WT/DS430/8  
 
2 February 2015  
(15-0717)  Page: 1/6  
  Original: English  
 
 INDIA – MEASURES CONCERNI NG THE IMPORTATION OF 
CERTAIN AGRICULTURAL PRODUCTS 
NOTIFICATION OF AN APPEAL BY INDIA 
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES 
AND PROCEDURES GOVERNING THE SE TTLEMENT OF DISPUTES (DSU),  
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW 
 The following notification, dated 26 January 2015,  from the Delegation of India, is being 
circulated to Members.  
_______________ 
 
1. Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review 
(WT/AB/WP/6) ("Working Procedures") and in view of the decision taken by the Dispute 
Settlement Body in its meeting dated 18 November 2014, India hereby notifies the Dispute Settlement Body of its decision to appeal certain issues of law and legal interpretation in the Panel 
Report in India – Measures Concerning the Import ation of Certain Agricultural Products  
(WT/DS430) ("Panel Report").
1 
2. Pursuant to Rules 20(1) and 21(1) of the Work ing Procedures, India files this Notice of 
Appeal together  with its Appellant's Submission with the Appellate Body Secretariat. 
3. Pursuant to Rule 20(2)(d)(iii) of the Working Pr ocedures, this Notice of Appeal provides an 
indicative  list of the paragraphs of the Panel Report containing the alleged errors of law and legal 
interpretation by the Panel in its report, without prejudice to India's ability to rely on other 
paragraphs of the Panel Report in its appeal. 
4. India seeks review by the Appellate Body of the errors of law and legal interpretation by the 
Panel in its Report and requests findings by the Appellate Body as noted below. 
A. The Panel has committed legal errors in Sections 7.5.2 - 7.5.4 of its Report and in 
connected findings in Section 7.5.5 of its Report 
5. The Panel erred in its interpretation and application of Article 2.2 of the SPS Agreement 
and/or failed to make an objective assessment of the matter pursuant to Article 11 of the DSU, in 
so far as the Panel found that India's Avian Influenza (' AI') measures are inconsistent with 
Article 2.2 of the SPS Agreement. In particular, the Panel erred because: 
a. It made an incorrect interpretation and application of Article 2.2 of the 
SPS Agreement2 and therefore committed a legal error. The Panel consequently did 
not analyze the independent claim under Article 2.2 of the SPS Agreement on the ground that India had acted inconsiste ntly with Article 5.1 and 5.2 of the 
SPS Agreement.
3  
                                               
1 WT/DS430/R and WT/DS430/R/Add.1. 
2 Panel report, India – Agricultural Products , paragraphs 7.282 and 7.331. 
3 Ibid, paragraph 7.332. WT/DS430/8 
 
