INDIA – MEASURES CONCERNING THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS AB-2015-2
Document: Report of the Appellate Body
Date: 4 June 2015
Document codes: WT/DS430/AB/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
AB-2015-2
Report of the Appellate Body

ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
AI avian influenza
ALOP appropriate level of protection
DAHD India's Department of Animal Husbandry, Dairying and Fisheries
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of
Disputes
GATT 1994 General Agreement on Tariffs and Trade 1994
H haemagglutinin
HPAI highly pathogenic avian influenza
HPNAI highly pathogenic notifiable avian influenza
Livestock Act The Live-Stock Importation Act, 1898 (No. 9 of 1898), published on
12 August 1898 (Panel Exhibit US-114), as amended by The Live-Stock
Importation (Amendment) Act, 2001 (No. 28 of 2001) (19 July 2001),
published in The Gazette of India on 29 August 2001, No. 35, Part II,
Section 1, pp. 1-2 (Panel Exhibit US-115)
LPAI low pathogenicity avian influenza
LPNAI low pathogenicity notifiable avian influenza
N neuraminidase
NAI notifiable avian influenza
NAP 2012 India's National Action Plan for 2012
OIE World Organisation for Animal Health (formerly, Office International des
Epizooties)
OIE Code OIE Terrestrial Animal Health Code, 21st edition (May 2012)
Panel Report Panel Report, India – Measures Concerning the Importation of Certain
Agricultural Products, and Add.1, circulated to WTO
Members 14 October 2014
Preliminary Ruling Preliminary ruling by the Panel of 22 May 2013, circulated as document

SIP sanitary import permit
S.O. 1663(E) Statutory Order 1663(E), issued by India's Department of Animal
Husbandry, Dairying and Fisheries (DAHD) on 19 July 2011 pursuant to
the Livestock Act and published in The Gazette of India on 20 July 2011,
No. 1390, Part II, Section 3(ii), pp. 1-2 (Panel Exhibit US-80)
SPS sanitary and phytosanitary
SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures
Summary Document "India's Risk Assessment on Avian Influenza for imposing ban on import
of poultry and poultry products from Avian Influenza positive countries",
document provided to the SPS Committee by India at the October 2010
SPS Committee meeting (Panel Exhibit US-110)
Vienna Convention Vienna Convention on the Law of Treaties, done at Vienna, 23 May 1969,
Working Procedures Working Procedures for Appellate Review, WT/AB/WP/6, 16 August 2010
WTO World Trade Organization
WTO Agreement Marrakesh Agreement Establishing the World Trade Organization

PANEL EXHIBITS CITED IN THIS REPORT
Exhibit No. Description
IND-7 Report by FAO and OIE, in collaborat ion with WHO, "A Global Strategy for the
Progressive Control of Highly Pathogenic Avian Influenza (HPAI)"
(November 2005)
IND-8 Report by FAO Animal Production and Health Division, "Poultry Sector Country
Review – India" (September 2008)
IND-9 Government of India, Ministry of Agri culture, Department of Animal Husbandry,
Dairying & Fisheries, Annual Report 2012-13
IND-10 C. Tosh et al., "Emergence of amantadine-resistant avian influenza H5N1 virus
in India" (2011) 42 Virus Genes, pp. 10–15
IND-11 C. Tosh et al., "Phylogenetic evidence of multiple introduction of H5N1 virus in
Malda district of West Bengal, India in 2008" (2011) 148 Veterinary
Microbiology, pp. 132–139
IND-12 S. Nagarajan et al., "Avian influenza (H5N1) virus of clade 2.3.2 in domestic
poultry in India" (2012), 7(2):e31844 PLoS ONE (www.plosone.org)
IND-13 OIE, "Devising Import Health Measures for Animal Commodities" (paper,
undated)
IND-14 USDA Foreign Agricultural Service, Global Agriculture Information Network
(GAIN) Report, "People's Republic of China, Poultry and Products Annual Report
2006", No. CH6075 (5 September 2006)
IND-15 Indian Veterinary Research Institute, Annual Report for 2011-12
IND-47 Letter from R. Gangadharan dated 24 February 2012 to the Chief Secretaries of
various State Governments and Union Territories
IND-68 J. Post et al., "Systemic distribution of different low pathogenic avian influenza
(LPAI) viruses in chicken" (2013) 10(23) Virology Journal
IND-108 Biosecurity Australia, Generic Import Risk Analysis Report for Chicken Meat,
Final Report (October 2008), Parts A-C
IND-109 T. van den Berg, "The role of the le gal and illegal trade of live birds and avian
products in the spread of avian influenza" (2009) 28(1) Scientific and Technical
Review of the Office International des Epizooties, pp. 93-111
IND-110 A.F. Ziegler et al., "Characteristics of H7N2 (nonpathogenic) avian influenza
virus infections in commercial layers, in Pennsylvania, 1997-98" (1999) 43(1)
Avian Diseases, pp. 142-149
IND-111 S.P. Cobb, "The spread of pathogens through trade in poultry meat: overview
and recent developments" (2011) 30(1) Scientific and Technical Review of the
IND-115 Government of India, Ministry of Agriculture, Department of Animal Husbandry,
Dairying & Fisheries, Report on Notifiable Avian Influenza (H5 and H7) ending
12.05.13 – Surveillance/Testing by HSADL, Bhopal" (20 May 2013)
IND-117 Letter dated 27 August 2012 from R.S. Rana (Joint Secretary to the
Government of India, DAHD) to the Principal Secretary/Secretary of Veterinary
Services/Animal Resources Development of all the States and Union Territories
regarding: "Preparedness of the states to prevent ingress of Avian Influenza"

Exhibit No. Description
IND-121
[[containing
information
designated
strictly
confidential
before the
Panel]]
Letter dated 28 January 2010 from Assistant Commissioner, DAHD, to US
Minister-Counsellor for Agricultural Affairs regarding: "India's comments on US
proposed certificates for export of poultry, pork, pet food and feather to India"
US-1 World Organisation for Animal Health, Terrestrial Animal Health Code, 21st edn
(May 2012), Vol. II, chapter 10.4 – Infection with Viruses of Notifiable Avian
Influenza
US-18 D.E. Swayne and M. Pantin-Jackwood, "Pathobiology of Avian Influenza Virus
Infections in Birds and Mammals", in D.E. Swayne (ed.), Avian Influenza
(Blackwell Publishing, 2008)
S-19 D.E. Swayne and D.L. Suarez, "Highly pathogenic avian influenza" (2000) 19(2)
Scientific and Technical Review of the Office International des Epizooties,
pp. 463-482
US-20 Canada Food Inspection Agency, "Fact Sheet – Avian Influenza" (modified
22 December 2012), available at:<www.inspection.gc.ca/animals/terrestrial-
animals/diseases/reportable/ai/fact-sheet/eng/1356193731667
/1356193918453>
US-23 OIE, General Disease Information Sheets, "What is Avian Influenza (AI)?"
US-24 D.E. Swayne, "Avian Influenza Control Strategies", in D.E. Swayne (ed.), Avian
Influenza (Blackwell Publishing, 2008), chapter 12
US-31 D.E. Swayne and C. Thomas, "Tra de and Food Safety Aspects for Avian
Influenza Viruses", in D.E. Swayne (ed.), Avian Influenza (Blackwell Publishing,
2008), chapter 22
US-48 D.E. Swayne and B.L. Akey, "Avian influenza control strategies in the
United States of America", in R.S. Schrijver and G. Koch (eds.), Avian Influenza
– Prevention and Control (Springer, 2005), chapter 13
US-80 Statutory Order 1663(E) (19 July 2011) issued by Government of India, Ministry
of Agriculture, Department of Animal Husbandry, Dairying & Fisheries, pursuant
to the Livestock Act and published in The Gazette of India on 20 July 2011,
No. 1390, Part II, Section 3(ii), pp. 1-2
US-89 Government of India, Ministry of Agriculture, Department of Animal Husbandry,
Dairying & Fisheries, "Action Plan of Animal Husbandry for Preparedness,
Control and Containment of Avian Influenza" (November 2006)
US-90 Government of India, Ministry of Agri culture, Department of Animal Husbandry,
Dairying & Fisheries, "Action Plan of Animal Husbandry for Preparedness,
Control and Containment of Avian Influenza" (Revised – 2012)
US-92 Expert statement of Emi Kate Saito, attached to United States' first written
submission to the Panel
US-97 Expert statement of David E. Swayne, attached to United States' first written
submission to the Panel
US-98 A. Das et al., "Detection of H5N1 high-pathogenicity avian influenza virus in
meat and tracheal samples from experimentally infected chickens" (2008) 52
Avian Diseases, pp. 40-48
US-99 Y. Kobayashi et al., "Pathological studies of chickens experimentally infected
with two highly pathogenic avian influenza viruses" (1996) 25 Avian Pathology,
pp. 285-304

Exhibit No. Description
US-100 Y.K. Kwon and D.E. Swayne, "Different routes of inoculation impact infectivity
and pathogenesis of H5N1 high pathogenicity avian influenza virus infection in
chickens and domestic ducks" (2010) 54 Avian Diseases, pp. 1260-1269
US-101 L.E.L. Perkins and D. E. Swayne, "Pathobiology of A/Chicken/Hong Kong/220/97
(H5N1) avian influenza virus in seven Gallinaceous species" (2001) 38
Veterinary Pathology, pp. 149-164
US-102 E. Spackman et al., "The pathogenesis of low pathogenicity H7 avian influenza
viruses in chickens, ducks and turkeys" (2010) 7 Virology Journal, p. 331
US-103 D.E. Swayne and J.R. Beck, "Heat in activation of avian influenza and Newcastle
disease viruses in egg products" (2004) 33(5) Avian Pathology, pp. 512-518
US-104 D.E. Swayne and J.R. Beck, "Experimental study to determine if low-
pathogenicity and high-pathogenicity avian influenza viruses can be present in
chicken breast and thigh meat following intranasal virus inoculation" (2005) 49
Avian Diseases, pp. 81-85
US-105 D.E. Swayne et al., "Reduction of high pathogenicity avian influenza virus in
eggs from chickens once or twice vaccinated with an oil-emulsified inactivated
H5 avian influenza vaccine" (2012) 30 Vaccine, pp. 4964-4970
US-106 Expert statement of Rebecca D. Jones, attached to United States' first written
submission to the Panel
US-110 "India's Risk Assessment on Avian Influenza for imposing ban on import of
poultry and poultry products from Avian Influenza positive countries", document
provided to the SPS Committee by India at the October 2010 SPS Committee
meeting
US-114 The Live-Stock Importation Act, 1898 (No. 9 of 1898), published on 12 August
1898
US-115 The Live-Stock Importation (Amendment) Act, 2001 (No. 28 of 2001) (19 July
2001) published in The Gazette of India on 29 August 2001, No. 35, Part II,
Section 1, pp. 1-2
US-117 User's Guide to the OIE Terrestrial Animal Health Code (2012)
US-119 Committee on Sanitary and Phytosanitary Measures, Note by the Secretariat,
Summary of the Meeting of 18-19 October 2007, document G/SPS/R/46
US-122 S.D. Pawar et al., "Avian influenza surveillance reveals presence of low
pathogenic avian influenza viruses in poultry during 2009-2011 in the West
Bengal State, India" (2012) 9 Virology Journal, p. 151
US-123 OIE, Report of the Meeting of the OIE Terrestrial Animal Health Standards
Commission (February 2010)
US-141 Letter dated 20 October 2009 from M. Gilkey (Director, APHIS) to A. Kaushal
(Joint Secretary, DAHD), regarding: "S.O. 2208(E) Notification published in the
Gazette of India on August 28, 2009"
US-143 Expert statement of David E. Swayne, attached to United States' second written
submission to the Panel
US-144 Expert statement of Emi Kate Saito, attached to United States' second written
submission to the Panel
US-145 Expert statement of Rebecca D. Jones, attached to United States' second written
submission to the Panel

CASES CITED IN THIS REPORT
Short Title Full Case Title and Citation
Argentina – Import Measures Appellate Body Reports, Argentina – Measures Affecting the Importation of
Goods, WT/DS438/AB/R / WT/DS444/AB/R / WT/DS445/AB/R, adopted
26 January 2015
Australia – Apples Appellate Body Report, Australia – Measures Affecting the Importation of
Apples from New Zealand, WT/DS367/AB/R, adopted 17 December 2010,
DSR 2010:V, p. 2175
Australia – Apples 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, DSR 2010:VI, p. 2371
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of Salmon,
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, p. 3327
Australia – Salmon Panel Report, Australia – Measures Affecting Importation of Salmon,
WT/DS18/R and Corr.1, adopted 6 November 1998, as modified by Appellate
Body Report WT/DS18/AB/R, DSR 1998:VIII, p. 3407
Australia – Salmon
(Article 21.5 – Canada)
Panel Report, Australia – Measures Affecting Importation of Salmon –
Recourse to Article 21.5 of the DSU by Canada, WT/DS18/RW, adopted
20 March 2000, DSR 2000:IV, p. 2031
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded
Tyres, WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, p. 1527
Canada – Continued
Suspension
Appellate Body Report, Canada – Continued Suspension of Obligations in the
EC – Hormones Dispute, WT/DS321/AB/R, adopted 14 November 2008,
DSR 2008:XIV, p. 5373
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures
Relating to Certain Agricultural Products, WT/DS207/AB/R, adopted 23 October
2002, DSR 2002:VIII, p. 3045 (Corr.1, DSR 2006:XII, p. 5473)
Chile – Price Band System
(Article 21.5 – Argentina)
Appellate Body Report, Chile – Price Band System and Safeguard Measures
Relating to Certain Agricultural Products – Recourse to Article 21.5 of the DSU
by Argentina, WT/DS207/AB/RW, adopted 22 May 2007, DSR 2007:II, p. 513
China – Rare Earths Appellate Body Reports, China – Measures Related to the Exportation of Rare
Earths, Tungsten, and Molybdenum, WT/DS431/AB/R / WT/DS432/AB/R /
WT/DS433/AB/R, adopted 29 August 2014
EC – Approval and Marketing
of Biotech Products
Panel Reports, European Communities – Measures Affecting the Approval and
Marketing of Biotech Products, WT/DS291/R, Add.1 to Add.9 and Corr.1 /
WT/DS292/R, Add.1 to Add.9 and Corr.1 / WT/DS293/R, Add.1 to Add.9 and
Corr.1, adopted 21 November 2006, DSR 2006:III, p. 847
EC – Asbestos Appellate Body Report, European Communities – Measures Affecting Asbestos
and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5 April 2001,
DSR 2001:VII, p. 3243
EC – Bananas III Appellate Body Report, European Communities – Regime for the Importation,
Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September
1997, DSR 1997:II, p. 591
EC – Bananas III (Ecuador) Panel Report, European Communities – Regime for the Importation, Sale and
Distribution of Bananas, Complaint by Ecuador, WT/DS27/R/ECU, adopted
25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R,
DSR 1997:III, p. 1085
EC – Bananas III (Guatemala
and Honduras)
Panel Report, European Communities – Regime for the Importation, Sale and
Distribution of Bananas, Complaint by Guatemala and Honduras,
WT/DS27/R/GTM, WT/DS27/R/HND, adopted 25 September 1997, as modified
by Appellate Body Report WT/DS27/AB/R, DSR 1997:II, p. 695
EC – Bananas III (Mexico) Panel Report, European Communities – Regime for the Importation, Sale and
Distribution of Bananas, Complaint by Mexico, WT/DS27/R/MEX, adopted
25 September 1997, as modified by Appellate Body Report WT/DS27/AB/R,
DSR 1997:II, p. 803

Short Title Full Case Title and Citation
EC – Bananas III (US) Panel Report, European Communities – Regime for the Importation, Sale and
Distribution of Bananas, Complaint by the United States, WT/DS27/R/USA,
adopted 25 September 1997, as modified by Appellate Body Report
WT/DS27/AB/R, DSR 1997:II, p. 943
EC – Bed Linen
(Article 21.5 – India)
Appellate Body Report, European Communities – Anti-Dumping Duties on
Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the
DSU by India, WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III,
p. 965
EC – Chicken Cuts Appellate Body Report, European Communities – Customs Classification of
Frozen Boneless Chicken Cuts, WT/DS269/AB/R, WT/DS286/AB/R, adopted
27 September 2005, and Corr.1, DSR 2005:XIX, p. 9157
EC – Computer Equipment Appellate Body Report, European Communities – Customs Classification of
Certain Computer Equipment, WT/DS62/AB/R, WT/DS67/AB/R,
WT/DS68/AB/R, adopted 22 June 1998, DSR 1998:V, p. 1851
EC – Fasteners (China) Appellate Body Report, European Communities – Definitive Anti-Dumping
Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R,
adopted 28 July 2011, DSR 2011:VII, p. 3995
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products
(Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998,
DSR 1998:I, p. 135
EC – Poultry Appellate Body Report, European Communities – Measures Affecting the
Importation of Certain Poultry Products, WT/DS69/AB/R, adopted 23 July
1998, DSR 1998:V, p. 2031
EC – Sardines Appellate Body Report, European Communities – Trade Description of
Sardines, WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, p. 3359
EC – Seal Products Appellate Body Reports, European Communities – Measures Prohibiting the
Importation and Marketing of Seal Products, WT/DS400/AB/R /
WT/DS401/AB/R, adopted 18 June 2014
EC – Selected Customs
Matters
Appellate Body Report, European Communities – Selected Customs Matters,
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping Duties on
Malleable Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/AB/R,
adopted 18 August 2003, DSR 2003:VI, p. 2613
EC and certain member
States – Large Civil Aircraft
Appellate Body Report, European Communities and Certain Member States
– Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, adopted
1 June 2011, DSR 2011:I, p. 7
India – Quantitative
Restrictions
Appellate Body Report, India – Quantitative Restrictions on Imports of
Agricultural, Textile and Industrial Products, WT/DS90/AB/R, adopted
22 September 1999, DSR 1999:IV, p. 1763
Japan – Agricultural
Products II
Appellate Body Report, Japan – Measures Affecting Agricultural Products,
WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, p. 277
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation of Apples,
WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, p. 4391
Japan – Apples Panel Report, Japan – Measures Affecting the Importation of Apples,
WT/DS245/R, adopted 10 December 2003, upheld by Appellate Body Report
WT/DS245/AB/R, DSR 2003:IX, p. 4481
Japan – Apples
(Article 21.5 – US)
Panel Report, Japan – Measures Affecting the Importation of Apples –
Recourse to Article 21.5 of the DSU by the United States, WT/DS245/RW,
adopted 20 July 2005, DSR 2005:XVI, p. 7911
Korea – Alcoholic Beverages Appellate Body Report, Korea – Taxes on Alcoholic Beverages, WT/DS75/AB/R,
WT/DS84/AB/R, adopted 17 February 1999, DSR 1999:I, p. 3
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of
Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000,
DSR 2000:I, p. 3
US – Anti-Dumping and
Countervailing Duties (China)
Appellate Body Report, United States – Definitive Anti-Dumping and
Countervailing Duties on Certain Products from China, WT/DS379/AB/R, adopted
25 March 2011, DSR 2011:V, p. 2869

Short Title Full Case Title and Citation
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain
Corrosion-Resistant Carbon Steel Flat Products from Germany,
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX,
p. 3779
US – Clove Cigarettes Appellate Body Report, United States – Measures Affecting the Production and
Sale of Clove Cigarettes, WT/DS406/AB/R, adopted 24 April 2012,
DSR 2012:XI, p. 5751
US – Continued Suspension Appellate Body Report, United States – Continued Suspension of Obligations in
the EC – Hormones Dispute, WT/DS320/AB/R, adopted 14 November 2008,
DSR 2008:X, p. 3507
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border
Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April
2005, DSR 2005:XII, p. 5663 (Corr.1, DSR 2006:XII, p. 5475)
US – Oil Country Tubular
Goods Sunset Reviews
Appellate Body Report, United States – Sunset Reviews of Anti-Dumping
Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R,
adopted 17 December 2004, DSR 2004:VII, p. 3257
US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of Poultry
from China, WT/DS392/R, adopted 25 October 2010, DSR 2010:V, p. 1909
US – Section 301 Trade Act Panel Report, United States – Sections 301-310 of the Trade Act of 1974,
WT/DS152/R, adopted 27 January 2000, DSR 2000:II, p. 815
US – Shrimp Appellate Body Report, United States – Import Prohibition of Certain Shrimp
and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998,
DSR 1998:VII, p. 2755
US – Steel Safeguards Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Certain Steel Products, WT/DS248/AB/R, WT/DS249/AB/R,
WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R,
WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003,
DSR 2003:VII, p. 3117
US – Tuna II (Mexico) Appellate Body Report, United States – Measures Concerning the Importation,
Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R, adopted
13 June 2012, DSR 2012:IV, p. 1837
US – Tyres (China) Appellate Body Report, United States – Measures Affecting Imports of Certain
Passenger Vehicle and Light Truck Tyres from China, WT/DS399/AB/R,
adopted 5 October 2011, DSR 2011:IX, p. 4811
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton,
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3
US – Wheat Gluten Appellate Body Report, United States – Definitive Safeguard Measures on
Imports of Wheat Gluten from the European Communities, WT/DS166/AB/R,
adopted 19 January 2001, DSR 2001:II, p. 717
US – Wool Shirts and
Blouses
Appellate Body Report, United States – Measure Affecting Imports of Woven
Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997,
and Corr.1, DSR 1997:I, p. 323

APPELLATE BODY

India – Measures Concerning the
Importation of Certain Agricultural
Products

India, Appellant
United States, Appellee

Argentina, Third Participant
Australia, Third Participant
Brazil, Third Participant
China, Third Participant
Colombia, Third Participant
Ecuador, Third Participant
European Union, Third Participant
Guatemala, Third Participant
Japan, Third Participant
Viet Nam, Third Participant

AB-2015-2

Appellate Body Division:

Zhang, Presiding Member
Chang, Member
Servansing, Member

1 INTRODUCTION
1.1. India appeals certain issues of law and legal interpretations developed in the Panel Report,
India – Measures Concerning the Importation of Certain Agricultural Products 1 (Panel Report). The
Panel was established to consider a complaint by the United States 2 with respect to measures
taken by India concerning the importation of certain agricultural products.
1.2. This dispute concerns measures consisting of prohibitions that India imposes on the
importation of various agricultural products, primarily poultry products, because of concerns
related to avian influenza (AI). 3 India maintains its AI measures through two legal instruments –
The Live-Stock Importation Act, as amended 4 (Livestock Act), and Statutory Order 1663(E) 5
(S.O. 1663(E)).6
1.3. AI, also commonly known as "avian flu" or "bird flu", is "an infectious viral disease of birds
(especially wild water fowl such as ducks and gees e), often causing no apparent signs of illness". 7
AI can sometimes spread to domestic poultry and cause large-scale outbreaks of serious disease,
and some AI viruses have also been reported to cause disease or subclinical infections in humans
and other animals. AI has a variety of subtypes that are classified according to the two
components that make up the virus – haemagglutinin (H) and neuraminidase (N). Consequently,
the various subtypes of AI that have been identi fied are labelled as some form of the "HxNy"
combination.
8

1 WT/DS430/R, 14 October 2014.
2 Request for the Establishment of a Panel by the United States, WT/DS430/3. The Panel was
established by the Dispute Settlement Body at its meeting of 25 June 2012. (Panel Report, paras. 1.3-1.4)
3 Panel Report, para. 2.1.
4 The Live-Stock Importation Act, 1898 (No. 9 of 1898), published on 12 August 1898 (Panel Exhibit
US-114), as amended by The Live-Stock Importation (Amendment) Act, 2001 (No. 28 of 2001) (19 July 2001),
published in The Gazette of India on 29 August 2001, No. 35, Part II, Section 1, pp. 1-2 (Panel Exhibit
US-115).
5 Statutory Order 1663(E), issued by India's Department of Animal Husbandry, Dairying and Fisheries
(DAHD) on 19 July 2011 pursuant to the Livestock Act and published in The Gazette of India on 20 July 2011,
No. 1390, Part II, Section 3(ii), pp. 1-2 (Panel Exhibit US-80).
6 Panel Report, para. 2.22 (referring to the Livestock Act and S.O. 1663(E)).
7 Panel Report, para. 2.6 (referring to World Health Organization, "Avian Influenza", accessed
17 January 2014, <http://www.who.int/mediacentre/factsheets/avian_influenza/en/index.html>).
8 The Panel explained that sixteen H and nine N subtypes of AI have been identified to date and that
new influenza viruses are constantly emerging as a result of genetic mutation and re-assortment. (Panel
Report, para. 2.7)

1.4. All AI subtypes are classified into one of two groups according to their ability to cause
disease, or "pathogenicity", in birds: (i) highly pathogenic avian influenza (HPAI); and (ii) low
pathogenicity avian influenza (LPAI).
9 HPAI is an extremely infectious, systemic viral disease of
poultry that produces high mortality and various types of lesions in multiple visceral organs, the
brain, and skin. 10 B y c o n t r a s t , i n f e c t i o n w i t h L P A I m a y b e a s y m p t o m a t i c o r h a v e v e r y m i l d
symptoms, consisting of ruffled feathers, redu ced egg production, or mild effects on the
respiratory system.11
1.5. The World Organisation for Animal Health (formerly, Office International des Epizooties)
(OIE) is the international organization responsible for establishing health standards for
international trade in animals and animal products, including standards relating to AI.
12 The
members of the OIE annually adopt the OIE Terrestrial Animal Health Code (OIE Code 13), which
contains recommendations that, when correctly applied, provide for safe trade in animals and
animal products while avoiding unjustified sanitary barriers to trade. 14 OIE members are required
to notify the OIE of any occurrence of HPAI and of certain types of LPAI in their territories. 15 To
this end, the OIE Code definition of "notifiable avian influenza" (NAI) covers both highly
pathogenic notifiable avian influenza (HPNAI) and low pathogenicity notifiable avian influenza
(LPNAI).
16 Chapter 10.4 of the OIE Code 17 contains recommendations specifically addressing
infection with NAI viruses.18
1.6. The factual aspects of this dispute are set forth in greater detail in paragraphs 2.1
through 2.59 of the Panel Report, and section 4 of this Report.
1.7. The Panel sought advice from experts in this dispute, consisting of a written consultation with
the OIE on the interpretation of the OIE Code, and a written and oral consultation with three
independent experts on the AI surveillance regime with particular respect to India's surveillance
regime for LPAI and its domestic disease situation. 19 The Panel sent separate written questions to
the OIE and to the three individual experts, taking into account suggested questions that the Panel
had solicited from the parties to the dispute. 20 The Panel received written responses to its
questions from the OIE and all three experts, and afforded the parties an opportunity to comment
on the responses. 21 The Panel also held a hearing with the three individual experts and the
parties.22
1.8. On 4 March 2013, India submitted a request for a preliminary ruling from the Panel
concerning the consistency of the United States' panel request with Article 6.2 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). 23 India
maintained that the United States' panel request was inconsistent with Article 6.2 because it failed
to identify the specific measures at issue, and failed to provide a brief summary of the legal basis
of the complaint sufficient to present the problem clearly in respect of the United States' claims
under Articles 2.3, 5.5, and 5.6 of the Agreement on the Application of Sanitary and Phytosanitary
Measures (SPS Agreement).
24 For these reasons, India requested the Panel to: (i) limit the
United States' challenge of S.O. 1663(E) to the prohibition on importation of the ten categories of

9 Panel Report, para. 2.8.
10 Panel Report, para. 2.9 (referring to Panel Exhibit US-19, p. 463).
11 Panel Report, para. 2.11 (referring to Panel Exhibit US-23, p. 3).
12 Panel Report, para. 2.50.
13 The parties agreed that the relevant international standard for purposes of this dispute was the OIE
Code. (Panel Report, para. 7.206) The Panel found that, for the purposes of its examination of the
United States' claim, the relevant edition of the OIE Code was the 21st edition, adopted in May 2012, because
it was the edition that was in force at the time of Panel establishment. (Panel Report, para. 7.213)
14 Panel Report, paras. 2.53-2.54 and 2.56 (referring to the Foreword and User's Guide to the OIE Code,
and the Rights and Obligations of OIE Members).
15 Panel Report, para. 2.13.
16 Panel Report, paras. 2.13-2.15.
17 World Organisation for Animal Health, Terrestrial Animal Health Code, 21st edn (May 2012), Vol. II,
chapter 10.4 – Infection with Viruses of Notifiable Avian Influenza (Panel Exhibit US-1).
18 Panel Report, para. 2.59.
19 Panel Report, paras. 1.23-1.30.
20 Panel Report, paras. 1.32-1.33.
21 Panel Report, paras. 1.32-1.34.
22 Panel Report, para. 1.36.
23 Panel Report, para. 1.14.
24 WT/DS430/5, para. 1.1.

products expressly listed in paragraph 3 of the panel request from countries reporting HPNAI and
LPNAI; (ii) rule that related measures, implementing measures, orders, and expired measures
were outside the Panel's terms of reference; and (i ii) refrain from considering the substance of the
United States' claims under Articles 2.3, 5.5, and 5.6 of the SPS Agreement.
25 The Panel gave the
United States and the third parties an opportunity to comment in writing on India's request. After
receiving comments from the United States and certain third parties with respect to India's
request
26, the Panel issued a preliminary ruling to the parties on 22 May 2013 (Preliminary
Ruling), and requested the Chair of the Dispute Se ttlement Body (DSB) to circulate this ruling to
the DSB.27
1.9. In the Preliminary Ruling, the Panel found th e United States' panel request to be sufficiently
precise in identifying S.O. 1663(E) as a specific measure at issue, "insofar as S.O. 1663(E)
prohibits the importation of various agricultural products into India from those countries reporting
NAI (both HPNAI and LPNAI)", and that the United States' challenge to such prohibition was not
limited to "the listing of the products proh ibited by S.O. 1663(E) in paragraph 3 of the
panel request", but encompassed all products, th e importation of which is prohibited from
countries reporting NAI pursuant to S.O. 1663(E).
28 The Panel further concluded that the
United States' panel request did not fail to pr ovide a brief summary of the legal basis of the
complaint sufficient to present the problem clearly in respect of the claims under Articles 2.3, 5.5,
and 5.6 of the SPS Agreement. 29 More specifically, with respect to each of these claims, the Panel
found that: (i) the United States was challenging the treatment of imports under India's AI
measures with respect to both HPAI and LPAI
30; and (ii) the United States' challenge was not
limited to the ten categories of products expressly mentioned in its panel request. 31 The Panel
rejected other aspects of India's challenge to the specificity and scope of the panel request, and, in
certain respects, concluded that it was prematur e for it to make a determination on whether
certain measures not specifically listed in the panel request were within the Panel's terms of
reference.
32
1.10. On 31 May 2013, as part of its first written submission, India submitted a second request
for a preliminary ruling from the Panel concerning the consistency of the United States'
panel request with Article 6.2 of the DSU. 33 India argued that the United States, in its first written
submission, had raised claims concerning India's National Action Plan for 2012 (NAP 2012) and
health certificate requirements for products listed in S.O. 1663(E), notwithstanding the fact that
these measures were not mentioned in the United States' panel request.
34 India requested the
Panel to rule that these measures and the claims relating to them were outside the Panel's terms
of reference. The Panel included its ruling on these requests in its Report.
35 The Panel concluded
that, as a measure that applies only to India's domestic agricultural products, the NAP 2012 does
not fall within the scope of India's AI measures relating to import prohibitions on products from
countries reporting NAI, as identified by the United States in its panel request. Accordingly, the
Panel found that the NAP 2012 is not a measure at issue within the meaning of Article 6.2 of the
DSU.
36 The Panel further concluded that the health certificates that accompany a sanitary import
permit (SIP) were not identified in the United States' panel request and are therefore not
measures at issue within the meaning of Article 6.2 of the DSU.
37

25 India's request for a preliminary ruling, para. 79.
26 WT/DS430/5, paras. 1.3-1.4.
27 The Preliminary Ruling was circulated as document WT/DS430/5 on 28 June 2013. (Panel Report,
paras. 1.16 and 7.2. The Preliminary Ruling forms an integral part of the Panel Report. (Ibid., para. 7.4))
Preliminary Ruling, paras. 3.36-3.37 and 3.66.
29 Panel Report, para. 8.1.a.v. See also para. 7.3; and Preliminary Ruling, paras. 3.94, 3.124,
and 3.141.
30 Preliminary Ruling, paras. 3.91, 3.115, and 3.136.
31 Preliminary Ruling, paras. 3.93, 3.118-3.119, and 3.140.
33 Panel Report, paras. 1.17 and 7.5.
34 Panel Report, para. 7.5 (referring to India's first written submission to the Panel, paras. 67-68).
35 Panel Report, section 7.1.2.
36 Panel Report, paras. 7.104.a and 8.1.b.i. The Panel denied India's request that the United States'
claim under Article 2.3 of the SPS Agreement be set aside because the NAP 2012 was not identified in the
United States' panel request. (Ibid., paras. 7.105 and 8.1.b.iv)
37 Panel Report, paras. 7.104.b and c and 8.1.b.ii-iii.

1.11. The United States requested that the Panel find that India's AI measures are inconsistent
with India's obligations under Articles 2.2, 2.3, 3.1, 5.1, 5.2, 5.5, 5.6, 6.1, 6.2, 7, and certain
provisions of Annex B to the SPS Agreement, an d with Article XI of the General Agreement on
Tariffs and Trade 1994 (GATT 1994).
38
1.12. In the Panel Report, circulated to Members of the World Trade Organization (WTO) on
14 October 2014, the Panel found that:
a. India's AI measures are inconsistent with Article 3.1 of the SPS Agreement because they
are not "based on" the relevant international standard as set out in Chapter 10.4 of the
OIE Code; and that India's AI measures are not entitled to benefit from the presumption
of consistency, under Article 3.2 of the SPS Agreement, with other provisions of the
SPS Agreement and of the GATT 1994 because these measures do not "conform to" the
relevant international standard within the meaning of Article 3.2
39;
b. India's AI measures are inconsistent with Articles 5.1 and 5.2 of the SPS Agreement
because they are not based on a risk assessment, appropriate to the circumstances,
taking into account risk assessment techniques developed by the relevant international
organizations and the factors set forth in Article 5.2; and, in the light of these findings,
India's AI measures are also inconsistent with Article 2.2 of the SPS Agreement because
they are not based on scientific principles an d are maintained without sufficient scientific
evidence
40;
c. India's AI measures are inconsistent with Article 2.3, first sentence, of the
SPS Agreement because they arbitrarily and unjustifiably discriminate between Members
where identical or similar conditions prevail; and India's AI measures are inconsistent
with Article 2.3, second sentence, of the SPS Agreement because they are applied in a
manner which constitutes a disguised restriction on international trade
41;
d. India's AI measures are inconsistent with Article 5.6 of the SPS Agreement because they
are significantly more trade restrictive than required to achieve India's appropriate level
of protection (ALOP) with respect to th e products covered by Chapter 10.4 of the
OIE Code; and, in the light of these findings, India's AI measures are also inconsistent
with Article 2.2 of the SPS Agreement beca use they are applied beyond the extent
necessary to protect human and animal life or health
42;
e. India's AI measures are inconsistent with Article 6.2, first sentence, of the
SPS Agreement because they fail to recognize the concepts of disease-free areas and
areas of low disease prevalence; and, in the light of these findings, India's AI measures
are also inconsistent with: (i) Article 6.2, second sentence, of the SPS Agreement
because the failure to recognize the concepts of disease-free areas and areas of low
disease prevalence renders impossible a determination of such areas based on the
factors enumerated in Article 6.2, second sentence; (ii) Article 6.1, first sentence, of the
SPS Agreement because they are therefore not adapted to the SPS characteristics of the
areas from which products originate and to which they are destined; and (iii) Article 6.1,
second sentence, of the SPS Agreement because India has not taken into account factors
including those specified in that provision
43;
f. India acted inconsistently with various provisions of Annex B to the SPS Agreement
regarding the proposal, publication, and entry into force of S.O. 1663(E) and, in the light
of these findings, that India also acted inconsistently with Article 7 of the
SPS Agreement.44

38 Panel Report, para. 3.1.
40 Panel Report, para. 8.1.c.iii-v.
42 Panel Report, para. 8.1.c.vii-viii.
43 Panel Report, para. 8.1.c.ix-x.
44 Panel Report, para. 8.1.c.xi-xvi.

1.13. In the light of the above findings, the Panel declined to rule on the United States' alternative
or additional claims under Article 5.5 of the SPS Agreement and Article XI of the GATT 1994. 45 The
Panel also declined to rule on the United States' claim pursuant to Annex B(5)(c) to the
SPS Agreement because the United States had failed to make a prima facie case of violation
thereof.
46 The Panel found that, pursuant to Article 3. 8 of the DSU, to the extent that India has
acted inconsistently with the specified provisions of the SPS Agreement, it has nullified or impaired
benefits accruing to the United States under that Agreement.
47 The Panel recommended, pursuant
to Article 19.1 of the DSU, that the DSB request In dia to bring its measures into conformity with
its obligations under the SPS Agreement.48
1.14. At a meeting held on 18 November 2014, the DSB adopted a decision to extend the time
period for the adoption of the Panel Re port to no later than 26 January 2015. 49 The DSB adopted
this decision following a joint request by India and the United States, which was filed in view of the
"current workload of the Appellate Body" and in order to "provide greater flexibility in scheduling
any possible appeal of the panel report in this dispute".
50
1.15. On 26 January 2015, India notified the DSB, pursuant to Articles 16.4 and 17 of the DSU, of
its intention to appeal certain issues of law covered in the Panel Report and certain legal
interpretations developed by the Panel and filed a Notice of Appeal
51 and an appellant's submission
pursuant to Rule 20 and Rule 21, respectively, of the Working Procedures for Appellate Review 52
(Working Procedures). On 13 February 2015, the United States filed an appellee's submission. 53
On 18 February 2015, Argentina, Australia, Brazil , the European Union, and Japan each filed a
third participant's submission. 54 On the same day, Colombia, Ecuador, and Guatemala each
notified its intention to appear at the oral hearing as a third participant. 55 On 16 March 2015,
China and Viet Nam also each notified the Secretariat of its intention to appear at the oral hearing
as a third participant.
56
1.16. On 30 January 2015, India requested authoriz ation, pursuant to Rule 18(5) of the Working
Procedures, to correct a clerical error in paragrap h 9 of its Notice of Appeal. The Appellate Body
Division hearing this appeal provided the United States and the third participants with an
opportunity to comment in writing on India's request. On 2 February 2015, the United States
provided a letter stating that it had no objection to the correction of the clerical error identified by
India, and the Division received no objections to India's request from the third participants. On
that same date, the Division, pursuant to Rule 18(5) of the Working Procedures, authorized India
to correct the clerical error in its Notice of Appeal.
57
1.17. On 30 January 2015, the Division received a letter from Australia requesting an extension of
the deadline for the filing of the third participan ts' submissions in these proceedings. Australia
noted that the deadline for the appellee's submissi on was on a Friday, and that the deadline for
the third participants' submissions was on the following Monday. Observing that third participants
would have only one working day to incorporate the appellee's arguments into their own written
submissions, Australia requested that the deadline for the filing of the third participants'
submissions be extended by two days. The Divisi on provided the participants and other third
participants with an opportunity to comment in writing on Australia's request. On 2 February 2015,
comments were received from India, the United States, Japan, and Viet Nam. The Division

45 Panel Report, paras. 8.2 and 8.4.
46 Panel Report, para. 8.3.
47 Panel Report, para. 8.5.
48 Panel Report, para. 8.6.
49 The DSB decided that it would, no later than 26 January 2015, adopt the Panel Report unless: (i) the
DSB decided by consensus not to do so; or (ii) either party to the dispute notified the DSB of its decision to
appeal the Panel Report pursuant to Article 16.4 of the DSU. (WT/DSB/M/352, para. 6.5)
50 WT/DS430/7.
51 WT/DS430/8 (attached as Annex 1 to this Report).
52 WT/AB/WP/6, 16 August 2010.
53 Pursuant to Rule 22 of the Working Procedures.
54 Pursuant to Rule 24(1) of the Working Procedures.
55 Pursuant to Rule 24(2) of the Working Procedures.
56 China and Viet Nam each submitted its delegation list for the oral hearing to the Appellate Body
Secretariat and the participants and third participants in this dispute. For the purposes of this appeal, we have
interpreted these actions as notifications expressing the intention of China and Viet Nam to attend the oral
hearing pursuant to Rule 24(4) of the Working Procedures.
57 The document circulated as WT/DS430/8 reflects the corrected version of India's Notice of Appeal.

received no objections to Australia's request. On that same date, the Division, noting that India
had presented arguments in its appellant's submis sion concerning the Panel's understanding of
Australia's risk assessment, quarantine measures, an d position in this dispute, decided, pursuant
to Rule 16 of the Working Procedures, to extend the deadline as requested by Australia.
1.18. The oral hearing in this appeal was held on 18-20 March 2015. The participants and five of
the third participants (Argentina, Australia, Brazil, the European Union, and Japan) made opening
oral statements. The participants and third part icipants responded to questions posed by the
Members of the Appellate Body Division hearing the appeal.
1.19. By letter dated 25 March 2015, the Chair of the Appellate Body notified the Chair of the DSB
that the Appellate Body would not be able to circulate its Report within the 60-day period
stipulated in Article 17.5 of the DSU, or within the 90-day period pursuant to the same provision,
and informed the Chair of the DSB that the Report in this appeal would be circulated no later than
4 June 2015.
58
2 ARGUMENTS OF THE PARTICIPANTS AND THIRD PARTICIPANTS
2.1 Claims of error by India – Appellant
2.1.1 Articles 2.2, 5.1, and 5.2 of the SPS Agreement
2.1. India appeals the Panel's findings under Articles 2.2, 5.1, and 5.2 of the SPS Agreement.
India requests the Appellate Body to reverse the Panel's finding that India's AI measures are
inconsistent with Article 2.2 of the SPS Agreement because they are not based on scientific
principles and are maintained without sufficient scientific evidence.
59 India also requests the
Appellate Body to reverse the Panel's finding that India's AI measures are inconsistent with
Articles 5.1 and 5.2 of the SPS Agreement beca use they are not based on a risk assessment,
appropriate to the circumstances, taking into account risk assessment techniques developed by
the relevant international organizations and the factors set forth in Article 5.2.60
2.2. India maintains that the Panel erred in its interpretation and application of Article 2.2 of the
SPS Agreement by failing to distinguish between Articles 2.2 and 5.1 of the SPS Agreement as
independent legal provisions setting out distinct obligations. Although Article 5.1 constitutes a
specific application of the basic obligation contained in Article 2.2, the "close link" between the two
provisions does not mean that they are identical. A risk assessment under Article 5.1 is "a process
characterized by systematic, disciplined and objective enquiry and analysis, that is, a mode of
studying and sorting out facts and opinions"; by contrast, Article 2.2 focuses on the necessary link
that must exist between an SPS measure and the relevant scientific principles and evidence.
61
Articles 5.1 and 5.2 still require a link, but it is an indirect link because it rests on the requirement
of a risk assessment. Thus, a Member can either base its SPS measure on Article 2.2 by directly
establishing a link between the SPS measure and the scientific principles and sufficient scientific
evidence, or, alternatively, follow the process under Article 5.1 by conducting a risk assessment
and, thus, also comply with Article 2.2. The Pane l correctly identified that an SPS measure which
does not comply with Articles 5.1 and 5.2 is presumed to be inconsistent with Article 2.2;
however, the Panel incorrectly ignored that the obligations under Article 2.2 can also be
independently fulfilled without resorting to Article 5.1. By equating Article 2.2 with Articles 5.1
and 5.2 in such a manner, the Panel rendered Article 2.2 redundant and thereby acted contrary to
the customary principles of treaty interpretation, which require that each word in a treaty be given
meaning and effect. Noting that it had based its defence on Article 2.2, India submits that the
Panel should have started its analysis with Articl e 2.2 and not Article 5.1, given the United States'

58 WT/DS430/9. The Chair of the Appellate Body explained that the Appellate Body faced a substantial
workload in the first half of 2015, with several appeals proceeding in parallel, and that there was overlap in the
composition of the Appellate Body Divisions hearing these different appeals during this period. The Chair added
that, due to the scheduling issues arising from these circumstances and the number and complexity of the
issues raised in this and concurrent appeal proceedings, together with the demands that these concurrent
appeals place on the WTO Secretariat's translation services, the Appellate Body would not be able to circulate its
report in this dispute within the timeframe provided for in Article 17.5 of the DSU.
59 India's appellant's submission, para. 26 (referring to Panel Report, paras. 7.331-7.332) and para. 58.
60 India's appellant's submission, para. 63 (referring to Panel Report, paras. 7.318-7.319).
61 India's appellant's submission, para. 17 (quoting Appellate Body Report, Australia – Apples,

independent claim under Article 2.2 and India's defence thereto. India asserts that the Panel's
approach resulted in shifting the burden of proof onto India to establish the WTO-consistency of its
measures without first requiring the establishment of a prima facie case by the United States.
2.3. India also claims that the Panel failed to make an objective assessment of the matter,
pursuant to Article 11 of the DSU, by disregarding India's arguments and evidence that sought to
establish that India's AI measures are based on scientific principles and are not maintained without
sufficient scientific evidence, as required by Arti cle 2.2 of the SPS Agreement. India recalls the
three-pronged argument that it made before the Panel, namely that: (i) in the event India's AI
measures are found to be consistent with Article 3.1 and/or Article 3.2 of the SPS Agreement, this
would satisfy the requirements under Article 2.2; (ii) various scientific studies and a risk
assessment conducted by Australia established that India's AI measures are based on scientific
principles and are not maintained without sufficient evidence; and (iii) similar import restrictions
upon occurrence of HPNAI and/or LPNAI as mainta ined by many other countries established that
the risk was well founded. India argues that the Panel did not come to a reasoned conclusion on
the basis of an objective assessment of these facts and evidence but, instead, limited its analysis
under Article 2.2 to a single paragraph in the Pa nel Report. In India's view, this shows that the
Panel disregarded India's arguments and evidence and failed to analyse the United States' claim
under Article 2.2.
2.4. Furthermore, India highlights that its se cond and third arguments pursuant to Article 2.2
were made in the alternative, and that the Panel should have analysed them once it found that
India's AI measures are inconsistent with Articles 3.1 and 3.2. These arguments were critical to
India's defence, as they sought to establish the consistency of India's measures with Article 2.2.
The Panel did not analyse any of the scientific stud ies provided by India, and gave no reason for
disregarding this evidence. In doing so, the Panel not only failed to make an objective assessment,
but also denied India the right to defend itself, which constitutes a "fundamental violation" of
India's due process rights.
62 India also takes issue with the Panel's finding that Australia's risk
assessment does not support an import prohibitio n, and contests a statement made by the Panel
suggesting that Australia's position in this dispute is different than that of India. In India's view,
Australia's submissions to the Panel make clear that, in Australia's opinion, "there exists a
scientific basis for restricting import of chicken meat from a country/zone which is infected with
HPNAI/LPNAI and the same conforms to the OIE Code."
63 Furthermore, although Australia sought,
before the Panel, to distinguish its approach fr om that of India by characterizing India's AI
measures as a "blanket ban", India in fact clarified that any ban under its measures is "only
temporary and not perpetual", which was accepted by the Panel.
64 For these reasons, the Panel's
conclusion that Australia's risk assessment does not support the type of import prohibition
imposed by India was misconstrued and was not based upon the factual evidence available before
the Panel, and is therefore inconsistent with the Panel's obligation under Article 11.
2.5. India further claims that the Panel also failed to make an objective assessment of the matter,
as required under Article 11 of the DSU, in finding that India's AI measures are inconsistent with
Article 2.2 of the SPS Agreement because, in do ing so, the Panel ruled on a claim that was not
made by the United States. India relies on WTO jurisprudence that a complaining party has the
burden of proving an inconsistency with specific provisions of the covered agreements, and that a
prima facie case must be based on "evidence and legal argument" that "must be sufficient to
identify the challenged measure and its basic import, identify the relevant WTO provision and
obligation contained therein, and explain the basis for the claimed inconsistency of the measure
with that provision".
65 In this dispute, however, the Panel's finding under Article 2.2 covered the
import prohibition upon the occurrence of both HPNAI and LPNAI for India's AI measures
notwithstanding that the United States only made arguments and presented evidence with respect
to "import restriction[s] against eggs and fresh meat of poultry on account of occurrence of LPNAI"
with respect to its claim under Article 2.2.
66 At no time did the United States indicate that its
Article 2.2 claim covered import restrictions against any other products or on account of HPNAI. To

62 India's appellant's submission, para. 39.
63 India's appellant's submission, para. 43.
64 India's appellant's submission, paras. 44-45 (referring to India's first written submission to the Panel,
65 India's appellant's submission, para. 49 (quoting Appellate Body Reports, US – Gambling,
paras. 140-141; and US – Wool Shirts and Blouses, p. 14, DSR 1997:I, p. 335).
66 India's appellant's submission, paras. 50-51 (referring to United States' first written submission to the
Panel, para. 124; and United States' response to Panel question No. 3, para. 17). (emphasis omitted)

the contrary, according to India, the United States accepted that a trade restriction against
imports of poultry and poultry products upon the occurrence of HPNAI is "legitimate", thereby
confirming that the nature of the United States' claim under Article 2.2 was "limited".
67 The Panel
could therefore not have concluded that India's AI measures covering all the products and both
HPNAI and LPNAI are inconsistent with Article 2.2. By doing so, the Panel deprived India of its
right to defend itself, and thereby acted inconsistently with Article 11 of the DSU.
2.6. India also appeals the Panel's findings under Articles 5.1 and 5.2 of the SPS Agreement. In
its analysis under Article 5.1, the Panel stated that it was India's position that it was not required
to conduct a risk assessment since its AI measures conform to an international standard. At the
same time, however, the Panel noted India's assertion that, because its AI measures are based on
scientific principles and are not maintained without scientific evidence, they meet the requirements
of Article 2.2 and India is therefore under no ob ligation to conduct a separate risk assessment
under Article 5.1 in the present case. Thus, the Pa nel's statement that India had only argued that
it is not required to conduct a risk assessment as its AI measure conforms to the international
standard is a "misrepresentation" of India's position.
68 This factual assertion by the Panel falls
short of the objective assessment required under Ar ticle 11 of the DSU and, therefore, should be
reversed. Noting the Panel's failure to analyse all the grounds advanced by India for not
conducting a risk assessment, India requests the Appellate Body to reverse the Panel's findings
under Articles 5.1 and 5.2.
2.7. In the event the Appellate Body reverses the Panel's finding under Article 2.2 of the
SPS Agreement, India requests the Appellate Body to complete the legal analysis and find that
India's AI measures are consistent with Article 2.2. The obligation in Article 2.2 that an SPS
measure not be maintained without sufficient scientific evidence requires that there be a rational
or objective relationship between the SPS measure and the scientific evidence, which should be
determined on a case-by-case basis depending upon the particular circumstances of the case,
including the characteristics of the measure at i ssue and the quality and quantity of the scientific
evidence.
69 India also notes that the word "sufficient" has been interpreted by the Appellate Body
as requiring the existence of a sufficient or ad equate relationship between the SPS measure and
the scientific evidence, and that, in order for the scientific evidence to support a measure
sufficiently, it must also demonstrate the existence of the risk that the measure is supposed to
address.
70 India reiterates that the United States' claim under Article 2.2 was limited to import
restrictions against eggs and fresh meat of poul try on account of occurrence of LPNAI, and adds
that the United States' claim was limited to the third element of Article 2.2, i.e. that India's AI
measures are "not maintained without sufficient scientific evidence", and does not cover the aspect
of "scientific principles" under that provision.
2.8. India stresses that the United States has the burden to establish prima facie that India's
measures are maintained without sufficient scientific evidence within the meaning of Article 2.2. In
order to present a prima facie case with respect to India's AI measures relating to the import
restrictions on poultry meat and eggs from LPNAI reporting countries, the United States relied only
on a statement by Dr David E. Swayne.
71 The essence of Dr Swayne's statement, in India's view,
is that, since the LPNAI virus is only present in the respiratory and digestive tracts of chicken,
neither the inside of eggs nor fresh meat of poultry presents any risk. By contrast, because HPNAI
causes a systemic infection, the HPNAI virus is present in various parts of the chicken and,
therefore, a restriction on fresh poultry meat and eggs (and other poultry products) originating
from HPNAI-infected countries is justified. For India, this reasoning shows that, except for
systemic distribution, LPNAI and HPNAI viruses ar e exactly alike in respect of, for example, the
efficacy and modes of transmission.
2.9. In rebutting the United States' arguments under Article 2.2, India relied on a study by
Jacob Post et al., which "clearly establishes that LPAI viruses … can cause systemic infection and

67 India's appellant's submission, para. 51 (referring to United States' second written submission to the
Panel, paras. 36-49; and Panel Exhibits US-97; US-19, p. 466; and US-24, p. 294).
68 India's appellant's submission, para. 61.
69 India's appellant's submission, para. 65 (referring to Appellate Body Report, Japan – Agricultural
Products II, para. 84).
70 India's appellant's submission, para. 66 (referring to Appellate Body Report, Japan – Agricultural
Products II, para. 73; and Panel Report, Japan – Apples (Article 21.5 – US), para. 8.45).
71 India's appellant's submission, para. 69 (referring to Panel Exhibit US-97).

can spread to internal organs of the bird."72 According to India, this clearly puts the risk emanating
from the LPNAI virus on the same pedestal as the HPNAI virus and undermines the only argument
of the United States, namely, that the distinction between the HPNAI and LPNAI lies in the
difference of systemic distribution. Additionally, India underlines that the Swayne and Beck study
submitted by the United States and relied upon by Dr Swayne in his statement is based on
experiments wherein only two isolates of the LPAI virus were used. By contrast, the Post et al.
study is more comprehensive as it used four isolates of the LPAI virus, including the H7 subtype,
which has been reported in the past by the United States. Finally, even if both sets of evidence
were to be in equipoise, India claims that the be nefit of doubt has to be given to the responding
party.
73
2.10. India submits that other scientific evidence also demonstrates the existence of the risk that
India's measures address. India refers, in this regard, to the risk assessment conducted by
Australia, on the basis of which Australia prohibits imports of unprocessed meat and meat products
from regions reporting the occurrence of LPNAI in poultry. India emphasizes that the United States
does not contest Australia's assertion that its quarantine measures, pursuant to which the
products can be banned, conform to the OIE Code. India, therefore, concludes that "the risk
assessment conducted by Australia and its quarantine measures have been accepted by both the
parties and by the Panel."
74 India points to other evidence that was before the Panel, including
several studies that address the risk of the spread of the LPNAI virus through contaminated
materials, equipment, and trays, and that point to the risk of infection for humans with both LPNAI
and HPNAI viruses. This evidence establishes that there exists risks of introduction of the LPNAI
virus upon trade in poultry and poultry commodities, and that India's AI measures address these
risks by not allowing the import of poultry and po ultry commodities upon an outbreak of LPNAI in
the exporting country.
75 India notes that many other countries maintain similar measures.
2.11. In view of the above, India concludes that the scientific evidence that it submitted
establishes the risk of trade in these products an d fulfils the requirements of Article 2.2 of the
SPS Agreement. As a result, India also submits that it is under no obligation to conduct a separate
risk assessment pursuant to Article 5.1 and Article 5.2 of the SPS Agreement.
2.1.2 Articles 3.1 and 3.2 of the SPS Agreement
2.12. India requests the Appellate Body to reverse the Panel's findings that India's AI measures
are inconsistent with Articles 3.1 and 3.2 of the SPS Agreement because they are not based on,
and do not conform to, the international standard set out in the OIE Code. India argues that the
Panel: (i) exceeded the permissible scope of consultation with the OIE as prescribed by
Article 11.2 of the SPS Agreement and Article 13.2 of the DSU; (ii) acted inconsistently with its
duty to make an objective assessment of the matte r within the meaning of Article 11 of the DSU,
and with Article 3.2 of the DSU, by relying on the OIE's interpretation of the OIE Code, without
itself conducting such an interpretation; and (iii) otherwise acted inconsistently with Article 11 of
the DSU by disregarding arguments and evidence provided by India, and by arriving at a
conclusion that is not supported by the evidence.
2.13. India submits that the Panel's "terms of reference" to the OIE exceeded the scope of
consultation with international organizations allowed under Article 11.2 of the SPS Agreement and
Article 13.2 of the DSU. Article 11.2 of the SPS Agreement permits panels to consult with experts
in disputes involving scientific or technical issues, and the scope of a panel's consultation with an
international organization is, therefore, limited to scientific and technical issues. The obligation of
making a legal interpretation of an issue rests with a panel and cannot be delegated to scientific
experts.
76 India considers that the Panel's terms of reference and its questions to the OIE indicate
that the Panel was consulting with the OIE not only to understand the evidence submitted by the

72 India's appellant's submission, para. 75 (referring to J. Post et al., "Systemic distribution of different
low pathogenic avian influenza (LPAI) viruses in chicken" (2013) 10(23) Virology Journal (Panel Exhibit
IND-68)).
73 India's appellant's submission, para. 77 (referring to Panel Report, US – Section 301 Trade Act,
para. 7.14).
74 India's appellant's submission, para. 80 (referring to United States' opening statement at the second
75 India's appellant's submission, para. 82.
76 India's appellant's submission, para. 95 (referring to Appellate Body Report, Australia – Apples,
paras. 384 and 399).

parties, but also concerning the interpretation of the OIE Code. Most of the Panel's questions to
the OIE pertained to the interpretation of the OIE Code, and the Panel's analysis and findings
under Article 3.1 of the SPS Agreement confirm that the Panel relied solely on the OIE's
interpretation in reaching its conclusion. Accordingly, India submits that the Panel's terms of
reference to the OIE went beyond the scope of the assistance that a panel is permitted to seek
from an international organization under Article 11.2 of the SPS Agreement.
2.14. India further asserts that the Panel committed several errors that are inconsistent with its
duty to make an objective assessment of the matter under Article 11 of the DSU. A panel may not
rely on the opinion provided by an expert but must, instead, make an objective assessment of the
matter "by critically assessing the views provided by the expert and considering the other data and
opinion before reaching its conclusion".
77 The Panel failed to assess critically the answers provided
by the OIE with respect to the interpretation of the OIE Code. The Panel adopted the OIE's
interpretation of Article 10.4.1.10 and the product-specific recommendations in the OIE Code
without mentioning, or analysing, India's subsequent submission in which it provided various
grounds supporting India's understanding of the OIE Code, and in which it highlighted
inconsistencies in the OIE's answers. Similarly, in its analysis of the reference to zones and
compartments, the Panel simply relied on the interpretation provided by the OIE and discarded the
arguments and evidence provided by India without providing any reason for doing so. India
contends that the Panel, therefore, "delegated the judicial function of making an objective
assessment of the matter to the OIE" in a manner inconsistent with Article 11 of the DSU.
78
2.15. India asserts that the Panel disregarded arguments and evidence on other specific matters
as well. For instance, the Panel ignored India's reference to the practice of other countries in
support of its interpretation of the OIE Code. Befo re the Panel, India had pointed to bans imposed
by Ecuador, Japan, and Chile on account of LPNAI in the United States. Although the bans by
Japan and Chile are restricted to certain states, these arrangements reinforce "the fundamental
aspect of the OIE Code", namely, that it permits countries to prohibit imports on account of
LPNAI.
79 India also introduced evidence of agreements between the United States and its trading
partners that establish, pursuant to the OIE Co de, bans upon the occurrence of LPNAI. According
to India, the Panel disregarded the relevance of similar measures undertaken by other countries,
including the United States.
2.16. India further contends that the Panel ig nored statements by Australia that Australia's
measures conform to the OIE Code and allow the importation of chicken meat only from a country
that is both HPNAI free and LPNAI free. The United States has not contested Australia's statement
that its quarantine measures conform to the OI E Code. Instead, the United States makes the
argument that the practice of Australia and other countries does not establish subsequent practice
within the meaning of Article 31(3) of the Vienna Convention on the Law of Treaties
80
(Vienna Convention). This is a question of legal interpretation that can be done only after
analysing the arguments and evidence of the partie s, which the Panel did not do. In addition, the
Panel disregarded India's argument that the United States' position with respect to its claims under
Article 6 of the SPS Agreement implies that it accepts that a trade restriction can be imposed upon
the occurrence of HPNAI/LPNAI. India maintains that the Panel disregarded and did not analyse
these inherent contradictions in the United States' claim, and that these arguments were a critical
part of India's defence under Article 3 of the SPS Agreement.
2.17. India argues that the Panel also acted incons istently with Articles 3.2 and 11 of the DSU by
not interpreting the OIE Code in accordance with the customary rules of treaty interpretation.
Because the OIE Code is the international reference standard for the purposes of Article 3 of the
SPS Agreement, it "forms the relevant context for interpretation of Article 3.1 and Article 3.2 of
the SPS Agreement".
81 The OIE Code must, therefore, be interpreted in the light of the customary
rules of treaty interpretation, which is a legal function reserved for the Panel, not the OIE.
Alternatively, the OIE Code "would also be considered a treaty as it is a subsequent application …
and it also establishes a subsequent practice of the application of Article 3.1 and Article 3.2 of the

77 India's appellant's submission, para. 102 (referring to Appellate Body Report, India – Quantitative
Restrictions, para. 149).
78 India's appellant's submission, para. 107.
79 India's appellant's submission, para. 109.
80 Done at Vienna, 23 May 1969, UN Treaty Series, Vol. 1155, p. 331.
81 India's appellant's submission, para. 121 (referring to Appellate Body Report, EC – Chicken Cuts,
paras. 195-199).

