INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS REPORT OF THE PANEL
Document: Addendum
Date: 14 October 2014
Document codes: WT/DS430/R/Add.1; WT/DS430/R.
Complainant: U.S.
Respondent: India
Third parties: China, Colombia, Ecuador, EU, Guatemala, Japan, Vietnam, Argentina, Australia, Brazil
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, Annex B  Sanitary and Phytosanitary Measures (SPS)Art. XI  GATT 1994

INDIA – MEASURES CONCERNING THE IMPORTATION
OF CERTAIN AGRICULTURAL PRODUCTS
REPORT OF THE PANEL
Addendum
This addendum contains Annexes A to C to the Report of the Panel to be found in document

LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel A-2
Annex A-2 Additional Working Procedures for the protection of strictly confidential
information
A-9
ANNEX B
ARGUMENTS OF THE PARTIES
UNITED STATES
Contents Page
Annex B-1 Executive summary of the first written submission of the United States B-2
Annex B-2 Executive summary of the opening and closing statements of the United States
at the first substantive meeting of the Panel
B-8
Annex B-3 Executive summary of the second written submission of the United States B-12
Annex B-4 Executive summary of the opening statement of the United States at the
second substantive meeting of the Panel
B-21
INDIA
Contents Page
Annex B-5 Executive summary of the first written submission of India B-27
Annex B-6 Executive summary of the opening and closing statements of India at the first
substantive meeting of the Panel
B-35
Annex B-7 Executive summary of the second written submission of India B-39
Annex B-8 Executive summary of the opening and closing oral statements of India at the
second substantive meeting of the Panel
B-44
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Argentina C-2
Annex C-2 Integrated executive summary of the arguments of Australia C-4
Annex C-3 Integrated executive summary of the arguments of Brazil C-7
Annex C-4 Integrated executive summary of the arguments of the European Union C-9
Annex C-5 Integrated executive summary of the arguments of Guatemala C-14
Annex C-6 Integrated executive summary of the arguments of Japan C-17

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ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Working Procedures of the Panel A-2
Annex A-2 Additional Working Procedures for the protection of strictly confidential
information
A-9

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ANNEX A-1
WORKING PROCEDURES FOR THE PANEL
Adopted on 15 March 2013

1. In its proceedings, the Panel shall follow the relevant provisions of the Understanding on Rules
and Procedures Governing the Settlement of Disput es (DSU). In addition, the following Working
Procedures shall apply.
General

2. The deliberations of the Panel and the docume nts submitted to it shall be kept confidential.
Nothing in the DSU or in these Working Procedures shall preclude a party to the dispute (hereafter
"party") from disclosing statements of its own positions to the public. Members shall treat as
confidential information submitted to the Panel by another Member which the submitting Member
has designated as confidential. Where a party submits a confidential version of its written
submissions to the Panel, it shall also, upon request of a Member, provide a non-confidential
summary of the information contained in its submissions that could be disclosed to the public.
3. Upon indication from any party, at the latest on the first substantive meeting, that it shall
provide information that requires protection addi tional to that provided for under these Working
Procedures, the Panel shall, after consultation with the parties, decide whether to adopt
appropriate additional procedures. Exceptions to this procedure shall be granted upon a showing of
good cause.
4. The Panel shall meet in closed session. The parties, and Members having notified their interest
in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU (hereafter
"third parties"), shall be present at the meetin gs only when invited by the Panel to appear
before it.
5. Each party and third party has the right to determine the composition of its own delegation
when meeting with the Panel. Each party and third party shall have the responsibility for all
members of its own delegation and shall ensure th a t e a c h m e m b e r o f s u c h d e l e g a t i o n a c t s i n
accordance with the DSU and these Working Procedures, particularly with regard to the
confidentiality of the proceedings.
Submissions

6. Before the first substantive meeting of the Pa nel with the parties, each party shall submit a
written submission in which its presents the facts of the case and its arguments, in accordance
with the timetable adopted by the Panel. Each party shall also submit to the Panel, prior to the
second substantive meeting of the Panel, a written rebuttal, in accordance with the timetable
adopted by the Panel.
7. A party shall submit any request for a preliminary ruling at the earliest possible opportunity
and in any event no later than in its first written submission to the Panel. If the United States
requests such a ruling, India shall submit its response to the request in its first written submission.
If India requests such a ruling, the United States shall submit its response to the request prior to
the first substantive meeting of the Panel, at a time to be determined by the Panel in light of the
request. Exceptions to this procedure shall be granted upon a showing of good cause.
8. Each party shall submit all factual evidence to the Panel no later than during the first
substantive meeting, except with respect to evid ence necessary for purposes of rebuttal, answers
to questions or comments on answers provided by the other party. Exceptions to this procedure
shall be granted upon a showing of good cause. Where such exception has been granted, the Panel

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shall accord the other party a period of time for comment, as appropriate, on any new factual
evidence submitted after the first substantive meeting.
9. Where the original language of exhibits is not a WTO working language, the submitting party or
third party shall submit a translation into the WTO working language of the submission at the
same time. The Panel may grant reasonable extensions of time for the translation of such exhibits
upon a showing of good cause. Any objection as to the accuracy of a translation should be raised
in writing as promptly as possible. Any objection shall be accompanied by a detailed explanation of
the grounds of objection and an alternative translation.
10. In order to facilitate the work of the Panel, each party and third party is invited to make its
submissions in accordance with the WTO Editorial Guide for Panel Submissions attached as
Annex 1, to the extent that it is practical to do so.
11. To facilitate the maintenance of the record of the dispute and maximize the clarity of
submissions, each party and third party shall sequentially number its exhibits throughout the
course of the dispute. For example, exhibits su bmitted by the United States could be numbered
US-1, US-2, etc. If the last exhibit in connection with the first submission was numbered US-5, the
first exhibit of the next submission thus would be numbered US-6.
Questions

12. The Panel may at any time pose questions to the parties and third parties, orally in the course
of a meeting or in writing.
Substantive meetings

13. Each party shall provide to the Panel the list of members of its delegation in advance of each
meeting with the Panel and no later than 5.30 p.m. the previous working day.
14. The first substantive meeting of the Panel with the parties shall be conducted as follows:
a. The Panel shall invite the United States to make an opening statement to present its
case first. Subsequently, the Panel shall invite India to present its point of view. Before
each party takes the floor, it shall provide the Panel and other participants at the
meeting with a provisional written version of its statement. In the event that
interpretation is needed, each party shall provide additional copies to the interpreters.
Each party shall make available to the Panel and the other party the final version of its
statement, preferably at the end of the meeting, and in any event no later than
5.30 p.m. on the first working day following the meeting.
b. After the conclusion of the statements, the Panel shall give each party the opportunity to
ask each other questions or make comments, through the Panel. Each party shall have
an opportunity to orally answer these questions. Each party shall send in writing, within
a timeframe to be determined by the Panel, any questions to the other party to which it
wishes to receive a response in writing. Each party shall be invited to respond in writing
to the other party's questions within a deadline to be determined by the Panel.
c. The Panel may subsequently pose question s to the parties. The Panel shall send in
writing, within a timeframe to be determined by it, any questions to the parties to which
it wishes to receive a response in writing. Each party shall be invited to respond in
writing to such questions within a deadline to be determined by the Panel.
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to
present a brief closing statement, with the United States presenting its statement first.
15. The second substantive meeting of the Panel with the parties shall be conducted as follows:
a. The Panel shall ask India if it wishes to avail itself of the right to present its case first. If
so, the Panel shall invite India to presen t its opening statement, followed by the
United States. If India chooses not to avail itself of that right, the Panel shall invite the

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United States to present its opening statement first. Before each party takes the floor, it
shall provide the Panel and other participants at the meeting with a provisional written
version of its statement. In the event that interpretation is needed, each party shall
provide additional copies to the interpreters. Each party shall make available to the Panel
and the other party the final version of its statement, preferably at the end of the
meeting, and in any event no later than 5.30 p.m. of the first working day following the
meeting.
b. After the conclusion of the statements, the Panel shall give each party the opportunity to
ask questions or make comments, through the Panel. Each party shall have an
opportunity to answer orally these questions. Each party shall send in writing, within a
timeframe to be determined by the Panel, any questions to the other party to which it
wishes to receive a response in writing. Each party shall be invited to respond in writing
to the other party's questions within a deadline to be determined by the Panel.
c. The Panel may subsequently pose question s to the parties. The Panel shall send in
writing, within a timeframe to be determined by it, any questions to the parties to which
it wishes to receive a response in writing. Each party shall be invited to respond in
writing to such questions within a deadline to be determined by the Panel.
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to
present a brief closing statement, with the party that presented its opening statement
first, presenting its closing statement first.
Third parties

16. The Panel shall invite each third party to transmit to the Panel a written submission prior to
the first substantive meeting of the Panel with the parties, in accordance with the timetable
adopted by the Panel.
17. Each third party shall also be invited to present its views orally during a session of this first
substantive meeting, set aside for that purpose. Ea ch third party shall provide to the Panel the list
of members of its delegation in advance of this session and no later than 5.30 p.m. the previous
working day.
18. The third-party session shall be conducted as follows:
a. All third parties may be present during the entirety of this session.
b. The Panel shall first hear the arguments of the third parties in alphabetical order. Third
parties present at the third-party session and intending to present their views orally at
that session, shall provide the Panel, the parties and other third parties with provisional
written versions of their statements before they take the floor. In the event that
interpretation is needed, each third party shall provide additional copies to the
interpreters. Third parties shall make available to the Panel, the parties and other third
parties the final versions of their statements, preferably at the end of the session, and in
any event no later than 5.30 p.m. of the first working day following the session.
c. After the third parties have made their statements, the parties may be given the
opportunity, through the Panel, to ask the third parties questions for clarification on any
matter raised in the third parties' submissions or statements. Each party shall send in
writing, within a timeframe to be determined by the Panel, any questions to a third party
to which it wishes to receive a response in writing. Each third party shall be invited to
respond in writing to these questions within a deadline to be determined by the Panel.
d. The Panel may subsequently pose questions either orally or in writing to the third
parties. The Panel shall send in writing, within a timeframe to be determined by it, any
questions to the third parties to which it wishes to receive a response in writing. Each
third party shall be invited to respond in writing to such questions within a deadline to be
determined by the Panel.

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Panel consultation with experts

19. In the course of the proceedings, the Panel sh all determine if there is a need to seek expert
advice. In addressing matters concerning scientific and/or technical advice from experts
1, the
Panel shall have regard to the provisions of the DSU and may have regard, inter alia , to the
objective of conducting these proceedings in an efficient and timely manner and at a reasonable
cost. In such a case, the procedures described below shall apply.
20. Consistent with Article 13 of the DSU and Article 11.2 of the SPS Agreement, the Panel may
seek expert advice from experts and from international organizations, as appropriate.
21. The Panel may ask any relevant institutions, as well as the parties, for suggestions of possible
experts. Parties shall not engage in direct contact with the individuals suggested, for the purpose
of this dispute.
22. The Panel shall provide the parties with a list of possible experts, their curricula vitae and
declarations of potential conflicts of interest. In this declaration, each potential expert will be
instructed to disclose information which may include the following:
a. financial interests (e.g. investments, loans, shares, interests, other debts); business
interests (e.g. directorship or other contractual interests); and property interests
relevant to the dispute in question;
b. professional interests (e.g. a past or pres ent relationship with private clients, or any
interests the person may have in domestic or international proceedings, and their
implications, where these involve issues similar to those addressed in the dispute in
question);
c. other active interests (e.g. active participation in public interest groups or other
organisations which may have a declared agenda relevant to the dispute in question);
d. considered statements of personal opinion on issues relevant to the dispute in question
(e.g. publications, public statements);
e. employment or family interests (e.g. the possibility of any indirect advantage or any
likelihood of pressure which could arise from their employer, business associates or
immediate family members); and
f. any other relevant information.
23. Parties shall have the opportunity to comment and to make known any compelling objections
to any particular expert.
24. The Panel shall select the experts on the basis of their qualifications and the need for
specialized scientific expertise, and shall not select experts who have declared a conflict of
interest. The Panel shall decide the number of expe rts in light of the number and type of issues on
which advice shall be sought, as well as of the different areas on which each expert can provide
expertise.
25. The Panel shall inform the parties of the experts and international organizations it has decided
to consult, in accordance with the timetable adopted by the Panel. Experts shall act in their
personal capacities and not as representatives of any entity. However, should the Panel seek
advice from an international organization, the advice received shall be deemed to be received from
the international organization and not the individual staff members or representatives of the
international organization. Moreover, any staff members of such international organization that
attend a meeting with the Panel, shall be deemed to do so in a representative capacity, on behalf
of the respective international organization.

1 For the purpose of these Working Procedures, the term "expert" may be used to refer to individuals,
institutions, research bodies, or international organizations.

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26. The experts shall be subject to the DSB's Rules of Conduct for the Understanding on Rules
and Procedures Governing the Settlement of Disputes (WT/DSB/RC/1), a copy of which shall be
provided to them by the Panel.
27. The Panel shall prepare written questions for the experts. The experts shall be requested to
provide responses in writing within a time-period specified by the Panel. The experts shall be
requested to respond only to questions on which they have sufficient knowledge. The responses of
experts shall be part of the Panel's record but shall not be attached to the Panel report as
annexes. Copies of the responses shall be provided by the Panel to the parties, in accordance with
the timetable adopted by the Panel. The parties shall have the opportunity to comment in writing
on the responses from the experts and to pose written questions to the experts in advance of the
meeting, to be answered orally during such meeting.
28. The Panel may provide the experts, on a confiden tial basis, with relevant parts of the parties'
submissions, including exhibits, as well as with any additional information deemed necessary. The
experts shall have the opportunity to request, thro ugh the Panel, additional factual information or
clarifications from the parties, if it shall aid them in answering the Panel’s questions.
29. The Panel may schedule a meeting with the experts, prior to the second substantive meeting
with the parties. Prior to the Panel's meeting with the experts, the Panel shall ensure that:
a. the parties' comments on the experts' responses are provided to all experts;
b. each expert is provided with the other experts' responses to the Panel's questions; and
c. each expert is provided with advance questions from the parties to the experts, as
described in paragraph 30.b below, if any.
30. The Panel's meeting with the experts would be conducted as follows:
a. The Panel shall invite each expert to ma ke an opening statement. This statement may
include, but is not limited to, any clarification of their written responses to the Panel
questions requested by the Panel or the parties, or information complementary to these
responses. The experts that intend to ma ke an opening statement shall provide the
Panel with written versions of their statements, before they take the floor. The Panel
shall make available, to the other experts, and to the parties, each expert's written
statement, no later than 5.30 p.m. on the first working day following the meeting.
b. After the conclusion of the statements, the Panel shall give each party the opportunity to
ask the experts questions or make comments through the Panel. To facilitate this, each
party may send in writing in advance of the meeting, within a timeframe to be
determined by the Panel, any questions to the experts to which it wishes to receive an
oral response at the Panel's meeting with th e experts. Each expert shall be invited to
respond orally to the parties' questions and to react to the parties' comments.
c. The Panel may subsequently pose questions to the experts. The expert to whom the
question is addressed shall be invited to respond orally to the Panel's questions.
d. Once the questioning has concluded, the Panel shall afford each expert an opportunity to
present a brief closing statement.
e. The Panel may schedule additional meetings with the experts if necessary.
31. The Secretariat shall prepare a compilation of the experts' written replies to the Panel's
questions, as well as a full transcript of any meeting with the experts for inclusion in the record of
the Panel proceeding. This transcript shall not be annexed to the Panel report. The experts shall be
given an opportunity to verify, before the texts are finalized, the drafts of these texts to ensure
that they accurately reflect the information they provided. The parties shall likewise be given an
opportunity to verify that the transcript of any meeting with the experts accurately reflects the
parties' own interventions.

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Descriptive part

32. The description of the arguments of the parties and third parties in the descriptive part of the
Panel report shall consist of the executive summari es provided by the parties and third parties,
which shall be annexed as addenda to the report . These executive summaries shall not in any way
serve as a substitute for the submissions of the parties and third parties in the Panel's examination
of the case.
33. Each party shall submit an executive summary of its arguments as presented in its written
submissions and oral statements. The parties sh all submit the executive summaries of their
written submissions at the latest 10 calendar days following the delivery to the Panel of the written
submission. The parties shall submit the executiv e summaries of their oral statements, at the
latest 10 calendar days following the deadline for submission of responses to questions from the
Panel. The parties may also include their responses to questions in their executive summaries.
The Panel will not summarize in the descriptive part of its report, or annex to its report, the
parties' responses to questions. The total numbe r of pages of the executive summaries, all four
parts combined, shall not exceed 30 pages. Parties can request permission to file longer
summaries upon showing of good cause.
34. The third parties shall submit executive su mmaries of their written submissions and oral
statements within 7 calendar days from the date of the third-party session. The summary to be
provided by each third party shall incorporate it s written submissions and oral statement and shall
not exceed 5 pages in total.
Interim review

35. Following issuance of the interim report, each party may submit a written request to review
precise aspects of the interim report and request a further meeting with the Panel, in accordance
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no
later than at the time the written request for review is submitted.
36. In the event that no further meeting with the Panel is requested, each party may submit
written comments on the other party's written request for review, in accordance with the timetable
adopted by the Panel. Such comments shall be limited to commenting on the other party's written
request for review.
37. The interim report shall be kept strictly confidential and shall not be disclosed.
Service of documents

38. The following procedures regarding service of documents shall apply:
a. Each party and third party shall submit all documents to the Panel by filing them with
the DS Registry (office No. 2047).
b. Each party and third party shall file 6 paper copies of all documents it submits to the
Panel. However, when exhibits are provided on CD-ROMS/DVDs, 4 CD-ROMS/DVDs and
6 paper copies of those exhibits shall be filed. The DS Registrar shall stamp the
documents with the date and time of the filing. The paper version shall constitute the
official version for the purposes of the record of the dispute.
c. Each party and third party shall also provide an electronic copy of all documents it
submits to the Panel at the same time as the paper versions, preferably in Microsoft
Word format, either on a CD-ROM, a DVD or as an e-mail attachment. If the electronic
copy is provided by e-mail, it should be addressed to *****@wto.org, and cc'd to
*****.*****@wto.org, *****.*****@wto.org, *****.*****@wto.org,
and*****.*****@wto.org. If a CD-ROM or DVD is provided, it shall be filed with the
DS Registry.
d. Each party shall serve any document submitted to the Panel directly on the other party.
Each party shall, in addition, serve on all third parties its written submissions in advance

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of the first substantive meeting with the Panel. Each third party shall serve any
document submitted to the Panel directly on the parties and all other third parties. Each
party and third party shall confirm, in writing, that copies have been served as required
at the time it provides each document to the Panel.
e. Each party and third party shall file its do cuments with the DS Registry and serve copies
on the other party (and third parties where appropriate) by 5.30 p.m. (Geneva time) on
the due dates established by the Panel.
f. The Panel shall provide the parties with an electronic version of the descriptive part, the
interim report and the final report, as well as of other documents as appropriate. When
the Panel transmits to the parties or third parties both paper and electronic versions of a
document, the paper version shall constitute the official version for the purposes of the
record of the dispute.

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ANNEX A-2
ADDITIONAL WORKING PROCEDURES FOR THE PROTECTION
OF STRICTLY CONFIDENTIAL INFORMATION
1. Pursuant to paragraph 3 of the Panel's Working Procedures adopted on 15 March 2013, the
Panel adopts the following additional procedures that shall apply to all strictly confidential
information (SCI) submitted in the course of thes e proceedings. These procedures are intended to
supplement but not replace the provisions of Ar ticle 18.2 of the DSU and paragraph 2 of the
Panel's Working Procedures.
2. These procedures apply to any SCI, defined as information (i) not otherwise available in the
public domain, and (ii) clearly designated as SCI by the United States or India in their submissions
to the Panel.
3. A party submitting SCI in any written submission (including in any exhibits) shall inform the
Panel and the other party (and the third parties where applicable) of precisely which information
the party is designating as SCI by enclosing the information in double brackets and including on
the cover page and each page of the relevant document the statement: "Contains SCI". In the
event that an entire exhibit is designated as SCI, the party submitting such exhibit shall clarify this
by including the following statement on the cover page: "This Exhibit is SCI". The Panel will not
disclose in its Report any information designated as SCI under these procedures. The Panel may,
however, make statements or conclusions based on such information.
4. Before the Panel circulates its Report to Members, the Panel shall give each party an
opportunity to ensure that the Report does not contain any information that it has designated as
SCI. The removal of any designated SCI by the Pa nel will be indicated in the Report through the
use of double brackets.
5. Each party and third party shall keep confidential SCI submitted by another party or third party
and shall use such SCI only for purposes of the current proceeding or future proceedings under the
DSU with respect to India – Measures Concerning the Importation of Certain Agricultural Products
(DS430).
6. Submissions and exhibits containing information designated as SCI under these procedures will
be included in the Panel record forwarded to the Appellate Body in the event of an appeal.

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ANNEX B
ARGUMENTS OF THE PARTIES
UNITED STATES
Contents Page
Annex B-1 Executive summary of the first written submission of the United States B-2
Annex B-2 Executive summary of the opening and closing statements of the United States
at the first substantive meeting of the Panel
B-8
Annex B-3 Executive summary of the second written submission of the United States B-12
Annex B-4 Executive summary of the opening oral statement of the United States at the
second substantive meeting of the Panel
B-21
INDIA
Contents Page
Annex B-5 Executive summary of the first written submission of India B-27
Annex B-6 Executive summary of the opening and closing statements of India at the first
substantive meeting of the Panel
B-35
Annex B-7 Executive summary of the second written submission of India B-39
Annex B-8 Executive summary of the opening and closing statements of India at the
second substantive meeting of the Panel
B-44

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ANNEX B-1
EXECUTIVE SUMMARY OF THE FIRST WRITTEN SUBMISSION OF THE UNITED STATES
I. INTRODUCTION
1. A fundamental requirement of the SPS Agreement is that a Member's SPS measures be
based on scientific principles and scientific evidence. A Member generally complies with these
obligations by basing its measures either on relevant international standards, guidelines, or
recommendations, or on a risk assessment. With respect to the measures at issue here –
measures that have been in place for over six years – India has done neither.
2. India's measures prohibit the importation of various agricultural products from countries that
report outbreaks in poultry and wild birds of what is known as NAI, including a subset known as
LPNAI. The OIE, the organization whose standards, guidelines and recommendations the
SPS Agreement designates as the international standards, guidelines and recommendations for
animal health and zoonoses, has issued recommendations for reporting NAI and for the safe trade
of poultry and poultry products with respect to NAI. Those scientifically based recommendations
explicitly disclaim the types of import prohibitions India maintains.
3. Moreover, India treats its own products differently from imported products. India does not
engage in surveillance activities that are likely to detect LPNAI, a disease, which if found in other
countries, triggers application of its import prohibitions. India also does not impose any
comparable restrictions on the internal movement of the products that it prohibits for import.
4. In sum, India has failed to comply with the most basic obligations in the SPS Agreement,
and no detailed scientific analysis is required to reach this conclusion.
II. SUMMARY OF ARGUMENTS
5. This dispute can be distilled to a few central facts that clearly establish India's breaches of
its WTO obligations. Specifically, there are facts th at establish that India needed to undertake a
risk assessment and failed to do so; that India's measures hold the exports of other Members to
severe requirements that India's own products ca n ignore; and that India was obligated to notify
its measures and allow a reasonable interval before putting them in force, but did not do so.
III. BIOLOGY OF AVIAN INFLUENZA
6. AI does not refer to a single or homogenous disease, but rather different diseases caused by
an assortment of different viruses. Some variants of AI viruses cause HPAI, a highly contagious
disease that can decimate poultry flocks. There is also LPAI, a much milder, often asymptomatic
disease in poultry. Most AI strains do not affect humans because they do not readily transmit to
humans. Human infection has typically occurred in circumstances involving the close handling and
contact of infected birds.
7. With respect to the parties' AI situations, th e United States has detected LPNAI – H5 and H7
subtypes of LPAI – in poultry. India, however, has not notified a single outbreak of LPNAI. In
contrast, India has detected over 90 outbreaks of HPAI during a period in which the United States
has had no HPAI outbreaks.
IV. INTERNATIONAL STANDARDS FOR AVIAN INFLUENZA CONTROL
8. The OIE Code sets forth recommendations for the control of AI. These recommendations
recognize distinctions between HPAI and LPAI and that control measures will need to be tailored to
the specific product at issue. Of particular note, the OIE Code explicitly provides that most of the
products that India prohibits from import, such as poultry meat and eggs, can be safely imported
from territories reporting LPNAI through the use of the proper control measures.

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9. The OIE Code's system for the control of AI can be roughly divided into five components for
the purpose of this dispute: (i) proper reportin g; (ii) classifying a territory; (iii) applying the
appropriate control measure based on the classification of that territory; (iv) zoning to ensure the
impact of restrictions is appropriately tailor ed; and (v) surveillance. The fifth component is
essential to ensuring the prior four mechanisms function properly.
10. When it comes to its own exports, India invokes the OIE Code to justify their safety. First,
after it has suffered an outbreak of HPAI, India ro utinely argues that it has regained NAI freedom.
Second, India recognizes compartments within its own territory that it holds out as being entitled
to take advantage of the OIE's recommendations regarding zoning.
V. INDIA'S MEASURES
11. In the fall of 2006 – without prior warning – India proceeded to prohibit the import of
various U.S. poultry and pork products. On February 2, 2007, months after U.S. imports have
been subject to import prohibitions, India finally published a document in the Gazette of India
Extraordinary, S.O. 102(E), which reflected the measures prohibiting U.S. imports on account of
LPAI. Other notifications subsequently followed. The most recent notification issued by India's
DAHD is S.O. 1663(E). Unlike prior DAHD notifications, it has no set expiration date. These
notifications are issued pursuant to the India' Livestock Importation Act, 1898 (9 of 1898).
12. Before initiating this dispute, the United States made every reasonable effort to resolve its
concerns. In addition to bilateral talks, discussions in the SPS Committee, and offers for technical
discussions, the United States also asked India to provide an explanation as the reasoning behind
its measures pursuant to SPS Article 5.8. Over 14 months have passed since this request, yet
India has not provided the requested explanations.
VI. INDIA'S INTERNAL AVIAN INFLUENZA CONTROL MEASURES
13. India's surveillance and control policies for AI are set forth in DAHD's AI Action Plan. This
plan does not mandate surveillance necessary for effective detection of LPNAI, resulting in a failure
to apply any controls on the movement of products due to LPNAI in India. Moreover, India's AI
Action Plan only imposes control measures that extend a few kilometers from the site of an HPAI
outbreak. Accordingly, occurrences of NAI in India will not result in restrictions on the movement
of domestic products within India provided the pr oducts come from locations outside of the small
zone where these control measures are applied.
VII. STANDARD OF REVIEW
14. DSU Article 11 provides that a panel should "make an objective assessment of the matter
before it, including an objective assessment of th e facts of the case and the applicability of and
conformity with the relevant covered agreements." Further, since there is no risk assessment in
this dispute, there is also no scientific evidence needing scrutiny with expert assistance.
VIII. LEGAL CLAIMS
A. India's Measures Are Subject To The SPS Agreement

15. Because India's measures are sanitary measures as defined under Annex A of the
SPS Agreement (their objectives include those provided for in subparagraphs (a) through (c)), and
because the measures affect international trade by imposing import prohibitions, the measures are
subject to review for consistency with the SPS Agreement.
B. India Breached Articles 5.1, 5.2, And 2.2 Of The SPS Agreement By Failing
To Undertake A Risk Assessment And Failing to Consider The Relevant
Scientific Evidence
16. Because India has stated that its measures were adopted to address risks associated with
both diseases and food safety, the SPS Agreemen t obliges India to base its measures on both
types of risk assessment – a Pest Risk Assessmen t and a Food Safety Risk Assessment. India has
done neither. The United States has requested fo r India to provide a risk assessment without any

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success. As India's measures are not based on a risk assessment, India is in breach of SPS
Article 5.1. Additionally, without a risk assessment, India could not have taken into account the
factors noted in SPS Article 5.2, thereby breaching that provision as well.
17. With respect to the document that India provided at the October 2010 meeting of the SPS
Committee – which India subsequently disavowed as a risk assessment – it does not constitute a
Pest Risk Assessment or a Food Safety Risk Asse ssment either. That document is deficient with
respect to all of the elements required for either assessment.
18. A finding that SPS Article 5.1 or 5.2 has been breached results in a violation of Article 2.2.
Therefore, in the absence of any risk assessment, and, thus, in the absence of sufficient scientific
evidence, supporting India's measures, India also breaches Article 2.2. India's ban on the
identified avian products, moreover, is not mainta ined with sufficient scientific evidence because
there is no scientific evidence that these products may not be safely traded under any
circumstances. To the contrary, the scientific eviden ce establishes that LPAI virus is not present in
poultry meat or inside eggs and thus LPAI cannot be transmitted through these products.
19. The United States notes that India may not invoke SPS Article 5.7 to avoid its obligations
under Articles 5.1 and 5.2. Although it is India's burden to establish such a defense, the facts here
are sufficiently defined as to confirm the unavailability of Article 5.7. In particular, relevant
scientific evidence exists and it does not support the imposition of import prohibitions.
C. India Breached Article 3.1 By Failing to Base Its Measures on the OIE Code
20. SPS Article 3.1 imposes a positive obligation on a Member to base its measures on
international standards unless the Member's measure is justified through another provision of the
SPS Agreement. The relevant international standards in this dispute, per Annex A of the
SPS Agreement, are those set out in the OIE Code.
21. A defining characteristic of the OIE Code is that it distinguishes between HPNAI and LPNAI
with respect to trade. India's measures refuse to make such a distinction and impose a complete
ban for certain products regardless of whether the country is reporting HPNAI and LPNAI. In short,
the OIE Code allows trade; India's measures do not. Under these circumstances, there can be no
dispute that India's measures are not based on the OIE Code.
22. India's failure to abide by Article 3.1 is not excused by Article 3.3. India cannot avail itself of
this provision because it lacks a risk assessment. Moreover, India cannot invoke Article 3.3 as a
result of its ALOP. Although India has not elucidated its ALOP, it may be possible to infer it from
measures India is applying. India does not require surveillance that would effectively detect LPNAI
and, even with respect to the more dangerous HPAI, imposes only a simple quarantine zone of a
few kilometers. Viewed together with the minimal restrictions on movement of domestic products
that India imposes following domestic HPAI outbreaks, it is clear that measures based on the OIE
international standard would achieve India's ALOP.
D. India Breached Articles 5.6 and 2.2 By Maintaining Sanitary Measures That
Are More Trade Restrictive than Requir ed to Achieve its Appropriate Level
of Protection
23. A complainant must establish three cumulative elements for a breach of SPS Article 5.6.
First, there must be an alternative measure that "is reasonably available taking into account
technical and economic feasibility." Here, the OIE Code provides a reasonably available
alternative. Second, the measure must achieve "the Member's appropriate level of sanitary or
phytosanitary protection." The OIE Code achieves India's ALOP because some products India
prohibits are not vectors for transmission, and in any case, the OIE control measures have proven
effective. Also, the OIE Code's provisions for AI containment, and trade in products originating
outside the area where AI was detected, through the use of zoning and compartmentalization, is
consistent with India's measures with respect to domestic products, which impose controls and
restrictions on products only within a limited area following an AI outbreak. Third, the measure
must be "significantly less restrictive to trade than the SPS measure contested." As the OIE Code
allows for trade from countries reporting LPNAI detections and India's measures do not, the OIE
Code is less trade restrictive. Thus, all three elements are satisfied.

