India loses poultry case against US in WTO

The appellate body of the World trade Organisation (WTO) has upheld a panel ruling last October that India's import restrictions on US poultry were not based on international scientific standards on animal health and were discriminatory.

The WTO panel today ruled that India broke international trade rules by blocking imports of US poultry and egg on the basis of unsubstantiated bird flu fears.

The WTO appellate body largely upheld a panel ruling last October that India's import restrictions were not based on international scientific standards on animal health and were discriminatory.

This dispute concerns India's import prohibition of 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 (Amendment) Act 2001, statutory order issued by India's Department of Animal Husbandry, Dairying, and Fisheries (DAHD) pursuant to the Livestock Act.

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 (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).

India's main argument in response was that its AI measures ''conform to'' an international standard, 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 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).

The panel decided to seek advice on certain aspects of the dispute from experts and international organisations. 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 its request was sufficiently precise in identifying the measure at issue and that the products listed and the United States' panel request were within the scope of the dispute.

On 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 that 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 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. Furthermore, India's AI measures do not ''conform to'' the relevant international standard, within the meaning of Article 3.2 of the SPS Agreement.

''I welcome this win, which will help us eliminate unjustified trade barriers so US farmers can sell high quality US agricultural products to customers around the world,'' US trade representative Michael Froman said in a statement.

US secretary of agriculture Tom Vilsack said: ''This is a major win for US agriculture and, in particular, the US poultry industry.''