SPS Workshop Taipei, 5-6/12/2001 WTO Dispute Settlement and the SPS Agreement

SPS Workshop Taipei, 5-6/12/2001 Dispute settlement WTO unified dispute settlement procedures –GATT XXII: Consultation –GATT XXIII: Nullification or impairment –Memorandum of understanding Possibility technical experts (group) Right to resort to dispute settlement mechanisms of other IO Article 11

SPS Workshop Taipei, 5-6/12/2001 SPS disputes DS # 3 / / / 48 Korean product inspection (US)Korean product inspection (US) Korean shelf-life requirements (US)Korean shelf-life requirements (US) Australian ban on salmon imports (Canada and US)Australian ban on salmon imports (Canada and US) Korean bottled water (Canada)Korean bottled water (Canada) EC ban on use of hormones in beef (US and Canada)EC ban on use of hormones in beef (US and Canada)

SPS Workshop Taipei, 5-6/12/2001 SPS disputes DS # Japan varietal testing requirement (US)Japan varietal testing requirement (US) US poultry requirements (EC)US poultry requirements (EC) Slovakia BSE-restrictions (Switz.)Slovakia BSE-restrictions (Switz.) EC measure on pine wood nematodes (Canada)EC measure on pine wood nematodes (Canada) US state restrictions on Canadian trucks (Canada)US state restrictions on Canadian trucks (Canada)

SPS Workshop Taipei, 5-6/12/2001 –Legal basis: Article 11.2 of the SPS Agreement –“... a panel should seek advice from experts chosen in consultation with the parties...” [emphasis added] –First submissions: Panel determines nature of advice –Suggested names from “three sisters” and Parties –Parties may object, but Panel decides –Panel sends questions to experts (Parties may comment) –Meeting with experts Expert Advice

SPS Workshop Taipei, 5-6/12/2001 Expert advice sought in all three cases –Hormones: hormones and veterinary drugs, cancer specialist and Codex (6 experts) –Salmon: fish diseases, risk assessment, OIE (4 experts) –Varietals: entomologist, fumigation experts (3 experts) Expert Advice

SPS Workshop Taipei, 5-6/12/2001 The Panel process... May 1996: Established August 1997: Panel Report January 1998: Appellate Body Report 13 February 1998: Reports adopted by DSB 29 May 1998: Arbitration on “reasonable period of time”`: 15 months: 13 Feb 1998  13 May July 1999: Arbitration on level of nullification or impairment suffered US$116 million per year CAN$11.3 million per yearHormones

SPS Workshop Taipei, 5-6/12/2001 Hormones - legal issues in dispute International standards (3.1 / 3.3): not based on Codex standards (5 of 6); not justified under 3.3 Risk assessment: no risk assessment; available scientific evidence showed no risk Consistency: compared with endogenously occurring natural hormones; veterinary use; other veterinary drugs (Carbadox) Conclusion: Panel finding against the EC AB upheld Panel’s finding on risk assessment

SPS Workshop Taipei, 5-6/12/2001 Current situation: –DSB Meeting of 26 July 1999 authorizes retaliation –US and Canada have imposed retaliatory surcharges of 100% tariffs on imports from EU. –EU working on more scientific studies: Found Oestradiol carcinogenic Commission proposed permanent ban & others provisional ban maintained –Ongoing consultations US/EU? Hormones

SPS Workshop Taipei, 5-6/12/2001 –April 1997: Established –June 1998: Panel report out –October 1998: Appellate Body report out –6 November 1998: DSB adopts both reports –23 February 1999: Arbitration on “reasonable period of time” circulated (Requested by Canada on 4 January 1999) 8 months from 6 Nov 1998  6 July1999. –3 August 1999: Canada requests original Panel to rule on consistency of implementation (Article 21.5 of DSU) Salmon - The Panel process

SPS Workshop Taipei, 5-6/12/2001 Risk assessment (5.1, 5.2): “other salmon”; heat- treatment not based on risk assessment Consistency (5.5): herring for bait / live ornamental fish Least trade-restrictive measure (5.6): less trade restrictive measure did exist Conclusion Panel finding against Australia AB finding against Australia on 5.1 and 5.5 “Salmon” - legal issues in dispute

SPS Workshop Taipei, 5-6/12/ /2/2000: Panel report on implementation circulated to Members. Arbitration on level of suspension - DSU 22.6 On 15/7/1999, Canada announced intention to impose 100% duties on list of products as retaliation On 3 August 1999, Australia responded requesting arbitration on the level of suspension On 18 May 2000, Australia & Canada announced mutually agreed solution Salmon - current situation

SPS Workshop Taipei, 5-6/12/2001 Varietals US efforts to export fresh fruits (cherries, apples, nectarines, walnuts, etc.) to Japan since 1970s Japan requires re-testing of each variety to ensure effectiveness of fumigation against coddling moth Panel established November 1997, reports October 1998 Violations found and sustained by AB Japan and US agreed on period for implementation (end 1999) Japan has announced implementation measures

SPS Workshop Taipei, 5-6/12/2001 November 1997: Established October 1998: Panel report out February 1999: Appellate Body report out 19 March 1999: DSB adopted both reports Agreement between parties on “reasonable period of time”: 9 months and 12 days:  31 Dec Varietals -- the Panel process

SPS Workshop Taipei, 5-6/12/2001 Not in dispute: risks from codling moth to Japan; basis for import prohibition itself; efficacy of treatment Sufficient scientific evidence (Art. 2): risk assessment (Art. 5.1 and 5.2) not examined; further testing of additional varieties; expert opinions Provisional measure (Art. 5.7): need to seek additional data; reasonable period of time Less trade restrictive measure (Art. 5.6): “sorption test” / “product-by-product” Transparency: not published / notified “Varietals” - legal issues in dispute

SPS Workshop Taipei, 5-6/12/2001 Varietals - current situation 31 Dec 1999: Japan abolishes varietal testing requirement, new testing requirements to be developed in consultation with US. Since than : Japan reports that mutually satisfactory solution is close