SPS Agreement with respect to [AI]". 82 India maintains that, by failing to interpret the treaty in
accordance with the customary rules of treaty inte rpretation and, instead, relying solely on the
opinion provided by the OIE, the Panel abdicated its responsibility to interpret the OIE Code and
thereby acted inconsistently with Article 3.2 of the DSU. India also maintains that, although it
repeatedly urged the Panel to interpret the OIE Code in accordance with customary principles of
treaty interpretation, the Panel disregarded its ar gument and therefore acted inconsistently with
Article 11 of the DSU.83
2.18. India further claims that the Panel failed to make an objective assessment of the matter in
accordance with Article 11 of the DSU because its conclusions regarding the OIE Code were not
based on either the arguments and evidence advanc ed by the United States, or the interpretation
of the OIE Code provided by the OIE. First, the United States admitted that the OIE Code permits
the imposition of trade restrictions upon the o ccurrence of HPNAI/LPNAI on a regionalized basis.
Because a panel cannot make findings that lack a factual basis in the record, there was no basis to
conclude that the OIE Code does not allow the imposition of trade restrictions upon the occurrence
of HPNAI/LPNAI. Second, because the United Stat es acknowledged that a ban against HPNAI is a
legitimate trade barrier, there was no factual basis for the Panel to conclude that the OIE Code
does not provide for a ban against import of poultry products upon the occurrence of HPNAI. Third,
the Panel's conclusion is not supported by the OIE's interpretation of the OIE Code. In this regard,
the Panel concluded that the OIE Code does not provide for import prohibitions upon the
occurrence of HPNAI despite an OIE statement indicating that a country that is not free from
HPNAI cannot export fresh poultry meat pursuant to Article 10.4.19 of the OIE Code.
2.19. India requests the Appellate Body to comp lete the legal analysis and find that India's
AI measures conform to the OIE Code in a manner consistent with Article 3.2 of the
SPS Agreement, or are, alternatively, based on the OIE Code and are, therefore, consistent with
Article 3.1 of the SPS Agreement. India recalls that, for purposes of an analysis under Articles 3.1
and 3.2 of the SPS Agreement, in the present disp ute, the relevant international organization is
the OIE and the relevant international standard is the OIE Code. The OIE Code provides
recommendations that can be followed for safe trade in poultry and poultry products upon
occurrence of HPNAI/LPNAI. Since the risk with respect to trade in each product within the
OIE Code is different, each product-specific recommendation in the OIE Code is structured
differently in order to address the specific risk th erein. India considers that each product-specific
recommendation should be considered an international standard for the purpose of Articles 3.1
and 3.2 of the SPS Agreement, and that this approach is consistent with the legal principle that it
is every Member's prerogative to determine its own appropriate level of protection.
84
2.20. According to India, the United States considers that the OIE Code envisages a ban or a
trade restriction only if the exporting country ca nnot fulfil the requirement of HPNAI freedom. In
all other circumstances, the OIE Code recommends trade in poultry products even though the
c o u n t r y m a y b e i n f e c t e d w i t h L P N A I . I n d i a a g r e e s w i t h t h e U n i t e d S t a t e s ' p r o p o s i t i o n t h a t ,
pursuant to the OIE Code, a ban can be imposed upon trade in poultry products on account of
occurrence of HPNAI. India, however, disagrees with the United States that a similar trade
restriction on trade in poultry products on account of the occurrence of LPNAI cannot be imposed,
since India does not consider that there is a ba sis to distinguish between HPNAI and LPNAI in the
OIE Code.
2.21. Relying on the arguments and evidence that it submitted to the Panel, India advances its
interpretation of the OIE Code using the customary rules of treaty interpretation for guidance.
First, India refers to Article 10.4.1.10 of the OIE Code, which provides that Members should not
impose a ban on trade in poultry products in response to a notification of infection of HPAI or LPAI
viruses in birds other than poultry, including w ild birds. According to India, because the OIE
requires HPAI and LPAI notification with respect to both wild birds and poultry, a notification of a
virus in poultry can lead to a ban "as the same has not been specifically excluded from the ambit
of Article 10.4.1.10 of the OIE Code."
85 In support of its understanding, India points out that the

82 India's appellant's submission, para. 122 (referring to Appellate Body Reports, US – Clove Cigarettes,
paras. 265-267; and EC – Computer Equipment, paras. 90-99).
83 India's appellant's submission, para. 124.
84 India's appellant's submission, para. 140 (referring to Panel Reports, Australia – Apples,
Australia – Salmon, para. 199).
85 India's appellant's submission, para. 151.

OIE Code recommendations relating to Newcastle disease and foot and mouth disease allow for
import prohibitions even though such prohibitions are not explicitly mentioned. India also
highlights that the United States, itself, advocates and imposes trade bans on occurrence of
HPNAI. Thus, for India, the correct interpretation of Article 10.4.1.10 of the OIE Code is that it
provides a basis for a ban on trade in poultry products upon notification of HPAI and/or LPAI in
poultry.
2.22. India further submits that its interpretation is supported by the practice of other Members.
India provided evidence of laws maintained by other countries that impose bans on exporting
countries that notify AI, and specifically noted that Australia does not allow import of chicken meat
from territories reporting HPNAI/LPNAI and that it considers that its quarantine measure conforms
to the OIE Code. India adds that even the United States has entered into bilateral agreements
allowing its trading partners to prohibit the import of poultry products upon the occurrence of
HPNAI/LPNAI in the United States.
2.23. India submits that, more generally, Chapter 10.4 of the OIE Code provides risk mitigation
conditions that, if applied by the importing and exporting country, prevent disease introduction in
the importing country through trade in products that are considered to be agents of disease
transmission. According to India, the OIE has fo rmulated a code that reflects the flexibility
provided to member countries to import poultry and poultry products based on the level of
protection that countries have deemed appropriate. Thus, the importing country may condition the
entry of a poultry product upon the exporting country being free from both HPNAI and LPNAI. In
such cases, the OIE Code recognizes the importing country's prerogative to seek NAI-freedom
from the exporting country and details sanitary conditions that the importing country may further
require to be attested to by the veterinary authorities of the exporting country when the product is
exported. Moreover, if an importing country has entered into an arrangement and recognized
specific disease-free areas or establishments in the exporting country, the OIE also enables
countries to condition the entry of the poultry product only from the specific zone or compartment
that has been recognized. According to India, however, "[t]he condition of entry an importing
country chooses is a decision to be made by the importing country alone and the OIE Code
provides full flexibility to an importing country to structure its regime in the manner it deems
appropriate."
86
2.24. In seeking to refute the arguments that th e United States made to the Panel, India asserts
that the OIE Code recognizes a Member's sovereign right to set its own ALOP, and that OIE
guidance makes clear that, while the animal health situation in the exporting country is a relevant
consideration for an importing country, so too is the disease and control situation in the importing
country. India also challenges the United States' position that the OIE Code allows for a ban in
respect of HPNAI, but does not recommend imposing a ban on imports on account of LPNAI. This
distinction is "contradictory and logically untenable"
87 because the OIE Code does not provide for
such a distinction, and the NAI-free and HPNAI-fr ee recommendations are similarly worded. India
also refutes the United States' contention that the OIE does not recommend imposing import
restrictions upon notification of LPNAI but simply sets out veterinary certificate requirements. The
OIE Code does not state that notifications of LPNAI in poultry are for the limited purpose of
surveillance; rather, the OIE Code is designed to prevent diseases, including HPNAI and LPNAI,
from being introduced into the importing country. India highlights, in this respect, certain
recommendations in the OIE Code that provide that countries can ban imports on account of
LPNAI. For example, Article 10.4.5 – which pertains to imports of adult live poultry – sets out a
recommendation for NAI-free areas, but does not provide a recommendation for HPNAI-free areas.
This suggests that, if a country declares LPNAI, it would not be free from NAI, and an importing
country need not import from such country. For India, "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."
88 In India's view, the OIE Code does allow
countries to choose such recommendations when they meet that country's ALOP.
2.25. For these reasons, India submits that S.O. 1663(E) is in conformity with the OIE Code. In
India's view, its law implements the "condition of entry" requirement reflected in each
product-specific recommendation and in Article 10.4.1.10 of the OIE Code, and implements the

86 India's appellant's submission, para. 172.
87 India's appellant's submission, para. 184.
88 India's appellant's submission, para. 190.

health certificate requirements under each product-specific recommendation. Accordingly, India
requests the Appellate Body to find that its AI measures conform to Article 3.2 of the
SPS Agreement, and that these measures are, th erefore, presumed to be consistent with the
SPS Agreement and the GATT 1994. Alternatively, In dia requests the Appellate Body to find that
its AI measures are consistent with Article 3.1 of the SPS Agreement. Lastly, if India's AI measures
are found to be consistent with Article 3.2 and/or Article 3.1 of the SPS Agreement, India requests
the Appellate Body also to reverse the Panel's findings with respect to Article 2.3, second
sentence, of the SPS Agreement, and with respect to Article 5.6 and, consequently, Article 2.2 of
the SPS Agreement.
2.1.3 Article 6 of the SPS Agreement
2.26. India requests the Appellate Body to reverse the Panel's findings that India's AI measures
are inconsistent with Articles 6.1 and 6.2 of th e SPS Agreement. India argues that the Panel:
(i) erred in concluding that India's AI measures are inconsistent with Article 6.2, first sentence, of
the SPS Agreement; (ii) failed to make an objective assessment of the matter, as required by
Article 11 of the DSU; and (iii) erred in its interp retation of the relationship between Article 6.1
and Article 6.3 of the SPS Agreement.
2.27. India first contends that the Panel erred in understanding the obligation under Article 6.2,
first sentence, to be an obligation to implement a domestic measure that recognizes disease-free
areas rather than an obligation to recognize that concept. India recalls that the legislative act in
this dispute is the Livestock Act, which empowers the Central Government of India to regulate,
restrict, or prohibit the import into India of any livestock that may be liable to be affected by
infectious or contagious disorders. The role of doing so is in turn delegated to India's Department
of Animal Husbandry, Dairying and Fisheries (DAH D), which issues notifications that constitute
delegated legislation. Furthermore, India notes that S.O. 1663(E) was issued pursuant to
Sections 3 and 3A of the Livestock Act and that the DAHD, through S.O. 1663(E), implements the
task of regulating the import of livestock products into India.
2.28. According to India, the Panel found that the requirement under Article 6.2, first sentence, is
that a domestic SPS measure should not deny or contradict the recognition of the concepts of
pest- or disease-free areas and areas of low pest or disease prevalence. In this regard, the Panel,
itself, admitted that, pursuant to Sections 3 and 3A of the Livestock Act, India could recognize the
concepts of pest- or disease-free areas and areas of low pest or disease prevalence. Despite this
finding, the Panel concluded that India's AI measures, as a whole – i.e. Sections 3 and 3A of
Livestock Act and S.O. 1663(E) – are inconsistent with Article 6.2, first sentence, on the basis that
S.O. 1663(E) does not recognize these concepts.
89 Given that the parent legislation – Sections 3
and 3A of the Livestock Act – recognizes the concepts set out in the first sentence of Article 6.2,
the Panel erred in basing its conclusion on S.O. 1663(E), which is the delegated legislation. This is
because, pursuant to the Panel's own analysis, India is only required to "recognize" the concepts of
pest- or disease-free areas and areas of low pest or disease prevalence, and is not required to
"implement" such concepts in its domestic measures. According to India, the implementation of
these concepts in domestic measures would be subject to the fulfilment of the requirements under
Article 6.3 of the SPS Agreement and Chapter 4.3 of the OIE Code.
2.29. India points out that, given the United States' failure to submit a properly documented
proposal pursuant to Article 6.3, India is not, on its own, required to implement the relevant
concepts in its domestic measures. India explains that, since it is not required to implement the
concepts domestically, it enacted S.O. 1663(E) on a country-wide basis. In addressing the
United States' claim under Article 6.2, first sentence, the Panel was only required to examine
whether Sections 3 and 3A of the Livestock Act recognizes the concepts of pest- or disease-free
areas and areas of low pest or disease prevalen ce. Having found in the affirmative, the Panel
should not have examined S.O. 1663(E), given th at such examination also entailed analysing
Article 6.3, a provision that was not within the ambit of the panel request. Thus, India submits
that the Panel made a legal error under the first sentence of Article 6.2 by analysing and basing its
conclusion on S.O. 1663(E).
2.30. India also argues that, given that the Unit ed States' claim referred to the "non-recognition"
of the concepts under Article 6.2 of the SPS Agreement, the Panel acted inconsistently with

89 India's appellant's submission, paras. 215-216.

Article 11 of the DSU by basing its conclusion on the "non-implementation" of such concepts. In
addition, India argues that the Panel acted inconsistently with its obligation under Article 11 of the
DSU by disregarding critical evidence submitted by India. The Panel found no evidence that the
discretion to recognize pest- or disease-free area s and areas of low pest or disease prevalence
under Sections 3 and 3A of the Livestock Act has been exercised to date. The Panel's observation,
however, "is not based on the factual evidence available".
90 Panel Exhibit IND-121 91 contains
evidence showing that India had informed the Unit ed States in 2010 of its willingness to consider
the issue of compartmentalization for the purpose of trade with the United States. Despite this
communication, the United States never reverted to India with a proper proposal under Article 6.3
of the SPS Agreement. According to India, the Panel's analysis did not reflect Panel Exhibit
IND-121, and this cannot be considered an unbiased and even-handed treatment of the evidence.
2.31. For the foregoing reasons, India submits that the Panel erred in its application of the
requirements of recognition under Article 6.2, first sentence, of the SPS Agreement, and failed to
make an objective assessment of the matter, as required by Article 11 of the DSU. Accordingly,
India requests the Appellate Body to reverse the Pa nel's findings with respect to Article 6.2 of the
SPS Agreement. Alternatively, India requests the Appellate Body to reverse the Panel's findings
under Article 6.2 with respect to the Livestock Act. Since the Panel's conclusion on the
United States' claim under Article 6.1 of the SPS Agreement was based upon its findings under
Article 6.2, India also requests the Appellate Body to reverse the Panel's findings under Article 6.1.
2.32. Finally, India argues that the Panel committed a legal error in interpreting the relationship
between the first sentence of Article 6.1 and the first sentence of Article 6.3 of the
SPS Agreement. In India's view, an importing Member's obligation under the first sentence of
Article 6.1 of adapting its SPS measures to the sanitary or phytosanitary characteristics of the area
of the exporting Member arises only after an exporting Member makes a formal proposal under
Article 6.3. In the absence of such a proposal from the exporting Member, an importing Member is
not required on its own, and without any propos al from the exporting country, to recognize the
exporting Member's pest- and disease-free areas. According to India, any contrary interpretation
would result in Article 6.3 of the SPS Agreement becoming redundant. India considers that
Articles 4.3.1 and 4.3.2 of the OIE Code also support its position.
2.33. India asserts that the Panel's analysis regarding the relationship between Article 6.1 and
Article 6.3 of the SPS Agreement is incorrect and inconclusive. Despite the fact that the Panel
assessed the relationship between the second sentence of Article 6.1 and Article 6.3, the Panel
concluded that no such relationship exists. Contrary to the Panel's observation, a harmonious
reading of Articles 6.1 and 6.3 requires that an exporting Member first make a formal proposal
under Article 6.3. Once this proposal is made, the importing Member must take into account the
factors outlined in the second sentence of Articl e 6.1. Consequently, India submits that the Panel
erred in its analysis of Article 6.1 of the SPS Agreement, and requests the Appellate Body to
reverse the findings made by the Panel under that provision.
2.34. India requests the Appellate Body to comple te the legal analysis and find that India's AI
measures are consistent with Article 6.1 and Article 6.2 of the SPS Agreement. With respect to
Article 6.2, first sentence, the Panel itself observed that, pursuant to Sections 3 and 3A of the
Livestock Act, India could recognize the concepts of pest- or disease-free areas and areas of low
pest or disease prevalence. Therefore, India's AI measure – i.e. Sections 3 and 3A of the
Livestock Act – is consistent with both sentences in Article 6.2. Moreover, given that India is only
required to adapt its AI measures to the areas of the exporting Member after receiving a proposal
pursuant to Article 6.3, and that the United States has not made such proposal, India submits that
it has not acted inconsistently with Article 6.1 of the SPS Agreement.
2.1.4 Article 5.6 and Article 2.2 of the SPS Agreement
2.35. India requests the Appellate Body to reverse the Panel's findings that India's AI measures
are more trade restrictive than necessary to achieve India's ALOP and are therefore inconsistent
with Article 5.6 of the SPS Agreement. India also requests the Appellate Body to reverse the

90 India's appellant's submission, para. 230.
91 Letter dated 28 January 2010 from Assistant Commissioner, DAHD, to US Minister-Counsellor for
Agricultural Affairs regarding: "India's comments on US proposed certificates for export of poultry, pork, pet
food and feather to India".

Panel's finding that, as a consequence of its finding under Article 5.6, India's AI measures are
inconsistent with Article 2.2 of the SPS Agreement. India argues that the Panel committed legal
error by concluding that India's AI measures are inconsistent with Article 5.6 of the
SPS Agreement and consequently with Article 2.2 of the SPS Agreement. Additionally, India claims
that the Panel failed to make an objective assessment of the matter, as required by Article 11 of
the DSU.
2.36. India first argues that the Panel acted inco nsistently with Article 11 of the DSU because it
ruled on a claim that was not argued by the United States. It is well established that the
complaining party has the burden of proving an inconsistency with specific provisions of the
covered agreements, and that a prima facie case must be based on evidence and legal argument
put forward by the complaining party in rela tion to each of the elements of a claim.
92 Before the
Panel, the United States limited its arguments and evidence under Article 5.6 of the
SPS Agreement to countries notifying LPNAI and di d not include the application of S.O. 1663(E) in
respect of countries notifying HPNAI. Thus, the Panel could not have concluded that India's AI
measures, which include import restrictions on account of occurrence of HPNAI and LPNAI, are
inconsistent with Article 5.6 of the SPS Agreem ent. Moreover, since the United States never
explicitly made arguments and presented evidence with respect to the application of S.O. 1663(E)
on account of countries notifying HPNAI, India argu es that it never had an opportunity to defend
itself on this issue.93
2.37. India disagrees with the Panel's statement that the United States expressly clarified the
scope of its claim under Article 5.6. 94 The United States' statement mentioned by the Panel refers
only to products and not to diseases. For India, the latter omission shows that the United States
did intend to limit its Article 5.6 claim in re spect of LPNAI. Moreover, the statement by the
United States was made in the context of Article 3 of the SPS Agreement, not Article 5.6, and does
not present any argument or evidence with respect to HPNAI pursuant to its claim under
Article 5.6 of the SPS Agreement. For the foregoin g reasons, India submits that the Panel did not
make an objective assessment of the matter as required by Article 11 of the DSU.
2.38. India also maintains that the United States failed to present a prima facie case under
Article 5.6 of the SPS Agreement. In order to di scharge its burden of proof under Article 5.6, a
complainant must establish that the proposed alternative measure fulfils the ALOP of the
respondent country. In doing so, the complaining party must first identify the measure that
reflects the ALOP as sought by the responding country. Only once the correct measure is identified
can a complaining party then propose an alternat ive measure offering a similar ALOP, and thereby
discharge its burden of proof. If the complaining party identifies an incorrect measure, the ALOP
reflected in the incorrect measure would not be the ALOP as sought by the respondent country.
Thus, in such circumstances, the alternative measure would not be able to fulfil the ALOP of the
respondent country.
2.39. India submits that it is accepted jurispru dence that the ALOP has to be discerned from the
measure at issue.
95 Thus, in the present case, any alternative measure has to fulfil the ALOP as
reflected in the measure at issue, i.e. S.O. 1663(E). However, according to India, the
United States identified India's ALOP based on India's domestic control measures, instead of on
the basis of the measure at issue. Therefore, the Un ited States failed to fulfil its burden of proof
under Article 5.6. India further considers that, if the United States' position were to be accepted,
the United States would be able to determine India's ALOP, which would be contrary to the
principle that a country has a right to determine its own ALOP.
96 Consequently, India submits that
the United States failed to make a prima facie case that its alternative measure is able to fulfil
India's ALOP.

92 India's appellant's submission, para. 256 (referring to Appellate Body Report, US – Gambling,
paras. 138 and 140).
93 India's appellant's submission, paras. 257-258 (referring to Appellate Body Report, Chile – Price Band
System, para. 164).
94 India's appellant's submission, para. 261 (referring to Panel Report, para. 7.516).
95 India's appellant's submission, para. 266 (referring to Appellate Body Report, Australia – Salmon,
paras. 190-191, 197, and 207).
96 India's appellant's submission, para. 267 (referring to Appellate Body Reports, Australia – Salmon,

2.40. India further argues that the Panel also erred under Article 11 of the DSU by failing to
analyse India's defence under Article 5.6 of the SPS Agreement. In particular, the Panel
disregarded India's argument that the United States' claim under Article 5.6 is inadequate as the
alternative measure that it proposed is based on the ALOP reflected in India's domestic control
measures instead of being based on the ALOP reflected in the measure at issue. This was a critical
defence for India in respect of the claim under Article 5.6. In the light of Appellate Body
jurisprudence indicating that a panel should not disregard evidence that is relevant to the case of
one of the parties, the Panel's dismissal of In dia's defence without providing any reasons shows
that the Panel acted inconsistently with Article 11 of the DSU.
2.41. Finally, India argues that the Panel erre d under Article 5.6 of the SPS Agreement by not
identifying the proposed alternative measure with precision. According to India, the Panel's
comparison of the level of protection reflected in the alternative measure, as proposed by the
United States, with India's ALOP is "highly inadequate" and constitutes legal error.
97 India notes
that the United States' challenge covers all the products within S.O. 1663(E) and that the
OIE Code – the alternative measure – covers several product-specific recommendations for both
NAI as well as HPNAI. Since the product-specific recommendations in the OIE Code address
different risks, they are designed to prevent the introduction of the disease in question into the
importing country. Since the United States' claim was limited to LPNAI, "the Panel should have
identified the product specific recommendations in the OIE Code for the corresponding product in
question and the applicability of the same in the event of the occurrence of HPNAI or NAI."
98
Although the United States and the Panel identified two product-specific recommendations in the
OIE Code that could be applied upon occurrence of HPNAI, they did not identify the
product-specific recommendations in the OIE Code which could be applied upon occurrence of
LPNAI. For example, with respect to eggs for human consumption, neither the United States nor
the Panel specified the appropriate OIE recommendat ion that should be applied by India. India
further emphasizes that, for other products covered by S.O. 1663(E), neither the United States nor
the Panel identified the corresponding product-specific recommendations in the OIE Code and their
applicability in the event of the occurrence of HPNAI or NAI.
2.42. For the foregoing reasons, India considers that the Panel incorrectly concluded that India's
AI measures are inconsistent with Article 5.6 of the SPS Agreement and, consequently, with
Article 2.2 of the SPS Agreement. Since the United States thus failed to establish one of the three
factors in Article 5.6, the United States' claim under Article 5.6 of the SPS Agreement cannot be
sustained and the Panel's findings must be reversed. India, therefore, requests the Appellate Body
to complete the legal analysis and conclude that India's AI measures are consistent with Article 5.6
of the SPS Agreement and, consequently, with Article 2.2 of the SPS Agreement.
2.1.5 Article 2.3 of the SPS Agreement
2.43. India alleges that the Panel acted inconsistent ly with Article 11 of the DSU and erred in
certain aspects of its assessment of the United States' claim under Article 2.3, first sentence, of
the SPS Agreement. India challenges, in particular, the Panel's consultations with the individual
experts on the AI surveillance regime with particular respect to India's domestic measures and
disease situation, and the Panel's findings based on the testimony of such experts. India requests
the Appellate Body to reverse the Panel's findings that there is insufficient evidence on the record
to support a finding that LPNAI is exotic to India, as well as its ultimate finding that India's AI
measures are inconsistent with Article 2.3, first sentence, of the SPS Agreement because they
arbitrarily and unjustifiably discriminate between Members where identical or similar conditions
prevail, and are applied in a manner that constitutes a disguised restriction on international trade.
2.44. India first alleges that, because the "terms of reference" of the Panel's consultations with
the individual experts went beyond the scope of the OIE Code, the Panel acted inconsistently with
Article 11 of the DSU. Recalling that the OIE Code is the relevant international standard for
purposes of this dispute, India points out that Article 1.6.1 of Chapter 1.6 of the OIE Code
identifies six diseases in respect of which the OIE may officially recognize that a country, zone, or
compartment is free from such disease, once a country has submitted prescribed documentary
evidence for evaluation by the OIE. By contrast, this procedure is not applicable in respect of other
OIE-listed diseases, including AI. Thus, India submits that a country claiming to be free from NAI

97 India's appellant's submission, para. 273.
98 India's appellant's submission, para. 276.

is not subject to any technical or scientific evaluation by the OIE, or any scrutiny by experts who
are not officially part of the OIE. By requiring th e individual experts in these proceedings to assess
and review the evidence submitted by India to support its claim that it is free from LPNAI, the
Panel put AI on the same pedestal as the six listed diseases in respect of which the OIE may
officially recognize disease-free status. This is inconsistent with Chapter 1.6 of the OIE Code,
which only requires the assessment of evidence as submitted by member countries with respect to
six OIE-listed diseases, excluding AI. India points out that it had expressed concerns to the Panel
regarding the propriety of consulting the individual experts on these issues, but that the Panel did
not acknowledge and, in fact, "discarded" India' s submissions in this respect, thereby acting
inconsistently with Article 11 of the DSU.
99
2.45. Second, India asserts that the Panel's ques tions to the experts erroneously shifted to India
the burden of proving that LPAI is exotic to India, rather than properly requiring the United States
to bear the burden of proving that LPAI is pr esent in India. The Panel should have asked the
experts to opine first on whether the evidence submitted by the United States supported its
allegations, and only then could it have asked the experts to assess India's evidence. The Panel,
however, ruled that the burden of establishing that LPNAI is exotic to India was on India. As a
result of the Panel's approach, the United Stat es' arguments and evidence on this issue were
"not … evaluated at all", notwithstanding that it was clear that the United States had failed to
present a prima facie case.
100 Moreover, since the OIE Code requires countries to report any
occurrence of LPNAI, the fact that India had ne ver reported an occurrence of LPNAI to the OIE
should have been sufficient for the Panel to conclude that LPNAI is exotic to India. India claims
that, by wrongly allocating the burden of proof to India in this manner, the Panel acted
inconsistently with Article 11 of the DSU.
2.46. Finally, India submits that the questions posed by the Panel to the individual experts
improperly delegated to those experts the factua l determination of whether LPNAI is exotic to
India. This is contrary to Article 11 of the DSU, which requires that an objective assessment of the
facts must be made by a panel and cannot be delegated to experts. 101 For the foregoing reasons,
India seeks reversal of the Panel's findings base d on the testimony provided by the individual
experts.
2.2 Arguments of the United States – Appellee
2.2.1 Articles 2.2, 5.1, and 5.2 of the SPS Agreement
2.47. The United States requests the Appellate Body to uphold the Panel's findings under
Articles 2.2, 5.1, and 5.2 of the SPS Agreement. In its view, India has failed to establish that the
Panel erred in reaching these findings. As a preliminary matter, the United States notes that claims
of error under Article 11 of the DSU and claims relating to errors in interpreting or applying
provisions are distinct and should not be pleaded in the alternative as India does on appeal.
102
India's claims that the Panel failed to make an objective assessment by disregarding India's
arguments and evidence do not, in fact, relate to the objectivity of the Panel's assessment but,
rather, to an alleged error on the part of the Panel in interpreting and applying Article 2.2. That is,
India believes that, properly interpreted and applied, Article 2.2 permits India to demonstrate an
independent basis for its measures. It follows th at India has erred in claiming a breach of
Article 11 and its appeal can be rejected on this basis. The United States adds that, although the
Panel's findings are consistent with previous findings by panels and the Appellate Body, India
claims, without any authority, that the Panel's findings are legally incorrect because they do not
allow India independently to establish that its measures are consistent with Article 2.2. India's
argument that, if a measure is consistent with Article 2.2, it cannot breach Articles 5.1 and 5.2,
"cannot be reconciled with the obligation to base an SPS measure on a risk assessment – that is,

99 India's appellant's submission, para. 296.
100 India's appellant's submission, para. 302.
101 India's appellant's submission, para. 306 (referring to Appellate Body Reports, India – Quantitative
102 United States' appellee's submission, para. 34 (referring to Appellate Body Reports, China – Rare
Earths, para. 5.173).

to ensure that the measure is rationally related to the scientific evidence underlying the
assessment of risks".103
2.48. The United States argues that the Panel's findings are consistent with the plain meaning of
Articles 2.2, 5.1, and 5.2 of the SPS Agreement, which confirms that Article 2.2 is a general
obligation that encompasses the obligations in Articles 5.1 and 5.2, and that there is no basis to
India's claim that compliance with Article 2.2 obviates the need to comply with the risk assessment
obligations in Articles 5.1 and 5.2. Thus, while the texts of Articles 2.2, 5.1, and 5.2 are
interrelated, Article 2.2 is broader and more general in character, such that Articles 5.1 and 5.2
constitute specific applications of Article 2.2, bu t do not encompass all situations where Article 2.2
might apply. The United States also highlights th at the Panel's findings challenged by India, in
paragraphs 7.282 and 7.331 of the Panel Report, are consistent with and "closely track" the
analysis in previous panel and Appellate Body reports.
104 The United States maintains that none of
India's arguments that Article 2.2 should be interpreted to preclude consideration of whether
Articles 5.1 and 5.2 were breached is support ed by the text of these provisions or by
WTO jurisprudence.
105
2.49. The United States takes issue with India's ar gument that its interpretation of Article 2.2 is
warranted because the United States brought an independent claim under Article 2.2 of the
SPS Agreement.106 This argument is a non sequitur because the United States brought both
consequential and independent claims under Article 2.2. There is nothing in the text of Articles 2.2,
5.1, and 5.2 that suggests that, when a party asserts that Article 2.2 has been violated
consequentially as a result of violating Articl es 5.1 and 5.2 and also for another independent
reason, then "the former [consequential] claims are converted into subsidiary claims dependent for
their success on the latter [independent] claim."
107 Article 2.2 does not preclude multiple bases for
breaching that obligation, and the fact that the Un ited States also advanced an independent claim
cannot change the fact that India's measures are inconsistent with Articles 5.1 and 5.2 and that,
as a consequence, India breached Article 2.2.
2.50. The United States also asserts that India's contention that the Panel improperly "conflated"
Articles 2.2 and 5.1 "lacks any basis in the record or logic". 108 The Panel did not render these
provisions redundant but, instead, correctly recogn ized that Article 2.2 could be breached even in
the absence of a breach of Articles 5.1 and 5.2. Moreover, the WTO jurisprudence cited by India
actually supports the United States' position concer ning the relationship between Articles 5.1, 5.2,
and 2.2, and the Panel's finding that a failure to base measures on a risk assessment under
Articles 5.1 and 5.2 creates a presumption that Article 2.2 has been breached. 109 There is also no
basis in the DSU for India's argument that, because it based its defence under Article 2.2, the
relevant text before the Panel was Article 2.2, and not Article 5.1. Pointing out that Article 7 of the
DSU required the Panel to examine the matter set out in the panel request in the light of the
provisions cited by the parties to the dispute, th e United States asserts that the Panel correctly
considered all those provisions.
2.51. Turning to India's claims of error under Article 11 of DSU, the United States recalls the
Panel's findings that India breached Articles 5.1 and 5.2 by failing to base its measures on a risk
assessment, and that this failure means that India's measures can also be presumed to breach
Article 2.2.
110 Because the Panel findings at issue, incl uding with respect to Article 2.2, concern
whether India's measures are based on a risk assessment, the United States submits that a

103 United States' appellee's submission, para. 35.
104 United States' appellee's submission, para. 39 (referring to Appellate Body Reports,
105 United States' appellee's submission, para. 40 (referring to Appellate Body Report, Australia –
Apples, para. 340).
106 United States' appellee's submission, para. 41 (referring to India's appellant's submission,
paras. 20-21).
107 United States' appellee's submission, para. 42.
108 United States' appellee's submission, para. 43.
109 United States' appellee's submission, para. 44 (referring to India's appellant's submission,
paras. 22-24; Appellate Body Reports, Japan – Agricultural Products II, para. 82; EC – Hormones,
paras. 179-180 and 250; and Panel Report, US – Poultry (China)).
110 United States' appellee's submission, paras. 47-48 (referring to Panel Report, paras. 7.302,
7.318-7.319, and 7.331-7.332).

threshold question in examining India's claims of error under Article 11 of the DSU is whether
India has cited any evidence it brought to the Pane l's attention indicating that its measures were,
in fact, based on a risk assessment.
2.52. With respect to India's argument concerni ng the scientific studies and practice of other
countries, the United States submits that India fails to explain how these are relevant to the
question of whether India's measures are based on a risk assessment. Contrary to India's claim of
error, the Panel acknowledged that India had invoked the scientific studies it cited as an argument.
India, however, failed to establish the relevance of these studies to the issue of whether India's
measures are based on a risk assessment, and did not explain how these studies constitute a risk
assessment. The United States disputes that thes e studies even suggest the type of risk India
alleges. As explained by the Appellate Body, the obligation to conduct a risk assessment is not
satisfied merely by a general discussion of the dise ase sought to be avoided by the imposition of a
measure, but must be sufficiently specific to the case at hand.111 Here, India has not explained the
relationship between its measures and these studies. Similarly, India's reliance on the Australian
risk assessment is irrelevant to the inquiry under Article 5.1 as India does not claim that its
measures are based on this risk assessment, or argue that its AI measures are the same as the
Australian measures supported by the Australian risk assessment. In addition, the practice of other
countries is not relevant to an assessment of the consistency of India's AI measures with its
obligations under the SPS Agreement. Finally, the United States argues that India has not
explained why any of the evidence cited by it is relevant to the obligation under Article 2.2, as it
does not tie the purported pieces of evidence it references to the measures it maintains. Instead,
according to the United States, the evidence India cites, such as the Australian risk assessment, in
fact, suggests that India's measures are maintained without sufficient scientific evidence.
2.53. Next, the United States addresses India's argument that the Panel acted inconsistently with
Article 11 of the DSU, by failing to recognize that the United States' claim under Article 2.2 of the
SPS Agreement was limited to poultry meat and eggs. India's claim is without merit for four
reasons. First, the Panel found a breach of Article 2.2 as a consequential breach of Article 5.1 and,
therefore, it did not go on to address the indepe ndent claim put forth by the United States under
Article 2.2. Second, the purported limitation on product scope asserted by India does not exist
because, with respect to the risk assessment claims at issue, the United States argued that India
failed to base its AI measures on a risk assessment with respect to all products subject to the
measures. Given that the Panel's findings under Articles 5.1 and 5.2 are with respect to all
products subject to the measures, the United States submits that the consequential breach of
Article 2.2 "extends likewise".
112 Third, India cites no authority for the notion that, when a party
brings one claim that is more limited in scope, then all other claims must likewise be so limited.
Finally, India does not appeal the Panel's prelim inary ruling, wherein the Panel rejected India's
argument that the listing of products in the panel request rendered that request vague. WTO
dispute settlement is about assessing the consistency of a specific measure against the covered
agreements, not particular products. Since the United States established that India's AI measures
are inconsistent with Articles 5.1, 5.2, and 2.2, all the products that are covered by the measures
are within the scope of this dispute.
113
2.54. The United States next responds to India's claim that the Panel, in its analysis under
Articles 5.1 and 5.2 of the SPS Agreement, acted inconsistently with Article 11 of the DSU by
misrepresenting India's position that India is not required to conduct a risk assessment because its
measures conform to international standards. Re ferring to the Panel statement in question, the
United States notes that India does not claim that the Panel's quotation of India's submission is
incorrect but, instead, appears to be taking issue with the fact that the Panel did not reproduce
India's arguments repeatedly throughout its analysis.
114 There is no requirement under Article 11
of the DSU that a panel restate a party's arguments in full each time they are referenced, and, as
a result, India has presented no basis for a claim under Article 11.

111 United States' appellee's submission, para. 53 (referring to Appellate Body Reports, EC – Hormones,
112 United States' appellee's submission, para. 60 (referring to India's appellant's submission, para. 57).
113 United States' appellee's submission, para. 62 (referring to Preliminary Ruling, para. 3.92).
114 United States' appellee's submission, para. 63 (referring to India's appellant's submission,

2.55. Finally, in response to India's request to co mplete the legal analysis and to find that India's
AI measures are consistent with Article 2.2, the United States asserts that such a finding is not
related to the Article 2.2 breaches found by the Panel in this dispute as a consequence of the
breaches of Articles 5.1, 5.2, and 5.6 of the SP S Agreement. Rather, India's request goes to the
United States' independent claim under Article 2.2, which was not addressed in the Panel Report.
If India does not prevail in its claims of error with respect to the Panel's findings under
Articles 5.1, 5.2, and 5.6, the Article 2.2 findin gs will stand. On the other hand, if the Panel's
findings under Articles 5.1, 5.2, and 5.6 are reversed, the consequential findings under Article 2.2
would also be reversed. In either circumstance , an additional finding on the United States'
independent claim under Article 2.2 would not be necessary to resolve the dispute. The
United States also submits that, were the Panel's Article 2.2 findings based on the inconsistencies
with Articles 5.1 and 5.2 to be reversed, then completion of the legal analysis would assist in
resolving the dispute, had the United States requested it. The United States notes, however, that
it is not requesting the Appellate Body to complete the legal analysis. While reiterating its view
that India's AI measures are maintained without sufficient scientific evidence in breach of
Article 2.2, the United States observes that it is not certain that the Panel examined the scientific
evidence in question or made the factual findings necessary to reach a legal conclusion on the
United States' independent claim under Article 2.2 of the SPS Agreement.
2.2.2 Articles 3.1 and 3.2 of the SPS Agreement
2.56. The United States requests the Appellate Body to uphold the Panel's findings that India's AI
measures are inconsistent with Articles 3.1 and 3.2 of the SPS Agreement. For the United States,
the Panel's consultation with the OIE was permissible and consistent with the SPS Agreement and
the DSU. The Panel did not delegate its responsibi lities to the OIE but, rather, carefully examined
and assessed the text of the OIE Code and reached correct conclusions regarding its content.
India's challenges under Article 11 of the DSU are without merit and do not call into question the
Panel's objectivity. The United States adds that there is no need to complete the legal analysis
because the Panel's findings are correct and, in any event, India has not established that there are
sufficient undisputed facts on the record in order for the legal analysis to be completed in the
manner it seeks.
2.57. Regarding India's claim under Article 11. 2 of the SPS Agreement and Article 13.2 of the
DSU, the United States argues that both provisions afford considerable discretion to a panel to
seek relevant information. Article 13.2 of the DSU provides that a panel may seek information
from any relevant source, and Article 11.2 of th e SPS Agreement provides that, where a dispute
involves scientific and technical issues, panels may seek advice, including from a relevant
international organization. The present dispute certainly involves scientific and technical issues
regarding appropriate AI control measures, and the OIE is clearly a relevant international
organization on these matters. In addition, the authority of a panel under Article 13.2 of the DSU
is not limited in an SPS dispute by Article 11. 2 of the SPS Agreement, and a panel in an SPS
dispute, therefore, does not commit error by po sing questions relating to issues other than
scientific and technical issues. Once a dispute involves scientific or technical issues and the terms
of Article 11.2 are met, that provision encourages seeking advice, and does not limit the
information a panel may seek generally, or from an international organization.
2.58. The United States also rejects India's cont entions that the OIE Code is a treaty, that its
interpretation must be governed by the customary rules of interpretation of public international
law reflected in the Vienna Convention, and that it would be improper to ask an international
organization any questions regarding the legal interpretation of a treaty. India has not explained
why it considers that the OIE Code is a treaty. In the United States' view, the OIE Code is an
instrument promulgated by an international organi zation and is not a treaty. India also has not
established why the covered agreements would prevent a panel from seeking advice on the proper
interpretation of a treaty, or identified how the initial act of seeking such advice would be
inconsistent with any provision of the covered agreements. According to the United States, the
Panel did exactly what Article 11.2 of the SPS Agreement suggests in seeking legal and technical
advice from the OIE, including with respect to the proper interpretation of the standard
promulgated by the OIE.

2.59. The United States points out that the Appellate Body has found that determining the
existence and content of international standards are questions of fact, not questions of law. 115 The
United States agrees that the interpretation of a standard such as the OIE Code is inherently a
factual query. This is consistent with how the drafters of the SPS Agreement understood
international standards, namely, as scientifically based recommendations. International standards
are not the result of a political negotiation but a synthesis of scientific awareness, which means
that understanding these standards requires a factual rather than legal understanding. In addition,
the evidence on the Panel record confirms an understanding of the OIE Code as consisting of
scientific recommendations. The OIE Code is a technical document as opposed to an agreement in
which States negotiate their respective rights and obligations. In this dispute, India initially made
no reference to the Vienna Convention but, instea d, cited multiple reports from the OIE Terrestrial
Animal Health Standards Commission to argue in favour of its interpretation of the OIE Code. The
United States adds that only after it became apparent that the Panel might request technical
assistance from the OIE did India argue that the Vienna Convention governed the OIE Code, and
on this basis argued that there was no need to consult with the OIE.
116 The United States, thus,
characterizes as "erroneous, ab initio ", the foundation upon which India's arguments are built,
namely, that the examination of a legal standard is exclusively a legal exercise to be performed by
a panel.117
2.60. The United States also considers that India has not demonstrated that the Panel acted
inconsistently with Article 3.2 of the DSU by not interpreting the OIE Code in accordance with the
customary rules of interpretation of public international law. According to the United States, India
has not explained why interpreting the OIE Code in accordance with the customary rules would
result in any different outcome than what the Panel found. Under Article 3.2 of the DSU, the
customary rules of interpretation apply to interpreting the covered agreements, which do not
include the OIE Code. Moreover, the text of Article 3.2 does not itself impose an obligation that
can be breached for failure to apply the customary rules of interpretation of public international
law. Rather, an adjudicative body may err in its interpretation of a provision of the covered
agreements if it fails to read that provision in accordance with the customary rules. Thus, the error
would be one of interpretation of a substantive provision, not a procedural breach of the
interpretive approach reflected in Article 3.2. In addition, contrary to India's assertion, the
OIE Code is not context for an interpretation of the SPS Agreement in accordance with the
Vienna Convention. The United States points ou t that, although context may include agreements
made by parties to a treaty in connection with the conclusion of that treaty, the relevant version of
the OIE Code was concluded in 2013, and thus it was not part of the conclusion of the Uruguay
Round Agreements.
2.61. With respect to India's claims under Article 11 of the DSU, the United States maintains that
these claims ignore the "clarity of the evidence" that was before the Panel.
118 As the United States
explained before the Panel, where a measure has a form and operation wholly disparate from, and
contradictory to, an international standard, the measure cannot be said to be based upon that
standard. This was the crux of the United States' challenge to India's measures under Article 3.1 of
the SPS Agreement, and was fully supported by th e Panel's findings. The Panel correctly framed
the question before it by asking whether India's measures are so divergent from the OIE Code that
they are not based upon it, or whether India was correct in arguing that its AI measures conform
to the OIE Code. The United States highlights three particular findings of the Panel. First, the Panel
found that Article 10.4.1.10 of the OIE Code does not envisage the imposition of an import
prohibition with respect to poultry products. Second, the Panel concluded, on the basis of its
review of the product-specific recommendations in the OIE Code, that Chapter 10.4 of the
OIE Code does not envisage, either explicitly or implicitly, the imposition of import prohibitions
with respect to poultry products. Third, the Panel found that the recommendations of Chapter 10.4
of the OIE Code are not only intended for country-wide purposes, but could also be applied on the

115 United States' appellee's submission, para. 82 (referring to Appellate Body Report,
EC – Hormones, para. 132).
116 United States' appellee's submission, para. 86 (referring to India's letter to the Panel dated 11 July
2013).
117 United States' appellee's submission, para. 87.
118 United States' appellee's submission, para. 91.

basis of zones and compartments. Each of these findings, the United States maintains, was made
on the basis of the Panel's scrutiny of the text of the OIE Code.119
2.62. In response to India's claim that the Panel improperly delegated its judicial function to the
OIE in a manner inconsistent with its duties under Article 11 of the DSU, the United States restates
its view that the Panel's consultation with the OIE is within the bounds of Article 11.2 of the
SPS Agreement, which explicitly encourages a panel, in a dispute involving scientific and technical
issues, to obtain views from relevant international organizations. It is plain from its Report that the
Panel fully engaged with all the evidence on the record, including the text of the OIE Code itself, in
reaching its own conclusions. In addition, there is nothing wrong with the fact that the Panel's
discussion references the OIE's comments, and India has not explained why the Panel should not
have done so. India's reliance on the Appellate Body report in India – Quantitative Restrictions is
unavailing since, in this dispute, the Panel did not "simply accept" the views of the OIE.
120 Finally,
the United States asserts that India fails to meet the high standard for establishing a valid
Article 11 claim of error, and has not identified which, if any, alleged inconsistencies there are with
respect to the OIE's answers to the Panel's questions, or how these affected the objectivity of the
Panel's assessment.
2.63. The United States also disputes India's claim that the Panel acted in a manner inconsistent
with Article 11 of the DSU by disregarding certai n evidence and observes that the evidence in
question was irrelevant to the Panel's assessment of India's AI measures. With respect to India's
allegation that the Panel ignored the practice of other countries with respect to AI control
measures, the measures adopted by other countries do not necessarily reflect their view of the
OIE Code. India's argument ignores that other WT O Member's control measures may be based on
a risk assessment justifying a departure from OIE Code recommendations, and that some
Members may have an incorrect view of the OIE Code and may, therefore, have adopted
WTO-inconsistent measures. Noting India's refere nce to Australia's practice, the United States
points to Australia's disagreement with how India interpreted its documents and measures.
According to the United States, India is not in a position to speak for Australia, the Panel was not
in a position to adjudicate the merits of Australia's measures, and there is no reason why
Australia's views regarding the OIE Code are dispositive. In addition, India does not claim that it
maintains the same practices or measures that Australia does. The United States observes that the
Panel's task was to determine the consistency of India's measures, not to make determinations
with respect to other Member's measures.
2.64. The United States also responds to India's argument that the United States impliedly
recognized that trade restrictions could be imposed by bringing a claim under Article 6 of the
SPS Agreement. According to India, the reason the United States is putting its regionalization
claim is because it recognizes that import prohibitions are proper but wants them applied in a
regionalized fashion. This argument "has no basis in logic", and ignores the Panel's finding that the
OIE Code provides that the product-specific recommendations can be applied on a zone or
compartment basis.121
2.65. Finally, the United States contests India's claim under Article 11 of the DSU that the Panel's
findings are not supported by evidence. The Panel's conclusion is supported by evidence including,
most importantly, the plain text of the OIE Code itself. The United States further notes that, in its
submissions, the United States provided addition al information that directly touched upon the
OIE Code, such as the User's Guide to the OIE Code, reports of the OIE, scholarly articles, and
statements by OIE officials. 122 India's argument focuses on three pieces of evidence on the Panel
record, none of which undermine the Panel's find ings on the proper meaning of the OIE Code.

119 United States' appellee's submission, paras. 95-97 (referring to Panel Report, paras. 7.239,
7.251-7.253, and 7.258-7.259).
120 United States' appellee's submission, para. 101 (quoting Appellate Body Report, India – Quantitative
Restrictions, para. 149).
121 United States' appellee's submission, para. 106 (referring to Panel Report, para. 7.263).
122 United States' appellee's submission, para. 110 (referring to e.g. User's Guide to the OIE Code (Panel
Exhibit US-117); Report of the Meeting of the OIE Terrestrial Animal Health Standards Commission (February
2010) (Panel Exhibit US-123); D.E. Swayne and B.L. Akey, "Avian influenza control strategies in the
United States of America", in R.S. Schrijver and G. Koch (eds.), Avian Influenza – Prevention and Control
(Springer, 2005), chapter 13 (Panel Exhibit US-48); and statements by OIE officials contained in document
G/SPS/R/46, Committee on Sanitary and Phytosanitary Measures, Note by the Secretariat, Summary of the
Meeting of 18-19 October 2007 (Panel Exhibit US-119)).

India argues that a letter from a US official requesting India to reconsider its measures establishes
the opinion of the United States that the OIE Code warrants import prohibitions for a period of
three months after an outbreak of NAI.
123 The United States does not agree with how India is
reading the documents but, in any event, maintains that a request to allow a trade
accommodation does not suggest that a Member is asserting a particular interpretation of either
the OIE Code or the WTO Agreement.
2.66. As for the various US exhibits that, accord ing to India, discuss the purported legitimacy of
import barriers on account of HPAI, the United States argues that these documents are not
inconsistent with the United States' position or the Panel's findings regarding the OIE Code.
Although countries are entitled to control for both HPAI and LPAI, the issue is whether an import
prohibition on all products, rather than less-restrictive control measures, can be based on the
OIE Code. The OIE Code provides that there are less-restrictive measures than an across-the-
board ban on all products to ensure safe trade. In addition, the United States maintains that India
has not shown that any of these exhibits go to the interpretation of the OIE Code.
2.67. The United States also addresses India's argument that the Panel's conclusion is
contradicted by the OIE's interpretation of the OIE Code. India asserts that the OIE stated that, if
a country cannot fulfil the requirements of Article 10.4.19 because it is not HPNAI free, then it
could export processed products pursuant to Article 10.4.20. According to the United States, India
uses this statement to jump to the conclusion that a country would face trade restrictions if the
requirement of HPNAI freedom is not fulfilled. The United States considers that this conclusion is
unwarranted because neither the OIE Code provision, nor the OIE in its advice to the Panel,
supports India's position. The OIE Code provides that trade in the relevant products conducted in
accordance with the methods in the OIE recomme ndations is safe according to the relevant
science. In the United States' view, that is not the same as saying that the OIE is recommending
the imposition of import prohibitions.
2.2.3 Article 6 of the SPS Agreement
2.68. The United States asserts that India's claims that the Panel both committed legal errors
under Article 6 of the SPS Agreement and breached its obligations under Article 11 of the DSU lack
merit, and should be rejected by the Appellate Body. According to the United States, the Panel
correctly analysed its claims under Article 6 of the SPS Agreement, and properly concluded that
India does not recognize the concepts of pest- or disease-free areas and areas of low pest or
disease prevalence. Moreover, nothing about the Pane l's handling of the evidence was contrary to
its obligation under Article 11 of the DSU to make an objective assessment of the matter, and the
Panel correctly concluded that a request for recognition of a specific area under Article 6.3 is not a
prerequisite to the existence of obligations under Article 6.1 of the SPS Agreement. The
United States requests the Appellate Body to uphold the Panel's findings that India's AI measures
are inconsistent with Articles 6.1 and 6.2 of the SPS Agreement.
2.69. The United States submits that India's ar gument that the Panel erred under Article 6.2 of
the SPS Agreement by basing its conclusion on S.O. 1663(E) is without merit, as it rests on a
misunderstanding of Article 6.2 and of the Panel's findings. India has not challenged the Panel's
findings that the format of the recognition of the concepts of pest- or disease-free areas and areas
of low pest or disease prevalence will depend on the circumstances of each particular case, and
that, in order to comply with Article 6.2, an SPS measure must at a minimum not deny or
contradict the recognition of the concepts of such areas when these concepts are relevant with
respect to the disease at issue. The Panel found that the text of S.O. 1663(E) – which explicitly
requires the application of import bans on a country-wide basis – serves as a strong indication that
India does not recognize the concept of disease- free areas, before turning to consider India's
assertion that, notwithstanding this text, India does recognize the concept of disease-free areas.
The Panel found no evidence to support this assertion. The United States highlights that,
specifically with respect to India's arguments regarding the Livestock Act, the Panel noted that,
while this instrument provides broad discretion that the Indian Government could use in the
future, it does not in any way reflect that India has recognized disease-free areas.

123 United States' appellee's submission, para. 112 (referring to India's appellant's submission,
paras. 126-127, in turn referring to Letter dated 20 October 2009 from M. Gilkey (Director, APHIS) to
A. Kaushal (Joint Secretary, DAHD) regarding "S.O. 2208(E) Notification published in the Gazette of India on
August 28, 2009" (Panel Exhibit US-141), p. 3).