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  b. the Panel failed to make an objective assessment of the matter by disregarding 
arguments and evidence presented by India to establish that its AI measures are based on scientific principles and sufficient scientific evidence pursuant to Article 2.2 
of the SPS Agreement.
4  
c. it failed to take into account that the United States arguments under Article 2.2 of the 
SPS Agreement were limited to the ban upon occurrence of LPNAI in fresh meat of poultry and eggs and did not include the ban upon occurrence of HPNAI. In spite of 
the limited nature of the claim, the Panel ru led that India's AI measures which provide 
for import prohibition upon occurrence of HPNAI and LPNAI are inconsistent with Article 2.2 of the SPS Agreement
5 and therefore acted inconsistently with Article 11 of 
the DSU. 
d. the Panel disregarded India's arguments under Article 5.1 of the SPS Agreement and 
therefore acted inconsistently with Article 11 of the DSU.6  
6. For these reasons, India requests the Appellate  Body to reverse the Panel's finding that 
India's AI measures are inconsistent with Article 2.2 of the SPS Agreement.7  
7. Further, the Appellate Body must, where necessary, complete the legal analysis and find 
that: 
a. The Panel incorrectly interpreted and applied Article 2.2 of the SPS Agreement.  
b. A SPS measure can comply with Article 2.2 of the SPS Agreement by being based 
upon scientific principles and sufficient scientific evidence and which would also fulfill the requirement of Article 5.1 and Ar ticle 5.2 of the SPS Agreement.  
c. The Panel has failed to make an objective assessment of the matter pursuant to 
Article 11 of the DSU by completely disr egarding the evidence and the arguments 
submitted by India with respect to Article 2.2 of the SPS Agreement.  
d. The arguments of the United States with re spect to its claim under Article 2.2 of the 
SPS Agreement are limited to eggs and fresh meat of poultry upon occurrence of LPNAI.  
e. In light of the scientific evidence submitte d by India, its AI measures are based on 
scientific principles and sufficient scientific ev idence and are consistent with Article 2.2 
of the SPS Agreement. 
B. The Panel has committed legal errors in Sect ions 7.4.2.2 - 7.4.2.3 of its Report and 
in connected findings in Sections 7.4.2. 2.4; 7.4.2.2.6 and 7. 4.2.3 of its Report 
8. The Panel erred in its interpretation and application of Article 3.1 and Article 3.2 of the 
SPS Agreement and/or failed to make an objective assessment of the matter pursuant to Article 11 
of the DSU, in so far as the Panel found that India's AI measures do not conform with the 
international standard and therefore are inconsiste nt with Article 3.2 of the SPS Agreement and/or 
are not based on international standard and are therefore inconsistent with Article 3.1 of the 
SPS Agreement. In particular, the Panel erred because: 
a. First, the terms of reference of the Panel to the OIE were inconsistent with 
Article 11(2) of the SPS Agreement and Article 13 of the DSU.
8  
b. Second, the Panel delegated the judicial function of making an objective assessment 
of the matter to the OIE and therefore acted inconsistently with Article 11 of the 
                                               
4 Ibid, paragraphs 7.331-7.332. 
5 Ibid, paragraph 7.332. 
6 Ibid, paragraphs 7.309-7.319. 
7 Ibid, paragraphs 7.332 and 7.334. 
8 Panel Report, India – Agricultural Products,  paragraph 1.23. Also see Panel' s letter to the parties dated 
10 September 2013 and Panel's letter to the OIE dated 11 September 2013. WT/DS430/8 
 
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  DSU.9 It also failed to make an objective assessment of the matter by disregarding 
India's arguments and evidence.10 Further, it also acted inconsistently with Article 3.2 
of the DSU by not interpreting the OIE Code in accordance with the customary principles of international law as codified in Article 31 and Article 32 of the VCLT.
11 
c. Third, the Panel has arrived at a conclusion which is not supported by the evidence 
available and thus is not an objective assessment of matter.12  
9. For these reasons, India requests the Appellate  Body to reverse the Panel's finding that 
India's AI measures do not conform to and/or are not based upon the international standard and 
therefore are inconsistent with Article 3.1 and Article 3.2 of the SPS Agreement.13  
10. Further, the Appellate Body must, where necessary, complete the legal analysis and find 
that: 
a. The Panel's terms of reference to the OIE we re inconsistent with Article 13(2) of the 
DSU and Article 11(2) of the SPS Agreement.  
b. The Panel delegated the judicial function of making an objective assessment of the 
matter to the OIE and therefore acted inconsistently with Article 11 of the DSU.  
c. The Panel has failed to make an objective assessment of the matter pursuant to 
Article 11 of the DSU by completely disr egarding the evidence and the arguments 
submitted by India with respect to Article 3.2 and Article 3.1 of the SPS Agreement.  
d. The conclusion of the Panel with respect to Article 3.1 and Article 3.2 of the 
SPS Agreement is not based upon the factual evidence and thus, the Panel failed to make an objective assessment of the matter.  
e. Interpret Article 10.4.1.10 of the OIE Code in accordance with the customary 
principles of international law as codified in Article 31 and Article 32 of the VCLT and to conclude that a country can impose a trade ban upon occurrence of HPAI/LPNAI in 
poultry.  
f. Interpret the product specific recommendatio n s  i n  c h a p t e r  1 0 . 4  o f  t h e  O I E C o d e  i n  
accordance with the customary principles of international law as codified in Article 31 
and Article 32 of the VCLT and to conclude  that an importing country based upon its 
ALOP can import from a NAI free country/zone/compartment or HPNAI free country/zone/ compartment and in the event this condition of entry is not fulfilled, products of concern may not be imported.  
g. Clause 1(ii)(a) of S.O. 1663(E) (live poultry) conforms to Article 10.4.1.10 and 
Article 10.4.5 of the OIE Code; Clause 1(ii)(b) of S.O. 1663(E) conforms to Article 10.4.1.10 and Article 10.4.7 of the OIE Code; Clause 1(ii)(c) of S.O. 1663(E) 
conforms to Article 10.4.1.10 and Article 10.4.19 of the OIE Code; Clause 1(ii)(d) of 
S.O. 1663(E) conforms to Article 10.4.1.10 and Article 10.4.10 of the OIE Code; Clause 1(ii)(e) of S.O. 1663(E) conforms  to Article 10.4.1.10; Article 10.4.13 and 
Article 10.4.15 of the OIE Code; Clause 1(ii)(j) of S.O. 1663(E) (poultry semen) 
conforms to Article 10.4.1.10 and Article 10.4.16 of the OIE Code. These clauses of S.O. 1663(E) conform to the international st andard and are therefore consistent with 
Article 3.2 of the SPS Agreement.  
h. Alternatively, Clause 1(ii)(a) of S.O. 1663(E) (live poultry) is based upon 
Article 10.4.1.10 and Article 10.4.5 of the OIE Code; Clause 1(ii)(b) of S.O. 1663(E) is based upon Article 10.4.1.10 and Article 10.4.7 of the OIE Code; Clause 1(ii)(c) of 
S.O. 1663(E) is based upon Article 10.4.1.10 and Article 10.4.19 of the OIE Code; 
                                               