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24. A breach of SPS Article 5.6 may also indicate a breach of Article 2.2. The first component of
Article 2.2 is that a measure be "applied only to the extent necessary to protect human, animal or
plant life or health …" A finding under Article 5.6 necessitates a determination that a viable
alternative measure that achieves a Member's ALOP exists and is less trade restrictive. The
existence of such an alternative measure – and the concomitant finding that the Member has
declined to adopt it – may lead to the conclusi on that a Member has adopted a measure that is
applied to a greater extent than necessary and is accordingly inconsistent with Article 2.2.
E. India Has Breached Its Obligations Under Article 6 of the SPS Agreement
25. India's measures ban products from all parts of a country whenever NAI is detected
anywhere in the country. This precludes the application of AI restrictions on a regionalized basis,
as provided for in the OIE Code, and as required under SPS Article 6.
26. By applying its measures exclusively on a country-basis, India breaches both the first and
second sentences of Article 6.1. First, India fail s to ensure that its measures are adapted to the
sanitary characteristics of the areas from which covered products originate, contrary to the first
sentence of Article 6.1. Even if there has been no detection of NAI within thousands of kilometers
of the area from which covered products originate, and regardless of how rigorous a country's AI-
control mechanisms are, India bans the shipment of those products based on a single detection of
NAI anywhere in the country of origin.
27. Second, by applying its measures on a country-basis, India has failed to take into account
the considerations specified in the second sentence of Article 6.1. India's measures preclude it
from accounting for "the level of prevalence" ( i.e., the lack of prevalence) of NAI in areas within a
country that are far from a detection. Under its measures, India is also precluded from accounting
for "the existence of [disease] eradication or control programmes." Also contrary to the second
sentence of Article 6.1, India has not taken into account the relevant international AI guidelines in
OIE Code Chapter 10.4, which provide for the applic ation of AI-related trade restrictions at the
zone or compartment level when appropriate surveillance, control, and biosecurity measures are in
place.
28. India's measures are also contrary to Article 6.2. The first sentence of Article 6.2 requires
Members to recognize the concept of disease-free areas. Yet India's measures explicitly preclude
recognition of such areas upon notification of a detection of NAI anywhere in the territory of a
Member. The second sentence of Article 6.2 requires countries to determine disease-free areas
"based on factors such as geography, ecos ystems, epidemiological surveillance, and the
effectiveness of sanitary or phytosanitary controls." By precluding recognition of disease-free
areas with respect to AI, India's measures preclude it from determining HPAI-free and LPNAI-free
areas based on these factors, contrary to Article 6.2's second sentence.
29. Further, India's country-based application of its measures is contrary to Article 3.1, which
provides that "Members shall base their sanitary or phytosanitary measures on international
standards, guidelines or recommendations, where they exist, except as otherwise provided for in
this Agreement, and in particular in paragraph 3. " India's measures are not applied on a zone or
compartment basis, as provided for in the OIE Code, and India has no scientific justification for its
more-trade-restrictive approach. Further, India's country-based measures cannot be justified by
virtue of India's ALOP, which may in the circumstances be inferred from India's measures
governing trade in domestic products following domestic AI detections—measures that do not
restrict trade in domestic products beyond the ten-kilometer zone surrounding an AI detection.
F. India Has Acted Inconsistently With Its Obligations Under Article 2.3 of the
SPS Agreement by Treating Imported Products Differently from Domestic
Products Without Justification
30. When it comes to regulating trade in its own products on account of AI, India takes a
diametrically different approach from that which it applies to imported products. India's measures
therefore serve, not as a buffer against AI, but as a means of arbitrarily or unjustifiably
discriminating against imported products and applying a disguised restriction on trade. In so doing,
India breaches SPS Article 2.3.

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31. India's arbitrary or unjustifiable discrimination against imports, in breach of the first
sentence of Article 2.3, takes two key forms. Firs t, India imposes a ban on all imports of covered
products from an exporting country whenever there is a notification of AI occurring anywhere in
the country. By contrast, when India detects AI within its own borders, it imposes no controls on
the movement of these products within its own borders, aside from a ban on the movement of
such products to or from a ten kilometer zone surrounding the detection.
32. Second, India bans products from countries that notify detections of LPAI. Yet India has not
put in place mechanisms that would provide effect ive detection of instances of LPNAI within its
own territory. As a result, despite having had over ninety outbreaks of the far rarer HPAI since
2006, India has never notified a detection of LPAI. India's reliance on the detection of LPNAI thus
only affects imported products. India's measures only serve to block imports from countries that
have taken steps necessary to detect LPNAI effectively.
33. India's measures not only run contrary to the anti-discrimination discipline in the first
sentence of Article 2.3, but they also constitute a disguised restriction on trade, in breach of the
second sentence. Various facts, taken together, es tablish that India's measures constitute such a
disguised restriction, including: India's application of drastically more stringent measures to
foreign products than to domestic products; India's shifting position on whether its measures are
justified by OIE guidelines or a risk assessment; India's failure to offer either a risk assessment or
scientific evidence that would justify LPAI-based import bans or India's application of AI measures
to entire countries; and India's aborted attempt to justify its measures by taking analysis from a
risk assessment drafted by another country in support of a different conclusion.
G. In the Alternative, India Could be Viewed as Having Breached Its
Obligations Under Article 5.5 of the SPS Agreement, with a Resulting
Consequential Breach of Article 2.3
34. To the extent that transmission of AI by foreign agricultural products is viewed as a
"different situation" than the transmission of AI by India's domestic agricultural products, India is
maintaining arbitrary or unjustifiable distinctions in its appropriate levels of sanitary protection in
different situations, and these distinctions result in discrimination or a disguised restriction on
international trade.
35. As India's AI measures with respect to imported products are far more restrictive than those
applied with respect to domestic products, the level of protection that would be inferred from the
measures applied to imported products would far exceed that which would be inferred from India's
measures for domestic products. Further, the maintenance of different levels of protection based
on whether products presenting the same risks are imported or domestic would be unjustifiable.
Moreover, in the circumstances here, the measures that India applies to imported products
amount to a disguised restriction on trade.
36. Accordingly, if the Panel were to view transm ission by way of foreign and domestic products
as different situations for purposes of Article 5.5, India's measures would be contrary to
Article 5.5. Moreover, as a finding of a breach of Article 5.5 necessarily implies a breach of
Article 2.3, first sentence, or Article 2.3, second sentence, then considering transmission by way of
foreign and domestic products to be different situations for purposes of Article 5.5 leads to the
conclusion that India's measures result in a consequential breach of Article 2.3.
H. India Has Acted Inconsistently With Its Obligations Under SPS Agreement
Article 7 and Annex B By Failing to Notify Properly Its AI Restrictions
37. India breached the obligations in SPS Agreement Article 7, and Annex B, paragraphs 2
and 5(a)-(d). India notified S.O. 1663(E) to the WTO almost three months after it took effect, and
published S.O. 1663(E) the day it took effect. This prevented other Members from having a
meaningful opportunity to provide comments.

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I. India Has Breached GATT Article XI
38. India has breached GATT Article XI because India's measures that are inconsistent with the
SPS Agreement constitute import prohibitions or restrictions other than duties, taxes, or other
changes.
IX. INDIA'S PRELIMINARY RULING REQUEST IS WITHOUT MERIT

39. Contrary to what India argues in its Preliminary Ruling Request, the U.S. Panel Request
identifies the measures and claims in accordance with DSU Article 6.2. With respect to measures,
it clearly identifies the measures at issue: India's import restrictions imposed on countries
because of NAI. It also cites specific legal instruments that reflect these measures, thus providing
additional clarification. The United States has done so notwithstanding India's failure to respond to
the U.S. request under SPS Article 5.8. With resp ect to claims, the Panel Request identifies the
precise treaty provisions at issue, not simply the parent articles. It also provides a textual
explanation after each cited provision as to the nature of the breach. It even previews certain
arguments. The Panel Request includes more information about the U.S. claims than is legally
required. It provides fair notice to India and othe r Members of both the specific measures at issue
and the legal basis of the complaint.
X. CONCLUSION
40. The United States respectfully requests the Panel to find that India's measures are
inconsistent with India's obligations under the GATT 1994 and the SPS Agreement. The United
States further requests, pursuant to DSU Article 19.1, that the Panel recommend that India bring
its measures into conformity with the GATT 1994 and the SPS Agreement.

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ANNEX B-2
EXECUTIVE SUMMARY OF THE OPENING AND CLOSING STATEMENTS
OF THE UNITED STATES AT THE FIRST SUBSTANTIVE MEETING OF THE PANEL
I. INTRODUCTION
1. India's measures do not conform to the OIE Code. Most notably, the Code does not
recommend imposing a ban on imports on account of LPNAI. In fact, the OIE Code explicitly
provides that most of the products affected by India's measures can be safely traded with respect
to avian influenza. And the Code allows for zoning in recognition of the geographic limitations of AI
outbreaks and efficacy of control measures to minimize trade disruptions even further. Despite the
passage of over six years since the adoption of the measures, India has still not conducted a risk
assessment that would be needed to justify a departure from the OIE Code, has not adopted any
measures that allow for regionalization with respect to avian influenza, and has not properly
notified its measures.
2. What India has done during those six years is allow its domestic producers to engage in
poultry trade without meaningful LPNAI restrictions, while imposing trade bans on producers from
foreign countries whenever they notify the presen ce of LPNAI. The discrimination is exacerbated
by India's failure to require the sort of systemat ic surveillance testing used elsewhere to detect
LPNAI, prompting resulting notifications to the OIE. In short, India's measures fail to comply with
some of the most basic obligations in the SPS Agreement.
II. INDIA'S MEASURES CONTRADICT THE OIE CODE
A. United States relies on what is in the OIE Code
3. The United States and India agree that the OIE Code is the relevant international standard
for purpose of applying the SPS Agreement to Indi a's measures. An examination of the plain text
of the OIE Code in comparison to India's measur es shows that they do not conform to the Code.
India's measures prohibit the importation of products, while the OIE Code provides that these
same products – with respect to the risk of avian influenza – can be safely imported.
4. The United States does not understand how India could assert that the OIE Code states
anything differently. To the extent that India attempts to extrapolate from OIE reporting
requirements to OIE-recommended restrictions, India's approach has no basis in the text of the
OIE Code, or otherwise. In fact, a delegate of the OIE at a 2007 WTO Committee meeting
explained the important difference between OIE reporting requirements and OIE-recommended
restrictions. In short, what the OIE Code says is that while LPNAI outbreaks should be reported,
products from reporting countries can be safely imported.
B. India argues based on what is absent from the OIE Code
5. India imports into the OIE Code something that is said nowhere – that it recommends bans
when LPNAI is detected in poultry. In other word s, since the Code does not expressly claim that
India cannot use notifications to impose bans, its measures conform to the OIE Code and are
entitled to a presumption of consistency under Article 3.2 of the SPS Agreement. As an initial
matter, we think this approach puzzling. India's reading of "conform to" appears to be "is not
expressly prohibited by." That reading is not in keeping with the ordinary meaning, in context, and
in light of the object and purpose of the SPS Agreement. If India chooses measures that are
different from, or not found in, the OIE Code, then those measures do not "conform to" the
relevant international standards. From what we can discern, India's approach is based on three
assumptions that have no support in either the OIE Code or the SPS Agreement.
6. First, India asserts the various recommendati ons in the OIE Code are but options by which
India can decide how to best achieve its appropriate level of protection, or "ALOP." Thus, according
to India, it has chosen the option of a ban, which achieves a purportedly higher ALOP than the

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control measures that constitute most of the OIE Code chapter on avian influenza. But there is
nothing in the OIE Code that suggests its recommendations amount to some sort of menu that
sets out options for achieving varying degrees of protection.
7. Second, India claims each recommendation of th e OIE Code should be read in isolation from
the rest of the OIE Code. Nothing in the OIE Code suggests that should be the case. Indeed, the
provision India cites as recommending a ban, Article 10.4.1.10, is located in a section of the avian
influenza chapter whose heading is "General Provisions." As is evident from a cursory review,
many of the provisions in this section are meant to impart meaning to others.
8. To justify its approach, India miscons trues the Appellate Body's findings in EC – Hormones.
India incorrectly asserts that each recommendation must be read individually because to do
otherwise would make them mandatory contrary to the Appellate Body findings. The Appellate
Body made no findings that international standards are to be read in isolation. It found in pertinent
part that "an SPS measure that conforms to an international standard … would embody the
international standard completely and, for practical purposes, converts it into a municipal
standard." Far from finding that a standard may be followed piecemeal, the Appellate Body found
it must be adopted "completely" to obtain the rebuttable presumption of consistency.
9. Finally, India argues that Article 10.4.1.10's admonishment not to impose bans on account
of NAI in wild birds is actually a recommendation to impose bans on poultry products. India's logic
is flawed. A road sign that recommends driving carefully when it rains does not mean a driver is
recommended to drive carelessly when conditions are dry. India's argument is particularly
misplaced when one considers that the OIE Code is meant to be used practically by veterinary
authorities. Clarity as to the precise recommendations is critical. Where the OIE Code recommends
prohibitions, it explicitly so provides.
10. In addition to having important implications for Article 3.2 of the SPS Agreement, the fact
that India's measures are inconsistent with the OIE Code is also important for the application of
Article 3.1. In this instance, the failure of India's arguments to establish that its measures conform
to the OIE Code also establishes that India has not based its measures on international standards,
thereby breaching Article 3.1. Because India's argu ments rely only on Article 10.1.4.10 of the OIE
Code – and because India's interpretation of th at provision cannot be sustained – India has no
basis for any assertion that its measures are based on the OIE Code.
III. INDIA'S MEASURES RESULT IN ARBITRARY OR UNJUSTIFIABLE
DISCRIMINATION
11. There are two basic contrasts between the avian influenza measures that India applies to
imported products and those that India applies with respect to domestic products:
1) India imposes import bans when an exporting country reports detections of
LPNAI. Yet India does not have in place surveillance mechanisms capable
o f r e l i a b l y d e t e c t i n g L P N A I w h e n i t o c c u r s i n I n d i a . H e n c e , w h e n L P N A I
occurs in India, no restrictions on domestic trade are imposed.
2) When either HPAI or LPNAI is detected in an exporting country, India
applies an import ban covering the entirety of that country. By contrast,
when NAI is detected in India—really HPAI, as India does not detect
LPNAI—India restricts trade in products only from a limited zone.
There is no valid reason for India's disparate treatment of foreign and domestic products following
NAI incidents in their country of origin. This disparate treatment breaches Article 2.3.
12. Regarding the first contrast, India argues that it does not have LPNAI. However, India has
had over 90 outbreaks of the far rarer HPAI. As a matter of epidemiology it is not a reasonable or
scientifically valid hypothesis to suggest that India does not have LPNAI. Further, the
United States is submitting a study noting the detection of H5 and H7 antibodies in domestic ducks
in India. Most crucially, however, India does not have in place a system for reliably detecting
LPNAI. Without a valid detection system, India is not in fact applying measures to contain LPNAI
when it occurs in India. India does not dispute that it has no mandatory requirement for the
conduct of random laboratory tests in apparently healthy flocks for LPNAI, even though LPNAI's

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lack of symptoms makes visual observation inadequate for its detection. As India is not even
taking steps necessary to detect LPNAI, it is contradictory for India to claim that the disease is so
serious that it must impose import bans on poul try products when other countries detect LPNAI.
This is particularly so because the products that India bans are not vectors for transmission of the
disease, and the OIE has found they can be safely traded even after detections of LPNAI.
13. Regarding the second contrast, it makes no sense for India to say that, whereas it will allow
trade of domestic products from areas only 10.1 kilometers from an HPAI detection, its lack of
knowledge of what happens in other countries prevents it from even considering whether other
countries' surveillance and control systems are strong enough to contain outbreaks in those
countries. If India thinks that it can control NAI, even in HPAI form, Article 2.3 requires it to at
least admit the possibility that products from other countries with NAI detections can be safely
traded in the same way that Indian products are traded following an HPAI outbreak.
14. India tries to argue that its purported abse nce of LPNAI gives it carte blanche to impose
differential measures on domestic and imported products. Its argument is simply false. This is not
a situation where an importing Member has no need to worry about domestic spread of a disease
because it exists only in another part of the world. India itself believes that it has a significant risk
for domestic LPNAI incidents. India cannot plausibly claim that its conditions are so dissimilar from
those elsewhere that a lack of effective domestic surveillance and control measures, alongside
measures for imported products far more string ent than recommended by OIE guidelines, simply
reflect differences in disease conditions between India and elsewhere.
IV. INDIA'S MEASURES CONSTITUTE A DISGUISED RESTRICTION ON
INTERNATIONAL TRADE
15. India's measures result in an additional breach of Article 2.3 because they amount to a
disguised restriction on trade. This can be inferred from the totality of how these measures
operate, including the ways that they discriminate against imported products— i.e., the forms of
discrimination discussed in the context of the U.S. claim under the first sentence of Article 2.3.
There are, moreover, further indicia that India's discriminatory measures constitute disguised
restrictions on international trade. The Australia – Salmon panel relied on considerations similar to
those here to identify a disguised restriction under Article 5.5.
V. INDIA'S MEASURES DO NOT PROVIDE FOR REGIONALIZATION
16. India's measures do not allow for regionalization. S.O. 1663(E) on its face precludes imports
of listed products from a "country" if that country has reported NAI. The United States has not
been silent over the years about the need for India to apply its AI measures on a less-than-
country-wide basis. India has refused. In 2007, India told the United States that it would "insist on
country freedom" and that its conditions for import are "uniform." India's failure to apply its AI
measures on a less-than-country-wide basis has been mentioned repeatedly in SPS Committee
meetings, and India's delegate has never indicated that this complaint was ill-founded. Just last
year, India's delegate to the OIE stated that for India "the concept of zoning looked irrelevant as
far as avian influenza was concerned."
17. India's unwillingness to even "recognize the co ncept[] of … disease free areas" with respect
to AI is what places India in breach of Article 6. 2 of the SPS Agreement. Similarly, by refusing to
recognize the possibility that an NAI incident anywhere in a large country like the United States
may not warrant a ban on all products from the entire country, India is not ensuring that its
measures "are adapted to the sanitary … characteristics of the area[s]" from which products
originate, in violation of Article 6.1. India is in breach of Article 6, regardless of how much or how
little information any other Member might have submitted to India. India argues that it need not
recognize the differences in the sanitary characteristics of areas from which a product is exported,
while it is free to treat different areas in India differently based on the different sanitary
characteristics of those areas, by asserting that it has information about domestic disease
outbreaks, but not about foreign outbreaks. India' s approach would mean that, in effect, a failure
to recognize disease-free areas is never discriminatory. India's approach cannot be reconciled with
the text of Articles 6.1 and 6.2.

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VI. INDIA CANNOT EXCUSE ITS FAILURE TO COMPLY WITH ARTICLE 7 AND ANNEX B
18. India's only response to the claim under Article 7 is that its measures conform to
international standards. Yet India's measures do not conform to international standards.

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ANNEX B-3
EXECUTIVE SUMMARY OF THE SECOND WRITTEN SUBMISSION OF THE UNITED STATES
I. INTRODUCTION

1. The key issues in this dispute remain straightforward. India prohibits the importation of
various agricultural products from countries that report outbreaks of NAI, but has offered no risk
assessment in support of its measures. India's response is a contorted and untenable
interpretation of the relevant standards in the OIE Code. Contrary to India's arguments, its
measures simply ban trade in a situation where the Code provides no basis for a ban. The Panel
should thus find India in breach of the WTO obligations at issue in this dispute.

II. LEGAL ARGUMENT

A. India's Measures Do Not Conform To The OIE Code And Therefore Do Not Fall
Within Article 3.2 Of The SPS Agreement

2. India's defense is its assertion that its measures conform to the OIE Code. India asserts that
the OIE recognizes its prerogative to set its ALOP and has drafted the OIE Code with options that
satisfy India's chosen ALOP. But India's measures fundamentally depart from the OIE Code by
imposing import prohibitions. With respect to the SPS Agreement, India asserts that it is entitled
to a presumption of conformity with its obligations because its measures incorporate those ALOP-
consistent aspects of the OIE Code. This assertion is also incorrect.

1. The OIE's Recommendations for Avia n Influenza Do Not Reflect Distinct
ALOPs

3. The United States notes that India's assertio n that the OIE Code seeks to achieve different
ALOPs is at odds with the OIE's own guidance regarding the use of the OIE Code contained in the
User's Guide. This guidance indicates that (1) the recommendations are designed to prevent the
disease from entering into the country and thus to achieve an optimal level of security; (2) the
recommendations may take into account the nature of the product, as seen throughout OIE
Chapter 10.4 where there are distinct recommendations for different products; and (3) the animal
health status of the exporting country may be a factor to be taken into account with respect to the
various recommendations, but the exporting country's animal health status is not an ALOP. In
short, the recommendations in the OIE Code are designed to achieve a single, consistent ALOP,
i.e., an optimal level of animal health security.

4. India alleges that the OIE Code (i) recognizes India's prerogative to sets its own ALOP; (ii)
that the exporting status of a country is an ALOP; and (iii) the admonition in a particular
recommendation, Article 10.4.1.10, not to impose import prohibitions in poultry products on
account of NAI detections in wild birds somehow also means ban should be undertaken when NAI
is detected in poultry. India cannot substantiate any of these allegations.

5. With respect to India's first assertion, the WT O recognizes the rights of Member to set their
own ALOP; international organizations do not have that role. Where a Member chooses measures
that achieve a higher ALOP than international standards provide, the Member has the obligation to
ensure that the measure is supported by scientific evidence. The User's Guide to the OIE Code
takes a similar approach. For the second assertion, India does not explain how it can be reconciled
with the specific text in the OIE Code. India's so-called condition of entry is not an ALOP, but
rather a factor to be taken into account in applying any measure. With respect to India's third
assertion, India cannot reconcile its position against the text of Article 10.4.1.10. Moreover, it is
also legally untenable for India to pick only certain aspects of OIE recommendations and
successfully invoke SPS Article 3.2.

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2. India Cannot Conform with the International Standard by Picking and
Choosing from Among OIE Recommendations

6. India asserts conformity with the OIE Code on the basis that its measures incorporate some
elements of the OIE Code. This argument has no merit. Simply because the Code does not
specifically forbid certain aspects of India's measure cannot amount to "conformity": international
standards generally recommend control measures, not what should be avoided. India – rather
than adopting portions of the OIE Code – has meas ures that explicitly contradict it. Second, the
United States does not agree with India's stated legal position regarding the meaning of "conform
to international standards" under Article 3.2.

7. India is incorrect in asserting that its measures may "conform" for the purposes of
Article 3.2 with the relevant international standard when the measure is not fully consistent with it.
The Appellate Body in EC – Hormones found that anything less than total adoption precludes the
Member from obtaining the rebuttable presumption of consistency under Article 3.2.

8. India's argument that international standards under the SPS Agreement are
"recommendatory" and not binding is a non sequitur . If a Member chooses not to adopt the
international standard, then the Member must comply with all relevant SPS disciplines, including
having a risk assessment to justify the measure. Thus, whether or not a measure conforms to the
international standard does not determine whether or not the measure may be adopted. Rather, it
determines whether a Member must have a scientific basis. India does not argue that its measure
is aligned with any particular conduct put forwar d in the OIE Code, but simply that its measures
are not prohibited under the OIE Code. India's position contradicts the Appellate Body's finding in
EC – Hormones . There are also product specific recommendations for importation in the rest of
Chapter 10.4 of the OIE Code that contradict India's measures. India's position erroneously
conflates SPS Articles 3.2 and 3.1; a position the Appellate Body has rejected.

9. In claiming consistency with the OIE standard, India also relies on the proposition that India
has the sovereign right to decide its ALOP. This is not the issue. The issue is that, where a Member
decides to adopt a measure that departs from an international standard (for reason of a higher
ALOP or other), it must have a scientific basis. India's position – disparate measures due to
differing ALOPs are still in conformity with inte rnational standards – finds no support in the SPS
Agreement. Indeed, the Appellate Body has found the contrary.

B. India's Measures Breach Article 3.1 Of The SPS Agreement As They Are Not
Based On The OIE Code

10. India argues that if the Panel does not find India's measures to conform to international
standards under SPS Article 3.2, then it shou ld find that India's measures are based on
international standards under SPS Article 3.1. India's assertion that its measures are based on
international standards is flawed because India is still not pointing to actual recommendations that
its measures embody.

C. India's Failure To Base Its Measur es On A Risk Assessment Result In A
Breach Of Articles 5.1, 5.2, And 2.2

11. India has urged the Panel to consider two threshold positions in reviewing U.S. claims,
neither of which have any merit. First, India urges the Panel to commence its analysis with
Article 2.2 and then proceed to Article 5.1 and 5.2. However, any inquiry regarding Article 2.2 will
normally examine the obligations in Articles 5.1 and 5.2, because the latter provisions are specific
applications of the more general principle elucidated in Article 2.2.