2.70. According to the United States, India's position that the content of S.O. 1663(E) is
irrelevant to the analysis under Article 6.2 in the light of the Livestock Act appears to be premised
on two elements: (i) the Livestock Act is the underlying legislation providing India's Central
Government the ab ility to regulate livestock imports, whil e S.O. 1663(E) implements the task of
regulating livestock imports into India; and (ii) the Panel did not find that Article 6.2 requires a
Member to implement the concept of disease-free areas in its domestic measures.
124 In the
United States' view, India's reasoning is "illogical". 125 The United States highlights that
S.O. 1663(E) is clearly a measure at issue in this dispute and that, "as the Panel found, 'by
imposing a prohibition on a country-wide basis, [S.O. 1663(E)] contradicts the requirement to
recognize the concept of disease-free areas and areas of low disease prevalence.'"
126
2.71. Moreover, the United States asserts that In dia confuses the idea of recognizing the concept
of disease-free areas with having the capacity to do so in the future. In particular, India seems to
equate the Panel's correct discussion of the need to examine the particular situation regarding the
format of recognition with a conclusion that "India is not required to implement the concept
domestically" in the absence of a request compliant with Article 6.3. 127 India also tries to equate
implementing the concept with recognizing the conc ept. The United States contends that, contrary
to India's argument, the Panel left no doubt that there is a distinction between recognizing specific
disease-free areas and recognizing the concept of disease-free areas, and that Article 6.2 requires,
not just a capacity to recognize the concept of disease-free areas, but actual recognition of the
concepts.128 Thus, to the United States, the Panel's conclusion that India has not recognized the
concept of disease-free areas reflects a correct understanding of Article 6 of the SPS Agreement.
2.72. The United States also disagrees with India's argument that the Panel made findings on a
claim different from the one brought by the United States. The Panel did not conclude that India
breached Article 6.2 on account of the "non-imple mentation" of the concepts of disease-free areas
or areas of low disease prevalence. Rather, the Panel found that India had breached the first
sentence of Article 6.2 because it did not recognize "the concept of disease-free areas and areas of
low disease prevalence with respect to AI". 129 The Panel then concluded that India had breached
the second sentence of Article 6.2 and also the first and second sentences of Article 6.1. According
to the United States, the Panel, thus, did not base its conclusions with respect to the claims under
Article 6 on India's failure to "implement" anything. Instead, the Panel's conclusions were based on
India's failure to recognize the concepts of dise ase-free areas and areas of low disease prevalence
with respect to AI, which was precisely the claim brought by the United States.
2.73. In addition, the United States rejects Indi a's argument that the Panel acted inconsistently
with Article 11 of the DSU by allegedly disregarding a statement in Panel Exhibit IND-121 that,
according to India, constitutes evidence of its co mpliance with the first sentence of Article 6.2 of
the SPS Agreement. India has not established that this evidence was so material to its case that
the Panel was required to deal more explicitly with it. Furthermore, Panel Exhibit IND-121 does not
support India's position. The United States asserts that this is underscored by that text's broader
context, including the remainder of Panel Exhibi t IND-121 and the broader exchange of which it
forms part.
2.74. The United States submits that the Panel was "clearly aware" of Panel Exhibit IND-121 when
it concluded that, "[i]n the absence of any substantiating evidence to support [India's] assertion
[that it did recognize the concept of disease-free areas], we are unable to overcome the clear and
unequivocal language to the contrary as reflected on the face of a measure at issue (that is,
S.O. 1663(E))."
130 Indeed, footnotes to the paragraph of the Panel Report immediately following
that conclusion, and two paragraphs preceding it, explicitly reference Panel Exhibit IND-121. 131
The Appellate Body has found that the weighing of evidence is within the discretion of the panel,

124 United States' appellee's submission, para. 169 (referring to India's appellant's submission,
paras. 213 and 218).
125 United States' appellee's submission, para. 169.
127 United States' appellee's submission, para. 170 (quoting India's appellant's submission, para. 219).
128 United States' appellee's submission, para. 170 (referring to Panel Report, paras. 7.670-7.677
and 7.698-7.706).
131 United States' appellee's submission, para. 176 (referring to Panel Report, fn 1219 to para. 7.701,
and fn 1221 to para. 7.704).

and that it is not an error under Article 11 of the DSU for a panel to fail to accord to the evidence
the weight that one of the parties believes should be accorded to it. 132 Consequently, the
United States considers that India's claim under Article 11 amounts to a "quibble" with the Panel's
weighing of the evidence that cannot establish a breach of this provision.
133
2.75. Furthermore, the United States argues that Panel Exhibit IND-121, whether viewed alone or
in context, does not show that India recognizes the concepts of disease-free areas or areas of low
disease prevalence with respect to AI or that it would entertain a proposal to recognize a specific
area. Before the Panel, the United States pointed out that India has maintained a uniform policy of
requiring country-level certification despite requests by the United States dating back to 2006 that
India adjust its required certification to recognize the concept of disease-free regions or zones, and
despite requests before the SPS Committee that India regionalize its AI-related import restrictions.
Similarly, the United States indicated to the Pane l that the Indian delegate at the meeting of the
OIE in May 2012 criticized the OIE Code AI chapter, "asserting that for India 'the concept of zoning
looked irrelevant as far as avian influenza was concerned.'"
134 In response, India submitted Panel
Exhibit IND-121 to establish that "India had indicated to the United States that it was willing to
consider trade from compartments, yet, to date the United States has neither made a request to
India nor submitted relevant documentation evidencing establishment of bio-secure
compartments."
135 The United States points out that, despite India's reference to Panel
Exhibit IND-121, India's appellant's submission appears to recognize that India was not expressing
a willingness to consider a proposal for recognition of specific disease-free areas but, instead, only
that India would "consider the issue of compartmentalization".
136
2.76. The United States argues that the broa der context of the interactions between the two
countries shows that neither in Panel Exhibit IND-121 nor elsewhere did India indicate that it had
recognized the applicability of the concepts of disease-free areas or areas of low disease
prevalence with respect to AI. In the period between the comments by India set out in Panel
Exhibit IND-121 and the commencement of this dispute, India promulgated new iterations of its
AI measures that apply to products from anywhere in a country reporting NAI. The United States
concludes that the text and context of Panel Ex hibit IND-121 demonstrate that it was perfectly
consistent with Article 11 of the DSU for the Panel not to have found that this exhibit was evidence
of any recognition by India of disease-free areas or areas of low disease prevalence.
2.77. Finally, the United States argues that the Panel correctly concluded that a request under
Article 6.3 is not a prerequisite to the existence of obligations under Article 6.1 of the
SPS Agreement. The Panel noted that Article 6.3 refers to a situation that is distinct from those in
Articles 6.1 and 6.2 and that it is not directly linked to the first two paragraphs of Article 6.
Similarly, the Panel recognized that Article 6.1 negates the idea that the obligations under that
provision arise only after an exporting Member requests recognition of specific pest- or
disease-free areas or areas of low pest or diseas e prevalence pursuant to Article 6.3. Moreover,
the United States rejects India's argument that its understanding of the relationship between
Articles 6.3 and 6.1 is supported by the OIE Code. India has not explained how a statement by the
OIE would be pertinent to the legal interpretation of a WTO covered agreement, and nothing in the
OIE Code supports India's legal interpretation. The United States contends that the passages from
Chapter 4.3 of the OIE Code to which India refers are fully consistent with the Panel's
interpretation of Article 6 of the SPS Agreement.
2.78. The United States reiterates that India's argument that the obligation under Article 6.1 is
triggered only by a request pursuant to Article 6.3 reads non-existent distinctions into the text of
Article 6.1. As the Panel pointed out, where the SPS Agreement foresees that a requirement for a
Member will arise only upon action by another, the Agreement explicitly so states.
137 In the
United States' view, India's proposed reading of Article 6.1 also ignores the second sentence of

132 United States' appellee's submission, para. 177 (referring to Appellate Body Report, Korea – Dairy,
para. 137; and quoting Appellate Body Report, Korea – Alcoholic Beverages, para. 164 (fn omitted)).
133 United States' appellee's submission, para. 177.
134 United States' appellee's submission, para. 178 (quoting United States' first written submission to
the Panel, para. 148).
135 United States' appellee's submission, para. 178 (quoting India's first written submission to the Panel,
para. 252).
136 United States' appellee's submission, para. 182 (quoting India's appellant's submission, para. 226).
(emphasis added by the United States)
137 United States' appellee's submission, para. 192 (referring to Panel Report, para. 7.679).

this provision, which clarifies that there is an obligation to adapt SPS measures to the SPS
characteristics of regions. According to the United States, there is no indication in Article 6 that
any precipitating event is required before an SPS measure must be adapted to the characteristics
of a region.
2.79. Finally, the United States asserts that the Panel correctly found that India's failure to
recognize the concepts of disease-free areas and areas of low disease prevalence with respect to
AI led to the conclusion that India also breached the first sentence of Article 6.1 of the
SPS Agreement. The United States highlights the si gnificance of the wording of this sentence –
that Members must "ensure that their sanitary or phytosanitary measures are adapted" – which, in
its view, makes clear that the obligation covers not only a failure to recognize particular disease-
free areas where an exporting Member has made the necessary demonstration, but also adoption
of measures that fail to permit the importing Member to account for relevant differences in the
SPS characteristics of different areas. The United States explains that a Member could not have
ensured that its measures are adapted in a situation where its measures contradict the concepts of
disease-free areas and areas of low disease preval ence, as this would leave no possibility for
adaptation to the characteristics of a specific area in the event that an exporting Member
demonstrates the existence of such an area.
2.2.4 Article 5.6 and Article 2.2 of the SPS Agreement
2.80. The United States argues that India has failed to establish that the Panel erred in its
findings under Article 5.6 of the SPS Agreement. India's claims fail to recognize critical findings
made by the Panel with respect to the measures th at were identified by the United States and the
fact that these measures provide for an optimal level of security. The United States requests the
Appellate Body to uphold the Panel's findings that India's AI measures are inconsistent with
Article 5.6 and, as a consequence, Article 2.2 of the SPS Agreement.
2.81. The United States contests India's claim under Article 11 of the DSU that the Panel ruled on
a claim that was not before it. India argues that the United States limited its claim under
Article 5.6 such that it applied to India's AI measures only to the extent that they impose trade
restrictions on countries reporting LPNAI. However, the record in this dispute provides no basis for
India's assertion that the scope of the United States' claim under Article 5.6 was so limited. In the
United States' view, India's position is inconsistent with India's own arguments in the context of its
next claim under Article 11, where India argues th at the United States' claim was with respect to
two products and HPNAI.
2.82. Moreover, the United States argues that India does not reference or explain the precise
language upon which it bases its assertion that the United States limited its claim under Article 5.6
to measures addressing LPNAI, and that the references to the United States' submissions do not
support India's assertion. To the contrary, India's reference to the United States' responses to the
Panel's questions actually supports the United States' claim that the recommendations in the
OIE Code are the specified alternative measures. According to the United States, the other two
citations to the United States' submissions provided by India are just as irrelevant, because they
concern arguments about whether the OIE Code would achieve India's ALOP, and do not relate to
the scope of the United States' claim.
2.83. The United States also argues that India fails to engage with the Panel's finding that actually
determined the scope of the United States' claim as it related to the identified alternative
measures. The Panel Report makes clear that the United States proposed the OIE Code against
which to compare India's AI measures, and submitted that the alternative measures should be
those provisions of the OIE Code that provide recommendations allowing for safe trade. The
United States provided evidence to that point, which was acknowledged and referenced by the
Panel. The United States highlights the Panel's finding that the United States identified as
reasonably available alternatives the recommendations in Chapter 10.4 of the OIE Code that
correspond to the products covered by S.O. 1663(E). Consequently, the United States asserts that
the record affirmatively shows that the United States' claim under Article 5.6 was addressed to the
ban imposed by S.O. 1663(E) on countries reporting NAI.
138

138 United States' appellee's submission, para. 198 (referring to Panel Report, para. 7.529).

2.84. The United States also maintains that the two arguments that serve as the basis for India's
second claim under Article 11 of the DSU that the Panel erred in failing to find that the
United States had not made out its prima facie case are not supported by the Panel record. India
first asserts that the United States attempted to discern India's ALOP by examining India's
domestic measures. According to the United States, India does not and cannot explain how or why
this means that the United States did not make a prima facie case, or how or why this supports
the conclusion that the Panel failed to conduct an objective assessment of the matter, as required
by Article 11. Given that India's measures do not explicitly state India's ALOP, the United States
asserts that a prima facie case with respect to the identification of the ALOP must be based on an
inferred ALOP supported by evidence on the record. This is precisely what the United States did in
presenting its prima facie case. Moreover, the Panel ultimately agreed with India that its ALOP was
higher than that presented in the United States' prima facie case. The United States considers that
the Panel's engagement with the parties' arguments and its finding in favour of India's position
regarding the ALOP confirms that the Panel made an objective assessment of the matter. As for
India's argument that the Panel erred by allowing the United States to specify India's ALOP, the
United States contends that the Panel Report shows that India's contention is untrue. In fact, the
Panel disagreed with the United States' argument that the inferred ALOP should be low due to the
level of protection indicated by India's domestic measures. Instead, the Panel held that India's
ALOP is very high or very conservative. Accordingly, the United States submits that this challenge
under Article 11 of the DSU should also fail, give n that the record shows that the Panel did not
allow the United States to specify India's ALOP.
139
2.85. Finally, the United States contends that India is wrong in arguing that the Panel erred
because it did not precisely identify the alternative measures, except with respect to two
unidentified products. In fact, the Panel identified the precise OIE Code recommendations that
serve as the proposed alternative measures on the basis of evidence provided by the United
States, and also noted the two products not covered by OIE Code recommendations in respect of
which the United States did not propose an alternative measure.
140 India's assertion appears
premised on its argument that the OIE Code achieves different levels of protection depending on
the recommendation adopted. The Panel properly rejected India's argument regarding the different
levels of protection in the OIE Code, and found that the OIE Code achieves a high level of
protection. Accordingly, the United States submits that India has presented no support for its
argument that the alternative measures under Arti cle 5.6 were not sufficiently defined, and that
India's final claim under Article 11 of the DSU regarding the Panel's finding under Article 5.6 has
no merit.
141
2.2.5 Article 2.3 of the SPS Agreement
2.86. The United States submits that India's appeal of the Panel's findings under Article 2.3 of the
SPS Agreement is without merit, and that its ar guments, styled as assertions that the Panel
breached Article 11 of the DSU in different ways, are "fundamentally not proper claims of error for
an appeal".142 The United States requests the Appellate Body to reject India's claims of error on
appeal and to uphold the Panel's finding that India's AI measures are inconsistent with Article 2.3
of the SPS Agreement.
2.87. The United States recalls that the Panel found India's AI measures to be inconsistent with
Article 2.3 in three different ways. With respect to the first sentence of Article 2.3, the Panel
agreed with the United States that India engages in two forms of discrimination against imported
products and in favour of domestic products. First, the Panel found that, under India's AI
measures, if there is an NAI outbreak anywhere in the exporting country, the importation of the
covered products into India is prohibited. India, however, permits the sale of domestic products in
India following an outbreak of NA I, provided that the product originates outside a ten kilometre
zone of the location where NAI is detected. Second, India prohibits the importation of the covered
products if LPNAI is detected in the exporting country, whereas India does not maintain
surveillance sufficient to detect LPNAI in India's domestic poultry.
143 Third, the United States
recalls the Panel's finding that India's measures constitute a disguised restriction on international

139 United States' appellee's submission, paras. 200-201 (referring to Panel Report, para. 7.570).
140 United States' appellee's submission, para. 202 (referring to Panel Report, para. 7.533).
141 United States' appellee's submission, para. 203 (referring to Panel Report, para. 7.580).
142 United States' appellee's submission, para. 123.
143 United States' appellee's submission, para. 117 (referring to Panel Report, para. 7.392).

trade, inconsistent with the second sentence of Article 2.3. 144 Given that India's claims of error on
appeal relate only to the second of the three ways that the Panel found India's AI measures to be
inconsistent with Article 2.3, and given that India has not even appealed the other two bases for
the Panel's finding under Article 2.3, the United States submits that India's appeal cannot, in any
event, result in a reversal of the Panel's ultimate conclusion that India's AI measures are
inconsistent with Article 2.3.
2.88. The United States argues that India has failed to establish that the Panel's consultations
with individual experts regarding India's surveillan ce regime and the question of whether LPNAI is
exotic to India are inconsistent with the Panel's obligations under Article 11 of the DSU. India
ignores the requirements of Article 11 of the DSU in arguing that the OIE Code required the Panel
to defer to India's self-assessment that it had no LPNAI, and that, therefore, the Panel was
precluded from asking the experts whether the record evidence supported India's claim to be free
from LPNAI. Article 11 of the DSU requires a panel to assess whether the evidence on the record
supports the assertions made by the parties. Even if the OIE Code had provided that, for the
purposes of trade or any other purpose, an OI E member should defer to another OIE member's
self-assessment that it has no AI, this could not have absolved the Panel of its responsibility to
assess the record evidence and determine whether the evidence supported India's assertion of
being LPNAI-free. India fails to identify anything in the OIE Code that prescribes the weight that a
WTO panel, as opposed to OIE members, must give to self-assessment by an OIE member of its
disease situation with respect to a listed disease, such as AI, for which the OIE does not grant
official recognition. The part of the OIE Code relied on by India (Article 1.6.1) addresses what an
OIE member making a claim of its disease status with respect to a disease can or should do, and
what the OIE may or will not do in response; however, it "does not speak to any other entity".
145
2.89. Further, the United States argues that the OIE Code does not support the alleged factual
basis for India's claim that the Panel did anything inconsistent with the OIE Code. According to the
United States, there is nothing in the OIE Code to support India's position that the fact that " the
OIE reviews disease-freedom claims made by Members with respect to six animal diseases – not
including AI – means that for other OIE-listed diseases, a country's self-report of its AI situation
must be accepted as unassailably correct", not only by the OIE, but also by other OIE members,
the WTO, and the Panel.
146 Although Article 1.6.1 of the OIE Code states that members "may"
inform the OIE of their claimed disease-status, and that the OIE may "publish" such claims,
"[p]ublication does not imply endorsement of the claim." 147 Given that self-declarations of disease
status are merely claims, and not official disease statuses, the Panel could not have failed to make
an objective assessment by considering whether the record evidence supports India's self-
assertion of LPNAI-freedom, and by posing question s on this issue to the experts. The chapter of
the OIE Code relating to AI – Chapter 10.4 – is fully consistent with the Panel's approach, as it
makes clear that self-declarations of freedom from AI must be supported by evidence of
surveillance capable of justifying the self-categ orization. The United States submits, moreover,
that the adequacy of India's LPNAI surveillance to reliably detect LPNAI and to support India's
claim of LPNAI-freedom is a crucial issue in this dispute, and is a technical issue on which the
Panel could reasonably seek expert evidence in a manner consistent with Article 11.2 of the
SPS Agreement and Article 11 of the DSU. The United States also points out that India's claim of
error rests on Article 1.6.1 of the OIE Code, even though that provision was not placed on the
record before the Panel. Given that, in the United States' view, the contents of an international
standard are a question of fact in WTO dispute settlement, India's claim on appeal asks the
Appellate Body to rely on facts not on the Panel record, and to find that the Panel failed objectively
to assess evidence that was not even presented to it.
2.90. The United States also submits that, in making its claims under Article 11 of the DSU, India
misunderstands the allocation of burden of proof in WTO dispute settlement proceedings. The
Panel's questions to the experts did not improperly shift the burden of proof with respect to the
question of whether India had LPNAI. The Panel rightly explained that, while the United States has
the burden of establishing a prima facie case, India has the burden of proving the facts it asserted

144 United States' appellee's submission, para. 118 (referring to Panel Report, para. 7.479).
145 United States' appellee's submission, para. 129 (referring to India's appellant's submission,
para. 290).
146 United States' appellee's submission, para. 130 (referring to India's appellant's submission,
paras. 291-294). (emphasis original)
147 United States' appellee's submission, para. 132 (quoting Article 1.6.1 of the OIE Code; and referring
to OIE's response to Panel question No. 9).

in attempting to rebut that case. 148 The United States had established that India treats domestic
and imported products differently with respect to the risk of LPNAI, depending on whether the risk
originates in India or in another Member. The United States had, therefore, made a prima facie
case that India's measures discriminate against imported products in an apparently arbitrary
manner and without apparent justification. In order to rebut this prima facie case, India had the
burden of establishing the facts supporting any justification for the discriminatory treatment. The
Panel correctly explained that India's justification for the differential treatment is that LPNAI is
exotic to India, and the Panel, therefore, correctly proceeded to assess whether the factual
premise of India's justification, i.e. that LPNAI is exotic to India, was supported by the evidence
adduced by India.
149
2.91. Contrary to India's assertion, the United States submits that it did not have to establish that
LPNAI is present in India in order to make its prima facie case. Instead, with respect to the second
form of discrimination, the United States' case focused on the fact that India imposed LPNAI-based
import bans, but failed to undertake surveillance ca pable of reliably detecting LPNAI domestically.
The Panel found that the United States had established this point, and India does not, in its
appeal, contest the Panel's findings in this regard . By contrast, it was India's assertion before the
Panel that LPNAI was absent from India and this , therefore, was a fact that India needed to
establish.
2.92. The United States also takes issue with India's argument that, since the OIE Code requires
OIE members to report LPNAI outbreaks that they detect, and that, since India never reported an
occurrence of LPNAI to the OIE, the Panel should have accepted that India had established that
LPNAI is absent from India. The United States views this as a "repackaging" of India's argument
that India's self-assessment of LPNAI-freedom should have been accepted by the Panel as a fact
even in the absence of scientific evidence supporting it – an argument that is contrary to both logic
and the requirements of the OIE Code.
150 Moreover, the Panel's questions to the experts on
whether India is free from LPNAI did not reflect an allocation by the Panel of the burden of proof,
but, instead, only sought expert comments on what the record evidence showed regarding the
different points made by the parties on the issu e. For these reasons, the United States submits
that India has established no error with respect to the Panel's framing of its questions to the
experts, let alone one so egregious that it calls into question the Panel's good faith, as required
under Article 11 of the DSU.
151
2.93. Finally, the United States submits that the Panel's questions to the experts did not result in
a delegation of the Panel's decision-making respon sibilities. India's argument on appeal fails for
two reasons. First, the Panel conducted its own objective assessment and review of the record
evidence and found that there was insufficient evidence to support India's assertion that LPNAI is
exotic to India. 152 Second, the Panel's questions to the experts did not delegate its
decision-making responsibility, but only sought their assistance in evaluating scientific and
technical evidence, including various studies and articles. The Panel asked the experts for
comments on what the record evidence showed regarding different points made by the parties in
relation to India's LPNAI situation. Such consultation with the experts is consistent with
Article 11.2 of the SPS Agreement, as well as Article 13.2 of the DSU, as neither of these
provisions imposes any limitation on a panel's ability to ask experts whether technical evidence on
the record reveals a factual basis for the scientific or technical claims made by a party to a
dispute. The United States considers that the questions posed by the Panel were factual in nature,
as they addressed what scientific and technical facts could be ascertained from the evidence on
the record, and they were not questions of "legal characterization".
153 The United States notes,
moreover, that, to the extent India takes issue wi th the Panel Report's discussion or use of the
experts' views, and not just the questions posed by the Panel, this is an issue that falls beyond the
scope of this appeal.

148 United States' appellee's submission, para. 138 (referring to Appellate Body Report, Japan – Apples,
paras. 152 and 154; and Panel Report, para. 7.442).
149 United States' appellee's submission, para. 140 (referring to Panel Report, para. 7.441).
150 United States' appellee's submission, paras. 143-144.
151 United States' appellee's submission, para. 146 (referring to Appellate Body Report,
EC – Hormones, para. 133).
152 United States' appellee's submission, paras. 149-151 (referring to Panel Report, paras. 6.56-6.57
and 7.454-7.455).
153 United States' appellee's submission, para. 154 (referring to Appellate Body Report,
Australia – Apples, para. 384).

2.94. For these reasons, the United States submits that the Panel properly complied with its
obligations under the DSU and the SPS Agreement, including its obligation to make an objective
assessment of the evidence under Article 11 of the DSU. Despite being afforded numerous
opportunities to comment on the Panel's questions to the individual experts, India failed to object
to the questions posed by the Panel or to argue th at they reflected an improper delegation of the
Panel's decision-making responsibilities. Thus, India cannot plausibly claim that the Panel denied it
due process or fundamental fairness by framing its questions to the experts in the manner it did.
2.3 Arguments of the third participants
2.3.1 Argentina
2.95. With regard to India's claim under Article 3 of the SPS Agreement, Argentina maintains that
the reference to scientific or technical issues in Article 11.2 of the SPS Agreement does not limit
the manner in which an international organization consulted by a panel may perform its advisory
role. Argentina notes that the obligation under Article 3.2 of the DSU to apply customary rules of
interpretation applies expressly to the WTO covered agreements and not to other instruments, but
that such other instruments must still be inte rpreted in accordance with customary rules of
interpretation of public international law. In addition, any interpretation of the OIE Code
undertaken by the OIE at the request of a panel reflects the position of the OIE as an international
organization, and not that of the OIE officials enga ged in the task. Argentina, therefore, considers
that the task of interpreting the OIE Code is not limited under Article 11.2 of the SPS Agreement
or under Article 3.2 of the DSU and, as such, may be delegated to the OIE.
2.96. In addition, Argentina concurs with the United States' logic that, where the OIE
recommends import prohibitions, it expressly so provides. Argentina also agrees with
the United States that, where a measure has a form and operation wholly disparate from, and
contradictory to, an international standard, the measure cannot be said to be "based upon" that
standard. On the other hand, Argentina considers th at India's purely fact-based analysis is sound,
since the United States has failed to apply this same logic to all the chapters of the OIE Code,
notably the chapter relating to foot and mouth disease.
2.97. In its opening statement at the oral hear ing, Argentina indicated that Article 6 of the
SPS Agreement guarantees the smooth flow of international trade and, at the same time, a
Member's right to protect its territory from the introduction or spread of diseases or pests.
Argentina also maintains that Article 6.2 provides a more detailed description of the factors that
Members should bear in mind when they make a determination as to regionalisation, pursuant to
Article 6.1. Therefore, a breach of Article 6.1 necessarily entails a violation of Article 6.2.
Moreover, Argentina points out that Article 6.3 sets out procedural obligations regarding the
process of regionalization, which could be used in the context of dispute settlement as a potential
defence against a claim under Article 6.1 or Article 6.2 of the SPS Agreement.
2.3.2 Australia
2.98. With regard to the AI risk assessment cond ucted by Australia and referred to by India in its
submissions, Australia argues that it is "inappropriate to directly correlate the conclusions of one
country's risk assessment based on [its] methodology to another country".
154 It is up to each WTO
Member to determine its individual ALOP and, like risk assessments, the ALOP is not directly
transferable between Members, particularly where Members have quite different SPS statuses. In
addition, India's assertion that Australia's risk assessment does not permit imports of chicken
meat from countries reporting LPNAI constitutes a misreading of its risk assessment. Australia
permits the importation of chicken meat from a count ry or zone that has notified LPNAI, provided
that the chicken meat has been processed to ensure destruction of the AI virus. Australia's risk
assessment also does not support the imposition of a blanket ban on imports of chicken meat from
a country or zone that has notified LPNAI. Aust ralia, therefore, considers that the Panel was
correct to observe that Australia's submission "did not concur with India's assertion" as to whether
poultry meat from countries that have notified LPNAI should be imported.
155

154 Australia's third participant's submission, para. 5.
155 Australia's third participant's submission, para. 14 (quoting Panel Report, para. 7.313).

2.99. In its opening statement at the oral hearing, Australia expressed the view that Article 3.2 of
the DSU does not speak to interpretative rules to be adopted by a panel in determining the scope
or content of an international standard. An international standard is not one of the covered
agreements to which Article 3.2 refers and which are listed in Appendix 1 to the DSU. Australia
considers that a panel may use a range of tools in assessing an international standard, including
an interpretative approach akin to that contained in the Vienna Convention, and taking into
account information sought pursuant to Article 13 of the DSU.
2.3.3 Brazil
2.100. Without taking any position on the conformi ty of India's AI measures with an international
standard, Brazil considers that an analysis under Article 3.2 of the SPS Agreement can only be
conducted on a case-by-case basis, since only by analysing a concrete case would it be possible to
determine whether all the elements of the standard were adopted by the relevant domestic SPS
measure. In this respect, the mere reference to an OIE standard may not be sufficient to
demonstrate the conformity of a domestic measure with that standard or with the relevant
provisions of the SPS Agreement. If the SPS meas ure contradicts or deviates from the standard,
this measure cannot be considered as being in conformity with the international standard. At the
same time, a Member cannot simply pick and choose parts of a standard and still argue that the
measure conforms to that standard. The presumption established in Article 3.2 does not extend to
measures that are "based on" standards, or which apply those standards "partially or liberally".
156
2.101. With respect to India's claim under Article 2.2 of the SPS Agreement, Brazil recalls that
scientific evidence is a necessary requirement for the adoption of an SPS measure, and one of the
main objectives of this provision is to minimize the negative effects SPS measures may have on
trade. Brazil considers it clear that a risk assessment is a necessary instrument for a Member to
fulfill the requirement of providing "scientific justification" for its SPS measures.
157 Brazil submits
that, by subjecting SPS measures to scientific scrutiny, Article 2.2 establishes an objective
standard to be followed when assessing the consistency of SPS measures. Such scrutiny should be
conducted on a case-by-case basis, because the required scientific evidence may vary depending
upon the particular circumstances of the case and may require a quantitative analysis by empirical
or experimental methods. 158 Furthermore, what constitutes scientific evidence sufficient to be
included in a risk assessment should also take into account the "value under protection and the
objective characteristics" of the measure at issue.
159 Brazil also recalls that the term "sufficient",
as used in Article 2.2, is a relational concept requiring an "adequate relationship" between the SPS
measure and the scientific evidence, such that the characteristics of the measures, as well as the
quality and quantity of the scien tific evidence, always need to be taken into account in this
analysis.
160 Brazil, therefore, considers that, in order to fulfill the requirements of Article 2.2, the
risk assessment justifying the adoption of an SPS measure should encompass all the scientific
evidence necessary to support the SPS measure at issue.
2.102. With regard to Article 6 of the SPS Ag reement, Brazil argues that the principle of
regionalization embodied in this provision cont ributes to reducing the relevant SPS measures'
negative effects on trade, and mitigating the risks of contamination and spread of the pest or
disease in the territory of the importing country. The first and foremost obligation derived from
Article 6 is the recognition of the concepts of pest- or disease-free areas and areas of low pest or
disease prevalence. Without such recognition, none of the other obligations in the SPS Agreement
regarding regionalization could be fulfilled. Brazil asserts that, since Article 6 was established to
regulate specific circumstances among Members, the correct interpretation of the term "recognize"
should also carry the idea of "implementation" rather than merely signifying an abstract
"acknowledgement or consideration" of the concepts.
161 Moreover, Brazil agrees with the Panel
that the word "recognition" should be analysed on a case-by-case basis, and points out that the

156 Brazil's third participant's submission, para. 8.
157 Brazil's third participant's submission, paras. 10-11 (referring to Appellate Body Report,
Australia – Salmon, paras. 136-137; and quoting Panel Reports, US – Poultry (China), paras. 7.173 and 7.201;
and Australia – Apples, para. 7.214).
158 Brazil's third participant's submission, para. 13 (quoting Panel Report, Japan – Apples, para. 8.92).
159 Brazil's third participant's submission, para. 14 (referring to Panel Report, Japan – Apples,
para. 8.93).
160 Brazil's third participant's submission, para. 15 (referring to Appellate Body Report,
161 Brazil's third participant's submission, paras. 24-25.

second sentence of Article 6.2 establishes the specific and concrete factors that shall be considered
as a basis for a determination of recognition. This would allow Members "to concretely
'acknowledge/consider' (and implement) these concepts through a 'de jure' or 'de facto'
recognition in their law and/or indi vidual or collective decisions".
162 Brazil points out that the
recognition of the concepts of pest- or disease-free areas and areas of low pest or disease
prevalence does not entail an obligation on the importing Member to confer automatically a pest-
or disease-free status to all regions in an exporting Member that are claimed to be disease-free.
Rather, in order to agree with a claim that a certain area is disease-free, an importing Member
must have before it the relevant scientific evidence. At the same time, Brazil emphasizes that,
pursuant to these provisions, an importing Member can no longer justify a blanket import ban if
the exporting Member argues – and provides eviden ce – that its territory also comprises pest- or
disease-free areas and areas of low pest or disease prevalence.
2.103. In its opening statement at the oral hearing, Brazil addressed India's appeal with respect
to Article 2.3 of the SPS Agreement. Brazil subm its that, because India asserted that LPNAI is
exotic to India in response to the United States' claim, WTO jurisprudence relating to the burden of
proof under the SPS Agreement supports the view th at India is primarily responsible for providing
proof of its factual allegation.
2.3.4 European Union
2.104. With respect to the issues relating to Articles 3.1 and 3.2 of the SPS Agreement, the
European Union considers that the provisions of Article 10.4.1.10 of the OIE Code, as well as the
product-specific recommendations in Chapter 10.4, should be read together. While there is clear
language in Article 10.4.1.10 that no bans can be imposed on account of notifications in pets and
wild birds, for notifications regarding poultry, the importing country may impose a ban "only to the
extent that the exporting country is not able to properly regionalize its territory or to fulfil the
appropriate risk mitigation conditions, like proce ssing, so as to ensure the destruction of the NAI
virus".
163 The European Union adds that, contrary to what India suggests, the so-called "condition
of entry" with respect to specific product recommendations "does not concern a subjective risk
management choice of the importing Member, but rather an objective element, taking into account
the evidence supplied by the exporting Member". 164 If the exporting Member claiming that areas
within its territory are disease-free has provided the necessary evidence to demonstrate
objectively that such areas are, and are likely to remain, disease-free, then the importing Member
can no longer ban the products from the entire country. The same is true when different OIE
recommendations refer to NAI-free status or HPNAI-free status. A country's AI status is an
objective element and not a choice of the import ing Member. If a country has reported LPNAI,
then the applicable product-specific standard is that with regard to an HPNAI-free country. The
European Union maintains that "[i]t is not for the importing Member to pick a standard and to
automatically ban trade on this ground".
165
2.105. The European Union stresses that Chapter 10.4 recommendations are designed to prevent
HPNAI and LPNAI being introduced into the importing country while allowing trade in safe
products. Accordingly, a notification of NAI in poultry can lead to a country-wide ban only in those
instances when the exporting Member did not fu lfil the requirements of Article 6.3 of the
SPS Agreement, as reflected in Chapter 4.3 of the OIE Code, on zoning and compartmentalisation,
and when other risk-mitigation conditions, like proc essing so as to ensure the destruction of the
NAI virus, are not fulfilled. It follows that India's measures not only are not based on, and do not
conform to, the relevant international standards, but they "go against the very standards they
purport to follow".166 The European Union, therefore, asserts that the Panel's findings with regard
to Articles 3.1 and 3.2 of the SPS Agreement must be upheld.
2.106. With regard to India's claim under Articl e 2.2 of the SPS Agreement, the European Union
notes that Article 2.2 contains the general princi ples of the SPS Agreement relating to necessity
and scientific disciplines for the use and maintenance of SPS measures. Article 5.1, which requires
WTO Members to undertake a risk assessment, is a more specific provision relating to the general

162 Brazil's third participant's submission, para. 23.
163 European Union's third participant's submission, para. 12 (referring to Panel Report, para. 7.252).
164 European Union's third participant's submission, para. 15.
165 European Union's third participant's submission, para. 16.
166 European Union's third participant's submission, para. 19.

requirements under Article 2.2 to base SPS measures on scientific principles and not to maintain
them without sufficient scientific evidence. A violatio n of the more specific provision in Article 5.1
constitutes a violation of the more general requir ements in Article 2.2; however, given the more
general wording of Article 2.2, the reverse is not necessarily true. 167 The European Union,
therefore, considers that the Panel did not err in finding that a violation of the more specific
obligation in Article 5.1 results in a violation of the more general obligation in Article 2.2.
2.107. Regarding Article 6 of the SPS Agreement, the European Union considers that paragraph 2
of this provision imposes an independent obligation on Members, and that it can be inferred from a
Member's SPS measures whether or not it recognizes the concepts of pest- or disease-free areas
or areas of low pest or disease prevalence. The format of such recognition will depend on the
circumstances of each particular case and it is not required that this must be done explicitly and, if
so, in writing through a legislative or administrative act. In this dispute, S.O. 1663(E), which
requires the application of a country-wide import ban on the products at issue, serves as a strong
indication that India does not recognize the co ncept of disease-free areas. The European Union
further considers that a request under Article 6.3 is not a prerequisite to the existence of
obligations under Article 6.2. However, these two provisions are related in the sense that, if the
importing Member does not even recognize the concept of regionalization, any attempts by an
exporting Member to prove that the conditions for safe trade in the products at issue are fulfilled
would be rendered fruitless. In the light of the above, the European Union considers that the Panel
did not commit legal error in finding that India's measures are inconsistent with Article 6.2 of the
SPS Agreement.
2.108. In its opening statement at the oral he aring, the European Union indicated that the
recognition of the concepts set out under Article 6.2 is a prerequisite for the adaptation of a
Member's measures under Article 6.1. Therefore, a breach of the more specific obligation in
Article 6.2 results in a breach of the more general obligation in Article 6.1. Furthermore, while an
importing Member is under no obligation to automatically accept a regionalization proposal from an
exporting Member pursuant to Article 6.3, its discr etion is limited by objective factors, such as
those enunciated in the second sentence of Article 6.2 of the SPS Agreement.
2.109. With regard to India's claim under Article 5.6 of the SPS Agreement, the European Union
argues that each product-specific recommendation in the OIE Code is an alternative measure that
achieves India's ALOP and is significantly less trade restrictive. These recommendations, therefore,
fulfil the requirements set out in Article 5.6 an d footnote 3 of the SPS Agreement. Moreover, the
regionalization requirements in Article 6 should be understood in the light of the "significantly less
trade restrictive alternative" requirement in Arti cle 5.6. Accordingly, an importing country may
adopt different measures that will have a different impact on trade on the basis of the same ALOP.
In addition, a regional ban, as opposed to a country-wide ban, should not be automatically
equated to a low ALOP. To the contrary, a very high ALOP may be reflected in a regional ban,
which allows safe trade in the products at issue from the unaffected regions within the same
exporting country. For these reasons, the European Union considers that the Panel's findings with
respect to the available alternative measures should be upheld.
2.3.5 Japan
2.110. Japan considers that, in ascertaining the meaning of the OIE Code in its analysis under
Article 3 of the SPS Agreement, the Panel relied extensively on information from the OIE
Secretariat. Japan disagrees with India that a panel's consultation with international organizations,
when deciding matters raised under the SPS Agreement, is limited to scientific and technical
issues. The scope of consultation under Article 11.2 of the SPS Agreement is not more limited than
that under Article 13 of the DSU. Rather, Japan belie ves that the text of Article 11.2 suggests that
the provision simply regulates a panel's recourse to experts on any aspects of an SPS dispute
involving scientific or technical issues.
168 At the same time, Japan underscores that a balance must
be struck between a panel's right to seek inform ation from any individual or body, and a panel's
duty to discharge its own function and obligations under Article 11 of the DSU. In Japan's view,

167 European Union's third participant's submission, para. 29 (referring to Appellate Body Report,
Australia – Salmon, paras. 137-138).
168 Japan's third participant's submission, para. 10 (referring to Appellate Body Reports,
Argentina – Import Measures, para. 5.236; EC – Seal Products, para. 5.123; US – Anti-Dumping and

although non-WTO bodies may provide useful information in ascertaining Members' rights and
obligations under the relevant provisions of the covered agreements that refer to international
instruments developed under the auspices of such bodies, panels cannot simply defer to the views
of outside bodies, and must, instead, conduct their own rigorous assessments of the matters
before them. In this dispute, it would have been appropriate for the Panel to determine whether
the OIE Secretariat has the legal authority to provide an opinion or interpretation on the meaning
and scope of the OIE Code, and whether any answers provided to the Panel were on behalf of the
OIE membership or the OIE Secretariat. It would also have been desirable for the Panel to have
explained in greater detail its own assessment of the OIE Code.
2.111. Regarding India's view that the relevant international standards must be interpreted in
accordance with the customary rules of interpretation, Japan argues that a panel is not required to
discern the meaning of an international standard in accordance with the Vienna Convention. A
panel may, however, use such tools, among other analytical tools, including expert evidence on
the meaning of those standards. Referring to the ex plicit reference to "international standards" in
Article 3.2, as well as the definition set out in paragraph 3 of Annex A to the SPS Agreement,
Japan argues that "[a]n instrument constituting an international standard thereby acts as an
objective benchmark for assessing the consistency of a measure".
169 Although the OIE Code may
serve as a benchmark, it is merely an international standard, not a binding legal instrument itself,
such as a treaty. In addition, a panel may seek and examine evidence relevant to the meaning of
an international standard, in particular, because standards are developed outside of the WTO in
bodies with particular expertise. Japan disagrees with India's suggestion that the international
standards referred to in Article 3 and Annex A to the SPS Agreement have the status of a covered
agreement, and points out that such standards are not listed in Appendix 1 to the DSU. Japan also
disagrees with the implication of India's view that the norms of the OIE Code are binding on panels
even outside the context of Article 3 of the SP S Agreement. Any incorporation of the relevant
international standard into WTO law would be li mited to the extent necessary to interpret and
apply the incorporating provisions, in this case, Articles 3.1 and 3.2 of the SPS Agreement.
170
2.112. In its opening statement at the oral hearing, Japan indicated its view that, in the context of
the Panel's findings under Articles 2.2, 5.1, and 5.2 of the SPS Agreement, the defence raised by
India to rebut the United States' "independent" claim under Article 2.2 cannot be automatically
treated as the rebuttal to the United States' "con sequential" claim under Article 2.2. If an SPS
measure is not based on a risk assessment, it is difficult to see how it could still be justified as
being based on scientific principles and maintained with sufficient scientific evidence. Japan
submits that Article 2.2 sets out general obliga tions and does not constitute an exception to
Articles 5.1 and 5.2 of the SPS Agreement. Japan further stresses that simply referring to certain
scientific studies and other Members' practice, without showing the existence of a "rational or
objective relationship" between the SPS measure and scientific evidence, would not establish a
measure's compliance with Article 2.2.
2.113. With regard to Article 5.6 of the SPS Agreement, Japan expresses its agreement with the
Panel's approach of examining all the relevant evidence in order to ascertain a Member's ALOP.
While the choice of an ALOP is the prerogative of a WTO Member adopting the SPS measure, it is
for the panel to ascertain the ALOP and, in so doing, a panel must consider all the relevant
evidence including evidence that goes beyond th e defending Member's own characterization of its
ALOP. Furthermore, Japan asserts that the fact that the ALOP is an objective and the SPS measure
is an instrument to attain that objective does not mean that such measure cannot form part of the
relevant evidence for assessing a Member's ALOP.
2.114. Japan disagrees with India's claim that the alternative measures proposed by the
United States and examined by the Panel under Ar ticle 5.6 of the SPS Agreement lacked precision.
By arguing that Chapter 10.4 of the OIE Code is not a sufficiently precise alternative measure,
India is requiring that the complainant identify the alternative measure with too high a level of
precision. A complainant discharges its duty to make a prima facie case by identifying an

169 Japan's third participant's submission, para. 18.
170 Japan's third participant's submission, para. 27. Japan notes that, in EC – Bananas III, the panel and
the Appellate Body considered that they had "no alternative" but to examine the Lomé Convention, which had
been incorporated by reference into the Lomé Waiver agreed to by GATT contracting parties. (Japan's third
participant's submission, para. 21 (referring to Panel Reports, EC – Bananas III, para. 7.98; and Appellate
Body Report, EC – Bananas III, para. 167 ff))

alternative measure at the level of precision that allows a respondent to rebut the complainant's
claim and a panel ultimately to determine if the ch allenged measure is more trade restrictive than
necessary. Japan highlights, in this regard, that the role of less restrictive alternative measures is
to serve as a conceptual tool for analysing a meas ure's consistency with Article 5.6, and that such
measures are not ones that the defending Member must adopt. In its opening statement at the
oral hearing, Japan indicated its view that, althou gh a complainant does bear the burden of proof
under Article 5.6, a respondent cannot abuse this rule by failing to articulate clearly its ALOP.
According to Japan, the Appellate Body has emphas ized the need to avoid abuses of the rules on
burden of proof by indicating that a Member is not free to establish its ALOP with such vagueness
or equivocation as to render impossible the application of the relevant disciplines of the
SPS Agreement, including the obligations set out in Article 5.6.
2.115. With respect to India's allegations that the Panel acted inconsistently with Article 11 of the
DSU in analysing the United States' claim under Article 2.3 of the SPS Agreement, Japan disagrees
with India's position that the OIE Code and the OIE's self-reporting regime for LPNAI limited the
scope of the Panel's assessment under Article 11 of the DSU. Whatever the status of the relevant
international standards for purposes of Article 3 of the SPS Agreement, in the present case, the
Panel identified the relevant standards as contained in Chapter 10.4 of the OIE Code, and that part
of the OIE Code provides no support for India's arguments regarding self-declarations of
LPNAI-freedom. For Japan, India's self-reporting is one fact among many pieces of evidence that
the Panel had to evaluate in determining whet her India's territory was free from LPNAI, and
Chapter 1.6 of the OIE Code (on self-declaration of LPNAI-freedom) could not limit the Panel's
duty, under Article 11 of the DSU, to make an objective assessment of the claims of discrimination
under Article 2.3 of the SPS Agreement.
3 ISSUES RAISED IN THIS APPEAL
3.1. The following issues are raised in this appeal:
a. with respect to Articles 2.2, 5.1, and 5.2 of the SPS Agreement:
i. whether the Panel erred in its interpretation of Articles 2.2, 5.1, and 5.2 and, in
particular, in its understanding of the relationship between Article 2.2, on the one
hand, and Articles 5.1 and 5.2, on the other hand;
ii. whether the Panel erred in its application of Article 2.2 to India's AI measures, in
finding that those measures are inconsistent with Article 2.2 solely as a consequence
of its findings that these measures are inconsistent with Articles 5.1 and 5.2; and
iii. whether the Panel acted inconsistently with its duty to conduct an objective
assessment of the matter pursuant to Article 11 of the DSU by:
 disregarding arguments and evidence presented by India to establish that
India's AI measures are based on scientific principles and are not maintained
without sufficient scientific evidence pursuant to Article 2.2;
 ruling on a claim under Article 2.2 that was broader than the one argued by
the United States; and
 failing to consider India's argument that it was not required to conduct a risk
assessment under Articles 5.1 and 5.2 because its AI measures are consistent
with Article 2.2;
b. with respect to Article 3 of the SPS Agreement:
i. whether the Panel acted inconsistently with Article 11.2 of the SPS Agreement and
Article 13.2 of the DSU in consulting wi th the OIE regarding the meaning of the
OIE Code; and

ii. whether the Panel acted inconsistently with its duty to conduct an objective
assessment of the matter pursuant to Article 11 of the DSU in its assessment of the
meaning of the OIE Code by:
 failing to conduct its own assessment of the meaning of the OIE Code,
including by failing to do so in accordance with customary rules of treaty
interpretation;
 disregarding arguments and evidence presented by India pertaining to the
meaning of the OIE Code; and
 reaching findings regarding the meaning of the OIE Code that lack support in
the evidence on the record;
c. with respect to Article 6 of the SPS Agreement:
i. whether the Panel erred in its interpretation of the relationship between Article 6.1
and Article 6.3;
ii. whether the Panel erred in its application of Article 6.2 by not relying solely on
Sections 3 and 3A of the Livestock Act in assessing whether India recognizes the
concepts of "disease-free areas" and "areas of low disease prevalence" in respect of
AI; and
iii. whether the Panel acted inconsistently with its duty to conduct an objective
assessment of the matter pursuant to Article 11 of the DSU in its analysis of the
consistency of India's AI measures with Article 6.2 by:
 basing its finding under Article 6.2 on India's "non-implementation" of the
concept of "disease-free areas", and thereby ruling on a claim not argued by
the United States; and
 disregarding evidence presented by India to rebut the United States' claim that
India's AI measures are inconsistent with the first sentence of Article 6.2;
d. with respect to Articles 5.6 and 2.2 of the SPS Agreement:
i. whether the Panel erred in its application of Article 5.6 and, consequently, Article 2.2
to India's AI measures and, more specifically:
 whether the Panel erred in finding that the United States had identified
alternative measures that would achieve India's appropriate level of
protection; and
 whether the Panel failed to identify the alternative measures with precision;
and
ii. whether the Panel acted inconsistently with its duty to conduct an objective
assessment of the matter pursuant to Article 11 of the DSU in its analysis of the
consistency of India's AI measures with Article 5.6 by:
 ruling on a claim that was broader than the one argued by the United States;
and
 disregarding India's arguments regarding the United States' identification of
India's appropriate level of protection; and

e. with respect to Article 2.3 of the SPS Agreement:
i. whether, with respect to the issue of whether LPNAI is exotic to India, the Panel
acted inconsistently with its duty to conduct an objective assessment of the matter
pursuant to Article 11 of the DSU by:
 setting "terms of reference" for individu al experts that were beyond the scope
of the OIE Code;
 requiring India to prove that LPNAI is exotic to India; and
 delegating to the individual experts the factual determination of whether LPNAI
is exotic to India.
4 BACKGROUND AND OVERVIEW REGARDING THE MEASURES AT ISSUE, AVIAN
INFLUENZA, AND THE OIE CODE
4.1 The measures at issue
4.1. The United States challenges India's measures that prohibit the importation of various
agricultural products into India from countries reporting certain types of avian influenza (AI).
171
India maintains its AI measures through, inter alia, the Live-Stock Importation Act, as amended172
(Livestock Act), and Statutory Order 1663(E)173 (S.O. 1663(E)).174
4.2. The Livestock Act was enacted "to make better provision for the regulation of the importation
of live-stock and live-stock products which is liable to be affected by infectious or contagious
disorders".175 The Act includes in its definition of "infectious or contagious disorders" any disease
or disorder that may be specified by the Indian Ce ntral Government by notification in the Official
Gazette.176 "Live-stock" includes any animal that may be specified by the Central Government by
notification in the Official Gazette. 177 "Live-stock products" consist of "meat and meat products of
all kinds including fresh, chilled and frozen meat, tissue, organs of poultry, pig, sheep, goat; egg
and egg powder" and "any other animal product which may be specified by the Central
Government by notification in the Official Gazette".
178
4.3. Section 3 of the Livestock Act is entitled "Power to regulate importation of live-stock".
Section 3(1) provides:
The Central Government may, by notification in the Official Gazette, regulate, restrict
or prohibit in such a manner and to such extent as it may think fit, [the import] into
[India] or any specified place therein, of any live-stock which may be liable to be
affected by infectious or contagious disord ers, and of any fodder, dung, stable-litter,
clothing harness or fittings appertaining to live-stock or that may have been in contact
therewith.
179

171 Panel Report, para. 2.22. Additional information regarding India's AI and other measures can be
found in sections 2.3 and 2.4 of the Panel Report.
172 The Live-Stock Importation Act, 1898 (No. 9 of 1898), published on 12 August 1898 (Panel Exhibit
US-114), as amended by The Live-Stock Importation (Amendment) Act, 2001 (No. 28 of 2001) (19 July 2001),
published in The Gazette of India on 29 August 2001, No. 35, Part II, Section 1, pp. 1-2 (Panel Exhibit
US-115).
173 Statutory Order 1663(E), issued by India's Department of Animal Husbandry, Dairying and Fisheries
(DAHD) on 19 July 2011 pursuant to the Livestock Act and published in The Gazette of India on 20 July 2011,
No. 1390, Part II, Section 3(ii), pp. 1-2 (Panel Exhibit US-80).
174 Panel Report, para. 2.22.
175 Livestock Act, preamble. See also Panel Report, para. 2.23.
176 Livestock Act, Section 2(a). See also Panel Report, para. 2.24.
177 Livestock Act, Section 2(b). See also Panel Report, para. 2.24.
178 Livestock Act, Section 3(d). See also Panel Report, para. 2.26.

4.4. In addition, Section 3A of the Livestock Act provides:
The Central Government may, by notification in the Official Gazette, regulate, restrict
or prohibit in such manner and to such extent as it may think fit, the import into the
territories to which this Act extends, of any live-stock product, which may be liable to
affect human or animal health.
180
4.5. India's Department of Animal Husbandry, Dairying and Fisheries (DAHD) is tasked with
regulating the importation of livestock and livestock products under Sections 3(1) and 3A of the
Livestock Act. A notification under Section 3(1) or Section 3A of the Livestock Act operates as a
customs notification under Indian law, and constitutes delegated legislation. Such notifications are
assigned a statutory order (S.O.) number and published in the Official Gazette of India.
181
4.6. On 19 July 2011, the DAHD issued S.O. 1663(E) in the exercise of powers conferred by the
Livestock Act.182 The preamble and Section 1 of S.O. 1663(E) read183:
In exercise of the powers conferred by sub-section (1) of Section 3 and Section 3A of
the Livestock Importation Act, … the Central Government hereby prohibits, with effect
from the date of publication of this notification, in the Official Gazette, namely:
(1)(i) the import into India from all countries, in view of Notifiable Avian Influenza
(both Highly Pathogenic Notifiable Avian Influenza and Low Pathogenic
Notifiable Avian Influenza), of wild bi rds except those reared and bred in
captivity;
 (ii) the import into India from the countries reporting Notifiable Avian Influenza
(both Highly Pathogenic Notifiable Avian Influenza and Low Pathogenic
Notifiable Avian Influenza), the follow ing livestock and livestock products,
namely:
(a) domestic and wild birds (including poultry and captive birds);
(b) day-old chicks, ducks, turkeys and other newly hatched Avian species;
(c) un-processed meat and meat products from Avian species, including
domesticated, wild birds and poultry;
(d) hatching eggs;
(e) eggs and egg products (except Specific Pathogen Free eggs);
(f) un-processed feathers;
(g) live pigs;
(h) pathological material and biological products from birds;
(i) products of animal origin (from birds) intended for use in animal feeding or
for agricultural or industrial use;
(j) semen of domestic and wild birds including poultry.
Provided that the Central Government may allow the import of processed poultry meat
after satisfactory conformity assessment of the exporting country.

181 Panel Report, para. 2.28.
182 Panel Report, para. 2.30. India notified S.O. 1663(E) to the WTO SPS Committee on 11 October
2011 in document G/SPS/N/IND/73.
183 See also Panel Report, paras. 2.31-2.32.