9 Panel Report, India – Agricultural Products,  paragraphs 7.231-7.273. 
10 Ibid, paragraphs 7.231-7.273. 
11 Ibid, paragraphs 7.231-7.273. 
12 Ibid, paragraphs 7.231-7.273. 
13 Ibid, paragraphs 7.272-7.275. WT/DS430/8 
 
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  Clause 1(ii)(d) of S.O. 1663(E) is based upon Article 10.4.1.10 and Article 10.4.10 of 
the OIE Code; Clause 1(ii)(e) of S.O. 1663(E) is based upon Article 10.4.1.10; Article 10.4.13 and Article 10.4.15 of the OIE Code; Clause 1(ii)(j) of S.O. 1663(E) (poultry semen) is based upon Article 10.4.1.10 and Article 10.4.16 of the OIE Code. 
These clauses of S.O. 1663(E) are based upon the international standard and 
therefore are consistent with Article 3.1 of the SPS Agreement.  
C. The Panel has committed legal errors in Sect ions 7.9.2.3 - 7.9.2.4 of its Report and 
in connected findings in Section 7.9.2.6 of its Report  
11. The Panel erred in its interpretation and application of Article 6.1 and 6.2 of the 
SPS Agreement and/or failed to make an objective assessment of the matter pursuant to Article 11 of the DSU, in so far as the Panel found that Indi a's AI measures fail to recognize the concept of 
disease free areas and areas of low disease prevalence and therefore are inconsistent with 
Article 6.2 of the SPS Agreement and are also inconsistent with Article 6.1 of the SPS Agreement as India's AI measures fail to adapt to the SPS characteristics of the areas from where the 
products originate. In particular, the Panel erred because: 
a. The Panel observed that India pursuant to Livestock Act may be able to recognize the 
concepts of disease-free areas and areas of low disease prevalence
14, though there is 
no evidence of this being ever recognized and in addition, S.O. 1663(E) provides for a 
country wide prohibition.15 On this basis, the Panel concluded that India's AI measures 
do not recognize the concept of disease-free areas and areas of low disease prevalence with respect to AI and therefore are inconsistent with Article 6.2, first 
sentence.
16 Consequently, the Panel ruled that India's AI measures are also 
inconsistent with Article 6.2, second sentence.17 
b. The Panel while coming to this conclusion has committed legal errors. The first is a 
legal error as the requirement under Article 6.2, first sentence of the SPS Agreement 
is of recognizing the concept of disease free areas in a domestic measure and not of implementing a domestic measure which recognizes the concept of disease free 
areas.
18 The Panel's conclusion was therefore not consistent with the obligation as 
provided in Article 6.2, first sentence of th e SPS Agreement. Further, this analysis and 
conclusion by the Panel, was not based on and is contrary to the United States' argument under Article 6 of the SPS Agreement which is limited to the argument that 
India as a policy does not recognize the concept of disease-free areas and areas of 
low disease prevalence
19. Thus, the Panel also failed to make an objective analysis of 
the matter under Article 11 of the DSU as its conclusion is based on an argument not 
advanced by the United States.  
c. Second, the Panel erred in disregarding ar guments and evidence submitted by India20 
as the same do not find any mention in the Panel's analysis21 and therefore the Panel 
acted inconsistently with Article 11 of the DSU. As a result, the Panel incorrectly 
concluded that India's AI measures are inconsistent with Article 6.2.22 
d. Third, the Panel made a legal error by incorrectly interpreting the relationship between 
Article 6.1, first sentence and Article 6.3, first sentence.23 As a result, the Panel 
incorrectly concluded that India's AI measures are inconsistent with Article 6.1, first 
sentence and consequently with Article 6.1, second sentence.24 
                                               
