of Sciences
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Abstract

The SPS Agreement may apply to budgetary measures if they are motivated by SPS concerns. Equivalence-based measures are subject to regular disciplines of the SPS Agreement, including but not limited to Article 4. This means that WTO Members when engaging in the recognition process need to observe other SPS provisions such as requirement of scientific risk assessment (Articles 5.1–5.3) or quasi-consistency obligation of Article 5.5. An SPS measure which has been found inconsistent with certain provisions of the SPS Agreement (e.g. Articles 2 and 5), cannot be later justified under the general exception of Article XX(b) of the GATT 1994 (author's headnote).

Type
Reports
Information
European Journal of Risk Regulation , Volume 2 , Issue 3 , September 2011 , pp. 432 - 437
Copyright
Copyright © Cambridge University Press 2010

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References

1 Panel Report, United States – Certain Measures Affecting Imports of Poultry from China, WT/DS392/R, adopted on 29 September 2010.

2 For interesting general analysis of strategies used by China in the settlement of international trade disputes, see Marcia Don Harpaz, Sense and Sensibilities of China and WTO Dispute Settlement, The Hebrew University of Jerusalem, Research Paper No. 02-10.

3 Panel Report, US – Poultry, para. 2.6.

4 Ibidem, paras. 2.15–16.

5 The AAA of 2009 was later replaced by the AAA of 2010, which contained a similar obligation as its predecessor. China, however, decided to pursue its claim only with respect to the Section 727.

6 Panel Report, US – Poultry, para. 4.38.

7 As was mentioned above, Section 727 expired on 30 September 2009 and was replaced by Section 743, which was, however, not covered by China's complaint. Note that Section 743 also expired in the course of the panel proceeding.

8 Panel Report, US – Poultry, para. 7.55.

9 Ibidem, para. 7.109.

10 Ibidem, para. 7.115.

11 Article 4 of the SPS Agreement stipulates: “4.1. Members shall accept the sanitary or phytosanitary measures of other Members as equivalent, even if these measures differ from their own or from those used by other Members trading in the same product, if the exporting Member objectively demonstrates to the importing Member that its measures achieve the importing Member's appropriate level of sanitary or phytosanitary protection. For this purpose, reasonable access shall be given, upon request, to the importing Member for inspection, testing and other relevant procedures. 4.2. Members shall, upon request, enter into consultations with the aim of achieving bilateral and multilateral agreements on recognition of the equivalence of specified sanitary or phytosanitary measures.”

12 Panel Report, US – Poultry, para. 7.154

13 Ibidem, para. 7.202.

14 Ibidem, para. 7.203.

15 Ibidem, para. 7.223.

16 Article 8 provides: “Members shall observe the provisions of Annex C in the operation of control, inspection and approval procedures, including national systems for approving the use of additives or for establishing tolerances for contaminants in foods, beverages or feedstuffs, and otherwise ensure that their procedures are not inconsistent with the provisions of this Agreement.”

17 Panel Report, US – Poultry, para. 7.392.

18 Ibidem, paras. 7.333–7.337 (particularly noting: “in the present case an analysis under Article 5.6 would be inappropriate for this Panel to engage in as it would be entirely speculative and be exceeding our role under Article 11 of the DSU to make an objective assessment of the matter”).

19 Article XX(b) provides: “Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: […] (b) necessary to protect human, animal or plant life or health.”

20 Panel Report, US – Poultry, para. 7.482.

21 Ibidem, para. 7.119. Note that this was not clear to China either. Initially, the SPS violation was argued about only as an alternative to the main claim under the GATT 1994 (cf., para. 7.3).

22 Cf. Panel Report, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R, adopted 21 November 2006, para. 7.149. The Biotech panel read Annex A(1) second part as providing two separate requirements: one relating to a form of a measure (“laws, decrees, regulations”) and the other to a nature of a measure (“requirements and procedures”).

23 Committee on Sanitary and Phytosanitary Measures, Decision on the Implementation of Article 4 of the Agreement on the Application of Sanitary and Phytosanitary Measures, document G/SPS/19/ rev. 2, dated 23 July 2004.

24 Ibidem, para. 7.138.

25 Panel Report, US – Poultry, para. 7.136

26 Vienna Convention on the Law of Treaties, adopted on 22 May 1969, 1155 U.N.T.S. 331, T.S. No. 58 (1980), 8 I.L.M. 679 (1969).

27 Panel Report, US – Poultry, para. 7.471.

28 Ibidem, para. 7.481

29 Ibidem, para. 7.475.

30 Cf., Panel Report, EC – Biotech Products, paras. 7.370–7.372.