4.7. S.O. 1663(E) further stipulates that its prohibitions are not applicable to the import of
"processed pet food" or "pathological materials and biological products for use in research
purposes exclusively used by the National Referral Laboratories."
184
4.8. Thus, India's AI measures at issue in this dispute consist of prohibitions on the importation of
various agricultural products into India from countries reporting notifiable avian influenza (NAI), as
maintained through, inter alia, the Livestock Act and S.O. 1663(E).185
4.2 Avian influenza (AI)
4.9. In the introduction to this Report, we have identified certain features of AI that were
described by the Panel.186 We have also noted that AI is classified into one of two groups according
to its ability to cause disease, or "pathogenicity", in birds: (i) highly pathogenic avian influenza
(HPAI); and (ii) low pathogenicity avian influenza (LPAI).
187 HPAI is an extremely infectious,
systemic viral disease of poultry that causes high mortality and various types of lesions in multiple
visceral organs, the brain, and skin. 188 By contrast, poultry infected with LPAI may exhibit no
s y m p t o m s o f t h e d i s e a s e , o r o n l y v e r y m i l d symptoms, such as ruffled feathers, reduced egg
production, or mild effects on the respiratory system.189
4.10. AI viruses are transmitted among birds through direct contact between infected and
susceptible birds or indirect contact through aerosol droplets or exposure to virus-contaminated
materials, trays, or the surface of eggs.190 Wild birds, particularly wild aquatic birds such as ducks,
geese, and gulls, are the principal reservoirs for LPAI viruses. 191 Moreover, wild birds are the
original source of the H5 and H7 LPAI viruses that, when circulating in poultry, give rise to HPAI
v i r u s e s . I n g e n e r a l , t h e l o n g e r t h a t a n H 5 o r H 7 L P A I v i r u s i s a l l o w e d t o c i r c u l a t e i n p o u l t r y ,
particularly in areas of high poultry density, the greater the chances that an HPAI virus will
emerge.
192 Wild birds thus play a significant role in introducing AI viruses in domestic poultry.
4.11. Once AI is established or adapted in poultry, however, wild birds play a very limited role in
secondary dissemination.193 Instead, the spreading or wider distribution of AI takes place within
flocks or sizeable numbers of poultry and is greatly influenced by commercial production and
marketing practices.
194 Humans may facilitate transmission of AI viruses through the movement of
dead infected birds and the use of contaminated equipment. With respect to HPAI viruses, the high
virus levels in tissues mean that consumption of infected carcasses by birds can also be a route for
transmission.
195
4.12. While AI is primarily a disease affecting birds, some AI viruses are zoonotic, meaning that
they can infect humans and cause disease. 196 Transmission between humans appears to have
occurred only rarely and, in nearly all reported cases of human infection with AI viruses, there has

185 Panel Report, para. 2.22.
186 See supra, paras. 1.3-1.4. We have noted that AI has a variety of subtypes that are classified
according to the two components that make up the virus – haemagglutinin (H) and neuraminidase (N).
Consequently, the various subtypes of AI that have been identified are labelled as some form of the "HxNy"
combination. The Panel explained that 16 H and nine N subtypes of AI have been identified to date and that
new influenza viruses are constantly emerging as a result of genetic mutation and reassortment. (Panel Report,
para. 2.7) Additional information regarding AI can be found in section 2.2 of the Panel Report.
187 Panel Report, para. 2.8.
188 Panel Report, para. 2.9.
189 Panel Report, para. 2.11.
190 Panel Report, para. 2.16. Faeces contain large amounts of the virus, and faecal-oral transmission is
the predominant means of spread in wild bird reservoirs.
191 Panel Report, para. 2.12. LPAI viruses are endemic to more than 100 different wild bird species of
more than 25 different families.
192 Panel Report, para. 2.17.
193 Panel Report, para. 2.17.
194 Panel Report, para. 2.18. The Asian lineage of the H5N1 HPAI virus constitutes an exception, since it
is generally accepted that this virus may be carried by wild birds and transmitted to poultry directly from such
birds without mutation from LPAI.
195 Panel Report, para. 2.16.
196 Panel Report, paras. 2.19-2.20. AI has also been known to infect cats and related animals such as
leopards, tigers, ferrets, stone martens, dogs, and pigs, likely through eating raw infected birds.

been a close association with infected birds or infective carcasses. 197 Generally, serious
complications or fatal cases in humans have been reported in cases of infection with certain strains
of HPAI viruses, notably H5N1.
198 Other AI subtypes including H7N7, H7N9, and H9N2 have also
infected humans; some of these cases have resulted in fatalities, but most infections have been
mild or even subclinical. 199 Although there have been outbreaks of LPAI (H7N9) resulting in
fatalities and illness to humans 200, illness from infection with LPAI viruses has generally been
clinically mild and has ranged from mild signs and symptoms (e.g. conjunctivitis) to more acute
systemic illness (e.g. fever and upper respiratory tract disease) with full recovery.201
4.13. Between 2004 and January 2014, the United States did not notify the World Organization
for Animal Health (OIE) of any outbreaks of HPAI, but did notify occurrences of LPAI in poultry. 202
Over a ten-year period from the end of 2003 to March 2013, India notified to the OIE 95 outbreaks
of HPAI (subtype H5N1) in poultry. 203 As of October 2014, India had never notified an occurrence
of LPAI in poultry to the OIE.204
4.3 The OIE Code
4.14. The OIE is the international organization responsible for establishing health standards for
international trade in animals and animal products, including standards relating to AI. 205 The
preamble of the SPS Agreement refers explicitly to the OIE, stating that it is desirable "to further
the use of harmonized sanitary and phytosanitary measures between Members, on the basis of
international standards, guidelines and recommendations developed by the relevant international
organizations, including … the [OIE]". Annex A(3)(b) to the SPS Agreement recognizes the OIE as
the relevant standard-setting body for SPS measur es relating to animal health and zoonoses. We
further note that a cooperation agreement was developed between the WTO and the OIE
in 1998
206, and that the OIE was granted permanent observer status by the SPS Committee at its
first meeting of March 1995. 207 Representatives of the OIE are invited to attend meetings of the
SPS Committee and to participate, without voting rights, in deliberations on items on the agenda
in which the OIE has an interest, with the exception of meetings limited to WTO Members. 208
Similarly, representatives of the WTO are invited to attend the annual general sessions of the
International Committee of the OIE in which the WTO has an interest.209
4.15. Members of the OIE annually adopt the OIE Te rrestrial Animal Health Code (OIE Code), the
aim of which is to set international standards for the improvement of terrestrial animal health and
welfare and veterinary public health worldwide, including through standards for safe international
trade in terrestrial animals, including mammals, birds, and bees, and their products.
210 The
OIE Code contains recommendations that are based on the most up-to-date scientific information
and available techniques, and that are designed to prevent specific diseases from being introduced
into the importing country, taking into account the nature of the commodity and the animal health

197 Panel Report, para. 2.20.
198 One of the most well-known examples of AI transmission to humans is the H5N1 virus, which has
caused human disease and deaths since 1997, fuelling concerns that the H5N1 virus could potentially cause a
global influenza pandemic in humans. (Panel Report, para. 2.21)
199 Panel Report, para. 2.21.
200 Panel Report, para. 2.20.
201 Panel Report, para. 2.20.
202 Panel Report, paras. 2.45-2.46.
203 Panel Report, para. 2.47.
204 Panel Report, para. 2.48.
205 Panel Report, para. 2.50. Additional information regarding the OIE and the OIE Code can be found in
sections 2.4 and 7.4 of the Panel Report.
206 Agreement between the World Trade Organization and the Office International des Epizooties, signed
on 4 May 1998, document WT/L/272. The WTO and the OIE agreed that: "in order to facilitate the
accomplishment of their respective missions as set out in the International Agreement for the creation of the
OIE, and the texts relating to the WTO, notably … the SPS Agreement, to act in collaboration and to consult
each other on questions of mutual interest, in particular those concerning the sanitary aspect of international
trade in animals and products of animal origin and zoonoses."
207 WTO SPS Committee, Relationship with Codex, IPPC and OIE, 15 May 2007, document
208 Agreement between the WTO and the OIE, WT/L/272, para. 2.
209 Agreement between the WTO and the OIE, WT/L/272, para. 3.
210 Panel Report, paras. 2.52-2.53 (referring to OIE Code, Foreword).

status of the exporting country. 211 The recommendations in the OIE Code, when correctly applied,
provide for safe international trade in animals and animal products while avoiding unjustified
sanitary barriers to trade.
212 For purposes of this Report, unless otherwise specified, all references
are to the 21st edition of the OIE Code, which was adopted in May 2012.213
4.16. The OIE Code contains numerous substantive provisions and recommendations grouped into
two volumes. 214 Volume I is comprised of general provisions that concern horizontal standards
applicable to a wide range of species, production sectors, and diseases. 215 Volume II contains
recommendations applicable to OIE-listed diseases and other diseases of importance to
international trade. This volume sets out the standards that apply in respect of specific diseases,
including recommendations regarding disease surveillance and zoning and compartmentalization.
Section 10 of Volume II is entitled "Aves" and deals with diseases of avian species. Chapter 10.4 is
specifically devoted to "Infection with viruses of notifiable avian influenza".
216
4.17. Chapter 10.4 of the OIE Code requires OIE members to notify the OIE of any occurrence of
HPAI in birds and the occurrence of certain types of LPAI in poultry in their territories. 217 The term
"poultry" is defined in the OIE Code as consisting of all domesticated birds, including backyard
poultry, used for the production of meat or eggs for consumption or other commercial products. 218
Thus, although the notification obligation in respect of certain types of LPAI is confined to poultry,
OIE members must notify the occurrence of HPAI in all birds, including poultry, wild birds, and pet
birds.219
4.18. Apart from these general notification obligations, Chapter 10.4 of the OIE Code contains
various recommendations that apply on the basis of the type of poultry product concerned, as well
as the disease status of the place of origin. 220 The disease status is determined on the basis of

211 Panel Report, paras. 2.54 and 2.59.
212 Panel Report, paras. 2.53 and 7.250.
213 The parties agreed, and the Panel found, that the 21st edition of the OIE Code (2012) was the
relevant international standard for purposes of this dispute since it was the edition that was in force at the time
the Panel was established. (Panel Report, paras. 7.206 and 7.213)
214 Panel Report, para. 2.57. The OIE Code also contains a Foreword, User's Guide, and Glossary.
215 Panel Report, para. 2.58. Volume I is organized into seven sections, and contains rules pertaining to
animal disease diagnosis, surveillance, and notification (Section 1); disease prevention and control (Section 4);
and trade measures, import and export procedures, and veterinary certification (Section 5).
216 Panel Report, para. 2.59.
217 Panel Report, para. 2.13.
218 Panel Report, fn 519 to para. 7.230 (referring to the Glossary of the OIE Code). The definition also
includes domesticated birds used for restocking supplies of game, or for breeding these categories of birds, as
well as fighting cocks used for any purpose. Birds that are kept in captivity for any reason other than these
reasons, including those that are kept for shows, races, exhibitions, competitions, or for breeding or selling
these categories of birds, as well as pet birds, are not considered to be poultry.
219 Panel Report, para. 7.237 (referring to OIE's response to Panel question No. 10(a)). See also
OIE Code, Articles 10.4.1.1 and 10.4.27.
220 Panel Report, para. 7.229. For example, the recommendations set out in Chapter 10.4 of the
OIE Code for eggs and egg products, as specified in paragraph (1)(ii)(e) of S.O. 1663(E), are as follows:
Article 10.4.13.
Recommendations for importation from a NAI free country, zone or compartment
For eggs for human consumption
Veterinary Authorities should require the presentation of an international veterinary certificate attesting
that: 1) the eggs were produced and packed in a NAI free country, zone or compartment; 2) the eggs
are transported in new or appropriately sanitized packaging materials.
Article 10.4.14.
Recommendations for importation from a HPNAI free country, zone or compartment
For eggs for human consumption
Veterinary Authorities should require the presentation of an international veterinary certificate attesting
that: 1) the eggs were produced and packed in a HPNAI free country, zone or compartment; 2) the
eggs have had their surfaces sanitized (in accordance with Chapter 1.1.); 3) the eggs are transported in
new or appropriately sanitized packaging materials.
Article 10.4.15.
Recommendations for importation of egg products of poultry
Regardless of the NAI status of the country of origin, Veterinary Authorities should require the
presentation of an international veterinary certificate attesting that:

NAI, which is defined as an infection of poultry that can be classified as either highly pathogenic
notifiable avian influenza (HPNAI) 221 or low pathogenicity notifiable avian influenza (LPNAI). 222
With regard to disease status, the applicability of a specific recommendation may depend on
whether the importation takes place from a territory that is NAI free or HPNAI free. By definition, a
territory that is HPNAI free might not be LPNAI free.
223 For six product categories, Chapter 10.4
contains recommendations applicable to importation from an NAI-free country, zone, or
compartment. For five product categories, Chapter 10.4 contains recommendations regarding
importation from an HPNAI-free country, zone, or compartment.
224 In addition, for ten product
categories, Chapter 10.4 indicates that the spec ific recommendations apply regardless of the NAI
status of the country of origin.225
4.19. Chapter 10.4 of the OIE Code provides that disease status can be determined with respect
to a country, zone 226, or compartment 227 based on certain criteria. 228 Specifically, Articles 10.4.3
and 10.4.4 provide the conditions that must be met for a country, zone, or compartment to be
considered either "NAI free" or "HPNAI free". 229 Article 10.4.3 provides that a country, zone, or
compartment may be considered NAI free when it is shown that neither HPNAI nor LPNAI infection
in poultry has been present for the past 12 months, based on a surveillance system in accordance
with the OIE Code.
230 Article 10.4.4 prescribes two scenarios for establishing that a country, zone,
or compartment is HPNAI free: (i) when it has been shown that HPNAI infection in poultry has not
been present for the past 12 months, although its LPNAI status is unknown; or (ii) when the
country, zone, or compartment does not meet the criteria for freedom from NAI but no NAI virus
detected has been identified as an HPNAI virus.
231 Together with the text of the product-specific
recommendations in Chapter 10.4, these general provisions indicate that Chapter 10.4 allows for

1) the commodity is derived from eggs which meet the requirements of Articles 10.4.13. or 10.4.14.;
or 2) the commodity has been processed to ensure the destruction of NAI virus in accordance with
Article 10.4.25.; AND 3) the necessary precautions were taken to avoid contact of the commodity with
any source of NAI virus.
(See Panel Report, para. 7.230)
221 HPNAI viruses consist of any AI virus that meets certain pathogenicity or mortality levels, or any H5
or H7 subtype that satisfies prescribed sequencing protocols. Specifically, the OIE Code defines HPNAI as
follows:
HPNAI viruses have an IVPI in six-week-old chickens greater than 1.2 or, as an alternative,
cause at least 75 percent mortality in four-to eight-week-old chickens infected intravenously.
H5 and H7 viruses which do not have an IVPI of greater than 1.2 or cause less than 75 percent
mortality in an intravenous lethality test should be sequenced to determine whether multiple
basic amino acids are present at the cleavage site of the haemagglutinin molecule (HA0); if the
amino acid motif is similar to that observed for other HPNAI isolates, the isolate being tested
should be considered as HPNAI.
(Panel Report, para. 2.14 (quoting OIE Code, Article 10.4.1.2(a))
222 LPNAI viruses consist only of H5 or H7 subtypes that are not HPNAI viruses. (Panel Report,
para. 2.15 (referring to OIE Code, Article 10.4.1.2(b))
223 Panel Report, para. 7.252.
224 Panel Report, paras. 7.230 and 7.252. The recommendations applicable to the importation of
products from an NAI-free country, zone, or compartment are provided in Articles 10.4.5, 10.4.7, 10.4.10,
10.4.13, 10.4.16, and 10.4.19, whereas those applicable to the importation of products from an HPNAI-free
country, zone, or compartment are set forth in Articles 10.4.8, 10.4.11, 10.4.14, 10.4.17, and 10.4.19.
Article 10.4.19 contains the same recommendations for importation, whether from an NAI-free or HPNAI-free
country, zone, or compartment. (Ibid., para. 7.250)
225 Panel Report, para. 7.229. The recommendations applicable to the importation of products regardless
of the NAI status of the country of origin are set forth in Articles 10.4.6, 10.4.9, 10.4.12, 10.4.15, 10.4.18,
10.4.20, 10.4.21, 10.4.22, 10.4.23, and 10.4.24. (Ibid., para. 7.252)
226 The Panel noted the OIE's clarification that, for purposes of the OIE Code, "zoning" and
"regionalisation" have the same meaning. The Glossary of the OIE Code defines the term "zone" or "region" as
"a clearly defined part of a territory containing an animal subpopulation with a distinct health status with
respect to a specific disease for which required surveillance, control and biosecurity measures have been
applied for the purpose of international trade". (Panel Report, para. 7.255 and fn 563 thereto)
227 The Glossary of the OIE Code defines the term "compartment" as "an animal subpopulation
contained in one or more establishments under a common biosecurity management system with a distinct
health status with respect to a specific disease or specific diseases for which required surveillance, control and
biosecurity measures have been applied for the purpose of international trade". (Panel Report, fn 564 to
para. 7.255)
228 Panel Report, para. 7.256.
229 Panel Report, para. 7.257.
230 Panel Report, para. 7.257. A surveillance system that meets the requirements of the OIE Code is
prescribed in Articles 10.4.27 through 10.4.33.
231 Panel Report, para. 7.257.

importation from NAI-free or HPNAI-free countries, as well as from NAI-free or HPNAI-free zones
and compartments when the relevant criteria are met.232
4.20. OIE members may make self-declarations as to their disease status, which may be
published by the OIE; however, such publicat ion does not imply endorsement of the claim. 233 In
addition, an OIE member declaring freedom from NAI or HPNAI for a country, zone, or
compartment must provide evidence of an effective surveillance programme. 234 Articles 10.4.27
through 10.4.33 of the OIE Code define the principles of, and provide guidance on, surveillance for
NAI for members seeking to determine their NAI status for a particular country, zone, or
compartment. These AI-specific provisions complement the general provisions of the OIE relating
to animal health surveillance. With respect to a few specific diseases, OIE members may request
official recognition of disease-free status by the OIE. However, AI is not one of these diseases.
235
4.21. Finally, we note that the product-specific recommendations set out in Chapter 10.4 of the
OIE Code apply to eight of the ten product categories listed in S.O. 1663(E), as set out in the table
below.
236
Product categories in S.O. 1663(E) Corresponding OIE Code recommendations
Paragraph (1)(ii)(a): domestic and wild birds
(including poultry and captive birds)
Articles 10.4.5 and 10.4.6
Paragraph (1)(ii)(b): day old chicks, ducks, turkey,
and other newly hatched avian species
Articles 10.4.7 and 10.4.8
Paragraph (1)(ii)(c): un-processed meat and meat
products from Avian species, including
domesticated, wild birds and poultry
Articles 10.4.19 and 10.4.20
Paragraph (1)(ii)(d): hatching eggs Articles 10.4.10, 10.4.11, and 10.4.12
Paragraph (1)(ii)(e): eggs and egg products (except
Specific Pathogen Free eggs)
Articles 10.4.13, 10.4.14, and 10.4.15
Paragraph (1)(ii)(f): un-processed feathers; Articles 10.4.22 and 10.4.23
Paragraph (1)(ii)(i): products of animal origin (from
birds) intended for use in animal feeding or for
agricultural or industrial use
Article 10.4.21
Paragraph (1)(ii)(j): semen of domestic and wild
birds including poultry
Articles 10.4.17 and 10.4.18
Source: Panel Report, paras. 7.230 and 7.529.
4.22. The two other product categories identified in S.O. 1663(E) are not covered by Chapter 10.4
of the OIE Code – "live pigs" (paragraph (1)(ii)(g)) 237, and "pathological material and biological
products from birds" (paragraph (1)(ii)(h)).238
5 ANALYSIS OF THE APPELLATE BODY
5.1 Articles 2.2, 5.1, and 5.2 of the SPS Agreement
5.1. India requests us to reverse the Panel's finding that India's AI measures are inconsistent with
Article 2.2 of the SPS Agreement because they are not based on scientific principles and are

232 Panel Report, paras. 7.259 and 7.263.
233 OIE Code, Article 1.6.1.
234 OIE Code, Article 10.4.30.1.
235 OIE Code, Article 1.6.1.
236 Panel Report, para. 7.220.
237 Chapter 10.4 contains no product-specific recommendations for live pigs because, "even if they can
be infected, they have been found not to play a significant epidemiological role in avian influenza". (Panel
Report, para. 7.221 (quoting OIE's response to Panel question No. 6))
238 Chapter 10.4 contains no product-specific recommendations for pathological material and biological
products from birds. (Panel Report, para. 7.222 (referring to OIE's response to Panel question No. 5), and
paras. 7.225-7.227) The Panel also found that it did not have sufficient evidence to determine whether India's
AI measures in respect of these products are based on recommendations in another chapter of the OIE Code.

maintained without sufficient scientific evidence. 239 India also requests reversal of the Panel's
finding that India's AI measures are inconsistent with Articles 5.1 and 5.2 of the SPS Agreement
because they are not based on a risk assessment, appropriate to the circumstances, taking into
account risk assessment techniques developed by the relevant international organizations and the
factors set forth in Article 5.2.
240 In the event that we reverse the Panel's finding under Article 2.2
of the SPS Agreement, India requests us to complete the legal analysis and find that India's AI
measures are consistent with that provision.
241
5.2. In its appeal, India contends that the Pane l erred in its interpretation and application of
Article 2.2 of the SPS Agreement in finding India's AI measures to be inconsistent with that
provision solely as a consequence of its finding that they are inconsistent with Articles 5.1 and 5.2.
India points out that, before the Panel, the United States claimed that India's AI measures violate
Article 2.2: (i) as a consequence of the fact that they are inconsistent with Articles 5.1 and 5.2; as
well as (ii) independently, because they are not based on scientific principles and are maintained
without sufficient scientific evidence. The Panel, however, reached its finding under Article 2.2
solely on the basis of the former of these ar guments, and ignored that the obligation under
Article 2.2 can, in principle, be independently fulf illed without recourse to Articles 5.1 and 5.2. For
India, the Panel should, therefore, have begun its analysis under Article 2.2. India also alleges that
the Panel failed to make an objective assessment of the matter, as required by Article 11 of the
DSU, by: (i) disregarding the ar guments and evidence presented by India to establish that its
AI measures are consistent with Article 2.2 beca use they are based on scientific principles and
sufficient scientific evidence; (ii) ruling on a claim that was broader than the one put forward by
the United States in its written submissions; and (iii) failing to consider India's argument that,
because its AI measures are based on scientific principles and are not maintained without sufficient
scientific evidence, and are thus consistent with Article 2.2, India was not required to conduct a
separate risk assessment under Articles 5.1 and 5.2.
242
5.3. The United States requests us to uphold the Panel's findings under Articles 2.2, 5.1, and 5.2
of the SPS Agreement. For the United States, the Panel correctly found that India's AI measures
are inconsistent with Articles 5.1 and 5.2, as Indi a failed to base them on a risk assessment. The
Panel also correctly found that, as a result of this failure, India's measures can be presumed to
breach Article 2.2.
243 The United States stresses that there is no support for India's assertion that
compliance with Article 2.2 obviates the need for a Member to comply with Articles 5.1 and 5.2.
Rather, Article 2.2 is a general obligation that encompasses the obligations in Articles 5.1
and 5.2.244 The Panel's assessment under Article 2.2 was limited to assessing the United States'
"consequential" claim based on the violation of Articles 5.1 and 5.2, and did not address the
United States' separate, "independent" claim under Article 2.2. 245 In any event, there may be
multiple bases for breaching Article 2.2. The fact that the United States contended that Article 2.2
had been violated, not only consequentially, but also for another independent reason, cannot
change the fact that India's measures are inconsistent with Articles 5.1 and 5.2 and that, as a
consequence, India has breached Article 2.2. For the United States, therefore, the Panel's analysis
under Article 2.2 rightly focused on the question of whether India's AI measures are based on a
"risk assessment".
246 India's assertion that an SPS measure found to be consistent with Article 2.2
cannot violate Articles 5.1 and 5.2 cannot be reconc iled with the obligation in those provisions "to
base an SPS measure on a risk assessment – that is, to ensure [that] the measure is rationally
related to the scientific evidence underlying the assessment of risks."
247 Additionally, the
United States also submits that India has failed to establish that the Panel acted inconsistently
with Article 11 of the DSU in its analysis and findings with respect to Articles 2.2, 5.1, and 5.2.
5.4. We begin by recalling the Panel's findings under Articles 2.2, 5.1, and 5.2 of the
SPS Agreement. Next, we consider the relationship between Article 2.2, on the one hand, and

240 India's appellant's submission, para. 63 (referring to Panel Report, paras. 7.318-7.319).
241 India's appellant's submission, paras. 64-85.
242 India's appellant's submission, para. 14 (referring to Panel Report, paras. 7.309-7.319
and 7.331-7.332).
243 United States' appellee's submission, para. 44.
244 United States' appellee's submission, para. 37.
245 United States' appellee's submission, paras. 42 and 59.
246 United States' appellee's submission, paras. 48-50.
247 United States' appellee's submission, para. 35.

Articles 5.1 and 5.2, on the other hand. Subsequently, we address each of India's claims of error
on appeal and its request to complete the legal analysis.
5.1.1 The Panel's findings
5.5. Before the Panel, the United States claimed that India's AI measures are inconsistent with
Articles 5.1 and 5.2 of the SPS Agreement because India failed to undertake a risk assessment, as
required by these provisions. The United States further claimed that India's failure to conduct a
risk assessment also resulted in a breach of Article 2.2 of the SPS Agreement.248
5.6. Before addressing the United States' claims, the Panel made a number of preliminary
observations. First, the Panel rejected India's contention that the United States' claims under
Articles 5.1, 5.2, and 2.2 of the SPS Agreement pertained only to fresh poultry meat and eggs.
Recalling its Preliminary Ruling
249, the Panel observed that the ten product categories listed in
S.O. 1663(E) fall within the scope of the dispute. 250 Second, referring to its earlier findings that
India's AI measures are not based on, and do no t conform to, the OIE Code, the Panel observed
that India cannot rely on the alleged conformity of its AI measures to the OIE Code in order to
justify a presumption of consistency of its measures with Articles 5.1, 5.2, and 2.2.251
5.7. Third, in deciding the order in which it would analyse the United States' claims under the
three provisions at issue, the Panel considered the relationship between Article 2.2, on the one
hand, and Articles 5.1 and 5.2, on the other hand. The Panel noted that Articles 2.2, 5.1, and 5.2
all deal with the scientific foundation of SPS measures and are "intimately related". 252 The Panel
recalled the Appellate Body's observations that Article 5.1 constitutes a "specific application" of the
basic obligations contained in Article 2.2; that Article 2.2 informs Article 5.1 because the elements
that define the basic obligation set out in Article 2.2 impart meaning to Article 5.1; and, finally,
that Articles 2.2 and 5.1 should "constantly be read together". 253 The Panel observed that the
relationship between these provisions had led past panels and the Appellate Body to conclude that,
when an SPS measure is not based on a risk assessm ent, in accordance with Articles 5.1 and 5.2,
the measure can be presumed, more generally, not to be based on scientific principles or to be
maintained without sufficient scientific evidence.
254 The Panel considered this to mean that, in
practical terms, a violation of Articles 5.1 and 5.2 entails a violation of the more general
Article 2.2. The Panel, however, noted that the opposite is not always true, given the broader
scope of Article 2.2, and that not all instances of violation of Article 2.2 entail a violation of
Articles 5.1 and 5.2.
255 For these reasons, the Panel stated that it would first examine the
United States' claims under Articles 5.1 and 5.2, before proceeding to the "broader claim" under
Article 2.2.256
5.8. In assessing the United States' claims under Articles 5.1 and 5.2, the Panel adopted the
two-step approach of the panel in US – Poultry (China) and considered: (i) whether India has a
risk assessment, appropriate to the circumstances, taking into account risk assessment techniques
developed by the relevant international organizations and the elements listed in Article 5.2; and
(ii) if so, whether India's AI measures are based on that risk assessment.257
5.9. Addressing the first of these two questions, the Panel noted that India had not identified any
risk assessment on which its AI measures were based, but rather relied on its defence that,
because its measures conform to the OIE Code, the absence of a risk assessment was "of no

248 Panel Report, para. 7.276.
249 The preliminary ruling by the Panel of 22 May 2013 was circulated as document WT/DS430/5 on
28 June 2013 and forms an integral part of the Panel Report. (Panel Report, paras. 1.16, 7.2, and 7.4)
250 Panel Report, para. 7.278 (referring to Preliminary Ruling, paras. 3.27-3.30, 3.37, 3.92-3.93,
and 3.140).
251 Panel Report, para. 7.279.
252 Panel Report, para. 7.281.
253 Panel Report, para. 7.281 (quoting Appellate Body Reports, EC – Hormones, para. 180; and
Australia – Apples, para. 209).
254 Panel Report, para. 7.282 (quoting Panel Report, Australia – Salmon, para. 8.52; and Appellate Body
Report, Australia – Salmon, para. 137).
255 Panel Report, para. 7.282.
256 Panel Report, para. 7.283.
257 Panel Report, para. 7.307 (referring to Panel Report, US – Poultry (China), para. 7.173).

consequence"258 because it was "not required to conduct a risk assessment for measures which
conform to the international standards". 259 The Panel observed that India had referred to a risk
assessment undertaken by Australia, but it had not asserted that its AI measures are "based on"
that assessment. The Panel then considered whethe r a document identified by the United States
that India had provided to the SPS Committee in 2010
260 (Summary Document) constituted a risk
assessment within the meaning of Article 5.1. Given that India did not contend that either of these
documents served as its risk assessment, and considering that the Summary Document does not
meet the definition of a risk assessment set out in Annex A, paragraph 4, to the SPS Agreement,
the Panel concluded that India did not have a ri sk assessment within the meaning of Annex A,
paragraph 4, and as required by Article 5.1. 261 In the absence of a risk assessment, the Panel
concluded that India's AI measures are inconsistent with Articles 5.1 and 5.2 of the
SPS Agreement.262
5.10. Turning to the United States' claim under Article 2.2, the Panel recalled its understanding of
the relationship between this provision and Articles 5.1 and 5.2 – i.e. where an SPS measure is not
based on a risk assessment, as required by Articles 5.1 and 5.2, the measure is presumed not to
be based on scientific principles and to be maintained without sufficient scientific evidence, in
contravention of Article 2.2.
263 Referring to its finding that India's AI measures are not based on a
risk assessment and that they are therefore inco nsistent with Articles 5.1 and 5.2, the Panel
further found that India's AI measures are inconsistent with Article 2.2 because they are not based
on scientific principles and are maintained without sufficient scientific evidence.
264
5.1.2 The relationship between Article 2.2, on the one hand, and Articles 5.1 and 5.2, on
the other hand
5.11. India's appeal of the Panel's findings under Articles 2.2, 5.1, and 5.2 of the SPS Agreement
focuses on the relationship between Article 2.2, on the one hand, and Articles 5.1 and 5.2, on the
other hand. Before addressing India's claims and arguments, we consider the relationship between
these provisions, in the light of the customary rules of interpretation of public international law and
relevant WTO jurisprudence.
5.12. Beginning with the general structure and logic of the SPS Agreement, we note that Article 2
sets out basic rights and obligations for WTO Members; several paragraphs of Article 5 elaborate
upon many of the basic obligations set out in Article 2. The Appellate Body, in considering the
relationships that exist between the basic obligations in Article 2 and several paragraphs of
Article 5, has consistently emphasized the close link that exists not only between Article 2.2 and
Articles 5.1 and 5.2
265, but also between Articles 2.2 and 5.6 266, and between Articles 2.3
and 5.5.267 With respect to each of these sets of obligations, the Appellate Body has acknowledged
that the relevant text of Article 2 serves as context for understanding the corresponding specific
obligations in Article 5, and vice versa. 268 Given that the provisions of Article 5 set out "more
specific elaborations" of the "basic" rights and obligations in Article 2 269, we consider that the
structure and logic of the SPS Agreement, as under stood in the light of the relationship between
the various provisions of Articles 5 and 2, is su ch that the preferred means for complying with the

258 Panel Report, para. 7.309 (quoting India's opening statement at the first Panel meeting, para. 4; and
first written submission to the Panel, para. 185).
259 Panel Report, para. 7.312 (quoting India's responses to Panel question Nos. 31 and 59).
260 Panel Report, para. 7.288 (referring to Panel Exhibit US-110, entitled "India's Risk Assessment on
Avian Influenza for imposing ban on import of poultry and poultry products from Avian Influenza positive
countries").
261 Panel Report, paras. 7.316-7.317.
262 Panel Report, paras. 7.318-7.319 and 7.333.
263 Panel Report, para. 7.331 (referring to, inter alia, Appellate Body Report, Australia – Salmon,
para. 138).
264 Panel Report, paras. 7.332 and 7.334.
265 Appellate Body Reports, EC – Hormones, para. 180; US/Canada – Continued Suspension, para. 674
(noting that the requirements in Article 2.2 are "made operative in other provisions of the SPS Agreement,
including Article 5.1").
266 Appellate Body Report, Australia – Apples, para. 339 (quoting Appellate Body Report,
EC – Hormones, para. 180).
267 Appellate Body Report, EC – Hormones, para. 212 (noting that "Article 5.5 may be seen to be
marking out and elaborating a particular route leading to the same destination set out in Article 2.3").
268 Appellate Body Reports, EC – Hormones, paras. 180 and 212; Australia – Apples, para. 339.
269 Appellate Body Report, Australia – Apples, paras. 339-341.

basic obligations under Article 2 is through the "particular routes" or "specific obligations" set out
in Article 5.270
5.13. Before considering the relationship between Article 2.2, on the one hand, and Articles 5.1
and 5.2, on the other hand, we recall the content of the obligations set out in those provisions, as
explained by the Appellate Body in previous disp utes. Article 2 of the SPS Agreement is entitled
"Basic Rights and Obligations". Its second paragraph reads as follows:
Members shall ensure that any sanitary or phytosanitary measure is applied only to
the extent necessary to protect human, animal or plant life or health, is based on
scientific principles and is not maintained without sufficient scientific evidence, except
as provided for in paragraph 7 of Article 5.
5.14. Article 5 of the SPS Agreement is entitled "Assessment of Risk and Determination of the
Appropriate Level of Sanitary or Phytosanitary Protection". Articles 5.1 and 5.2 state that:
1. Members shall ensure that their sanitary or phytosanitary measures are based on
an assessment, as appropriate to the circum stances, of the risks to human, animal or
plant life or health, taking into account risk assessment techniques developed by the
relevant international organizations.
2. In the assessment of risks, Members sh all take into account available scientific
evidence; relevant processes and production methods; relevant inspection, sampling
and testing methods; prevalence of specific diseases or pests; existence of pest- or
disease-free areas; relevant ecological and environmental conditions; and quarantine
or other treatment.
5.15. Article 2.2 requires Members to ensure, inter alia, that their SPS measures are "based on
scientific principles and [are] not maintained without sufficient scientific evidence, except as
provided for in paragraph 7 of Article 5".
271 The obligation in Article 2.2 that an SPS measure not
be "maintained without sufficient scientific evidence" requires "the existence of a sufficient or
adequate relationship between two elements, in casu, between the SPS measure and the scientific
evidence".272 Further, the Appellate Body has identified Articles 5.1, 3.3, and 5.7 of the
SPS Agreement as providing relevant context for interpreting the phrase "maintained without
sufficient scientific evidence" in Article 2.2. 273 Based on these considerations, the Appellate Body
has noted that "the obligation in Article 2.2 that an SPS measure not be maintained without
sufficient scientific evidence requires that there be a rational or objective relationship between the
SPS measure and the scientific evidence."
274 Whether such a relationship exists "will depend upon
the particular circumstances of the case, including the characteristics of the measure at issue and
the quality and quantity of the scientific evidence".
275
5.16. Using the mandatory "shall", Article 5.1 requ ires Members to "ensure that their sanitary or
phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the
risks to human, animal or plant life or health". With respect to the term "based on" in Article 5.1,
the Appellate Body in EC – Hormones noted that "'based on' is appropriately taken to refer to a
certain objective relationship between two elements, that is to say, to an objective situation that

270 Appellate Body Reports, Australia – Apples, para. 339; EC – Hormones, para. 212. See also Panel
Report, Australia – Salmon, para. 8.52.
271 Article 2.2 sets out several different requirements. The first requirement, namely, that an SPS
measure must be applied only to the extent necessary to protect human, animal or plant life or health, is also
elaborated through the more specific obligation in Article 5.6. The other requirements, namely, that an SPS
measure be based on scientific principles and not be maintained without sufficient scientific evidence, are
linked to the more specific obligations in Articles 5.1 and 5.2. For purposes of our analysis in this subsection of
our Report, a reference to Article 2.2 does not relate to the first requirement under that provision, unless
indicated otherwise.
272 Appellate Body Report, Japan – Agricultural Products II, para. 73. The ordinary meaning of the term
"sufficient" used by the Appellate Body was "of a quantity, extent, or scope adequate to a certain purpose or
object".
273 Appellate Body Report, Japan – Agricultural Products II, paras. 74-80.
274 Appellate Body Report, Japan – Agricultural Products II, para. 84.
275 Appellate Body Report, Japan – Agricultural Products II, para. 84.

persists and is observable between an SPS measure and a risk assessment." 276 Drawing upon the
context provided by Article 2.2, the Appellate Body observed that:
Article 5.1, when contextually read as it should be, in conjunction with and as
informed by Article 2.2 of the SPS Agreemen t, requires that the results of the risk
assessment must sufficiently warrant – that is to say, reasonably support – the SPS
measure at stake. The requirement that an SPS measure be "based on" a risk
assessment is a substantive requirement that there be a rational relationship between
the measure and the risk assessment.
277
5.17. A "risk assessment", as envisaged under Article 5.1, is defined in paragraph 4 of Annex A to
the SPS Agreement as follows:
The evaluation of the likelihood of entry, es tablishment or spread of a pest or disease
within the territory of an importing Member according to the sanitary or phytosanitary
measures which might be applied, and of the associated potential biological and
economic consequences; or the evaluation of the potential for adverse effects on
human or animal health arising from the presence of additives, contaminants, toxins
or disease-causing organisms in food, beverages or feedstuffs.
5.18. Moreover, a list of factors that "shall" be taken into account in a risk assessment is provided
in Article 5.2. The list begins with "available scientific evidence" and also includes: "relevant
processes and production methods; relevant inspection, sampling and testing methods; prevalence
of specific diseases or pests; existence of pest- or disease-free areas; relevant ecological and
environmental conditions; and quarantine or other treatment".
278
5.19. In EC – Hormones , the Appellate Body described a "risk assessment" as "a process
characterized by systematic, disciplined and objective enquiry and analysis, that is, a mode of
studying and sorting out facts and opinions."
279 Science plays a "central role" in a risk
assessment.280 The Appellate Body has, however, cautioned against taking "too narrow" an
approach to a risk assessment.281 In Australia – Apples, the Appellate Body stated that "Article 5.2
requires a risk assessor to take into account the available scientific evidence, together with other
factors."282 In EC – Hormones, the Appellate Body further stated that:
[s]ome of the kinds of factors listed in Article 5.2 such as 'relevant processes and
production methods' and 'relevant inspection, sampling and testing methods' are not
necessarily or wholly susceptible of investigation according to laboratory methods of,
for example, biochemistry or pharmacology. Furthermore, there is nothing to indicate
that the listing of factors that may be taken into account in a risk assessment of
Article 5.2 was intended to be a closed list. It is essential to bear in mind that the risk
that is to be evaluated in a risk assessment under Article 5.1 is not only risk
ascertainable in a science laboratory operating under strictly controlled conditions, but
also risk in human societies as they actually exist, in other words, the actual potential
for adverse effects on human health in the real world where people live and work and
die.
283
5.20. Article 5.1 may be viewed as a specific application of the basic obligations contained in
Article 2.2 of the SPS Agreement. 284 In the light of the close relationship between Article 2.2 and
Article 5.1, the Appellate Body has stated that the two provisions "should constantly be read
together" and that Article 2.2 "informs" Article 5.1 as "the elements that define the basic

276 Appellate Body Report, EC – Hormones, para. 189. (emphasis original)
277 Appellate Body Report, EC – Hormones, para. 193.
278 Appellate Body Reports, US/Canada – Continued Suspension, para. 527.
279 Appellate Body Report, EC – Hormones, para. 187.
280 Appellate Body Reports, US/Canada – Continued Suspension, para. 527; Australia – Apples,
para. 207.
281 Appellate Body Reports, US/Canada – Continued Suspension, para. 527.
282 Appellate Body Report, Australia – Apples, para. 208.
283 Appellate Body Report, EC – Hormones, para. 187.
284 Appellate Body Report, EC – Hormones, para. 180 (referring to US Panel Report, EC – Hormones,

obligation set out in Article 2.2 impart meaning to Article 5.1". 285 Articles 2.2, 5.1, and 5.2 all
reflect and reinforce the "important role that science plays throughout the SPS Agreement in
maintaining 'the delicate and carefully negotiated balance in the SPS Agreement between the
shared, but sometimes competing, interests of prom oting international trade and of protecting the
life and health of human beings'".
286
5.21. While Articles 5.1 and 5.2 may be considered specific applications of the basic obligations in
Article 2.2, this does not imply that the obligations in Articles 5.1 and 5.2 somehow serve to limit
the scope of application of the obligations in Article 2.2, or vice versa. To the contrary, all of these
obligations apply together. As a general matter, we note that Article 2.1 of the SPS Agreement,
which states that Members have the right to ad opt SPS measures "provide d that such measures
are not inconsistent with the provisions of this Agreement", makes explicit the principle that
Members must ensure that their SPS measures comply with all of the obligations set out in all such
provisions. At the same time, it is true that some provisions of the SPS Agreement themselves
identify circumstances in which the obligations th at they prescribe do not apply. For example,
Article 3.1 expressly excludes from its scope of application the situations covered under
Article 3.3.
287 Significantly, Article 2.2 itself contains express language limiting its scope of
application to circumstances in which Article 5.7 does not apply. 288 Yet, neither Article 2.2, on the
one hand, nor Articles 5.1 and 5.2, on the other hand, contain any language suggesting a similar
limitation on the scope of their application inter se . Indeed, in previous disputes, the
Appellate Body has found that no such limitations exist. For example, in Japan – Agricultural
Products II, the Appellate Body rejected Japan's argument that, in situations when it is possible to
apply Article 5.1, Article 2.2 cannot be directly a pplied, observing that "[t]here is nothing in the
text of either Articles 2.2 or 5.1, or any other provision of the SPS Agreement, that requires or
sanctions such limitation of the scope of Article 2.2."
289 Likewise, in US/Canada – Continued
Suspension, the Appellate Body made clear that, other than in circumstances covered by
Article 5.7, a WTO Member's SPS measures must conform with the obligations both in Article 5.1
and in Article 2.2.
290
5.22. In considering the relationship between Article 2.2, on the one hand, and Articles 5.1
and 5.2, on the other hand, it is also useful to recall that a panel's task under Article 5.1 is linked
to, and is informed by, the requirements of Article 2.2. In Australia – Apples , the Appellate Body
explained that, in US/Canada – Continued Suspension, it had identified:
… two aspects of a panel's scrutiny of a risk assessment, namely, scrutiny of the
underlying scientific basis and scrutiny of the reasoning of the risk assessor based
upon such underlying science. With respect to the first aspect, the Appellate Body saw
the panel's role as limited to reviewing whether the scientific basis constitutes
"legitimate science according to the standards of the relevant scientific
community". The Appellate Body perceived th e second aspect of a panel's review as
involving an assessment of whether the reasoning of the risk assessor is objective and
coherent, that is, whether the conclusions find sufficient support in the scientific
evidence relied upon. Having done so, the panel must determine whether the results
of the risk assessment sufficiently warrant the challenged SPS measures. We consider
that this reasoning of the Appellate Bo dy is consistent with the overarching
requirement in Article 2.2 and reflected in Articles 5.1 and 5.2 of the SPS Agreement
that there be a "rational or objective rela tionship" between the SPS measures and the
scientific evidence.
291
A panel's task under Articles 5.1 and 5.2, theref ore, encompasses a scrutiny of the scientific basis
underlying a risk assessment and, ultimately, the SPS measure at issue.

285 Appellate Body Report, EC – Hormones, para. 180.
286 Appellate Body Report, Australia – Apples, para. 364 (quoting Appellate Body Report, EC –
Hormones, para. 177).
287 Appellate Body Report, EC – Hormones, para. 104.
288 Appellate Body Report, Japan – Agricultural Products II, para. 80.
289 Appellate Body Report, Japan – Agricultural Products II, para. 82.
290 Appellate Body Reports, US/Canada – Continued Suspension, para. 674.
291 Appellate Body Report, Australia – Apples, para. 215 (referring to Appellate Body Reports,
US/Canada – Continued Suspension, para. 591). (fn omitted; emphasis added)

5.23. The findings that a panel makes with respect to claims that an SPS measure is inconsistent
with Articles 5.1 and 5.2 have an important role to play in that panel's assessment of a claim that
the same SPS measure is inconsistent with Article 2.2 because it is not based on scientific
principles and is maintained without sufficient scientific evidence. The panel in Australia – Salmon
observed that "Articles 5.1 and 5.2 … 'may be seen to be marking out and elaborating a particular
route leading to the same destination set out in' Article 2.2 ."
292 Based on this reasoning, the panel
went on to note that, "in the event a sanitary measure is not based on a risk assessment as
required in Articles 5.1 and 5.2, this measure can be presumed, more generally , not to be based
on scientific principles or to be maintained without sufficient scientific evidence." 293 The
Appellate Body agreed with the panel in that dispute and found that, "by maintaining an import
prohibition … in violation of Article 5.1, Australia has, by implication, also acted inconsistently with
Article 2.2 of the SPS Agreement ."294 In Australia – Apples , the Appellate Body referred to its
statements in Australia – Salmon and explained that "there is a one-way, dependent relationship
in law between the more specific provisions of Ar ticle 5.1 or Article 5.2, on the one hand, and the
more general provisions of Article 2.2, on the other hand." 295 Thus, the Appellate Body explained
that "a violation of Article 5.1 or Article 5.2 can be presumed to imply a violation of Article 2.2, but
that the reverse does not hold true – that is, a violation of Article 2.2 does not imply a violation of
Article 5.1 or Article 5.2."
296 In short, the Appellate Body has consistently held that an
SPS measure found to be inconsistent with Articles 5.1 and 5.2 can be presumed, more generally,
to be inconsistent with Article 2.2.
5.24. Nonetheless, we note that the terms used in Article 2.2 and Articles 5.1 and 5.2 are not
identical, and that, therefore, their respective scope s may not be entirely coextensive. This in turn
suggests that, although it may give rise to a presumption of inconsistency with Article 2.2, a
finding of a violation of Articles 5.1 and 5.2 might not invariably lead to a finding of inconsistency
with Article 2.2. This is consistent with the principle of effectiveness in treaty interpretation.
297 The
textual differences between Article 2.2 and Articles 5.1 and 5.2, together with the general, as
opposed to the specific, nature of the obligatio ns set out in Article 2.2 as compared to the
obligations in Articles 5.1 and 5.2, indicate that it cannot be excluded that there may be
circumstances in which an SPS measure that violates the latter two provisions will not be
inconsistent with the former provision. Put differently, these differences show that, although the
relationship between these provisions creates a presumption that a finding of violation of
Article 2.2 will flow from a finding of violation of Articles 5.1 and 5.2, such presumption cannot be
irrebuttable.
5.25. Having said that, we wish to make clea r that the rebuttability of the presumption of
inconsistency under Article 2.2 arising from a violation of Articles 5.1 and 5.2 cannot have the
effect of diluting the requirements under Articles 5.1 and 5.2 or undermining the structure and
logic of the SPS Agreement, namely, that the preferred means for complying with the basic
obligations under Article 2 is through the "particular routes" or "specific obligations" set out in
Article 5.
298
5.26. In this regard, we recall that Article 2.2 requires that there be a rational or objective
relationship between the SPS measure and the scientific evidence, and that an assessment of
whether such a relationship exists must be undertaken in the light of the particular circumstances
of the case, including the characteristics of the measure at issue and the quality and quantity of

292 Panel Report, Australia – Salmon, para. 8.52 (quoting Appellate Body Report, EC – Hormones,
para. 212). (emphasis added)
293 Panel Report, Australia – Salmon, para. 8.52. (emphasis added)
294 Appellate Body Report, Australia – Salmon, para. 138. (emphasis added)
295 Appellate Body Report, Australia – Apples, para. 340.
296 Appellate Body Report, Australia – Apples, para. 340 (referring to Appellate Body Report,
Australia – Salmon, para. 138).
297 In Japan – Alcoholic Beverages II, the Appellate Body confirmed that the principle of effectiveness
(ut res magis valeat quam pereat) is a "fundamental tenet of treaty interpretation flowing from the general
rule of interpretation set out in Article 31" of the Vienna Convention. The Appellate Body recalled its
observation in US – Gasoline that "[o]ne of the corollaries of the 'general rule of interpretation' in the
Vienna Convention is that interpretation must give meaning and effect to all the terms of the treaty. An
interpreter is not free to adopt a reading that would result in reducing whole clauses or paragraphs of a treaty
to redundancy or inutility". (Appellate Body Report, Japan – Alcoholic Beverages II, p. 12, DSR 1996:I, p. 106)
298 Appellate Body Reports, Australia – Apples, para. 339; EC – Hormones, para. 212. See also Panel
Report, Australia – Salmon, para. 8.52.

the scientific evidence. 299 One key characteristic of SPS measures is that they seek to protect
against identifiable risks. The term "sanitary or phytosanitary measure" found in the text of
Article 2.2 is defined in Annex A(1) to the SPS Agreement.
300 Three of the four types of measures
identified in that definition are measures applied, inter alia, to protect animal, human or plant life
or health from various types of "risks". As Article 2.2 lays down requirements with which Members
adopting SPS measures must comply, and given that the objective of ensuring protection against
risks to human, animal or plant life or health is a "key" characteristic of SPS measures 301, an
assessment of the consistency of an SPS measure with Article 2.2 would, by definition, involve
consideration of evidence relating to the specific risks against which the SPS measure seeks to
protect.
5.27. We further consider that the language "a more objective assessment of risk" in Article 5.7,
read together with the express reference to that provision contained in Article 2.2, also reinforces
that an analysis of whether a measure is based on scientific principles or is not maintained without
sufficient scientific evidence within the meaning of Article 2.2 should ordinarily focus on the
assessment of the risks against which a measure seeks to protect. In our view, it follows that any
assessment of whether an SPS measure is maintained without sufficient scientific evidence or is
not based on scientific principles would encompass an inquiry into evidence adduced by the parties
regarding the particular risks that such measure is said to protect against, and to whom the risk is
posed (e.g. humans, animals, plants, and/or the environment).
302
5.28. As to the quality and quantity of scientific evidence that needs to be taken into account in
determining whether there is a rational and obje ctive relationship between an SPS measure and
the scientific evidence within the meaning of Ar ticle 2.2, given the close relationship between
Articles 2.2 and 5.1 and the important role that science plays throughout the SPS Agreement, we
consider relevant the Appellate Body's observatio ns in the context of Article 5.1. The Appellate
Body has stated that, in scrutinizing the underlyin g scientific basis under Article 5.1, the evidence
presented must "have the necessary scientific and methodological rigour to be considered
reputable science."
303 Thus, "while the correctness of the views need not have been accepted by
the broader scientific community, the views must be considered to be legitimate science according
to the standards of the relevant scientific community."304
5.29. In the light of the foregoing, even though the presumption of inconsistency under Article 2.2
flowing from a violation of Articles 5.1 and 5.2 is rebuttable, establishing that there exists a
rational or objective relationship between th e SPS measure and the scientific evidence for

299 Appellate Body Report, Japan – Agricultural Products II, para. 84. See also Appellate Body Report,
Japan – Apples, para. 164.
300 Annex A(1) to the SPS Agreement reads, in relevant part:
Sanitary or phytosanitary measure – Any measure applied:
(a) to protect animal or plant life or health within the territory of the Member from risks arising
from the entry, establishment or spread of pests, diseases, disease-carrying organisms or
disease-causing organisms;
(b) to protect human or animal life or health within the territory of the Member from risks arising
from additives, contaminants, toxins or disease-causing organisms in foods, beverages or
feedstuffs;
(c) to protect human life or health within the territory of the Member from risks arising from
diseases carried by animals, plants or products thereof, or from the entry, establishment or
spread of pests; or
(d) to prevent or limit other damage within the territory of the Member from the entry,
establishment or spread of pests.
…
(emphasis added)
301 Appellate Body Report, Australia – Apples, para. 364.
302 We also note that a "risk" cannot usually be understood only in general terms as a disease or
specified adverse effects that may result. Rather, identifying risk involves connecting the possibility of adverse
effects with an antecedent or cause. (Appellate Body Report, Japan – Apples, fn 372 to para. 202)
303 Appellate Body Reports, US/Canada – Continued Suspension, para. 591.
304 Appellate Body Reports, US/Canada – Continued Suspension, para. 591. See also Appellate Body
Report, Australia – Apples, para. 215.

purposes of Article 2.2 would, in most cases, be difficult without a Member demonstrating that
such a measure is based on an assessment of the risks, as appropriate to the circumstances.305
5.1.3 Whether the Panel erred in its interpretation and application of Article 2.2
5.30. With these general considerations in mind, we turn to India's first claim of error, namely,
that the Panel erred in interpreting and applying Article 2.2 of the SPS Agreement by failing to
distinguish between Article 2.2 and Article 5. 1 of the SPS Agreement as independent legal
provisions setting out distinct obligations. India asserts that, by equating Article 2.2 with
Articles 5.1 and 5.2, the Panel rendered Article 2.2 redundant. India considers that a proper
interpretation of Article 2.2 and Article 5.1 establishes that a Member can either base its SPS
measure under Article 2.2 by directly establishing a link between the SPS measure and the
scientific principles and sufficient scientific eviden ce, or, alternatively, a Member can follow the
process under Article 5.1 by conducting a risk assessment and thus also comply with Article 2.2.
306
India submits that, although the Panel correctly identified that an SPS measure that does not
comply with Articles 5.1 and 5.2 is "presumed" to be inconsistent with Article 2.2, the Panel
"incorrectly ignored that obligations under Article 2.2 … can also be independently fulfilled without
resorting to Article 5.1".
307 Noting that, in the present case, it had based its "defense" under
Article 2.2, India submits that the Panel shou ld therefore have started its analysis with
Article 2.2.308 Due to these errors, India requests us to reverse the Panel's finding under
Article 2.2 of the SPS Agreement.309
5.31. The United States considers India's argument to be "a non sequitur", stressing that, before
the Panel, it alleged that Article 2.2 was violated both as a consequence of the inconsistency of
India's AI measures with Articles 5.1 and 5.2, and independently with respect to the requirements
under Article 2.2.310 According to the United States, there is nothing in the text of Article 2.2, 5.1,
or 5.2 that suggests that, when a party asserts that Article 2.2 has been violated consequentially
as a result of violating Articles 5.1 and 5.2, and also for another independent reason, the
"consequential claims" are somehow converted into "subsidiary claims" dependent for their
success on the "independent claim".
311 However, there is nothing in the text of Article 2.2 that
precludes multiple bases for breaching that obligation, and the fact that the United States also
advanced an independent claim cannot change the fact that India's measures are inconsistent with
Articles 5.1 and 5.2 and that, as a consequence, India breached Article 2.2. The United States also
asserts that India's contention that the Panel improperly "conflated" Articles 2.2 and 5.1 "lacks any
basis in the record or logic".
312 Recalling the Panel's analysis, the United States submits that the
Panel did not render these provisions "redundant" but, instead, correctly recognized that
Article 2.2 could be breached even in the ab sence of a breach of Articles 5.1 and 5.2.
313 The
United States contests India's argument that, because it based its defence on Article 2.2, "the
relevant text before the Panel was Article 2.2 … and not Article 5.1". 314 The United States points
out that there is no basis in the DSU to support a view that India's preferred manner of stating its
defence could bar the Panel from examining provisions cited by both parties.315
5.32. With respect to India's argument that a WTO Member whose SPS measure is found to be
consistent with Article 2.2 is under no obligatio n to conduct a risk assessment, as required by
Articles 5.1 and 5.2, we recall our discussion above, in paragraph 5.21, that SPS measures
adopted by Members must comply with all of the re quirements of Articles 2.2, 5.1, and 5.2. Thus,
to the extent that India's claim of error on appeal is premised on an understanding that a Member
adopting an SPS measure may elect either to base that measure on scientific principles and

305 In cases where an SPS measure is found to be inconsistent with Articles 5.1 and 5.2 for reasons
relating to the scientific basis underlying the relevant risk assessment, it would be all the more difficult for a
Member to establish that such a measure is nonetheless based on scientific principles and is not maintained
without sufficient scientific evidence, within the meaning of Article 2.2.
306 India's appellant's submission, para. 18.
307 India's appellant's submission, para. 21 (referring to Panel Report, Australia – Apples, para. 7.214).
308 India's appellant's submission, para. 25.
309 India's appellant's submission, para. 26.
310 United States' appellee's submission, para. 41.
311 United States' appellee's submission, para. 42.
312 United States' appellee's submission, para. 43.
313 United States' appellee's submission, para. 43 (referring to Panel Report, para. 7.282).
314 United States' appellee's submission, para. 45 (quoting India's appellant's submission, para. 25).
315 United States' appellee's submission, para. 45.

maintain it with sufficient scientific evidence in conforming with Article 2.2, or to base that
measure on a risk assessment conducted in conformi ty with Articles 5.1 and 5.2, such premise is
not correct. Furthermore, given that a WTO Member's compliance with the basic obligations in
Article 2.2 cannot exclude the application of Articles 5.1 and 5.2, we also disagree with India that
the Panel was required to start its analysis with Article 2.2, before proceeding to assess the
United States' claims under Articles 5.1 and 5.2.
5.33. Turning to the alleged errors in the Panel's analysis, we recall the Panel's discussion of the
relationship between Article 2.2, on the one hand, and Articles 5.1 and 5.2, on the other hand.
Before it turned to assess the claims made by the United States, the Panel set out its
understanding of the relationship between Articles 5.1 and 5.2, on the one hand, and Article 2.2,
on the other hand. The Panel recalled that Article 5.1 constitutes a specific application of the basic
obligations contained in Article 2.2, and that Article 2.2 informs Articles 5.1 because the elements
that define the basic obligations set out in Article 2.2 impart meaning to Article 5.1.
316 Referring
to, inter alia, the Appellate Body reports in Australia – Salmon , EC – Hormones , and Australia –
Apples, the Panel noted that the relationship between Article 2.2, on the one hand, and
Articles 5.1 and 5.2, on the other hand, has led panels and the Appellate Body to conclude that,
when an SPS measure is not based on a risk a ssessment conducted according to the requirements
in Articles 5.1 and 5.2, "this measure can be presumed, more generally, not to be based on
scientific principles or to be maintained without sufficient scientific evidence".
317 The Panel added
that, "[i]n practical terms, this means that a violation of Articles 5.1 and 5.2 entails a violation of
the more general Article 2.2".
318
5.34. The Panel's understanding, namely, that SPS measures found to be inconsistent with
Articles 5.1 and 5.2 can be presumed, more generally, not to be based on scientific principles and
maintained without sufficient scientific evidence, wi thin the meaning of Article 2.2, is consistent
with the nature of the obligations under thes e provisions, as discussed above. While the
subsequent use of the verb "entails" by the Panel might be seen as suggesting that the Panel was
of the view that Article 2.2 would necessarily be violated whenever a measure is found to be
inconsistent with Articles 5.1 and 5.2, we note that the Panel qualified its statement by using the
language "[i]n practical terms". Moreover, this observation by the Panel immediately followed its
citation to relevant jurisprudence and its correct reference to the "presumption" identified in
previous disputes. We are therefore not convinced that, merely by using the verb "entails" in
interpreting the relationship between Article 2.2 and Articles 5.1 and 5.2, the Panel equated the
presumption of inconsistency under Article 2.2 with a consequential violation. Accordingly, we find
that the Panel did not err in its interpretation of Articles 2.2, 5.1, and 5.2 of the SPS Agreement, in
particular, in its understanding of the relationship between Article 2.2, on the one hand, and
Articles 5.1 and 5.2, on the other hand.
5.35. Turning to the Panel's application of Article 2.2 to India's AI measures, we note that, before
the Panel, India presented arguments and scienti fic evidence to establish that its import
prohibitions with respect to fresh meat of poultry and eggs from countries reporting LPNAI are not
maintained without sufficient scientific ev idence within the meaning of Article 2.2.
319 In applying
Article 2.2 to India's AI measures, the Panel recalled the presumption of inconsistency under
Article 2.2 flowing from a violation of Articles 5.1 an d 5.2 that it had identified in its interpretation
of these provisions. 320 The Panel stated that, "where an SPS measure is not based on a risk
assessment as required by Articles 5.1 and 5.2 …, this measure is presumed not to be based on
scientific principles and to be maintained without sufficient scientific evidence, in contravention of

316 Panel Report, para. 7.281 (referring to Appellate Body Reports, EC – Hormones, para. 180; and
Australia – Apples, para. 209).
317 Panel Report, para. 7.282 (quoting Panel Report, Australia – Salmon, para. 8.52; and Appellate Body
Report, Australia – Salmon, para. 137).
318 Panel Report, para. 7.282.
319 The Panel acknowledged the arguments and evidence presented by India in its summary of India's
position. (Panel Report, para. 7.297 (referring to India's first written submission to the Panel, para. 186). See
also India's first written submission to the Panel, paras. 175-182; and Panel Exhibits IND-68, IND-109,
IND-110, IND-111, US-18, US-31, and US-20)
320 Panel Report, para. 7.331.

Article 2.2". 321 Immediately following this statement, the Panel stated its "[c]onclusion on the
United States' claim" pursuant to Article 2.2. 322 In that conclusion, the Panel recalled its findings
that "India's AI measures are not based on a risk assessment and are inconsistent with Articles 5.1
and 5.2" and, solely on this basis, further found that "India's AI measures are inconsistent with
Article 2.2 …, because they are not based on scientific principles and are maintained without
sufficient scientific evidence."
323
5.36. Thus, in its brief analysis under Article 2.2, the Panel made no mention of the evidence and
arguments put forth by India in support of its assertion that its import prohibitions on fresh meat
of poultry and eggs from countries reporting LPNA I are based on scientific principles and are not
maintained without sufficient scientific evidence, within the meaning of Article 2.2. Nor did the
Panel consider the rebuttability of the presumption of inconsistency under Article 2.2 before
proceeding to its final conclusion under Article 2.2 on the sole ground that it had already found
India's AI measures to be inconsistent with Articles 5.1 and 5.2. 324 In other words, in applying
Article 2.2 to India's AI measures, the Panel found that those measures violate Article 2.2 as an
automatic consequence of its finding that those measures are inconsistent with Articles 5.1
and 5.2.
5.37. We note the contrast between this approach by the Panel and its approach under
Articles 2.2 and 5.6. 325 In its analysis of the relationship between Articles 2.2 and 5.6, the Panel
stated that "a finding that a measure is inconsistent with Article 5.6 may lead to a presumption
that the same measure is inconsistent with the obligation in Article 2.2 to ensure that an SPS
measure is applied only to the extent necessary to protect human, animal or plant life or
health."
326 The Panel considered that such a presumption of inconsistency with the first
requirement under Article 2.2 arises in the present case due to its finding that India's AI measures
are inconsistent with Article 5.6 as they are significantly more trade restrictive than required to
achieve India's appropriate level of protection for these products. 327 Observing that "India has not
made arguments regarding why its measures are not inconsistent with Article 2.2", the Panel
reasoned that "India has not adduced arguments to rebut a presumption that, as its measures are
more trade-restrictive than required to achieve India's ALOP, those measures are also applied
beyond the extent necessary to protect human and animal life or health" within the meaning of
Article 2.2.
328 Having made these observations, the Panel found, on the basis of its finding under
Article 5.6, that India's AI measures are also inconsistent with the first requirement under
Article 2.2. Thus, the Panel proceeded to find that India's AI measures violate the first requirement
in Article 2.2 only after having considered whet her India had attempted to rebut the presumption
and to establish that its AI measures were consistent with that requirement.
5.38. In short, in its analysis of the presum ption of inconsistency with respect to the first
requirement under Article 2.2 flowing from a violation of Article 5.6, the Panel considered the
rebuttability of the presumption flowing from a violation of Article 5.6, and noted that India had
presented no arguments to rebut such a presumption. By contrast, in its application of the other
requirements under Article 2.2, the Panel simply reached a consequential finding of inconsistency
that flowed directly from its findings that India's AI measures breach Articles 5.1 and 5.2. In doing
so, the Panel, in effect, treated the presumption as irrebuttable, without providing any reasons for
such an understanding.