12. Second, India claims it is "apparent" that the United States has limited its challenge under
these provisions to fresh meat of poultry and eggs from countries reporting LPNAI. To the
contrary, the United States is challenging India's AI measures in their entirety. The Panel has
already recognized in its findings on India's First Preliminary Ruling Request that the measures at
issue are those that constitute and support an import ban of various agricultural products,
purportedly on account of NAI. As explained in its response to Panel Question 11(e), India's
u n s u p p o r t a b l e p o s i t i o n i s p r e m i s e d o n t h e U . S . o b s e r v a t i o n t h a t t h e S u m m a r y D o c u m e n t w a s
inadequate because it only referenced fresh meat and eggs.

- B-14 -

13. India's only response to the U.S. claims in volving the absence of a risk assessment is that
the "non-existence of a risk assessment is of no consequence when India's measure is in
conformity with the OIE Code." Accordingly, if – as the record fully supports – the Panel finds that
India's measures are not in conformity with the OIE Code, then the United States respectfully
request the Panel to find that India's measures are in breach of India's obligations under SPS
Articles 5.1, 5.2, and 2.2.

D. India's Failure To Ensure Its Measures Are Maintained With Sufficient
Scientific Evidence Results In An Independent Breach Of Article 2.2

14. India's measures breach Article 2.2 because they are maintained without scientific evidence.
The measures impose import prohibitions on products that scientific evidence indicates can be
safely imported with proper precautions, specifically products from countries reporting only LPNAI.

15. The scientific evidence this U.S. claim draws upon includes the evidence supporting the OIE
Code and the studies referenced in the U.S. First Written Submission. In defense, India cites (i) its
assertion that its measures conform to international standards; (ii) the purported practice of other
countries; (iii) a study by Jacob Post (the " Post" Study) (iv) a risk assessment by Australia, (v) a
paper by Van den Berg, (vi) a paper by Ziegler, (vii) a paper by Cobb, and (viii) its assertions
regarding the import of certain studies submitted by the United States. Not a single one of these
authorities even references import prohibitions in connection with LPNAI. To the contrary, some
explain that OIE recommendations can mitigate any potential threat. Additionally, the U.S.
Article 5.8 Request provides important context. Pe r the Appellate Body, India's failure to respond
creates a presumption that its measures lack scientific support.

E. India's Measures Breach Article 5.6 Because There Are Reasonably Available
And Less Trade Restrictive Measures That Satisfy Its ALOP

16. India has breached Article 5.6 because ther e (1) are reasonably available measures – the
OIE Code recommendations – that (2) would achieve India's ALOP since they provides a high level
of protection and (3) are less trade restrictive since they allow for trade in instances that India
presently prohibits and are applied in a more tailored fashion.

1. India Has Failed to Specify its ALOP – But One Can Be Inferred from its
Domestic Measures

17. In evaluating a claim under Article 5.6, the ALOP of the responding Member should be
identified. India has not identified a true ALOP. India has described its ALOP alternatively as "to
prevent the ingress of LPAI and HPNAI from di sease notifying countries through imports of
products that are clearly identified as risk factor s even by the OIE" or "NAI freedom." Neither are
true ALOPs. The first is an objective or characte rization of India's measure. The second is the
status of an exporting territory under the OIE Code.

18. The United States and the Panel have no option other than to infer an ALOP based on the
record evidence in this dispute. India takes exception to examining its domestic measures arguing
it, the NAP 2012, is not an SPS measure under the SPS Agreement. The NAP 2012 is a measure
that falls squarely within the definition of an SPS measures as set out in paragraph 1 of Annex A
and a reliable indicator of India's ALOP with respect to AI. Accordingly, India's ALOP is relatively
modest with respect to HPNAI and negligible with respect to LPNAI since surveillance is unlikely to
detect it.

2. Measures Based on the OIE Code Would Achieve India's ALOP

19. As explained in the User's Guide to the OIE Code, the OIE's recommendations are "designed
to prevent the disease in question being introduced into the importing country" and allow for trade
"with an optimal level of animal health security, based on the most up to date scientific
information and available techniques." These recommendations accordingly achieve a high ALOP.
Indeed, not only would the achieved ALOP be higher than the one inferred from India's domestic
measures, it would be high enough to achieve whatever ALOP India could choose from, since it
precludes entry of the disease into the importing country.

- B-15 -

20. India's response to why the OIE recommendations cannot achieve its ALOP is a non-
sequitur. Specifically, India claims that the OIE recommends an import ban on a country-wide
basis because there are risks such as contamination. To eliminate confusion, the United States has
identified the pertinent recommendations in the OIE Code, which show the contrary. India has not
asserted that these recommendations would result in entry or establishment of LPNAI.

21. The OIE Code also has recommendations with respect to zoning and compartmentalization.
A Member rather than apply its trade measures broadly against a country as a whole can apply
them simply to an affected area without unnecessa rily disturbing trade elsewhere. India's only
response is that it is under no obligation to recognize zones on its own authority. But no one is
asking it to do so. India's measures on their face impose country-wide bans rather than
considering the possibility of regionalization.

3. The Recommendations in the OIE Code Are Reasonably Available

22. The OIE Code's product specific recommendations are reasonably available. Countries
around the world already employ the recommendations to protect themselves from the risks of AI.
The OIE Code recommendations present no additional burden upon India. India already requires
veterinary certificates for import; the key distinction is what is being attested to.

23. India makes the puzzling assertion that the recommendations in the OIE Code are not
reasonably available because it requires India to put its "full faith" on U.S. attestations. As
explained in its response to Panel Question 36, the United States is not making such a request.
Additionally, India's response to Panel Question 21 notes that India "relies on a country's self-
notification to the OIE to ascertain if a country is free of NAI." If India is willing to accept
representations from a country that its surveill ance has not detected NAI, India cannot contend
that attestations in OIE consistent veterinary certificates are somehow less reliable.

24. Zoning and compartmentalization is also reasonably available. Countries around the world
practice it. The OIE's recommendations for zoning and compartmentalization recognize that the
"exporting country should be able to demonstrate, through detailed documentation provided to the
importing country, that it has implemented the recommendations in the Terrestrial Code for
establishing and maintaining such a zone or compartment."

4. The Recommendations in the OI E Code Are Less Trade Restrictive

25. India contends that application of the OIE Code's recommendations is not less trade
restrictive than India's present measures because the latter may only block trade for 3 months at
a time. But prohibiting trade for any period is more trade restrictive than allowing trade. The same
principle applies with respect to zoning. It is less trade restrictive to ensure that controls are
applied only on the areas where they are necessary rather than on an entire country.

5. India's Breach of Article 5.6 Should Result in a Consequential Breach of
Article 2.2

26. India asserts that a breach of Article 5.6 is precluded because it does not reference
Article 2.2. This misses the point which is the provisions implicate similar obligations. A measure
that is more trade restrictive than necessary to achieve an ALOP under Article 5.6 also implicates
the obligation in Article 2.2 to apply measures only to the extent necessary to protect human,
animal or plant life or health. Article 5.6 can be a specific application of Article 2.2. The distinction
appears to be that Article 2.2's obligation to apply measures to the extent necessary to protect
human, animal, or plant life or health may encompass more situations than ALOPs.

27. The facts here support such a finding. Application of the OIE Code will achieve India's ALOP.
India does not appear to dispute that its ALOP is with respect to animal health or life. India's
measures are thus measures that are applied beyond the extent necessary to protect animal or
human health. India's breach of Article 5.6 results in a breach of Article 2.2.

F. India Has Breached Its Obligations Under Article 6 of The SPS Agreement

28. India argues that it had no need to comply with SPS Articles 6.1 and 6.2 because no other
Member presented a proposal, and supporting information, for the recognition of specific disease-

- B-16 -

free areas. After refusing over many years to apply the principle of regionalization to AI, giving no
indication that requests to recognize disease-free areas would be entertained, India cannot rely on
the failure of other Members to conclude that "no" really means "yes" and to submit applications
that India had made clear it would reject out of hand.

1. Articles 6.1 and 6.2 Impose Obligat ions that Exist Independently of Any
Request to Recognize a Specific Disease-Free Area or Area of Low
Disease Prevalence

29. Articles 6.1 and 6.2 impose obligations that exist independently of any request to recognize
any specific pest- or disease-free areas. That Article 6.1 requires Members to "ensure that their"
SPS measures are adapted to the characteristics of an area, not just to adapt their SPS measures
to particular areas, is significant. It requires Members to take measures that account for the fact
that different exporting areas may have different characteristics. By failing to "ensure that" a
sanitary measure can reflect regional conditions, a Member breaches its obligations independent of
whether any Member requested special consideration of the characteristics prevailing in any region
or area. The obligation under Article 6.2 likewise applies regardless of whether another Member
has ever requested the Member to accept that any particular area is disease-free. Article 6.2
requires recognition of "concepts" – specifically, the "concepts of pest- or disease-free areas and
areas of low pest or disease prevalence."

2. India Has Not Been Willing to Adapt Its Measures to the Sanitary
Characteristics of Areas From Which Products Originate or to Recognize
the Concepts of Disease-Free Areas

30. In this dispute, India has purported to be wi lling to recognize the "concepts" of disease-free
areas with respect to AI, but the statements and conduct of Indian officials over the past seven
years belie India's contentions. In 2007, in response to a U.S. proposal for a new veterinary
certificate for poultry meat, India informed the United States that the "Indian side would insist on
country freedom as the condition is uniform." India's failure to apply its AI measures on a less-
than-country-wide basis was raised in meetings of the SPS Committee. India's delegate never
indicated that this complaint was ill-founded. At the May 2012 OIE meeting, the Indian delegate
criticized the OIE Code's AI chapter, asserting that for India "the concept of zoning looked
irrelevant as far as avian influenza was concerned."

31. Despite requests not to apply its measures on a country-wide basis, India repeatedly
promulgated new iterations of its measures that on their face applied to products from anywhere
in a country reporting NAI. S.O. 1663(E) on its face applies on a country-wide basis. India has
continued to require that shipments of products covered by S.O. 1663(E) be accompanied by
veterinary certificates with a required attestation about the AI status of the exporting country. The
text of India's measures thus does not allow for the application of import prohibitions on less than
a country-wide basis. And India's responses to requ ests that it recognize the applicability of the
concept of disease-free areas to AI make clear that India is not overlooking the text of its
Notifications and applying the concept through some other means.

32. India has claimed that its Livestock Act gives it the power to recognize zones and
compartments, pointing to broad provisions that simply delegate to its Central Government the
power to "restrict or prohibit … as it may think fit, the import" of livestock and livestock products.
These provisions do not modify the measures at issue in the dispute so as to recognize the concept
of disease-free areas, nor do they themselves reflect the concept of disease-free areas. The
measures at issue here—those found in S.O. 1663(E)—apply on a country basis, and hence are not
adapted to the characteristics of the areas from which products originate. The Livestock Act
appears to give India the power to promulgate additional measures, and does not undermine the
fact that the measures at issue do not meet India's obligations under Article 6.1.

33. That India has not complied with Articles 6.1 and 6.2 is confirmed by its failure to follow the
first step outlined by the SPS Committee for consideration of applications to recognize specific
areas as disease-free. India has not published information explaining the basis for recognition of
disease-free areas with respect to LPNAI or HPAI, a description of any process that would be used
to evaluate a request for recognition of such an area, the information that India would need to
evaluate such a request, or a contact point for such requests.

- B-17 -

34. In combination, the facts that (i) India has never published information explaining the basis
for recognition of disease-free areas with respect to LPNAI or HPAI, (ii) in response to requests to
regionalize, India has categorically refused, and (iii ) India's measures on their face apply to entire
countries, make clear that India is in breach of its obligations to "ensure that [its] sanitary …
measures are adapted to the sanitary … characteristics of the area … from which [an imported]
product originated." Further, India has made clear, including through its responses to trading
partners who raised the need for regionalization, that India does not ensure that its measures are
adapted to the sanitary characteristics of an area. This is not a situation where a Member has
demonstrated that the application of its measures will respond appropriately to any demonstration
under Article 6.3.

3. Neither Article 6.1 nor the OIE Code Permits India to Refuse to Apply
Its NAI Measures to Areas Smaller Than Countries

35. India suggests that Article 6.1 lets it choose, at its discretion, whether the "area" whose
sanitary characteristics a measure is adapted to, will be "all of a country, part of a country, or all
or parts of several countries." If Members had unchecked discretion to define the relevant "area"
for purposes of determining whether a disease is present, then Article 6 would be meaningless.
Rather, Article 6.2 supports the conclusion that an "area" for purposes of Article 6.1 could be
defined by a combination of different characteristics, and that to ensure adaptation of measures to
the characteristics of the area from which products originate, a Member's measures must allow for
the application of requirements or restrictions with respect to areas that are appropriately sized
and bounded in light of these characteristics. India's measures do not do so.

36. India also appears to argue that the OIE Code supports requiring that all of an exporting
country be free of a disease whenever that disease is not present in the importing country. The
OIE Code does not do so. Rather, for each product discussed in the OIE Code Chapter on AI, the
recommended import requirements apply either a) "for importation from an HPNAI free country,
zone, or compartment," b) "for importation from an NAI free country, zone, or compartment," or
c) "[r]egardless of the NAI status of the country of origin." Thus, under the OIE Code, AI-related
requirements can be applied on a zone or compar tmental basis—and nothing in the Code qualifies
this conclusion based on an importing country's disease status.

G. India Has Acted Inconsistently With It s Obligations Under Article 2.3 Of The
SPS Agreement By Treating Imported Products Differently From Indian
Products Without Justification

37. There is no valid reason for India's disparate treatment of imported and domestic products
following NAI incidents in their country of origin. This disparate treatment breaches the first
sentence of Article 2.3.

38. India casts the U.S. discrimination claim as a challenge to its domestic measures. Yet like all
claims in this dispute, the claim under Article 2.3 challenges the measures applied to imports.
India asserts that the United States suggests "tha t India apply similar measures in the event of a
domestic outbreak of NAI as it does for imports," adding that the U.S. would "essentially require[]
India to cull or destroy its entire poultry population and further completely put a stop to poultry
trade in the country" in the event of an NAI de tection. India thus believes that the domestic
measure equivalent to those it applies to imports would be one requiring it "to cull or destroy its
entire poultry population and further completely put a stop to poultry trade in the country." India
does not do this, and thus by its own account applies less favorable treatment to foreign products
than to domestic products.

1. India's LPAI-Based Import Bans are Discriminatory

39. India's measures unjustifiably discriminate against imported products by banning them
following detections of LPNAI in the exporting country while India does not even maintain
surveillance requirements that would result in reliable detection of LPNAI cases occurring in India's
poultry flocks. As one piece of evidence of the defi ciency of India's surveillance, the United States
highlighted that India has never notified a detection of LPNAI, despite notifying over ninety
outbreaks of HPAI in recent years. It is not plausible that, during a period when India had over
ninety HPNAI outbreaks, there was no LPNAI in In dia. India has responded to the U.S. assertions
about India's surveillance by arguing that LPNAI is exotic to India. India's evidence does not

- B-18 -

demonstrate this. Further, India's imposition of import bans based on LPNAI detections
discriminates against imports not because LPNA I has occurred in India, but because India's
surveillance for LPNAI is inadequate, resulting in a situation where controls on trade in domestic
products due to domestic LPNAI will not be imposed.

40. India advances the hypothesis that South Asia is somehow unique with respect to LPNAI,
and that accordingly all HPAI incidents in India resulted from introduction of HPAI into India by
migratory birds, not mutations from LPNAI in India. India offered no evidence that this is the case.
But, even if it were correct, there is no reason to think the ecology of the region is unique in a way
that would lead wild birds to spread HPAI but no t H5 or H7 LPAI. As HPAI results from mutations
f r o m L P A I , b i r d m i g r a t i o n s t h a t b r i n g i n t o I n d i a H 5 N 1 H P A I – t h e k i n d o f H P A I t h a t I n d i a h a s
experienced – are likely to also bring birds exposed to H5 or H7 LPAI. Further, the large number of
H5N1 HPAI outbreaks in India's poultry would serve as an indicator of the high level of interaction
occurring between wild birds and poultry, and thus of the likelihood of transmission of H5 or H7
LPAI from wild birds to poultry in India—thereby producing LPNAI.

41. The United States has also shown that H5 and H7 AI antigens were detected in domestic
ducks in India. The antibodies establish that an infection has at some point been present in the
birds. It is unlikely that India would not have de tected an H7 HPAI outbreak. It therefore appears
that India has experienced H7 LPAI in poultry—a form of LPNAI.

42. India does not dispute that it has no mandatory requirement for the conduct of routine
laboratory tests in apparently healthy flocks fo r LPNAI, even though LPNAI's lack of symptoms
makes visual observation inadequate for its de tection. India purports to conduct "routine
laboratory" surveillance for NAI. But the docume nts India cites do not demonstrate that India
actually conducts routine testing of apparently-healthy flocks for LPNAI, let alone that such testing
is conducted nationwide as part of a program or programs under which it is required. Further,
India does not dispute that the NAP does not set forth programs under which routine testing of
sample birds in apparently healthy flocks is conducted throughout India on a large-scale or
systematic basis, let alone required. Indeed, the NAP simply provides that sampling "may" be
conducted on flocks, and that routine surveillance should involve virological testing "where
possible." The OIE Code supports the inadequacy of India's surveillance. The OIE Code provides
that determination of the NAI status of a country, zone, or compartment involves "appropriate
surveillance … to demonstrate the presence or abse nce of infection in the absence of clinical signs
in poultry." India has not implemented the kinds of testing necessary for such a demonstration.
India's failure to report LPNAI highlights the deficiencies in its surveillance. India, in sum, lacks the
ability to reliably detect LPNAI, and this results in a situation where controls on trade in domestic
products due to LPNAI are not imposed.

2. India's Unwillingness to Regionalize is Discriminatory

43. India does not dispute that it does not apply movement restrictions on products from more
than 10 kilometers from an NAI detection. Rath er, India argues that its application of more
stringent measures to imports is not discriminatory because India does not know the details of NAI
detections in exporting countries or control thei r disease containment and disinfection methods.
Yet India applies import bans categorically to an y exporting country when it reports NAI. India's
imposition of more restrictive measures to imports is thus unrelated to risk associated with the
potential for surveillance or control failures in exporting countries. Lack of knowledge about other
countries' response systems and outbreaks cannot logically render non-discriminatory a measure
that categorically precludes inquiry into how an exporting country identifies and contains NAI, and
whether that identification and containment will be as effective as a response directed by India.
India's logic suggests that application of more stringent measures to imported products than to
domestic products would never be discriminatory. Underscoring that India's application of AI-based
import bans to the entirety of an exporting Member is discriminatory, India believes its trading
partners should be willing to apply NAI measures on a less-than-countrywide basis to its exports.
India's position is simply that its products are entitled to more advantageous treatment than
products from other Members.

- B-19 -

3. India Cannot Justify its Discri mination with the Argument that
LPNAI is Exotic to India

44. From its contention that LPNAI has not occurre d in India, India attempts to argue, not just
that its measures are not discriminatory, but also that subjecting imports to AI measures more
stringent than those applied to domestic products is justified. This argument lacks merit. As noted,
India has had LPNAI. Further, India acknowledges that it has had numerous H5 HPAI outbreaks,
and H5 LPNAI and H5 HPAI are the same disease. Moreover, India explains that it worries about
LPNAI because it could mutate into HPAI. But In dia already experiences regular HPAI outbreaks.
Additionally, India does not claim that LPNAI is a disease that could not reach its territory in the
absence of imports. Rather, India itself believes that it is a country with significant risk for
domestic LPNAI incidents and argues that it takes surveillance for LPNAI seriously. In light of that,
India cannot plausibly claim that its domestic conditions are so dissimilar from conditions
elsewhere that a lack of effective domestic surve illance and application of control measures only
within ten kilometers of an outbreak, alongside measures for imports far more stringent than
recommended by OIE guidelines, simply reflect differences in disease conditions between India
and elsewhere.

45. India has not rebutted the U.S. showing th at India's AI measures discriminate against
imported products and that the discrimination is arbitrary and unjustified—by differences in
conditions between India and elsewhere or by anything else. India's measures accordingly are
inconsistent with the first sentence of Article 2.3.

H. India's Measures Constitute A Disguised Restriction On Trade

46. India's measures result in an additional brea ch of Article 2.3 as they amount to a disguised
restriction on trade. Contrary to what India suggests, this claim is about what can be inferred from
the totality of the circumstances surrounding India's measures, including the ways that they
discriminate against imported products. A variety of considerations surrounding India's measures
constitute indicia of a disguised restriction on international trade. These considerations are similar
to those that the Australia – Salmon panel considered to be "warning signals" and "additional
factors" indicating a disguised restriction.

I. If India Were Viewed As Having Di fferent ALOPs For Foreign And Domestic
Products, India Would Be In Breach Of Article 5.5 Of The SPS Agreement,
With A Resulting Consequential Breach Of Article 2.3

47. If India were considered to have separate ALOPs for imported and domestic products, these
would have to be inferred from the measures applied with respect to those products. In its First
Written Submission, the United States explained why India's measures with respect to imports are
far more trade restrictive than those applied to domestic products as a result of two key contrasts.
The reasons why a more stringent ALOP would be inferred from the measures applied to imports
than from those applied to domestic products are thus clear.

48. Similarly, the comparability of the different situations at issue in the U.S. claim under
Article 5.5 needs no elaboration. They involve trade in the same products and control of the same
diseases. The arbitrariness of application of different ALOPs to different situations based
exclusively, as here, on whether the otherwise identical products involved are imported or
domestic likewise needs no elaborate proof. Moreover, the United States has established that
India's measures cause discrimination and amount to a disguised restriction on international trade,
satisfying the third element of a claim under Article 5.5. In sum, to the extent that transmission of
NAI through imports and through domestic products are viewed as distinct situations for which
India maintains separate ALOPs, then India is in breach of Article 5.5—with a resulting
consequential breach of Article 2.3.

J. India Cannot Excuse Its Failure To Comply With Article 7 And Annex B

49. India's only response to the claims under Article 7 and Annex B is that its measures conform
to international standards. However, India's measures are fundamentally in contradiction to, and
not at all the same as, the relevant international standards.

- B-20 -

K. India Has Breached Article XI of the GATT 1994

50. India's measures are not in conformity with the relevant provisions of the SPS Agreement,
and India has suggested no other reason why its measures might be consistent with GATT
Article XI. India's measures place India in breach of GATT Article XI:1.

III. CONCLUSION

51. The United States respectfully requests the Panel to find that India's measures are
inconsistent with India's obligations under the GATT 1994 and the SPS Agreement. The
United States further requests, pursuant to Article 19.1 of the DSU, that the Panel recommend
that India bring its measures into conformity with the GATT 1994 and the SPS Agreement.

- B-21 -

ANNEX B-4
EXECUTIVE SUMMARY OF THE OPENING STATEMENT
OF THE UNITED STATES AT THE SECOND SUBSTANTIVE MEETING OF THE PANEL
I. INTRODUCTION

1. The United States would recall that in its first written submission, we provided extensive
record evidence concerning the proper interpreta tion of the OIE Terrestrial Animal Health Code
("OIE Code" or "Code"), and the inadequacy of India's domestic surveillance program. This
evidence includes:

– With respect to the OIE Code : the text of the OIE Code, reports from the OIE
Terrestrial Animal Health Standards Commission, the OIE User's Guide, and
statements by an OIE representative and other commentators; and
– With respect to India's surveillance : India's National Action Plan ("NAP") for
avian influenza; and the OIE Code provisions on surveillance and the scientific
authorities and methodologies that were compiled and applied by two veterinary
epidemiologists.
2. The input from the OIE and the individual expe rts provides further support that this record
evidence establishes the following points:

– First , the OIE Code does not recommend import prohibitions in response to a
notification of notifiable avian influenza, including low pathogenic notifiable
avian influenza ("LPNAI") – instead it provides that products India bans can be
safely imported from countries or zones even if they are reporting LPNAI
outbreaks;
– Second, the recommendations in the OIE Code can be applied on a regional
basis – which is another reason why mandatory country-wide prohibitions are
not in accord with the OIE Code; and
– Third, India does not have an active surveillance program capable of reliably
detecting the presence of LPNAI in India.
In short, the expert consultation process provides further confirmation that our proposed
understanding of this evidence is indeed the correct one.

II. INDIA'S MEASURES ARE NOT JUSTIFIED BY THE OIE CODE

A. India's Measures Are Not in Confor mity with (Art. 3.2) or Based on
International Standards (Art. 3.1)

3. The OIE Code notes that the importation of products from countries reporting LPNAI is
possible regardless of the exporting country's disease status. India's contrary interpretation is a
misstatement of both Article 5.1.2 of the OIE Co de and the User's Guide. Article 5.1.2 is an
admonition to an importing country not to ban an imported product to protect against a disease
already present in that country and not to impose requirements that are stricter than what the
country applies to domestic products. Similarly, the User's Guide provides that "[t]he
recommendations in … the Terrestrial Code are designed to prevent the disease in question being
introduced into the importing country, taking into account the nature of the commodity and the
animal health status of the exporting country."

4. In trying to defend its untenable arguments, India describes the responses by the OIE as
"evasive, highly ambiguous and contradictory." In particular, India purports not to understand
why the OIE said notification helps countries address "diagnostic and management challenges of
avian influenza" and why the OIE did not instead explain that notification should result in trade

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consequences. This criticism reflects why India's position is so misguided. India fails to recognize
that notifications may be used to advance scientific understanding and not just protectionist
objectives.

1. The Proper Understanding of the OIE Code

5. India appears to argue that the plain readin g of the OIE Code, as explained by the United
States, would vitiate (1) Article 10.4.1.10's admonishment not to impose bans in respect to NAI
detections in wild birds; (2) the Code's notification provisions; and (3) the language – which India
calls "NAI freedom" – at the beginning of various control or mitigation measures.

6. All three provisions serve a clear purpose. First, Article 10.4.1.10 is an affirmative statement
not to impose bans on account of wild birds. Second, regarding the Code's notification provisions,
they remain significant because notifications are important to further scientific understanding and
help lead to the appropriate mitigation measures. The OIE Responses support this understanding.
And third, with respect to the control or mitigation measures for particular products in the OIE
Code, these provisions address different scenari os and are intended to provide appropriate
mitigation measures that allow for safe trade.

7. That India is ignoring significant – indeed most – of the OIE Code is established by
contrasting its arguments against its own veterinary certificates. India's veterinary certificates do
not actually conform to OIE guidelines the way India says they should.

2. The Purported Positions of Other Members

8. India also seeks support for its reading of th e OIE Code by referring to purported positions
and measures of the United States and some other Members. India errs with respect to the United
States. There is no reason to believe India is any more accurate with respect to other Members.
Furthermore, India's argument is misplaced because interpretation of the OIE Code does not, as
India suggests, involve an application of the customary rules of treaty interpretation. In any event,
India's characterization of a handful of measures adopted by certain WTO members cannot be said
as establishing the agreement of the OIE membership regarding the OIE Code.

B. India's Measures Are Not Justifie d by a Risk Assessment or Otherwise
Maintained with Sufficient Scientific Evidence

9. With respect to the question of a risk asse ssment, the record continues to show that India
has no risk assessment within the meaning of the SPS Agreement. When India notified
S.O. 1663(E) to the WTO, its notification form st ated that the purpose of the measure was: (1)
food safety; (2) animal health; and (3) to protect humans from animal pest or disease.
Accordingly, India's avian influenza measures requ ire both types of risk assessments provided for
in paragraph 4 of Annex A of the SPS Agreement. Thus, India breaches Articles 5.1 and 5.2 of the
SPS Agreement because it was required to base its measures on both types of risk assessments
provided for in paragraph 4 of Annex A and its measures are based on neither. India has
consequentially breached Article 2.2 by failing to base its measures on a risk assessment.

III. INDIA'S MEASURES ARE MORE TRADE RESTRICTIVE THAN NECESSARY TO ACHIEVE
ITS ALOP

10. India's second written submission, in contrast to its opening statement at the first meeting
of the Panel, acknowledged that the OIE Code product-specific recommendations are different
from the measures India presently applies. Nonetheless, India posited three reasons why
application of the OIE Code would not result in a less trade-restrictive measure that would achieve
its ALOP. Each of these grounds is legally or factually incorrect.

