RESTRICTED  
  
WT/DSB/M/382  
 
12 September  2016 
(16-4784) Page: 1/4 
Dispute Settlement Body  
19 July 2016    
 
 MINUTES OF MEETING  
HELD IN THE CENTRE W ILLIAM RAPPARD  
ON 19 JULY 2016  
Chairman: Mr. Xavier  Carim  (South Africa ) 
1  INDIA – MEASURES CONCERNING THE IMPORTATION OF C ERTAIN AGRICULTURAL 
PRODUCTS  
A.  Recourse to Article  22.2 of the DSU by the United  States (WT/DS 430/16)  
1.1.  The Chairman  drew attention to the communication from the United  States contained in 
document WT/DS430/16 and invited the representative of the United  States to speak.  
1.2.  The representative of the United  States  recalled that on 19  June 2015, the DSB a dopted the 
Panel Report, as modified by the Appellate Body Report in the dispute: "India – Agricultural 
Products", finding that India's avian influenza measures breached numerous provisions of the WTO 
SPS Agreement. The DSB had accordingly recommended that  India bring its measures into 
conformity with its obligations under the SPS Agreement. The United  States and India had agreed 
that the reasonable period of time for India to implement the DSB's recommendations and rulings 
would expire on 19  June 2016. Ind ia had not removed or altered the measures at issue in the 
DS430  dispute  within that period, as was clear from the statement made by India at the meeting 
of the DSB on 22  June 2016. The United  States noted that as of the end of the reasonable period 
of tim e, and indeed as of the time of the US request under Article  22.2 of the DSU, India had not 
even claimed that the measures that were the subject of the DSB's recommendations had been 
modified. In the absence of any agreement on compensation, the United  States had requested 
authorization from the DSB to suspend concessions or other obligations with respect to India at an 
annual level based on a formula commensurate with the trade effects caused to the interests of 
the United  States, by the failure of India t o comply with the recommendations and rulings of the 
DSB. Based on currently available data, the United  States estimated this figure to be 
approximately US$450  million in  2016. The United  States would update this figure annually. The 
United  States noted th at yesterday, on 18  July 2016, India had submitted to the Chairperson of 
the DSB an objection under Article  22.6 of the DSU to the level of suspension of concessions or 
other obligations proposed by the United  States, thereby referring the matter automatic ally to 
arbitration. The United  States noted that the meeting was not necessary in light of the objection 
that India had submitted. Nonetheless, the United  States appreciated the opportunity India had 
afforded them to note to the DSB the US concerns with I ndia's lack of compliance in this dispute 
and to urge India to come into compliance as soon as possible.  
1.3.  The representative of India said that, on 18  July 2016, India had submitted a written 
objection to the US request for authorization to suspend the appl ication of concessions, or other 
obligations, to India. He said that India was deeply disappointed at the US move to pursue this 
request for suspension of concessions in this dispute. India recalled that on 19  June 2015, the DSB 
had adopted the recommendat ions and rulings in the dispute: "India – Measures Concerning the 
Importation of Certain Agricultural Products"  (WT/DS430). At the following DSB meeting, India 
had informed the DSB of its intention to implement the DSB's recommendations and rulings 
pertain ing to this dispute. On 8  December  2015, India and the United  States had informed the 
DSB that the parties had agreed on a reasonable period of time, ending on 19  June 2016, for India 
to implement the recommendations and rulings. To fully comply with these , Indian authorities had WT/DSB/M/382  
 