321 Panel Report, para. 7.331 (referring to Appellate Body Report, Australia – Salmon, para. 138; Panel
Reports, Australia – Salmon, para. 8.52; Australia – Salmon (Article 21.5 – Canada), paras. 7.85 and 7.161;
EC – Approval and Marketing of Biotech Products, paras. 7.3396 and 7.3399; US – Poultry (China),
paras. 7.168 and 7.203-7.204; and Australia – Apples, paras. 7.212 and 7.905).
322 Panel Report, heading 7.5.4.2.3.
323 Panel Report, para. 7.332.
324 We note that, as India did not present a risk assessment within the meaning of Articles 5.1 and 5.2
of the SPS Agreement, the Panel did not scrutinize the scientific basis for a risk assessment, and, ultimately,
India's AI measures, in reaching its findings of inconsistency under Articles 5.1 and 5.2.
325 We also note that neither party appeals the Panel's analysis of the presumption of inconsistency
under Article 2.2 flowing from a violation of Article 5.6, and we, therefore, express no view as to its propriety.
Rather, we refer to the Panel's analysis under Articles 2.2 and 5.6 solely for the purpose of contrasting it with
the Panel's approach under Articles 2.2, 5.1, and 5.2.
326 Panel Report, para. 7.614 (referring to Appellate Body Reports, US/Canada – Continued Suspension,

5.39. To recall, India presented evidence to th e Panel with respect to two of the ten product
categories covered by India's AI measures (i.e. fresh meat of poultry and eggs) from countries
reporting LPNAI and argued that such evidence established the scientific basis for its import
restrictions against these two product categories.
329 Yet, the Panel found India's AI measures to be
inconsistent with Article 2.2 with respect to all ten product categories subject to import
prohibitions. The Panel reached this conclusion solely on the basis that it had found those
measures to be inconsistent with Articles 5.1 and 5.2, and did not consider at all the arguments
and evidence presented by India in order to esta blish the consistency of its AI measures with
Article 2.2, insofar as they relate to fresh meat of poultry and eggs from countries reporting
LPNAI.
5.40. For these reasons, we find that, by failing to consider whether the presumption of
inconsistency with Article 2.2 that flowed from its finding that India's AI measures are inconsistent
with Articles 5.1 and 5.2 was rebutted by the ar guments and evidence presented by India, the
Panel erred in its application of Article 2.2 to India's AI measures with respect to the import
prohibitions on fresh meat of poultry and eggs from countries reporting LPNAI. Therefore, we
reverse, in part, the Panel's findings, in paragraphs 7.332, 7.334, and 8.1.c.v of the Panel Report,
that India's AI measures are inconsistent with Ar ticle 2.2 of the SPS Agreement, because they are
not based on scientific principles and are maintained without sufficient scientific evidence, insofar
as those findings concern India's import prohibitions on fresh meat of poultry and eggs from
countries reporting LPNAI.
5.1.4 Whether the Panel acted inconsistently with Article 11 of the DSU
5.41. In addition to alleging that the Panel erred in its interpretation and application of Article 2.2
of the SPS Agreement, India puts forth three clai ms of error under Article 11 of the DSU. First,
India submits that the Panel failed to make an objective assessment of the matter by disregarding
India's arguments and evidence that sought to establish that India's AI measures are based on
scientific principles and are not maintained withou t sufficient scientific evidence, as required by
Article 2.2.
330 Second, India asserts that the Panel failed to make an objective assessment of the
matter because it ruled on a claim that was not argued by the United States, insofar as the Panel's
finding of inconsistency under Article 2.2 covered the import prohibitions upon occurrence of both
HPNAI and LPNAI for India's AI measures.
331 India clarifies that it is not arguing that the
United States' claim under Article 2.2 is not within the Panel's terms of reference. Instead, India
argues that merely impugning a measure in the panel request does not absolve the complaining
party of presenting arguments and evidence with respect to that claim. 332 India highlights that the
United States made arguments and presented evidence only with respect to import restrictions
against eggs and fresh meat of poultry on account of occurrence of LPNAI under Article 2.2, and
that, therefore, the United States accepted that the import prohibitions against the other eight
product categories, and against all relevant prod uct categories upon occurrence of HPNAI, are
"legitimate".
333 Finally, India asserts that the Panel failed to make an objective assessment of the
matter in its analysis under Articles 5.1 and 5.2 because it did not address India's argument that,
because its AI measures are based on scientific principles and are not maintained without scientific
evidence, they meet the requirements of Article 2. 2, and India is therefore under no obligation to
conduct a separate risk assessment under Article 5.1 in the present case.
334 On this basis, India
requests us to reverse the Panel's findings under Articles 5.1 and 5.2.335
5.42. In response, the United States asserts, first, that India's claims under Article 11 of the DSU
do not relate to the objectivity of the Panel's a ssessment of the matter, but, instead, go to the
Panel's interpretation and application of Article 2.2. Recalling that claims under Article 11 and
claims relating to errors in interpreting or ap plying provisions of the covered agreements are
distinct and should not be pleaded in the altern ative, the United States submits that India has

329 India's appellant's submission, para. 67.
330 India's appellant's submission, para. 27.
331 India's appellant's submission, para. 47.
332 India's appellant's submission, para. 47.
333 India's appellant's submission, para. 51. India also recalls the United States' response to a question
by the Panel wherein it stated that "India has independently breached Article 2.2 because it has maintained
[its AI] measures without sufficient scientific evidence regarding LPNAI transmission in poultry meat and eggs".
(India's appellant's submission, para. 52 (quoting United States' response to Panel question No. 3, para. 17))
334 India's appellant's submission, para. 59 (referring to Panel Report, para. 7.297).
335 India's appellant's submission, para. 63 (referring to Panel Report, paras. 7.318-7.319).

erred in claiming a breach of Article 11. 336 With respect to India's first claim under Article 11, the
United States submits that India fails to explain how the evidence put forth by it is relevant, let
alone so material as to call into question the objectivity of the Panel's analysis of whether India's
measures are based on a risk assessment.
337 In response to India's second claim under Article 11,
the United States argues, inter alia, that, since the Panel found a breach of Article 2.2 as a result
of the violation of Article 5.1, it did not need to address the United States' additional argument
alleging an independent breach of Article 2.2 at all. 338 Moreover, the United States' position has
always been that India failed to base its AI measures on a risk assessment with respect to all
products covered by the measure. Thus, the limitation on product scope under Article 2.2 that
India asserts does not exist.
339 Finally, in respect of the third claim put forth by India under
Article 11, the United States submits that the Panel did, in its analysis under Articles 5.1 and 5.2,
acknowledge India's argument that it was not required to conduct a risk assessment, and India
has therefore presented no basis for a claim under Article 11.340
5.43. We note that the first claim of error put forth by India under Article 11 of the DSU relates to
the Panel's finding under Article 2.2 of the SPS Ag reement and, in particular, the Panel's alleged
failure to consider the arguments and evidence presented by India to establish that its
AI measures are not maintained without sufficient scientific evidence with respect to the import
prohibitions on fresh meat of poultry and eggs from countries reporting LPNAI. Having reversed
that part of the Panel's ultimate finding under Article 2.2 relating to the import prohibitions on
fresh meat of poultry and eggs from countries reporting LPNAI due to the Panel's failure to
consider whether India's arguments and evidence could overcome the presumption that its AI
measures are inconsistent with Article 2.2, we consider that it is not necessary for us to rule on
India's first claim under Article 11 of the DSU. This is because, even if we were to agree with
India, it would lead to the same result that we have reached after examining the Panel's
application of Article 2.2 to India's AI measures.
5.44. With respect to India's second claim of error under Article 11 of the DSU, we do not see that
the case made by the United States was limited in the way that India asserts. We recall that the
Panel's finding of inconsistency with Article 2.2 flowed from its findings of inconsistency with
Articles 5.1 and 5.2, which, as we have noted, concerned all ten product categories covered by
India's AI measures.
341 Moreover, we note that India's AI measures, by virtue of paragraph (1)(ii)
of S.O. 1663(E), impose prohibitions on the import of the relevant agricultural products from
countries reporting NAI, that is, both HPNAI and LPNAI. 342 A c c o r d i n g l y , e v e n t h o u g h w e h a v e
reversed the Panel's finding under Article 2.2 with respect to the prohibitions on imports of two
categories of products upon occurrence of LPNAI, we do not consider that the Panel erred by virtue
of the fact that the scope of its finding under Ar ticle 2.2 extended to the ten product categories
listed in India's AI measures, as they apply both to the occurrence of HPNAI and LPNAI. We,
therefore, reject this claim of error raised by India.
5.45. India's third claim of error under Article 11 of the DSU relates to the Panel's findings under
Articles 5.1 and 5.2. We see India to be taking issue with the Panel's failure to engage with India's
argument that, if an SPS measure is found to be consistent with Article 2.2, there is no obligation
to conduct a risk assessment under Article 5.1. In other words, India faults the Panel for not
addressing its argument that Article 2.2 creates an exception to the obligations under Article 5.1.
We note that the Panel did, in fact, acknowledge this argument by India.
343 More importantly, we
recall our discussion above that the understanding advanced by India would go against a proper
interpretation of Articles 2.2 and 5.1 that gives effect to the terms of both provisions. As we see it,
India's Article 11 claim is essentially a claim that the Panel erred in its interpretation and
application of Articles 2.2, 5.1, and 5.2. This clai m does not, therefore, go to the objectivity of the
Panel's assessment of the matter before it. As the Appellate Body has explained, a claim that a
panel failed to comply with its duties under Article 11 of the DSU "must stand by itself" and should

336 United States' appellee's submission, para. 34 (referring to Appellate Body Reports, China – Rare
Earths, para. 5.173).
337 United States' appellee's submission, para. 51.
338 United States' appellee's submission, para. 59.
339 United States' appellee's submission, para. 60.
340 United States' appellee's submission, para. 63 (referring to Panel Report, para. 7.312).
341 Panel Report, para. 7.278 (referring to Preliminary Ruling, paras. 3.27-3.30, 3.37, 3.92-3.93,
and 3.140).
342 Panel Report, paras. 2.32 and 7.271.
343 Panel Report, para. 7.297.

not be made merely as a subsidiary argument or claim in support of a claim that the panel failed
to apply correctly a provision of the covered agreements. 344 Accordingly, we reject this claim of
error raised by India.
5.46. Having rejected these claims, we find that India has not established that the Panel acted
inconsistently with its duty to conduct an objective assessment of the matter pursuant to
Article 11 of the DSU.
5.1.5 India's request to complete the legal analysis
5.47. Having reversed, in part, the Panel's finding that India's AI measures are inconsistent with
Article 2.2 of the SPS Agreement, insofar as that finding relates to the import prohibitions on fresh
meat of poultry and eggs from countries reporting LPNAI, we turn to consider India's request to
complete the legal analysis and find that its AI measures are consistent with Article 2.2.
345 India
submits that the evidence that it presented to the Panel establishes the risks associated with trade
in fresh meat of poultry and eggs from countries reporting LPNAI, and that, therefore, its AI
measures are not maintained without sufficient scientific evidence within the meaning of Article 2.2
of the SPS Agreement. 346 While the United States maintains that India's AI measures are
maintained without sufficient scientific evidence in breach of Article 2.2, it notes that the Panel did
not examine the scientific evidence presented by In dia, and it is therefore not certain that the
Panel made the necessary factual findings to support a legal conclusion. Consequently, the
United States does not request us to complete the legal analysis in the event the Panel's finding
under Article 2.2 is reversed.
347
5.48. We note that India requests us to complete the legal analysis and find that its AI measures
are based on scientific principles and maintained with sufficient scientific evidence and are
therefore consistent with Article 2.2.348 Based on our analysis above, India's request calls for us to
determine whether, with respect to the import prohibitions on fresh meat of poultry and eggs from
countries reporting LPNAI, the presumption of inconsistency with Article 2.2 that flows from the
inconsistency of these import prohibitions with Articles 5.1 and 5.2 is rebutted by the evidence
that India presented to the Panel.
5.49. The Appellate Body has, in the past, completed the legal analysis with a view to facilitating
the prompt settlement and effective resolution of the dispute. 349 However, we recall that the
Appellate Body has been able to do so only when the panel's factual findings and the undisputed
facts on the panel record have provided it with a sufficient basis for its own analysis. 350 Thus, the
Appellate Body has not completed the legal analysis where there were insufficient factual findings
in the panel report or a lack of undisputed facts on the panel record.351
5.50. India relies on a number of scientific studies on the Panel record. Referring, in particular, to
a study by Post et al., India submits that this study "clearly establishes that LPAI viruses … can
cause systemic infection and can spread to internal organs of the bird" 352, and that this study is

344 Appellate Body Reports, China – Rare Earths, para. 5.173 (referring to Appellate Body Report,
EC – Fasteners (China), para. 442).
345 India's appellant's submission, paras. 64-85.
346 India's appellant's submission, paras. 75-83.
347 United States' appellee's submission, fn 88 to para. 66. We note that the United States also stresses
that India has not explained the relationship between the studies it cites, on the one hand, and its AI measures
and trade in the relevant products, on the other hand. (United States' appellee's submission, paras. 53 and 57)
348 India's appellant's submission, para. 64 and section A(g), bullet 5.
349 Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program, para. 5.224
(referring to Appellate Body Reports, Australia – Salmon, paras. 117-118; US – Wheat Gluten, paras. 80-92;
and Canada – Aircraft (Article 21.5 – Brazil), paras. 43-52).
350 Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program, para. 5.224
(referring to Appellate Body Reports, Australia – Salmon, paras. 209, 241, and 255; Korea – Dairy, paras. 91
and 102; Canada – Autos, paras. 133 and 144; and Korea – Various Measures on Beef, para. 128).
351 Appellate Body Reports, Canada – Renewable Energy / Canada – Feed-in Tariff Program, para. 5.224
(referring to, inter alia, Appellate Body Reports, US – Section 211 Appropriations Act, para. 343; and
EC – Asbestos, para. 78).
352 India's appellant's submission, para. 75 (referring to J. Post et al., "Systemic distribution of different
low pathogenic avian influenza (LPAI) viruses in chicken" (2013) 10(23) Virology Journal (Panel Exhibit
IND-68)).

scientifically more robust than the evidence relied upon by the United States. 353 By contrast,
before the Panel, the United States relied on a statement by David Swayne that surveyed and
summarized the results of a number of studies of the LPAI virus. 354 In the view of the
United States, this evidence establishes that the LPAI virus is not present in fresh meat of poultry
or inside eggs, and that LPAI cannot, therefore, be transmitted through these products.355
5.51. The parties, thus, presented competing eviden ce to the Panel in support of their positions.
There are, therefore, no undisputed facts on the record that would assist us in completing the legal
analysis. We further note that the Panel did not consider or address the evidence adduced by India
in order to establish that its AI measures are not maintained without sufficient scientific evidence,
within the meaning of Article 2.2 or the evidence to the contrary put forward by the United States.
The Panel thus made no factual findings on the competing evidence before it that would provide us
with a sufficient basis for our analysis. In these circumstances, we find that we are unable to
complete the legal analysis and assess the consistency of India's AI measures with Article 2.2 of
the SPS Agreement with respect to the import prohibitions on fresh meat of poultry and eggs from
countries reporting LPNAI.

353 India's appellant's submission, para. 76. India also refers to several studies that, in its view,
establish the risk of the spread of the LPNAI virus through contaminated materials, equipment, and trays, via
the surface of eggs laid by acutely infected hens or through hatching eggs. (India's appellant's submission,
para. 81 (referring to Canada Food Inspection Agency, "Fact Sheet – Avian Influenza" (modified 22 December
2012) (Panel Exhibit US-20); T. van den Berg, "The role of the legal and illegal trade of live birds and avian
products in the spread of avian influenza" (2009) 28(1) Scientific and Technical Review of the Office
International des Epizooties, pp. 93-111 (Panel Exhibit IND-109); A.F. Ziegler et al., "Characteristics of H7N2
(nonpathogenic) avian influenza virus infections in commercial layers, in Pennsylvania, 1997-98" (1999) 43(1)
Avian Diseases, pp. 142-149 (Panel Exhibit IND-110); D.E. Swayne and C. Thomas, "Trade and Food Safety
Aspects for Avian Influenza Viruses", in D.E. Swayne (ed.) Avian Influenza (Blackwell Publishing, 2008),
chapter 22 (Panel Exhibit US-31); S.P. Cobb, "The spread of pathogens through trade in poultry meat:
overview and recent developments" (2011) 30(1) Scientific and Technical Review of the Office International
des Epizooties, pp. 149-164 (Panel Exhibit IND-111); and D.E. Swayne and J.R. Beck, "Heat inactivation of
avian influenza and Newcastle disease viruses in egg products" (2004) 33(5) Avian Pathology, pp. 512-518
(Panel Exhibit US-103))) India further points to evidence of the risk of infection for humans with both LPNAI
and HPNAI viruses. (India's appellant's submission, para. 81 (referring to India's response to Panel question
No. 4, p. 6)) For India, this evidence "clearly establishes that there exists risk[] of introduction of the LPNAI
virus upon trade in poultry and poultry commodities and India's AI measures address the same by no[t]
allowing the import of poultry and poultry commodities upon an outbreak of [the] LPNAI virus in the exporting
country", until such time as the exporting country notifies to the OIE that it is free from the LPNAI virus.
(India's appellant's submission, para. 82) India notes that other countries maintain similar measures. (India's
appellant's submission, para. 83 (referring to India's first written submission to the Panel, paras. 167-174))
India refers, in this regard, to the risk assessment conducted by Australia, on the basis of which Australia
prohibited imports of unprocessed meat and meat products from regions reporting the occurrence of LPNAI in
poultry. (India's appellant's submission, paras. 78-79 (referring to Biosecurity Australia, Generic Import Risk
Analysis Report for Chicken Meat, Final Report (October 2008), Parts A-C (Panel Exhibit IND-108))) India
emphasizes that the United States does not contest Australia's assertion that its quarantine measures conform
to the OIE Code, pursuant to which the products can be banned. India therefore concludes that "the risk
assessment conducted by Australia and its quarantine measures have been accepted by both the parties and
by the Panel". (India's appellant's submission, para. 80 (referring to United States' opening statement at the
354 Panel Report, para. 7.322 (referring to United States' first written submission to the Panel,
para. 124, in turn referring to Expert statement of David E. Swayne (Panel Exhibit US-97, attached to
United States' first written submission to the Panel), p. 1, in turn referring to A. Das et al., "Detection of H5N1
high-pathogenicity avian influenza virus in meat and tracheal samples from experimentally infected chickens"
(2008) 52 Avian Diseases, pp. 40-48 (Panel Exhibit US-98); Y. Kobayashi et al., "Pathological studies of
chickens experimentally infected with two highly pathogenic avian influenza viruses" (1996) 25 Avian
Pathology, pp. 285-304 (Panel Exhibit US-99); Y.K. Kwon and D.E. Swayne, "Different routes of inoculation
impact infectivity and pathogenesis of H5N1 high pathogenicity avian influenza virus infection in chickens and
domestic ducks" (2010) 54 Avian Diseases, pp. 1260-1269 (Panel Exhibit US-100); L.E.L. Perkins and
D.E. Swayne, "Pathobiology of A/Chicken/Hong Kong/220/97 (H5N1) avian influenza virus in seven
Gallinaceous species" (2001) 38 Veterinary Pathology, pp. 149-164 (Panel Exhibit US-101); E. Spackman
et al., "The pathogenesis of low pathogenicity H7 avian influenza viruses in chickens, ducks and turkeys"
(2010) 7 Virology Journal, p. 331 (Panel Exhibit US-102); Panel Exhibit US-103; D.E. Swayne and J.R. Beck,
"Experimental study to determine if low-pathogenicity and high-pathogenicity avian influenza viruses can be
present in chicken breast and thigh meat following intranasal virus inoculation" (2005) 49 Avian Diseases,
pp. 81-85 (Panel Exhibit US-104); D.E. Swayne et al., "Reduction of high pathogenicity avian influenza virus in
eggs from chickens once or twice vaccinated with an oil-emulsified inactivated H5 avian influenza vaccine"
(2012) 30 Vaccine, pp. 4964-4970 (Panel Exhibit US-105)).
355 Panel Report, para. 7.322.

5.52. Finally, we wish to state that our reversal, in part, of the Panel's finding of inconsistency of
India's AI measures with Article 2.2, in paragraph 5.40 above, is based on a failure by the Panel to
consider the arguments and evidence presented by India to establish that its AI measures are
consistent with Article 2.2. We neither examine, nor make any ruling on the issue of whether the
arguments and the evidence that India presented wi th respect to fresh meat of poultry and eggs
could have rebutted the presumption of inconsistency flowing from a violation of Articles 5.1
and 5.2 by establishing that, with respect to those two product categories, its AI measures are
based on scientific principles and are not maintained without sufficient scientific evidence.
5.1.6 Conclusion
5.53. We have found that the Panel did not err in its interpretation of Articles 2.2, 5.1, and 5.2 of
the SPS Agreement, and, in particular, in its understanding of the relationship between Article 2.2,
on the one hand, and Articles 5.1 and 5.2, on the other hand. However, we have also found that,
by failing to consider whether the presumption of inconsistency with Article 2.2 that flowed from
its finding that India's AI measures are inconsiste nt with Articles 5.1 and 5.2 was rebutted by the
arguments and evidence presented by India, the Panel erred in its application of Article 2.2 to
India's AI measures with respect to the import prohibitions on fresh meat of poultry and eggs from
countries reporting LPNAI. Consequently, we have reversed, in part, the Panel's finding, in
paragraphs 7.332, 7.334, and 8.1.c.v of the Panel Report, that India's AI measures are
inconsistent with Article 2.2 of the SPS Agreem ent because they are not based on scientific
principles and are maintained without sufficient scientific evidence, insofar as those findings
concern India's import prohibitions on fresh meat of poultry and eggs from countries reporting
LPNAI. In addition, given the absence of uncontested evidence on the Panel record, or of relevant
factual findings by the Panel, we have found that we are unable to complete the legal analysis and
assess the consistency with Article 2.2 of the SPS Agreement of India's AI measures with respect
to the import prohibitions on fresh meat of poultry and eggs from countries reporting LPNAI.
5.54. We have also found that India has not established that the Panel acted inconsistently with
its duty to conduct an objective assessment of the matter pursuant to Article 11 of the DSU.
356
Having rejected India's claim under Article 11 of the DSU pertaining to the Panel's finding that
India's AI measures are inconsistent with Articl es 5.1 and 5.2 of the SPS Agreement, and given
that, in any event, compliance with the requirem ents of Article 2.2 cannot exclude the application
of Articles 5.1 and 5.2, we uphold the Panel's findings, in paragraphs 7.318, 7.319, 7.333, 8.1.c.iii,
and 8.1.c.iv of the Panel Report, that India's AI measures are inconsistent with Articles 5.1 and 5.2
of the SPS Agreement.
5.2 Articles 3.1 and 3.2 of the SPS Agreement
5.55. We now turn to address India's appeal of the Panel's findings that India's AI measures are
inconsistent with Article 3.1 of the SPS Agreement and that India is not entitled to benefit from the
presumption of consistency of its AI measures with the other relevant provisions of the
SPS Agreement and the GATT 1994, as provided for under Article 3.2 of the SPS Agreement.
357
India claims that the Panel exceeded the permi ssible scope of consultation with the OIE as
prescribed by Article 11.2 of the SPS Agreement an d Article 13.2 of the DSU. India further claims
that the Panel acted inconsistently with its duty to make an objective assessment of the matter
within the meaning of Article 11 of the DSU by: (i) failing to conduct its own assessment of the
meaning of the OIE Code, including by failing to do so in accordance with customary rules of treaty
interpretation; (ii) disregarding arguments and evidence provided by India pertaining to the
meaning of the OIE Code; and (iii) reaching findings regarding the meaning of the OIE Code that
lack support in the evidence on the record. India requests us to reverse the Panel's findings under
Articles 3.1 and 3.2 of the SPS Agreement, and to complete the legal analysis in respect of these
provisions.
358

356 We did not consider it necessary to address India's claim that the Panel acted inconsistently with
Article 11 of the DSU by not considering the arguments and evidence presented by India to establish that its
AI measures are based on scientific principles and are not maintained without sufficient scientific evidence with
respect to the import prohibitions on fresh meat of poultry and eggs from countries reporting LPNAI.
357 Panel Report, paras. 7.274, 7.275, and 8.1.c.ii.
358 India's Notice of Appeal, paras. 9-10.

5.56. In the subsections that follow, we outline the relevant findings of the Panel and provide an
overview of the analysis required by Articles 3. 1 and 3.2 of the SPS Agreement, before addressing
India's claims on appeal.
5.2.1 The Panel's findings
5.57. Before the Panel, the United States claimed that India's AI measures are inconsistent with
Article 3.1 of the SPS Agreement because they are not "based on" the relevant international
standards, guidelines, or recommendations of the OIE, and are not in accordance with the
requirements of Article 3.3.359 India responded that its AI measures conform to the OIE Code in a
manner consistent with Article 3.2, and that its measures must therefore be presumed to be
consistent with the SPS Agreement and the GATT 1994.
360
5.58. Referring to the Appellate Body report in EC – Hormones , the Panel explained that the
paragraphs of Article 3 of the SPS Agreement define three separate scenarios. 361 The first scenario
is where a Member adopts an SPS measure that embodies an international standard completely
and thus "conforms to" such standard, as provid ed in Article 3.2. In this circumstance, the
SPS measure benefits from a rebuttable presumption of compliance with the SPS Agreement and
the GATT 1994.
362 The second scenario is where the SPS measure adopts some, but not all, of the
elements of that standard. The SPS measure, in this circumstance, would not "conform to" the
standard but, rather, would be "based on" it, as provided in Article 3.1. The Panel stated that such
a measure would not benefit from a presumption of compliance but, as clarified by the
Appellate Body, the burden of proof would still rest on the complainant to make a prima facie case
of violation of Article 3.1.
363 Finally, as a third scenario, a Member may decide to deviate from the
recommendations of an international standard and adopt an SPS measure that results in a higher
level of protection than the one prescribed in the standard, as provided in Article 3.3. In order to
do so, the Panel added, the Member must ensure that its measure is consistent with the other
relevant provisions of the SPS Agreement, including, for instance, the requirement of having a risk
assessment in accordance with Articles 5.1 and 5.2.364
5.59. The Panel further considered that the language of Article 3.1 establishes a less rigorous
threshold than that contemplated in Article 3. 2, and that a failure to meet the "based on"
requirement in Article 3.1 would necessarily imply a failure to meet the more rigorous "conform to"
threshold in Article 3.2. The Panel therefore began its analysis of the United States' claim under
Article 3.1 on the understanding that, only if India's AI measures were found to meet the less
rigorous requirement in Article 3.1, would the Panel proceed to examine whether such measures
also meet the higher threshold set out in Article 3.2.
365
5.60. The Panel thus set out to determine whether India's AI measures are "based on" an
international standard. 366 The Panel first considered whether a relevant international standard
exists for AI, noting the parties' agreement that the relevant international standard in this dispute
is the OIE Code. The Panel noted that the SP S Agreement prescribes that the relevant
international standards are those set by the international organizations listed in Annex A(3), which
identifies the OIE as the relevant standard-setting organization for matters relating to animal
health, including their effects on human health.
367 The Panel further noted that the set of
standards embodied in the OIE Code includes, in Chapter 10.4, specific recommendations with

359 Panel Report, para. 7.161.
360 Panel Report, para. 7.178.
361 Panel Report, paras. 7.197-7.198 (referring to Appellate Body Report, EC – Hormones,
paras. 170-172).
362 Panel Report, para. 7.198.
363 Panel Report, para. 7.199.
364 Panel Report, para. 7.200.
365 Panel Report, para. 7.203.
366 Panel Report, para. 7.204.
367 Panel Report, para. 7.206 (referring to Appellate Body Reports, US/Canada – Continued Suspension,
para. 693).

respect to AI. The Panel, therefore, found that the relevant international standard for purposes of
this dispute is the OIE Code.368
5.61. The Panel then examined each of the product-specific recommendations set out in
Chapter 10.4 of the OIE Code that corresponds to the relevant product categories listed in India's
AI measures. The Panel found that relevant OIE Code recommendations exist in respect of eight of
the ten product categories covered by India's AI measures.369 In respect of two product categories,
however, the Panel was unable to identify a relevant international standard and found, therefore,
that Articles 3.1 and 3.2 of the SPS Agreemen t do not apply in respect of those products. 370 For
the remaining eight product categories subject to India's AI measures, the Panel observed that the
content of the product-specific recommendations in Chapter 10.4 depends on the type of product
concerned, as well as the disease status of the place of origin, and that the recommendations vary
depending on whether the importation takes place from a country, zone, or compartment that is
NAI free or HPNAI free, or, in some instances, regardless of the NAI status of the country of
origin.
371
5.62. According to the Panel, the parties have "diametrically opposed understandings" 372 with
respect to two issues: (i) whether Chapter 10.4 of the OIE Code envisages the imposition of import
prohibitions because of concerns relating to AI; and (ii) the meaning of references to "zones and
compartments" in Chapter 10.4. The United States took the position that the product-specific
recommendations provided in Chapter 10.4 illustrate that the importation of products from
countries reporting LPNAI should be allowed, and that the choice of a relevant recommendation
from the OIE Code must depend on the NAI status of an exporting country, zone, or
compartment.
373 Thus, for the United States, Chapter 10.4 contains no suggestion that the
relevant products should be categorically prohibited from trade. 374 By contrast, India considered
that each product-specific recommendation in Chapter 10.4 contains a "condition of entry", thus
allowing an importing country to choose whethe r to require NAI freedom or HPNAI freedom, and
whether to extend such a requirement to an entire exporting country, or only to the zones or
compartments from which the imported products originate. Accordingly, for India, under
Chapter 10.4 of the OIE Code, importing countries may choose whether or not to allow the
importation of products from countries reporting LPNAI.
375
5.63. In considering the first of the issues on which the parties disagreed, the Panel began by
examining the significance of the only provision in Chapter 10.4 of the OIE Code that makes
express reference to import bans. That provision – Article 10.4.1.10 – states: "A Member should
not impose immediate bans on the trade in poultry commodities in response to a notification,
according to Article 1.1.3 of the [OIE] Code, of in fection with HPAI and LPAI virus in birds other
than poultry, including wild birds."
376 The United States argued that this provision provides only
that notification of HPAI and LPAI in birds other than poultry should not be a basis to impose bans
on poultry products. India, however, advanced an a contrario reading of this provision,
understanding it to mean that, in all circumstances other than where there is infection with the
HPAI and LPAI virus in non-poultry birds, countries can ban trade in poultry products.
377
5.64. In response to a question from the Pa nel, the OIE explained that Article 10.4.1.10 was
intended to discourage its members from imposing bans on trade in poultry in response to the
reporting of HPAI with respect to wild birds and other birds not part of the commercial sector. 378
The OIE pointed to the need to avoid that any repo rting in respect of pet or wild birds, which are

368 Panel Report, para. 7.206. The Panel further considered that it would rely on the 21st edition of the
OIE Code (adopted in May 2012) for purposes of this dispute, as this was the edition that was in force when
the Panel was established. (Ibid., para. 7.213)
369 Panel Report, para. 7.220.
370 Panel Report, para. 7.227. The Panel considered that these two product categories listed in India's AI
measures – i.e. live pigs, and pathological material and biological products from birds – were not covered by
Chapter 10.4 of the OIE Code. (Ibid., paras. 7.221 and 7.227)
371 Panel Report, para. 7.229.
372 Panel Report, para. 7.231.
373 Panel Report, para. 7.240.
374 Panel Report, para. 7.163.
375 Panel Report, para. 7.233.
376 Panel Report, para. 7.235.
377 Panel Report, para. 7.236.
378 Panel Report, para. 7.237 (referring to OIE's response to Panel question No. 10(a)).

not defined as poultry, would be relied upon as a rationale for introducing trade bans in the
commercial sector, in particular given that such action would not serve to encourage the reporting
of AI in all bird species. The Panel considered that the OIE's explanations were consistent with the
United States' argument that, where the OIE Code recommends prohibitions, it does so
explicitly.
379 On the basis of the wording of Article 10.4.1.10 of the OIE Code, as well as the
explanations provided by the OIE, the Panel found that there was no basis for the a contrario
interpretation advocated by India, and that Arti cle 10.4.1.10 does not envisage the imposition of
an import prohibition with respect to poultry products.380
5.65. The Panel then proceeded to examine whether the product-specific recommendations in
Chapter 10.4 of the OIE Code envisage, either explicitly or implicitly, the imposition of import
prohibitions. The Panel had also asked the OIE for guidance in respect of this question. The OIE
explained that Chapter 10.4 prescribes risk mitigation measures that can be relied upon to prevent
the introduction of AI via the importation of commodities from countries not free from LPNAI.
According to the OIE, the recommendations in Chapter 10.4 provide that, even where an exporting
country is not free from LPNAI, importation can take place from any country, zone, or
compartment that is HPNAI free. According to the Panel, the OIE stressed that the OIE Code
recommends measures for the continuation of trade in poultry products notwithstanding a finding
of infection in poultry with an LPAI virus, and that this applied to several products covered by
Chapter 10.4, including day-old live poultry, fres h poultry meat, poultry hatching eggs, eggs for
human consumption, and poultry semen.
381
5.66. On the basis of this examination, the Panel noted that the OIE's guidance corresponded with
the understanding of Chapter 10.4 of the OIE Code advanced by the United States. The Panel
further noted the OIE's agreement with the United States that, where the OIE Code recommends
import prohibitions, it does so explicitly. The Panel then observed that it did not find any
recommendations for import prohibitions in Chapter 10.4 of the OIE Code. The Panel added that,
having examined the text of each of the product-specific recommendations in Chapter 10.4
applicable to this dispute, it found no basis for the interpretation of the product-specific
recommendations advocated by India.
382 To the contrary, the Panel found a number of
product-specific recommendations in Chapter 10.4 that envisage allowing the importation of
relevant poultry products from countries report ing LPNAI, or even regardless of NAI status,
provided that appropriate risk mitigation conditions are fulfilled.
383 For these reasons, the Panel
concluded that the product-specific recommendations in Chapter 10.4 of the OIE Code "do not
envisage, either explicitly or implicitly, the imposition of import prohibitions with respect to poultry
products".
384
5.67. The Panel next addressed the second issue on which the parties disagreed, namely, whether
Chapter 10.4 of the OIE Code envisages that countries can choose whether to import only from
NAI-free or HPNAI-free countries, or also from NAI-free or HPNAI-free zones or compartments.
The United States argued before the Panel that the OIE encourages countries to consider principles
such as regionalization, and that India's country-wide application of its import ban is not based on
the OIE Code recommendations, which provide for the application of trade restrictions at the zone
or compartment level when appropriate surveillance, control, and biosecurity measures are in
place. By contrast, India repeated its argument that the recommendations in Chapter 10.4 specify
"conditions of entry", which allow an importing country not only to choose between requiring
NAI freedom or HPNAI freedom, but also to decide whether to extend such a requirement to an
entire exporting country, or only to its zones or compartments.
385
5.68. The Panel observed that Articles 10.4.2 through 10.4.4 of the OIE Code recognize in general
terms the possibility of differentiating the NAI st atus of a country, zone, or compartment based on

379 Panel Report, para. 7.238.
380 Panel Report, para. 7.239.
381 Panel Report, para. 7.249.
382 Panel Report, para. 7.251.
383 Panel Report, para. 7.252. Specifically, the Panel found that Articles 10.4.8, 10.4.11, 10.4.14,
10.4.17, and 10.4.19 provide for risk mitigation conditions necessary for the importation of products from an
HPNAI-free country, zone, or compartment, which by definition might not be LPNAI free; and that
Articles 10.4.6, 10.4.9, 10.4.12, 10.4.15, 10.4.18, 10.4.20, 10.4.21, 10.4.22, 10.4.23, and 10.4.24 contain
risk mitigation conditions for the importation of products regardless of the NAI status of the country of origin.
384 Panel Report, para. 7.253.
385 Panel Report, para. 7.254.

certain criteria. The Panel further observed that su ch criteria are provided in Article 10.4.2, and
that the conditions that must be met for a country, zone, or compartment to be considered either
NAI free or HPNAI free are reflected in Articles 10.4.3 and 10.4.4, respectively. The Panel also
found that Chapter 10.4 includes numerous product-specific recommendations identifying
measures to be applied by importing countries depending on the NAI status of the country, zone,
or compartment from which the products originate.
386 The Panel thus considered that "the text of
Chapter 10.4 indicates that the recommendations contained therein are not only intended for
country-wide purposes; rather, they are intended to also apply to zones and compartments".387
5.69. The Panel consulted the OIE on this issu e as well. The OIE explained that zoning and
compartmentalization are concepts promoted by the OIE, both to prevent and control diseases and
to allow safe trade from countries that are not disease free, and that they are in general applicable
to all listed diseases. The OIE affirmed that importing countries should take into consideration the
zoning and compartmentalization principles, but that, if the exporting country does not apply
zoning to reduce the size of the affected population, then the measures recommended in the OIE
Code for a particular product should be applied for the entire country.
388 The Panel considered that
Chapter 10.4 of the OIE Code envisages that importing countries, when adopting and applying
their AI measures, should recognize that, even where an exporting country may not be entirely
NAI free or HPNAI free, it may have zones or compartments that are NAI free or HPNAI free. The
Panel therefore concluded that the OIE Code envisages that SPS measures relating to AI allow for
the possibility of importing from NAI-free or HPNAI-free zones and compartments, and not only
from NAI-free or HPNAI-free countries.
389
5.70. The Panel then turned to assess whether India's AI measures are "based on" Chapter 10.4
of the OIE Code. The Panel recalled its finding that India's contention – that an importing country
may choose as a "condition of entry" the NAI-free status of the exporting country and apply that
condition only on a country-wide basis – runs contrary to Chapter 10.4 of the OIE Code.
390 The
Panel found that India's AI measures contradict the product-specific recommendations in
Chapter 10.4 of the OIE Code in two respects. First, S.O. 1663(E) prohibits importation of the
relevant products from countries reporting HPNAI or LPNAI regardless of whether appropriate risk
mitigation conditions are fulfilled. Second, S.O. 1663(E) prohibits importation of the relevant
products from countries reporting NAI on a country-wide basis, thus not allowing importation from
NAI-free or HPNAI-free zones or compartments.
391
5.71. The Panel considered that India's AI meas ures amount to a "fundamental departure" from,
and "contradict", the OIE Code. In the light of th is contradiction, the Panel found that India's
AI measures are not "based on" the relevant international standard within the meaning of
Article 3.1 of the SPS Agreement, and are th erefore inconsistent with that provision. 392 Having
made this finding, the Panel also concluded that India's AI measures do not "conform to" the OIE
Code within the meaning of Article 3.2 of the SPS Agreement. The Panel therefore found that India
is not entitled to benefit from the presumption of consistency of its AI measures with the other
relevant provisions of the SPS Agreement and the GATT 1994.
393
5.72. Before proceeding to an overview of the analysis under Articles 3.1 and 3.2 of the
SPS Agreement, we wish to make a preliminary observation regarding the Panel's focus on the
question of whether the OIE Code "envisages the imposition of import prohibitions". It appears
that the language used by the Panel created some ambiguity regarding its findings on the scope
and meaning of the recommendations it examined in Chapter 10.4 of the OIE Code, and may have
led to some misunderstanding between the parties on appeal. Under one possible reading of this

386 Panel Report, para. 7.258. Specifically, the Panel found that Articles 10.4.5, 10.4.7, 10.4.10,
10.4.13, 10.4.16, and 10.4.19 provide that the importation of the products concerned may take place not only
from an NAI-free country, but also from an NAI-free zone or compartment; and that Articles 10.4.8, 10.4.11,
10.4.14, 10.4.17, and 10.4.19 provide that the importation of the products concerned may take place not only
from a HPNAI-free country, but also from a HPNAI-free zone or compartment, which would mean a zone or
compartment that is not necessarily free from LPNAI.
387 Panel Report, para. 7.259.
388 Panel Report, para. 7.261.
389 Panel Report, para. 7.263.
390 Panel Report, para. 7.270.
391 Panel Report, para. 7.271.
392 Panel Report, paras. 7.271-7.274.
393 Panel Report, para. 7.275.

language, the Panel could be understood to have addressed whether the OIE Code precludes
OIE members from restricting or banning the importation of products in circumstances where there
is no applicable recommendation under the OIE Code, or where the risk mitigation conditions
prescribed in the applicable recommendation have not been met. India raises arguments on appeal
that appear premised on this reading of the Panel's language regarding the OIE Code.
394
5.73. Alternatively, in using this language, the Panel could be understood to have addressed
whether, in circumstances where the product-specific recommendations of the OIE Code apply, the
OIE Code itself prescribes prohibitions on the importation of products. In our view, the Panel's
analysis is consistent with this latter understanding, which reflects the nature of the comparative
assessment it performed in seeking to determine whether the import prohibitions imposed by
India's AI measures could be said to be "based on" the OIE Code within the meaning of Article 3.1
of the SPS Agreement.
395 As noted, the Panel identified a number of product-specific
recommendations that allow for the importation of poultry products from countries reporting
LPNAI, or even regardless of NAI status, when appr opriate risk mitigation conditions are fulfilled.
The Panel also concluded that the relevant recommendations of the OIE Code allow for the
possibility of importing from NAI-free or HPNAI-free zones and compartments, and not only from
NAI-free or HPNAI-free countries. Against these findings, the Panel juxtaposed India's
AI measures, which prohibit on a country-wide basis the importation of the relevant product
categories from countries reporting HPNAI and LPNAI even when appropriate risk mitigation
conditions are fulfilled. Thus, when the Panel set out to determine whether the OIE Code
"envisages the imposition of import prohibitions", it was, in our view, seeking to determine
whether the product-specific recommendations, in circumstances where they apply to relevant
poultry products, prescribe the imposition by OIE members of import prohibitions on a
country-wide basis.
5.74. Therefore, notwithstanding any ambiguity that may have been generated by this part of the
Panel's analysis, we do not consider that the Panel was opining on whether the OIE Code precludes
OIE members from restricting or banning the importation of products in circumstances where there
is no applicable recommendation under the OIE Code, or where the risk mitigation conditions
prescribed in the applicable recommendation have not been met. In our view, the Panel did not, in
its examination of the OIE Code, speak to what trade measures a country may permissibly adopt
under these scenarios.
5.2.2 Overview of Article 3
5.75. Before turning to India's appeal, we consider it useful to set out certain preliminary
observations regarding the analysis under Article 3 of the SPS Agreement.
5.76. Article 3 of the SPS Agreement encourages the harmonization of SPS measures on the basis
of international standards, while at the same time recognizing the right of WTO Members to
determine their appropriate level of protection.
396 As the Appellate Body observed in
EC – Hormones:
In generalized terms, the object and purpose of Article 3 is to promote the
harmonization of the SPS measures of Members on as wide a basis as possible, while
recognizing and safeguarding, at the same time, the right and duty of Members to
protect the life and health of their people. The ultimate goal of the harmonization of
SPS measures is to prevent the use of such measures for arbitrary or unjustifiable
discrimination between Members or a disguised restriction on international trade,
without preventing Members from adopting or enforcing measures which are both

394 For instance, India argues that the Panel's finding that the OIE Code does not envisage the
imposition of import prohibitions is not consistent with purported admissions by the OIE and the United States
that countries may prohibit imports in a manner consistent with the OIE Code. (See infra, paras. 5.107-5.109)
395 For a discussion of the requirements under Article 3.1 of the SPS Agreement, see infra, para. 5.77.
396 The preamble of the SPS Agreement states that one of its objectives is "to further the use of
harmonized sanitary and phytosanitary measures between Members, on the basis of international standards,
guidelines and recommendations developed by the relevant international organizations, including … the
International Office of Epizootics".

"necessary to protect" human life or health and "based on scientific principles", and
without requiring them to change their appropriate level of protection.397
5.77. We note that Article 3.1 of the SPS Agreement establishes that Members shall base their
SPS measures on international standards, guidelines, or recommendations, where they exist. In
EC – Hormones , the Appellate Body stated that "[a] thing is commonly said to be 'based on'
another thing when the former 'stands' or is 'f ounded' or 'built' upon or 'is supported by' the
latter".398 The Appellate Body considered that, to be "based on" an international standard, a
measure "may adopt some, not necessarily all, of the elements of the international standard". 399
In EC – Sardines , the Appellate Body remarked that "there must be a very strong and very close
relationship between two things in order to be able to say that one is 'the basis for' the other". 400
The Appellate Body thus stated that, where a technical regulation and the relevant international
standard contradict each other, it cannot properly be concluded that the international standard has
been used "as a basis for" the technical regulation. 401 As the Appellate Body recognized in EC –
Sardines, the term "as a basis for" in Article 2.4 of the TBT Agreement is similar to the language
used in Article 3.1 of the SPS Agreement.402
5.78. We further note that Article 3.2 provides that SPS measures that conform to international
standards, guidelines, or recommendations shall be deemed to be necessary to protect human,
animal or plant life or health, and presumed to be consistent with the relevant provisions of the
SPS Agreement and the GATT 1994. In addition, Arti cle 3.3 identifies the circumstances in which
Members may impose SPS measures resulting in a higher level of protection than would be
achieved by measures based on the relevant international standards, guidelines, or
recommendations. Finally, we observe that the relevant international standards, guidelines or
recommendations referred to in Article 3 are those established by or developed under the auspices
of the international organizations referred to in Annex A(3) to the SPS Agreement.
403
5.79. The provisions of Article 3 establish a Me mber's obligations concerning harmonization with
relevant international standards.404 In determining whether a particular SPS measure is based on,
conforms to, or results in a higher level of protection than a relevant international standard, a
panel must engage in a comparative assessment between the challenged measure and that
international standard. In this respect, because the international standard serves as the
benchmark against which a Member's compliance under Article 3 is to be assessed, it is incumbent
on a panel to discern the meaning of that standard. In conducting such an assessment, panels
have various means available to them. A panel ma y be guided by any relevant interpretative
principles, including relevant customary rules of interpretation of public international law. In
addition, a panel may find additional sources to be useful in discerning the meaning of the
international standard. For example, panels may wish to have recourse to the views of the
relevant standard-setting body, as referred to in Annex A(3) to the SPS Agreement, through

397 Appellate Body Report, EC – Hormones, para. 177.
398 Appellate Body Report, EC – Hormones, para. 163.
399 Appellate Body Report, EC – Hormones, para. 171.
400 Appellate Body Report, EC – Sardines, para. 245.
401 Appellate Body Report, EC – Sardines, para. 248.
402 Appellate Body Report, EC – Sardines, para. 242. The Panel referred to this Appellate Body
jurisprudence at paragraphs 7.265-7.269 of its Report.
403 Annex A(3) to the SPS Agreement provides:
3. International standards, guidelines and recommendations
(a) for food safety, the standards, guidelines and recommendations established by the Codex
Alimentarius Commission relating to food additives, veterinary drug and pesticide residues,
contaminants, methods of analysis and sampling, and codes and guidelines of hygienic
practice;
(b) for animal health and zoonoses, the standa rds, guidelines and recommendations developed
under the auspices of the International Office of Epizootics;
(c) for plant health, the international standard s, guidelines and recommendations developed
under the auspices of the Secretariat of the International Plant Protection Convention in
cooperation with regional organizations operating within the framework of the International
Plant Protection Convention; and
(d) for matters not covered by the above organi zations, appropriate standards, guidelines and
recommendations promulgated by other relevant international organizations open for membership
to all Members, as identified by the Committee.
404 Although the provisions of Article 3 and Annex A refer to "international standards, guidelines or
recommendations", we will, for ease of reference, hereinafter use the terms "international standard" or
"international standards".

evidence on the panel record or through direct consultation with that body, or with other experts
in the relevant fields, pursuant to Article 11.2 of the SPS Agreement and Article 13 of the DSU.
5.80. In the circumstances of this dispute, Anne x A(3)(b) provides that the relevant international
standards for purposes of animal health and zoonoses (i.e. infectious diseases of animals
transmissible to humans) are those developed under the auspices of the OIE. 405 With respect
to AI, the relevant international standards are those set out in the OIE Code, in particular,
Chapter 10.4.
406 Chapter 10.4 of the OIE Code therefore serves as the benchmark against which
India's AI measures must be compared in order to determine whether they are "based on", or
"conform to", that standard. Accordingly, in k eeping with the guidance outlined above, it was
incumbent on the Panel in this dispute to discern the meaning of relevant portions of the OIE Code
in order to determine whether India's AI measures satisfy the elements under Articles 3.1 and 3.2
of the SPS Agreement.
407
5.81. Having set out these general considerations, we proceed to examine India's specific claims
on appeal.
5.2.3 Whether the Panel erred under Article 11.2 of the SPS Agreement and Article 13.2
of the DSU in its consultation with the OIE
5.82. We begin with India's claim of error under Article 11.2 of the SPS Agreement and
Article 13.2 of the DSU. India contends that Article 11.2 of the SPS Agreement limits the
permissible scope of a panel's consultation with an international organization to scientific and
technical issues.
408 India considers that the Panel's terms of reference and its questions to the OIE
indicate that the Panel was consulting with the OIE not only concerning the evidence submitted by
the parties, but also regarding the interpretation of the OIE Code. Thus, India asserts that,
because the Panel posed interpretative, instead of sci entific or technical, questions to the OIE, the
Panel exceeded the permissible scope of questioning allowed under these two provisions.409
5.83. The United States considers that 11.2 of the SPS Agreement and Article 13.2 of the DSU
afford considerable discretion to a panel to seek relevant information. In the United States' view,
the present dispute involves scientific and technical issues regarding appropriate AI control
measures, and "the OIE is clearly a relevant international organization on these matters".
410
Moreover, the United States argues that the authority of a panel under Article 13.2 of the DSU is
not limited in an SPS dispute by Article 11.2 of the SPS Agreement. Thus, a panel in an
SPS dispute does not commit error by posing questions relating to issues other than scientific and
technical issues. According to the United States, once a dispute involves scientific or technical
issues and the terms of Article 11.2 are met, that provision encourages seeking advice, and "does
not limit the information a panel may seek generally or from an international organization".
411
5.84. We first recall that, in the Panel proceedings, after having consulted with the parties and
third parties, the Panel decided to seek expert advice, "albeit in a limited manner", through
"a written consultation with the OIE on the interpretation of the [OIE Code]". 412 The Panel directed
questions to the OIE relating to: the identification of the applicable standard with respect to AI;
the levels of protection sought to be achieved by the OIE Code recommendations; and the rules

405 Paragraph 3(b) of Annex A to the SPS Agreement defines the terms "international standards,
guidelines, and recommendations" as "… for animal health and zoonos es, the standards, guidelines and
recommendations developed under the auspices of the International Office of Epizootics".
406 Panel Report, para. 7.206.
407 We recall that India's position before the Panel was that its AI measures are both based on, and
conform to, international standards within the meaning of Articles 3.1 and 3.2 of the SPS Agreement. India did
not rely on Article 3.3 or maintain that its AI measures result in a higher level of SPS protection than would be
achieved by measures based on the relevant international standard. The Panel, therefore, focused solely on
whether India's AI measures are consistent with Articles 3.1 and 3.2. The Panel decided, first, to conduct an
analysis under Article 3.1 with the understanding that, should India's measures not be found to be "based on"
the relevant international standard within the meaning of Article 3.1, they could not be found to "conform to"
that standard within the meaning of Article 3.2. (Panel Report, para. 7.203) The Panel's articulation of the
content and order of analysis under Article 3 is not appealed.
408 India's appellant's submission, para. 95.
409 India's appellant's submission, paras. 96 and 100.
410 United States' appellee's submission, para. 76.
411 United States' appellee's submission, para. 77.
412 Panel Report, para. 1.23.

concerning the establishment of the AI disease status of an OIE member, including rules relating
to self-declaration, official recognition, and notification. In addition, the Panel posed a series of
questions to the OIE regarding the meaning of, and interaction among, the specific provisions of
Chapter 10.4 of the OIE Code.
413
5.85. We observe that the authority of a panel to consult with experts is, as a general matter,
governed by Article 13 of the DSU, entitled "Right to Seek Information". 414 Article 13.1 provides
that a panel "shall have the right to seek information and technical advice from any individual or
body which it deems appropriate". Article 13.2 a dditionally provides that a panel "may seek
information from any relevant source and may consult experts to obtain their opinion on certain
aspects of the matter".
5.86. In US – Shrimp, the Appellate Body described the broad discretion that Article 13 affords to
panels:
The comprehensive nature of the authority of a panel to "seek" information and
technical advice from "any individual or body" it may consider appropriate, or from
"any relevant source", should be underscored. This authority embraces more than
merely the choice and evaluation of the source of the information or advice which it
may seek. A panel's authority includes the authority to decide not to seek such
information or advice at all. We consider that a panel also has the authority to accept
or reject any information or advice which it may have sought and received, or to make
some other appropriate disposition thereof. It is particularly within the province and
the authority of a panel to determine the need for information and advice in a specific
case, to ascertain the acceptability and relevancy of information or advice received,
and to decide what weight to ascribe to that information or advice or to conclude that
no weight at all should be given to what has been received.
415
5.87. In the SPS context, there are special or additional rules set forth in Article 11.2 of the
SPS Agreement.416 Article 11.2 of the SPS Agreement provides:
In a dispute under this Agreement involving scientific or technical issues, a panel
should seek advice from experts chosen by the panel in consultation with the parties
to the dispute. To this end, the panel may, when it deems it appropriate, establish an
advisory technical experts group, or consult the relevant international organizations,
at the request of either party to the dispute or on its own initiative.
5.88. The first sentence of Article 11.2 indica tes that, in SPS cases "involving scientific or
technical issues", a panel "should seek advice from experts". Since disputes implicating claims
under the SPS Agreement would normally involve "scientific or technical issues", the use of the
term "should" in Article 11.2 suggests that a pane l would ordinarily be expected to consult with
experts in SPS cases. As the Appellate Body stated in Japan – Agricultural Products II, Article 11.2

413 Panel questions to the OIE, para. 1.2. In total, the Panel addressed 22 questions to the OIE.
414 Article 13 of the DSU provides as follows:
Right to Seek Information
1. Each panel shall have the right to seek information and technical advice from any
individual or body which it deems appropriate. However, before a panel seeks such information
or advice from any individual or body within the jurisdiction of a Member it shall inform the
authorities of that Member. A Member should respond promptly and fully to any request by a
panel for such information as the panel considers necessary and appropriate. Confidential
information which is provided shall not be revealed without formal authorization from the
individual, body, or authorities of the Member providing the information.
2. Panels may seek information from any releva nt source and may consult experts to obtain
their opinion on certain aspects of the matter. With respect to a factual issue concerning a
scientific or other technical matter raised by a party to a dispute, a panel may request an
advisory report in writing from an expert review group. Rules for the establishment of such a
group and its procedures are set forth in Appendix 4.
415 Appellate Body Report, US – Shrimp, para. 104. (emphasis original)
416 Article 1.2 of the DSU states that the provisions of the DSU apply subject to special or additional
rules and procedures identified in Appendix 2 thereto. Appendix 2 lists Article 11.2 of the SPS Agreement.
Article 1.2 of the DSU further provides: "To the extent that there is a difference between the rules and
procedures of this Understanding and the special or additional rules and procedures set forth in Appendix 2,
the special or additional rules and procedures in Appendix 2 shall prevail."

of the SPS Agreement "explicitly instructs panels in disputes under this Agreement involving
scientific and technical issues to 'seek advice from experts'".417 The second sentence of Article 11.2
further provides that a panel may, as it considers appropriate, establish a group of experts or
consult relevant international organizations, and that it may do so either on its own initiative or at
the request of a party. This suggests that, while a panel may generally be expected to consult with
experts in SPS cases, the panel still retains discretion regarding what experts it wishes to consult,
and how it wishes to structure such consultations.
5.89. Although Article 11.2 indicates that the reas on a panel "should seek advice from experts" is
because the dispute "involve[es] scientific or technical issues", we consider this to be a reference
to the types of issues common to SPS disputes, and not to suggest a limitation as to the scope or
nature of questioning that would be permitted in such disputes. Thus, while the language of
Article 11.2 indicates that experts should be consulted in disputes involving scientific or technical
issues, it does not mandate that the advice sought be confined to such issues. This understanding
is also consonant with the scope and nature of questioning permitted under Article 13 of the DSU,
which grants panels "the right to seek information and technical advice from any individual or body
which it deems appropriate", to "seek information from any relevant source", and to "consult
experts to obtain their opinion on certain aspects of the matter". On the basis of the foregoing, we
do not consider that either Article 11.2 of th e SPS Agreement or Article 13 of the DSU imposes
constraints on a panel's consultation with experts, including with any relevant international
organizations, and we see no basis for understanding Article 11.2 of the SPS Agreement to
circumscribe the authority or discretion a panel enjoys under Article 13 of the DSU in
SPS disputes. For these reasons, we disagree that Article 11.2 of the SPS Agreement limits the
permissible scope of a panel's consultations with an international organization in the manner
suggested by India. To the contrary, these prov isions apply cumulatively and harmoniously in
SPS disputes, and reinforce the comprehensive nature of a panel's fact-finding powers.
418 We
therefore find that the Panel did not act inconsis tently with Article 11.2 of the SPS Agreement or
Article 13.2 of the DSU in consulting with the OIE regarding the meaning of the OIE Code.
5.2.4 Whether the Panel acted inconsistently with Article 11 of the DSU
5.90. We turn next to India's claims that the Panel committed errors inconsistent with its duty to
make an objective assessment of the matter under Article 11 of the DSU. India maintains that the
Panel failed to assess critically the OIE's answers to the Panel's questions, and instead adopted the
OIE's interpretation of the OIE Code without addressing those submissions in which India
highlighted its understanding of the OIE Code and pointed to inconsistencies in the OIE's
answers.
419 Accordingly, India considers that the Panel "delegated the judicial function of making
an objective assessment of the matter to the OIE" in a manner inconsistent with Article 11 of the
DSU.420 India also argues that the Panel failed to interpret the OIE Code in accordance with
customary rules of treaty interpretation, as prescribed by Article 3.2 of the DSU. 421 In addition,
India asserts that the Panel improperly disregar ded arguments and evidence on several specific
matters concerning the practice of other countries and previous positions taken by the
United States.
422 Finally, India contends that the Panel's conclusions regarding the meaning of the
OIE Code are not supported by evidence on the record.423
5.91. The United States maintains that the Panel correctly framed the question before it by asking
whether India's measures are so divergent from the OIE Code that they are not based upon it, and
that the Panel engaged fully with all the evidence on the record, including the text of the OIE Code
itself, in reaching its conclusions.
424 The United States also considers that India has not

417 Appellate Body Report, Japan – Agricultural Products II, para. 128. (emphasis original)
418 The Appellate Body has explained that a treaty interpreter must read treaty provisions in a way that
gives meaning to all of them in a harmonious fashion. (See e.g. Appellate Body Report, US – Upland Cotton,
para. 549) We further note that, in Japan – Agricultural Products II, the Appellate Body underscored that both
Article 11.2 of the SPS Agreement and Article 13 of the DSU confer "significant investigative authority" on
panels. (Appellate Body Report, Japan – Agricultural Products II, para. 129)
419 India's appellant's submission, paras. 103-107.
420 India's appellant's submission, para. 107.
421 India's appellant's submission, paras. 120-124.
422 India's appellant's submission, paras. 109-119.
423 India's appellant's submission, paras. 125-133.
424 United States' appellee's submission, paras. 91-102.

demonstrated that the Panel acted inconsistently with Article 3.2 of the DSU. 425 In addition, the
United States does not agree that the Panel disregarded certain arguments and evidence
presented by India, and considers that, in any event, such information was irrelevant to the
Panel's assessment of India's AI measures.
426 Finally, the United States considers that the Panel's
conclusion is supported by evidence on the Panel record, and that none of the evidence to which
India refers undermines the Panel's findings on the meaning of the OIE Code.427
5.92. Regarding the Panel's consultation with th e OIE, India contends that the Panel failed to
make an objective assessment of the matter under Article 11 of the DSU because it "simply relied
on the interpretation provided by the OIE". 428 India relies on the reasoning of the Appellate Body
in India – Quantitative Restrictions as establishing that a panel may not delegate its judicial
function to an international organization that it consults, but must instead critically assess the
views of that international organization. 429 India asserts that the Panel in this dispute failed to
assess critically the answers provided by the OIE with respect to the OIE Code.
5.93. Having reviewed the Panel's analysis and reasoning, we do not agree with India that the
Panel simply relied on the views of the OIE rega rding the meaning of the OIE Code. Although the
Panel, in respect of each of the interpretative i ssues it addressed, referred to and accorded weight
to the OIE's responses to its questions, it indicated in each instance that its conclusions were also
based on an examination of the wording or text of the relevant recommendations of the OIE Code.
After identifying the product-specific recommend ations that were applicable to the product
categories set out in S.O. 1663(E), the Panel assessed the meaning of various provisions of
Chapter 10.4 of the OIE Code.
430 For example, in examining Article 10.4.1.10, the Panel stated
that its conclusion was based on "the wording of Article 10.4.1.10 as well as the explanations
provided by the OIE".431 In examining the product-specific recommendations, the Panel also stated
that its conclusion was reached after it had "examined the text of each of the product-specific
recommendations in Chapter 10.4". 432 As we have noted, the Panel then identified specific
provisions of Chapter 10.4 that, in its view, allowed the importation of poultry products from
countries reporting LPNAI, or regardless of their NAI status.
433 In relation to the regionalization
issue, the Panel itself assessed relevant provisions of Chapter 10.4, before concluding that the
product-specific recommendations in Chapter 10.4 may apply not only country-wide, but also to
zones and compartments.
434 In these circumstances, it is clear that the Panel's conclusions were
founded on its own assessment of the meaning of relevant provisions of the OIE Code.
5.94. We also do not see that it was inconsistent with its duties under Article 11 of the DSU for
the Panel to have consulted the OIE, or to have accorded weight to the OIE's views, regarding the
meaning of the OIE Code. As we have explained, Annex A(3)(b) to the SPS Agreement provides
that the relevant international standards for purposes of animal health and zoonoses are those
developed under the auspices of the OIE. Because Chapter 10.4 of the OIE Code reflects the
relevant international standard in respect of AI, and therefore serves as the benchmark against
which India's AI measures had to be compared in order to determine whether they are "based on"
or "conform to" that standard, it was incumbent on the Panel to discern the meaning of the
OIE Code in order to determine whether India's AI measures satisfy Articles 3.1 and 3.2 of the
SPS Agreement. In these circumstances, we do not see that the Panel, in connection with its own
assessment of the meaning of the OIE Code, can be faulted for engaging in a consultation with,
and according weight to the views of, the very international organization under whose auspices
that international standard is developed. We wo uld expect that, in discerning the meaning of an
international standard, panels ordinarily would have recourse to the views of the relevant
standard-setting body, as referred to in Annex A(3) to the SPS Agreement. While a panel may act
inconsistently with Article 11 of the DSU by improperly delegating its adjudicative function to
experts with whom it consults, it is not inconsistent with Article 11 for a panel to accord weight to

425 United States' appellee's submission, paras. 90 and 109.
426 United States' appellee's submission, paras. 103-108.
427 United States' appellee's submission, paras. 110-115.
428 India's appellant's submission, para. 101.
429 India's appellant's submission, paras. 101-102 (referring to Appellate Body Report, India –
Quantitative Restrictions, para. 149).
430 Panel Report, paras. 7.228-7.274.
431 Panel Report, para. 7.239.
432 Panel Report, para. 7.251.
433 Panel Report, para. 7.252.
434 Panel Report, paras. 7.256-7.259 and 7.262.

the views of such experts in connection with its own assessment of the matter before it. 435 We
therefore do not see that the Panel delegated it s adjudicative function to the OIE in a manner
inconsistent with its duties under Article 11 of the DSU.
5.95. India further argues that the Panel failed to conduct its assessment of the meaning of the
OIE Code in accordance with customary rules of treaty interpretation. According to India, because
the OIE Code is the international standard for the purposes of Article 3 of the SPS Agreement, it
"forms the relevant context for interpretation of Article 3.1 and Article 3.2 of the
SPS Agreement".
436 The OIE Code, India adds, must therefor e be interpreted in accordance with
customary rules of treaty interpretation, as prescr ibed by Article 3.2 of the DSU. India maintains
that, although it repeatedly urged the Panel to interpret the OIE Code in accordance with
customary principles of treaty interpretation, the Panel disregarded its argument and therefore
acted inconsistently with Article 11 of the DSU.437
5.96. The United States argues that India has not demonstrated that the Panel acted
inconsistently with Article 3.2 of the DSU by no t interpreting the OIE Code in accordance with
customary rules of interpretation of public international law, and that India has not explained why
interpreting the OIE Code in accordance with customary rules would result in any different
outcome than what the Panel found. 438 The United States argues that Article 3.2 provides that
customary rules of interpretation apply to interpreting the covered agreements, which do not
include the OIE Code. The United States adds that, in any event, determining the existence and
content of international standards is a question of fact, not a question of law.
439
5.97. We have some difficulty understanding the pr ecise nature of this part of India's appeal. The
arguments in India's appellant's submission are brief, and are both preceded and followed by
arguments in support of its claim that the Panel failed to make an objective assessment of the
matter under Article 11. Although India refers to Article 3.2 of the DSU, we understand India to
assert that the Panel violated Article 11 of the DSU by disregarding India's contention that the
Panel must interpret the OIE Code in accordance with customary rules of treaty interpretation.
Thus, given the manner and context in which India presented its arguments, we consider this
aspect of its claim as an allegation that the Panel acted inconsistently with Article 11 of the DSU by
failing explicitly to address the applicability of customary rules of treaty interpretation when it
assessed the meaning of relevant provisions of the OIE Code.
5.98. To begin with, we are not persuaded by India's contention that the Panel's failure to refer to
India's argument that the OIE Code must be interpreted in accordance with customary rules of
treaty interpretation leads to a violation of Article 11 of the DSU. A panel is not required to identify
or address every argument advanced by a party.
440 Moreover, an appellant cannot simply reargue
its case before the Appellate Body under the guise of a claim under Article 11, but rather must
identify a specific error regarding the objectivity of the panel's assessment and explain why the
alleged error is so material that it amounts to a breach of the panel's duties under Article 11.
441
Apart from noting that the Panel did not expressly address its argument, we do not see that India
has explained how this alleged error is so material that it constitutes a breach of the Panel's duties

435 Appellate Body Report, India – Quantitative Restrictions, para. 149. See also Appellate Body Report,
Australia – Apples, para. 384.
436 India's appellant's submission, para. 121.
437 India's appellant's submission, para. 124.
438 United States' appellee's submission, para. 90.
439 United States' appellee's submission, para. 82 (referring to Appellate Body Report, EC – Hormones,
para. 132).
440 Appellate Body Report, EC – Poultry, para. 135. (emphasis omitted)
441 Appellate Body Reports, China – Rare Earths, paras. 5.178; EC – Fasteners (China), para. 442.

under Article 11. We also do not consider that India has sufficiently defined the contours of this
aspect of its claim.442
5.99. In addition, India has not demonstrated why or how the Panel's analysis departed from a
proper application of the interpretative rules India relies upon, or how, if properly applied, such
rules would have produced a different outcome regarding the meaning of the OIE Code. We note
that the Panel rejected India's proposed interpretation of Chapter 10.4, whereby an importing
country could choose the NAI-free status of the exporting country as a condition of entry, and
apply that condition only on a country-wide basis.
443 We have also found that the Panel's
conclusions regarding the meaning of the OIE Code were founded on its own assessment of the
meaning of relevant provisions of Chapter 10.4, and that the Panel did not err in according weight
to the views of the OIE. Thus, in assessing the Panel's reasoning and conclusions in connection
with India's claims, we have not identified any legal error, and India has not, in our view,
demonstrated what interpretative error the Panel allegedly committed that resulted in an incorrect
understanding of Chapter 10.4 of the OIE Code.
5.100. In the light of the foregoing considerations, we reject India's claim that the Panel acted
inconsistently with its duties under Article 11 of the DSU by failing to conduct its own assessment
of the meaning of the OIE Code, including by failing to do so in accordance with customary rules of
treaty interpretation.
5.101. India further contends that the Panel acted inconsistently with Article 11 of the DSU
because it failed expressly to address India's arguments regarding inconsistencies in the OIE's
answers in respect of the meaning of the OIE Co de, and improperly disregarded other arguments
and evidence submitted by India concerning the pr actice of other countries and previous positions
taken by the United States.
444
5.102. Regarding the purported inconsistencies in the OIE's answers, India cites portions of its
submissions before the Panel, but does not expl ain why the Panel's failure expressly to address
these arguments materially undermined the objectivity of the Panel's analysis. Rather, India seems
to be rearguing before us the positions that it put to the Panel, but which the Panel did not accept.
For instance, India points to various paragraphs in its submissions that presented to the Panel its
views in respect of: Article 10.4.1.10; the product-specific recommendations in Chapter 10.4; and
the references to "zones or compartments" in the recommendations in Chapter 10.4.
445 All of these
arguments, however, relate to India's principal contention that the OIE Code allows importing
countries, based on their appropriate level of protection, to choose whether to apply a
recommendation pertaining to products from NAI-free or HPNAI-free territories, and whether to
apply a recommendation on a country-wide basis, or on a zone or compartment basis. As we see
it, however, the Panel expressly rejected India's understanding of the OIE Code when it stated that
"India's interpretative approach, whereby Chapter 10.4 would allow an importing country to
choose as a 'condition of entry' the NAI-free st atus of the exporting country and apply that
condition only on a country-wide basis, runs contrary to Chapter 10.4 of the [OIE] Code".
446 We
therefore do not see, and India has not explained in its submissions on appeal, how the absence of
a more extensive or explicit treatment of India's argumentation was so material as to undermine
the objectivity of the Panel's analysis.