14 Panel Report, India – Agricultural Products, paragraphs 7.701 and 7.706. 
15 Ibid, paragraphs 7.701; 7.702 and 7.706. 
16 Ibid, paragraphs 7.706-7.707. 
17 Ibid, paragraph 7.708. 
18 Ibid, paragraph 7.698. 
19 Ibid, paragraph 7.618.  
20 Ibid, paragraph 7.632 and footnote 1155.  
21 Ibid, paragraphs 7.693-7.706. 
22 Ibid, paragraphs 7.707 and 7.708. 
23 Ibid, paragraph 7.711. 
24 Ibid, paragraphs 7.711-7.712. WT/DS430/8 
 
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  12. For these reasons, India requests the Appellate  Body to reverse the Panel's finding that 
India's AI measures are inconsistent with Article 6.1 and Article 6.2 of the SPS Agreement.25  
13. Further, the Appellate Body must, where necessary, complete the legal analysis and find 
that:  
a. Article 6.2, first sentence of the SPS Agreement only requires recognition of the 
concepts of pest- or disease-free areas and areas of low pest or disease prevalence and not of implementation of these concep ts. The Panel therefore committed a legal 
error in coming to its conclusion in Articl e 6.2, first sentence. Further, the Panel's 
conclusion was also not based upon an objective assessment of the matter as the Panel ruled on a claim not argued by the United States.  
b. The Panel also acted inconsistently with  Article 11 of the DSU by disregarding 
evidence under Article 6.2, first sentence of the SPS Agreement which was of critical 
importance to India and therefore failed to make an objective assessment of the matter.  
c. Pursuant to Article 6.1, first sentence of the SPS Agreement an importing country is 
required to adapt its sanitary measures to the sanitary or phytosanitary characteristics of the area of the exporting country only upon receiving a formal proposal pursuant to 
Article 6.3 of the SPS Agreement.  
d. Since the United States has not made any formal proposal pursuant to Article 6.3 of 
the SPS Agreement, India has not acted incons istently with Article 6.1, first sentence 
and Article 6.1, second sentence of the SPS Agreement.  
D. The Panel has committed legal errors in Sect ions 7.8.2.1 - 7.8.2.3 of its Report and 
in connected findings in Sections 7.8.2.1 - 7.8.3 of its Report  
14. The Panel erred in its interpretation and application of Article 5.6 and 2.2 of the 
SPS Agreement and/or failed to make an objective assessment of the matter pursuant to Article 11 
of the DSU, in so far as the Panel found that India's AI measures are more trade restrictive than required to achieve India's ALOP and therefore are inconsistent with Article 5.6 of the 
SPS Agreement and as a consequence are also inconsistent with Article 2.2 of the SPS Agreement. 
In particular, the Panel erred because: 
a. the Panel concluded that the United States' claim under Article 5.6 of the 
SPS Agreement is not restricted to LPNAI
26 and the alternate measure is Chapter 10.4 
of the Terrestrial Code which would fulfill India's ALOP.27 However, the United States 
had only presented arguments and evidence for LPNAI whereas the OIE Code includes recommendations for both HPNAI and LPNAI. The Panel therefore ruled on a claim not 
argued by the United States and therefore failed to make an objective analysis of the 
matter.  
b. the United States failed to make a prima facie  case as the alternate measure identified 
by the United States to fulfill India's ALOP was not based upon the measure at issue 
but was instead based upon its domestic control measure
28. Further, the Panel 
disregarded India's arguments and therefore failed to make an objective assessment of the matter.  
c. the Panel did not identify the proposed alternative measure with precision
29 and 
therefore committed a legal error by concluding that the alternate measure would 
                                               