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  been conferring with interested parties and the relevant administrative authorities since the 
adoption of the DSB's rulings and recommendations. They had held extensive internal stakeholder 
consultations in this regard. Based on th ese consultations and deliberations, India had prepared 
the draft notification on the proposed measure and had notified the SPS Committee through its 
notification G/SPS/N/IND/143, dated 20  April 2016. This had allowed the importation of poultry 
and poultry  products into India from countries, zones or compartments free from avian influenza, 
in accordance with the relevant international standard, i.e. the OIE Terrestrial Code. The draft 
notification provided a 60 -day time -period for interested parties to make  comments. Further, India 
had amended item  8 of the duly filled -in standard format, submitted with the notification, to 
appropriately reflect the relevant international standard in an addendum dated 21  June 2016. 
India received comments on the draft notifi cation from one Member only, namely, the United 
States. These had been taken into consideration by the Government, which had subsequently 
issued the new notification, S.O. 2337(E), dated 8  July 2016 ("notification"). The notification had 
been issued in exe rcise of the power conferred by sub -section  (1) of Section  3 and Section  3A of 
the Livestock Act,  1898 (9  of 1898) and superseded the earlier notification of the 
Government  of India in the Ministry of Agriculture published in the Gazette of India, Extraord inary, 
part II, Section  3, sub -section  (ii), number  S.O.1663  (E) dated 19  July 2011, which was the 
measure in the present dispute. The notification had come into effect from the date of publication 
in the Official Gazette on 8  July 2016.1 The notification took into account the findings of the Panel 
and of the Appellate Body in the DS430 dispute and had provided that the importation of poultry 
and poultry products shall be allowed from countries, zones or compartments that were free from 
avian influenza viru s in accordance with the relevant international standard, the OIE Terrestrial 
Code. The notification had further provided for the process to be followed for recognition of such 
countries, zones or compartments in conformity with Chapter  10.4 of the OIE Ter restrial Code and 
the SPS Agreement. Pursuant to this notification, India had also framed the relevant guidelines 
referred in the notification2. With the publication of the new notification on 8  July 2016 that had 
superseded the earlier notification S.O.  1663(E), India considered that it had fully complied with 
the rulings and recommendations of the DSB in this dispute. He noted that on 18  July 2016, India 
had also circulated a statement regarding its implementation, which had been circulated in 
document WT /DS430/18.  
1.4.  After having issued its final notification on 8  July 2016, in compliance with the DSB's rulings 
and recommendations, India requested the United States to enter into a "sequencing agreement" 
whereby the US would suspend its request for retaliatio n and pursue the matter, if necessary, in a 
compliance panel under Article  21.5 of the DSU. India stated that it was common practice for 
Members to enter into such "sequencing agreements" to sequence compliance and retaliation. The 
United  States had done s o in many other disputes. Members had agreed in the past, on an ad  hoc 
basis, that the procedure for examining the WTO -inconsistency of the implementing measures 
would need to be terminated before granting the authorization for retaliation measures. This w ould 
enhance certainty and was the logical step at that stage of the proceedings. India had recently 
entered into one such agreement with the United States in the DS436 dispute, despite the fact 
that India had opposed the US claim of compliance in that dis pute. Members had entered into such 
agreements regardless of the specific interests in a particular dispute. India believed that the fact 
of initiating a retaliation request did not take away the possibility of entering into such an 
understanding. India ex pected the United States to follow such a course in good faith in this 
dispute too, not only to enhance certainty in the dispute, but also to remove ambiguity for other 
Members. Regarding the US recourse to Article  22.2 of the DSU in the dispute: "India – Measures 
Concerning the Importation of Certain Agricultural Products" (DS430), the Indian authorities had 
announced that India had brought the measures at issue into conformity and that, therefore, the 
request for suspension of concessions had no legal bas is. If there was a disagreement between the 
United  States and India on this matter, the proper course of action was first to have recourse to 
Article  21.5 of the DSU. It had been the consistent practice of WTO Members to sign sequencing 
agreements to ensur e that this proper order be respected.  
1.5.  India wished to draw Members' attention to the recent statement made by the United  States 
that "the DSB cannot grant authorization to suspend concessions in any amount where the 
Member concerned has come into complian ce".3 India agreed with this statement. Before the DSB 
could grant authorization, in case of disagreement as to whether there had been compliance, the 
                                                
1 The notification is available on http://egazette.nic.in/WriteReadData/2016/170589.pdf . 
2 The guidelines can be accessed at www.dahd.nic.in . 
3 WT/DS381/32, p. 3.  WT/DSB/M/382  
 