11. First, India submits that reliance on the control measures would not achieve its ALOP. But,
India never identifies its ALOP. As previously explained, India is not controlling for LPNAI at home,
and its domestic restrictions for HPNAI contain limitations such as zoning. At best, India's ALOP
can be described as very modest. Accordingly, while it appears India's ALOP is modest, even a
high one would be achieved by application of the OIE Code.

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12. The second point India raises is that such measures would be technically infeasible since
India cannot trust the veterinary certificates – and that would mean more work for its authorities
since there would actually be imports entering India. This is interesting because India claims that it
allows imports if countries are free from NAI for three months. If India is willing to accept that a
veterinarian can make an attestation regarding the entire LPAI situation in the exporting country,
then India should be prepared to rely on a veterinarian attesting to things that might actually be in
that person's personal knowledge.

13. The last point India raises is that the OIE Code is more trade restrictive than the import
prohibitions it maintains now. India claims that would be the case because it would take it longer
to confirm that other countries maintain adequate surveillance systems than to accept imports
from a country if it does not report NAI for three months. India's position has no basis in fact or
common sense. There would be far less potential disruptions to trade by adopting the OIE Code,
rather than leaving it perpetually to the possibility of suspension.

IV. INDIA'S MEASURES RESULT IN ARBITR ARY OR UNJUSTIFIABLE DISCRIMINATION

14. The parties and the Panel's experts have spen t substantial time exchanging views related to
the U.S. claims under Article 2.3. These exchanges have confirmed that India's measures
discriminate against imported products without justification. The United States recalls that there
are in fact two separate ways that India's measures discriminate against imported products. One
of these forms of discrimination exists independen tly of India's surveillance deficiencies. When
either HPAI or LPNAI is detected anywhere in an exporting country, India applies an import ban
covering the entirety of that exporting count ry, even where the detection is thousands of
kilometers away from the area where the exported product is produced. By contrast, when NAI is
detected in India—and in practice that means HPAI, as India does not detect LPNAI—India restricts
trade in products only from a limited zone surrounding the detection.

15. Surveillance is at the core of the second manner in which India's measures discriminate
against imported products. India imposes import bans when an exporting country reports
detections of LPNAI, but does not have in pl ace surveillance mechanisms capable of reliably
detecting LPNAI when it occurs in India. When LPNAI cannot be detected, it obviously cannot lead
to any restrictions on the trade of domestic products.

16. The inadequacy of India's domestic surveillanc e regime to reliably detect LPNAI is clear from
the NAP and from the other evidence reviewed by the Panel's experts, as those experts' answers
confirmed. As India has acknowledged, "LPNAI is largely asymptomatic in poultry." The Panel's
experts have confirmed that systematic active surv eillance involving laboratory testing of samples
from apparently-healthy flocks is therefore necessary to reliably detect LPNAI. India does not
appear to be disputing this point.

17. The United States has explained that India's NAP sets out a surveillance regime that relies
on clinical signs for the detection of avian influenza, and that does not require any routine
laboratory testing of samples from apparently healthy flocks for AI. Indeed, apart from
"physical/clinical" surveillance, routine surveillance in accordance with the NAP involves only the
use "where possible" of virological testing. In its instructions on "Guidelines for Collection, Packing
and Transportation of Samples," the NAP instructs that samples should be forwarded to a Regional
Disease Diagnostic Laboratory or to HSADL Bhopal "[o]nly in case of unusual sickness/ mortality
raising suspicion of AI."

18. In response to the U.S. prima facie case, India submitted a variety of documents which
provide figures on numbers of AI tests conducted by certain laboratories in India, without stating
why the tests were conducted, or which relate to surveillance for or response to clinical events.
India's documents do not demonstrate that India actually conducts routine testing of apparently-
healthy flocks for LPNAI, let alone that such test ing is conducted nationwide as part of a program
or programs under which it is required. The independent experts reviewed the evidence and
agreed.

19. Although India attempted to challenge the experts' conclusion and belatedly add to the
record 76 new exhibits, these new exhibits make no difference at all. India's new exhibits simply
contain more of the same kinds of evidence th at India submitted previo usly, and that is not
illustrative of an active, systematic surveillan ce regime capable of reliably detecting LPNAI –

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reinforcing the fact that India does not have one. Some of India's new exhibits are requests to test
small numbers of samples of different types collect ed in individual Indian states, districts, and
localities for unknown reasons. There are similar re quests explicitly referencing HPAI surveillance,
as well as reports of surveillance following HPAI outbreaks. There are reports of projects to
monitor for AI in migratory birds in certain isolated locations. There are four letters from long ago,
predating India's NAPs, its AI-based import prohibitions, and even the notifiability of LPNAI, simply
requesting that, in light of HPAI, states collect some samples for routine testing, but specifying
nothing more about number of samples, number of flocks to sample, or frequency of collection.
And there are a handful of documents requesting tests on, or reporting results of tests on, small
numbers of samples collected in individual districts or localities as part of routine surveillance
performed in them at particular times. These documents evidence nothing more than temporally
and geographically sporadic, ad hoc surveillance testing activities.

20. In its Comments on the Expert Responses, India cites the fact that it has submitted a
handful of gene sequences for non-reportable AI strains to GenBank—a Genetic sequence
database run by the U.S. National Institutes of Health. Contrary to India's arguments, the
submission of some gene sequences to GenBank do es not indicate the existence of adequate AI
surveillance.

21. Lacking reliable surveillance, India has fo cused on an issue slightly different from
surveillance: India's disease status. But it is the adequacy of India's surveillance to reliably detect
LPNAI, and not India's disease status, that is the fundamental question for purposes of
determining whether India's imposition of LPNAI-based import bans constitutes discrimination in
breach of Article 2.3. If India has no means to re liably detect LPNAI, and thus to restrict trade in
domestic products in the event that poultry in India becomes infected with LPNAI, it would be
discriminatory to restrict the trade in imported products due to detections of LPNAI in exporting
countries.

22. Having said this, not only does India have no surveillance basis on which to claim that it has
never had cases of LPNAI, but the Pawar study provides strong evidence that domestic ducks in
India have been infected with a type of LPNAI know n as H7, either at the time of the study or in
the past. India's failure to perform virological follow-up testing meant that there was no way to
know definitively that the ducks were infected at the time of testing , which would trigger an
obligation to inform the OIE of an ongoing LPNAI incident. But this failure confirms that India is not
taking the surveillance steps that would be necessary to reliably detect and report LPNAI.

23. The Pawar study's strong evidence of LPNAI in fections in India is entirely expected: India
lies in the flyways of wild birds coming from places with LPAI, including H5 or H7 LPAI; India has
a large backyard poultry population, opening an av enue for AI transmission from wild birds to
poultry; India had 35 million domestic ducks in 2007, and ducks are a key host species for
preservation and perpetuation of LPNAI; and Indi a has experienced non-notifiable LPAI strains,
and there is no reason to believe they circulate differently from notifiable LPAI strains. The key
point, however, is that India bans imported products due to LPNAI even though it does not have
surveillance requirements or plans capable of reliably detecting LPNAI.

V. INDIA'S MEASURES DO NOT PROVIDE FOR REGIONALIZATION

24. India argues that SPS Article 6 obligations can be triggered only by an application for
recognition of specific zones or compartments. In dia's theory would mean that the United States
and other exporting Members had an obligation not to accept the plain meaning of the words of
India's measure. India's theory, moreover, suggests that the United States had an obligation not
to believe the statements of India's own officials, who made clear that regionalization simply was
not an option for countries exporting to India the products covered by S.O. 1663(E).

25. India's insistence that Article 6 obligations can be triggered only by an application for
recognition of specific zones or compartments ignores the phrasing of that article. Article 6.1 does
not provide for Members to "adapt their sanitary or phytosanitary measures" to the sanitary
characteristics of an area at some point in the future. Rather, it provides that "Members shall
ensure that their sanitary or phytosanitary measures are adapted to the sanitary or phytosanitary
characteristics of the area … from which the product originated" (emphasis added). This wording
would make no sense if the paragraph was not intended to require maintenance of an ability

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(existing independently of and antecedent to any regionalization request), to account for the
disease conditions of sub-national areas from which traded products originate.

26. Similarly, Article 6.2 requires that "Members shall, in particular, recognize the concepts of
pest- or disease-free areas and areas of low pest or disease prevalence" (emphasis added). It does
not require recognition of specific areas, but ra ther of concepts: those of pest- or disease-free
areas. It would make no sense for an obligation to recognize these concepts to be triggered only in
the event of a request to recognize specific co mpartments or zones. The United States has
explained how India rebuffed various requests that it accept the possibility of applying its
measures not on a countrywide basis. For this reason, India's argument that the United States
should have inquired "on its laws and procedure that India might adopt to recognize an exporting
country's zones or compartments" is disingenuous at best.

27. As the United States explained, it explicitly asked that India apply its measures on a less-
than-country basis with respect to products from the United States. India's response was not to
provide information on laws and procedures that could be used to secure the recognition of zones
and compartments. Rather, India's response was that its requirement of country-freedom "is
uniform." Indeed, India's erroneous assertions in th is dispute that it has an ALOP of "NAI country
freedom" of the exporting country from NAI, that "India's level of protection as reflected in
S.O. 1663(E) is to prevent ingress of LPNAI and HPNAI from disease notifying countries through
imports of products that are clearly identified as risk factors even by the OIE, and that "India's
ALOP is met by maintaining import restrictions against countries notifying HPNAI or LPNAI,"
thoroughly belie its contention that it would consider recognizing zones and compartments if only
another country submitted a properly documented request.

28. In its regionalization argument, India urges the Panel to presume that the United States
must not have procedures in place that would allow for the limitation of trade restrictions on U.S.
products to a limited zone around the outbreak. As the United States has explained, while the
United States does have such procedures, U.S. procedures are irrelevant to the question of
whether India recognizes " the concepts of pest- or disease-free areas and areas of low pest or
disease prevalence" (emphasis added), and is " ennsur[ing] that [its] sanitary or phytosanitary
measures are adapted to the sanitary or phytosanitary characteristics of the area … from which [a]
product originated" (emphasis added).

VI. THE UNITED STATES HAS NOT LIMITED ITS CLAIMS

29. India alleges that the United States has limited its claims to poultry meat and eggs. The
Panel has already heard a variant of this argument – and rejected it in the Preliminary Ruling.
India's argument makes no sense – the presentati on of certain examples regarding some of the
products covered by a measure is no indication of a withdrawal or limitation of a claim. And more
generally, India does not – because it cannot – identify any legal basis to require a complaining
party to repeat every product covered by a measure at every portion of its submissions in order to
maintain a challenge to the entire scope of a measure.

VII. CONCLUSION

30. This dispute can be distilled to a few simple points:

– India's measures are not based on either type of risk assessment prescribed by the
SPS Agreement;

– India's measures are maintained without sufficient scientific evidence because the
evidence does not support prohibitions on account of LPNAI;

– India's measures are more trade restrictive than necessary to achieve its appropriate
level of protection because measures conforming to the OIE Code are reasonably
available;

– India's measures unjustifiably discriminate as India does not have a surveillance
regime capable of reliably detecting LPNAI yet bans imported products on account of
LPNAI and since India restricts trade in domestic products from only a very limited

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area following a domestic HPAI outbreak, yet whenever a trading partner reports
LPNAI or HPAI, India bans importation from the entire country;

– India's measures do not take into account the possibility of regionalization; and

– India has no justification for its failure to properly notify and publish its measures.

In short, this dispute is about precisely what the SPS Agreement was intended to address: a
Member misusing safety concerns in order to fulfill protectionist objectives.

- B-27 -

ANNEX B-5
EXECUTIVE SUMMARY OF THE FIRST WRITTEN SUBMISSION OF INDIA
A: INTRODUCTION

1. The WTO Agreement on Sanitary and Phytosanitary Measures ( the SPS Agreement )
strongly encourages Members to harmonize SPS measures on as wide basis as possible by basing
their respective SPS measures on international standards, guidelines and recommendations
developed by relevant international organizations as international organizations, in developing
these standards are deemed to have taken into account relevant current scientific information
concerning the risk to human or animal health arising from international trade in animal or animal
products.

2. Thus it was the understanding of India that having adopted an OIE recommendation, it was
not required to further conduct a risk assessment. The measure at issue, S.O. 1663(E) implements
the Office International des Epizootics (OIE) standard which recommends that importing countries
may impose an immediate ban on the trade in poultry and poultry products if an exporting country
notifies an outbreak of High Pathogenic Avian Influenza (HPAI) or Low Pathogenic Avian Influenza
(LPAI) in poultry. Yet United States sought from India a risk assessment as a further justification
that its measure is based on science.

3. Therefore in October 2010, India informally and in good faith provided a document to the
United States and the European Communities which contained a brief summary of scientific
material which India believed formed the basis of the OIE recommendation and hence also the
justification behind India’s measure. India also categorically stated that this was not India’s risk
assessment and should not be treated as one. Howe ver in spite of India’s clarification, United
States together with the European Communities spec ifically sought an opinion from the OIE as to
whether the document qualified as a risk assessment, this despite the fact that India had not
sought OIE’s opinion on the matter and shared the document with the OIE only for information
purposes.

4. Even though the OIE does not have a separate mandate to assess, judge or comment on the
existence or content of a Member’s risk assessm ent and is only an observer at SPS Committee
meetings, the OIE took the floor and proceeded to opine on the document stating that it was
severely deficient in many aspects. India took strong objection to the OIE taking the floor as did
Chile, Argentina and Peru. Thus it is clear that the OIE has already made known its opinion. This
coupled with its inappropriate interjection at the SPS Committee meeting casts serious doubt over
the OIE’s ability to provide guidance to the Panel and India submits that the Panel should not rely
on the OIE as an expert in this case.

A(I):
 NATURE OF INDIA’S AVIAN INFLUENZA MEASURES

5. S.O. 1663(E) was implemented under Section 3 and 3A of the Livestock Importation Act,
1898 and prohibits import of certain livestock and livestock products from countries reporting High
Pathogenic Notifiable Avian Influenza ( HPNAI) or Low Pathogenic Notifiable Avian Influenza
(LPNAI) or Notifiable Avian Influenza (NAI) in poultry. Hence imports are prohibited upon a
notification of NAI, but when a country declares freedom after culling (or slaughter), disinfection and
surveillance, which generally takes three months as recommended by the OIE, the country is no
longer considered to be "reporting Notifiable Avian Influenza" and imports from such countries are
permitted. Further the United States assertion that India imposes measures on account of LPNAI in
wild birds is incorrect. The measure specifically states that imports will be prohibited from
countries reporting HPNAI or LPNAI in poultry.

6. As noted above, once the country is free from avian influenza in poultry, imports from such
countries are permitted under permits called sanitary import permits ( SIPs) which are issued
under S.O. 655 (E). This is evident from SIPs granted for imports of products such as unprocessed
duck and goose meat, turkey meat and chicken meat from countries such as France, Spain,
United Kingdom, United States, Italy, Netherlands, Thailand and Malaysia which did not report any

- B-28 -

outbreak of HPAI or LPAI on the date of appr oval of the SIP. Further India on a number of
occasions in the SPS Committee meetings and at bilateral forums has clarified that S.O 1663(E)
and its predecessor measures provide for a temporary ban against countries reporting NAI in
poultry and that the ban is lifted once the country notifies freedom.

B:
 INDIA’S DOMESTIC AVIAN INFLUENZA MEASURE FOR CONTROL & SURVEILLANCE

7. The Government of India implements the control and surveillance procedure through the
National Action Plan (NAP), 2012 which has been issued pursuant to the Prevention and Control of
Infectious and Contagious Disease in Animals Act, 2009 ( Prevention of Disease Act). The
schedule of diseases under the Act indicates th at highly pathogenic avian influenza and low
pathogenic avian influenza in poultry are regulated by the Act and contained in accordance with
measures taken in the NAP 2012.

8. With respect to the surveilla nce, India under NAP 2012 and in accordance with the OIE Code
conducts three different types of surveillance sy stem. First among them is the Random clinical
surveillance wherein surveillance of population and density of poultry in each block, both in
backyard and commercial establishments, flyways of migratory-birds, live-bird markets including
wet-markets, existence of wildlife sanctuaries/ national-parks/ water-bodies visited by migratory/
wild birds is carried out and any unusual sickness or mortality in poultry or wild birds is taken into
account. Further NAP 2012 also identifies and lays down signs for identifying unusual sickness
such as swelling around the eyes, neck, head, nasal discharge, discoloration of the wattles, combs,
legs, drop in egg production, sudden weakness, drooping wings and lack of movement among
birds. These symptoms are also similar to what has been prescribed by the United States
Department of Agriculture.

9. The second type of surveillance being ca rried out by India is the Random Laboratory
Surveillance. Under this, samples including tracheal and cloacal from both poultry and wild birds
are regularly/weekly screened for NAI using virological methods. The faecal and/or tracheal swabs
from poultry is collected by officials of the Stat e Department of Animal Husbandry, and from wild
birds is collected by officials of the State Forests Department and the same are sent to the High
Security Animal Disease Laboratory ( HSADL), Bhopal or Regional Disease Diagnostic Laboratory
(RDDLs). Currently India has five RDDLs. Such surveillance for NAI has resulted in the testing of
about 8, 49,332 samples by HSADL, Bhopal and the various RDDLs.

10. The third type of surveillance is the target ed surveillance wherein surveillance is undertaken
for areas adjacent to international land-borders, especially those affected with avian influenza,
interstate borders with the avian influenza affected States and in live bird markets including wet
markets. The samples collected from these are sent to either HSADL, Bhopal/RDDLs for testing.
The fact that avian influenza is not found in other regions of the country and is localized
predominantly within India’s eastern states is also an indication that India’s control and
containment measures are effective.

11. Further the control measures applied by Indi a pursuant to NAP 2012 are also in conformity
with the OIE Code. India employs control measures in two situations. Firstly control measures are
employed in suspected avian influenza outbreaks wherein upon reporting of unusual sickness and
mortality in birds, an officer visits the site to conduct a preliminary investigation. During the
pendency of the investigation and the results of the test, an alert zone is created to prevent
further ingress or spread, if any, to villages and habitations within a 10 km radius from the
affected place.

12. The second type of control measures are em ployed upon occurrence of confirmed cases of
outbreak of NAI. Once an occurrence of NAI is confirmed, the government immediately notifies the
same to the OIE and subsequently carries out the control measures as prescribed under
Chapter III of NAP 2012 upon occurrence of a NAI an d which are also in consonance with the OIE
Code. Post operative surveillance is carried out as per the procedure laid down in Chapter IV of
NAP 2012 and which is in conformity with the OIE Co de. It should also be noted that the control
measures maintained by India are similar to control measures maintained by other countries such
as Chinese Taipei, China and Canada.

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C: RELEVANCE OF THE ARTICLE 5.8 REQUEST BY UNITED STATES

13. The United States made a request under Article 5.8 of the SPS Agreement on 17 January
2012 for certain information. As per the letter, the information was to be provided within 1 month
even though Article 5.8 does not provide any time line within which the information is to be
provided. India replied on 16 February 2012 requesting for some more time. However India did
not receive any further communication from the United States and instead within 2 weeks received
a request for consultations from the United States. Based upon these facts, United States alleges
that India has refused to provide information under Article 5.8 even after 14 months of the request
being made.

14. However argument of the United States is legally and factually incorrect. Firstly India never
refused to provide information but instead requested for more time, to which it never received any
reply. Secondly, Article 5.8 is a pre dispute measure and is not applicable in a dispute settlement
situation. Hence it is inapposite that the United States complains that 14 months have passed
since it made its request, when this period includes 12 months under dispute procedure itself. In
view of the above, no adverse inference, as alle ged by the United States, should be drawn against
India.

D:
 SECOND REQUEST FOR PRELIMINARY RULING UNDER ARTICLE 6.2

15. The United States First Written Submission (FWS) alleges a violation of the national
treatment obligation by India under Article 2.3 of the SPS Agreement. Therefore the object of the
challenge, i.e. the discrimination, is alleged to be caused by India’s domestic measures which do
not allegedly apply similar controls with respect to like domestic products. Thus in this situation,
United States has to necessarily adduce and impugn such of India’s measures which it believes are
the cause of this arbitrary or unjustifiable discrimination.

16. However nowhere in the panel request, there is any mention of the NAP, whereas in the
FWS, the United States now claims that India does "not apply similar avian influenza related
controls with respect to like domestic products and their internal movement within India". The
National Action Plan was enacted in 2006 (NAP 2006) and later amended in 2012 and is
promulgated under the Prevention of Diseases Act. The United States has brought to India’s notice
its challenge of the NAP 2012 for the first time in its FWS, while making no mention of it in its
panel request.

17. Since the NAP is the object of the United States challenge under Article 2.3, it was
imperative that the NAP was identified with precision in the panel request. The panel request does
not mention the NAP explicitly by name and there is nothing in the description of the measure at
issue in the panel request which would have provided notice to India that the United States did in
fact intend to challenge the NAP. This is in spit e of the fact that attendant circumstances indicate
that the United States was well aware of the NAP and yet the panel request is devoid of any
reference to it.

18. Further the United States cannot take umbrage under the reference to ‘related or
implementing measures’ to raise claims with respect to NAP as it is not an implementing measure
of S.O. 1663(E) or the Livestock Importation Act, 1898 because it does not implement the
prohibition on imports of livestock and livestock products from NAI positive countries. The sphere
of activity of S.O. 1663 (E) and the NAP is entirely different and it cannot be said that there is a
significant degree of overlap between the two measures.

19. In addition to the NAP, United States has also adduced health certificates for livestock
products as a new measure for the first time in its FWS on the ground that these health certificates
implement the import prohibition laid out in S.O.1663 (E). However the argument of the United
States is incorrect. The requirement to provide a health certificate with every consignment of
livestock products emerges from SIPs which are issued under a separate notification, namely,
S.O. 655 (E). Thus while S.O. 655 (E) governs cond itions to be met by exporting consignments,
S.O. 1663 (E) prohibits imports of certain livestock products from countries reporting NAI. Thus,
though the two notifications are enacted under th e same statute they deal with the dissimilar
subject matters.

- B-30 -

20. S.O. 655 (E) and S.O. 1663 (E) cannot also be said to be related measures merely because
both notifications were enacted under the Livestock Act. The objective of the Livestock Act is to
regulate, permit or prohibit the trade in livestock products. Hence, while S.O.655 (E) regulates the
trade in livestock products, S.O. 1663 (E) prohibits the trade in livestock products under specific
conditions. Thus the United States must not be permitted to raise claims concerning the health
certificates in its submissions.

E
 (I): ORDER OF ANALYSIS

21. United States has raised claims under the following provisions of the SPS Agreement and
GATT 1994: Articles 5.1, 5.2, 2.2, 3.1, 5.6, 6.1, 6.2, 2.3, 5.5, 7, and Annex B of the
SPS Agreement and GATT Article XI. Though the United States has commenced its submission with
a claim with Article 5.1 of the SPS Agreement, it is India’s submission that the Panel must
commence its analysis under Article 3 as India being the party imposing the SPS measure is
claiming that its measure conforms to the international standards. In the event, the SPS measure
at issue is held to be in conformity with international standards, the Panel need not examine
compatibility of the SPS measure at issue with other provisions of the SPS Agreement.

22. The above is equally applicable if the SPS measure is found to be ‘based on’ international
standards and only that aspect of the law which the Panel holds is not ‘based on’ the international
standard will need to be further examined under Article 2.2, 5.1 and 5.2.

23. Further if the Panel were to find that India’s measure is not consistent with Article 3, then
India submits before the Panel that it should analyze the claim of consistency by India with
Article 2.2 as it provides for an overarchin g principle and is applicable to the entire
SPS Agreement. Further Article 2 informs Article 5.1 and Article 2.3 informs Article 5.5 and if the
Panel were to find that India’s measure is based on scientific principles and not maintained without
sufficient scientific evidence pursuant to Article 2.2 of the SPS Agreement, a further analysis under
Article 5.1 would be unnecessary. Hence India would submit before the Panel that it should
commence its analysis with Article 3 of the SPS Agreement.

E
 (II) & E (III): INDIA’S MEASURE CONFORMS TO THE OIE CODE

24. The OIE recognizes the prerogative of every Me mber to set its own level of protection and in
view of the same has formulated a code wherei n it has provided various situations in which
products may be traded. For instance for poultr y products mentioned within the chapter, the
importing country may condition the entry of a poultry product upon the exporting country being
free from both HPNAI and LPNAI. Alternatively the OIE also enables countries to condition the
entry of the poultry product only from the specific zone or compartment which has been
recognized by the importing country.

25. Hence an importing country is free to choose the ‘condition of entry’ upon the fulfillment of
which it will allow poultry products to be imported. Because the ‘condition of entry’ for each
poultry product stated in the OIE Code provides several options, the condition of entry that an
importing country implements will depend on its appropriate level of protection ( ALOP). The OIE
Code does not stipulate what level of freedom a country must seek from the exporting country, it
leaves that choice to the importing country but only recommends sanitary conditions which should
be fulfilled by the consignment and which should fu rther be attested to by the veterinary authority
of the exporting country.

26. The United States has adduced claims starting with Article 5.1 and 5.2 and 2.2 specifically
alleging that as far as fresh meat of poultry and eggs are concerned, there is no scientific basis to
maintain a temporary import suspension of the type maintained by S.O. 1663(E). Thus India’s
claim stating that India’s measure is in conformity with the OIE Code will be limited to standards
pertaining to eggs and fresh meat of poultry as it is evident that the United States claims pertain
only to these products. However, if the United States makes substantive submissions in this
regard, India reserves the right to respond to such further submissions.

27. Article 10.4.1.10 of the OIE Code stipulates that if a country notifies HPAI or LPAI in poultry,
Member countries can impose immediate ban on trade in poultry commodities depending on the
condition of entry they have selected based on the level of protection they have deemed
appropriate. Further the OIE Code also provides for condition of entry for each poultry product

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mentioned therein. Hence if a country has decided based on its ALOP that it will condition entry of
eggs and fresh meat of poultry from the exporting country upon NAI country freedom then if the
exporting country notifies either HPNAI or LPNAI in poultry, the said products can be banned from
the exporting country upon the notification and wi ll be allowed once the country notifies freedom
again to the OIE. Likewise if a country has decided based on its ALOP that it will condition entry of
eggs and fresh meat of poultry from the exporting country from specified zones which are free of
NAI, then if the exporting country notifies either HPNAI or LPNAI in poultry in areas outside a
recognized zone, the said products will be banned from the entire exporting country except the
recognized zone and will be allowed once the country notifies freedom again to the OIE.

28. India’s sanitary regime for imports of poultry products is governed by S.O. 1663(E) as per
which the condition of entry for poultry products into India is NAI freedom in poultry. If the
exporting country is not free from NAI in poultry, it provides for import restrictions on commodities
mentioned therein till the time the exporting country regains NAI freedom. Once the country
regains NAI freedom, poultry products can be imported by applying for SIPs which are valid for
6 months. Imports can then be made on the basis of the SIP and every consignment is required to
be accompanied by a veterinary certificate attested to by the official veterinarian of the exporting
country.

29. The veterinary certificates contain several sanitary conditions which are required to be
attested by the veterinary authorities of the exporting country so that every consignment is safe
for import. Hence in effect, S.O. 1663(E) implements the ‘condition of entry’ requirement reflected
in each product specific recommendation and in Article 10.4.1.10. On the other hand the
veterinary certificates implement the health certificate requirements under each product specific
recommendation.

30. Thus S.O. 1663 (E) provides for immediate suspension of import of livestock product from
countries reporting NAI and which conforms to Article 10.4.1.10 of the OIE Code. Similarly
according to the condition of entry for livestock products under S.O. 1663 (E), NAI freedom is
required for imports into India and which conforms to the condition of entry for the same product
under the OIE Code. In view of the above, India submits that its measure conforms to the OIE
Code. Since India has established that its measure conforms to the OIE Code, the measure is
presumed to be consistent with the SPS Agreement and the GATT 1994. Hence the United States
claim under GATT Article XI is not sustainable. Further the United States claim that India’s
measure violated Article 3.1 by not allowing imports from zones or compartments is also not made
out as India has clearly established that the OIE Code and the SPS Agreement permit a country to
determine its ALOP and the OIE Code permits countries to condition the entry of a poultry product
upon the exporting country being free from both HPNAI and LPNAI.

