WT/DS430/21  
 
12 April 2017  
(17-2000) Page: 1/5 
  Original: English  
 
  
INDIA – MEASURES CONCERNING THE IMPORTATION  
OF CERTAIN AGRICULTU RAL PRODUCTS  
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA  
REQUEST FOR THE ESTA BLISHMENT OF A PANEL  
The following communication, dated 6 April 2017 , from the delegation of India to the Chairp erson 
of the Dispute Settlement Body, is circulated pursuant to Article 21.5 of the DSU.  
 
_______________  
 
 
 India hereby requests the establishment of a panel pursuant to Article 21.5 of the 
Understanding on Rules and Procedures Governing the Settlement o f Disputes  ("DSU"), 
Article  XXIII of the General Agreement on Tariffs and Trade 1994 ("GATT 1994"), and Article 11 of 
the Agreement on Sanitary and Phytosanitary Measures ("SPS Agreement") with respect to the 
issues identified below.  
 
1. BACKGROUND TO THIS R EQUEST  
 
On 19 June 2015, the Dispute Settlement Body ("DSB") adopted the Appellate Body Report and 
the Panel Report, as modified by the Appellate Body Report, in India – Measures Concerning the 
Importation of Certain Agricultural Products (DS430).1 These r eports concluded that India's Avian 
Influenza measures, reflected in S.O. 1663(E), were inconsistent with Article 2.3; Article 3.1; 
Article 5.1; Article 5.2; Article 5.6 and consequentially inconsistent with Article 2.2; Article 6.1; 
Article 6.2; Article 7 ; as well as Annex B(2) and Annex B(5)(a), (b) and (d) of the SPS Agreement. 
In accordance with these reports, the DSB recommended that India bring its measures, found to 
be inconsistent with the SPS Agreement, into conformity with its obligations under th at 
Agreement.  
 
On 15 July 2015, India informed the DSB that it intended to implement the recommendations and 
rulings of the DSB in a manner that respects its WTO obligations within a reasonable period of 
time.2 On 8 December 2015, India and the United Sta tes informed the DSB that they had agreed 
on a reasonable period of time up to 19 June 2016 for India to implement the recommendations 
and rulings of the DSB.3 On 10 June 2016, India provided a status report to the DSB on its 
progress in implementation, pu rsuant to  Article 21.6 of the DSU .4  
 
India requested the United States to enter into a sequencing agreement to sequence any possible 
recourse to Article 21.5 or Article 22.2 of the DSU, which India considers to be the general practice 
followed in good fai th by WTO Members. Till date, the United States has not agreed to India's 
request, and, as a result, there is no sequencing agreement between India and the United States 
in this dispute.  
 
 
                                                
1 Action by the Dispute Settlement Body, WT/DS430/11 circulated on 22 June 2015.   
2 Communication  from India, WT/DS430/12 circulated on 15 July 2015.  
3 Communication from India and the United States concerning Article 21.3(b) of the DSU, WT/DS430/14 
circulated on 11 December 2015.  
4 Status Report by India, WT/DS430/15 circulated on 10 June 2016.  WT/DS430/21  
 
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  2.  IMPLEMENTATION ACTION DECLARED BY INDIA  
India notified a draf t amendment notification to the SPS Committee on 20 April 20165, allowing a 
60-day period for interested parties to provide comments on the same. Further, India vide a 
corrigendum dated 22 June 2016, amended item 8 of the aforesaid draft amendment notifica tion, 
in order to reflect the relevant international standard.6  
 
India received comments on its draft amendment notification from only one WTO Member, the 
United States. These comments were taken into consideration by India while issuing notification 
S.O. 2337(E) on 8 July 2016, which superseded the previous notification S.O. 1663(E). Notification 
S.O. 2337(E) was published in the Official Gazette of India.7 Pursuant to this, India notified the 
DSB on 18 July 2016 that it had adopted measures necessary to comply with the 
recommendations of the DSB.8 This notification was also notified to the SPS Committee.9 
 
India has also issued the relevant guidelines referred to in notification S.O. 2337(E) as well as the 
questionnaire which will be used to recognize a p art of a country, zone or compartment for the 
purpose of trade in poultry and poultry products.  
 