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  fact of non -compliance must have first been established in accordance with Article  21.5 of the 
DSU. Shoul d the DSB, following a proceeding under Article  21.5 of the DSU, rule that the 
measures taken to comply by India did not exist or were inconsistent with a covered agreement, it 
would have then been appropriate for the United  States to request suspension of  concessions 
under Article  22.6 of the DSU. In any event, India objected to the level of suspension of 
concessions or other obligations under the GATT  1994 proposed by the United  States in document 
WT/DS430/16. Should the DSB, following a proceeding under Article  21.5 of the DSU, rule that the 
measures taken to comply did not exist or were inconsistent with a covered agreement, then the 
Article  22.6 arbitrator would resume its work. Accordingly, as required by Article  22.6 of the DSU, 
the matter shall be re ferred to arbitration. While India believed that it had complied with the 
recommendations and rulings in this dispute, it would continue to discuss bilaterally the concerns, 
if any, of the United  States and would seek to resolve them. In fact, the relevant  authorities of 
India and the United  States had scheduled a bilateral discussion for 20  July 2016 regarding this 
matter. India urged the United  States, once again, to enter into a sequencing agreement in order 
to provide certainty to the procedures under t his dispute. In the meantime, India would continue 
to work with the United  States to understand and address any remaining concerns.  
1.6.  The representative of the United  States  said that, under Article  22.6 of the DSU, the negative 
consensus rule applied within  30 days of the end of the period for compliance. By submitting the 
Article  22.2 request, the United  States was preserving its negative consensus rights. Taking this 
step was neither surprising nor unusual. Again, the United  States noted that as of the end  of the 
reasonable period of time, and at the time of the US request under Article  22.2 of the DSU, India 
was not even claiming that the measures at issue had been modified. The United  States remained 
prepared to engage with the Government of India to faci litate its coming into compliance with the 
DSB's recommendations in this dispute. Regarding sequencing agreements, as India knew, the US 
position was that sequencing agreements were not required under the DSU. India did not provide 
certain aspects of its n ew measures to the United  States until a mere five  days before the present 
meeting, and setting aside whether they would comply with India's WTO obligations or the DSB’s 
recommendations and rulings, it remained unclear to the United  States whether those as pects had 
even been officially promulgated. Nonetheless, the United  States continued to study the measures 
that it had only recently received from India. The United  States remained willing to discuss a 
variety of pending issues in this dispute with India, including procedural approaches that could 
achieve efficient and effective resolution of this dispute, while protecting US rights.  
1.7.  The representative of India thanked the United  States for its comments. While the 
United  States did initiate its request for suspension of concessions before the final notification, it 
could have suspended its request pending the issuance of the final notification.  India had been in 
continuous consultations and discussions with the United  States on this matter. As it had already  
been stated, India and the United  States would meet on 20  July to discuss this matter. India 
looked forward to working with the United  States to enter into agreed procedures in this dispute.  
1.8.  The representative of the European  Union  said that her delegatio n noted India's statement 
that it had taken measures to comply with the DSB recommendations and rulings. The EU also 
noted that the United  States did not agree that India had brought its measures into compliance 
with the covered agreements. It appeared, th erefore, that "there is a disagreement as to the 
existence or consistency with a covered agreement of measures taken to comply with the 
recommendations and rulings" of the DSB within the meaning of Article  21.5 of the DSU. The EU 
recalled that, pursuant to  that provision "such dispute shall be decided through recourse to these 
dispute settlement procedures, including wherever possible recourse to the original panel". In 
cases of disagreement about the existence or consistency with WTO rules of compliance me asures, 
concessions or other obligations could be suspended under the DSU once there is a multilateral 
determination on the alleged compliance action. The EU trusted that the India and the United 
States would ensure that the DSU provisions regarding compli ance and suspension of obligations 
in this dispute could be conducted efficiently and in the correct sequence. Finally, the EU recalled 
that it had participated as a third party in the panel and appeal proceedings in this dispute. 
Therefore, pursuant to Ar ticles 10.1 to  10.3 of the DSU, the EU reserved its right to participate as 
a third party in any subsequent proceedings, including with respect to any disagreement as to the 
existence or consistency with a covered agreement of measures taken to comply with  the DSB's 
recommendations and rulings.  
1.9.  The representative of Canada  said that h is delegation would briefly comment on the remarks 
made by the United  States regarding the DSB's role in considering authorizations to suspend WT/DSB/M/382  
 
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  concessions and objections to suc h requests. As Canada had noted in the past, it considered that 
these requests and objections to them should be considered by the DSB in the course of a meeting 
in order for the referral to arbitration to occur. Canada would encourage the parties to come t o an 
agreement on procedures that would govern the next steps in this dispute. Canada was 
encouraged by the apparent willingness expressed by the parties to come to an arrangement that 
served both their interests and those of the dispute settlement system.  
1.10.   The representative of Japan  said that his delegation  recognized that a complaining Member 
had the legitimate right to have recourse to Article  22.6 of the DSU when the relevant conditions 
under the DSU were satisfied. However, practice had developed under  which the parties to a 
dispute could conclude an ad hoc agreement on the procedures under Articles  21 and  22 of the 
DSU to address the issue of sequencing. Under this practice, "where there is disagreement as to 
the existence or consistency with a covered  agreement of measures taken to comply with the 
recommendations and ruling s", the parties committed themselves to have recourse to the 
compliance proceedings under Article  21.5 of the DSU prior to the arbitration under Article  22.6 of 
the DSU. These proced ural arrangements would have implications for the existing time -frames 
under the DSU, but had been, and would provide a practical way forward by securing a legal 
certainty at a very critical stage in a dispute. This practical arrangement made sense for the  
following reasons: (i) the need to fully review complex issues of compliance through an 
adjudicative process and multilateral decision by the DSB; (ii) to secure the parties' rights to 
appeal; and (iii) to provide the basis for the work of the Arbitrator under Article  22.6 of the DSU. 
Japan noted a timing issue with respect to this dispute but encouraged the parties to resolve this 
procedural issue as soon as possible.  
1.11.   The DSB took note  of the statements and that the matter raised by India in document 
WT/D S430/17 has been referred to arbitration, as required by Article  22.6 of the DSU.  
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