442 It appears to us that India's position on appeal differs from its position before the Panel. India's
principal position before the Panel was that the OIE Code was a treaty and therefore must be interpreted in
accordance with the rules of the Vienna Convention. (India's appellant's submission, para. 124 (referring to
letter from India to the Panel, dated 11 July 2013, pp. 2-3; India's comments on the OIE's and individual
experts' responses to Panel questions, dated 28 November 2013, paras. 3 and 34-36; and India's closing
statement at the second Panel meeting, para. 7)) At the oral hearing, India stated that it is not arguing on
appeal that the OIE Code is itself a treaty subject to Vienna Convention rules, but rather that it serves as
context for the interpretation of Articles 3.1 and 3.2 of the SPS Agreement. We further note that, although
India makes reference on appeal to Articles 31(2) and 31(3) of the Vienna Convention, it advances no clear
explanation as to how, and for what purpose, in India's view, the OIE Code meets the specific criteria for those
provisions to apply. (India's appellant's submission, paras. 121-122)
443 Panel Report, para. 7.270.
444 India's appellant's submission, paras. 109-119.
445 India's appellant's submission, paras. 104-106 (referring to India's first written submission to the
Panel, paras. 123-146; second written submission to the Panel, paras. 6-24, 33-51, and 53; comments on
OIE's responses to Panel's questions dated 28 November 2013, paras. 33-57; and opening statement at the
first Panel meeting, paras. 16-18 and 32-37).
446 Panel Report, para. 7.270.

5.103. India further maintains that the Panel ignored India's reference to the practice of other
countries in support of India's interpretation of the OIE Code. Before the Panel, India had pointed
to bans imposed by certain countries on poultry products from the United States that, in India's
view, show that the OIE Code permits countries to prohibit imports on account of LPNAI.
447 India
further contends that the Panel ignored statements by Australia that Australia's AI measures
conform to the OIE Code.448
5.104. India has not explained why express consideration of the instances it identified before the
Panel was necessary to ensure the objectivity of the Panel's assessment. The mere fact that one or
several countries have adopted a particular measure does not mean that such a measure is based
on, or conforms to, the relevant international standard. It may be, for instance, that these
measures were adopted in a manner inconsistent wi th the relevant standard, or adopted so as to
maintain a higher level of protection than woul d be achieved by basing them on the relevant
standard, as provided for under Article 3.3 of the SPS Agreement. Indeed, the arguments and
evidence advanced by India offer a limited account of the practice of these countries and do not
identify or discuss the grounds upon which the various countries adopted their respective
measures.
449 Moreover, although India asserts that Australia bans imports of chicken meat due to
LPNAI and that this supports India's reading of the OIE Code, Australia rejected India's
characterization of its practice, and the Panel took note of this. 450 For these reasons, even if the
Panel did not expressly address all of India's arguments and evidence in this regard, we do not see
that this was so material as to undermine the objectivity of the Panel's analysis.
5.105. In addition, India argues that the Panel disregarded its argument that the United States'
position on Article 6 implies that it accepts that a trade restriction can be imposed upon the
occurrence of HPNAI and LPNAI. In support of this argument, India refers to a statement from the
United States' first written submission to the Panel, which pertains to the United States' claim
under Article 6 of the SPS Agreement:
India's measures explicitly ban poultry from all parts of a country whenever NAI is
detected anywhere in the country. Their wording leaves no room for deviation. This
precludes the application of AI restrictions on a regionalized basis, as provided for in
the [OIE Code], and as required under Article 6 of the SPS Agreement.451
5.106. In India's view, by acknowledging that the OIE Code provides for "the application of
AI restrictions" upon detection of NAI, this statement implies the United States' agreement with
what India characterizes as the Panel's conclusion that "the OIE Code prohibits import of poultry
and poultry products upon occurrence of HPNAI/LPNAI". 452 India's reading of the United States'
purported admission, and of the Panel's supposed conclusion, however, appears to us to be
incorrect. First of all, the Panel did not, as Indi a argues, conclude that the OIE Code prohibits the
importation of poultry products upon the occurrenc e of HPNAI or LPNAI. Rather, as we noted, the
Panel found that the OIE Code allows for such products to be imported from countries reporting
LPNAI, or regardless of NAI status, when the applicable risk mitigation conditions are fulfilled.
Moreover, we do not see that the United States' general reference to "AI restrictions on a
regionalized basis" can be read as an admission that the OIE Code provides for import prohibitions,
or that it does so in respect of both HPNAI and LPNAI. In addition, we do not understand how the
Panel could be said to have disregarded India's argument regarding purported contradictions in the
United States' position, since India, in its submissions before the Panel, appears not to have
presented an argument concerning the above-quot ed passage in the context of its argumentation

447 India's appellant's submission, para. 109.
448 India's appellant's submission, para. 112.
449 See India's appellant's submission, fn 198 to para. 109 (referring to India's second written
submission to the Panel, paras. 33-34; and India's comments on OIE's responses to Panel questions dated
28 November 2013, para. 57).
450 As a third participant in this appeal, Australia submits that the Panel correctly understood Australia's
risk assessment, and contests India's arguments to the contrary. (Australia's third participant's submission,
paras. 10-14 (referring to Panel Report, para. 7.313))
451 India's appellant's submission, para. 115 (quoting United States' first written submission to the
Panel, para. 142). (emphasis added by India)
452 India's appellant's submission, para. 116.

concerning Article 3 of the SPS Agreement. 453 We therefore reject India's claim that the Panel's
failure expressly to address these arguments and evidence in its Report somehow undermined the
objectivity of the Panel's assessment.
5.107. Finally, we address India's claim that th e Panel failed to make an objective assessment of
the matter in accordance with Article 11 of the DSU by reaching findings regarding the meaning of
the OIE Code that lack support in the evidence on the record. India points to three instances in
which the Panel allegedly failed to base its conclusions on such evidence. First, India points to an
exhibit on the Panel record containing a communication in which the United States requested India
to limit its measures banning poultry and poultry products due to LPNAI incidents to the affected
zone and not beyond the three months provided for in the OIE guidelines.
454 According to India,
the language used by the United States in this communication indicates that it considers that
import restrictions can be imposed on the occurrence of HPNAI and LPNAI, and, according to India,
this contradicts the Panel's conclusion that no trade restriction can be imposed upon the
occurrence of HPNAI or LPNAI. Second, India argues that, because the United States has
acknowledged that a ban against HPNAI is a legitimate trade barrier, there was no factual basis for
the Panel to conclude that the OIE Code does not provide for a ban against the import of poultry
products upon the occurrence of HPNAI.
455 Third, India maintains that the Panel's conclusion is not
supported by the OIE's own interpretation of the OIE Code, in which the OIE appeared to
acknowledge that a country that is not free from HPNAI cannot export fresh poultry meat. 456 India
thus maintains that the Panel's conclusion that the product-specific recommendations in the
OIE Code do not provide for import prohibitions upon the occurrence of HPNAI lacks a factual
basis.
5.108. We understand that, by invoking these thr ee instances, and pointing to evidence on the
Panel record submitted by the United States, India maintains that the Panel's conclusion that the
OIE Code does not envisage import prohibitions is not supported by evidence on the Panel record.
In raising this claim, India does not engage with the evidence the Panel did cite to and rely upon,
but simply points to other evidence on the Panel record. However, the fact that particular pieces of
evidence may not support, or may even contradict, the reasoning or conclusions of the Panel does
not suffice to make out a claim that the Panel's findings lacked a sufficient basis in the factual
record. Furthermore, an appellant must demonstrate that the error or omission is so material that
it undermines the objectivity of the Panel's assessme nt of the matter before it. On the basis of its
submissions on appeal, we do not see that India, by pointing to the above three instances, has
demonstrated that the Panel failed to conduct an objective assessment of the matter under
Article 11 of the DSU.
5.109. Moreover, India's contentions appear to be premised on a misreading of the Panel's
conclusion. According to India, the Panel had no basis for its conclusion that the OIE Code does
not envisage the imposition of import prohibitions with respect to poultry products, because the
evidence, in fact, reflects a recognition that such import prohibitions can be imposed. As we have
previously noted, when the Panel stated that th e OIE Code does not envisage the imposition of
import prohibitions, it was not stating that the OIE Code precludes OIE members from restricting
or banning the importation of products in circumstances where the recommendations of the
OIE Code do not apply, but rather was addressing whether the OIE Code itself prescribes
prohibitions on the importation of products in circumstances where these recommendations do
apply.
457 For these reasons, we reject India's claim that the Panel reached findings regarding the
meaning of the OIE Code that lack support in the evidence on the record.
5.110. We have rejected India's claims that the Panel failed to conduct an objective assessment
under Article 11 of the DSU by: (i) failing to co nduct its own assessment of the meaning of the
OIE Code, including by failing to apply customary ru les of treaty interpretation; (ii) disregarding

453 The paragraphs from India's first written submission to the Panel to which India refers addressed the
United States' claim under Article 6 of the SPS Agreement. (India's appellant's submission, para. 115 (referring
to India's first written submission to the Panel, paras. 271-275))
454 India's appellant's submission, para. 126 (referring to Letter dated 20 October 2009 from M. Gilkey
(Director, APHIS) to A. Kaushal (Joint Secretary, DAHD), regarding: "S.O. 2208(E) Notification published in the
Gazette of India on August 28, 2009" (Panel Exhibit US-141), p. 3).
455 India's appellant's submission, para. 129 (referring to, inter alia, Expert statement of David E.
Swayne, attached to United States' first written submission to the Panel (Panel Exhibit US-97)).
456 India's appellant's submission, para. 131 (referring to OIE's response to Panel question No. 7(b)).
457 See supra, paras. 5.72-5.74.

arguments and evidence provided by India pert aining to the meaning of the OIE Code; and
(iii) reaching findings regarding the meaning of the OIE Code that lack support in the evidence on
the record. We therefore find that India has not established that the Panel acted inconsistently
with its duty to conduct an objective assessment of the matter pursuant to Article 11 of the DSU in
its assessment of the meaning of the OIE Code.
5.2.5 Conclusion
5.111. We have found that the Panel did not act inconsistently with Article 11.2 of the
SPS Agreement and Article 13.2 of the DSU in consulting with the OIE regarding the meaning of
the OIE Code. We also have found that India has not established that the Panel acted
inconsistently with its duty to conduct an objective assessment of the matter pursuant to
Article 11 of the DSU in its assessment of the meaning of the OIE Code. Accordingly,
we uphold the Panel's findings, in paragraphs 7.274, 7.275, and 8.1.c.ii of the Panel Report, that
India's AI measures are inconsistent with Article 3.1 of the SPS Agreement, and that India is not
entitled to benefit from the presumption of consistency of its AI measures with other relevant
provisions of the SPS Agreement and the GATT 1994 as provided for under Article 3.2 of the SPS
Agreement. Having upheld the Panel's findings, we need not address India's consequential request
that we complete the legal analysis in respect of Articles 3.1 and 3.2 of the SPS Agreement.458
5.3 Article 6 of the SPS Agreement
5.112. India appeals certain findings by the Panel in the context of its analysis of the
United States' claim under Article 6 of the SPS Agreement. India requests us to reverse the Panel's
findings that India's AI measures are inconsistent with Articles 6.1 and 6.2 of the SPS Agreement.
India argues that the Panel: (i) erred in its interpretation of the relationship between Article 6.1
and Article 6.3 of the SPS Agreement; (ii) erred it s application of Article 6.2 of the SPS Agreement
to India's AI measures; and (iii) failed to make an objective assessment of the matter, as required
by Article 11 of the DSU.
5.113. We begin by summarizing relevant aspects of the Panel's findings. Then, we provide
certain observations about the obligations in Article 6 in respect of the adaptation of SPS measures
to regional conditions. Next, we examine India's claim that the Panel erred in its understanding of
the relationship between Articles 6.1 and 6.3 of the SPS Agreement. We then turn to address
India's claim that the Panel erred in its applicat ion of Article 6.2 of the SPS Agreement to the
measures at issue. Finally, we analyse India's claims that the Panel acted inconsistently with its
obligations under Article 11 of the DSU.
5.3.1 The Panel's findings
5.114. Before the Panel, the United States claimed that India's AI measures are inconsistent with
Article 6.1, first sentence, of the SPS Agreemen t because they are not adapted to the sanitary
characteristics of the area from which the imports originated. The United States also argued that
India's AI measures fail to comply with the seco nd sentence of Article 6.1 because India did not
take into account disease-free areas, areas of low disease prevalence, the existence of an
eradication or control programme, or the relevant OIE guidelines. With respect to Article 6.2, the
United States claimed that India's AI measures are inconsistent with its first sentence because
they do not recognize the concepts of disease-fr ee areas or areas of low disease prevalence, and
with its second sentence because, by precluding the recognition of disease-free areas with respect
to AI, India's AI measures further preclude it from determining AI-free areas based on the factors
mentioned in Article 6.2, second sentence.
459 Pointing to the fact that India's AI measures
explicitly ban the importation of poultry products from all parts of a country whenever NAI is
detected anywhere in that country, the United St ates emphasized that these measures, therefore,
preclude the application of AI restrictions on a regionalized basis and preclude India from taking
account of the SPS characteristics of different regions.

458 Accordingly, we also need not address India's request that, were we to complete the legal analysis
and find India's AI measures to be consistent with Article 3 of the SPS Agreement, we also reverse the Panel's
findings under Articles 2.2, 2.3, and 5.6 of the SPS Agreement. (India's appellant's submission, para. 204)
459 Panel Report, para. 7.618.

5.115. In response, India contended, inter alia , that "Article 6.3 is critical to understanding
Members' obligations under Articles 6.1 and 6.2 of the SPS Agreement because these provisions 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."
460 Thus, for India, since the
United States had not fulfilled its obligation under Article 6.3 of the SPS Agreement, the
requirements under Articles 6.1 and 6.2 had not been triggered and India was under no obligation
to modify its measure or to recognize areas within the United States "unilaterally".461
5.116. Noting that the parties disagreed on whether the obligations in Articles 6.1 and 6.2 of the
SPS Agreement are contingent upon whether an exporting Member has discharged the steps
provided for in Article 6.3, the Panel decided that its "first task" was to determine the relationship
among the three paragraphs of Article 6 of the SPS Agreement.
462 The Panel made brief
preliminary observations about each of the paragr aphs of Article 6. The Panel then stated that,
since "Article 6 does not provide an explicit indication of the manner in which its []paragraphs
interact with one another", it would consider whether Article 6 or its paragraphs "suggest any kind
o f h i e r a r c h y o r s e q u e n c e t o b e f o l l o w e d i n o r d e r t o g i v e p r o p e r e f f e c t t o t h e i r t e r m s " .
463 In
proceeding to analyse the relationship between Articles 6.1 and 6.2, on the one hand, and
Article 6.3, on the other hand, the Panel made certain observations concerning: (i) the relationship
between the first and second sentences of Article 6.1; (ii) the relationship between the first and
second sentences of Article 6.2; and (iii) the meaning of the obligation to "recognize" the concepts
of "pest- or disease-free areas" and "areas of low pest or disease prevalence" in the first sentence
of Article 6.2.
5.117. With respect to the relationship between Articles 6.1 and 6.2, on the one hand, and
Article 6.3, on the other hand, the Panel considered the first two paragraphs of Article 6, and
began by observing certain differences between them. For instance, the Panel indicated that "the
use of different wording in these paragraphs suggests that the paragraphs are intended to have
distinctive effects."
464 In particular, whereas the obligation in Article 6.1 to ensure that
SPS measures are "adapted" denotes that a Member must make certain that its SPS measures are
suitable for the SPS characteristics of the area, the first sentence of Article 6.2 requires that a
Member make a particular acknowledgement, namely, of the concepts of pest- or disease-free
areas and areas of low pest or disease prevalen ce. The Panel also pointed out that the first
sentences of these two paragraphs refer to different subjects: whereas Article 6.1 refers to
"SPS measures", Article 6.2 refers to the "concepts" of "pest- or disease-free areas" and "areas of
low pest or disease prevalence".
465 Moreover, the Panel expressed the view that, given that a
"concept" is an "abstract idea", the obligation in the first sentence of Article 6.2 to recognize the
specified "concepts" is "less exigent" than the ob ligation in the first sentence of Article 6.1 "of
'ensuring' that a measure is 'adapted' to the SPS characteristics of an area from which a product
originated and to which it is destined".
466
5.118. Next, the Panel noted that the words "in particular" in Article 6.2, read together with the
title to Article 6, show that pest- or disease-free areas and areas of low pest or disease prevalence
are a subset of all types of areas covered by Article 6, and that the first sentence of Article 6.2
deals with these types of areas. 467 The Panel explained, in this connection, that it viewed the
manner in which a Member develops and maintains its SPS measures as a "logical continuum". In
the Panel's view, "the 'adaptation' of a Member 's SPS measures to the SPS characteristics of
particular 'areas' presupposes that a Member has first 'recognized' the concept of such areas." 468
The Panel considered that it would be difficult to see how a WTO Member could ensure the
adaptation of its SPS measures, as required by Article 6.1, "if the Member has not 'recognized' the
'concepts' of specific types of areas identified in Article 6.2 in the first place".
469 The Panel then
turned to paragraph 3 of Article 6 and, in particular, to India's contention that a WTO Member's
duty under Article 6.1 to adapt its SPS measures would arise only after those measures have

460 Panel Report, para. 7.633.
461 Panel Report, paras. 7.634 and 7.652.
462 Panel Report, para. 7.648.
463 Panel Report, para. 7.665.
464 Panel Report, para. 7.669.
465 Panel Report, para. 7.670.
466 Panel Report, para. 7.670.
467 Panel Report, para. 7.671.
468 Panel Report, para. 7.672.
469 Panel Report, para. 7.672.

entered into force and an exporting Member has made a fully documented request under
Article 6.3. In this regard, the Panel first observed that the situation referred to in Article 6.3 is
distinct from those referred to in the first two paragraphs of Article 6, in that Article 6.3 is
addressed to, and puts the onus on, exporting Members, as opposed to WTO Members generally.
For the Panel, Article 6.3 is "not directly linked" to the first two paragraphs of Article 6 or to "what
WTO Members must do generally with respect to adapting measures to SPS characteristics of
certain areas, or in particular to recognizing specific area concepts".
470
5.119. In addition, the Panel expressed the view th at a "plain reading" of Article 6.1 – including
the absence of any conditional language and the fa ct that it is expressed in the present tense –
shows that this provision creates a "free-standing" obligation requiring a Member to ensure that
adaptation of its measure to the SPS characteristics of the area "is an element of the SPS measure
as such ".
471 Thus, the Panel considered that the language of the first sentence of Article 6.1
"negates" India's argument that adaptation involves an ex post facto "modification" of the
SPS measure pursuant to an exporting Member's request. 472 As for the relationship between
Articles 6.2 and 6.3, the Panel considered that "the recognition of the concepts of such areas must
necessarily precede a request for recognition of a specific area within the territory of an exporting
Member" since, "logically", "the importing Member must have already recognized in its
SPS measures the concepts of pest- or disease-free areas and areas of low pest or disease
prevalence, as required under Article 6.2, in order for it to receive and consider a request for
recognition under Article 6.3."
473 Therefore, the Panel concluded that the obligations in Articles 6.1
and 6.2 are not triggered by an exporting Member submitting a claim to an importing Member
under Article 6.3. Rather, in the Panel's view, these provisions establish obligations on all WTO
Members with respect to their SPS measures, not ju st those that have received a request from an
exporting Member for recognition of an area under Article 6.3.474
5.120. Nevertheless, the Panel acknowledged that, in certain circumstances, namely, when an
importing Member receives a request for the recognition of a particular disease-free area in an
exporting Member, there may be a link between Article 6.3 and Article 6.1. For the Panel, such link
may exist between the information required for the assessment of the SPS characteristics of a
relevant area listed in the second sentence of Article 6.1 and the obligation of an exporting
Member to provide "the necessary evidence" under Article 6.3.
475 At the same time, the Panel
stated that, "although Article 6.1 may inform the inquiry that an importing Member may conduct in
order to determine whether an exporting Member ha s 'objectively demonstrated' that there is an
area within its territory that is pest- or disease-free or is an area of low pest or disease
prevalence, there is nothing in the language of either provision that requires this particular
approach."
476
5.121. Based on the above, the Panel explained its understanding of the relationship between
Articles 6.1 and 6.2, on the one hand, and Article 6.3, on the other hand, as follows:
… the interplay between the three paragraphs of Article 6 is that Members must adapt
their SPS measures to the SPS characteristics of an area from which goods originate
or to which they are destined and, logically, they must already have recognized as per
Article 6.2 the "concepts" of pest- or disease-free areas and areas of low pest or
disease prevalence in order to do so. The steps in Article 6.3 are directed at exporting
Members and presuppose that an importing Member from which they seek recognition
that an area in its territory is pest- or disease-free or is an area of low pest or disease
prevalence, is in compliance with its obligations under Articles 6.1 and 6.2. We thus

470 Panel Report, para. 7.674.
471 Panel Report, para. 7.675. (emphasis original) As additional support for its view that Articles 6.1
and 6.2 create "free-standing obligations rather than obligations contingent upon a request from a Member
claiming that areas within its territory are pest- or disease-free, pursuant to Article 6.3", the Panel also
referred to Article 4 of the SPS Agreement, which – in contrast to Article 6 – explicitly conditions the importing
Member's actions upon an action by the exporting Member, as well as to the "Guidelines to Further the
Practical Implementation of Article 6 of the Agreement on the Application of Sanitary and Phytosanitary
Measures" adopted by the SPS Committee. (Ibid., para. 7.679)
472 Panel Report, para. 7.675.
474 Panel Report, para. 7.678.
475 Panel Report, para. 7.676.
476 Panel Report, para. 7.676.

conclude that the obligations in Articles 6.1 and Article 6.2 are not triggered by an
invocation of Article 6.3, as argued by India.477
5.122. Next, the Panel turned to the second interpretative issue, namely, the relationship between
the first and second sentences of Article 6.1, and between the first and second sentences of
Article 6.2. In this connection, the Panel expressed the view that the meaning of "area" in the first
sentence of Article 6.1 and of "region" in the second sentence of Article 6.1 are "sufficiently similar
to warrant a conclusion" that the assessment referred to in the second sentence relates to the
adaptation of measures to the areas referred to in the first sentence.478 Accordingly, the Panel held
that "a failure to ensure that SPS measures are adapted to the SPS characteristics of an area for
the purpose of Article 6.1, first sentence, may warrant a concomitant finding that the Member has
not taken into account the factors in Article 6.1, second sentence, in assessing the
SPS characteristics of a region."
479
5.123. In examining the relationship between the first and second sentences of Article 6.2, the
Panel considered that the requirement, set out in the second sentence of that provision, to make a
"determination" of pest- or disease-free areas and areas of low pest or disease prevalence "based
on" the factors listed therein480 "presupposes the 'recognition' of the 'concepts' of those areas", as
required by the first sentence of Article 6.2. 481 In the Panel's view, "if a Member is to determine a
pest- or disease-free area or area of low pest or disease prevalence based on the factors listed in
Article 6.2, second sentence … such Member mu st necessarily recognize the concept of those
areas."482 The Panel thus interpreted Article 6.2 such that "a finding that a Member has failed to
recognize the concepts of pest- or disease-free ar eas and areas of low pest or disease prevalence
as required by Article 6.2, first sentence, leads inevitably to a finding that such Member also has
failed to determine those areas based on factors such as geography, ecosystems, epidemiological
surveillance, and the effectiveness of sanitary or phytosanitary controls"
483, as required by the
second sentence of Article 6.2.
5.124. All of the above led the Panel to the vi ew that it should begin its analysis of the
consistency of India's AI measures with Article 6 by focusing on the first sentence of Article 6.2.
Since, in the Panel's view, a Member cannot ensure that its SPS measures are adapted to the SPS
characteristics of an area without first recognizing the concept of "areas" (and, in particular for
Article 6.2, pest- or disease-free areas and areas of low pest or disease prevalence), the Panel
decided to first consider whether India has "recognized" the "concepts" of "disease-free areas" and
"areas of low disease prevalence" in relation to AI. For the Panel, a finding that India has not
recognized these concepts would "lead to" a finding that India has not ensured that its
AI measures are adapted to the SPS characteristics of those areas pursuant to the first sentence of
Article 6.1.
484
5.125. The Panel dealt with the third interpretative issue – namely, the meaning of the obligation
to "recognize" the concepts of pest- or disease-free areas and areas of low pest or disease
prevalence – in a subsequent part of its analysis, when assessing the United States' claim that
India's AI measures are inconsistent with Article 6.2 of the SPS Agreement. The Panel observed
that the text of Article 6.2 is silent as to how WTO Members are to recognize the concepts referred
to therein
485, and that the definition of the word "rec ognize" does not answer the question of
whether the recognition of the concepts found in Article 6.2 "must be done explicitly, and if so,

478 Panel Report, para. 7.684.
479 Panel Report, para. 7.685.
480 The Panel noted that the second sentence of Article 6.2 refers to factors "such as geography,
ecosystems, epidemiological surveillance, and the effectiveness of sanitary or phytosanitary controls". (Panel
Report, para. 7.687)
481 Panel Report, para. 7.688.
482 Panel Report, para. 7.688.
484 Panel Report, para. 7.690.
485 Panel Report, para. 7.696.

whether it should be done in writing through a legislative or administrative act." 486 In the view of
the Panel, "the format of such recognition will depend on the circumstances of each particular
case", and the text of Article 6.2 did not give the Panel any mandate "to prescribe to India or any
other Member the manner in which it should 'recognize' the concepts of pest- or disease-free areas
and areas of low pest or disease prevalence."
487 The Panel nevertheless expressed the view that,
in order to comply with Article 6.2, "SPS measures adopted by WTO Members must at a minimum
not deny or contradict the recognition of the co ncepts of such areas when these concepts are
relevant with respect to the disease at issue."488
5.126. Turning to examine India's AI measures, the Panel first noted that the Livestock Act is
silent on the concepts of disease-free areas and areas of low disease prevalence and that there is
broad discretion inherent in the general powers conferred by Sections 3 and 3A of the
Livestock Act. However, the Panel pointed out that there is no evidence on the record of this
dispute that India has used its discretion either t o r e c o g n i z e , o r t o d e n y o r c o n t r a d i c t t h e
recognition of, the concept of such areas.
489 Next, in examining S.O. 1663(E), the Panel recalled
that this instrument, which was issued pursuant to Sections 3 and 3A of the Livestock Act,
prohibits the importation of the relevant products on a country-wide basis. The Panel found
nothing on the face of this instrument that allows for the recognition of disease-free areas and/or
areas of low disease prevalence within a country that notifies NAI to the OIE. To the contrary, the
Panel considered that S.O. 1663(E) "reflects the opposite"
490, and that it does so in "clear and
unequivocal language". 491 Therefore, the Panel held that, "by imposing a prohibition on a
country-wide basis, [S.O. 1663(E)] contradicts the requirement to recognize the concept of
disease-free areas and areas of low disease prevalence".492
5.127. Accordingly, the Panel concluded that, taken together, India's AI measures do not
recognize the concepts of disease-free areas and areas of low disease prevalence with respect to
AI and are therefore inconsistent with Article 6.2, first sentence, of the SPS Agreement. 493 As a
consequence, the Panel found that India's AI measures are also inconsistent with Article 6.2,
second sentence, because the failure to recognize the concepts of disease-free areas and areas of
low disease prevalence leads inevitably to a finding that India has also failed to determine those
areas based on the factors enumerated in Article 6.2, second sentence.
494
5.128. As a consequence of its finding that India's AI measures fail to recognize the concepts of
disease-free areas and areas of low disease prevalence, the Panel also found that India's
AI measures are not adapted to the SPS characteristics of the areas from which the products
originate and to which they are destined, and are t hus inconsistent with Article 6.1, first sentence.
With respect to the United States' claim under the second sentence of Article 6.1, the Panel
observed that India has not conducted the assessment of the SPS characteristics of a region, as
envisaged in that provision. Therefore, the Panel found that India's AI measures are also
inconsistent with Article 6.1, second sentence.
495
5.3.2 Overview of Article 6
5.129. With respect to the Panel's interpretation of Article 6 of the SPS Agreement, India's appeal
specifically challenges the Panel's understanding of the relationship between the first and third

486 Panel Report, para. 7.698. The Panel adopted the meaning of "recognize" identified by the
Appellate Body in the context of Annex 1.2 to the TBT Agreement, namely, to "[a]cknowledge the existence,
legality, or validity of, [especially] by formal approval or sanction; accord notice or attention to; treat as
worthy of consideration". (Ibid., para. 7.668 (quoting Appellate Body Report, US – Tuna II (Mexico), para. 361,
in turn referring to the Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press,
2007)))
487 Panel Report, para. 7.698.
488 Panel Report, para. 7.698. (emphasis added) The Panel observed that the concepts of pest- or
disease-free areas and areas of low pest or disease prevalence are not relevant with respect to all pests or
diseases, and pointed out that, for certain pests or diseases, the OIE Code does not recommend
489 Panel Report, paras. 7.700-7.701.
490 Panel Report, para. 7.702.
491 Panel Report, para. 7.703.
492 Panel Report, para. 7.702.
493 Panel Report, paras. 7.706-7.707. See also para. 7.713.
495 Panel Report, paras. 7.709 and 7.712. See also paras. 7.714-7.715.

paragraphs of this provision. Before addressing this interpretative issue, we seek to situate the
relationship between Articles 6.1 and 6.3 within the broader scheme of Article 6. We think it useful
to begin by considering the content and structure of Article 6 as a whole, and the relationship
among its three paragraphs.
5.130. Article 6 of the SPS Agreement provides:
Article 6
Adaptation to Regional Conditions, Including Pest- or Disease-Free Areas
and Areas of Low Pest or Disease Prevalence

1. Members shall ensure that their sanitary or phytosanitary measures are adapted
to the sanitary or phytosanitary characteristics of the area – whether all of a country,
part of a country, or all or parts of several countries – from which the product
originated and to which the product is destined. In assessing the sanitary or
phytosanitary characteristics of a region, Members shall take into account, inter alia,
the level of prevalence of specific diseases or pests, the existence of eradication or
control programmes, and appropriate criteria or guidelines which may be developed
by the relevant international organizations.
2. Members shall, in particular, recognize the concepts of pest- or disease-free
areas and areas of low pest or disease prevalence. Determination of such areas shall
be based on factors such as geography, ecosystems, epidemiological surveillance, and
the effectiveness of sanitary or phytosanitary controls.
3. Exporting Members claiming that areas within their territories are pest- or
disease-free areas or areas of low pest or disease prevalence shall provide the
necessary evidence thereof in order to objectively demonstrate to the importing
Member that such areas are, and are likely to remain, pest- or disease-free areas or
areas of low pest or disease prevalence, respectively. For this purpose, reasonable
access shall be given, upon request, to the importing Member for inspection, testing
and other relevant procedures.
5.131. Article 6 of the SPS Agreement establishes, through its three paragraphs, a series of
obligations regarding the adaptation of SPS measur es to regional conditions. We start by noting
that both the title of this provision and the first sentence of Article 6.1 refer to the requirement to
"adapt" SPS measures to certain regional conditions. Whereas the title speaks more generally of
"Adaptation to Regional Conditions", the first se ntence of Article 6.1 imposes on WTO Members a
specific obligation to ensure that their SPS measures are "adapted" to the "sanitary or
phytosanitary characteristics" of the areas from which the product originated and to which the
product is destined. Moreover, we observe that, am ong the regional conditions in respect of which
adaptation is envisaged, the title to Article 6 refers to "Pest- or Disease-Free Areas and Areas of
Low Pest or Disease Prevalence". We see a link between this language and the second sentence of
Article 6.1, which identifies the "level of prevalen ce of specific diseases or pests" as one of the
relevant SPS characteristics of a region in respect of which adaptation is envisaged. Similarly, the
reference to "Pest- or Disease-Free Areas and Areas of Low Pest or Disease Prevalence" in the title
of Article 6 is also directly connected with the second and third paragraphs of this provision, which
deal explicitly with these types of areas.
5.132. The first sentence of Article 6.1 stipulates 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 and to which the product is destined." The verb "ensure" is
defined as to make certain the occurrence of a situation or outcome.
496 In turn, the term "adapt"
means "fit, adjust, ( to); make suitable ( to or for)".497 Two areas are relevant to the obligation in
the first sentence of Article 6.1: the area from which the product originated and the area to which

496 Relevant definitions of the term "ensure" are "guarantee, warrant" and "make certain the occurrence
of (an event, situation, outcome, etc.) (Foll. by that)". (Shorter Oxford English Dictionary, 6th edn,
A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 1, p. 840)
497 Shorter Oxford English Dictionary, 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007),
Vol. 1, p. 24.

the product is destined. Article 6.1 indicates that the term "area" encompasses "all of a country,
part of a country, or all or parts of several countries". The "areas" that are relevant for purposes of
Article 6.1 can therefore vary, and may entail a territory that can be smaller than, the same size
as, or bigger than, a country. We observe that, pursuant to the first sentence of Article 6.1, a
Member's obligation to ensure adaptation applies in respect of "SPS measures" in the plural,
suggesting that it applies generally, as well as in connection with each specific SPS measure
maintained by a Member. Furthermore, the use of the present tense "are adapted", and the
absence of any language limiting the temporal scope of application of this obligation, suggest that
the obligation in Article 6.1 does not apply only at one specific point in time (e.g. when an
SPS measure is adopted), but is, instead, an ongoing one. Indeed, both the notion of "adaptation",
as well as the fact that the relevant SPS characteristics of regions may fluctuate
498, point to an
obligation that is not static, but rather ongoing, requiring that SPS measures be adjusted over
time so as to establish and maintain their continued suitability in respect of the relevant
SPS characteristics of the relevant areas. We also see the use of the verb "ensure" in connection
with the adaptation of "SPS measures" in the plur al as indicating something that should be done
consistently and systematically by Members.
5.133. The first sentence of Article 6.2 establishes that "Members shall, in particular, recognize
the concepts of pest- or disease-free areas and areas of low pest or disease prevalence."
499 We
observe that the use of the words "in particular" in the first sentence of Article 6.2 underscores the
link between Articles 6.1 and 6.2. Similarly, the title to Article 6, which refers to "Adaptation to
Regional Conditions Including Pest- or Disease-Free Areas and Areas of Low Pest or Disease
Prevalence"
500, read together with the first sentence of Article 6.1, indicates that "pest- or
disease-free areas" and "areas of low pest or disease prevalence" are a subset of all the
SPS characteristics of an area that may call for the adaptation of an SPS measure. We read the
words "in particular", together with the title to Article 6, as underlining the interlinkages between
the first and second paragraphs of Article 6. More specifically, we consider that these elements
point to the particular saliency of "pest- or disease-free areas" and "areas of low pest or disease
prevalence" as factors to be taken into account in assessing the SPS characteristics of a region,
pursuant to the second sentence of Article 6.1. These considerations, in our view, indicate that,
together, Articles 6.1 and 6.2 accord prominence to the content of Article 6.2 as one particular
way through which a Member can ensure that its SPS measures are "adapted", as required by
Article 6.1.
5.134. Moreover, we note that the structure of th e first two paragraphs of Article 6 is similar in
certain respects. Each has two sentences, and in each paragraph the nature of the obligation
under the first sentence is more general than under the second sentence. The first sentence of
Article 6.2 establishes the obligation to recognize "the concepts of pest- or disease-free areas and
areas of low pest or disease prevalence". Neither of the first sentences of Article 6.1 or Article 6.2
is explicitly linked to a specific assessment or determination. Rather, the first sentence of
Article 6.1 speaks of an obligation to "ensure" adaptation in respect of SPS measures generally,
and the first sentence of Article 6.2 refers to a general obligation to "recognize" the "concepts"
listed therein.
5.135. In turn, the second sentences of Articles 6. 1 and 6.2 both identify how a specific action is
to be taken. The second sentence of Article 6.1 specifies, in a non-exhaustive manner, the
elements that Members must take into account in assessing the SPS characteristics of a region.
These elements include: the level of prevalence of specific diseases or pests; the existence of
eradication or control programmes; and appropriate criteria or guidelines that may be developed
by the relevant international organizations. The second sentence of Article 6.2 indicates how the
specific action of determining the existence of "such areas" (that is, pest- or disease-free areas
and areas of low pest or disease prevalence) is to be taken. This sentence establishes that the

498 Thus, for example, a pest may be introduced into an area where it was not previously present, or
there may be an outbreak of a disease in an area that was previously disease free. Alternatively, pests or
diseases may be eradicated in specific areas.
499 Paragraph 6 of Annex A to the SPS Agreement defines the term "pest- or disease-free area" as "[a]n
area, whether all of a country, part of a country, or all or parts of several countries, as identified by the
competent authorities, in which a specific pest or disease does not occur." Paragraph 7 of Annex A, in turn,
defines the term "area of low pest or disease prevalence" as "[a]n area, whether all of a country, part of a
country, or all or parts of several countries, as identified by the competent authorities, in which a specific pest
or disease occurs at low levels and which is subject to effective surveillance, control or eradication measures."
500 Emphasis added.

following factors must be used as a basis for making such a determination: geography,
ecosystems, epidemiological surveillance, and th e effectiveness of sanitary or phytosanitary
controls. Thus, the second sentences of Article 6.1 and of Article 6.2, respectively, identify how a
Member is required to "assess" the SPS characte ristics of a region and "determine" pest- or
disease-free areas and areas of low pest or disease prevalence.
5.136. Furthermore, we attach some significance to the fact that Article 6 does not specify any
particular manner in which a Member must "ensur e" adaptation of its SPS measures within the
meaning of Article 6.1 or "recognize" the concepts set out in Article 6.2. Indeed, the first sentence
of Article 6.1 does not establish precise steps that a Member must take in order to ensure that its
SPS measures are adjusted , or made suitable, to the sanitary or phytosanitary characteristics of
the area from which the product originated and the area to which the product is destined.
Similarly, and as the Panel observed501, the first sentence of Article 6.2 does not prescribe whether
a Member's recognition of the relevant concepts must be done in writing through a formal
governmental act, or whether it may be accomplished in some other manner.
5.137. We consider that the fact that Article 6 does not prescribe the particular manner by which
Members must "ensure" adaptation of their SPS measures or "recognize" the relevant concepts
suggests that Members enjoy a degree of latitude in determining how to do so within their
domestic SPS regime. Accordingly, assessing wh ether or not a Member has complied with the
obligations in Articles 6.1 and 6.2 will necessarily be a function of the nature of the claims raised
by the complainant and the circumstances of each case. This may involve scrutiny of the specific
steps and acts that the Member has or has not taken in the light of the SPS characteristics of the
relevant areas, which may include pest- or disease-free areas or areas of low pest or disease
prevalence, as well as of broader aspects of the importing Member's regulatory regime, if any,
governing SPS matters. The second sentence of Article 6.1 also points to the relevance of
appropriate criteria and guidelines developed by relevant international organizations to the
obligation set out in that paragraph. We note, in this regard, that the Panel appears rightly to have
acknowledged that the fact that a relevant international organization has determined that the
concepts of pest- or disease-free areas and areas of low pest or disease prevalence are, or are not,
relevant with respect to a specific pest or disease may have a bearing on the assessment of a
Member's compliance with Article 6 with respect to such pest or disease.
502 This, too, underscores
the case-specific nature of assessing whether a Member has complied with its Article 6 obligations.
5.138. While the assessment of the consistency of a Member's SPS measure with Articles 6.1
and 6.2 will be a function of the claims brought by the complainant and the circumstances of each
particular case, it is nevertheless clear that compliance with the obligations in Articles 6.1 and 6.2
will be facilitated in circumstances where WTO Members put in place a regulatory scheme or
structure that accommodates adaptation of SPS measures on an ongoing basis. 503 Furthermore,
notwithstanding the circumstance-specific nature of the inquiries under Articles 6.1 and 6.2, we
agree with the Panel's observation that SPS measures or regulatory schemes that explicitly
foreclose the possibility of recognition of the conc epts of pest- or disease-free areas and areas of
low pest or disease prevalence cannot, when these concepts are relevant with respect to the
diseases addressed by such SPS measures, be found to be consistent with Article 6.2.
504
5.139. The interlinkages between Articles 6.1 an d 6.2 of the SPS Agreement, in turn, illuminate
the close nexus between a Member's satisfaction of the obligation to recognize the concepts of
pest- or disease-free areas and areas of low pest or disease prevalence set out in Article 6.2, on
the one hand, and its satisfaction of the obligation to ensure that its SPS measures are adapted to
the relevant SPS characteristics within the meaning of Article 6.1, on the other hand. More
specifically, in a situation where pest- or disease-free areas or areas of low pest or disease
prevalence are relevant, a Member may be required to recognize the concepts of these areas not
only by virtue of the express obligation in Article 6.2, but also so as to be in a position properly to
"assess" the SPS characteristics of relevant areas under the second sentence of Article 6.1, and

501 Panel Report, para. 7.698.
503 This would be the case, for example, where a Member has established a mechanism for recognition
of specific pest- and disease-free areas and areas of low pest and disease prevalence upon a properly
substantiated request being made by an exporting Member seeking such recognition and allowing verification
of the same.
504 Panel Report, para. 7.698.

ultimately ensure, as required under the first sent ence of Article 6.1, that its SPS measures are
adapted accordingly.
5.140. Turning to paragraph 3 of Article 6, we note that it relates to a specific situation, namely,
where an exporting Member is claiming that an area within its territory is a pest- or disease-free
area or an area of low pest or disease prevalence. In particular, Article 6.3 specifies what must be
objectively demonstrated by a Member seeking recognition of a specific area within its territory as
a pest- or disease-free area or an area of low pest or disease prevalence. Through the phrase
"[f]or this purpose", Article 6.3 stipulates, as well, that such Member must allow the importing
Member adopting or maintaining an SPS measure to have access to its territory for the purpose of
verifying such demonstration. Like Article 6.2, Article 6.3 relates to pest- or disease-free areas and
areas of low pest or disease prevalence, which are a subset of the SPS characteristics that are
relevant under Article 6.1.
5.141. In sum, the considerations above show the existence of important common elements
throughout Article 6, which reveal the interlinkages that exist among the paragraphs of this
provision. As noted above, all three paragraphs of Article 6 are interconnected, addressing
different aspects of the obligation to adapt SPS measures to regional conditions. The main and
overarching obligation under Article 6 for a Member to ensure that its SPS measures are adapted
to regional SPS characteristics is set out under the first sentence of Article 6.1. In turn, the
remainder of Article 6 elaborates on the specific aspects of such obligation, notably, with respect
to pest- or disease-free areas and areas of low pest or disease prevalence, as well as the
respective duties that apply to importing and exporting Members in this connection.
5.142. Before turning to the specific interpretative issue raised by India's appeal, we wish to
express certain concerns as to whether some of the Panel's statements accord with our
understanding of the content and structure of Article 6 of the SPS Agreement. We note, for
example, that the Panel separately found that India's AI measures are inconsistent with each
sentence of Article 6.1, and with each sentence of Article 6.2 of the SPS Agreement. Furthermore,
the Panel seemed to consider that the second sent ence of each of these paragraphs will inevitably
be violated in situations where, respectively, no assessment of the SPS characteristics of a region
has been conducted, and no specific determination has been made in respect of a specific area
that is potentially pest or disease free or an area of low pest or disease prevalence.
505 We note
that these aspects of the Panel's analysis have not been appealed. Consequently, we neither
endorse nor reject the Panel's understanding of Article 6 in this regard. However, we consider it
important to emphasize that what constitutes an appropriate order of anal ysis and approach by a
panel examining a claim under Article 6 may, at least in part, be a function of the nature of the
claim and the circumstances of the case.
5.143. In addition, we observe that, while the Panel seems to have correctly understood the
nexus between Articles 6.1 and 6.2 insofar as this was relevant in the context of the specific claims
raised by the United States in this dispute, we are not persuaded that all of the statements made
by the Panel would have the same resonance in every case. We recall, for example, that, in the
Panel's view, "the 'adaptation' of a Member's SPS measures to the SPS characteristics of particular
'areas' presupposes that a Member has first 'recognized' the concept of such areas."
506 To the
extent that the Panel was suggesting that the obligation to ensure that a Member's SPS measures
are "adapted" within the meaning of Article 6.1 always presupposes that a Member must have

505 We recall that the Panel interpreted Article 6.2 such that "a finding that a Member has failed to
recognize the concepts of pest- or disease-free areas and areas of low pest or disease prevalence as required
by Article 6.2, first sentence, leads inevitably to a finding that such Member also has failed to determine those
areas based on factors such as geography, ecosystems, epidemiological surveillance, and the effectiveness of
sanitary or phytosanitary controls". (Panel Report, para. 7.689 (emphasis added)) Furthermore, although the
Panel's language with respect to the second sentence of Article 6.1 was somewhat more nuanced – i.e. the
Panel found that "a failure to ensure that SPS measures are adapted to the SPS characteristics of an area for
the purpose of Article 6.1, first sentence, may warrant a concomitant finding that the Member has not taken
into account the factors in Article 6.1, second sentence, in assessing the SPS characteristics of a region" (ibid.,
para. 7.685 (emphasis added)) – the Panel's finding that India's AI measures are inconsistent with the second
sentence of Article 6.1 flowed directly from its finding that India has not undertaken an assessment of the SPS
characteristics of relevant areas. (Ibid., paras. 7.712 and 7.715)
506 Panel Report, para. 7.672. (emphasis added) The Panel also made the general statement that "[it
did] not consider that a Member can, logically, ensure that its SPS measures are adapted to the SPS
characteristics of an area without first recognizing the concept of areas (and, in particular for Article 6.2,
'pest- or disease-free areas' and 'areas of low pest or disease prevalence')." (Ibid., para. 7.690)

recognized the concepts mentioned in Article 6.2, we disagree. This is because, as explained
above, we see pest- or disease-free areas and areas of low pest or disease prevalence as a subset
of all the SPS characteristics of an area that may call for the adaptation of an SPS measure. In
other words, "pest- or disease-free areas" and "a reas of low pest or disease prevalence" are not
the only SPS characteristics that are relevant for the adaptation obligation under Article 6.1. As a
result, under certain circumstances, the SPS charac teristics that are relevant in a specific case
may not be related to the level of pest or disease prevalence in a particular area. In such
circumstances, a panel assessing whether a Member has complied with the obligation to ensure
that its SPS measures are adapted within the meaning of Article 6.1 may not need to inquire as to
whether that Member has previously recognized the concepts contained in Article 6.2. In addition,
we also question the Panel's statement that "adaptation" of an SPS measure "presupposes" that a
Member has first "recognized" the concepts of such areas, inasmuch as such statement may
suggest that recognition of the concepts must consist of an affirmative act that is distinct from and
taken prior to the adoption of an SPS measure. In our view, this does not seem entirely consistent
with the Panel's statement that there is no prescribed format for the recognition of the concepts
and that it is the prerogative of Members to de cide how to do so. Moreover, we question the
Panel's statement to the extent that it may be read as excluding that recognition of the concepts
could be done through and upon adoption of the very SPS measure that is adapted to the
SPS characteristics of the relevant areas.
5.144. Similarly, and as discussed further below, we have concerns about the Panel's statement
that Article 6.3 is "not directly linked to the first two paragraphs of Article 6, or to what
WTO Members must do generally with respect to adapting measures to SPS characteristics of
certain areas, or in particular to recognizing specific area concepts".
507 T h i s i s s i n c e , a s n o t e d
above, we view Article 6.3, like Article 6.2, as addressing pest- or disease-free areas and areas of
low pest or disease prevalence, and consider that both of these provisions are linked to, and
interact with, the overarching obligation to ensu re that a Member's SPS measures are adapted to
the SPS characteristics of the relevant areas under Article 6.1.508
5.3.3 Whether the Panel erred in its und erstanding of the relationship between
Articles 6.1 and 6.3
5.145. Having examined the three paragraphs in Article 6, we now turn to address India's claim
on appeal regarding the relationship between Ar ticle 6.1 and Article 6.3 of the SPS Agreement.
India argues that the Panel committed legal error in interpreting the relationship between the first
sentence of Article 6.1 and the first sentence of Article 6.3. For India, an importing Member's
obligation, under Article 6.1, to adapt its SPS measures to the sanitary or phytosanitary
characteristics of the area of the exporting Member arises only after an exporting Member makes a
formal proposal under Article 6.3.
509 Absent such a proposal, an importing country is not required
to recognize an exporting country's pest- and dise ase-free areas. According to India, a contrary
interpretation, such as that of the Panel, renders Article 6.3 redundant. In India's view, "unless an
exporting country makes a formal proposal under Article 6.3 of the SPS Agreement, an importing
country cannot adapt its sanitary or phytosanitary measures to the sanitary or phytosanitary
characteristics of the area of the exporting country."
510
5.146. In response, the United States argues that the Panel correctly concluded that a request
under Article 6.3 is not a prerequisite to the existence of obligations under Article 6.1 of the
SPS Agreement. The Panel noted that Article 6.3 refers to a situation that is distinct from those in
Articles 6.1 and 6.2 and that it is not directly linked to the first two paragraphs of Article 6.
511
Similarly, the Panel recognized that Article 6.1 does not foresee that the obligations under that
provision arise only after an exporting Member requests recognition of specific pest- or
disease-free areas or areas of low pest or disease prevalence pursuant to Article 6.3. In this
regard, the United States points to the Pane l's observation that, where the SPS Agreement

507 Panel Report, para. 7.674.
508 As to how Articles 6.2 and 6.3 are linked to, and interact with, the first sentence of 6.1 of the
509 India's appellant's submission, para. 237.
510 India's appellant's submission, para. 235.
511 United States' appellee's submission, para. 187 (referring to Panel Report, para. 7.674).