31. Alternatively India also submits that its measure is based on the OIE Code. As per the
Appellate Body (AB), a domestic SPS measure can be found to be "based" on the international
standard, if it adopts a part of the international standard or is supported by the international
standard. In such a scenario, the part of the domestic measure which adopts the international
standard should have the presumption of "conforming" to the international standard and be
presumed to be consistent with the SPS Agreement and the part of the domestic measure which
does not adopt the international standard should be justified under other provisions of the
SPS Agreement.

E
 (IV): THE UNITED STATES CLAIM UNDER ARTICLE 2.2, 5.1 AND 5.2

32. The United States in its claim under Article 2.2 has adduced scientific evidence with respect
to eggs and fresh meat of poultry. As per th e statement of David Swayne adduced by United
States, since LPNAI virus is only present in the respiratory and digestive tract of chicken and not in
the meat, bone and inside eggs, fresh meat of poultry does not present any risk. However because
HPNAI virus causes a systemic infection and the HPNAI virus is present in various parts of the
chicken, therefore a restriction on fresh poultry meat and eggs products (and other products)
originating from an HPNAI infected countries is justified. Thus as per the United States except for
systemic distribution, in other respects such as efficacy of transmission and modes of
transmission, LPNAI and HPNAI viruses are exactly alike

33. However the study adduced by India, i.e. Post et al. clearly rebut the above argument of
United States. The study Post et al. clearly establishes that LPAI viruses (H5N2, H7N1, H7N7,

- B-32 -

H9N2. H7N7) can cause systemic infection and can sp read to internal organs of the bird. Thus the
fact that LPNAI virus can spread systemically with in various internal organs clearly puts the risk
emanating from the LPNAI virus on the same pedestal as the HPNAI virus. Since Post et al.,
establishes the systemic spread of LPNAI in the bird, keeping Swayne’s statement in mind, a
restriction on fresh poultry meat, eggs and other products originating from an LPNAI infected
country is equally justified.

34. Having established that United States has not been able to present a prima facie claim under
Article 2.2, India submits that its measure is base d on scientific principles and sufficient scientific
evidence on account of the following: a) India’s measure conforms to or at based on international
standards, which fulfils the requirement of scientifi c principles and sufficient scientific evidence; b)
The fact that a number of other countries maintain similar import restrictions upon occurrence of
NAI proves that the risk is well founded; c) existing scientific literature supports measures
maintained by India.

35. With respect to the first requirement, Indi a relies on its submission and arguments made
under Article 3 which establishes that India’s measures conforms to the OIE Code and therefore is
consistent with Article 3 of the SPS Agreement and therefore is also based on scientific principles
and sufficient scientific evidence as required under Article 2.2 of the SPS Agreement. With respect
to the second requirement, India submits that many other countries such as Singapore,
Philippines, Japan, Colombia, China etc. are maintaining similar import prohibition on occurrence
of HPAI or LPAI virus. Thus the measures being followed by these countries reflect the risk
associated from an occurrence of HPNAI or LPNAI virus.

36. Thirdly in light of available scientific evidence which suggests that the LPNAI virus can
spread systemically within the bird, the basis for justifying a ban on fresh poultry meat, eggs and
other poultry products from HPNAI countries is equally applicable to these products when they
originate from LPNAI countries. This alone suffices for purposes of a finding that a temporary
import suspension on fresh meat of poultry, eggs and other poultry products originating from a
LPNAI country are based on sufficient scientific evidence.

37. Furthermore even assuming that LPNAI virus is only restricted to the respiratory and
intestinal tracts, even so, fresh meat of poultry as it is traded still carries a risk of harboring the
LPNAI virus. This is because during processing of raw meat of chicken for export, all the internal
organs of the chicken are not removed (especially kidney, liver, heart and even pieces of lungs)
and are part of the carcass imported as raw me at. Thus there is a very high possibility of
contamination of the rest of the meat due to the presence of LPNAI virus in respiratory and
intestinal tracts.

38. With respect to Article 5.1 and Article 5.2, the United States has argued that India’s
measure is not based on Article 5.1 as India has not conducted its own risk assessment. However
if the Member conforms to or bases its measure on the international standard, there is no need to
conduct a separate risk assessment. In this respect, it is India's position that since its measure
conforms to or is based on the OIE Code there is no obligation on India to conduct a risk
assessment.

39. Even otherwise the scientific evidence submitte d by India to justify an import suspension on
fresh meat of poultry and eggs from LPNAI countri es clearly establishes the risk in trade from
these commodities and fulfils the requirement of not maintaining its measure without sufficient
scientific evidence under Article 2.2 and India is under no obligation to conduct a separate risk
assessment in this instance.

E
 (V) & E (VI): THE UNITED STATES CLAIM UNDER ARTICLE 2.3 AND 5.5

40. The object of challenge under Article 2.3 claim of the United States FWS is NAP 2012.
However SPS Agreement is only applicable to measures which may directly or indirectly affect
international trade as required by Article 1 of the SPS Agreement. Though NAP 2012 can be
considered to be an SPS measure as defined under Annex-A, it is not a measure to which the
SPS Agreement applies because NAP 2012 or for that matter NAP 2006 does not directly or
indirectly affect international trade.

- B-33 -

41. Further as per United States, discrimination und er first situation of Article 2.3 results due to
the fact that India places a countrywide ban on imports from an exporting country that notifies
either HPNAI or LPNAI. On the other hand, when faced with an HPNAI outbreak in its own territory,
India applies control measures limited to 10 km surrounding the epicenter of the outbreak.

42. Firstly India considers that the OIE Code permits importing countries to demand country
freedom from exporting countries and India believe s that a suspension of imports for a minimal
period of close to three months is necessary to ensure that infected poultry products do not enter
India from a country which is experiencing an active outbreak.

43. Secondly, the situation of a country (such as India) when it experiences an outbreak of
avian influenza within its territory and hence has to take control measures to prevent spread of the
disease, is highly distinct from its situation as an importing country which has to ensure that
infected products from countries experiencing ac tive NAI outbreaks do not enter its territory. The
risks that the two situations present are entirely different.

44. A country reporting an occurrence of NAI takes all possible measures to prevent to control
and to contain the spread of virus as the epicenter of the virus is known. With imports on the other
hand, in the absence of control measures, agents of disease transmission could enter a country
and could be dispersed over a large area throug h internal commerce and trade. This amplifies
manifold the risk of initiating several NAI outbreaks in different parts of an importing country
through imports of potentially infected agents of NAI. Hence, the measures that a country takes in
these two situations would quite naturally and logically be different.

45. As per the United States, discrimination under second situation of Article 2.3 results due to
the fact that though it bans poultry products from LPNAI reporting countries it takes no control
measures to detect and hence to prevent outbreaks of LPNAI. However this is incorrect. As stated
above, India carries out various types of control and surveillance measures for NAI and the same
has also resulted in the discovery of other strains of LPAI (strains other than H5 or H7). The OIE
provides that countries may take trade related measures to prevent ingress of a disease which is
exotic to it. Since India has never had an outbreak of LPNAI and the same is exotic to India, it
never needed to take any domestic control measur e. Thus mere application of differential control
measures cannot ipso facto amount to discrimination especially when the risks presented by the
two situations are entirely different.

46. The United States also alleges that India’s measure constitute disguised restriction on trade,
though the claim is quite ambiguous. Firstly as India had already clarified, its measures are neither
unjustifiable nor discriminatory. Secondly an import prohibition by itself would not amount to
disguised restriction in trade especially when India’s measure is based on international standards
which recommend the same.

47. With respect to the claim of the United St ates under Article 5.5, India submits that the
United States claim does not establish a prima facie case as it has not established the basis of its
allegation under each of the three element of Article 5.5 as required. The FWS by the United
States simply makes a reference to what it believes are "different situations", which is only the
first element of the three part test under Article 5.5. There is no explanation whatsoever on the
other two elements. Even on the first element the submission simply notes that different situations
exist but does not explain why those situations are comparable in the first place.

48. Thus the United States FWS is highly inadequate for its lack of any substantive arguments
establishing in detail and with clarity the alleged violation of Article 5.5 through the three
cumulative elements therein. However without prej udice to India’s right to provide a rebuttal to
further facts or legal submissions adduced by the United States with respect to its Article 5.5
claim, it is India’s submission that for the same reasons as explained before in Article 2.3 with
respect to the different situations, a violation of Article 5.5 is not made out by the United States.

E
 (VII): THE UNITED STATES CLAIM UNDER ARTICLE 5.6 AND 2.2

49. The claim of the United States under Article 5.6 appears to be limited to the prohibition on
imports of fresh meat of poultry and eggs from countries notifying LPNAI as the United States has
not adduced evidence with respect to other produc ts or HPNAI. Further the United States claim
under Article 5.6 incorrectly identifies India’s ALOP through its domestic measures, i.e. the NAP. As

- B-34 -

per Annex A (1) of the SPS Agreement, an ALOP is the level of protection which is sought to be
achieved by the SPS measure at issue, which in th is case is S.O.1663 (E). The identification of the
wrong ALOP leads to a fatal error in the analysis and strikes at the very root of the United States
allegation under Article 5.6.

50. Secondly the United States also does not clearly identify an alternative measure which would
fulfill India’s ALOP. The submission simply refers to the OIE Code as an alternative measure and
perfunctorily states that the OIE Code is reasonably available without explaining which specific
controls it is referring to. Thus it is clear from the United States submission that by suggesting
India should permit unrestricted trade in eggs and meat from LPNAI countries or permit trade in
these products from zones or compartments es tablished in the exporting country, the United
States is asking the Panel to compare the trade restrictiveness of S.O. 1663(E) with the ALOP it
believes should apply, rather than the level of protection which is reflected in S.O. 1663(E).

51. Since LPNAI is exotic to India, S.O. 1663(E) ensures that poultry commodities from LPNAI
reporting countries which present a risk of transmitting the infection are not traded during an
active outbreak. Thus an alternative measure suggested by the United States would need to be
such as would ensure the same level of protection as the import prohibition currently does which is
not the case.

52. The United States makes an unsubstantiated claim that a breach of Article 5.6 results in a
consequential breach of Article 2.2. However this is based on an incorrect reading of an AB
judgment wherein the AB simply stated that there existed similarities between the requirements of
the two articles. However it explicitly stated that such similarity cannot lead to the assumption that
a violation of Article 5.6 will in all cases lead to a violation of Article 2.2. The United States
incorrectly reads the Appellate Body’s ruling as a positive statement that in all cases a violation of
Article 5.6 will necessarily lead to a violation of Article 2.2.

E
 (VIII): THE UNITED STATES CLAIM UNDER ARTICLE 6

53. Article 6.1 states that guidelines developed by international organizations for recognition of
pest/disease free areas or areas of low pest/disease prevalence shall be taken into account by
Members for the purposes of recognition of such areas. However Article 6.3 places this burden
upon the exporting country to initiate the proposal to recognize zoning or compartmentalization
and to provide documentary evidence that the pr oposed pest/disease free areas or areas of low
pest/disease prevalence exhibit adequate bio-security measures as may be necessary to achieve
the importing country’s ALOP and the same is also affirmed by the OIE Code. The United States
view that Article 6 places a unilateral and suo moto obligation on the importing country to
recognize and accept, pest/disease free areas without any evidence represents a flawed
understanding of Article 6.

54. However the United States has neither made a formal request to India for information and
for recognition of a specific pest/disease free area nor responded to India’s suggestion with a
counter proposal to take this process forward even though India has communicated its willingness
to consider compartments.

55. Lastly the United States by making a claim that India is under an obligation to recognize
pest/disease free areas or areas of low pest/disease prevalence, acknowledges that international
trade in these products presents a valid risk of transmission of the disease, which justifies a
country wide ban, but that under provisions of Article 6, those risks can be minimized by
establishing zones or compartments which fulfill the bio-security concerns of the importing
country.

E
 (IX): THE UNITED STATES CLAIM UNDER ARTICLE 7 AND ANNEX B OF THE
SPS AGREEMENT

56. The United States claims that India violates its notification obligations under Annex B of the
SPS Agreement. The argument of the United States is incorrect as the chapeau of paragraph 5
clearly states that the obligations under that para graph only arise when there are no international
standards or the content of the measure is not the same as the content of the standard. Since
international guidelines exist and India’s measure conforms to or is based upon such standards,
the obligation under Annex B is not applicable to India.

- B-35 -

ANNEX B-6
EXECUTIVE SUMMARY OF THE OPENING AND CLOSING STATEMENTS
OF INDIA AT THE FIRST SUBSTANTIVE MEETING OF THE PANEL
OPENING STATEMENT

1. India believes that the crux of this dispute is essentially two-fold: (i) whether India's
measures on fresh meat of poultry and eggs conform with the OIE Code (ii) whether India has a
unilateral obligation to recognize areas of no or low disease prevalence in the territory of the
United States.

2. The United States mischaracterizes S.O. 1663 (E) by stating India imposes a permanent ban
and that the ban is imposed even when a country reports LPAI in wild birds. Numerous SIPs
submitted by India prove that the ban is not perm anent and lasts until a country notifies freedom
and that it is not imposed pursuant to notifications of LPAI in wild birds.

3. The United States claims that there is "no need" to prohibit eggs and fresh meat of poultry
from countries reporting LPNAI. Hence it recognizes that OIE standards allow a country to demand
NAI country freedom from exporting countries but insists that India should ignore these standards
and should import eggs and fresh meat of poultry even when a country declares LPNAI.

The OIE Code and how it is to be read

4. The OIE Code definition for NAI includes both HPNAI and LPNAI. When a country declares an
HPNAI outbreak it cannot be considered to be free from HPNAI or free from NAI. However when a
c o u n t r y d e c l a r e s a n o u t b r e a k o f L P N A I , i t m a y b e f r e e f r o m H P N A I b u t b e c a u s e o f t h e L P N A I
outbreak it cannot be said to be free from NA I. Hence recommendations in the OIE Code which
mention "NAI free country, zone or compartment" encompass a situation where a country is free
from both LPNAI and HPNAI.
5. Since the OIE Code recognizes the prerogative of every Member to set its own level of
protection, the issue then becomes what level of protection is implicit in the standards
recommended by the OIE for trade in products from countries reporting notifiable avian influenza
and does S.O. 1663(E) embody this level of protection.

6. As India has explained in its FWS, the recommendations for poultry products are structured
in a manner wherein each recommendation contains a ‘condition of entry' followed by international
veterinary certification requirements which the consignment needs to meet and which is further
attested to by the official veterinarian of the exporting country. To illustrate, Articles 10.4.13 and
10.4.14 contain recommendations for imports of eggs for human consumption. Article 10.4.13
states " Recommendations for importation from an NAI free country, zone or compartment ".
Article 10.4.14 states " Recommendations for importation from an HPNAI free country, zone or
compartment". This is the condition of entry.

7. Once this is satisfied, the recommendation in both cases details the requirements that a
veterinary authority must attest to in the international veterinary certificate. These are the health
certificate requirements. Thus the health certif icate requirements are relevant only once the
condition of entry is fulfilled by the consignment. The health certificate requirements cannot
override the condition of entry stated for the prod uct. The United States presents an incorrect and
flawed understanding of the Code when it requires that India, instead of seeking country freedom,
should simply make do with attested health certificates.

Recognition of ALOP in the OIE Code

8. An importing country can condition entry of poultry products from a range of options such as
NAI or HPNAI country, zone or compartment freedom. By giving these options, the OIE Code
recognizes the right of an importing country to determine the level of freedom it deems
appropriate before permitting imports. Article 10. 4.1.10 states that an immediate ban should not

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be imposed on poultry commodities due to notifications of HPAI or LPAI in wild birds. That is to say
a country may prohibit a poultry product in response to a notification of NAI in poultry.
Article 10.4.1.10 simply reasserts the condition of entry under the product specific measure which
is taken in light of a country's ALOP.

9. Under the interpretation presented by the United States and EU, notifications of LPNAI would
be irrelevant. So long as the notifying country is free from HPNAI, no importing country would be
able to restrict imports of poultry products from such country on grounds of a notification of
LPNAI. In effect it amounts to suggesting that the specific mention of LPNAI as being a notifiable
disease is purely an academic exercise having no significance for the regulation of trade from such
countries and all standards providing for NAI freedom are redundant and should be read out of the
OIE Code.

India's measure is in conformity with the OIE Code

10. The import prohibition under S.O. 1663(E) with respect to eggs for human consumption,
hatching eggs, egg products and fresh meat of poultry is in conformity with the ‘condition of entry'
requirement reflected in the relevant product specific recommendation and in Article 10.4.1.10 of
the OIE Code. The relevant product specific standards allow for imports from a NAI free country. A
natural corollary of implementing this level of protection is an import prohibition from a country
which is not NAI free. Thus the level of protecti on is NAI freedom and the element implementing
the NAI country freedom standard is the resulting prohibition. Thus the specific clauses for eggs,
hatching eggs and fresh meat of poultry of S.O. 1663 (E) not only embody the level of protection,
i.e. NAI country freedom which is explicitly provided in each of the relevant product specific
recommendations but also embody the resulting element implementing the standard, namely the
import prohibition from a country which is not free from NAI.

11. Hence Clauses 1(ii) (c), (d), (e), of S.O. 1663(E) pertaining to fresh meat of poultry,
hatching eggs, eggs and egg products are in conformity with Article 10.4.19, Article 10.4.10,
Article 10.4.13 and Article 10.4.15 respectively and also in conformity with Article 10.4.1.10 of the
OIE Code and should be presumed to be cons istent with the SPS Agreement and GATT 1994. For
the same reason these clauses are also based on the OIE Code in accordance with Article 3.1 of
the SPS Agreement.

India will now address the regionalization claim raised by the United States

12. The United States makes its claim purely on the basis of Article 6.1 and 6.2 of the
SPS Agreement while ignoring the critical obligation imposed on exporting countries in this respect
under Article 6.3 of the SPS Agreement and under the OIE Code. While Article 6.1 provides broad
principles that need to be taken into consideration by a Member while formulating its SPS
measure, Article 6.2 provides guidelines on the basis of which disease or pest free areas may be
recognized. However the onus to prove that the area is infact disease or pest free and hence fulfils
the importing country's ALOP is upon the exporting country under Article 6.3.

13. That the onus is firmly placed on th e exporting country is also echoed by the
recommendations provided by the OIE Code on zoning and compartmentalization. The OIE Code
states, [B]efore trade in animals or their products may occur, an importing country needs to be
satisfied that its animal health status will be ap propriately protected. In most cases, the import
regulations developed will rely in part on judg ments made about the effectiveness of sanitary
procedures undertaken by the exporting country, both at its borders and within its territory" .
Further, The Veterinary Services of an exporting co u n t r y s h o u l d b e a b l e t o e x p l a i n t o t h e
Veterinary Services of an importing country the basis for claiming a distinct animal health status
for the given zone or compartment under consideration.

14. Unless the United States establishes a disease free zone or compartment, makes public the
existence of such zone or compartment, establishes through documentation that the control and
surveillance measures fulfil India's ALOP, India is under no obligation to unilaterally recognize
alleged zones within the United States as being pest or disease free. The United States has not
initiated a bilateral mechanism, namely the presentation of a proposal to India for recognition of
disease free zones or compartments. India fails to s ee merit in the United States claim of violation
of Article 6. Articles 6.1 and 6.2 do not operate independently of Article 6.3 and do not impose any
obligation upon the importing country in the absence of the triggering steps under Article 6.3.

- B-37 -

India does not arbitrarily or unjustifiably discriminate between its own territory and
that of other Members

15. The United States compares India's domestic control measures versus the NAI country
freedom from imported products to suggest that India arbitrarily or unjustifiably discriminates
between its own territory and that of an expo rting Member. This scenario presented by the
United States does not present identical or similar conditions such that it can be validly compared
under Article 2.3. A country wide ban against Memb ers reporting an active outbreak of NAI is not
an identical or similar situation to a control measure applied within the municipal limits of a
country during an outbreak of NAI.

16. In domestic outbreaks, the epicenter of the disease is known and identified and the risk is
one of further spread beyond the originally infected area. With imports on the other hand, in the
absence of control measures, agents of disease transmission could enter a country and could be
dispersed over a large area through internal commerce and trade. Further as an importing
country, it cannot exercise control over containment and disinfection methods applied by exporting
countries and therefore has to necessarily apply bord er measures to ensure that agents of disease
transmission do not enter its territory.

17. The United States also claims that India bans poultry products from LPNAI reporting
countries but takes no control measures to dete ct and hence prevent outbreaks of LPNAI. This
conjecturing is solely to divert the Panel's attention from what is fundamentally a distinction
between the situation prevailing in the United States which has experienced several outbreaks of
LPNAI and India which has only experienced outbreaks of HPNAI. The fact is LPNAI is exotic to
India and India has to date neither detected, despite routine surveillance, nor experienced
outbreaks of LPNAI.

18. Under Article 2.3 a mere formalistic distinction between measures does not suffice. It is only
distinction that is either arbitrary or unjustifiable which leads to a violation of the Article. Any
enquiry must accordingly focus on whether there is a legitimate cause or rationale for the alleged
distinction. Panels have advised that measures applied must be examined in the "specific context
of the relevant risks" posed by the two situations to determine if there is any justification for the
distinction in sanitary measures. The United States projects a "one size fits all" approach which is
clearly disproportionate to the risks presented in both scenarios.

19. United States' arguments on India's measure constituting a disguised restriction on
international trade suffer from a severe lack of clarity. Panels have explained that "the key to
understanding what is covered by "disguised restriction on international trade" is not so much the
word "restriction", but the word "disguised". The United States has not adduced facts which
establish that by prohibiting imports from LPNAI notifying countries, the measure was giving effect
to an alleged protectionist aim of benefiting the domestic industry.

Claims under Article 5.5 should be rejected on grounds of serious ambiguity

20. The United States claims under Article 5.5 ar e vague and prejudice India's right of defense.
All 6 factors need to be established by a complaining party through positive proof before a prima
facie case under Article 5.5 can be made. Mere assertion of a claim does not amount to proof of
having actually established a violation therein. The United States claim is identical to the summary
provided in the panel request. There is no further analysis.

21. The United States also cannot rely on its arguments under Article 2.3 to establish a
prima facie case under Article 5.5 without providing anything more. Panels have held, a violation
of Article 5.5 may result in violation of first or second sentence of Article 2.3, but the reverse is
not true.

The United States has not made out a case under Article 5.6

22. The United States claim under Article 5.6 is severely deficient on many levels. The
United States suggests that India's ALOP can be fulfilled by standards provided for in the OIE
Code. This is surprising because India does follow the OIE standards when it requires NAI country
freedom from exporting countries before trade in eggs and fresh meat of poultry can take place.

- B-38 -

23. Another fatal flaw in the United States claim concerns the discussion on the ALOP. Under
Article 5.6 the complainant must establish that an alternative measure suggested by it fulfils the
level of protection which is achieved by the measure at issue, which in this case is S.O. 1663(E),
and not an ALOP it believes the importing country should apply. Instead the United States
identifies the NAP 2012 and incorrectly discerns fr om it the ALOP it believes India seeks from
imports. NAP 2012 has no application to imports and the ALOP India seeks from imports cannot be
identified from an unrelated legislation. Due to the incorrect identification of the ALOP, the
ensuring analysis is also seriously faulty and should be rejected.

24. The two alternative measures suggested by th e United States are also unviable. The first
option, ‘unrestricted trade' requires India to igno re the ‘condition of entry' provided in the OIE
Code and suggests that India import poultry products from a country during an active outbreak
purely on the strength of its veterinary certific ates. The second option pertaining to zoning and
compartmentalization would also not be a ‘reasonably available alternative measure' until zones or
compartments are first established by the United States and further shown to ensure the same
level of protection as the import prohibition currently does.

CLOSING
 STATEMENT

25. The OIE Code has to be read as a whole and not in a piecemeal fashion. The United States
adopts a reading which results in reading out entire provisions in the OIE Code pertaining to NAI
country freedom. It is undisputed that every WTO Member has a right to determine its own
appropriate level of protection. India has determin e d t h a t i t s A L O P i s f u l f i l l e d b y N A I c o u n t r y
freedom as reflected in the recommendations of the OIE Code. Hence a reading which restricts the
right of India to seek NAI freedom in favour of only HPNAI freedom is untenable and undermines
India's sovereign right to determine its ALOP.

26. The United States insists that SPS measures should always be supported by a risk
assessment. As is clear, any measure that reflects the level of protection prescribed by an
international standard ipso facto reflects the assessment of risk and scientific evidence of the
standard setting body. To insist on a risk assessment even when a Member adopts international
standards defeats the purpose and objective of harmonization contained in the SPS Agreement.

27. At the substantive meeting the United States did not dispute that there is no unilateral
obligation on the importing country to recognize zones or compartments. The only question then is
whether the United States as an exporting country fulfilled its burden by providing information on
the basis of which India could have made an assessment that such zones meet India's
requirements. To date United States has not provided this information and India is under no
obligation to unilaterally recognize areas within the United States which it claims are pest or
disease free.

Conclusion

28. Panel must note that the United States has raised objections to India's measure as it applies
to eggs and fresh meat of poultry when a country reports LPNAI. It has not addressed other
products or another disease, namely HPNAI. The Panel's enquiry must be limited to products and
the disease specifically addressed. Further, claims under Article 5.5 and 5.6 are severely deficient
and the Panel must hold that the United States has not fulfilled its burden of proof and established
a prima facie case.

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ANNEX B-7
EXECUTIVE SUMMARY OF THE SECOND WRITTEN SUBMISSION OF INDIA
1. India's rebuttal submission will address the following themes in response to the issues raised
by the United States ( US) in its First Written Submission ( US FWS), opening statement made at
the meeting of the Panel with the Parties (US Opening Statement) and in its replies to questions
posed by the Panel (US Replies):

I. SELECTIVE AND PIECEMEAL READING OF THE OIE CODE BY THE UNITED STATES

2. India pointed that the US does not object to the right of a country to require NAI country
freedom from the exporting country before permitti ng trade in fresh meat of poultry and eggs. It
nevertheless insists that India must accept eggs and fresh meat of poultry from the US when it is
reporting an outbreak of LPNAI. The US points out that the OIE expressly provides that detections
of HPAI and LPAI in birds other than poultry should not give rise to trade bans in the context of
Article 10.4.1.10 of the OIE Code. The US did not cite this Article for the proposition that
detections of LPNAI in poultry should not give rise to trade bans. It could not, because the OIE
Code nowhere proscribes what is the natural outcome of NAI freedom, i.e. a prohibition on imports
of poultry products from a country that declares LPNAI or HPNAI. Likewise the EU made it clear
that it believes a ban imposed on countries on account of a notification of LPAI in wild birds is not
in conformity with Article 10.4.1.10 and like the US , the EU does not take the position that bans
following notifications of LPNAI in poultry are not in conformity with the OIE Code.

a. Does the OIE Code envisage a ban?

3. A review of US submissions and evidence reveals that it believes a ban is justified against
countries which report HPNAI in poultry. As a matter of policy the US prohibits imports from
countries declaring HPNAI (such as India) and the restriction is imposed on a permanent basis.
The distinction that the US makes with respect to HPNAI and LPNAI is surprising because the OIE
Code nowhere recommends imposing a ban on account of HPNAI either. Yet the US is of the
opinion that the very same Code permits a ban on account of HPNAI but does not permit a ban on
account of LPNAI.

4. An import prohibition is the natural implication of the 'condition of entry' not being met by
an exporting country. When imports originate from countries having outbreaks of HPNAI or LPNAI
such countries are not HPNAI or NAI free. Since the standards recommend that imports should
take place from HPNAI or NAI free countries, by its very implication, the standard acknowledges
that if a country is not free, the import need not take place. The natural outcome of importing
countries enforcing NAI or HPNAI freedom from their trading partners is through an import ban.

b. Purpose behind notification of LPNAI

5. A related point raised by the US is that OIE requirements, as far as LPNAI are concerned,
are limited to the notification obligation. This is not the case. Article 10.4.1.10 makes it abundantly
clear that while countries may restrict imports from trading partners notifying LPNAI in poultry,
they should not do so when a country notifies LP AI in wild birds. Likewise the OIE's User Guide
states that the recommendations are designed to prevent 'diseases in question' from being
introduced into an importing country. As far as the OIE Code is concerned, the 'diseases in
question' are both HPNAI as well as LPNAI.

c. Origin of a product is a risk mitigation condition

6. India has submitted that recommendations which provide for 'importation from a NAI free
country' cover a situation where a country is free from both LPNAI and HPNAI. Thus if a country is
free from HPNAI but not from LPNAI, this condition would not be met. The US insists that eggs and
fresh meat of poultry should nonetheless be imported from LPNAI positive countries as other
control measures may be applied to mitigate the risk of LPNAI.