After the publication of S.O. 2337(E), India and the United States entered into bilateral discussions 
to address additional concerns raised by the United Stat es. Pursuant to the same, India amended 
notification S.O. 2337(E) vide notification S.O. 2998(E) dated 19 September 2016.10 This 
amendment notification was notified to the SPS Committee on 20 September 201611 and to the 
DSB on 26 September 2016.12  
 
India the n further continued its efforts to resolve the concerns of the United States on a bilateral 
basis. In this respect, India provided the relevant information to the United States in response to 
the request made by the United States under Article 5.8 of the S PS Agreement.13 Subsequently, it 
was observed that the term " areas of low pest or disease prevalence" was inadvertently omitted 
from the definition of " Pest-or disease -free areas and areas of low pest or disease prevalence"  in 
paragraph 1(d) of notification  S.O. 2337(E). Thus, this inadvertent omission was rectified vide 
notification S.O. 510(E) dated 17 February 2017 which  was notified to the SPS Committee on 
22 February 201714 and to the DSB on 02 March 2017.15    
 
Notification S.O. 2337(E) dated 8 July 2016 , amendment noti fications S.O. 2998(E) dated 
19 September 2016 and S.O. 510(E) dated 17 February 2017, as well as the guidelines, and the 
questionnaire, together form the "revised Avian Influenza measures". These notifications have 
been issued in exercise of the power conferred by sub -section (1) of Section 3 and Section 3A of 
the Livestock Act, 1898 (9 of 1898) and came into effect from the date of their publication in the 
Official Gazette.   
 
India considers that the revised Avian Influenza ("AI") measure s comply with the 
recommendations of the DSB in this dispute for the following reasons:  
 
a. In the original proceedings, the Panel found that the measure at issue, S.O. 1663 (E) 
was not based on the relevant international standard i.e. Chapter 10.4 of the OI E 
Terrestrial Code because it prohibited imports of poultry and poultry products upon 
occurrence of Notifiable Avian Influenza (NAI) in a country. The Panel held that Chapter 
10.4 of the OIE Terrestrial Code envisages imports of poultry and poultry product s from 
                                                
5 Notification of draft S.O. 2337(E) to the SPS Committee, G/SPS/N/IND/143 circulated on 20 April 
2016.  
6 Notification of corrigendum to the SPS Committee, G/SPS/N/IND/143/Corr.1 circulated on 22 June 
2016.  
7 See http://egazette.nic.in/WriteReadData/2016/170589.pdf . 
8 Communication from India, WT/DS430/18 circulated on 19 July 2016.  
9 Notification, G/SPS/N/IND/150 circulated on 26 July 2016.  
10 See http://egazette.nic.in/WriteReadData/2016/171799.pdf .  
11 Notification of amendment to S.O. 2337(E), G/SPS/N/IND/160 circulated on 21 September 2016.  
12 Communica tion from India, WT/DS430/19 circulated on 23 September 2016.  
13 The United States made a request pursuant to Article 5.8 of the SPS Agreement vide letter dated 21 
December 2016. In response, India provided the relevant information to the United States vid e email dated 31 
January 2017.  
14 Notification,  G/SPS/N/IND/143/Add.1  circulated on 02 March 2017.  
15 Communication from India, WT/DS430/20  circulated on 03 March 2017.  WT/DS430/21  
 
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  NAI or highly pathogenic NAI (HPNAI) free zones/com partments and not only from 
NAI or HPNAI free countries.16 Thus, the Panel held that S.O. 1663(E) was inconsistent 
with Article 3.1 of the SPS Agreement17 and that India could not benefit from the 
presumption set out in Article 3.2 of the SPS Agreement.18 This ruling was upheld by the 
Appellate Body.19   
 
The revised AI measures remove these inconsistencies. They allow for imports of poultry 
and poultry products from a country, zone or compartment in acc ordance with the 
recommendation of the OIE Terrestrial Code. Further, the mechanism to recognize 
pest-or disease -free areas and/or areas of low pest or disease prevalence in the 
exporting country is provided in paragraph 3 of notification S.O. 2337(E). In view of the 
above, India considers that its revised AI measures comply with the rulings and 
recommendations of the DSB with respect to Article 3.1 of the SPS Agreement.  
 