contemplates that an importing Member's obligation will arise only upon action by another (e.g.
Article 4 of the SPS Agreement), it explicitly so states.512
5.147. On appeal, India's challenge focuses on paragraph 7.711 of the Panel Report, which is
found in the context of the Panel's application of Article 6.1 to India's AI measures. We note,
however, that the Panel provided its interpretati on of the relationship among the paragraphs of
Article 6 earlier in its Report. The main thrust of this interpretation – which is summarized above –
was explained by the Panel in the following terms:
[O]ur understanding of the interplay between the three paragraphs of Article 6 is that
Members must adapt their SPS measures to the SPS characteristics of an area from
which goods originate or to which they are destined and, logically, they must already
have recognized as per Article 6.2 the "concepts" of pest- or disease-free areas and
areas of low pest or disease prevalence in order to do so. The steps in Article 6.3 are
directed at exporting Members and presuppo se that an importing Member from which
they seek recognition that an area in its terri tory is pest- or disease-free or is an area
of low pest or disease prevalence, is in compliance with its obligations under
Articles 6.1 and 6.2. We thus conclude that the obligations in Articles 6.1 and
Article 6.2 are not triggered by an invocation of Article 6.3, as argued by India.
513
5.148. Then, in the context of the application of Article 6.1 to India's AI measures, the Panel
made the following finding in paragraph 7.711 of its Report:
To our knowledge, India has not conducted the assessment of the SPS characteristics
of a region as envisaged in Article 6.1, second sentence. We acknowledge India's
argument that the obligation under Article 6.1 would have been triggered only if the
United States had complied with the "steps" in Article 6.3. As discussed in
paragraph 7.676 above, under certain circumstances, a link may be made between
the information required for the assessment of SPS characteristics envisaged by
Article 6.1, second sentence, and the obligation of an exporting Member to provide
"the necessary evidence" under Article 6.3, first sentence, that an area within its
territory is pest- or disease-free or is an area of low pest or disease prevalence.
Although Article 6.1 may inform the inquiry that an importing Member may conduct in
order to determine whether an exporting Member has "objectively demonstrated" that
there is an area within its territory that is pest- or disease-free or is an area of low
pest or disease prevalence, there is nothing in the language of either provision that
requires this particular approach.
5.149. India considers the Panel's analysis in paragraph 7.711 to be "incorrect and
inconclusive".
514 In India's view, the Panel concluded that no relationship exists between the
second sentence of Article 6.1 and Article 6.3 due to the language of both provisions. Contrary to
the Panel's observation regarding the relationship between Articles 6.1 and 6.3, India alleges that,
"unless an exporting country makes a formal proposal under Article 6.3 of the SPS Agreement, an
importing country cannot adapt its sanitary or phytosanitary measures to the sanitary or
phytosanitary characteristics of the area of the exporting country."
515 Furthermore, India considers
that, as a result of the interpretative error regarding the relationship between Articles 6.1 and 6.3,
"the Panel incorrectly concluded that India's AI measures are inconsistent with Article 6.1, first
sentence and consequently with Article 6.1, second sentence".516
5.150. In assessing India's claim on appeal, we begin by noting that India characterizes the
Panel's finding in paragraph 7.711 of the Panel Report as a finding that no relationship exists
between the second sentence of Article 6.1 and Ar ticle 6.3. As is clear from the passage quoted
above, however, the Panel made no such finding. Rather, the Panel indicated that a "link may be
made" between the information required for the assessment of SPS characteristics envisaged by
the second sentence of Article 6.1 and the oblig ation of an exporting Member to provide "the
necessary evidence" under Article 6.3, first sentence, that an area within its territory is pest or

512 United States' appellee's submission, para. 192 (referring to Panel Report, para. 7.679).
513 Panel Report, para. 7.680. See also paras. 7.674-7.678.
514 India's appellant's submission, para. 240.
515 India's appellant's submission, para. 235.
516 India's appellant's submission, para. 210. See also India's Notice of Appeal, para. 11.

disease free or is an area of low pest or disease prevalence. The Panel explained that, even though
Article 6.1 may "inform the inquiry" that an importing Member may conduct in order to determine
whether an exporting Member has "objectively demonstrated" that there is an area within its
t e r r i t o r y t h a t i s p e s t o r d i s e a s e f r e e o r i s a n area of low pest or disease prevalence, there is
nothing in the language of either provision that requires this particular approach.
517 What the
Panel found is that "the obligations in Articles 6.1 and Article 6.2 are not triggered by an
invocation of Article 6.3, as argued by India."
518
5.151. Having said that, we now turn to examine whether the Panel's findings are consistent with
a proper understanding of the relationship among the various paragraphs of Article 6 of the
SPS Agreement.
5.152. As foreshadowed in the preceding section of this Report, we view some of the Panel's
statements as overly broad. For example, we have reservations about the sweeping nature of the
Panel's statements that Article 6.1, first sentence, creates a "free-standing obligation", and that
there is "no conditional language" linking such obli gation to Article 6.3 or to an extraneous event
such as the request of an exporting Member to recognize a specific area as disease free.
519 These
statements by the Panel may be seen as problemati c to the extent that they suggest that each of
the paragraphs of Article 6 are to be read in isol ation. To the contrary, as noted in the previous
section, there are important common elements and interlinkages among the paragraphs of
Article 6. All three paragraphs of Article 6 are interconnected, addressing different aspects of the
obligation to adapt SPS measures to regional conditions. The main and overarching obligation
under Article 6 for a Member to ensure that its SPS measures are adapted to regional
SPS characteristics is set out under the first sentence of Article 6.1. In turn, the remainder of
Article 6 elaborates specific elements of this obligation, notably, with respect to pest- or disease-
free areas and areas of low pest or disease prevalen ce, as well as the respective duties that apply
to importing and exporting Members in this regard.
5.153. We also have concerns with the Panel's statement that "[t]he steps in Article 6.3 …
presuppose that an importing Member from which [exporting Members] seek recognition that an
area in its territory is pest- or disease-free or is an area of low pest or disease prevalence, is in
compliance with its obligations under Articles 6.1 and 6.2."
520 This statement by the Panel can be
considered questionable inasmuch as it suggests that an exporting Member will be in a position to
make the objective demonstration provided for in Article 6.3 only once the Member adopting or
maintaining the SPS measure at issue has already ensured that such measure is "adapted" to the
SPS characteristics of the relevant areas pursuant to Article 6.1.
5.154. Moreover, in disagreeing with India' s submission that adaptation involves an ex post facto
"modification" of the SPS measure pursuant to an exporting Member's request, the Panel stated
that it "[did] not see how an SPS measure can be 'adapted' to the SPS characteristics of an area
where that adaptation occurs only after a measure is taken pursuant to a specific request for
recognition made by an exporting Member."
521 To us, this reasoning by the Panel seems to assume
that the "adaptation" of an SPS measure can only occur a single time, and that this must be at the
time that such measure is adopted. We, however, see the obligation to ensure that a Member's
SPS measures are "adapted" to the relevant areas as a continuing obligation. In our view, the
requirement to ensure the adaptation of an SPS measure to the SPS characteristics of the relevant
areas implies that such measures may need to be modified if the relevant SPS characteristics
change.
522 As explained above, the very notion of "adaptation" implies a certain degree of
flexibility in order to respond, on an ongoing ba sis, to changes in the relevant circumstances.
Therefore, the general "adaptation" obligation in Article 6.1 may well encompass both a
requirement to adapt appropriately at the time the SPS measure is adopted, as well as a
requirement to adapt appropriately if and when relevant SPS characteristics in relevant areas in
the territory of the importing or exporting Member change or are shown to warrant an adaptation
of a specific SPS measure. This would be the ca se, for instance, where, after an SPS measure has
been adopted, an exporting Member objectively demonstrates the existence of a pest- or

517 Panel Report, para. 7.711.
518 Panel Report, para. 7.680.
519 Panel Report, para. 7.675.
522 For example, an exporting Member may eradicate a particular pest or disease within its territory that
had been prevalent at the time that the importing Member adopted the relevant SPS measure.

disease-free area and allows reasonable access for verification of the same. Accordingly, insofar as
the Panel seemed to exclude that adaptation may involve an ex post facto "modification" of the
SPS measure pursuant to an exporting Member's request and objective demonstration of the
elements set out in Article 6.3, we disagree.
5.155. Therefore, while we agree that there is no explicit conditional language linking Article 6.1
and Article 6.3, we emphasize that Article 6.1 and the remainder of Article 6 need to be read
together. As we have explained, assessing whether a Member has complied with the obligations in
Articles 6.1 and 6.2 will necessarily be a function of the nature of the claims raised by the
complainant and the circumstances of each case. This may involve scrutiny of the specific steps
and acts that the Member has or has not taken in the light of the relevant SPS characteristics of
the relevant areas, as well as of broader aspects of the importing Member's regulatory regime, if
any, governing SPS matters. For example, when a complaining Member challenges an
SPS measure without a reference to a specific geographic area, it may, depending on the particular
circumstances of the case, be sufficient to limit the assessment under Article 6 to the content and
structure of that SPS measure, without further need to examine whether or how the SPS measure
has been adapted in view of the level of prevalence of diseases or pests in a specific area.
5.156. However, and again depending on the nature of the claims raised and the circumstances of
the case, a panel may be called upon to scrutinize whether a Member has determined that a
specific area is free of disease and adapted its SPS measures accordingly. This may involve
examining whether the importing Member receiv ed a request from an exporting Member to
recognize an area within its territory as "disease-free". In such cases, an exporting Member will be
able to establish that the importing Member's fa ilure to recognize and determine that disease-free
area, and to adapt its SPS measure accordingly, is inconsistent with Articles 6.1 and 6.2 only if
that exporting Member can also establish that it to ok the steps prescribed in Article 6.3. In other
words, we understand the relationship of Article 6.3 with the remainder of Article 6 to mean that,
in the context of WTO dispute settlement proc eedings, an exporting Member claiming, for
example, that an importing Member has failed to determine a specific area within that exporting
Member's territory as "pest- or disease-free" – and ultimately adapt its SPS measures to that
area – will have difficulties succeeding in a claim that the importing Member has thereby acted
inconsistently with Articles 6.1 or 6.2, unless that exporting Member can demonstrate its own
compliance with Article 6.3.
5.157. This is not to suggest, as India does, that a Member adopting or maintaining an
SPS measure can only be found to have breached the obligation in the first sentence of Article 6.1
after an exporting Member has made the objective demonstration provided for in Article 6.3.
Indeed, as noted above, even in the absence of such objective demonstration by an exporting
Member, a Member may still be found to have failed to ensure that an SPS measure is adapted to
regional conditions within the meaning of Article 6.1 in a situation where, for example, the concept
of pest- and disease-free areas is relevant, but such Member's regulatory regime precludes the
recognition of such concept. Moreover, as noted above, pest- or disease-free areas and areas of
low pest or disease prevalence, which are specifical ly addressed in Articles 6.2 and 6.3, are only a
subset of the SPS characteristics that may call for the adaptation of an SPS measure pursuant to
the first sentence of Article 6.1. We also observe that Article 6.1 expressly identifies "criteria or
guidelines" developed by relevant organizations as relevant for the assessment of the
SPS characteristics of regions, which suggests that, under certain circumstances, the adaptation of
an SPS measure to regional SPS characteristi cs may be accomplished by taking into account
relevant criteria and guidelines developed by such organizations, if any. Finally, we recall that the
overarching requirement under Article 6.1 to ensure the adaptation of SPS measures is an ongoing
obligation that applies upon adoption of an SPS measure as well as thereafter.
523 All of these
considerations reinforce that a Member may act inconsistently with the obligation under the first
sentence of Article 6.1 absent the objective demonstration provided for in Article 6.3 by an
exporting Member. For these reasons, we agree with the Panel that "the obligations in Articles 6.1
and 6.2 are not triggered by an invocation of Article 6.3, as argued by India".
524
5.158. Turning to the Panel's reasoning in para graphs 7.676 and 7.711 of the Panel Report, we
recall that the Panel found that, "under certain circumstances, a link may be made between the
information required for the assessment of SPS characteristics envisaged by Article 6.1,

523 See supra, para. 5.132.
524 Panel Report, para. 7.680.

second sentence, and the obligation of an exporting Member to provide 'the necessary evidence'
under Article 6.3, first sentence". 525 The Panel explained that, while "Article 6.1 may inform the
inquiry that an importing Member may conduct in order to determine whether an exporting
Member has 'objectively demonstrated' that there is an area within its territory that is pest- or
disease-free or is an area of low pest or diseas e prevalence, there is nothing in the language of
either provision that requires this particular approach."
526
5.159. The above statements by the Panel were made in response to India's argument that the
obligations in Articles 6.1 and 6.2 are contingent upon whether an exporting Member has made
the objective demonstration provided for in Article 6.3. 527 In our view, the Panel's reasoning in the
above passages should be understood in the light of the United States' claim in this dispute,
namely, that India's AI measures affirmatively preclude India from complying with the general
obligations in Articles 6.1 and 6.2. Indeed, in the present case, neither the United States' claim nor
the Panel's ruling was made in respect of India's treatment of a specific area within the territory of
the United States alleged to be disease free. The United States did not claim that a specific area
within its territory is AI free, and that India failed to adapt its SPS measures to the
SPS characteristics of that area. Rather, the United States challenged India's AI measures on their
face, because they preclude the recognition of the concept of disease-free areas in the context
of AI.
528 We highlight that it was on the basis of its finding that India's AI measures fail to
recognize the concepts of pest- or disease-free areas and areas of low pest and disease prevalence
under Article 6.2 that the Panel found those measures to be inconsistent with Article 6.1.
Therefore, the Panel statements that are contested by India on appeal were not directly related to
the Panel's assessment of the particular claim raised by the United States.
5.160. Consequently, while we have some difficult ies with certain statements made by the Panel
discussed above with regard to the relationship be tween paragraphs 1 and 3 of Article 6, overall,
we do not consider that they amount to a reversible error when understood in the context of this
dispute. In this connection, we recall that we have rejected India's proposed interpretation of the
relationship between Article 6.1 and Article 6.3 of the SPS Agreement. In the light of these
considerations, we find that the Panel did not err in interpreting the relationship between
Article 6.1 and Article 6.3 of the SPS Agreement.529
5.3.4 Whether the Panel erred in its application of Article 6.2 to India's AI measures
5.161. India argues that the Panel committed legal error in its application of the first sentence of
Article 6.2 of the SPS Agreement. India recalls that the legislative act at issue in this dispute is the
Livestock Act, which empowers the Central Government of India to regulate, restrict, or prohibit, in
such manner as it may think fit, the import into India of any livestock that may be liable to be
affected by infectious or contagious disorders. India notes that S.O. 1663(E) was issued pursuant
to Sections 3 and 3A of the Livestock Act. 530 According to India, the Panel itself admitted that,
pursuant to Sections 3 and 3A of the Livestock Act, India could recognize the concepts of pest- or
disease-free areas and areas of low pest or diseas e prevalence. India highlights that, despite this
finding, the Panel concluded that India's AI measures as a whole – i.e. Sections 3 and 3A of the
Livestock Act and S.O. 1663(E) – are inconsistent with the first sentence of Article 6.2 on the basis
that S.O. 1663(E) does not recognize these concepts. India submits that the Panel committed legal
error by basing its conclusion on S.O. 1663(E). India contends that, given that the parent
legislation – Sections 3 and 3A of the Livestock Act – could recognize the concepts set out in the
first sentence of Article 6.2, the Panel should not have based its conclusion on S.O. 1663(E), which
is the delegated legislation.
531 According to India, this is beca use, "pursuant to the Panel's own
analysis", India is only required to "recognize " the concepts at issue and is not required to
"implement" such concepts in its domestic measures.532
5.162. In response, the United States argues that the Panel correctly analysed its claim under
Article 6 of the SPS Agreement. The Panel proper ly concluded that India does not recognize the

527 Panel Report, para. 7.648.
528 United States' appellee's submission, para. 172.
530 India's appellant's submission, paras. 211-214.
531 India's appellant's submission, paras. 216-217.
532 India's appellant's submission, para. 218.

concepts of pest- or disease-free areas and area s of low pest or disease prevalence and thus
breaches Articles 6.1 and 6.2 of the SPS Agreem ent. The United States characterizes India's
argument that the Panel erred under Article 6.2 by basing its conclusion on S.O. 1663(E) as
"without merit", contending that it rests on a misunderstanding of Article 6.2 and the Panel's
finding.
533 According to the United States, India takes the position that the content of S.O. 1663(E)
is irrelevant to the analysis under Article 6.2 in the light of the Livestock Act. In the United States'
view, India's reasoning is "illogical". Although the Panel found that there is no requirement under
Article 6.2 to embody the concept of disease-free areas in any particular measure, S.O. 1663(E) is
clearly a measure at issue in this dispute. The United States adds that, "as the Panel found, 'by
imposing a prohibition on a country-wide basis, [S.O. 1663(E)] contradicts the requirement to
recognize the concept of disease-free areas and areas of low disease prevalence.'"
534
5.163. We understand India's claim on appeal to be, in essence, that the Panel erred in finding
that India's AI measures are inconsistent with the first sentence of Article 6.2 by relying on
S.O. 1663(E) instead of on Sections 3 and 3A of the Livest ock Act. According to India, having
established that the parent legislation recognizes the concepts as required under the first sentence
of Article 6.2, the Panel should have relied on that legislation and not on the delegated
legislation – S.O. 1663(E) – in reaching its findings under Article 6.2.
535 Because AI is a disease
and there are no pests at issue in the present dispute, we refer only to "diseases" in our analysis
below.536
5.164. In assessing this claim of error, we begin by recalling the Panel's definition of the
measures at issue in this dispute. The Panel defined the measures at issue in this dispute as
"India's AI measures, which are those measures that 'prohibit the importation of various
agricultural products into India from those countries reporting [NAI]'."537 The Panel also found that
"India maintains its AI measures through, inter alia, the following legal instruments:
a. the Live-Stock Importation Act 1898 (9 of 1898) (Livestock Act) published on
12 August 1898, as amended by the Live-Stock Importation (Amendment) Act
2001 (No. 28 of 2001) (Livestock Amendment Act), and published in the
Gazette of India on 29 August 2001; and
b. S.O. 1663(E), issued by India's Department of Animal Husbandry, Dairying, and
Fisheries (DAHD) pursuant to the Livestock Act and published in the Gazette of
India on 19 July 2011."
538
5.165. We consider it important to highlight that the Panel defined the measures at issue
collectively as those that prohibit importation of specified products from countries reporting NAI.
The Panel did not consider either the Livestock Act or S.O. 1663(E), separately, as a discrete
measure at issue. On appeal, India has not challenged the Panel's characterization of the
measures at issue.
5.166. In assessing the conformity of India's AI measures with Article 6.2 of the SPS Agreement,
the Panel held that "to comply with Article 6.2, SPS measures adopted by WTO Members must at a
minimum not deny or contradict the recognitio n of the concepts of such areas when these
concepts are relevant with respect to the disease at issue." 539 The Panel then turned to consider
whether India's AI measures deny or contradict the recognition of the concepts of disease-free
areas and areas of low disease prevalence in respect of AI.

533 United States' appellee's submission, para. 163.
535 India's appellant's submission, para. 217.
536 We note that the Panel made a similar observation when it stated:
When examining the consistency of India's AI measures with Articles 6.1 and 6.2, we will bear in
mind that although the definitions in Annex A(6) and Annex A(7) refer both to pests and
diseases, we circumscribe our analysis to focus on disease on the basis that we are not dealing
with a pest in this dispute.
(Panel Report, para. 7.692)
537 Panel Report, para. 2.22 (quoting Preliminary Ruling).
539 Panel Report, para. 7.698.

5.167. The Panel began its examination of India's AI measures with Sections 3 and 3A of the
Livestock Act. The Panel noted that these provisions, and the Livestock Act generally, are silent on
the concepts of disease-free areas and areas of lo w disease prevalence. While recognizing that the
broad discretion inherent in the general powers conferred by Sections 3 and 3A the Livestock Act
might encompass an extensive range of activity, the Panel pointed out that there is no evidence on
the record of this dispute that India has used such discretion either to recognize, or to deny or
contradict the recognition of, the concepts of such areas.
540 Accordingly, the Panel found that "the
Livestock Act may empower India's authorities to recognize the concepts of disease-free areas and
areas of low disease prevalence, notwithstanding the fact that this discretion has not been
exercised for this purpose."
541
5.168. Turning to S.O. 1663(E), the Panel recalled that this instrument prohibits the importation
of the relevant products on a country-wide basis.542 The Panel observed nothing on the face of this
instrument that allows for the recognition of disease-free areas and/or areas of low disease
prevalence within a country that notifies NAI to the OIE. To the contrary, the Panel considered that
S.O. 1663(E) "reflects the opposite".
543 Therefore, the Panel held that, by imposing a prohibition
on a country-wide basis, S.O. 1663(E) contradicts the requirement to recognize the concepts of
disease-free areas and areas of low disease prevalence, and that it does so in "clear and
unequivocal language".
544
5.169. Consequently, the Panel concluded that India's AI measures do not recognize the concepts
of disease-free areas and areas of low disease pr evalence with respect to AI and are therefore
inconsistent with Article 6.2, first sentence, of the SPS Agreement.545
5.170. We recall that "India's AI measures" are those that prohibit the importation of the relevant
products, as maintained through, inter alia, the Livestock Act and S.O. 1663(E). We consider that,
having defined the measures at issue in this manner, the Panel could not have properly answered
the question of whether India's AI measures "recognize" the concepts of AI-free or low AI
prevalence areas with reference to the Livestock Act alone. Rather, answering this question
required the Panel to scrutinize the AI measures as a whole, including the content of S.O. 1663(E).
Moreover, we note that examining the United States' claim without taking into account
S.O. 1663(E) would overlook a key component of India's AI regime, namely, the implementing
measure enacted by India that specifies the operational details of India's AI measures, including
the circumstances in which the import prohibitions are imposed and the products that are subject
to them. While it is true that the Panel acknowledged the broad discretion inherent in the
Livestock Act, the Panel eventually based its finding on what the AI measures actually do, rather
than on what one of the instruments constituting such measures, considered alone, could
potentially do. The Panel committed no error in adopting this approach, which ultimately led to its
finding that "[t]aken together … India's AI measures do not recognize the concept of disease-free
areas and areas of low disease prevalence with respect to AI."
546 Therefore, we disagree with
India's argument that, given that the parent legislation – Sections 3 and 3A of the Livestock Act –
could recognize the concepts set out in the first se ntence of Article 6.2, the Panel should not have
based its conclusion on S.O. 1663(E), which is the delegated legislation.547
5.171. India additionally argues that the Panel sh ould not have relied on the delegated legislation
because, "pursuant to the Panel's own analysis", India is only required to "recognize" the concepts
at issue and is thus not required to "implement" such concepts in its domestic measures. 548 India
contends that, given that it is not required to implement these concepts domestically, it
implemented S.O. 1663(E) on a country-wide basi s. In India's view, "S.O. 1663(E) is only an
implementing measure and a review of it would al so entail the fulfilment of requirements under
Article 6.3 of the SPS Agreement and Chapter 4.3 of the OIE Code."549

540 Panel Report, paras. 7.700-7.701.
541 Panel Report, para. 7.701.
542 Panel Report, para. 7.702.
543 Panel Report, para. 7.702.
544 Panel Report, para. 7.703.
545 Panel Report, paras. 7.706-7.707.
546 Panel Report, para. 7.706.
547 India's appellant's submission, paras. 216-217.
548 India's appellant's submission, para. 218.
549 India's appellant's submission, para. 219.

5.172. We consider that, in making this contention, India is merely recasting two of its previous
arguments with which we have already disagreed. Indeed, we understand India to be arguing that,
since "recognition" of the concepts under Article 6.2 does not require the implementation of such
concepts, and given that S.O. 1663(E) is an implementing measure, the Panel should not have
examined S.O. 1663(E). This, in our view, is a reca sting of India's argument that the Panel should
have examined the United States' claim under Article 6.2 based on the Livestock Act alone. We
have already rejected this argument by India.
550 India also argues that, because S.O. 1663(E) is
an implementing measure, the Panel could only have found a violation of Article 6.2 after
establishing that the United States satisfied the conditions under Article 6.3. We read this
allegation as another iteration of India's argument, which we have rejected above, that the
obligations in Articles 6.1 and 6.2 are only triggered after the exporting Member has demonstrated
compliance with Article 6.3 of the SPS Agreement.
5.173. In further addressing India's additional argument, we consider it useful to set out the
Panel's analysis with respect to the interpretation of the term "recognize" in Article 6.2:
[The definition of "recognize"] does not clarify whether the recognition of the concepts
of pest- or disease-free areas and areas of low pest or disease prevalence must be
done explicitly, and if so, whether it should be done in writing through a legislative or
administrative act. In our view, the format of such recognition will depend on the
circumstances of each particular case. Given the text of Article 6.2, we do not think
that it is the prerogative of this Panel to prescribe to India or any other Member the
manner in which it should "recognize" the concepts of pest- or disease-free areas and
areas of low pest or disease prevalence. However, in our view, to comply with
Article 6.2, SPS measures adopted by WTO Members must at a minimum not deny or
contradict the recognition of the concepts of such areas when these concepts are
relevant with respect to the disease at issue.
551
5.174. To us, the above passage from the Panel Report shows that the Panel did not understand
the obligation to "recognize" the concepts in Article 6.2 as an obligation to "implement" any
particular domestic law or framework. The Panel explicitly stated that the definition of the term
"recognize" in Article 6.2 "does not clarify whethe r the recognition of the concepts of pest- or
disease-free areas and areas of low pest or disease prevalence must be done explicitly, and if so,
whether it should be done in writing through a legislative or administrative act". 552 Moreover, the
Panel did not find that India acted inconsistently with the first sentence of Article 6.2 because it
failed to "implement" the concepts in its domestic measures. Rather, on the basis of its
interpretation of Article 6.2, the Panel examined "whether India's AI measures deny or contradict
the recognition of the concepts of disease-free areas and areas of low disease prevalence with
respect to the disease at issue".
553 In this regard, the Panel found that, by imposing a prohibition
on a country-wide basis, S.O. 1663(E) contradicts the requirement to recognize the concepts of
disease-free areas and areas of low disease prevalence. 554 Therefore, the Panel held that, "[t]aken
together … India's AI measures do not recognize the concept of disease-free areas and areas of
low disease prevalence with respect to AI."
555
5.175. The above passages from the Panel Report show, in our view, that the distinction between
the obligation to "recognize" and the obligation to "implement" is one created by India, and not
one that is reflected in the Panel's findings. To reiterate, the Panel did not opine on whether the
obligation to "recognize" under Article 6.2 requires the implementation of a legal instrument in
domestic law. Nor did the Panel find an inconsiste ncy with Article 6.2 on the basis that India had
failed to "implement" the concept of disease-free areas. Rather, the Panel correctly found that,
since S.O. 1663(E) contradicts the requirement to recognize the concepts of disease-free areas
and areas of low disease prevalence India's AI measures, "taken together", do not recognize these
concepts with respect to AI, as required by Article 6.2 of the SPS Agreement.
556

550 See supra, para. 5.170.
552 Panel Report, para. 7.698.
553 Panel Report, para. 7.699.
554 Panel Report, para. 7.702.
555 Panel Report, para. 7.706.
556 Panel Report, para. 7.706.

5.176. For the foregoing reasons, we find that the Panel did not err in its application of Article 6.2
of the SPS Agreement by not relying solely on Sections 3 and 3A of the Livestock Act in assessing
whether India recognizes the concepts of disease-free areas and areas of low disease prevalence
in respect of AI.
5.3.5 Whether the Panel acted inconsistently with Article 11 of the DSU
5.177. We now turn to examine the two challenges to the Panel's findings brought by India under
Article 11 of the DSU. First, India argues that the Panel acted inconsistently with this provision by
ruling on a claim not argued by the United Stat es. In particular, India contends that, while the
United States' claim referred to the "non-recognition" of the concepts under Article 6.2, the Panel
based its conclusion on the fact that S.O. 1663(E) fails to "implement" the concepts set out in
Article 6.2. Moreover, India argues that th e issue of non-implementation would involve
consideration of Article 6.3 of the SPS Agreement, but that this provision is not within the scope of
the Panel request. Therefore, India argues that the Panel acted inconsistently with Article 11 of the
DSU by basing its conclusion on the "non-implementation" of the concepts listed in Article 6.2.
557
5.178. The United States contests India's assertion. In the United States' view, "the Panel found
that India had breached the first sentence of Article 6.2 because it did not recognize 'the concept
of disease-free areas and areas of low disease prevalence with respect to AI'" 558, which was
precisely the claim made by the United States.
5.179. We begin by noting that this claim of error under Article 11 of the DSU is raised and
argued by India in a single paragraph of its appellant's submission559, without "clearly articulat[ing]
and substantiat[ing] with specific arguments" why the alleged error has a bearing on the objectivity
of the Panel's assessment, as is required when an appellant makes the "serious allegation" that a
panel has failed to conduct an objective assessment of the matter before it.560 Moreover, this claim
of error by India rests on the premise that the Panel's finding of inconsistency with Article 6.2 was
based on a failure by India to "implement" the concepts listed in that provision. This assertion was
also made by India in its claim that the Panel erred in applying Article 6.2 to India's AI measures.
Yet, as established by the Appellate Body, a claim that a panel failed to comply with its duties under
Article 11 of the DSU "'must stand by itself' and should not be made merely as a subsidiary
argument or claim in support of a claim that the panel failed to apply correctly a provision of the
covered agreements".
561 For these reasons, we reject India's first claim of error under Article 11 of
the DSU.
5.180. In its second claim under Article 11 of the DSU, India argues that the Panel acted
inconsistently with this provision by disregarding critical evidence submitted by India. India recalls
the Panel's observation that "there is no evidence" that the discretion to recognize pest- or
disease-free areas under the Livestock Act has been exercised to date. According to India, the
Panel's observation "is not based on the factual evidence available"
562, since, in Panel Exhibit
IND-121563, India submitted evidence to the Panel showin g that it had informed the United States
in 2010 of its willingness to consider the issue of compartmentalization for the purpose of trade
with the United States. Despite this communication, the United States never reverted to India with
a proper proposal under Article 6.3 of the SPS Agreement. 564 According to India, the Panel's
analysis did not reflect Panel Exhibit IND-121, and therefore cannot be considered to amount to an

557 India's appellant's submission, para. 222.
558 United States' appellee's submission, para. 173 (quoting Panel Report, para. 7.706). (emphasis
added by the United States)
559 India's appellant's submission, para. 222.
560 Appellate Body Reports, China – Rare Earths, para. 5.227 (referring to Appellate Body Reports, US –
Steel Safeguards, para. 498; US – Tyres (China), para. 321; and EC – Fasteners (China), paras. 499-500).
561 Appellate Body Reports, China – Rare Earths, para. 5.173 (quoting Appellate Body Report, EC –
Fasteners (China), para. 442, in turn referring to Appellate Body Reports, US – Steel Safeguards, para. 498;
and Chile – Price Band System (Article 21.5 – Argentina), para. 238).
562 India's appellant's submission, para. 230.
563 Letter dated 28 January 2010 from Assistant Commissioner, DAHD, to US Minister-Counsellor for
Agricultural Affairs regarding: "India's comments on US proposed certificates for export of poultry, pork, pet
food and feather to India" (Panel Exhibit IND-121).
564 India's appellant's submission, paras. 226-227 (referring to Panel Report, para. 7.622).

unbiased and even-handed treatment of the evidence.565 For these reasons, India submits that the
Panel failed to make an objective assessment of the matter, as required by Article 11 of the DSU.
5.181. The United States disagrees with India's ar gument that the Panel acted inconsistently with
Article 11 of the DSU by allegedly disregarding a statement in Panel Exhibit IND-121 that,
according to India, constitutes evidence of its co mpliance with the first sentence of Article 6.2 of
the SPS Agreement. The United States emphasizes that "India has not established that this
evidence was 'so material' to its case that the Panel was required to deal more explicitly with it."
566
The United States adds that, in any event, India cannot establish that the evidence was "material"
to its case because Panel Exhibit IND-121 does not show that India recognizes the concepts of
disease-free areas or areas of low disease prevalence with respect to AI. In fact, the text cited by
India does not indicate that it recognizes the concept of disease-free areas or that it would
entertain a proposal to recognize a specific area. Therefore, the United States concludes that it
was perfectly consistent with Article 11 of the DS U, and eminently reasonable, for the Panel not to
have found that this exhibit was evidence of any recognition by India of the concepts of
disease-free areas or areas of low disease prevalence.
5.182. We recall that the Appellate Body has observed that Article 11 of the DSU requires a panel
to "consider all the evidence presented to it, assess its credibility, determine its weight, and
ensure that its factual findings have a proper basis in that evidence".
567 Panels may not "make
affirmative findings that lack a basis in the evidence contained in the panel record".568 Within these
parameters, "it is generally within the discretion of the [p]anel to decide which evidence it chooses
to utilize in making findings"
569, and the mere fact that a panel did not explicitly refer to each and
every piece of evidence in its reasoning is insufficient to establish a claim of violation under
Article 11.570 Rather, in order to succeed in a claim that a panel's failure to engage with a specific
piece of evidence amounted to a violation of Arti cle 11 of the DSU, an appellant must explain why
such evidence is so material to its case that the panel's failure to address explicitly and rely upon
such evidence has a bearing on the objectivity of the panel's factual assessment.571
5.183. The "critical evidence" that India claims was disregarded by the Panel is a statement in
Panel Exhibit IND-121 made by a DAHD official to a US official in a letter dated
28 January 2010.572 During the Panel proceedings, India designated this exhibit as "strictly
confidential information". The United States has contested the implications that India draws from
the statement in question both before the Panel and on appeal, including by pointing to other
statements in the same letter that, in its view, contradict the statement relied upon by India.
573
5.184. We note that India has not explained why the Panel's failure explicitly to discuss the
content of Panel Exhibit IND-121 is so material that it has a bearing on the objectivity of the
Panel's factual assessment. 574 Moreover, we observe that the letter, and thus the statement in
question, pre-date the issuance of S.O. 1663(E), which, as found by the Panel, requires the

565 India's appellant's submission, paras. 232-233.
566 United States' appellee's submission, para. 175 (referring to Appellate Body Report, Argentina –
Import Measures, para. 5.176).
567 Appellate Body Reports, China – Rare Earths, para. 5.178 (referring to Appellate Body Reports,
Brazil – Retreaded Tyres, para. 185; EC – Hormones, paras. 132-133; Australia – Salmon, para. 266; EC –
Asbestos, para. 161; EC – Bed Linen (Article 21.5 – India), paras. 170, 177, and 181; EC – Sardines,
paras. 141-142; Korea – Alcoholic Beverages, paras. 161-162; Korea – Dairy, para. 138; US – Carbon Steel,
Selected Customs Matters, para. 258).
568 Appellate Body Report, US – Carbon Steel, para. 142 (referring to Appellate Body Report, US –
Wheat Gluten, paras. 161-162).
569 Appellate Body Report, EC – Hormones, para. 135.
570 Appellate Body Reports, EC – Fasteners (China), paras. 441-442; Brazil – Retreaded Tyres,
para. 202.
571 Appellate Body Report, EC – Fasteners (China), para. 442.
572 Letter dated 28 January 2010 from Assistant Commissioner, DAHD, to US Minister-Counsellor for
Agricultural Affairs regarding: "India's comments on US proposed certificates for export of poultry, pork, pet
food and feather to India" (Panel Exhibit IND-121).
573 Panel Report, para. 7.622 (referring to United States' second written submission to the Panel,
para. 70, in turn referring to Panel Exhibit IND-121; and United States' response to Panel question No. 48);
United States' appellee's submission, para. 175.
574 Appellate Body Report, EC – Fasteners (China), para. 442.

imposition of the import prohibitions on a country-wide basis. 575 Even if the statement in that
letter could be understood as "recognition" of the concepts listed in Article 6.2 of the
SPS Agreement – a point that the United States strongly contests – we have difficulty conceiving
of how such a statement by an individual official of the DAHD could have any impact on the Panel's
assessment of a regulatory instrument (i.e. S.O. 1663(E)) that was subsequently issued pursuant
to the Livestock Act, in particular given that the Panel considered the language of S.O. 1663(E) to
be "clear and unequivocal" on its face. For these reasons, we reject India's second claim of error
under Article 11 of the DSU.
5.185. For the foregoing reasons, we find that India has not established that the Panel acted
inconsistently with its duty to conduct an objective assessment of the matter pursuant to
Article 11 of the DSU in its analysis of the consistency of India's AI measures with Article 6.2.
5.3.6 Conclusion
5.186. We have found that the Panel did not err in interpreting the relationship between
Article 6.1 and Article 6.3 of the SPS Agreement. We have also found that the Panel did not err in
its application of Article 6.2 by not relying solely on Sections 3 and 3A of the Livestock Act in
assessing whether India's AI measures recognize the concepts of disease-free areas and areas of
low disease prevalence in respect of AI. Finally, we have found that India has not established that
the Panel failed to conduct an objective assessment of the matter pursuant to Article 11 of the
DSU.
5.187. Having found that India has not demonstrated that the Panel erred in its assessment of the
United States' claims under Article 6 of the SPS Agreement, we uphold the Panel's findings, in
paragraphs 7.707-7.709, 7.712-7.715, 8.1.c.ix, an d 8.1.c.x of the Panel Report, that India's
AI measures are inconsistent with Articles 6.1 and 6.2 of the SPS Agreement.
5.4 Articles 5.6 and 2.2 of the SPS Agreement
5.188. India appeals certain findings made by th e Panel in the context of its analysis of the
United States' claims under Article 5.6 and Article 2.2 of the SPS Agreement. India argues that the
Panel erred in its application of Article 5.6 of the SPS Agreement to India's AI measures.
Additionally, India claims that the Panel failed to make an objective assessment of the matter, as
required by Article 11 of the DSU. For these reasons, India requests us to reverse the Panel's
finding that India's AI measures are significantly more trade restrictive than required to achieve
India's appropriate level of protection and are therefore inconsistent with Article 5.6 of the
SPS Agreement. India also requests us to reverse the Panel's finding that India's AI measures are
consequentially inconsistent with Article 2.2 of the SPS Agreement because they are applied
beyond the extent necessary to protect human and animal life or health.
5.189. We begin by summarizing the relevant findings by the Panel. Next, we examine India's
claims that the Panel erred in its application of Article 5.6 of the SPS Agreement to India's AI
measures. We conclude by analysing India's claims that the Panel acted inconsistently with its
obligations under Article 11 of the DSU.
5.4.1 The Panel's findings
5.190. Before the Panel, the United States claimed that India's AI measures are inconsistent with
Article 5.6 of the SPS Agreement because they are more trade restrictive than required to achieve
India's appropriate level of protection. In order to establish its claim, the United States argued that
"there is a clear, scientifically based alternative to India's AI measures that is reasonably available,
namely, measures based on the [OIE] Code."
576 The United States submitted that India had failed
to specify its appropriate level of protection, and that certain statements made by India could not
be understood as "true" appropriate levels of pr otection. The United States contended, in this
regard, that India's appropriate level of protection should be discerned from its domestic
surveillance and control measures, that is, India's National Action Plan for 2012 (NAP 2012). The
United States considered such appropriate level of protection to be "quite low" 577 or "relatively

575 Panel Report, para. 7.703.
576 Panel Report, para. 7.484.
577 Panel Report, para. 7.555 (quoting United States' first written submission to the Panel, para. 136).

modest with respect to HPNAI and negligible with respect to LPNAI since surveillance is unlikely to
detect it". 578 The United States further argued that measures based on the OIE Code
recommendations would achieve India's appropriate level of protection. The United States
expressed the view that the appropriate level of protection that would be achieved by measures
based on the OIE Code recommendations would be higher than the one inferred from India's
domestic measures, and that, even assuming arguendo that India's appropriate level of protection
is extremely high – to prevent any infection by LPNAI subtypes – the control measures in the
OIE Code would be sufficient to achieve it.
579
5.191. India argued before the Panel that the United States' claim under Article 5.6 is "inherently
devoid of any merit on account of the identification of an incorrect ALOP". 580 India submitted that
"the United States has identified the 'wrong ALOP' because it refers to India's domestic
surveillance and control measures instead of the measure being challenged, namely
S.O. 1663(E)."581 India also asserted that, having identified an incorrect appropriate level of
protection, the United States still bore the burden of establishing a prima facie case of
inconsistency under Article 5.6.
5.192. At the outset, the Panel examined whether the United States had identified one or more
alternative measures for the purposes of Article 5.6 of the SPS Agreement. 582 The Panel
considered that, for eight of the ten product categories covered by India's AI measures 583, the
United States had identified measures based on the recommendations in Chapter 10.4 of the
OIE Code as reasonably available alternatives to India's AI measures for purposes of Article 5.6. In
so finding, the Panel rejected India's argument that the alternative measures proposed by the
United States lacked clarity.
584 The Panel also determined that measures based on the
recommendations of the OIE Code would be technically and economically feasible and reasonably
available alternatives to India's AI measures.
585
5.193. In assessing whether measures based on the recommendations of the OIE Code would
achieve India's appropriate level of protection, the Panel set out to: (i) identify India's appropriate
level of protection; (ii) identify the level of protection that would be achieved by
alternative measures based on the recommendations of the OIE Code; and (iii) compare the level
of protection that would be achieved by such alternative measures with India's appropriate level of
protection.
586
5.194. The Panel requested India to identify its ap propriate level of protection. In its Report, the
Panel reproduced a number of statements in which India alluded to its appropriate level of
protection. For instance, in response to questions from the Panel, India indicated 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".
587 Similarly, in response to another question from the Panel, India stated that its
"current level of protection is achieved by maintaining import restrictions against countries
notifying HPNAI or LPNAI … [t]his is reflected in S.O. 1663(E) ".588 Based on its review of India's
written and oral submissions, the Panel identified two appropriate levels of protection referred to
by India: the "prevention of ingress of LPNAI and HPNAI", and "country freedom from NAI".589

578 Panel Report, para. 7.555 (quoting United States' second written submission to the Panel, para. 55).
579 Panel Report, para. 7.487.
580 Panel Report, para. 7.493 (quoting India's first written submission to the Panel, para. 236).
581 Panel Report, para. 7.497.
582 Panel Report, para. 7.525.
583 The Panel found that, as Chapter 10.4 of the OIE Code does not include product-specific
recommendations regarding live pigs and pathological material and biological products from birds, the
United States had not proposed any alternative measure in relation to these product categories for the
purposes of Article 5.6 of the SPS Agreement. (Panel Report, para. 7.533)
584 Panel Report, para. 7.532.
585 Panel Report, para. 7.546.
586 Panel Report, para. 7.549.
587 Panel Report, para. 7.553 (quoting India's responses to Panel question Nos. 35(a), 35(c),
and 62(a)). (emphasis added by the Panel)
588 Panel Report, para. 7.553 (quoting India's response to Panel question No. 62(b)). (emphasis added
by the Panel)
589 Panel Report, para. 7.554.

5.195. With regard to the first of these appropriate levels of protection, the Panel was unable to
discern the intensity, extent, or amount of protection or risk that India will tolerate or that it
considers suitable. Therefore, the Panel concluded that India's characterization did not meet the
definition of "appropriate level of protection" in Annex A(5) to the SPS Agreement.
590 With regard
to the second appropriate level of protection referred to by India, the Panel did not consider that
this statement "truly reflects" India's appropriate level of protection because India's objective is
not the NAI-freedom of its trading partners.
591 Accordingly, the Panel interpreted India as saying
that its appropriate level of protection can only be met by products that originate in NAI-free
countries, not by products from countries that are only HPNAI free, where LPNAI may exist.
5.196. The Panel explained that, rather than substituting its own re asoning for the express
statements made by India with regard to its appropriate level of protection, it would "instead
examine the record of evidence (including the measures at issue) in order to determine whether
India has provided information that allows us to understand India's ALOP with any greater
precision".
592 The Panel noted India's statement that its "current level of protection is achieved by
[and] is reflected in S.O. 1663(E)" 593, and observed that S.O. 1663(E) imposes import
prohibitions. The Panel acknowledged that an import prohibition has, in other disputes, been
equated with a "zero-risk" level of protection.
594 However, in the circumstances of this dispute,
notably "the particularities of India's AI situation and the manner in which AI is transmitted", the
Panel expressed "doubt that an import ban can achieve a zero-risk level of protection with regard
to AI … because the disease is transmitted not only through commercial channels of trade, but also
by wild birds and informal and illicit trade."
595 Accordingly, the Panel found that India's appropriate
level of protection is not zero-risk. Taking account of India's assertion that its appropriate level of
protection is "achieved by" and "reflected in S.O. 1663(E)" 596, as well as India's particular
AI situation and the manner in which AI is transmitted, the Panel concluded that India's
appropriate level of protection is " very high or very conservative".597 The Panel further expressed
the view that "this formulation of India's ALOP is sufficiently precise to enable the application of
the SPS Agreement (including the provisions of Article 5.6)."
598
5.197. Having identified India's appropriate level of protection, the Panel then turned to
determine the level of protection that would be achieved by alternative measures based on the
OIE Code's recommendations. The Panel concluded that the OIE Code provides for an optimal level
of security under which safe trade may be facilitated in order to prevent AI from being introduced
into an importing country.
599
5.198. The Panel then compared India's appropriate level of protection with the level of protection
that would be achieved by measures based on th e recommendations of the OIE Code, particularly
Chapter 10.4 thereof. In the Panel's view, measures based on the OIE Code's recommendations
would achieve a level of protection that is at least as high as India's "very high" or "very
conservative" level of protection. Thus, the Panel concluded that the United States had discharged
its burden of identifying an alternative measure that would achieve India's appropriate level of
protection.
600
5.199. The Panel further recalled that the OIE Code does not envisage the imposition of import
prohibitions with respect to poultry products, but, rather, identifies conditions under which
products may be safely traded even if their country of origin is affected by NAI. Therefore, the

590 Panel Report, para. 7.565.
591 Panel Report, para. 7.574.
592 Panel Report, para. 7.566.
593 Panel Report, para. 7.568 (quoting India's response to Panel question No. 62(b)). (emphasis added
by the Panel)
594 Panel Report, para. 7.567 (referring to Appellate Body Report, Australia – Salmon, para. 197).
595 Panel Report, para. 7.569.
596 Panel Report, para. 7.570 (quoting India's response to Panel question No. 62(b)).
597 Panel Report, para. 7.570. (emphasis original) See also paras. 7.571 and 7.575.
598 Panel Report, para. 7.570.
599 Panel Report, para. 7.581. The Panel noted that, although the OIE had indicated that the OIE Code
does not contain specific or general recommendations about the level of protection provided by the
recommendations in disease chapters or other Code texts, the OIE had also pointed out that "the OIE Code
establishes measures that are proportional to risk, with the objective of facilitating safe trade and avoiding
unjustifiable trade barriers". (Panel Report, para. 7.577 (quoting OIE's response to Panel question No. 11).
(emphasis added by the Panel))
600 Panel Report, para. 7.586.

Panel concluded that the alternative proposed by the United States, namely, measures based on
the OIE Code's recommendations, would be significantly less trade restrictive than India's
AI measures with respect to the products covered by Chapter 10.4.
601
5.200. For the foregoing reasons, the Panel found that India's AI measures are significantly more
trade restrictive than required to achieve India's appropriate level of protection with respect to the
products covered by Chapter 10.4 of the OIE Code and are therefore inconsistent with Article 5.6
of the SPS Agreement.602 The Panel considered that this finding, in turn, raised a presumption that
India's AI measures are inconsistent with the requirement in Article 2.2 to ensure that SPS
measures are applied only to the extent necessary to protect human, animal or plant life or health.
The Panel noted that India had not adduced any arguments to rebut such presumption. Thus,
having found that India's AI measures are inconsistent with Article 5.6, the Panel found that
India's AI measures are consequentially inconsistent with Article 2.2 of the SPS Agreement
because they are applied beyond the extent necessary to protect human and animal life or
health.
603
5.4.2 Overview of Article 5.6 and Article 2.2
5.201. Before turning to the specifics of India's appeal of the Panel's findings under Articles 5.6
and 2.2 of the SPS Agreement, we consider it useful to recall certain Appellate Body jurisprudence
regarding the nature of the analysis under Articles 5.6 and 2.2 of the SPS Agreement.
5.202. Article 5.6 of the SPS Agreement provides that:
Without prejudice to paragraph 2 of Article 3, when establishing or maintaining
sanitary or phytosanitary measures to achieve the appropriate level of sanitary or
phytosanitary protection, Members shall ensure that such measures are not more
trade-restrictive than required to achiev e their appropriate level of sanitary or
phytosanitary protection, taking into account technical and economic feasibility.[*]3
[* fn original] 3 For purposes of paragraph 6 of Article 5, a measure is not mo re trade-restrictive
than required unless there is another measure, reasonably available taking into account technical
and economic feasibility, that achieves the appropriate le vel of sanitary or phytosanitary
protection and is significantly less restrictive to trade.
5.203. In order to succeed in a claim under Article 5.6, a complainant must establish that there is
an alternative measure that: (i) is reasonably available taking into account technical and economic
feasibility; (ii) achieves the Member's appropriate level of sanitary or phytosanitary protection;
and (iii) is significantly less restrictive to trade than the contested SPS measure.
604 These elements
are cumulative in nature such that, in order to establish an inconsistency with this provision, all
three elements must be demonstrated. The al ternative measure proposed by a complainant
contesting another Member's SPS measure is a "con ceptual tool" to be used for the purpose of the
analysis under Article 5.6.
605 Consequently, a demonstration that an alternative measure meets
the relevant Member's appropriate level of protection does not imply that the Member whose
SPS measure is found to be inconsistent with Article 5.6 must adopt that alternative measure or
that the alternative measure is the only option that would achieve the desired level of
protection.
606
5.204. Central to the second limb of the above test of inconsistency with Article 5.6 is the concept
of the "appropriate level of protection", which is defined in Annex A(5) to the SPS Agreement as
"[t]he level of protection deemed appropriate by the Member establishing a sanitary or
phytosanitary measure to protect human, animal or plant life or health within its territory."
607 The
Appellate Body has explained that a Member's appropriate level of protection is an "objective". As
such, it is distinct from an SPS measure, which is an "instrument" chosen to achieve that

601 Panel Report, paras. 7.595-7.596.
602 Panel Report, para. 7.597.
603 Panel Report, para. 7.615.
604 Appellate Body Report, Australia – Salmon, para. 194.
605 Appellate Body Report, Australia – Apples, para. 363.
606 Appellate Body Report, Australia – Apples, para. 363.
607 Annex A(5) indicates that this term is also known as the "acceptable level of risk".

objective.608 Logically, the determination by a Member of its "appropriate level of protection"
precedes the establishment or maintenance of an SPS measure, and it is the appropriate level of
protection that determines the SPS measure to be introduced or maintained, and not the other
way around.
609
5.205. In principle, the determination of the appropriate level of protection "is a prerogative of the
Member concerned and not of a panel or of the Appellate Body". 610 At the same time, several
provisions of the SPS Agreement, including Article 5.6, make clear that Members adopting
SPS measures are subject to an implicit obligation to determine their appropriate level of
protection, and to do so with sufficient precision as to enable the application of the relevant
provisions of the SPS Agreement.
611 Given that the determination of the appropriate level of
protection that a Member must make logically precedes and is separate from its adoption of an
SPS measure, the Appellate Body has explained that, "[t]o imply the appropriate level of
protection from the existing SPS measure would be to assume that the measure always achieves
the appropriate level of protection determined by the Member. That clearly cannot be the case."
612
Nevertheless, the Appellate Body has acknowledged that, "in cases where a Member does not
determine its appropriate level of protection, or does so with insufficient precision, the appropriate
level of protection may be established by panels on the basis of the level of protection reflected in
the SPS measure actually applied."
613
5.206. In Australia – Apples , the Appellate Body stated that, in order to assess whether a
significantly less trade-restrictive alternative measure that would meet the appropriate level of
protection is available, "a panel must identify both the level of protection that the importing
Member has set as its appropriate level, and the le vel of protection that would be achieved by the
alternative measure put forth by the complainant."
614 Having identified these two levels of
protection, a panel will be able to make the requisite comparison between the level of protection
that would be achieved by the alternative measure and the importing Member's appropriate level
of protection. The Appellate Body explained that, "[i]f the level of protection achieved by the
proposed alternative meets or exceeds the appropriate level of protection, then (assuming that the
other two conditions in Article 5.6 are met) the importing Member's SPS measure is more trade
restrictive than necessary to achieve its desired level of protection."615
5.207. Article 2.2 of the SPS Agreement reads, in relevant part:
Members shall ensure that any sanitary or phytosanitary measure is applied only to
the extent necessary to protect human, animal or plant life or health ….
5.208. As discussed in section 5.1 of this Report, the basic obligations set out in Article 2 of the
SPS Agreement inform, impart meaning to, and ar e made operative in other provisions of the
SPS Agreement, including through certain of the more specific obligations set out in Article 5. The
element of Article 2.2 quoted above is closely linked to the specific obligation set out in
Article 5.6.616

608 Appellate Body Report, Australia – Salmon, para. 200.
609 Appellate Body Report, Australia – Salmon, para. 201.
610 Appellate Body Report, Australia – Salmon, para. 199. (emphasis original)
611 Appellate Body Report, Australia – Salmon, paras. 205-206. See also Appellate Body Report,
Australia – Apples, para. 343.
612 Appellate Body Report, Australia – Salmon, para. 203.
613 Appellate Body Report, Australia – Salmon, para. 207.
614 Appellate Body Report, Australia – Apples, para. 344.
615 Appellate Body Report, Australia – Apples, para. 344.
616 In Australia – Apples, the Appellate Body explained that:
[A] violation of Article 5.1 or Article 5.2 can be presumed to imply a violation of Article 2.2, but …
the reverse does not hold true – that is, a violation of Article 2.2 does not imply a violation of
Article 5.1 or Article 5.2. Whether a similar relationship exists between Article 2.2 and Article 5.6
has not yet been squarely decided, and is not an issue that is raised in this appeal, although it
has been suggested that just such a relationship does exist.
(Appellate Body Report, Australia – Apples, para. 340 (fns omitted))

5.4.3 Whether the Panel erred under Article 5.6
5.209. We begin with a number of preliminary observations with respect to India's claims under
Article 5.6 of the SPS Agreement. India requests us to reverse the Panel's findings in
paragraphs 7.597, 7.616, and 7.617 of the Panel Report.
617 In paragraph 7.597 of its Report, the
Panel found that India's AI measures are inconsistent with Article 5.6, as follows:
We have found that the United States identified measures based on the [OIE] Code as
a reasonably available alternative to India's AI measures for the products that are
within the scope of Chapter 10.4. We have also found that the alternative is
technically and economically feasible, would achieve India's ALOP, and is significantly
less restrictive to trade than India's AI measures. Therefore, we conclude that the
United States has demonstrated that India's AI measures are significantly more trade-
restrictive than required to achieve India's ALOP, in respect of these products.
Accordingly, we find that India's AI measures are inconsistent with Article 5.6 of the
SPS Agreement, with respect to the pr oducts covered by Chapter 10.4 of the
[OIE] Code.
5.210. In paragraphs 7.616 and 7.617 of its Re port, the Panel reiterated its finding under
Article 5.6 and made a consequential finding of inconsistency under Article 2.2 of the
SPS Agreement, as follows:
The Panel therefore finds that India's AI measures are inconsistent with Article 5.6 of
the SPS Agreement because they are significantly more trade-restrictive than required
to achieve India's ALOP, with respect to th e products covered by Chapter 10.4 of the
[OIE] Code.
Having found that India's AI measures are inconsistent with Article 5.6 of the
SPS Agreement, we find that India's AI measures are consequentially inconsistent
with Article 2.2 of the SPS Agreement because they are applied beyond the extent
necessary to protect human and animal life or health.
5.211. We note that the Panel's findings of inconsistency with Article 5.6 and consequently with
Article 2.2 of the SPS Agreement rested upon three cumulative findings. First, the Panel found that
measures based on the recommendations of the OIE Code would be technically and economically
feasible and reasonably available alternatives to India's AI measures.
618 Second, the Panel found
that the United States had identified alternative measures that would achieve India's appropriate
level of protection. 619 Third, the Panel found that the proposed alternative measures would be
significantly less trade restrictive than India's AI measures with respect to the product categories
covered by Chapter 10.4 of the OIE Code.
620
5.212. On appeal, India's claims of error under Article 5.6 of the SPS Agreement concern only the
second intermediate finding reached by the Panel, namely, that the United States had identified
alternative measures that would achieve India's appropriate level of protection. In this context,
India first challenges certain aspects of the Panel' s identification of India's appropriate level of
protection. Second, India appeals a discrete aspect of the Panel's identification of alternative
measures. Third, India advances two allegations that the Panel failed to make an objective
assessment of the matter as required by Article 11 of the DSU. We note that, on appeal, India's
request for reversal of the Panel's finding that India's AI measures are inconsistent with the first
requirement in Article 2.2 is entirely dependent upon the arguments advanced by India in support
of its request for reversal of the Panel's finding of inconsistency with Article 5.6. This means that,
if we do not accede to the latter request, we need not further consider the former one. We address
each of India's claims in turn.

617 India's Notice of Appeal, para. 15.
618 Panel Report, para. 7.546.
619 Panel Report, para. 7.586.
620 Panel Report, para. 7.596.

