Lessons of WTO verdict on India’s avian flu measures

The Appellate Body of the World Trade Organization on 4 June rejected the appeal filed by India against a panel decision at the Dispute Settlement Body. The dispute concerned certain import prohibitions imposed by India affecting certain poultry and poultry products from countries reporting notifiable avian influenza to the World Organisation for Animal Health (OIE). The OIE is the international organization responsible for establishing health standards, including avian influenza (AI), for international trade in animals and animal products. The import prohibition was maintained through India’s AI measures under the Livestock Importation Act, 1898, and Statutory Order 1663(E) dated 19 July 2011.

The US complained that India’s AI measures amounted to an import prohibition not based on the relevant international standard (the OIE Terrestrial Code). In particular, the US asked the WTO panel to find that India’s AI measures were inconsistent with a number of provisions of the Sanitary and Phytosanitary (SPS) Agreement.

India responded that its AI measures “conform to” the OIE Terrestrial Code pursuant to article 3.2 of the SPS Agreement and consequently, compliance with other provisions of the SPS Agreement and the General Agreement on Tariffs and Trade 1994 must be presumed. Accordingly India maintained that it was under no obligation to provide the panel the scientific risk assessment prescribed under articles 5.1 and 5.2 for its AI measures, and the measures were based on scientific principles and evidence in accordance with article 2.2 of the SPS Agreement.

Sanjay Notani is a partner and Vikram Naik is an associate at Economic Laws Practice. This article is intended for informational purposes and does not constitute a legal opinion or advice.