b. In the original proceedings, the Panel held that the measure at issue, S.O. 1663(E) wa s 
inconsistent with Article 6.1 and Article 6.2 of the SPS Agreement because it failed to 
recognize the concepts of disease -free areas and areas of low disease prevalence.20 
Consequently, the Panel also held that India's AI measures were  not adapted to the 
SPS characteristics of such areas and thus, were inconsist ent with Article 6.1 of the 
SPS Agreement.21 In order to remove these inconsistencies, India has recognized the 
concepts of pest-or disease -free areas and areas of low pest or disease prevalence in i ts 
revised AI measures. S.O. 2337 (E), as amended by S.O. 2998 (E), explicitly provides 
that poultry and poultry products can be imported from pest-or disease -free areas and 
areas of low pest or disease prevalence . Further, paragraph 3 of S.O. 2337 (E) pro vides 
that India will adapt its sanitary and phytosanitary measures to the sanitary and 
phytosanitary characteristics of the area of the exporting country. In view of the above, 
India considers that its revised AI measures comply with the rulings and 
recom mendations of the DSB with respect to Article  6.1 and Article 6.2 of the 
SPS Agreement.  
 
c. In the original proceedings, the Panel held that the measure at issue S.O. 1663(E) was 
inconsistent with Article 2.3 of the SPS Agreement. With respect to Article 2.3 first 
sentence, the Panel concluded that there is a difference in treatment of imported poultry 
and domestic poultry and poultry products which amounts to unjustifiable 
discrimination22 as similar or identical conditions prevail between India and other 
countries.23 The Panel also held that there is discrimination on account of occurrence of 
LPNAI in treatment between imported and domestic poultry and poultry products and 
such discrimination is arbitrary and unjustifiable24 as similar or identical conditions 
prevail.25 With respect to Article 2.3, second sentence , the Panel concluded that India's 
measure was applied in a manner that constitutes a disguised restriction on international 
trade .26 
 
In order to comply with the rulings and recommendat ions of the DSB, th e revised 
AI measures ensure that there is no discrimination between imported and domestic 
poultry and poultry products. Further, India has modified its AI measures to allow import 
of poultry and poultry products from pest-or disease -free areas and areas o f low pest or 
disease prevalence . Thus, India considers that its revised AI measures comply with the 
rulings and recommendations of the DSB with re spect to Article 2.3 of the 
SPS Agreement.  
 
                                                
16 Panel Report, India – Agricultural Products, para. 7.263 .  
17 Panel Report, India – Agricultural Products, paras. 7.271 -7.273 . 
18 Panel Report,  India – Agricultural Products,  para. 7.275 . 
19 Appellate Body Report, India – Agricultural Products , para. 5.111 .  
20 Panel Report, India – Agricultural Products , 8.1.c.x.; Appellate Body Report, India – Agricultural 
Products , para. 6.1.c.  
21 Panel Report , India – Agricultural Products , para s. 7.709-7.712.  
22 Panel Report , India – Agricultural Products , para.  7.436.  
23 Panel Report , India – Agricultural Products , para.  7.464.  
24 Panel Report , India – Agricul tural Products , para. 7.457.  
25 Panel Report , India – Agricultural Products , para. 7.472.  
26 Panel Report , India – Agricultural Products , paras. 7.477 - 7.478.  WT/DS430/21  
 
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  d. In the original proceedings, the Panel found India's AI measures  inconsistent with 
Article  5.6 and consequentially inconsistent with Article 2.2 of the SPS  Agreement.27 The 
Panel found that the alternative measure recommended by the United States, namely, 
one based on  Chapter 10.4 of the OIE Terrestrial Code, would hav e been able to 
achieve India's ALOP and would have also been significantly less trade restrictive than 
S.0. 1663(E).28 As explained above, the revised AI measures allow imports of poultry 
and poultry products into India from the relevant country, zone or co mpartment in 
accordance with the product -specific recommendations in the OIE Terrestrial Code. 
Thus, India considers that it has complied with the rulings and recommendations of the 
DSB with respect to Article 5.6 and Article 2.2 of the SPS Agreement.   
 
The Appellate Body largely upheld the Panel's findings.29   
In view of the above, India strongly considers that it has brought itself into conformity with its 
WTO obligations. It has complied with the recommendations of the DSB by rectifying the 
inconsistenc ies in S.O. 1663(E), and by issuing notification S.O. 2337(E) and amendment 
notifications S.O. 2998(E) and S.O. 501(E), as well as the guidelines and the questionnaire.30 
 
3. SYSTEMIC ISSUES ARISING IN THIS DISPUTE  
 
It is a standard practice among WTO Members  to enter into a sequencing agreement to ensure 
that, in the event of disagreement between the parties with respect to compliance with the DSB's 
rulings and recommendations, recourse under Article 21.5 of the DSU should be pursued as the 
first option. Howe ver, as mentioned above, the United States has not agreed to India's request to 
enter into a sequencing agreement. Moreover, India understands that the United States disagrees 
that the revised Avian Influenza measures are consistent with the WTO covered ag reements and 
that India has brought itself into conformity with its WTO obligations. However, the United States 
has not sought the establishment of a compliance panel.   
 
