THE DISPUTE SETTLEMENT UNDERSTANDING

Transcription

1 THE DISPUTE SETTLEMENT UNDERSTANDING DR. LAHSEN ABABOUCH DR. WILLIAM EMERSON FAO 8-10 November2011 Istanbul, Turkey

2 OVERVIEW OF PRESENTATION Dispute Settlement Understanding Dispute settlements relating to fish and fish products 2

3 Dispute Settlement Understanding The DSU enables the WTO to make resolutions that are formal and binding on members to resolve disputes through the Dispute Settlement Body (DSB) 3

4 Dispute Settlement Understanding DSU is unusual in international agreements Most rely on parties to find diplomatic solutions a central element in providing security and predictability to the multilateral trading system (DSU, article 3.2) 4

5 Dispute Settlement Understanding DSU enables resolutions to be enforced by: Members being required to bring measures concerned in conformity with the WTO rules, or Financial compensation 5

6 Dispute Settlement Understanding Stage 1: Consultation and mediation Stage 2: Request for a Panel Stage 3: The Panel at work Stage 4: Adoption of decision or appeal Stage 5: Implementation 6

7 Dispute Settlements relating to fish European Communities Trade description of scallops European Communities Trade description of sardines Australia Measures affecting the importation of salmon USA Import prohibition of certain shrimp and shrimp products 7

8 EC Trade description of scallops The issue: The disputing parties alleged that a French order requiring that, i.a. Canadian, Chilean and Peruvian scallops be described as petoncle was inconsistent with TBT and GATT provisions. 8

9 EC Trade description of scallops Consultations failed to settle dispute Disputing parties requested DSB to establish a Panel 9

10 EC Trade description of scallops After the Panel issued an interim report the parties requested the Panel to suspend the proceedings as they were working on a mutually agreed solution 10

11 EC Trade description of scallops The outcome was that the Parties negotiated a mutually acceptable solution Solution was to use Saint Jacques followed by the scientific name and the country of origin 11

12 European Communities Trade description of sardines Peru requested consultations with the EC regarding the prohibition of the use of the term sardines combined with the country of origin (Peruvian sardines) 12

13 European Communities Trade description of sardines Peru requested the DSB to establish a Panel when the consultations proved to be unsuccessful Peru claimed that the prohibition was inconsistent with Article 2.4 of the TBT Agreement because the EC did not use the naming standard set out in Codex Stan 94 as a basis for its regulation. 13

14 European Communities Trade description of sardines The Codex Alimentarius Commission Standard for Canned Sardines and Sardine-type Products (Codex Stan Rev1 1995) Article sets out the product definition: Canned sardines or sardine-type products are prepared from fresh or frozen fish of the following species: Sardina pilchardus Sardinops melanostictus, S. neopilchardus, S. ocellatus, S. sagax S. caeruleus Sardinella aurita, S. brasiliensis, S. maderensis, S. longiceps, S. gibbosa Clupea harengus Sprattus sprattus Hyperlophus vittatus Nematalosa vlaminghi Etrumeus teres Ethmidium maculatum Engraulis anchoita, E. mordax, E. ringens Opisthonema oglinum 14

15 European Communities Trade description of sardines The Panel agreed that the EC regulation was a technical regulation as it lays down product characteristics and makes compliance with its provisions mandatory The Panel also found that Codex Stan 94 was an international standard for the purpose of the dispute 15

16 European Communities Trade description of sardines The Sardine case confirms the place of the Codex Alimentarius Commission as an international standards setting body in relation to fish and fish products and the TBT Agreement. It confirms the obligation on TBT Members to revise their regulations to reflect new standard developments by relevant international standard setting bodies. 16

17 Australia Measures affecting the importation of salmon Canada requested consultations with Australia over its refusal to admit imports of fresh, chilled or frozen salmon from Canada 17

18 Measures affecting the importation of salmon Australia banned the importation of salmon following an import risk assessment that identified up to 20 disease agents exotic to Australia that might be present in Pacific salmon products 18

19 Measures affecting the importation of salmon Following the failure of the consultations Canada requested the DB to establish a Panel. 19

20 Measures affecting the importation of salmon Canada claimed that Australia s measure was a sanitary measure in accordance with Article 1 of the SPS Agreement and was thus subject to that Agreement s provisions 20

21 Measures affecting the importation of salmon Canada furthermore claimed the measure had not been developed and applied in accordance with the SPS agreement 21

22 Measures affecting the importation of salmon Panel found that by maintaining a sanitary measure that is not based on a risk assessment Australia acted inconsistently with Article 5.1 of the SPS Agreement 22

23 Measures affecting the importation of salmon As a result, Australia adopted arbitrary or unjustifiable distinctions in the levels of sanitary protection resulting in discrimination or a disguised restriction on international trade 23

24 Measures affecting the importation of salmon Australia, by maintaining a sanitary measure which is more trade-restrictive than required to achieve its appropriate level of sanitary protection, acted inconsistently with the requirements of the SPS Agreement. 24

25 Measures affecting the importation of salmon The conclusion of both the Panel and the Appeal Body was for Australia to bring its import measure into conformity with its SPS obligations. This was not, in itself an instruction to open the market to fresh chilled and frozen salmonid products, but to undertake an assessment of the risks such imports might pose and to act accordingly. 25

26 USA Import prohibition of certain shrimp and shrimp products India, Thailand and Malaysia requested consultations with the US regarding the ban on imports of shrimp and shrimp products from certain countries 26

27 Import prohibition of certain shrimp and shrimp products In 1995 the USA required that all shrimp harvested in foreign countries and imported into the USA demonstrate the use of Turtle Excluder Devices (TEDs) 27

28 USA Import prohibition of certain shrimp and shrimp products Following unsuccessful consultations the DSB was requested to establish a Panel 28

29 Import prohibition of certain shrimp and shrimp products The Panel found in favor of the disputing Parties. The case alleged that the prohibition on imports was contrary to Articles XI:1. 29

30 Import prohibition of certain shrimp and shrimp products The prohibition of imports was inconsistent with the opening statement of Article XX (General Exceptions) and therefore the Panel also concluded that the prohibition was inconsistent with Article XX. 30

31 Import prohibition of certain shrimp and shrimp products The Panel and the Appeal Body both noted that there was no evidence that the US sought to negotiate the expansion of the scope of the prohibition on imports with any affected WTO member. Nor was there any evidence that the US sought to implement the prohibition through any multi-lateral agreement. 31

32 Import prohibition of certain shrimp and shrimp products The Panel also made it clear that it had not decided that the protection and preservation of the environment was of no significance to the Members of the WTO. The Panel decided that the measure was applied in a manner which constitutes arbitrary and unjustifiable discrimination between WTO members. 32

33 Thank you 33