25 Ibid, paragraphs 7.707-7.708 and paragraphs 7.709-7.712. 
26 Panel Report,  India – Agricultural Products , paragraph 7.516. 
27 Ibid, paragraph 7.586. 
28 Ibid, paragraph 7.487. 
29 Ibid, paragraphs 7.529-7.534. WT/DS430/8 
 
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  fulfill India's ALOP.30 Further, the United States presented a prima facie  case with 
respect to only two products and upon occurrence of HPNAI.31  
15. For these reasons, India requests the Appellate  Body to reverse the Panel's finding that 
India's AI measures are more trade restrictive than  required to achieve India's ALOP and therefore 
are inconsistent with Article 5.6 of the SPS Agreement and as a consequence are also inconsistent 
with Article 2.2 of the SPS Agreement.32  
16. Further, the Appellate Body must, where necessary, complete the legal analysis and find 
that India's AI measures are consistent with Article 5.6 of the SPS Agreement and consequently 
with Article 2.2 of the SPS Agreement.  
E. The Panel has committed legal errors in Sect ions 7.6.4.2.1 - 7.6.4.2.2 of its Report 
and in connected findings in Sections 7.6.5 - 7.7. of its Report 
17. The Panel erred in its interpretation and application of Article 2.3 of the SPS Agreement 
and/or failed to make an objective assessment of the matter pursuant to Article 11 of the DSU, in so far as the Panel found that India's AI measures arbitrarily and unjustifiably discriminate 
between members where identical or similar conditio ns prevail and therefore are inconsistent with 
first sentence of Article 2.3 of the SPS Agreement. In particular, the Panel erred because:  
a. the terms of reference of the Panel's consultation with the individual experts
33 were 
beyond the scope of the OIE Code which with respect to avian influenza does not 
provide for review of member countries' domestic surveillance regime and allows self certification of freedom from avian influenza by member countries. The Panel therefore acted inconsistently with Article 11 of the DSU. 
b. the Panel's questions to the experts on this issue erroneously shifted the burden of 
proof onto India even though it was th e United States which had presented the 
hypothesis that LPNAI must be present in India as it is ubiquitous in wild birds. The 
Panel therefore acted inconsistently with Article 11 of the DSU.
34 
c. the Panel questions to the individual expe rts delegated the determination of India's 
LPNAI status to the individual experts and which is inconsistent with Article 11 of the 
DSU.35  
18. For these reasons, India requests the Appellate Body to reverse the Panel's finding which is 
based upon the testimony provid ed by the individual experts.36  
__________ 
 
                                               
30 Ibid, paragraphs 7.582-7.586. 
31 Ibid, paragraphs 7.529-7.534. 
32 Ibid, paragraph 7.597 and paragraphs 7.616-7.617. 
33 Panel Report,  India – Agricultural Products , paragraph 1.23. 
34 Ibid, paragraphs 1.31-1.34 and 7.443. 
35 Ibid, paragraphs 7.437-7.457 and 7.418-7.425. 
36 Ibid, paragraphs 7.454 and 7.457.