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7. Firstly, this reading goes against the US' own position that bans are permissible when
products originate from HPNAI countries and secondly it ignores the explicit wording of various
recommendations for eggs and fresh meat of poultry which provide 'Recommendations for
importation from a NAI free country/zone/compartment' . The Panel must note that the
recommendations in question do not recommend importing from a country which is not free. The
OIE recommendations contain two risk mitigation conditions. The first recommendation to
mitigation risk suggests that the product must originate in a free country. The second form of risk
mitigation requires that the export consignmen t is additionally accompanied by a veterinary
certificate certifying that the export consignment has been rendered risk free through the
application of additional control measures. Both conditions ensure that trade in animal takes place
with "an optimal level of animal health security." India's regime for the import of poultry products
ensures that both risk mitigation conditions are applied as recommended by the OIE Code. India
enforces the condition of entry with S.O. 1663(E) and the veterinary certificate through
S.O. 655(E). This is not akin to the pick and choose approach advocated by the US.

d. Other recommendations in the OIE Code indicate that countries can ban imports
on account of LPNAI

8. Article 10.4.5 which pertains to imports of 'live poultry (other than day old live poultry)'
provide recommendation from NAI free country only. A log ical reading of this recommendation
suggests that if a country declares LP NAI it would not be free from NAI and an importing country
need not import from such country. It would be immaterial that such country is free from HPNAI
and control measures such as showing no clinical signs of NAI and transportation in sanitized
containers, are available to mitigate risk agains t LPNAI. Even the US agrees that Article 10.4.5
recommends that adult poultry should not be impo rted from a country not free from LPNAI. Thus
the issue is not whether products can be safely traded from countries which have notified LPNAI
but whether the OIE Code permits countries to import only from NAI free countries.

e. United States conflicting position on 'l evel of protection' and 'appropriate level of
protection'

9. The US first claimed that standards by themselves did not reflect any level of protection but
reflect simply the disease status of the exporting country. The US later admits that international
standards do indeed reflect and are premised to achieve a certain level of protection. But only the
WTO SPS Agreement recognizes this sovereign right of Member countries and not the OIE Code.
This is incorrect as OIE's guidance note provides that concepts provided for in the SPS Agreement
are recognised in the OIE Code including a member's right to adopt an appropriate level of
protection.

10. The OIE Code recognizes that the animal he alth status of the exporting country must be
taken into account. The OIE also recognizes that the standards are designed to prevent the
disease in question being introduced into the importing country . HPNAI and LPNAI are both
notifiable diseases, the assumption is that Chapter 10.4 recommendations are designed to prevent
HPNAI and LPNAI being introduced into the importing country. The Code states that,
"recommendations in the Codes focus on the animal health situation in the exporting country, and
assume that the disease is not present in the impo rting country or, if present, that the disease is
the subject of official control programmes. Im porting countries should not impose sanitary
measures for diseases or pathogens that occur in the importing country unless they are the
subject of official controls and, in this case, the measures applied to imports should be no stricter
than the official controls applied to similar animals/animal products in the country." The guidance
makes it clear that while the animal health situation in the exporting country is a relevant factor,
just as relevant is the disease and control situation in the importing country. The aim of India's AI
regime is to eradicate AI from its territory. India is thus entitled to take sanitary measures that
prevent both HPNAI as well as LPNAI from being introduced into India. India's ALOP would not be
fulfilled by prohibiting imports from HPNAI countries alone. Thus India takes measures to prevent
the ingress of both diseases of concern as recommended by the OIE Code.

f. Practice of other WTO/OIE Members

11. India has also provided extensive evidence in the form of laws maintained by other countries
which impose a ban on exporting countries which notify LPNAI. The WTO notifications cite the OIE

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Code as the relevant international guideline, standards or recommendation on which the ban is
based and supported by.

II. CONFORMITY OF INDIA'S ME ASURES WITH THE OIE CODE

a. The relevant standard

12. India has provided substantive arguments for its claim that clauses 1 (ii) (c), (d) and (e) of
S.O 1663 (E) conform to the product specific recommendations in the OIE Code (i.e.
Articles 10.4.19, 10.4.10, 10.4.13 and 10.4.15) and with Article 10.4.1.10. Articles 3.2 and 3.1 do
not use the word relevant. However, Article 3.3 elucidates when a sanitary measure may be said
to not be 'based' on an international standard. It clarifies that a measure which results in higher
level of protection than measures based on the relevant international standard shall have to
comply with Article 3.3. By implication the standards which are referred to in Article 3.1 and Article
3.2 are the very same standards under Article 3.3, i.e. 'relevant' international standards.

13. S.O. 1663 (E) pertains to the first risk mitigation condition in the product specific
recommendations, and hence product specific measures applicable to eggs and fresh meat of
poultry contained in S.O. 1663 (E) should be eval uated for their conformity with the relevant
standard, i.e. the "condition of entry" which is contained in each standard. India asserts that the
relevant standard is not only one which pertains to the specific products at issue but also one
which pertains to the specific subject matter of the law under challenge. The law under challenge
in this dispute is S.O 1663 (E) as it applies to eggs and fresh meat of poultry. The same law
prohibits entry of these products from countries reporting NAI. The US has specifically challenged
the "prohibition" under this notification. The su bject matter of S.O. 1663 (E) does not extend to
matters beyond the circumstances under which poultry products from avian influenza positive
countries may be allowed entry.

b. Measures based on an international standard

14. The EU specifies that a measure contrary to OIE standards would not be considered to be
"based on" these standards. According to the EU, a ban on poultry products on account of LPNAI in
poultry would not be " contrary to " Article 10.4.1.10 as opposed to a ban on account of
notifications of LPAI in wild birds. That which is not contrary to the Code is in fact supported by the
OIE Code. As the OIE Code 'allows' a ban on account of LPNAI in poultry, it cannot by necessary
implication be "contrary to" the OIE Code and is thus based on the Code. Thus, implementing
recommendations which call for importing from an "NAI free country/zone/compartment" results in
importing products from countries which are "free" from NAI. By its natural implication, a country
which is 'not free' from NAI would not satisfy this condition. In practical terms this is achieved
through an import prohibition, which ensures that products are not imported from countries that
have declared HPNAI or LPNAI.

III. CONTINUING DEFICIENCIES IN THE UNITED STATES CLAIM UNDER ARTICLE 6

a. The United States does not maintain zo nes or compartments within its territory

15. It is clear that the US does not maintain either zones or compartments as required under
Chapter 4.3 and 4.4 of the OIE Code and as requir ed under Article 6.3 of the SPS Agreement. In
order to describe its zoning measures, the US has instead alluded to measures it takes during an
outbreak of HPNAI and LPNAI. The OIE Code recommends that the concept or zoning and
compartmentalization pertain to measures taken "prior to outbreaks of diseases". It is evident that
the US has not implemented any measures for purposes of "putting the recommendations of the
Code in place".

b. United States shifting position on the obligation on an exporting country

16. The US agreed that any recognition by Indi a of zones or compartments maintained by the
US would be contingent upon the US making a request and providing supporting documentation. It
also agrees that "the question of whether a particular area presents characteristics of one type or
another is a different issue – that question may only be able to be resolved based on information
supplied by the exporting Member." However, in the same vein the US insists regionalization
requires the importing member to engage in an information gathering exercise on an exporting

- B-42 -

member's diseases surveillance and control measures to ensure itself that imports do not pose a
level of risk greater than the ALOP established.

c. The recognition of the "concept" of zo nes or compartments under Article 6.2 of
the SPS Agreement

17. Article 6.2 does not concern itself with the existence or the subject matter of the importing
country's legislation. It is immaterial under Article 6.2 whether there exists a law which recognizes
the concepts of zones/compartments and the details provided in such law. The Article obligates an
importing Member to recognize the concept and leaves the manner in which this may be
accomplished to the Member in question. A combined reading of Article 6.3 and 6.2 makes it
evident that once an exporting country provides relevant information, it is the obligation of the
importing country to give due regard to this prop osal and to evaluate it. The Article 6 Guidelines
highlight that regardless of whether a law recognizing zones exits, an exporting Member can
initiate the process and seek information on how its application may be processed. India has not
received proposals for regionalization or received any enquiries on its laws and procedure that
India might adopt to recognize an exporting country's zones or compartments.

18. The US claim of a breach of Article 6.1 is baseless. Relevant differences in sanitary
characteristics of different areas of the exportin g country cannot be established unilaterally by the
importing country. Article 6.1 does not require an importing Member to go on an information
gathering exercise. Such information would be avai lable once submitted by exporting countries to
importing countries.

d. Evidence does not establish that US pr ovided a proposal for recognition of zones

19. The United States in all its correspondence has not identified areas for which it sought
disease free status from India. The United States has failed to provide any technical
literature/documentation to substantiate its claims. To the contrary the letters cited contain a
comment on India's measure but provide no information on the US poultry industry or level of bio
security maintained against avian influenza. Merely suggesting that India modify its veterinary
certificate requirements does not equate with providing information on US zones or compartments
sufficient for India to determine if such zones or compartments meet India's ALOP.

IV. UNITED STATES CLAIMS ON DISCRIMINATION AND DISGUISED RESTRICTION ON
TRADE NOT MADE OUT

a. Claim concerning arbitrary an d unjustifiable discrimination

20. To support its claim, the United States submitted a study which recorded the presence of
antibodies to H7 in ducks. The US relies on this only evidence to suggest that India has LPNAI
outbreaks which it is not controlling. India has substantiated that nothing in the study indicates
that the antibodies to H7 were low pathogenic. According to the OIE Code, virus isolation tests are
required to be conducted before an LPNAI or HP NAI infection can be said to have conclusively
occurred. LPNAI is exotic to India and India is enti tled to take measures to prevent introduction of
a disease.

21. It also alleges that imposing country wide bans against imports but limiting trade to the
affected zones internally results in discrimination. India has explained that as an importing country
India is compelled to apply dissimilar control me asures to its import and to domestic outbreaks
because it cannot "exercise control over containment and disinfection methods applied by
exporting countries and cannot certify the health an d safety of imported products. The US insists
that India must gather information on an exporting country's surveillance and control mechanisms
to satisfy itself that such measures are strong enough to contain outbreaks in those countries.
Article 10.4.30 and Article 10.4.31 which the US cites requires " the exporting country to provide
evidence that it maintains an effective surveillanc e program. This information can confirm that the
territory is indeed the status it purports to be." This reinforces India's position that applying
limited territorial bans on exporting countries during an outbreak is not a decision that an
importing country can take unilaterally unless the efficacy of the exporting country's surveillance
and control program is established by the exporting country.

- B-43 -

b. Disguised restriction on international trade

22. The reasoning in Australia-Salmon reasoning on the "sudden change in position" is
inapplicable to the facts of this case. For one, India has not shifted positions on whether a risk
assessment is required of it. It was always India's understanding that having adopted an OIE
recommendation, it was not required to further conduct a risk assessment. Further, in EC-
Asbestos, the key to understanding what is covered by 'disguised restriction on international trade'
is not so much the word 'restriction', but the word 'disguised' and none of the facts taken
individually or collectively establish that India is disguising its true intent behind the measure.

V. UNITED STATES HAS NOT MADE OUT A PRIMA FACIE CASE UNDER ARTICLE 5.5

VI. CONTINUING DEFICIENCIES IN THE UNITED STATES CLAIM UNDER ARTICLE 5.6

23. The US had in its first written submission su ggested that India follow the OIE Code as its
reasonably available alternative measure. It has subsequently provided two alternative measures
that it believes are reasonably available. Firstly, it proposes control measures or veterinary
certificate requirements prescribed under Chapter 10.4 of the OIE Code. India submits that
suggesting India apply veterinary certificate requirements does not meet India's ALOP. Rather the
US has suggested an alternative ALOP which India ought to apply with respect to imports.

24. As a second alternative measure the US sugge sts that India need not accept imports carte
blanche and can require exporting countries to pr ovide evidence that they maintain effective
surveillance programs required under Article 10.4.30 and 10.4.31.

25. The US' suggestion that India gather info rmation on exporting countries' surveillance
systems and determine if such systems are adequate, this alternative is not technically and
economically feasible alternative given its current veterinary and scientific human resource and is
rather significantly more trade restrictive than the measure currently applied.

VII. LIMITATION OF CLAIMS TO E GGS AND FRESH MEAT OF POULTRY

26. The US has provided arguments on apparent violations by India under the SPS Agreement
vide Article 3.1, 3.3, 5.1, 5.2, 2.2 and 5.6 only with respect to eggs and meat and hence claims
under these articles are limited to eggs and fresh meat of poultry.

VIII CONCLUSION

27. It is submitted that United States' in its challenge to India's avian influenza measure has
limited the same to eggs and fresh meat of poultr y. Further, India's measure conforms to the OIE
Code and India is not required to undertake a risk assessment. Lastly, India maintains that the
United States has not made out a violation by India under Article 6. India's law enables the Central
Government to recognize zones or compartments but India cannot be expected to unilaterally
recognize zones or compartments.

28. The claim of the United States under Article 5.5 should be rejected as the United States has
not fulfilled its burden to establish a prima facie case of violation by India. United States has also
failed to establish that India's measures arbitraril y or unjustifiably discriminate or are applied in a
manner which would constitute a disguised restriction on international trade as required under
Article 2.3. Finally the alternative measures proposed by the United States under the Article 5.6
claim neither fulfill India's ALOP and nor are they technically and economically feasible.

- B-44 -

ANNEX B-8
EXECUTIVE SUMMARY OF THE OPENING AND CLOSING STATEMENTS
OF INDIA AT THE SECOND SUBSTANTIVE MEETING OF THE PANEL
OPENING STATEMENT

1. The United States first raised the issue of LPNAI being present in India as part of its claim
under Article 2.3 of the SPS Agreement. The argument stated that India does not take domestic
measures to control LPNAI which occurs in the country and hence its import measures against
countries reporting LPNAI are discriminatory. Sinc e India has not detected and hence not reported
LPNAI to the OIE, the United States offered several hypotheses why LPNAI should be present in
India. The first was that India's 85+ HPNAI ou tbreaks strongly suggest an underlying LPNAI
infection in poultry. Both Prof. Brown and Prof. Honhold have unequivocally refuted such linkage
between HPNAI and LPNAI. The second hypothesis was that India's large backyard poultry
population significantly increases the chances of LP NAI introductions from wild birds into poultry.
Dr. Brown has vehemently refuted this linkage be tween backyard poultry and LPNAI introductions
while Dr. Honhold has noted that exhibits upon which US has relied on for this proposition are
simply personal opinion of individual scientists, unsupported by any scientific basis. The third was
the suggestion that H7 LPNAI viruses should have travelled from Pakistan to India where there
was a H7 HPNAI infection in poultry. Again as Dr. Honhold explained, this is mere conjecture as
presence in Pakistan does not imply presence in India. The fourth was a study by Pawar et al
which the United States put forth as proof of presence of H7 LPNAI infection in poultry in India.
Contrary to US suggestion on the results of the st udy, expert opinion instead establishes that the
study on its own does not support a conclusion that antibodies found were H7 specific or that the
results prove a LPNAI infection. Dr. Brown's written opinion had pointed out the possibility of cross
reactions due to the testing method employed by Pawar et al, which he reiterated at the meeting
and stated that the study did not beyond reasonable doubt show the presence of H7 antibodies.
Dr. Guan also clarified that though India had not practiced vaccination, the role of illegal
vaccination could not be ruled out. Importantly both Dr. Brown and Dr. Guan stressed that virus
isolation and not serological testing as was done in Pawar et al, was the most solid evidence of
presence of virus.

INTERPRETATIONS OF THE OIE CODE

2. The core issues in this dispute are now well known. India restricts entry of poultry products
f r o m c o u n t r i e s w h i c h r e p o r t e i t h e r H P N A I o r L P N A I i n p o u l t r y u n t i l s u c h t i m e a s t h e r e p o r t i n g
country notifies freedom from the infection to the OIE. India is not alone in restricting imports
from countries notifying LPNAI as several countries regularly apply similar measures. United States
takes exception to India's measure on the ground that India's restriction on eggs and fresh meat
of poultry from LPNAI notifying countries are unsupported by the OIE Code recommendations. To
the United States it is a significant fact that Chapter 10.4 does not recommend that a "ban" may
be imposed. It should be noted that the United States equates "to recommend" with "explicitly
stated" an argument that the European Union has also proposed.

3. This argument is misleading for two reasons. One, Chapter 10.4 does not "recommend"
imposing bans on poultry products from countries notifying HPNAI either. Yet, the United States
(and EU) read the recommendations to mean exactly that and go ahead and ban imports from
countries notifying HPNAI. With HPNAI, they read OIE recommendations which state
'Recommendations for importation from a HPNAI free country/zone/compartment' as suggesting
that if the country from which the product is soug ht to be imported is not free from HPNAI, such
product need not be imported. Yet a similar inte rpretation is denied to recommendations which
state 'Recommendations for importation from a NAI free country/zone/compartment.'

4. Second, the United States has entered into several arrangements with its trading partners
all of whom are OIE Members, which restrict poultry exports from the US when it declares LPNAI.
The interpretation it is seeking of the OIE Code is difficult to reconcile with its own trading regime
unless of course one recognizes that the US would not acquiesce to restricting its own imports in

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the absence of sound science and without the framework of international standards which support
such restrictions.

5. The selective reading of the OIE Code leads to this absurd result; a ban on poultry products
from HPNAI reporting countries conforms to the OIE Code (even in the absence of an explicit
recommendation for a ban) since there are recommendations which state 'Recommendations for
importation from a HPNAI free country/zone/compartment' but, a ban on poultry products from
LPNAI reporting countries is unsupported by the OIE Code since the recommendations state
'Recommendations for importation from a NAI free country/zone/compartment' and an explicit
language recommending a ban is absent

LEGITIMACY OF TRADE RESTRICTIONS

6. Before I go into when trade restrictions may be legitimate under the OIE Code, it will be
helpful to understand if the OIE agrees that if a country is not free of a disease, its products may
not be imported by other countries? The answer is yes. In its introduction OIE states that "where
fresh meat is not recommended to be traded fr om countries, zones or compartments, it may be
possible to establish measures for trade in meat products". Likewise in its discussion of Article
10.4.19 it states "If the requirements of Article 10.4.19 cannot be satisfied, because the exporting
country is not free from HPNAI, it is still possible to export processed poultry meat". Likewise when
commenting on maintaining disease free status it states that not being disease free can lead to
potential loss of commercial trading opportunities. This is a clear admission that disease
notification and hence disease status has ramifications for market access.

7. More importantly, the issue is (i) do the OIE recommendations provide that products should
originate in NAI free countries and if so, (ii) can countries take measures to restrict imports if a
country is not free from NAI. The answer concerning the first question is evident in Chapter 10.4
itself. That Chapter provides recommendations for importation from NAI and HPNAI free countries
hence it is clear that the OIE has recommended that trade should take place from a NAI or HPNAI
free country. The natural conclusion being that trade need not take place if a product is not
originating from a NAI or HPNAI free country. However whether a country is "justified" in
restricting imports from countries that are not NAI or HPNAI free is an issue for which the
necessary guidance is provided under Chapter 5.1 of the OIE Code.

8. Article 5.1.2 makes it clear that Members may take import measures to fulfill their ALOP. In
taking such measures the animal health situation of the exporting as well as importing country are
relevant factors. It advises Members not to take import measures against countries which have
reported a disease which is not an OIE listed disease and finally it cautions Members not to take
import measures against diseases which are present in the Member's own territory and for which
no control measures are applied.

OTHER INCONSISTENCIES IN OIE'S RESPONSE

9. The OIE was asked to specifically clarify th e purpose of reporting LPNAI in poultry. The
response provided by the OIE is as good as not providing a response. The OIE does not explicitly
state that notification of LPNAI is limited for the purpose of surveillance. It could not have stated
that, since only notifications of HPNAI in wild birds are for the limited purpose of surveillance and
no language in the OIE Code suggests that notifications of LPNAI likewise have a limited purpose.
The question remains unanswered.

10. Likewise when asked to clarify what the TAHSC meant when it referred to reporting of
HPNAI and LPNAI in the same vein as being for 'trade purposes', the OIE instead clarifies that
reporting of HPNAI in wild birds was for surveillance. There is no relevance of the answer to the
question posed and instead undoubtedly establishes that the OIE has gone out of its way to be
evasive in its responses.

11. Similarly, when the Panel asked what measures an importing country must take when an
exporting country is reporting LPNAI and wants to export live poultry other than day old poultry,
(Article 10.4.5) the OIE instead says that countries wishing to import from HPNAI free countries
should do a risk assessment. This is another exam ple of OIE's brazen attempt to divert attention
from the main issue, which is that if an exportin g country notifies LPNAI, it may not be permitted
to export live poultry (other than day old poultry) to its trading partners. If Article 10.4.5 is read

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to mean that an importing country may not import live poultry (other than day old poultry) from
countries reporting LPNAI, there is no reason the same meaning cannot be attributed to other
recommendations which provide for "Recommendations for importation from a NAI free
country/zone/compartment".

12. In question 17, the Panel sought a very clear answer from the OIE whether products specific
recommendations may be applied as alternatives depending on an importing country's ALOP or
were they to be applied strictly based on the disease status of the exporting country. This question
goes to the root of the issue because India claims that it can apply LPNAI based restrictions since
they fulfill India's ALOP and further that the OIE Code recommendations are worded such that
flexibility is provided to countries to import poultry products based on the level of protection
deemed appropriate by each importing country. The United States on the other hand has claimed
that the only relevant consideration is an exporting country's status so that even if a country is not
free from LPNAI but is free from HPNAI, it should be allowed to export poultry products.

13. Surprisingly the OIE agrees with the US reference to avian chlamydiosis to suggest that any
restrictions recommended are explicitly provided in the Code. The United States has used this
reference to avian chlamydiosis presumably to suggest that the OIE Code has not 'recommended'
or 'explicitly' provided for a ban on account of LPNAI and hence these are unsupported by the OIE
Code. But equally by this logic the OIE Code has not 'explicitly' provided for bans on account of
HPNAI either. Yet the United States believes such bans are supported by or based on the OIE
Code. Importantly, the reference to the chapter on avian chlamydiosis supports India's position
that if a country is free from a disease it may restrict entry of products from countries not free of
that disease. The relevant recommendation states as follows:

"Article 10.1.2: Trade in commodities
Veterinary Authorities of countries free from avian chlamydiosis may prohibit
importation or transit through their territory, from countries considered infected with
avian chlamydiosis, of birds of the Psittacidae family."
14. If anything, the reference to Article 10.1.2 on avian chlamydiosis supports India's claim that
the disease health situation in the importing country is relevant and must be taken into account
when imposing measures and further that a country is justified in taking measures against
diseases which are not present in its territory.

CLAIM UNDER ARTICLE 5.6 NOT MADE OUT

15. In its First Written Submission and its Opening Statement at the First Substantive Meeting
India had highlighted that the claim under Arti cle 5.6 suffered from a fatal legal flaw. The
complaining party bears the burden of establishing that an alternative measure suggested by it
fulfills the level of protection which is achieved by the measure at issue, i.e. S.O. 1663 (E). The
United States instead sought to discern the ALOP from the National Action Plan, (NAP) which is a
domestic measure and in any event is not the measur e at issue in this dispute. The United States
continues this line of argument and suggests that since India has not defined its ALOP, it is
constrained to infer it from record evidence and has again gone on to infer the ALOP from the NAP.

16. India finds the US argument unconvincing because even if the United States had to engage
in the exercise of inferring an ALOP, it still had to restrict itself to the measure at issue, i.e.
S.O. 1663 (E). On the excuse of inferring an ALOP, the United States cannot impugn an unrelated
measure and further still infer an ALOP from it. The identification of an ALOP from a measure
which is not at issue leads to a fatal legal error and strikes at the very root of the United States
allegation under Article 5.6

17. For the same reason its claim under Article 2.2 also fails. India however reiterates that even
in the absence of the legal error in the Article 5.6 claim, the claim under Article 2.2 as a
consequential breach of Article 5.6 fails, as the United States has failed to provide a cogent reason
for linking and reading together two articles which have made no references to one another.

- B-47 -

CLAIM UNDER ARTICLE 5.5 NOT MADE OUT

18. India maintains that the United States claim under Article 5.5 continues to remain
ambiguous and should be rejected on this ground alone. The United States Second Written
Submission contains broad generalizations on the Article 5.5 claim but nothing in that discussion
addresses in any detail or with clarity the separate elements of the claim which are required to be
fulfilled cumulatively for a valid claim under Article 5.5.

19. The United States presents no facts to expl ain why situations being compared are different
but comparable. As the Panel in Australia- Salmon has stated, situations under Article 5.5 can be
compared "if these situations involved either a risk of "entry, establishment or spread" of the same
or a similar disease or of the same or similar "associated, biological and economic consequences".
To this requirement the United States notes, "… the comparability of the different situations at
issue in the US claim under Article 5.5 needed no elaboration. They involve trade in the same
products and control of the same diseases. The Appellate Body has explained that for purposes of
a claim under Article 5.5, comparable situations are "situations involving the same substance or
the same adverse health effect". There is no doubt that the situations at issue here are
comparable." Overall the claim under Article 5.5 remains highly deficient and should be rejected
outright.

CLOSING
 STATEMENT

1. At the outset India will place on record the comments it had to the United States Opening
Statement. In paragraph 15 the US refers to an SPS meeting of 2008 and the statement made by
India at such meeting to suggest that India applies bans on poultry due to reports of avian
influenza in wild birds. As India clarified it is clear from the text of the minutes that the ban was
imposed on poultry products in response to noti fications of NAI. Its stated concern for avian
influenza in wild birds should not be taken to mean its application of bans on this account. India
refers to a subsequent SPS Committee meeting in 2010, where India clarified in no uncertain
manner that its bans are imposed in response to notifications of NAI in poultry only and not in
response to information of avian influenza in wild birds.

2. Second, in response to US suggestion in pa ragraph 30 of its Opening Statement that India
requires attestation that an exporting country is fr ee of LPAI, India reiterates that is not the case.
India refers to its response to Panel question 25 where it clarified that though veterinary
certificates refer to HPAI and LPAI, they are implemented as meaning HPNAI and LPNAI. That
answer also makes reference to import permits issued by India permitting imports from countries
which had experienced LPAI in wild birds in the same period when import permits were issued.
This clearly proves that India does not in fact restrict imports from countries which report LPAI or
HPAI in wild birds.

3. Third, India refers to paragraph 17 of the US Opening Statement where it suggests that
certain products such as fresh meat of poultry can be traded regardless of the status of the
exporting country. India notes that if the status of the exporting country for fresh meat of poultry
were indeed irrelevant the standard, i.e. 10.4.19 would have been worded very differently. There
are several product recommendations such as Ar ticle 10.4.23 concerning feathers and down of
birds other than poultry where the exporting country's status is irrelevant and are worded to
convey this meaning clearly. Article 10.4.19 on the other hand is worded such that it makes a
clear recommendation to import from a NAI or HPNAI free country/zone/compartment.

4. India reiterates that Panel's questions to experts erroneously shifted the burden of proof
onto India. It was the United States which doubted India's notifications to the OIE and insisted
that LPNAI had to, as a matter of fact be present in India and it was implausible that India did not
have LPNAI in its poultry. India notes that the OIE does not verify disease notification, disease
freedom or surveillance for avian influenza. These matters are left to the individual OIE Members
and the OIE does not have the mandate to undertake these activities. Such as the US claim that
HPNAI is not present in its territory is not subject to verification by the OIE, so is India's claim that
LPNAI is not present in India. Thus if the US is doubting India's disease status, the burden is on
the US to prove through evidence that its claim is made out. Hence the role of experts should have
been to evaluate this claim based on the exhibits submitted by the US and not as has happened to
shift the burden onto India to disprove the negative.

