sps disputes
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SPS DisputesSPS Disputes
Gretchen H. Stanton
Senior Counsellor
Agriculture and Commodities Division
WTO
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Solving SPS trade disputesSolving SPS trade disputes
• Bilateral Efforts
• SPS Committee – Specific Trade Concerns
• Good Offices by the Chair of the SPS
Committee
• Dispute Settlement of OIE and IPPC
• WTO Dispute Settlement System
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Dispute Settlement of OIE and IPPCDispute Settlement of OIE and IPPC
Pros:• Technical evaluation only• No involvement of lawyers• Less costly
Cons:• Enforcement difficulties• Not binding
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WTO Dispute Settlement System - Main StagesWTO Dispute Settlement System - Main Stages
I. Consultation phase
II. Panel review
III. Appellate Body review
IV. Adoption of report
V. Implementation
Good offices,conciliation and mediationpossible at any moment
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EXPERTS
The Panel ProcessThe Panel Process
Dispute Settlement Body (DSB)
PANEL
AppellateBody(AB)
APPEAL
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Consu
ltatio
nsPa
nel a
ppoi
ntm
ent
Fina
l rep
ort t
o pa
rties
Fina
l rep
ort t
o M
embe
rs
DSB
ado
pts
appe
als
repo
rt
Dispute timetableDispute timetable
1 Year 3 months
DSB
ado
pts
repo
rt
APPEAL
SPS may be longer...
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PanelsPanels
• Composition: 3 unbiased individuals
• Procedures:– Detailed working procedures– Consultation of scientific/ technical experts
• Report – Review facts and provide legal analysis– Conclusion regarding consistency of measure
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Appellate BodyAppellate Body
• Standing body of 7• 3 hear any appeal• Reviews issues of law and legal
interpretations by Panel • Upholds, modifies or reverses Panel
findings • AB decision cannot be appealed
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Dispute Settlement Body (DSB) Dispute Settlement Body (DSB)
• Establishes panels
• Adopts Panel /Appellate Body reports
• Determines “reasonable period of time”
• Reviews implementation
• Authorizes “retaliation” or “compensation”
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ComplainantsComplainants
23%
23%
7%6%4%
4%
3%
3%
3%
3%
2%
14%
5%
USECCanadaBrazilIndiaMéxicoArgentinaKoreaJapanThailandChileDevelopingDeveloped
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DefendantsDefendants
25%
22%
5%4%4%
4%
4%
4%
3%
3%
19%
3%
USECIndiaArgentinaCanadaJapanBrazilMéxicoKoreaChileDevelopingDeveloped
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Most cited agreementsMost cited agreements
37%
10%10%
8%
5%
5%
4%
4%4%
4%2%
7%
GATTSubsidies/CVDAntidumpingAgricultureSafeguardsLincensingTBTSPSTRIMsTRIPsServicesOther
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31 (+ 2) disputes have invoked 31 (+ 2) disputes have invoked the SPS Agreementthe SPS Agreement
Reports
Adopted (9 + 2)
27% Panel
Established (4)
12%
Consultations - Pending (13)
40%
Agreed Solution (7)
21%
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SPS DisputesSPS Disputes
• Food safety:– US/Canada vs. EC - Hormones (WT/DS26, 48)– US/Canada/Argentina vs. EC - Biotech (WT/DS291, 292, 293)– EC vs. US/ Canada - Retaliation on Hormones (WT/DS320, 321)
• Animal health:– Canada / US vs. Australia - Salmon (WT/DS18, 21)
• Plant Protection:– US vs Japan - Variety Testing (WT/DS76)– US vs. Japan – Fire blight (WT/DS245)– Philippines vs. Australia - Tropical Fruit (WT/DS270)– New Zealand vs. Australia - Apples (WT/DS367)
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SPS DisputesSPS Disputes
“Hormones”US & Canada vs. EC
“Salmon” Canada (and US) vs. Australia
“Varietals” US vs. Japan
“Fire blight” US vs. Japan
“GMOS”US, Canada & Argentina vs. EC
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Hormones – main conclusionsHormones – main conclusions
• Precautionary principle does not override SPS obligations (reflected in Art. 5.7)
• Measures not based on international standards – not justified under Art.3.3– Codex standards for 5 hormones– Art. 3.3 is conditional right– To be consistent with Art. 3.3, must comply with
Art.5 (risk assessment)
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Hormones – main conclusions Hormones – main conclusions
• Measure not based on risk assessment (Art.5.1)– Risk assessments provided did not support prohibition – Quantitative or qualitative risk assessment – Does not exclude factors that cannot be quantitatively assessed
• No violation of Art. 5.5 – must show:– Different levels of protection in different (but comparable)
situations – Different levels are arbitrary or unjustified– Differences result in discrimination or disguised restriction to trade
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Measures not based on risk assessment (Art. 5.1)
Risk assessments must:• Identify the diseases which a Member wants to
stop from entering• Evaluate the probability of entry, establishment
and dissemination in the case of diseases• As a function of the SPS measures which could
be applied.