On 7 July 2016, the United States made a request pursuant to Article 22.2 of the DSU seeking 
authorization from the DSB to suspend concessions under the covered agreements in the amount 
of US$450 million in 2016, which will be updated annually.31 India objected to this request vide its 
communication dated 18 July 2016 to the Chair of the DS B and in its oral statement at the DSB 
meeting held on 19 July 201632, when it raised its concerns about the request by the United States 
for authorization to suspend concessions or other obligations under the covered agreements. India 
objected to the level  of suspension of concessions or other obligations under the GATT 1994 
proposed by the United States, and the DSB referred the matter to arbitration under Article 22.6 of 
the DSU.33 Till date, despite India's compliance, the United States has not agreed to suspend the 
arbitration proceedings under Article 22.6 of the DSU. In India's opinion, if there is a disagreement 
between the parties with respect to "the consistency with a covered agreement of measures taken 
to comply with the recommendations and rulings ", the proper course of action is first to have 
recourse to Article 21.5 of the DSU.34  
 
In fact, this has also been the position of the United States in other WTO disputes. In US - 
Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Pr oducts (DS381) , 
the United States itself observed that " the DSB cannot grant authorization to suspend concessions 
in any amount where the Member concerned has come into compliance ".35 India agrees with this 
statement made by the United States. In this case,  where India considers that it has brought itself 
into full compliance and where the United States disagrees, the issue of compliance must be 
                                                
27 Panel Report,  India – Agricultural Products , paras.  7.616 and 7.617.  
28 Panel Report,  India – Agricultural Products , para. 7.597.   
29 Appellate Body Report, India – Agricultural Products , para. 6.1.  
30 India further considers that the revised AI measures comply with the rulings and recommendations of 
the DSB with respect to Articles 2.2, 5.1, 5.2, 7 as well as Annex B(2) and Annex B(5)(a), (b) and (d) of the 
SPS Agreement.  
31 Recourse to Article 22.2 of the DSU by the United States, WT/DS430/16 circulated on 8 July 2016.  
32WT/DS430/17 dated 19 July 2016; also see 
https://www.wto.org/english/news_e/news16_e/dsb_19jul16_e.htm . 
33 Recourse to Article 22.6 of the DSU by India, WT/DS430/17 circulated on 19 July 2016.  
34 Ibid. 
35 United States - Measures Concerning the Importation, Marketin g and Sale of Tuna and Tuna Products, 
Recourse to Article 21.5 of the DSU by the United States, WT/DS381/32 circulated on 12 April 2016, page 3.     WT/DS430/21  
 
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  decided following the procedures of Article 21.5 of the DSU. In the circumstances of this dispute, 
therefore, Indi a considers it appropriate to seek recourse to Article 21.5 of the DSU to resolve the 
disagreement over compliance.   
 
As noted above, so far, there is no sequencing agreement between India and the United States in 
this dispute. Thus, there is no agreement between the parties addressing the issue of whether 
consultations should be held before a party could request the establishment of an Article 21.5 
panel. In these circumstances, consultations between India and the United States have not been 
held.36  
 
4. REQUE ST FOR THE ESTABLISHMENT OF PANEL UNDER ARTICLE 21.5 OF THE DSU.  
 
In light of the fact that the United States  disagrees that India's revised AI measures comply with 
the recommendations and rulings of the DSB, India requests that a panel be established pur suant 
to Article 21.5 of the DSU, with standard terms of reference as set forth in Article 7.1 of the DSU.  
India also requests that the DSB refer the matter to the original panel, if possible.  
 
As India has brought its revised Avian Influenza measures into conformity with its WTO 
obligations, prompt findings by the DSB will assist the parties in securing a positive solution to the 
dispute.37 
 
Please include this request on the agenda of the next regular Dispute Settlement Body meeting 
scheduled for the 19th of April 2017. Please also circulate this request to all Members.  
 
 
__________  
                                                
36 See on this point, Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose Corn 
Syrup (HFCS) from the United States, (Recourse to Article 21.5 of the DSU by the United States) , 
WT/DS132/AB/RW, circulated on 22 October 2001, para.  70.  See also para.  52. 
37 Article 3.7 of the DSU.