- B-48 -

5. India also reiterates that S.O. 1663 (E) contains several product specific measures. Thus
conformity of individual product specific measures must be evaluated with the relevant
international standard to determine if the measure pertaining to that product is conforming to or is
based on the OIE Code. Similarly it should also be noted that the US challenges the "prohibition"
and hence the relevant standards under the OIE against which the prohibition is to be evaluated is
the "condition of entry" that each product spec ific recommendation provides and not against the
veterinary certificate requirements under each product specific recommendation.

6. Further India has explained in detail the deficiencies in the opinion provided by the OIE. As
India has stated the Panel has an obligation to objectively evaluate the matter before it and
towards that end it must evaluate the OIE Code in light of rules of treaty interpretation in the
VCLT. The US states that the OIE Code is not a treaty and VCLT does not apply. Attention is drawn
to Article 2 (a) of the VCLT under the definition of which the OIE Code clearly qualifies as a treaty
to which its rules of interpretation apply. Further the OIE Code is also referred to in Annex A
paragraph 3 (b) of the SPS Agreement as the relevant international standard for animal health and
zoonoses. Since the SPS Agreement is undoubtedly a treaty and the OIE Code is an integral part of
that Agreement, it too must be interpreted in light of customary rules of treaty interpretation.

7. India also refers to the discussion at the meeting today concerning the US regionalization
claim. As was evident, apart from requiring India to change its veterinary certificate requirements
there is nothing in the US Exhibits about specif ic zones or compartments that the US requested
India to recognize. It is also telling as the US explained in its response to a Panel question that it
initiated no constructive engagement with India post 2010. As India has explained, every time US
asked India to change its sanitary requirement it said these conditions could not be changed as
they applied to all countries. The US has always been well aware of the 'Guidelines to further the
practical implementation of Article 6 of the SPS Agreement' and should have initiated good faith
negotiations with India on this issue. If India is faulted for not making abundantly clear to the US
that it will recognize zones or compartments if the US so furnishes a proposal, the US is equally
responsible for not being unequivocal about its request. As the country requiring an exception in
India's trading regime it should have made a clear, explicit and unequivocal request to this effect
to India.

8. Finally India notes that India had made a second preliminary ruling request that the
US claim under Article 2.3 is not maintainable as the NAP was not identified as a specific measure
at issue in the US panel request. To this the US claimed that the NAP was not the measure at issue
and that the US had not impugned it. However the deliberations and the scrutiny that the NAP has
been subjected to are in fact tantamount to examining NAP as the measure at issue. India
requests the Panel to examine the maintainability of the US Article 2.3 claim in light of India's
second preliminary ruling request.

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 ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Argentina C-2
Annex C-2 Integrated executive summary of the arguments of Australia C-4
Annex C-3 Integrated executive summary of the arguments of Brazil C-7
Annex C-4 Integrated executive summary of the arguments of the European Union C-9
Annex C-5 Integrated executive summary of the arguments of Guatemala C-14
Annex C-6 Integrated executive summary of the arguments of Japan C-17

- C-2 -

ANNEX C-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF ARGENTINA*
1. Argentina will refer exclusively to certain issues raised in this case. Specifically, it will comment
on the obligation for Members to base their sanitary and phytosanitary measures on scientific
principles, that sanitary or phytosanitary measures should not be maintained over time without
sufficient scientific evidence, and that they should be based on a risk assessment. It will also
underscore the importance of satisfying the principles of Harmonization and Regionalization,
respectively set forth in Articles 3 and 6 of the Agreement on the Application of Sanitary
and Phytosanitary Measures (SPS Agreement).

2. It is important to recall that the objectiv e of the SPS Agreement is to prevent sanitary
or phytosanitary measures from being used as disguised restrictions on trade.

3. WTO jurisprudence has identified three se parate requirements arising from the text
of Article 2.2: "It is apparent from the text of Article 2.2 that this provision contains three separate
requirements: (i) the requirement that SPS measures be applied only to the extent necessary
to protect human, animal or plant life or health; (ii) the requirement that SPS measures be based
on scientific principles; and (iii) the requirement that SPS measures not be maintained without
sufficient scientific evidence".
1

4. The linkage between the sanitary or phytos anitary measure and the corresponding scientific
evidence must be well-founded and meet objectiveness criteria. In this connection, it will be
recalled that in "Japan – Agricultural Products II" and in respect of the requirements in Article 2.2
of the SPS Agreement, namely that there should be a rational and objective relationship between
the sanitary or phytosanitary measure, on the on e hand, and the scientific evidence, on the other,
the Appellate Body stated that it was a relationship to be determined on a case-by-case basis.
2

5. Argentina wishes to reaffirm the interpretation according to which all SPS measures are to be
based on scientific principles, not only when the measure is adopted but also throughout
the period during which it is in effect. It is important to ensure compliance with the requirement
that an SPS measure should not be maintained without sufficient scientific evidence;
otherwise, the spirit of the Agreement would be undermined by allowing the continued existence
of SPS measures that prove to be inconsistent with Article 2.2 of the SPS Agreement.

6. Argentina further emphasizes that although they are entitled to set their own levels
of protection, Members may not disregard their obligation under Article 5.1 to provide scientific
justification for their measures by carrying out a risk assessment.

7. Argentina underscores the importance of complying with the "Harmonization" criteria. Article 3
of the SPS Agreement encourages Members to harmonize their sanitary and phytosanitary
measures with the existing international standards, guidelines and recommendations.
The requirement in Article 3.1 that SPS measures be "based on" points to the need for such
measures to rely on the relevant international standards.

* This text was originally submitted in Spanish by Argentina.
1 European Communities – Measures Affecting the Approval and Marketing of Biotech Products,
Report of the Panel, WT/DS291/R, WT/DS292/R, WT/DS293/R, paragraph 7.1424.
2 Japan - Measures Affecting Agricultural Products ("Japan – Agricultural Products II"),
Report of the Appellate Body, WT/DS76/AB/R, paragraph 84.

- C-3 -

8. Argentina considers it essential to take into account the standards, guidelines and
recommendations of the OIE to the extent that they enable trade, so as to avoid absolute
prohibitions on imports. It emphasizes that the international standards are designed to facilitate
- not to restrict - the development of international trade. SPS prohibition measures in relation
to international trade have the most restrictive impact. In Argentina's view, a Member which has
imposed measures that deviate from the international standards is required to ensure,
among other things, that such measures are based on a risk assessment. Argentina also believes
that sanitary and phytosanitary measures should be based on a risk assessment which confers
scientific legitimacy on the measures in question.

9. It should be recognized that an SPS measure may be regarded as not being "based on"
international standards when it manifestly runs counter to the standards issued by the competent
international organizations, such as the World Organisation for Animal Health (OIE) in the case
of this dispute.

10. Article 5 of the SPS Agreement requires Members to carry out a risk assessment. The need for
a n S P S m e a s u r e t o b e " b a s e d o n " a r i s k a s s essment pursuant to Article 5.1 and 5.2 means,
in specific terms, that there must be a rational and objective relationship between
the SPS measure and the results of a risk assessment.
3 At the same time, Article 5.6 lays down
the obligation to ensure that an SPS measure is not more trade-restrictive than required.
WTO jurisprudence takes the same line in that there would be a violation of this provision where
there are alternative measures available to achieve the adequate level of protection that the
Member has duly determined to be acceptable, which would be less restrictive on international
trade than the SPS measure at issue.
4

11. Argentina accordingly concurs with the position reflected in WTO jurisprudence that the
application of mitigating measures will always be less restrictive than outright prohibition
5,
which imposes the highest possible level of restriction, that is, total interruption of international
trade flows. In particular, Argentina agrees with the United States' view that the alternative which
satisfies the Article 5.6 requirements is the adoption of the OIE standards.

12. Another principle that Argentina regards as essential is regionalization. It emphasizes that the
obligation to adapt SPS measures to the sanitary characteristics of the areas of origin
and destination of the products, taking into particular account the level of prevalence of diseases
or pests, is critical to guaranteeing the uninterru pted flow of international trade, while ensuring
that Members can exercise their right to prot ect their territory from the risk of entry,
establishment and spread of diseases and pests.

13. The paragraphs of Article 6 of the SPS Agr eement taken in conjunction clearly show that the
process of determining the areas or regions concerned must be based on a series of objective
criteria that will ultimately guarantee non-discrimination, taking into account international
standards such as those established by the OIE. Insofar as the interested Member provides the
importing Member with the documentation necessary to define a region, non-recognition thereof
will be a sign that the SPS measures are not base d on those international standards. At the same
time, it will point to non-compliance with the provisions of Article 6 of the SPS Agreement.

3 Report of the Appellate Body, EC - Hormones.
4 Report of the Appellate Body, Australia – Salmon, paragraph 194.
5 See, for example, Report of the Panel, Australia – Salmon, paragraph 7.111.

- C-4 -

ANNEX C-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF AUSTRALIA
A. THE ORDER OF CONSIDERATION OF CLAIMS UNDER ARTICLE 3 AND UNDER ARTICLES 2.2, 5.1
AND 5.2
1. Australia considers that it is open to the panel to commence its analysis with the claims under
Article 3, followed by consideration, if necessary , of the claims under Article 2.2, 5.1 and 5.2.
In this regard, Australia notes that only measures which conform to international standards
enjoy the presumption of consistency with the SPS Agreement. 1 Australia also notes that this
presumption is rebuttable.2

B. ALOP
 UNDER THE OIE CODE
2. Australia respectfully suggests that, in order for a Member to claim that their measures
conform to or are based on an international standard, that Member’s ALOP must not render
that standard nugatory. As highlighted by the panel in Australia-Apples3 and by the Appellate
Body in Australia-Salmon4 a Member is not permitted to adopt measures to achieve an ALOP
which contradict its obligations under the SPS Agreement. Australia respectfully suggests that,
in a similar way, the panel could choose to consider the question of whether India’s ALOP
renders the standards embodied in the OIE Code nugatory.

3. In this context, Australia agrees with the ar gument made by the European Union in its Third
Party Submission that regionalisation should not automatically be equated with a low ALOP,
and could in fact be compatible with a high ALOP.
5 Australia also notes the European Union’s
argument that the regionalisation requirements in Article 6 of the SPS Agreement should be
understood in light of the "significantly less trade restrictive alternative" requirement in
Article 5.6 of the SPS Agreement,
6 and shares that view.

C. AUSTRALIAN
 RISK ASSESSMENT
4. India states in paragraph 9 of its First Written Submission:

The Australian Risk Assessment categorically concludes that fresh meat of poultry from
countries such as USA which notified LPNAI should not be imported.

India further states in paragraph 178 of its First Written Submission:

Australia…has prohibited import of unprocessed meat and meat products from regions
reporting occurrence LPAI in poultry [sic].

5. These assertions are apparently drawn from the General Import Risk Analysis Report for
Chicken Meat: Final Report by Biosecurity Australia, a risk assessment conducted by Australia
in 2008. However the conclusions drawn by Indi a from the Australian risk assessment are a
misreading of the document. As a result of Australia’s risk analysis, quarantine measures were

1 Appellate Body Report, European Communities – Measures Concerning Meat and Meat Products
(Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, paragraph 170.
2 Appellate Body Report, European Communities – Measures Concerning Meat and Meat Products
(Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, paragraph 165.
3 Panel Report, Australia – Measures Affecting the Importation of Apples from New Zealand,
WT/DS367/R, adopted 17 December 2010, as modified by Appellate Body Report, WT/DS367/AB/R,
paragraph 7.1134.
4 Appellate Body Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/AB/R,
adopted 6 November 1998, paragraph 206.
5 European Union, India – Measures Concerning the Importation of Certain Agricultural Products
(WT/DS430) – Third Party Submission (26 June 2013) paragraph 109.
6 European Union, India – Measures Concerning the Importation of Certain Agricultural Products
(WT/DS430) – Third Party Submission (26 June 2013) paragraph 113.

- C-5 -

implemented by Australia which conform to the OIE code, by allowing the importation of
chicken meat either from a country or zone which is HPNAI/LPNAI free, or that has been
processed to ensure the destruction of the AI virus. It is incorrect to assert that the Australian
risk assessment supports a blanket ban on the importation of chicken meat from countries
which have notified LPNAI as is asserted by India at paragraphs 9 and 178 of its First Written
Submission.

D. INTERNATIONAL
 RISK ASSESSMENT TECHNIQUES
6. Australia notes that Article 5.1 of the SPS Ag reement states that Members shall ensure that
their SPS measures are based on a risk asse ssment, "taking into account risk assessment
techniques developed by the relevant international organisation." The United States notes in
its First Written Submission that the OIE has developed standards for risk assessment,
including Chapter 2.1 of the OIE Code and the Handbook. 7 Australia shares Japan’s view that
the requirement to take into account risk a ssessment techniques developed by international
organisations does not equate to a requirement to conform to such international standards.8 In
this regard Australia notes the Appellate Body’s guidance in EC-Hormones regarding the
distinction between "based on" and "take into account."9

E. STANDARD OF REVIEW
7. Australia considers that the SPS Agreement balances the right to take measures to protect
human, animal, or plant life or health against the trade liberalization goals of the WTO. This
balance cannot be maintained if Panels fail to apply appropriate standards of review.

Australia reiterates its submission in US – Continued Suspension that the appropriate standard
of review to be applied in a given dispute shou ld be informed by both Article 11 of the DSU
and the particular covered agreements and obligat ions at issue. Australia maintains that the
standard of review to be applied by Panels may vary between different obligations under the
SPS Agreement and must reflect the balance be tween regulatory autonomy and international
scrutiny that is reflected in that Agreement.

8. In Australia's view, the most significant limi tation imposed by the text of the SPS Agreement
on a panel's fact-finding jurisdiction is provided in Article 5.1. Article 5.1 imposes a positive
obligation on Members to obtain and rely upon a risk assessment that is appropriate to the
circumstances. A panel may not usurp the role of a risk assessor by conducting the risk
assessment itself, because doing so would nullify the competence retained by Members under
Article 5.1 of the SPS Agreement, and would amount to a de novo review. Such a review would
be inconsistent with Article 11 of the DSU. Considerable, but not total, deference to a
Member’s risk assessment should therefore be accorded by the panel where the Member has
performed a comprehensive and transparent risk assessment.
10

9. It will be for the panel to determine whether India has performed a risk assessment, and if so
whether that risk assessment is comprehensive and transparent. Australia considers that a
panel must not interfere with a Member's risk assessment solely because it might have drawn
different conclusions on the basis of the available evidence. A panel must limit the scope of its
review to determining whether the risk assessor's decision is objective and credible.

F. ARTICLE
 2.3 CLAIM
10. In relation to the Article 2.3 claim in this dispute, Australia suggests that there would be merit
in the conclusion that the allegedly more stringent international measure, rather than the
allegedly more lenient domestic measure, is the proper focus of an Article 2.3 claim of
discrimination between a Member’s own territory and that of other Members. The measures

7 United States of America, India – Measures Concerning the Importation of Certain Agricultural
Products (WT/DS430) – First Written Submission (10 April 2013) paragraph 117.
8 Japan, India – Measures Concerning the Importation of Certain Agricultural Products (WT/DS430) –
Third Party Submission (26 June 2013) paragraph 21.
9 Appellate Body Report, European Communities – Measures Concerning Meat and Meat Products
(Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, paragraph 189.
10 See also Appellate Body Report, Canada – Continued Suspension of Obligations in the EC – Hormones
Dispute, WT/DS321/AB/R, adopted 16 October 2008, paragraphs 227 – 231.

- C-6 -

challenged by the United States in this dispute are not India’s domestic measures, but rather
India’s international measures, such as those enacted under SO1663(E). In our opinion it
appears that NAP12 is being used as a comparison for the purposes of allegedly demonstrating
the elements of Article 2.3, rather than as the object of the claim.

- C-7 -

ANNEX C-3
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF BRAZIL
1. Brazil hereby presents its integrated executive summary, where it provides a brief
description of the main points presented in its Third Party Submission and Oral Statement.

(a) The presumption established by Article 3. 2, and reinforced by Article 5.6, of the
SCM Agreement, is rebuttable

2. In Brazil’s view, the SPS Agreement offers appropriate policy space for Members to
determine the necessary sanitary and phytosanitary protection for the protection of human, animal
or plant life or health, according to legitimate regulatory concerns. Nonetheless, such discretionary
power has to be consistent with the provisions of the Agreement, as stated in Article 2. While
article 2.1 and the preamble of the SPS Agreement are the basis for the right of States to establish
SPS measures, Articles 2.2 and 2.3 provide a balance between this right and international trade.

3. Following this rationale, and as put forth by Article 3.2, all measures taken in conformity
with these standards are "deemed to be necessary to protect human, animal or plant life or health,
and presumed to be consistent with the relevant provisions of this Agreement and of GATT 1994".

4. In this sense, the presumption of Article 3. 2 gives, one may say, an easier approach when
establishing and maintaining SPS measures.1 Furthermore, Article 5.6 explicitly rules out SPS
measures conforming with international standards from the requirement of not being "more trade-
restrictive than required to achieve their appropri ate level of sanitary or phytosanitary protection,
taking into account technical and economic feasibility. It, however, does not mean an absolute
presumption. Brazil would like to recall that, when article 3.2 establishes said presumption, it does
not express that such presumption is not subject to questioning, as put forward by the Appellate
Body, in EC – Hormones.

(b) According to Articles 3.1 and 3.3 of the SPS Agreement, a SPS measure that does
not conform to an international standard , guideline or recommendation must be
based on the assessment of the risk to life or health of humans, animals or plants.

5. As previously mentioned, only SPS measures that comply with international standards have
the benefit of the presumption of conformity to the SPS Agreement and GATT 1994. Conversely,
SPS measures diverging from international standards should be based on a risk assessment, as
detailed by Article 5 of the SPS Agreement, in order to be consistent with the provisions of this
Agreement.

6. In Brazil’s view, Members have the right to define the appropriate level of protection
required in their territory and, as a consequence, establish and maintain SPS measures with higher
level of protection than international standards. For that, it is necessary that the SPS measure
have (i) a "scientific justification" as defined by footnote 2 of the SPS Agreement or to be
established taking into account (ii) "the level of sanitary or phytosanitary protection a Member
determines to be appropriate in accordance with the relevant provisions of paragraphs 1 through 8
of Article 5.

(c) The principle of regionalization recognized by an international organization should
not unjustifiably encumber the exporting Member.

7. Brazil believes regionalization ensure s fairness of treatment among Members and
guarantees that SPS measures are not applied in an arbitrary manner. It also strengthens the
principle embodied in Article 5.6 of the SPS Agreement, as the specificity of measures to areas or
regions with different risks to human, animal and plant life or health also guarantees that such a
measure is no more trade-restrictive than necessary.

1 EC – Hormones (Appellate Body Report, para. 102)

- C-8 -

8. These considerations have special importance in the present case. The World Organization
for Animal Health (OIE), more than establishing notification requirements for Avian Influenza, lays
down elements that may qualify a country, zone or compartment as pest-free or disease-free area,
under the Terrestrial Animal Health Code, Articles 10.4.3 and 10.4.4. Although not mandatory, the
provisions should be taken into account by Members so as to ensure that the SPS measures are
adapted to the levels of prevalence of Avian Influe nza in a specific area, in light of Article 6.1 of
the SPS Agreement.

9. Scientific principles guide Members’ adoption of SPS measures. It is a cornerstone of the
SPS Agreement for measures to be "adapted to the sanitary or phytosanitary characteristics of the
area"
2 and that disease-free areas should be characterized according to "factors such as
geography, ecosystems, epidemiological surveillance, and the effectiveness of sanitary or
phytosanitary controls."3

10. Regionalization helps SPS Measures to be more effective and less trade restrictive and, for
that end, international standards can constitute a useful tool. As the Panel in EC – Hormones 4
recognized, it is the exporting Member that needs to comply with Article 6.3 as the burden of proof
is explicitly conferred on them. However, once it has complied with its obligations or made a good
faith effort to grant reasonable access for inspection and other procedures, it is on the importing
Member to justify, with the adequate risk asse ssment, the divergence from the internationally
recognized pest-free area. As in EC Hormones
5: "Once such a prima facie case is made, however,
we consider that, at least with respect to the obligations imposed by the SPS Agreement that are
relevant to this case, the burden of proof shifts to the responding party."

2 SPS Agreement, Article 6.
3 SPS Agreement, Article 6.2.
4 EC – Hormones (Panel Report., fn 250)

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ANNEX C-4
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION
I. THE PRELIMINARY RULING REQUESTS
1. The European Union recalls that third parties have the right to comment on a request for a
preliminary ruling, as their right stems directly from Article 10 of the DSU as a due process
requirement.
2. The European Union considers that the references to 'implementing measures' and 'related
measures' 'identify the specific measures at issue'. Unlike in the cases of EC – Selected
Customs Matters and China – Raw Materials , where the challenges concerned a broad
spectrum of possible measures, the scope of this case is precisely circumscribed only to
those NAI measures. In addition, India failed to answer the US request under Article 5.8 of
the SPS Agreement and this should be considered an attendant circumstance.
3. The requirement to 'provide a brief summary of the legal basis sufficient to present the
problem clearly' should be assessed on a case by case basis. The simple listing of articles
may be enough, as found by the Appellate Body in EC - Bananas III. The Articles 2.3, 5.5
and 5.6 claims refer to both HPNAI and LPNAI. The sufficiency requirement is met by the
Article 2.3 claim because it not only reproduces the text of the provision, but there is an
indication of the country and the measures. Th e use of the words 'for example' does not
render the Article 5.5 claim imprecise. Finally, there is no risk of confusion from the
formulation of the Articles 2.3 and 5.5 claims.
4. In light of the above, the European Union considers that the standard in Article 6.2 of the
DSU is met by the US panel request.
5. With regard to India's second preliminary ru ling request, the European Union agrees that
the US panel request makes reference to 'similar avian influenza related controls with
respect to like domestic products and their internal movement within India'. The measure
at issue should not be the import ban or the National Action Plan regarded separately, but
rather the difference between the two. The Euro pean Union also considers that the health
certificate requirements are 'implementing and related measures', given the particular
circumstances of this case.
1
II. PROCEDURAL ASPECTS
6. The European Union considers that the SPS Agreement is applicable in the present case.
Some flexibility in approaching issues of burden of proof may be appropriate, given the
judgement inherent in weighing evidence. 2 As a preliminary issue, the European Union
recalls that the Appellate Body has stated, in the context of Article 5.1 of the SPS
Agreement, that the standard of review in SPS cases is rather deferential to WTO
Members' assessments.3
7. The starting point for a panel in assessing the utility of expert advice should be the
possible contribution towards an 'objective assessment of the matter before it'. Four main
contentious points are identified by the European Union in the present case.
8. First, expert advice is not needed for the interpretation of the OIE standards, as they are
reasonably clear. This point of the dispute seems to be not about science, but about an
interpretative exercise. Second, India's Summa ry Document cannot be characterized as a
valid risk assessment as long as India itself dismisses that. In addition, an OIE expert

1 Appellate Body Report, EC – Bananas III, para. 140.
2 Appellate Body Report, Australia - Apples, paras 360-66.
3 Appellate Body Report, US - Continued Suspension, para. 590.

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already examined the document and has concluded to the contrary. 4 Third, India's claim
that LPNAI is exotic to its territory cannot be elucidated by simple analysis of the existing
data. However, there is strong evidence sugg esting that LPAI virus (LPAIV) of the H7
serotype might be occurring in India.
5 Finally, while considering the fourth issue, namely
the occurrence of LPNAI in internal organs, other than respiratory or digestive systems,
one should keep in mind that the studies by Post et al. and Swayne and Beck do not
examine the same tissues. In case of any doubts as regards the presence of viable virus in
fresh meat, the OIE Scientific Commission would be the best placed to review the matter.
9. In light of the above, while fully acknowledging the utility of expert advice in SPS disputes
in general, the European Union is of the view that it is not necessarily needed in the
present dispute and it may rather unduly delay the proceedings.
10. With regard to the order of analysis, for effectiveness-related reasons the European Union
considers that the Panel should start its analysis with the harmonization claims and then
proceed with the claims related to risk assessment. The European Union submits that the
Panel should analyse the US risk assessment claims under the more specific provision first,
namely Article 5.1 and only afterwards under the more general principle embodied in
Article 2.2 of the SPS Agreement.
6
III. SUBSTANTIVE ISSUES
A. Claims related to harmonization
11. Article 3 encourages Members to harmonize their SPS measures, distinguishing between
three different situations: when the measures are 'based on' international standards, when
the measures 'conform to' the said standards and when the measures are more stringent
than the international standards. The Appellate Body clarified that 'a measure that
conforms to an international standard woul d embody the standard completely and, for
practical purposes, converts it into a municipal standard'.
7 The 'base on' requirement is
different from 'conform to' and it means that the measures are 'supported' by the
international standards.
8
12. The European Union submits that there is no obligation of Member Countries concerning
notification of LPAI in wild birds in the OIE Code. 9 Information voluntarily submitted
concerning LPAI virus infections in wild birds should not serve, in any case, as a
justification for the imposition of trade bans in poultry commodities by other countries.
13. Comparing product-by-product the Indian me asures and the OIE standards, the European
Union notices that while the OIE Code contains no recommendation concerning trade in
live pigs, S.O. 1663(E) imposes a ban on this product. Several OIE recommendations for
unprocessed poultry products provide different alternatives, depending on the NAI or
HPNAI free status of a country/region/compartment. The European Union considers that
these alternatives depend on objective factors and do not give countries an unfettered
discretion to choose the one they prefer. Thus , to that extent, there is a discrepancy
between the OIE standards, which distinguish between HPNAI and LPNAI, and India's
measures, which treat both situations in the same way.
14. The European Union is of the view that Article 10.4.1.10 is a general provision which
should be interpreted in the light of the product-specific provisions. It cannot be
interpreted as allowing an immediate ban following HPNAI or LPNAI notifications. Thus, the
European Union submits that India's bans on live pigs and unprocessed poultry products
do not 'conform to' and are not 'based on' the relevant OIE standards.

4 US Exhibit 108.
5 S . P a w a r e t a l . , " A v i a n i n f l u enza surveillance reveals presence of low pathog enic avian influenza
viruses in poultry during 2009-2011 in the West Bengal State, India", Virology Journal, 2012, 9:151.
7 Appellate Body Report, EC – Hormones, para. 170.
8 Appellate Body Report, EC – Hormones, para. 163.
9 Article 1.1.3.1., making reference to Article 10.4.1.1 and Article 10.4.1.2 of the OIE Code, read in
conjunction with Article 10.4.1.10 of the OIE Code.

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B. Claims related to risk assessment
15. To the extent that India's measures do not 'conform to' and are not 'based on' the OIE
recommendations, it is necessary to establish whether there is a solid scientific basis for
their imposition. The definition of risk assessment is provided in paragraph 4 of Annex A of
the SPS Agreement. As a previous panel note s, there are two types of risk assessment,
namely a pests risk assessment and a food safety risk assessment.
10 Article 5.1 does not
require Members to carry out their own risk assessment, as an 'SPS measure might well
find its objective justification in a risk assessment carried out by another Member, or an
international organization'.11
16. The Summary Document, presented by Indi a at the October 2010 meeting of the SPS
Committee, cannot be considered as a valid risk assessment and does not meet the
requirements of Article 5.2 of the SPS Agreement. India itself maintains that the Summary
Document is not its risk assessment and that it only summarizes what India believed to be
the basis of the OIE recommendation. Furthermore, the European Union recalls that an
OIE expert already examined the document and that he concluded that it cannot be
considered a valid risk assessment within the meaning of the SPS Agreement or of the OIE
Code.
17. Article 2.2 contains the general principles of the SPS Agreement related to necessity and
scientific disciplines for the use and maintenance of SPS measures. The necessity
requirement has not been clarified in the contex t of this provision but one may find useful
guidance in the interpretations provided in the framework of Article XX(b) of the
GATT 1994 or of Article 2.2 of the TBT Agreement.
18. The second element of Article 2.2 is the general requirement to base measures on
scientific principles and not maintain them with out sufficient scientific evidence. Article 5.1
is a more specific provision related to these principles, requiring WTO Members to
undertake a risk assessment. A violation of the more specific provision in Article 5.1
constitutes also a violation of the more general requirements in Article 2.2.
12 However,
given the more general wording of Article 2.2, the reverse is not necessarily true.13
C. Claims related to risk management
19. The SPS Agreement and the corresponding case law recognize that each WTO Member
may establish the level of protection it deems appropriate. 14 This includes a 'zero-risk'
policy and may cover any ascertainable risk, including small or 'negligible' risks. 15
However, the risk management choices of Members should be reflected in measures
applied in a non-discriminatory and reasonable manner, as prescribed by Articles 5.5 and
5.6 of the SPS Agreement.
20. A SPS measure is more trade-restrictive than required if there is an alternative SPS
measure meeting the conditions of footnote 3 to Article 5.6. 16 In the present case India
has not expressly stated its appropriate level of protection (ALOP). No answer has been
provided by India to the US Art 5.8 request. 17 Accordingly, if the level of protection is not
specified in writing, a panel should infer it from the SPS measures applied in practice.
Assuming that India has a high ALOP, the European Union submits that regionalization
meets the three cumulative conditions of Articl e 5.6: it is reasonably available, achieves
the Member's ALOP and is significantly less trade restrictive that a country-wide ban.