Salmon – Main conclusionSalmon – Main conclusion
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Salmon – Main conclusionsSalmon – Main conclusions
No consistency in level of risk accepted (Art. 5.5)
Permitted importation of other products capable of transmitting some of the same diseases
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Salmon – ImplementationSalmon – Implementation
“Consumer ready” requirement – packages of less than 450 g.
• Not based on a risk assessment (Art. 5.1)• More trade restrictive than necessary (Art. 5.6)
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Varietals – Main conclusionsVarietals – Main conclusions
• Measure maintained without sufficient scientific evidence (Art. 2.2)
– Need rational relationship between the scientific evidence and the measure
• Measure not notified (Art. 7 and Annex B)– Administrative procedures which set conditions for
import must be notified
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Varietals – Main conclusions Varietals – Main conclusions
Measure not justified as provisional measure under Art. 5.7
• Japan did not seek more scientific evidence in order to do risk assessment
• Did not revise measure within “reasonable period of time”
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Apples – Main conclusions Apples – Main conclusions
• Measure maintained without sufficient scientific evidence (Art. 2.2)– No evidence of transmission of fire blight via mature
apples– Right to take into account risks from human errors or
illegal actions
• Not justified as a provisional measure (Art. 5.7)– Sufficient scientific evidence exists to do risk
assessment– Scientific uncertainty does not justify measure under
Art. 5.7
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Apples – Main conclusions Apples – Main conclusions
• Measure not based on risk assessment (Art. 5.1)– Risk assessment not specific to risk from imports
of mature apples – Did not take account possible risk mitigation
measures
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Apples – implementation Apples – implementation
Measure not justified by scientific evidence
(Art. 2.2)
Measure not based on appropriate risk assessment (Art. 5.1)
More trade restrictive than necessary (Art. 5.6)
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GMOsGMOs
Three claims by complainants:• General moratorium on GM products: GMOs
subject to prior approval but for 5 years, no decision on any application
• Product specific moratorium • EC member states’ safeguard measures -
some GMOs approved by EC but banned by certain EC member states
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GMOs – Main conclusionsGMOs – Main conclusions
• Protection of biodiversity – under SPS• Food allergens – under SPS• SPS measure: approval procedure – but
existence of prior approval not challenged
Moratorium – found to exist -- application of measure – violation of Annex C
• No violation:
Art. 2.2, 2.3, 5.1, 5.5, 5.6, 7
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GMOs – Main conclusionsGMOs – Main conclusions
Product Specific Measures• Panel examined 27 specific applications • Failure to complete individual approval
procedures without undue delay for 24 products• Violation: Article 8, Annex C (1) (a)• No violation: Articles 2.2, 2.3, 5.1, 5.5, 5.6, 7
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GMOs – Main conclusionsGMOs – Main conclusions
EC member State bans
• Under SPS Agreement• Not based on risk assessments (Art. 5.1)• Sufficient scientific evidence -
(Art. 5.7 inapplicable)
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GMOs – not consideredGMOs – not considered
• If biotech products pose risk to health or environment
• Right to have prior approval procedure• EC approval legislation• Conformity with Agreement on Technical
Barriers to Trade• If biotech products are “like” conventional
products
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DISPUTE
Sci. justification ( 5.7) X (5.7) X (5.7) X (5.7)
Harmoniz. X
Risk Assess. X X X X
Consistency X X
Least trade restrictive
X X
Transparency X X
Annex C approvals
X
Not yet examined: equivalence, regionalization
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Where to get more information? Where to get more information?
Dispute settlement gateway
http://www.wto.org/english/tratop_e/dispu_e.htm
Panel and Appellate Body report
http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm
SPS gateway
http://www.wto.org/english/tratop_e/sps/_e.htm
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