11 Appellate Body Report, EC - Hormones, para. 190.
12 Appellate Body Report, Australia-Salmon, paras 137-38.
13 Appellate Body Report, Australia-Salmon, para. 137.
14 Appellate Body Report, EC – Hormones, para. 124.
16 Appellate Body Report, Australia – Salmon, para. 194.
17 Exhibit US-4.

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D. National Treatment claims
21. According to a previous panel there are three cumulative requirements to be met before a
violation of the first sentence of Article 2.3 can be established18. Without taking position at
this stage on the prevalence of similar conditions, the European Union reiterates that it
sees no contradiction in having a high level of protection and allowing trade according to
the regionalization principles. We also see no contradiction in having a high level of
protection and taking domestic measures circumscribed to a certain area.
22. The obligation embodied in Article 5.5 of the SPS Agreement is the principle of non-
discrimination in risk management. Three cumulative conditions have to be met in order to
establish a violation of Article 5.5.
19
23. The European Union agrees that while not explicitly stated, India's ALOP can be inferred
from the SPS measures applied. WTO Members are free to set their ALOP but they are not
free to adopt different ALOPs in 'different situations'. It has been previously decided that
the type of situations envisaged by Article 5.5 are comparable situations, such as
'situations involving the same substance or the same adverse health effect'.
20
24. As to the relationship between Articles 5. 5 and 2.3 of the SPS Agreement, the Appellate
Body has stated that a violation of Article 5.5 would automatically trigger a violation of
Article 2.3, while the reverse is not necessarily true. 21
E. Claims related to regionalization
25. The European Union recalls that regionalization is an important principle aiming at allowing
trade while maintaining a high health status. In the case of Members with large territories
an outbreak of NAI in one part of the territory often means no risks in other parts of the
country. The European Union considers that Article 6 of the SPS Agreement imposes an
obligation to recognize regionalization as a matter of principle.
22 This formal recognition
should be followed by the agreement of the Members on the necessary measures prior to
outbreaks of the disease. Finally, once these a rrangements are in place, the authorities of
the importing country will be able to take decisions on individual cases.23
26. Furthermore, a cumulative reading of Articles 6.2 and 6.3 reveals that the process of
determining the areas is not at the absolute discretion of the importing Member. There are
a set of objective criteria which shall be taken into account, such as geography,
ecosystems, epidemiological surveillance, and the effectiveness of sanitary or
phytosanitary controls. In addition, it is the view of the European Union that Members are
under an obligation to enter with good faith into a proper dialogue. Otherwise there is a
breach per se of Article 6.
24
27. The SPS Committee has developed specific guidelines on Article 6. Even if these guidelines
cannot be considered a 'subsequent agreement' among the Parties within the meaning of
Article 31(3)(a) of the Vienna Convention on the Law of Treaties (VCLT) because of explicit
text to the contrary, 25 they may nevertheless provide 'useful guidance' on how the
mechanism of Article 6 may articulate.26

18 Panel Report, Australia – Salmon (Article 21.5 – Canada), para. 7.111.
19 Appellate Body Report, EC - Hormones, para. 214.
20 Appellate Body Report, EC - Hormones, paras 216-17.
21 Appellate Body Report, Australia-Salmon, para. 252.
22 Article 6.1 of the SPS Agreement provides that 'Members shall recognize the concepts'.
23 Chapter 4.3. of the OIE Code.
24 In a different context, the Appell ate Body has already sanctioned the lack of engagement in 'serious,
across-the-board negotiations'. Appellate Body Report, US – Shrimp, para. 166.
25 G/SPS/48, para. 2.
26 Appellate Body Report, Japan – Alcoholic Beverages II, pp. 14-5.

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F. Transparency claims
28. Members shall allow a reasonable interval between the publication and the entry into force
of an SPS measure under Paragraph 2 of Annex B.
29. The European Union considers that the Indian measures do not 'conform to' and are not
'based on' the OIE standards. Accordingly, the content of India's measures is not
'substantially the same' as the content of the relevant international standard. To the
extent the regulation has a 'significant effect on trade' of other Members, which a trade
ban may very well have,
27 India's measures are in breach of Paragraph 5 of Annex B and
Article 7 of the SPS Agreement.
G. Article XI of the GATT 1994
30. The European Union shares the view that a violation of the SPS Agreement may result in a
violation of the GATT 1994.

27 Panel Report, EC — Hormones (Canada) , para. 8.26.

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ANNEX C-5
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF GUATEMALA
1. Guatemala would like to take this opportunity to comment on three issues:

1.1. First, on the legal interpretation of Article 5.8 of the SPS Agreement;

1.2. Second, on the suggested order of analysis of this dispute; and,

1.3. Third, on the second request for preliminary ruling under Article 6.2 of the DSU.

A. LEGAL
 INTERPRETATION OF ARTICLE 5.8 OF THE SPS AGREEMENT

2. On the legal interpretation of Article 5.8 of the SPS Agreement, Guatemala observes that
there is no particular claim under this provisio n. The concern of India seems to be related to
potential adverse inferences that could be drawn from the facts of the case and the legal
interpretation of this provision.

3. Guatemala observes that India appears to suggest that Article 5.8 of the SPS Agreement
does not deal with a dispute settlement situation an d has no role to play once dispute proceedings
are initiated, because it has been characterized by the Appellate Body as providing for a pre-
dispute procedure.

4. If Guatemala understands correctly, India is apparently claiming that the obligations under
Article 5.8 cease to exist once dispute settlement procedures are initiated. Guatemala disagrees
with this interpretation.

5. In the view of Guatemala, the Appellate Body characterized Article 5.8 of the SPS
Agreement as a pre-dispute proceeding in the cont ext of a discussion on burden of proof. Nothing
in the Appellate Body’s conclusions appear to suggest that, once a dispute settlement procedure
has initiated, the obligations under this provision are terminated.

6. Furthermore, Guatemala observes that the A ppellate Body carefully indicated that a Member
seeking to exercise its right to receive information under Article 5.8 "would, most likely, be in a
pre-dispute situation". This is probably because, Members resorting to dispute settlement
procedures may not need an explanation of the measures at issue but are seeking redress of a
violation of obligations or other nullification or impairment of benefits under the covered
agreements.

7. Guatemala agrees with India that Article 5.8 of the SPS Agreement provides no time limit to
provide the answers required. However, the lack of a time limit in this provision cannot support the
legal interpretation that there is no continued du ty of performance. Guatemala believes that the
only way to comply with the obligation contained in Article 5.8 is, precisely, the provision of "an
explanation of the reasons" for a sanitary or phytosanitary measure. Guatemala does not find in
any part of Article 5.8, or elsewhere, that initia tion of dispute settlement procedures would render
the obligations contained in this provision meaningless.

B. ORDER
 OF ANALYSIS

8. With respect to the order of analysis proposed by the parties, the Appellate Body determined
that "as a general principle, panels are free to stru cture the order of their analysis as they see fit.
In so doing, panels may find it useful to take account of the manner in which a claim is presented
to them by a complaining Member. Furthermore, panels may choose to use assumptions in order
to facilitate resolution of a particular issue or to enable themselves to make additional and

 Guatemala requested that its oral statement serve as the integrated executive summary.

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alternative factual findings and thereby assist in the resolution of a dispute should it proceed to
the appellate level".1

9. In the present case, it is clear that the parties characterize differently the matters at issue.
Although the United States did not appear to suggest a particular order of analysis, initiated the
presentation of its legal claims with those under Article 5 of the SPS Agreement. India, on the
other hand, suggests that the Panel begins with the analysis of the claims under Article 3.

10. Guatemala agrees with India that it might be appropriate to initiate the analysis of the
claims under Article 3 of the SPS Agreement, in view of the existence of an international standard
and the claim that the measures at issue "conform" or are "based on" such an international
standard.

11. However, should the Panel find that India’s measures are consistent with Article 3,
Guatemala considers that it might be appropriate to make additional and alternative factual
findings on the rest of the provisions in order to assist in the resolution of this dispute, should it
proceed to the appellate level.

12. Conversely, should the Panel find that India’s measures are inconsistent with Article 3,
Guatemala does not share the view that the Panel then needs to start the analysis of the claims
under the more general provisions of the SPS Agr eement rather than under the more specific and
detailed provisions of the SPS Agreement.

13. In the view of Guatemala, there is a well -established practice whereby the Panels and the
Appellate Body start their analyses under the provisions that specifically addresses in detail the
alleged inconsistencies.
2 Guatemala does not see, and India does not explain, why this Panel
should depart from this practice. Therefore, Guatemala respectfully suggest the Panel to initiate its
analysis under the more specific and detailed provisions. In this case, the claims under Article 5 of
the SPS Agreement.

C. SECOND
 REQUEST FOR PRELIMINARY RULING UNDER ARTICLE 6.2 OF THE DSU

14. Regarding the second request for preliminary ruling under Article 6.2 of the DSU, India
claims that two types of measures are outside the terms of reference of this Panel: a) India’s
National Action Plan; and b) the health certificate requirements for products listed in
subparagraphs a) to j) of paragraph 1) (ii) of S.O. 1663(E).

15. As a matter of fact, none of these measures are identified in the Panel request by name.

16. On the National Action Plan, India is of the view that the United States is challenging this
Plan. In response, the United States clarified that it has not sought a finding that India’s National
Action Plan is inconsistent with the SPS Agreement. The United States considers the National
Action Plan of India as evidence to make the legal claim of discrimination.

17. Additionally, India appears to suggest that the United States, by making a claim under
Article 2.3 of the SPS Agreement, "has to necessarily adduce and impugn such of India’s measures
which it believes are the cause of this arbitrary or unjustifiable discrimination".
3 In this case, India
makes reference to its National Action Plan.

18. Guatemala does not find in Article 2.3 of the SPS Agreement nor in the jurisprudence any
basis to oblige the complaining Member to challenge domestic measures that may serve as the
basis to demonstrate the existence of a discrimination.

19. The Panel in Australia — Salmon (Article 21. 5) identified three elements, "cumulative in
nature", necessary to find a violation of the first sentence of Article 2.3:

1 Appellate Body Report, Canada - Wheat Exports and Grain Imports, para. 126).
2 For instance, Panel Report, EC – Asbestos, paras. 8.16–8.17; Appellate Body Report, EC - Bananas,
3 FWS of India, paragraph 73.

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19.1. (1) the measure discriminates between the territories of Members other than the
Member imposing the measure, or between the territory of the Member imposing the
measure and that of another Member;

19.2. (2) the discrimination is arbitrary or unjustifiable; and

19.3. (3) identical or similar conditions prevail in the territory of the Members
compared."4

20. The first element requires the demonstration of the existence of the claimed discrimination;
and, clearly, the initial burden of proof rests on the complaining party. Generally speaking, if the
complaining party asserts an affirmative claim of discrimination, it has to demonstrate that the
domestic products are being treated more favorabl y than the imported products. In so doing, the
complaining party is free to choose the means to raise a presumption that what is claimed is true.
5
This may include the analysis of pieces of legislation other than the challenged measures.

21. Guatemala considers that Article 2.3 of th e SPS Agreement does not address the measures
that need to be challenged. Thus, Guatemala finds no basis to support the proposition of India that
it was necessary to challenge, in this case, the National Action Plan to demonstrate the alleged
discrimination.

22. For these reasons, Guatemala agrees with the United States that India apparently mistakes
evidence that can be used to establish an element of a claim with the measure that is the object of
the challenge.

23. Finally, regarding the health certificate requ irements, Guatemala sees no relevance on the
legal source for their issuance. Given the facts of these case, as explained by the Parties, it seems
that the health certificate requirements are "i mplementing and related measures". If Guatemala
understands correctly, the health certificate requ irements are necessary to implement the avian
influenza-based import prohibitions. As acknowledged by India, its veterinary certificates "are
required to accompany every export consignment of certain livestock products".
6 Therefore,
Guatemala considers that these health certificate requirements are within the terms of reference of
this Panel.

24. Guatemala thanks the Panel for this opportunity and would be happy to respond to any
follow-up questions you might have.

4 Panel Report, Australia — Salmon (Article 21.5 — Canada), para. 7.111.
5 Appellate Body Report on United States - Measures Affecting Imports of Woven Wool Shirts and
Blouses from India ("US - Wool Shirts and Blouses"), p. 14.
6 FWS of India, paragraph 96.

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ANNEX C-6
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN
I. Introduction
1. As a third party, Japan has a systemic interest in the interpretation and application of the
SPS Agreement, and therefore, would like to prov ide its views on several important legal issues
raised in this proceeding.
II. Necessity of Seeking Opinio ns from Independent Experts
A. The Role of Experts in a Panel Proceeding
2. As noted by the United States, a WTO panel is charged with making "an objective
assessment of the matter before it."1 To that end, the panel is authorized to utilize resources such
as experts in order to further inform its opinion. Specifically, Article 13.1 of the DSU grants panels
"the right to seek information and technical advi ce from any individual or body which it deems
appropriate." Article 13.2 further permits panels to "seek information from any relevant source,"
and to "consult experts to obtain their opinion on certain aspects of the matter." Indeed, it is well-
established that panels have the "right" to seek information – including expert opinions – where
the panel deems it appropriate.
2
3. Expert opinions and analyses are even more important in disputes under specialized
agreements such as the SPS Agreement, which in volve facts of a highly scientific and technical
nature. This understanding is reflected in Article 11.2 of the SPS Agreement, which states that
"{i}n a dispute under this Agreement involving scientific or technical issues, a panel should seek
advice from experts chosen by the panel." The increased importance of scientific and technical
advice in the context of the SPS Agreement is de monstrated by the use of the word "should" in
Article 11.2, whereas the DSU provides that a panel "may" seek advice in Article 13.2. The SPS
Agreement therefore not only permits, but encourag es panels to seek the opinion of experts with
regard to the scientific or technical issues of a case.
4. Nonetheless, the United States in its First Written Submission claims that the adoption of an
expert procedure in these proceedings would not result in any appreciable assistance to this
Panel.
3 The United States claims that because there is no risk assessment, there is no scientific
evidence that needs scrutiny with the assistance of experts. In Japan’s view, this is an incorrect
characterization of the role of expert assistance in SPS-related dispute settlement. To the extent
that the U.S. claims that the role of experts is contingent upon the respondent setting forth a risk
assessment, nothing in the plain text of the SP S Agreement applies such limits to the role of
experts. Article 11.2 of the SPS Agreement prov ides that in a "dispute under this Agreement
involving scientific or technical issues," expert opinions may and should be sought. This language
does not limit the use of experts to a particular ty pe of review – risk assessments – as long as the
dispute involves "scientific or technical issues".
5. Interestingly, the United States relies only on a discussion in Australia – Apples about the
panel’s use of expert testimony to explain risk assessment procedures. 4 However, other WTO
decisions do not limit the use of expert panels in such a way. Moreover, the Appellate Body went
on to note that "{t}he experts may also be consulted on the relationship between the risk
assessment and the SPS measure."
5 Indeed, the Appellate Body in Japan – Apples also confirmed
that the panel was entitled to take into account views of experts in assessing whether the
complaining party had established a prima facie case.6 Similarly, the panel in EC – Biotech found

1 United States’ First Written Submission (10 April 2013) ("US FWS"), para. 170 (p. 55).
2 US – Continued Suspension (AB), at para. 439; US – Shrimp (AB), at para. 104.
4 Id. (citing Australia – Apples (AB), at para. 215.)
5 US – Continued Suspension (AB), at para. 592.

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it proper to seek the advice of experts merely wh en the submissions raised technical and scientific
issues. The panel noted that the experts had as sisted the panel in "understanding the issues
raised by the Parties," again showing that the panel’s reliance on experts was not limited to an
evaluation of a risk assessment.
7
B. Validity of a Risk Assessment
6. Even if the Panel were to accept that expert opinions are only useful when evaluating risk
assessments, there remain sufficient issues of scientific and technical nature in this dispute that
would require the aid of independent experts in determining whether a valid risk assessment has
been conducted. For instance, according to the United States, India has reached a different
conclusion with respect to adopting import bans on poultry meat different from the import risk
analysis conducted by New Zealand (MAF Regulatory Authority 1999) that concluded, subject to
the application of appropriate sanitary measures, chicken meat could be imported safely from
countries considered infected with HPAI.
8 The panel may wish to review the underling scientific
basis of India’s measure with the aid of independent experts.
7. Furthermore, while India claims that the Su mmary Document is not India’s risk assessment,
the Panel may still seek to examine whether the Summary Document would nonetheless be
considered a de facto risk assessment, in which case some additional issues of scientific fact may
be disputed. For instance, the United States and India present starkly opposing views on the
sources used to develop the Summary Document. The Panel may also seek to obtain expert
opinions regarding the accuracy of India’s understanding that the sources behind the Summary
Document formed the basis of the OIE recommendations.
9 Moreover, India claims that it was not
required to conduct a risk assessment because its SPS measure was based on the OIE standard
(according to India, a Member is not required to conduct a risk assessment under Article 5 if the
SPS measure is based on an international standard, as the standard itself fulfills the requirements
of Article 2.2, and circumstantially, Article 5.1).
10 This would seem to suggest that the assessment
of risk performed by the OIE is what forms the sci entific basis for India’s SPS measure, and if so,
that the Panel’s examination of OIE assessment may benefit from review by independent experts
as well.
8. In the present dispute, therefore, whethe r the OIE standard constitutes the elements
necessary to satisfy the SPS Agreement’s requir ement for a risk assessment, and whether the
science cited in the Summary Document is relevant today and pertinent to the circumstances of
India, these are issues that may and should be determined with the help of independent experts.
C. The Use of OIE Experts
9. The parties to this dispute disagree with the interpretation of the OIE standard. India claims
that Members can impose an immediate ban on trade in poultry commodities from a country
reporting LPAI under Article 10.4.1.10 of the OIE Code. 11 However by the very same provision,
the United States states that notification of HPAI and LPAI in birds other than poultry should not
be a basis to impose ban on poultry commodities. 12 A point that the Panel may wish to clarify is
w h e t h e r L P A I i s a n e x o t i c d i s e a s e t o I n d i a . T h e d i s e a s e s t a t u s i n r e g a r d t o L P A I i n I n d i a i s a
fundamental factual question for the Panel to cons ider in light of the legal claims India has put
forward. Japan is of the view that OIE experts are in a good position to provide technical
knowledge in order for the Panel to determine these contentious issues, especially with respect to
the conformity of India’s measures on the relevant OIE Codes.
10. In regard to the use of expert, while India does not categorically reject the necessity of
experts in this proceeding, India opposes the us e of OIE experts to assist the Panel in this
proceeding. According to India, the OIE should not be called upon to provide expert opinion

7 EC – Biotech (Panel), at paras. 7.18, 7.30 .
8 US FWS, at para. 83.
9 India’s First Written Submission (31 May 2013) ("India FWS"), at paras. 7, 9.
10 Id. at paras. 7, 146, 163-64, and 183-84.
11 India FWS, at para. 123.
12 US FWS, at para. 51.

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because prior OIE "interjection[s] at the SPS Committee meeting cast[ ] serious doubts over the
OIE’s ability to provide guidance to the Panel…"13
11. Experts are subject to Section II (Governing Principle) of the Rules of Conduct for the
Understanding on the Rules and Procedures Governing the Settlement of Disputes ("Rules of
Conduct"),14 which provides that all covered persons, such as panelists and expert advising
panels,15 "shall be independent and impartial, shall avoi d direct or indirect conflicts of interest and
shall respect the confidentiality of proceedings of bodies pursuant to the dispute settlement
mechanism, so that through the observance of such standards of conduct the integrity and
impartiality of that mechanism are preserved." In tegrity and impartiality are further required by
Section VI.2 of the Rules of Conduct, which provides that experts "disclose any information ...
which is likely to affect or give rise to justifiable doubts as to their independence or impartiality."
12. When selecting experts, panels must consid er "whether there is an objective basis to
conclude that an expert's independence or impartiality is likely to be affected or there are
justifiable doubts about that expert's independence or impartiality."
16 This standard ensures the
fairness and impartiality of the experts in confor mity with due process. And while a party may
object to the selection of a particular expert, such objection should be accompanied by an
explanation of why the expert's independence or impartiality has been compromised.
17 C e r t a in
affiliations with international organizations may provide a basis to exclude such an expert; for
instance, in EC – Hormones, the Appellate Body found that – in a case of two competing standards
– it was improper for the panel to call on an expert who was involved in developing the standard
upon which one of the parties relied in its risk assessment, as the expert would be inclined to
defend its standard over the other, rather than conduct an objective assessment.
18
13. As such, it is not clear to Japan that an OIE expert’s independence or impartiality, if
selected, would be compromised. Rather, such an expert may even be in the best position to
provide guidance to the Panel in this dispute, in particular verifying India’s reading of its Summary
Document, which India argues formed based on the OIE recommendations and the justification for
India’s measure.
19 As such, it is Japan’s view that the Panel should not preclude the consideration
of OIE experts to aid the Panel in understanding the claims raised by the Parties in this dispute as
long as their independence and impartiality can be ensured.
III. Appropriate Standards for Determining th e Existence of a Risk Assessment Under
SPS Articles 5.1 and 5.2
14. If the Panel were to determine that the assessment of risks was conducted either through
the Summary Document, or through the adoption of the OIE standard, Japan offers the following
observations for the Panel’s consideration in determining whether India has complied with its
obligations under Articles 5.1 and 5.2 of the SPS Agreement.
A. The Meaning of "Take Into Account" is Different from "Based on" or "Comply
with"
15. Article 5.1 stipulates that Members shall ensure their SPS measures are based on a risk
assessment, "taking into account risk assessment techniques developed by the relevant
international organization." The United States specifically notes that the Summary Document
"does not even reference the OIE’s standards for a risk assessment such as Chapter 2.1 of the OIE
Code or the Handbook."
20 Thus, while the United States concludes that India has failed to "at least
take into account" the risk assessment techniques of relevant international organizations, it also
raises the question to what extent India should have discussed and deferred to the OIE Code or

13 India FWS, at para. 10.
14 Rules of Conduct for the Understanding on the Rules and Procedures Governing the Settlement of
Disputes, WT/DS/RC/1 (adopted 3 December 1996) ("Rules of Conduct").
15 Rules of Conduct, at Section IV.1.
16 US – Continued Suspension (AB), at para. 454.
17 Australia – Apples (Panel), at paras. 7.31-7.32.
18 US – Continued Suspension (AB), at para. 469.
19 India FWS, at para. 7.
20 US FWS, at para. 117.

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Handbook in order to fulfill its requirements under Article 5.1, even if it were to ultimately decide
to reject the risk assessment techniques contained in those international standards.
16. At the very least, it is clear that the requirement to take into account risk assessment
techniques developed by international organiza tions does not equate to a requirement to conform
to such international standards. As the United States correctly notes, a Member whose standards
conform to the international standards enjoys a presumption of consistency under the SPS
Agreement. It is also true, however, that conformity with international standards is neither
required, nor does a presumption of consistency mean that Members who decide not to conform
their measures to international standards are subjec t to "a special or generalized burden of proof
upon that Member, which may, more often than not, amount to a penalty."
21
17. The requirement to take into account certain risk assessment techniques under the second
half of Article 5.1 should also be distinguished from the obligation of a Member to base its risk
assessment on scientific evidence under the first half of Article 5.1. The Appellate Body in EC –
Hormones made clear that the obligations implicated by the two terms are distinctly different.
Therefore, the requirement for a Member to "base" its risk assessment on scientific evidence refers
to an objective situation. The Appellate Body has established the requisite relationship between
the scientific evidence and risk assessment to be one of a "rational relationship." As demonstrated
through the Appellate Body’s guidance in EC – Hormones , the requirement to "take into account"
certain factors, on the other hand, leaves the Member a degree of discretion to reject the
particular factors considered.
22 The discretion of a Member to reject the risk assessment
techniques developed by an international organization is especially clear when a Member has
decided not to adopt the level of protection set forth by the international organization. This is
because the particular techniques developed by an entity will be tailored to the particular level of
protection espoused by that entity.
18. Thus, the above analysis demonstrates that the requirement that a Member take into
account risk assessment techniques developed by international organizations is clearly
differentiated from an obligation to conform to, or base its risk assessment on, the standards set
forth by an international organization. The A ppellate Body further indicated that should a WTO
Member choose a higher level of protection, that Member may adopt "the scope and method" of its
risk assessment different from those of risk assessment performed by the international body that
underlies the international standard.
23
19. India does have the prerogative to adopt a level of protection higher than that espoused
under the international standard. In this case, while India would not be required to employ the
risk assessment methods set forth in the OIE Code, Article 5.1 still would not exempt India from
taking into account the risk assessment techniques developed by international organizations.
However, a Member has a degree of discretion in taking into account risk assessment techniques
developed by international organizations, and when the Member decided to adopt a higher level of
protection than that espoused under the international standard that Member may subsequently
decline to adopt such techniques.
B. Guidance on Requirements to Expr ess International Standards that have
been Taken Into Account
20. In addition to Article 5.1, Article 5.2 of the SPS Agreement uses similar language requiring
an implementing Member to "take into account" seven specific factors in conducting its risk
assessment. And similar to its assertion that a failure to "reference" the OIE Code suggests a
violation of Article 5.1, the United States argues that India failed to comply with Article 5.2,
because "{t}he most recent scientific authority cited is over 14 years old," and "there is not even
a cursory reference to available scientific evidence explaining that LPAI does not replicate
systematically and the corresponding implications for the safety of poultry meat and eggs."
24 In
other words, it appears that the United States assumes that India did not take into account the
requisite factors expressed in Articles 5.1 an d 5.2 of the SPS Agreement because the Summary
Document does not "reference" those specific factors. However, it is not clear that a Member’s

21 EC – Hormones (AB), at para. 102. Italic Original.
22 Id. at paras. 189, 193-94.
23 US – Continued Suspension (AB), at para. 685.
24 US FWS, at 118.

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failure to expressly reference each factor provided in Articles 5.1 and 5.2 automatically leads to
the conclusion that the Member failed to take those factors into account, especially with regard to
information that the Member has ultimately decided to reject in its risk assessment after
examining factors to be taken into account.
21. As discussed above, a requirement to "base" an SPS measure on scientific evidence is
distinguished from a requirement to "take into account" certain factors. The panel in EC – Biotech
clarified that when a Member has decided to "base" its risk assessment on divergent opinion, the
Member is required to express the information that its risk assessment is based on.
25
22. With regards to factors that should be "taken into account," however, the Appellate Body in
Australia – Apples only acknowledged that reference by the risk assessor of the risk assessment
technique employed "is useful both to the risk assessor, should a dispute arise in relation to the
risk assessment, and to the Panel that is called upon to review the consistency of that risk
assessment with the provisions of the SPS Agreement." 26 Thus, while the Appellate Body has
found it "useful" for a risk assessment to describe the methods employed, it does not appear to go
beyond that to suggest that such description is mandatory. This would suggest that express
reference to each factor listed in Article 5.2 may not be necessary, especially for these declined;
instead whether a particular factor be taken into account by a Member can be discerned from the
examination of the risk assessment as a whole.
IV. CONCLUSION
23. The Government of Japan thanks the Panel for this opportunity to comment on important
issues in this proceeding, and asks that the Panel consider the observations of Japan in reaching
its determinations.