5.4.3.1 Whether the Panel erred under Article 5.6 in finding that the United States had
identified alternative measures that wo uld achieve India's appropriate level of
protection
5.213. India argues that the United States failed to present a prima facie case to support its claim
under Article 5.6 of the SPS Agreement. According to India, in order to discharge its burden of
proof under this provision, a complainant must establish that the proposed alternative measure
should be able to fulfil the appropriate level of protection of the respondent country. In doing so,
the complaining party must first identify the measure that reflects the appropriate level of
protection as sought by the responding country. In India's view, only once the correct measure is
identified can a complaining party propose an alternative measure that would achieve a similar
appropriate level of protection and thereby discharge its burden of proof. If, however, the
complaining party identifies an incorrect measure, the appropriate level of protection reflected in
the incorrect measure would not be the appropriate level of protection as sought by the
respondent country. In such circumstances, India maintains, the alternative measure would not be
able to fulfil the appropriate level of protection of the respondent country.
621
5.214. India submits that, in the present ca se, any alternative measure has to fulfil the
appropriate level of protection as reflected in the measure at issue (i.e. S.O. 1663(E)). 622
According to India, the United States identified India's appropriate level of protection based on
India's domestic control measures, instead of on the measure at issue. Therefore, the
United States ultimately did not fulfil its burden of presenting an alternative measure that fulfils
India's appropriate level of protection and India asserts that, consequently, the United States
failed to make a prima facie case.623
5.215. The United States responds that India does not and cannot explain how or why the
United States' attempt to discern India's approp riate level of protection by examining India's
domestic measures means that the United States did not make a prima facie case. Given that
India's measures do not state India's appropriate level of protection, a prima facie case with
respect to the identification of the appropriate le vel of protection had to be based on an inferred
appropriate level of protection supported by the ev idence on the record. This is precisely what the
United States did in presenting its prima facie case. Moreover, the United States notes that the
Panel ultimately agreed with India that its appropriate level of protection was higher than that
presented in the United States' prima facie case.
624
5.216. We recall that the application of Article 5. 6 requires identifying a reasonably available and
significantly less trade-restrictive alternative meas ure that would achieve the appropriate level of
protection of the Member whose SPS measure is alleged to contravene Article 5.6. 625 Doing so
involves, inter alia , identification of both the appropriate level of protection that the importing
M e m b e r h a s s e t f o r i t s e l f , a s w e l l a s o f t h e l e v e l o f p r o t e c t i o n t h a t w o u l d b e a c h i e v e d b y t h e
alternative measure proposed by the complainant, so as to enable a comparison to be made
between these two levels of protection.
626 Each WTO Member enjoys the right to specify its own
appropriate level of protection, but is also subject to an implicit obligation to do so with sufficient
precision as to enable the application of the provisions of the SPS Agreement, including Article 5.6.
A WTO Member cannot, by failing to specify its appropriate level of protection, or by doing so in an
insufficiently precise way, escape its obligations under the SPS Agreement.
627
5.217. Before assessing the specific claim of error raised by India, we recall how the issue of the
identification of India's appropriate level of pr otection developed during the Panel proceedings.
Before the Panel, the United States argued, based on India's "domestic surveillance and control

621 India's appellant's submission, paras. 263-265.
622 India's appellant's submission, para. 266 (referring to Appellate Body Report, Australia – Salmon,
paras. 190-191, 197, and 207).
623 India's appellant's submission, paras. 266 and 268.
624 United States' appellee's submission, para. 199.
625 Appellate Body Report, Australia – Salmon, para. 194. See also Appellate Body Report, Australia –
Apples, para. 337.
626 Appellate Body Report, Australia – Apples, para. 344.
627 Appellate Body Report, Australia – Salmon, paras. 199 and 205-207. See also Appellate Body Report,
Australia – Apples, para. 343.

measures" (particularly, India's NAP 2012 628) that India's appropriate level of protection is "quite
low".629 In response, India submitted that the United States' claim had no merit because the
United States had identified the wrong appropriate level of protection by referring to the NAP 2012
rather than S.O. 1663(E).630 The Panel undertook a review of India's written and oral submissions,
and noted that India had alluded to the "preve ntion of ingress of LPNAI and HPNAI" and to
"country freedom from NAI" as its appropriate level of protection. 631 As it was not convinced that
either of these represented India's appropriate level of protection, the Panel proceeded to examine
other evidence on the record, including the measures at issue, in order to determine India's
appropriate level of protection with greater precision. 632 Having done so, the Panel concluded that
India's appropriate level of protection is "very high or very conservative".633
5.218. At this juncture, we highlight that India does not challenge on appeal the specific level of
protection identified by the Panel as India's appropriate level of protection. 634 Nor does India
contest the considerations that led the Panel to this identification of India's appropriate level of
protection. We recall that the Panel found that India's appropriate level of protection is "very high
or very conservative", on the basis of India's assertion that its appropriate level of protection is
"achieved by" and "reflected in S.O. 1663(E)", as well as India's particular AI situation and the
manner in which AI is transmitted.
635 We consider it important to point out that, in the reasoning
that led it to identify India's appropriate level of protection, the Panel did not endorse, or even
refer to, the United States' argument that India's appropriate level of protection, as reflected in
the NAP 2012, was "quite low".
636
5.219. On appeal, India argues, in essence, that the United States did not fulfil its burden of
identifying an alternative measure that fulfils India's appropriate level of protection, because it
sought to identify India's appropriate level of pr otection on the basis of India's domestic control
measures, instead of on the measure at issue. India supports its position by arguing that "it is an
accepted jurisprudence that the ALOP has to be discerned from the measure at issue". 637 India's
arguments, in our view, raise two related questions. The first question is whether the
United States is required to identify India's appropriate level of protection on the basis of the
measures at issue in order to succeed in its claim under Article 5.6. More generally, India's
arguments also raise the question of whether the fact that the United States, as complainant,
bears the burden of proving a claim of inconsistency with Article 5.6 means that, in order to
succeed in such claim, the Panel had to accept the United States' articulation of India's appropriate
level of protection and use this characterization in the course of its reasoning.
5.220. We begin by pointing out that there is a distinction between the burden of proof borne by a
complainant in establishing a claim under Article 5.6 of the SPS Agreement, on the one hand, and
the analysis that must be undertaken by a panel in assessing such a claim, on the other hand. In
order to establish a claim under Article 5.6, a complainant must put forth arguments and evidence
in respect of all relevant elements under this provision, including the respondent's appropriate
level of protection and the level of protection of the proposed alternative measure. At the same
time, the panel examining such claim is charged with, inter alia, identifying the level of protection
of the Member whose SPS measure is challenged and the level of protection of the proposed
alternative measure. In conducting this examination, the panel is not constrained to verifying only
whether or not the complainant's allegations in this regard are substantiated. This is particularly so
with respect to a responding Member's appropriate level of protection.

628 In 2006, India enacted a National Action Plan to deal with AI occurring in India. Following successive
outbreaks of AI in 2008 and 2009, the National Action Plan was subsequently revised in 2012. The NAP 2012,
comprising five chapters, was prepared by the DAHD to outline India's response to domestic AI outbreaks.
(Panel Report, paras. 2.43-2.44)
629 United States' first written submission to the Panel, para. 136. See also Panel Report, para. 7.487.
630 Panel Report, para. 7.497.
631 Panel Report, para. 7.554.
632 Panel Report, para. 7.566.
633 Panel Report, para. 7.570. (emphasis original) See also paras. 7.571 and 7.575.
634 India's response to questioning at the oral hearing.
635 Panel Report, para. 7.570 (referring to India's response to Panel question No. 62(b)). See also
paras. 7.571 and 7.575.
636 Panel Report, paras. 7.555, 7.565, and 7.574.
637 India's appellant's submission, para. 266 (referring to Appellate Body Report, Australia – Salmon,
paras. 190-191, 197, and 207).

5.221. We recall that the Appellate Body has established that the specification of such appropriate
level of protection is both a prerogative and an obligation of the responding Member. 638 Moreover,
we emphasize that, in the context of WTO dispute settlement proceedings, a responding Member is
generally better placed than the complainant to know what objective it has set in terms of the
level of SPS protection it wishes to achieve. For these reasons, typically a panel adjudicating a
claim under Article 5.6 of the SPS Agreement would be expected to accord weight to the
respondent's articulation of its appropriate level of protection. This will be particularly so in
circumstances where that appropriate level of prot ection was specified in advance of the adoption
of the SPS measure, where the appropriate level of protection is specified with sufficient precision,
and where it has been consistently expressed by the responding Member. At the same time, this
does not mean that a panel must defer completely to a respondent's characterization of its own
appropriate level of protection. Rather, in examining a claim under Article 5.6 of the
SPS Agreement, a panel is required to ascertain the respondent's appropriate level of protection on
the basis of the totality of the arguments and evid ence on the record. This duty applies equally
when a claimant further contends that the appropri ate level of protection expressed or identified
by the respondent for purposes of WTO dispute settlement proceedings does not genuinely reflect
that Member's appropriate level of protection.
5.222. We turn now to examine whether the Panel's approach is consistent with our
considerations above regarding a panel's task in adjudicating a claim under Article 5.6 of the
SPS Agreement. First, we recall that the Panel considered that it needed to identify India's
appropriate level of protection in order to conduct an assessment of the United States' claims
under the SPS Agreement.
639 This, in our view, suggests that the Panel correctly understood that it
was required to identify India's appropriate level of protection in order to adjudicate the claims
before it. Moreover, the Panel did not limit its analysis to the United States' argumentation
regarding India's appropriate level of protection . Rather, in line with the understanding that a
responding Member has an obligation to specify the level of SPS protection it wishes to achieve,
the Panel requested India to identify its appropriate level of protection. 640 Moreover, we highlight
that the Panel, correctly in our view, did not defer completely to India's characterization of its own
appropriate level of protection, but, instead, deci ded to ascertain such level of protection on the
basis of the totality of the evidence on the record. 641 In its analysis, the Panel took into account
India's assertion that its appropriate level of protection is "achieved by" and "reflected in
S.O. 1663(E)"642, as well as India's particular AI situation and the manner in which AI is
transmitted, and concluded that India's appropriate level of protection is " very high or very
conservative".643 To us, these considerations show that the Panel adopted a proper approach in
adjudicating the claim under Article 5.6 of the SPS Agreement.
5.223. Moreover, we consider that India's argume nts overlook that, in adjudicating a claim under
Article 5.6 of the SPS Agreement, the identifica tion of the respondent's appropriate level of
protection is not per se the ultimate aim of the analysis. Rather, the ultimate aim in conducting
this analysis is to determine whether a significantly less trade-restrictive alternative measure that
would meet the respondent's appropriate level of protection is available. A crucial element in this
analysis is the comparison between the appropriate level of protection of the respondent and the
level of protection that would be achieved by the proposed alternative measure.
5.224. We note that, in the context of identifying the level of protection afforded by the proposed
alternative measures, the Panel found that the OIE Code "provides for an optimal level of security,
under which safe trade may be facilitated in order to prevent AI from being introduced into an
importing country".
644 Then, the Panel went on to compare India's appropriate level of protection
with the level of protection of the proposed alternative measures, and found that "measures based
on the recommendations of the [OIE] Code would achieve a level of protection that is at least as

638 Appellate Body Report, Australia – Salmon, paras. 199 and 205-206. See also Appellate Body Report,
Australia – Apples, para. 343.
639 Panel Report, para. 7.553.
640 Panel Report, paras. 7.553-7.554.
641 Panel Report, para. 7.566. We recall that the Panel concluded that India's first articulation of its
appropriate level of protection did not correspond to the definition of this concept in Annex A(5), and that the
Panel did not consider that the second level of protection referred to by India "truly reflects" India's
appropriate level of protection. (Ibid., paras. 7.565 and 7.574)
642 Panel Report, para. 7.570 (quoting India's response to Panel question No. 62(b)).
643 Panel Report, para. 7.570. (emphasis original) See also paras. 7.571 and 7.575.
644 Panel Report, para. 7.581.

high as India's 'very high' or 'ver y conservative' level of protection." 645 We understand this as a
finding that the level of protection embodied in Chapter 10.4 of the OIE Code meets or exceeds
the "very high" or "very conservative" level of protection that the Panel found to be India's
appropriate level of protection. This finding by th e Panel has not been appealed by India and, to
us, it further suggests that the Panel itself was of the view that the proposed alternative measures
would meet India's appropriate level of protection, regardless of whether such level were "quite
low" or "very high".
5.225. These considerations, in our view, indicate that, even though the United States had the
burden of establishing its claim under Article 5. 6 before the Panel, the success of such claim did
not necessarily depend upon the Panel accepting and relying upon the United States' proposed
articulation of India's appropriate level of protec tion. In examining the United States' claim under
Article 5.6, the Panel's task was not limited to verifying whether or not the United States'
characterization of India's appropriate level of protection was correct. Indeed, the Panel would
have been remiss if it had examined only the United States' arguments in order to identify India's
appropriate level of protection. In this regard, we recall the Appellate Body's finding that "[a]
demonstration that an alternative measure meets the relevant Member's appropriate level of
protection, is reasonably available, and is significantly less trade restrictive than the existing
measure suffices to prove that the measure at issue is more trade restrictive than necessary."
646
Consequently, we consider that the United States' claim under Article 5.6 hinged on establishing
that the level of protection achieved by the proposed alternative measures meets or exceeds
India's appropriate level of protection, rather than on whether the Panel accepted and relied on the
United States' proposed articulation of India's appropriate level of protection, as argued by India.
5.226. Furthermore, to the extent that India's arguments suggest that the Appellate Body has
held that a complainant – and a panel – must identify the responding Member's appropriate level
of protection on the basis of the SPS measure at i ssue, we do not consider this to be an accurate
characterization of the Appellate Body's jurispru dence. To the contrary, the Appellate Body has
explained that such an approach is not desirable because it may lead to a circular analysis
647, even
if it may be necessary to adopt such an approach in certain circumstances, in particular, "where a
Member does not determine its appropriate level of protection, or does so with insufficient
precision."
648 Therefore, India is not correct in arguing that "it is an accepted jurisprudence" that
the appropriate level of protection must always be discerned from the measure at issue.649
5.227. In the light of the above considerations, we do not agree with India that the United States
was required to identify India's appropriate level of protection on the basis of the measures at
issue in order to succeed in its claim under Article 5.6 of the SPS Agreement. Accordingly,
we find that the Panel did not err in finding that the United States had identified alternative
measures that would achieve India's appropriate level of protection.
5.4.3.2 Whether the Panel erred under Articl e 5.6 by failing to identify the proposed
alternative measures with precision
5.228. India argues that, since the Panel did not identify the proposed alternative measures with
precision, it committed legal error under Article 5.6 of the SPS Agreement by concluding that the
alternative measures would fulfil India's appropriate level of protection. India maintains that
different product-specific recommendations in the OIE Code present different risks, and that it was
therefore "incumbent upon the Panel to identify the product specific recommendation in the
OIE Code for the corresponding product in S.O. 1663(E) and the applicability of the same in the
event of the occurrence of HPNAI or NAI".
650 India further contends that, because India and the
United States disagree on the applicability of the product-specific recommendations in
Chapter 10.4 of the OIE Code, "the Panel should have identified the product specific
recommendations in the OIE Code for the correspon ding product in question and the applicability
of the same in the event of the occurrence of HPNAI or NAI."
651 Moreover, India argues that,

645 Panel Report, para. 7.582.
646 Appellate Body Report, Australia – Apples, para. 363.
647 See supra, para. 5.205.
648 Appellate Body Report, Australia – Salmon, para. 207.
649 India's appellant's submission, para. 266 (referring to Appellate Body Report, Australia – Salmon,
paras. 190-191, 197, and 207). See also supra, para. 5.205.
650 India's appellant's submission, para. 275.
651 India's appellant's submission, para. 276.

although the United States and the Panel identifi ed two product-specific recommendations in the
OIE Code that could be applied upon occurrence of HPNAI, they did not identify the product-
specific recommendations in the OIE Code that could be applied upon occurrence of LPNAI.
Similarly, India notes that, for the other product categories covered by S.O. 1663(E), neither the
United States nor the Panel identified the corresp onding product-specific recommendations in the
OIE Code or their applicability in the event of the occurrence of HPNAI or NAI.
652
5.229. The United States disagrees with India that the Panel failed to identify precisely the
alternative measures to India's AI measures. According to the United States, the Panel identified
the precise OIE Code recommendations that serve as the proposed alternative measures on the
basis of the evidence provided by the United States.
653 In the United States' view, India's assertion
s e e m s t o r e s t o n I n d i a ' s a r g u m e n t t h a t t h e O I E C o d e a c h i e v e s d i f f e r e n t l e v e l s o f p r o t e c t i o n
depending on the recommendation adopted. The United States highlights that the Panel properly
rejected India's argument regarding the different levels of protection in the OIE Code, and found
that the OIE Code achieves a high level of protection. Accordingly, the United States submits that
India has presented no support for its argument that the alternative measures under Article 5.6 of
the SPS Agreement were not sufficiently defined.
654
5.230. We begin by noting that, when India asserts that the Panel failed to identify the proposed
alternative measures "with precision", we understand India to be arguing that the Panel failed to
specify the product-specific recommendations in the OIE Code that apply to each of the product
categories for which importation is prohibited under S.O. 1663(E) upon the occurrence of HPNAI or
LPNAI. With respect to this argument, we observ e that the recommendations in the OIE Code that
were identified by the United States as constituting the relevant alternative measures were
reproduced by the Panel in paragraph 7.529 of its Report, as follows:
S.O. 1663: Bans from all countries reporting NAI
(including LPNAI and HPNAI)
[OIE Code recommendations proposed as
the basis for alternative measures]
Domestic and wild birds (including poultry and captive
birds);
Articles 10.4.5 and 10.4.6
Day-old chicks, ducks, turkey, and other newly hatched
avian species;
Articles 10.4.7 and 10.4.8
Unprocessed meat and meat products from Avian species,
including domesticated, wild birds and poultry;
Articles 10.4.19 and 10.4.20
Hatching eggs; Articles 10.4.10, 10.4.11, and 10.4.12
Eggs and egg products (except Specific Pathogen Free
eggs);
Articles 10.4.13, 10.4.14, and 10.4.15
Unprocessed feathers; Article 10.4.22 and Article 10.4.23
Products of animal origin (from birds) intended for use in
animal feeding or for agricultural or industrial use; and
Article 10.4.21
Semen of domestic and wild birds including poultry. Articles 10.4.17 and 10.4.18

5.231. In the table above, the United States set out for the Panel the eight product categories in
S.O. 1663(E) for which there are corresponding product-specific recommendations in Chapter 10.4
of the OIE Code.
655 In respect of each product category, the United States identified the specific
recommendation or recommendations that are potentially applicable, depending on the specific
product and the particular disease condition at issue. Thus, the references to the product-specific
recommendations in this table cover all of the applicable recommendations from Chapter 10.4 of
the OIE Code, whether the imports emanate from a country, zone, or compartment, and whether
that country, zone, or compartment is NAI free, HPNAI free (meaning that LPNAI may be present),
or regardless of its NAI status. In these circum stances, we do not see grounds for India's claim
that the Panel did not identify the proposed alternative measures with precision.

652 India's appellant's submission, paras. 277 and 279.
653 United States' appellee's submission, para. 202 (referring to Panel Report, para. 7.533).
654 United States' appellee's submission, para. 203 (referring to Panel Report, para. 7.580).
655 We recall that the Panel found that Chapter 10.4 of the OIE Code does not include product-specific
recommendations regarding the remaining two product categories in S.O. 1663(E) – live pigs, and pathological
material and biological products from birds – and that the United States therefore did not propose alternative
measures to S.O. 1663(E) in relation to these products. (Panel Reports, para. 7.533 and fn 1105 to
para. 7.597)

5.232. In addition, we note that India's claim appears premised on its contention that the OIE
Code allows India, based on its appropriate level of protection, to apply only NAI-free
recommendations and only on a country-wide basis. As noted in our analysis under Article 3 of the
SPS Agreement, however, the Panel expressly rejected India's understanding of the OIE Code
when it stated that "India's interpretative approach, whereby Chapter 10.4 would allow an
importing country to choose as a 'condition of en try' the NAI-free status of the exporting country
and apply that condition only on a country-wide basis, runs contrary to Chapter 10.4 of the
[OIE] Code".
656 We, therefore, consider that India's clai m is premised on an understanding of the
OIE Code that the Panel properly rejected.657
5.233. In the light of the above considerations, we disagree with India's contention that the Panel
failed to identify the product-specific recomme ndations in the OIE Code for the corresponding
product in question and the applicability of the same in the event of the occurrence of HPNAI or
NAI.658 Accordingly, we find that the Panel did not fa il to identify the alternative measures with
precision.
5.4.4 Whether the Panel acted inconsistently with Article 11 of the DSU
5.234. Finally, we turn to examine two challenges to the Panel's findings raised by India under
Article 11 of the DSU.
5.235. First, India argues that the Panel failed to analyse India's defence under Article 5.6 of the
SPS Agreement and therefore failed to make an ob jective assessment of the matter. In particular,
India alleges that the Panel disregarded its argument that the United States' claim under
Article 5.6 was "inadequate" because the alternative measures proposed by the United States were
based on the appropriate level of protection reflected in India's domestic control measures instead
of on the one reflected in the measures at issue. In India's view, the Panel's dismissal of India's
"critical defence" under Article 5.6 without providing any reasons shows that the Panel acted
inconsistently with Article 11 of the DSU.
659
5.236. Distinguishing a claim that a panel erred in applying a legal provision to the facts of the
case from a claim that a panel failed to make an objective assessment of the matter as required
by Article 11 of the DSU may, at times, prove to be a difficult task. However, we recall that the
Appellate Body has stated that, "[i]n most cases … an issue will either be one of application of the
law to the facts or an issue of the objective assessment of facts, and not both". 660 The Appellate
Body has also established that a claim that a panel failed to comply with its duties under Article 11
of the DSU "must stand by itself " and should not be made merely as a subsidiary argument or
claim in support of a claim that the panel failed to apply correctly a provision of the covered
agreements.
661
5.237. We consider that India's first claim under Article 11 of the DSU is premised on its
argument that the United States failed to establish a prima facie case under Article 5.6 of the
SPS Agreement because the United States sought to identify India's appropriate level of protection
as being "quite low" on the basis of the NAP 2012. We have already addressed and rejected that
argument above. In our view, India's claim under Ar ticle 11 is indistinguishable from its claim with
respect to the Panel's application of Article 5.6 to India's AI measures, and does not "stand by
itself".
662 Therefore, India's claim under Article 11 of the DSU must be dismissed.

656 Panel Report, para. 7.270.
657 See section 5.2 of this Report.
658 India's appellant's submission, para. 276.
659 India's appellant's submission, para. 269 (referring to India's first written submission to the Panel,
paras. 243-244; and opening oral statement at the first Panel meeting, para. 51).
660 Appellate Body Reports, China – Rare Earths, para. 5.173 (quoting Appellate Body Report, EC and
certain member States – Large Civil Aircraft, para. 872 (emphasis original)).
661 Appellate Body Reports, China – Rare Earths, para. 5.173 (referring to Appellate Body Reports, EC –
Fasteners (China), para. 442; US – Steel Safeguards, para. 498; and Chile – Price Band System (Article 21.5 –
Argentina), para. 238).
662 Appellate Body Reports, China – Rare Earths, para. 5.173 (referring to Appellate Body Reports, EC –
Fasteners (China), para. 442; US – Steel Safeguards, para. 498; and Chile – Price Band System (Article 21.5 –
Argentina), para. 238).

5.238. In its second allegation, India argues that the Panel acted inconsistently with Article 11 of
the DSU because it ruled on a claim that was not argued by the United States. According to India,
the United States limited its arguments and evid ence under Article 5.6 of the SPS Agreement to
countries notifying LPNAI and did not challenge the application of S.O. 1663(E) to countries
notifying HPNAI. Thus, in India's view, the Panel could not have concluded that India's
AI measures, which include import restrictions on account of the occurrence of both HPNAI and
LPNAI, are inconsistent with Article 5.6 of the SPS Agreement. Moreover, India argues that, since
the United States never explicitly made arguments or presented evidence with respect to the
application of S.O. 1663(E) to countries notifying HPNAI, India never had an opportunity to defend
itself on this issue.
663
5.239. In response, the United States contends that the Panel ruled on precisely the claim
brought by the United States. According to the United States, the record in this dispute provides
no basis for India's assertions that the scope of the United States' claim under Article 5.6 was
limited to import restrictions imposed upon the no tification of LPNAI alone. In the United States'
view, India's position is inconsistent with India's own arguments in the context of its other claim
under Article 11, where India argues that the United States' claim was with respect to two
products and HPNAI.
664 Moreover, the United States argues that India does not reference or
explain the precise language upon which it bases its assertion that the United States limited its
claim under Article 5.6 to measures addressing occurrences of LPNAI.
5.240. We begin by noting that India clarifies that it is not arguing that the United States' claim
under Article 5.6 is not within the Panel's terms of reference. Instead, India argues that merely
impugning a measure in the panel request does no t absolve the complaining party of presenting
arguments and evidence with respect to that claim.665
5.241. We do not consider that India has substantiated its contention that the United States'
claim under Article 5.6 with respect to India's AI measures was limited to the imposition of import
prohibitions upon occurrence of LPNAI, and that the Panel erred under Article 11 of the DSU in
finding otherwise. The United States challenged India's AI measures, which, as defined by the
Panel, impose prohibitions on the importation of ten product categories from countries reporting
NAI, that is, both HPNAI and LPNAI.
666 As indicated in the table reproduced above, the
United States identified the recommendations in th e OIE Code that apply with respect to eight of
those ten product categories. Moreover, we recall that the product-specific recommendations in
the OIE Code that the United States relied upon as reasonably available alternative measures
included recommendations that apply not only in respect of occurrences of LPNAI, but also in
respect of countries regardless of their NAI status, which could apply to imports from countries
reporting HPNAI. Thus, these recommendations address situations in which both HPNAI and LPNAI
may be present. We, therefore, do not see that the United States limited its claim in the way that
India now argues on appeal. Accordingly, we do not accept India's allegation that the Panel ruled
on a claim which was not argued by the United States.
5.242. For the foregoing reasons, we find that India has not established that the Panel acted
inconsistently with its duty to conduct an objective assessment of the matter pursuant to
Article 11 of the DSU in its analysis of the consistency of India's AI measures with Article 5.6 of
the SPS Agreement.
5.4.5 Conclusion
5.243. We have found that the Panel did not err in finding that the United States had identified
alternative measures that would achieve India's appropriate level of protection. We have also
found that the Panel did not fail to identify the alternative measures with precision. Finally, we
have found that India has not established that the Panel acted inconsistently with its duty to
conduct an objective assessment of the matter pursuant to Article 11 of the DSU in its analysis of
the consistency of India's AI measures with Article 5.6 of the SPS Agreement.

663 India's appellant's submission, paras. 257-258 (referring to Appellate Body Report, Chile – Price
Band System, para. 164).
664 United States' appellee's submission, para. 196 (referring to India's appellant's submission,
paras. 278-279).
665 India's appellant's submission, para. 254.
666 Panel Report, paras. 2.32 and 7.271.

5.244. In the light of these findings, we uphold the Panel's finding, in paragraphs 7.616
and 8.1.c.vii of the Panel Report, that India's AI measures are inconsistent with Article 5.6 of the
SPS Agreement because they are significantly more trade restrictive than required to achieve
India's appropriate level of protection, with respect to the products covered by Chapter 10.4 of the
OIE Code. Having upheld the Panel's finding under Article 5.6, we find it unnecessary to address
India's request for reversal of the Panel's finding that India's AI measures are consequentially
inconsistent with Article 2.2 of the SPS Agreement.
5.5 Article 2.3 of the SPS Agreement
5.245. India appeals certain aspects of the Panel's assessment of the United States' claim under
Article 2.3, first sentence, of the SPS Agreement. India requests reversal of the Panel's finding that
there is insufficient evidence on the record to support a finding that LPNAI is exotic to India, as
well as its finding that the discrimination that India maintains, through its AI measures, against
foreign products on account of LPNAI is arbitrary or unjustifiable, contrary to Article 2.3, first
sentence, of the SPS Agreement.
667 In particular, India asserts that the Panel acted inconsistently
with Article 11 of the DSU in the consultations with individual experts on India's disease situation
in respect of LPNAI.668
5.246. In its Notice of Appeal, India claims th at the "Panel erred in its interpretation and
application of Article 2.3 of the SPS Agreement and/or failed to make an objective assessment of
the matter pursuant to Article 11 of the DSU". 669 However, in its appellant's submission, India's
challenge to the Panel's assessment of the United States' claims under Article 2.3 consists only of
three claims of error under Article 11 of the DSU. At the oral hearing, India clarified that its appeal
is not directed at the Panel's interpretation or application of Article 2.3. Accordingly, we restrict our
analysis to India's claims under Article 11 of the DSU.
5.247. We begin by recalling the relevant parts of the Panel's assessment of the United States'
claim under Article 2.3, first sentence, before addressing India's claims of error on appeal.
5.5.1 The Panel's findings
5.248. Before the Panel, the United States claimed that India's AI measures are inconsistent with
Article 2.3 of the SPS Agreement because India takes a "diametrically different approach" to the
regulation of trade in domestic products on account of AI in comparison to its regulation of trade in
imported products on account of AI. Thus India's AI measures arbitrarily or unjustifiably
discriminate against imported products and constitute a disguised restriction on trade.
670
Specifically, the United States argued that India's AI measures reflect two different "forms" of
discrimination that are inconsistent with Article 2.3, first sentence: (i) India maintains a total ban
on imported products if there is an NAI outbreak anywhere in the exporting country, as compared
with a ban only on domestic products originating within a limited 10 km zone of the outbreak
671;
and (ii) India imposes bans on imported products on account of LPNAI, while India itself does not
even maintain surveillance requirements that would result in the detection of LPNAI.
672
5.249. Although the Panel found that the United States had demonstrated that India's
AI measures are inconsistent with Article 2.3, first sentence, in respect of both forms of
discrimination
673, India's appeal concerns only one part of the Panel's findings concerning the
second form of discrimination alleged by the United States, i.e. whether India's prohibition on the
importation of products on account of LPNAI, coupled with its lack of a domestic surveillance
regime capable of reliably detecting LPNAI occurring in India's domestic poultry flocks, amounts to
arbitrary or unjustifiable discrimination between Members where identical or similar conditions
prevail. Given the limited nature of India's appeal under Article 2.3, first sentence, we focus below
on the Panel's analysis with respect to the second form of discrimination alleged by the
United States.

667 India's Notice of Appeal, para. 18 (referring to Panel Report, paras. 7.454 and 7.457).
668 India's appellant's submission, para. 284.
669 India's Notice of Appeal, para. 17.
670 Panel Report, para. 7.348.
671 Panel Report, paras. 7.352-7.357.
672 Panel Report, paras. 7.358-7.364.
673 Panel Report, para. 7.472.

5.250. The Panel began its examination of Article 2.3, first sentence, by recalling the compliance
panel's finding in Australia – Salmon (Article 21.5 – Canada) that three cumulative elements
should be established to find a violation of that provision, namely, that:
i. 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;
ii. the discrimination is arbitrary or unjustifiable; and
ii. identical or similar conditions prevail in the territories of the Members concerned. 674
5.251. The Panel addressed each of the above th ree elements separately with regard to the
second form of discrimination alleged by the United States. The Panel also indicated that it was for
the United States, as the complainant, to demons trate that all three elements are satisfied for
purposes of its overall case under Article 2.3, first sentence.
675 India's appeal is mainly directed at
the Panel's treatment of the second of the three elements. We nevertheless consider it useful to
summarize briefly the Panel's analysis of all three of the above elements with respect to the
second form of discrimination alleged by the United States in order to situate India's appeal within
its context.
5.252. With regard to the first element, the Panel considered it appropriate to interpret
"discrimination" in Article 2.3 in a manner similar to that adopted by the Appellate Body in
interpreting similar language under the chapeau to Article XX of the GATT 1994.
676 In order to
determine whether India discriminates against other WTO Members (including the United States)
by maintaining an import prohibition on products coming from countries that have notified LPNAI,
while not maintaining adequate surveillance to detect LPAI within its territory (and therefore not
taking steps necessary to restrict domestic products on account of LPAI), the Panel set out to
analyse India's surveillance regime for LPAI.
677 Having surveyed the text of India's NAP 2012 678,
the Panel understood that "India maintains a surveillance regime for AI through the NAP 2012".
The Panel therefore turned to consider whether "this surveillance regime is adequate to detect
LPNAI".
679 To this end, the Panel asked the indivi dual experts whether India's surveillance
activities would reliably detect LPNAI in poultry. 680 Based on their written and oral responses, the
Panel considered it "clear … that all three indivi dual experts are in agreement that India does not
have in place a surveillance system capable of reliably detecting LPNAI". 681 The Panel thus could
not conclude, on the basis of the evidence before it, that the surveillance regime that exists under
the NAP 2012 is adequate to reliably detect LPNAI. 682 Having reached this factual conclusion, the
Panel explained that:
India prohibits imports of products enumerated in paragraphs (1)(ii)(a) to (1)(ii)(j) of
S.O. 1663(E) from WTO Members who notify LPNAI to the OIE. In contrast, India does
not have in place a surveillance system capable of reliably detecting that same risk
within its territory, and, therefore, India is not in a position to systematically impose
LPNAI-based restrictions on the products covered by S.O. 1663(E) within its territory.
Therefore, India treats domestic and imported products differently with respect to the
r i s k o f L P N A I , d e p e n d i n g o n w h e t h e r t h a t r i s k o r i g i n a t e s w i t h i n I n d i a o r i n a n o t h e r
Member.
683

674 Panel Report, para. 7.389 (referring to Panel Report, Australia – Salmon (Article 21.5 – Canada),
para. 7.111).
675 Panel Report, paras. 7.391, 7.426, and 7.458.
676 Panel Report, para. 7.400. The Panel also noted that the first element under Article 2.3, first
sentence, contains both a national treatment obligation and a most-favoured nation obligation. (Ibid., fn 760 to
para. 7.391)
677 Panel Report, para. 7.414.
679 Panel Report, para. 7.417.
680 Panel Report, para. 7.418.
681 Panel Report, para. 7.423.
682 Panel Report, para. 7.423.
683 Panel Report, para. 7.424.

5.253. With regard to the second element under Article 2.3, first sentence, the Panel began its
analysis by noting that the United States had to demonstrate that the manner in which India's
AI measures discriminate between the territory of India and the territories of other Members is
arbitrary or unjustifiable.
684 The Panel considered the interpretation of "arbitrary or unjustifiable"
in the context of Article XX of the GATT 1994 to be of "some utility" in its analysis under Article 2.3
of the SPS Agreement. 685 Referring to the Appellate Body's understanding of this term in Brazil –
Retreaded Tyres, the Panel observed that the meaning of "arbitrary or unjustifiable discrimination"
in Article 2.3 involves consideration of the "cause" or "rationale" put forward to explain the
discrimination in question, and whether there is a "rational connection" between the reasons given
for the discriminatory treatment and the objective of the measure. 686 The Panel noted that,
according to the United States, the differential treatment accorded by India to imported and
domestic products is arbitrary or unjustifiable because the risks posed by both sets of products is
the same, but the lack of reliable surveillance for LPNAI means that, in practice, trade in domestic
products is not restricted on account of LPNAI.
687 The Panel further observed that India, referring
to the panel report in Australia – Salmon, argued that the risks relating to diseases present in the
territory of a Member are different from those rela ting to diseases that are exotic, and asserted
that LPNAI is exotic to India.688
5.254. In order to determine whether the differential treatment maintained by India is arbitrary or
unjustifiable, the Panel focused on the cause of the discrimination and the rationale put forward by
India to explain its existence, namely, that LPNAI is not present in – or is "exotic to" – India, and
that this is a cause for greater concern in term s of the risk of introduction of LPNAI and its
potential impact in India. The Panel recalled the Appellate Body's jurisprudence on the allocation of
the burden of proof and the distinction between a complainant's burden of establishing a
prima facie case of inconsistency with a provision of a covered agreement, and the principle that
the party asserting a fact is responsible for providing proof thereof. Having done so, the Panel
preliminarily observed that India had the burden of proving that LPNAI is exotic to India.
689
5.255. The Panel sought the advice of the individual experts "in order to help it evaluate the
parties' arguments and the evidence supporting the presence, or lack thereof, of LPNAI in
India".690 The Panel asked the experts the following qu estions: (i) whether the evidence provided
by India supports India's statement that LPNAI is exotic to poultry in India; (ii) whether it is
plausible that a country that has experienced mult iple H5N1 HPNAI outbreaks, such as India, is
free from LPNAI; and (iii) whether anything can be inferred about the LPNAI situation in India from
a study, submitted by the United States, in whic h H5 and H7 antibodies were found in ducks in
India (the Pawar et al. study). 691 In the light of the responses provided by the individual
experts692, the Panel concluded that there was insufficient evidence on the record to support a
finding that LPNAI is exotic to India. 693 In doing so, the Panel took particular account of the
individual experts' observations that the docume nts submitted by India to support its assertion
that LPNAI is exotic to India did not support this contention, and of their affirmation that the
evidence on the record indicated that India's surveillance regime is not adequate to detect reliably
LPNAI. The Panel also stressed that it was not maki ng a finding on whether or not LPNAI is exotic
to India. Rather, its conclusion was limited to a determination of whether the assertion that LPNAI
is exotic to India was supported by the facts and the evidence presented.
694 Considering the
burden of proof under the SPS Agreement and the fa ct that the alleged absence of LPNAI in India
constitutes the rationale put forward by India in response to the United States' argument that
India unjustifiably treats imported products differently from domestic products, the Panel found
that India had not rebutted the United States' prima facie case of arbitrary or unjustifiable

684 Panel Report, para. 7.426.
685 Panel Report, para. 7.427.
686 Panel Report, paras. 7.428-7.429 (referring to Appellate Body Report, Brazil – Retreaded Tyres,
para. 227).
687 Panel Report, para. 7.428.
688 Panel Report, para. 7.378.
689 Panel Report, paras. 7.438-7.442 (referring to Appellate Body Reports, EC – Hormones, para. 98;
and Japan – Apples, paras. 154-157). See also para. 7.426 (in that paragraph, the Panel set out the legal
standard that the United States "must demonstrate that the manner in which India's AI measures discriminate
between the territory of India and the territory of other Members is arbitrary or unjustifiable.")
690 Panel Report, para. 7.443.
691 Panel Report, para. 7.443.
692 Panel Report, paras. 7.444-7.453.
693 Panel Report, para. 7.454.
694 Panel Report, paras. 7.454-7.455.

discrimination. Therefore, the Panel found the discrimination that India maintains, through its
AI measures, against foreign products on account of LPNAI to be arbitrary or unjustifiable,
contrary to Article 2.3 of the SPS Agreement.
695
5.256. Finally, in respect of the third element of Article 2.3, first sentence, the Panel's
understanding of the term "identical and similar conditions" was similar to that of the compliance
panel in Australia – Salmon (Article 21.5 – Canada) . Specifically, the Panel noted: first, that the
same facts that inform the assessment of whether or not discrimination is arbitrary or unjustifiable
may also inform the assessment of whether or not identical or similar conditions prevail; and,
second, that the relevant "conditions", for the purpose of a given analysis, may be the presence of
a disease within a territory (and the concomitant risk associated with that disease). 696 The Panel
thus agreed with India's contention that, if the relevant disease is present in one country but not
in another, this may be an indication that identical or similar conditions do not exist. However, in
view of the fact that India had not discharged its bu rden of proving that LPNAI is exotic to India,
and the Panel's finding that India does not mainta in a surveillance mechanism adequate to detect
reliably the presence or absence of LPNAI within its territory, there was no foundation upon which
the Panel could, in this dispute, take account of any such indication.697
5.257. Given that similar factors can be considered for the purpose of determining both whether a
measure discriminates in a manner that is arbitrary or unjustifiable, and whether identical or
similar conditions prevail under Article 2.3, first sentence 698, the Panel observed that the risk
against which India is protecting is LPNAI, and that there was no evidence before the Panel to
suggest that the risks associated with LPNAI are in any way different on the basis of the origin of
the relevant product. Thus, the Panel considered that India is protecting against an identical or
similar risk when it takes measures to protect against LPNAI, regardless of whether the relevant
product originates in India or in the United Stat es or somewhere else. Therefore, the Panel found
that the risks against which India is protecting in India constitute conditions that are similar to
those in other Members, including the United States.
699
5.258. Having thus found that all three elements to establish a violation of the first sentence of
Article 2.3 were satisfied in respect of the second form of discrimination alleged by the
United States, this finding, together with the same finding that it made in respect of the first form
of alleged discrimination, led the Panel to conclude that India's AI measures are inconsistent with
the first sentence of Article 2.3 because they arbitrarily and unjustifiably discriminate between
India and other Members in which the same or similar conditions prevail.
700
5.5.2 India's claims under Article 11 of the DSU
5.259. On appeal, India does not challenge any aspect of the Panel's interpretation of Article 2.3,
first sentence, of the SPS Agreement or its applic ation of that provision to India's AI measures.
Instead, the three claims of error raised by India on appeal are all claims that the Panel failed to
make an objective assessment, and thereby acted in consistently with Article 11 of the DSU, in its
analysis of the United States' claims under Article 2.3, first sentence, with respect to the second
form of discrimination alleged by it, and, in pa rticular, with respect to the Panel's analysis of
whether such discrimination is "arbitrary or unjustifiable".
5.260. Before addressing India's claims under Article 11 of the DSU, we wish to make some
preliminary observations. We begin by observing that, notwithstanding certain similarities between
its language and that of the chapeau of Article XX of the GATT 1994, Article 2.3, first sentence, of
the SPS Agreement, sets out an obligation and is not expressed in the form of an exception. Thus,
a complainant raising a claim that a Member's SPS measure is inconsistent with Article 2.3, first
sentence, bears the overall burden of establishing its prima facie case of inconsistency.
701

695 Panel Report, para. 7.457.
696 Panel Report, para. 7.460.
697 Panel Report, para. 7.467.
698 Panel Report, para. 7.468.
699 Panel Report, paras. 7.468-7.470.
700 Panel Report, para. 7.472.
701 See Panel Report, paras. 7.391, 7.426, and 7.458.

5.261. We also note that, in assessing the Un ited States' claim under the first sentence of
Article 2.3, the Panel followed the analytical approach adopted by the compliance panel in
Australia – Salmon (Article 21.5 – Canada). In so doing, the Panel analysed separately the three
elements of a violation of the first sentence of Ar ticle 2.3 in a sequential order, beginning with an
examination of whether India's AI measures discriminate against imported products, and
concluding with an analysis of the issue of whether identical or similar conditions prevail in the
territories of the United States and India. We observe that the three elements identified in the first
sentence of Article 2.3 inform each other
702, such that the analysis of each element cannot be
undertaken in strict isolation from the analysis of the other two elements. While a sequential
analysis of distinct elements may provide a useful framework within which to scrutinize a particular
measure's conformity with the first sentence of Ar ticle 2.3, the use of such a framework does not,
in itself, alter the content of the examination required or affect the overall burden of proof that is
borne by a complainant under that provision. Ind eed, the analytical approach adopted by a panel
may vary as a function of, inter alia, the measure at issue, the nature of the alleged
discrimination, and the particular circumstances of a case. We observe, in this connection, that the
text of Article 2.3, first sentence, does not appear to mandate the particular order of analysing the
requirements thereunder that was followed by the Panel in this dispute. Indeed, it seems to us
that, logically, identifying the relevant conditions, and assessing whether they are identical or
similar, will often provide a good starting point for an analysis under Article 2.3, first sentence.
703
5.5.2.1 Whether the Panel failed to make an objective assessment by setting "terms of
reference" for individual experts that were beyond the scope of the OIE Code
5.262. India alleges that the Panel acted inconsistently with Article 11 of the DSU because the
"terms of reference" of the Panel's consultations with the individual experts went beyond the scope
of the OIE Code.
704 India submits that Article 1.6.1 of Chapter 1.6 of the OIE Code recognizes five
diseases and that, in order to receive official recognition of disease-free status from the OIE with
respect to one of these diseases, a country has to submit documentary evidence that is evaluated
by the OIE. By contrast, India stresses that this procedure is not applicable in respect of other
OIE-listed diseases, including AI. 705 For such other diseases, an OIE member's claim of NAI
freedom is not subject to evaluation. Thus, India's claim that it is free from LPNAI could not
properly have been subject to any technical or sci entific evaluation by the OIE, much less by any
individual experts unaffiliated with the OIE.
706 For India, the Panel should itself have interpreted
and applied Article 1.6.1 of the OIE Code when fram ing its "terms of reference" to the individual
experts, and should have understood that this provision only requires self-certification for a
country's AI status. Instead, the Panel required the experts to assess and review the evidence
submitted by India to support its claim that it is free from LPNAI.
707 India alleges that, by doing so,
the Panel incorrectly interpreted and applied Chapte r 1.6 of the OIE Code, and, for India, wrongly
placed AI on the same pedestal as the diseases listed in Article 1.6.1 for which members may
request official recognition from the OIE, even though AI is not one of them.708 On this basis, India
seeks reversal of those Panel findings that we re based upon the testimony provided by the
individual experts.709
5.263. According to the United States, because Article 11 of the DSU requires a panel to assess
whether the evidence on the record supports the assertions made by the parties, even if the

702 Indeed, the Panel itself appears to have recognized this. (See Panel Report, paras. 7.460 and 7.468)
703 For example, we regard the approach that the Appellate Body sought to take in Australia – Salmon
as suggesting that the analysis under Article 2.3, first sentence, should begin by considering whether identical
or similar conditions prevail in the relevant territories. Although the Appellate Body was ultimately unable to
complete the analysis under Article 2.3 in that dispute, its reasoning suggests that it would have begun the
analysis by examining the relevant conditions in the territories being compared, and assessing their similarity.
(Appellate Body Report, Australia – Salmon, para. 255 ("In the context of an examination under Article 2.3,
first sentence, it would first of all be necessary to determine the risk to Australia's salmonid population
resulting from diseases … which are en demic to some parts of Australia but exotic to others." (emphasis
added))) See also, in the context of the analysis under the chapeau of Article XX of the GATT 1994, Appellate
Body Reports, EC – Seal Products, paras. 5.299 and 5.317.
704 India's appellant's submission, heading E(b).
705 India's appellant's submission, para. 291 (referring to OIE's response to Panel question No. 9,
pp. 19-21).
706 India's appellant's submission, para. 292.
707 India's appellant's submission, para. 293.
708 India's appellant's submission, paras. 292-294.
709 India's appellant's submission, para. 297.

OIE Code had provided that an OIE member should defer to another OIE member's self-
assessment that it has no AI, this could not have absolved the Panel of its responsibility to assess
the evidence on the record and determine whethe r such evidence supported India's assertion of
being LPNAI free.
710 The United States highlights that India fails to identify anything in the
OIE Code that prescribes the weight that a WTO panel, as opposed to OIE members, must give to
the self-assessment by an OIE member of its disease situation with respect to a listed disease for
which the OIE does not grant official recognition, such as AI. The part of the OIE Code relied on by
India (Article 1.6.1) addresses what an OIE member making a claim of its disease status with
respect to a disease can or should do, and what the OIE may or will not do in response; however,
it "does not speak to any other entity".
711 Further, the United States asserts that there is nothing
in the OIE Code to support India's position that a country's self-declaration of its AI situation must
be accepted as "unassailably correct", including by the Panel in this dispute. 712 Article 1.6.1 of the
OIE Code states that members "may" inform the OIE of their claimed disease status, and that the
OIE may "publish" such claims, but that "[p]ub lication does not imply endorsement of the
claim".
713 Given that self-declarations of disease status are merely claims, and not official disease
statuses, the United States submits that the Panel could not have failed to make an objective
assessment by considering whether the evidence supports India's self-assertion of LPNAI freedom,
and by posing questions to the experts relating to this issue.
714 The United States also stresses
that Chapter 10.4 of the OIE Code, which specifically concerns AI, is consistent with the Panel's
approach, as it makes clear that self-declarations of freedom from AI must be supported by
evidence of surveillance capable of justifying the self-categorization.
715
5.264. The United States submits that the adeq uacy of India's LPNAI surveillance to detect
reliably LPNAI and to support India's claim of LPNAI freedom are "technical questions" on which
the Panel could have reasonably sought expert assi stance in interpreting the evidence put forth by
the parties, consistently with Article 11.2 of the SPS Agreement and Article 11 of the DSU.
716
Given these facts, as well as the importance of th e issue of the adequacy of India's surveillance
regime for LPNAI in this dispute, the United States contends that it was fully consistent with
Article 11 of the DSU for the Panel to have aske d the experts what the evidence showed about
India's AI surveillance and about India's assertion that LPNAI is not present within its territory.
5.265. We begin by recalling that a panel's duties are set out in Article 11 of the DSU, which
requires a panel to make "an objective assessment of the facts of the case", including an
assessment of whether the evidence on the record supports a party's assertion. In this case, we
note that India is not claiming that the Panel's us e of, or reliance upon, the responses provided by
the individual experts as part of its assessment of the United States' claims violated Article 11.
Instead, India's challenge goes to the scope of the Panel's consultations with the individual
experts, as set out in the "terms of reference" for the individual experts, and the questions posed
to the experts by the Panel. The "terms of refere nce" that India appears to be taking issue with 717
state that "the Panel will conduct: … a written and oral consultation with two experts on the AI
surveillance regime with particular reference to India's domestic measures and its disease
situation".
718 We also note that, in the context of these dispute settlement proceedings, it was
India that made the assertion that it was LPNAI free. 719 The Panel was thus required, by the terms
of Article 11 of the DSU, to assess whether India's assertion was supported by the evidence on the

710 United States' appellee's submission, para. 128.
711 United States' appellee's submission, para. 129 (referring to India's appellant's submission,
para. 290).
712 United States' appellee's submission, para. 130 (referring to India's appellant's submission,
paras. 291-294).
713 United States' appellee's submission, para. 132 (quoting OIE Code, Article 1.6.1, and referring to
OIE's response to Panel question No. 9, pp. 19-21).
714 United States' appellee's submission, para. 132.
715 United States' appellee's submission, para. 133 (referring to OIE Code, Chapters 10.4.27-10.4.32
716 United States' appellee's submission, para. 135.
717 India's appellant's submission, para. 293 (referring to letter dated 10 September 2013 from the
Panel to the parties).
718 Letter dated 10 September 2013 from the Panel to the parties. Notwithstanding the reference to "two
experts" in the initial "terms of reference" framed by it, following receipt of the curricula vitae, lists of
publications, and other relevant documentation pertaining to potential experts, the Panel subsequently decided
to select three, rather than two, individual experts. (Panel Report, para. 1.23 and fn 15 thereto)
719 Panel Report, paras. 7.413 and 7.439.

record.720 India appears to suggest that Chapter 1.6 of the OIE Code precludes such an
assessment, and required the Panel simply to a ccept India's self-assessment. India submits that
"the Panel's terms of reference to the individual experts [are] inconsistent with the obligations
provided under Chapter 1.6 of the OIE Code". 721 Chapter 1.6 of the OIE Code, however, does not
prescribe duties and obligations for WTO panels, and it cannot override the text of Article 11 of the
DSU, which sets out the function of WTO panels and requires a panel to make an objective
assessment of the matter before it, including an objective assessment of the facts of the case.
Nothing in the text of Article 11 of the DSU preven ted the Panel from setting "terms of reference"
for the individual experts and posing questions concerning an issue which, given the manner in
which India sought to defend itself against the claim raised by the United States under Article 2.3,
first sentence, was clearly relevant to the matter before it, namely, India's disease status as
regards LPNAI.
5.266. For these reasons, we do not accept that India's argument that, by virtue of the OIE Code,
the Panel was required to accept as definitive India's self-assessment of being LPNAI free. Thus,
we reject India's claim, under Article 11 of the DSU, that the Panel failed to make an objective
assessment of the matter before it by setting "ter ms of reference" for individual experts, and
posing questions to them, that went beyond the scope of the OIE Code.
5.5.2.2 Whether the Panel failed to make an objective assessment by requiring India to
prove that LPNAI is exotic to India, instea d of requiring the United States, as the
complainant, to establish prima facie its allegation that LPNAI should be present in India
5.267. India's second claim of error under Article 11 of the DSU relates to the allocation of the
burden of proof by the Panel. Recalling that the initial burden of proof to establish a prima facie
case in an SPS dispute lies on the complainant, India asserts that the burden of proof was on the
United States to establish its allegation that LPNAI is present in India.
722 According to India,
however, the Panel's questions to the experts erroneously shifted the burden of proving the
opposite onto India. In India's view, the Panel should have asked the experts to opine first on
whether the evidence submitted by the United St ates supported its allegations, and only then
could it have asked the experts to assess India's evidence.723 The Panel, however, expressly stated
that the burden to establish that LP NAI is exotic to India was on India. 724 India submits that, as a
result of the Panel's approach, the United States' arguments and evidence on this issue were not
"evaluated at all", even though it was clear that the United States had failed to present a
prima facie case.
725 Moreover, India argues that, because the OIE Code requires countries to
report any occurrence of LPNAI, the fact that In dia had never reported an occurrence of LPNAI to
the OIE should have been sufficient for the Panel to conclude that LPNAI is exotic to India. 726 India
claims that, by wrongly allocating the burden of proof to India in this manner, the Panel acted
inconsistently with Article 11 of the DSU.727
5.268. Referring to WTO jurisprudence, the United States responds that the Panel rightly
explained that, while the United States had the burden of establishing a prima facie case, India
had the burden of proving those facts it asserted in attempting to rebut that case. 728 In the
present case, the United States asserts that it had established that India treats domestic and
imported products differently with respect to the risk of LPNAI, depending on whether the risk
originates in India or in another Member. The United States had therefore made a prima facie case
that India's AI measures discriminate against imported products in an apparently arbitrary manner
and without apparent justification. In order to rebut this prima facie case, India had the burden of

720 At the oral hearing, India clarified that the "self-declaration" allegedly made by it to the OIE, within
the meaning of Article 1.6.1 of the OIE Code, was not a part of the Panel record. Thus, by referring to its
"self-declaration", India appears to be referring simply to its factual assertion that it is LPNAI free. This
assertion was not made to the OIE, but rather to the Panel in this dispute.
721 India's appellant's submission, para. 293 (referring to letter dated 10 September 2013 from the
Panel to the parties). (emphasis added; fn omitted)
722 India's appellant's submission, paras. 298-299 (referring to Panel Report, para. 7.442).
723 India's appellant's submission, para. 300.
724 India's appellant's submission, para. 301 (referring to Panel Report, para. 7.442).
725 India's appellant's submission, para. 302.
726 India's appellant's submission, para. 303.
727 India's appellant's submission, para. 304.
728 United States' appellee's submission, para. 138 (referring to Appellate Body Report, Japan – Apples,
paras. 152 and 154; and Panel Report, para. 7.442).

establishing the facts supporting any justification for the discriminatory treatment. 729 The Panel
correctly explained that India's justification for the differential treatment is that LPNAI is exotic to
India, and the Panel therefore correctly proceeded to assess whether the factual premise of India's
justification, i.e. that LPNAI is exotic to Indi a, was supported by the evidence adduced by India.
730
Contrary to India's assertion, the United States submits that it did not have to establish that LPNAI
is present in India in order to establish its prima facie case. Instead, with respect to the second
form of alleged discrimination, the United States' case focused on the fact that India imposed
LPNAI-based import bans, but failed to undertake surveillance capable of reliably detecting LPNAI
domestically.731 The United States points outs that the Panel found that the United States had
established this point, and that India does not contest the Panel's findings in this regard. 732 By
contrast, it was India's assertion before the Panel that LPNAI was absent from India and this,
therefore, was a fact that India needed to establish.733
5.269. The United States also takes issue with India's argument that, since India never reported
an occurrence of LPNAI to the OIE, the Panel should have accepted that India had established that
LPNAI is absent from India.734 The United States views this as a "repackaging" of India's argument
that India's self-assessment of LPNAI freedom should have been accepted by the Panel as a fact,
even in the absence of scientific evidence supporti ng it – an argument which is contrary to both
logic and the requirements of the OIE Code. 735 Moreover, the United States submits that the
Panel's questions to the experts on whether India is LPNAI free did not reflect an allocation by the
Panel of the burden of proof, but, instead, only sought expert comments on what the evidence on
the record showed regarding different points made by the parties on the issue.736
5.270. We consider that India's second claim of error under Article 11 of the DSU raises three
issues: (i) whether the Panel's questions to the in dividual experts erroneously shifted the burden
of proof onto India; (ii) whether the Panel erred in concluding that India had the burden of proving
t h a t L PN AI is e xo t ic t o In d ia ; a n d ( ii i ) wh e t h e r t he P a n e l e r red in fa i l in g t o fin d t h a t I n d ia h a d
discharged any burden of proof that it bore by establishing that it has never reported to the OIE an
occurrence of LPNAI within its territory.
5.271. As to the first issue, we have difficulty accepting India's assertion that the "Panel's
questions to individual experts erroneously shifted the burden of proof onto India".
737 India
explains that, "[s]ince it was the United States that had presented the hypothesis that LPNAI must
be present in India as it is ubiquitous in wild birds, the Panel should have asked the experts to
opine first and foremost whether this assumption was borne out by the evidence advanced by the
United States and then could have asked the individual experts to assess India's arguments and
evidence."
738 Instead, India alleges that the Panel's approach "resulted in the United States'
arguments and evidence with respect to this issue not being evaluated at all".739
5.272. We recall that, in order to "help it ev aluate the parties' arguments and the evidence
supporting the presence, or lack thereof, of LPNAI in India", the Panel sought the advice of experts
and asked them the following three questions: (i) whether the evidence provided by India supports
India's statement that LPNAI is exotic to poultry in India; (ii) whether it is plausible that a country
such as India that has experienced multiple H5N1 HPNAI outbreaks is free from LPNAI; and
(iii) whether anything can be inferred about the LP NAI situation in India from a study, submitted

729 United States' appellee's submission, para. 139 (referring to Panel Report, paras. 7.425 and 7.438).
730 United States' appellee's submission, para. 140 (referring to Panel Report, para. 7.441).
731 United States' appellee's submission, para. 141 (referring to India's appellant's submission,
para. 299).
732 United States' appellee's submission, para. 141 (referring to Panel Report, paras. 7.412
and 7.423-7.424; and United States' first written submission to the Panel, para. 174).
733 United States' appellee's submission, para. 142.
734 United States' appellee's submission, para. 143 (referring to India's appellant's submission,
para. 303).
735 United States' appellee's submission, paras. 143-144.
736 United States' appellee's submission, para. 145.
737 India's appellant's submission, para. 300.
738 India's appellant's submission, para. 300. (fn omitted)
739 India's appellant's submission, para. 302.

by the United States, in which H5 and H7 antibodies were found in ducks in India (the Pawar et al.
study).740
5.273. As an initial matter, we consider that, given the broad discretion that panels enjoy in
consulting with experts, the mere posing of ques tions to individual experts does not, in and of
itself, constitute a panel's allocation of the burden of proof as between the parties to a dispute.
Moreover, we note that, of the three questions pose d by the Panel to the experts on the status of
LPNAI in India, question No. 1 sought the ex perts' views on evidence submitted by India 741;
question No. 2 sought to get the experts' view s on evidence submitted by both India and the
United States 742; and question No. 3 sought the experts' opinion on a study submitted by the
United States.743 Thus, the questions posed by the Panel to the individual experts concerned the
arguments and evidence submitted by both India and the United States, and do not, in the context
and circumstances of this dispute, equate to some how shifting the burden of proof onto India, or
result in "the United States' arguments and evidence with respect to this issue not being evaluated
at all".744
5.274. The second issue raised by India is whether the Panel acted inconsistently with Article 11
of the DSU in concluding that "it is India which ha d the burden of proof to establish that LPNAI is
exotic to India". 745 As to the allocation of the burden of proof with respect to claims under the
SPS Agreement, we recall that the initial burden lies on the complaining party, which must
establish a prima facie case that the respondent's SPS measure is inconsistent with a particular
provision of the SPS Agreement. 746 Once a prima facie case has been made, the defending party
bears the burden of rebutting it. 747 Yet, this "does not imply that the complaining party is
responsible for providing proof of all facts raised in relation to the issue of determining whether a
measure is consistent with a given provision of a covered agreement. In other words, although the
complaining party bears the burden of proving its case, the responding party must prove the case
it seeks to make in response."
748 As the Panel rightly recognized, this burden also requires that a
responding party asserting a fact is responsible for providing proof thereof.749
5.275. Keeping in mind these general observations, we recall that the United States claimed
before the Panel that "India's measures unjustifiably discriminate against imported products by
banning them from India following detections of LPAI in the exporting country, while India does
not even maintain surveillance requirements th at would result in detection of LPNAI cases
occurring in India's domestic poultry flocks".750 In support of its claim of discrimination, the United
States submitted that India's surveillance regime is not mandatory, and that the principal means
of detection of LPNAI is visual observation. 751 According to the United States, the effect of this is

740 Panel Report, para. 7.443.
741 Question No. 1 "relates to India's assertion that LPNAI 'is exotic to poultry in India'", and reads, in
part, as follows: "[D]oes the evidence provided by India, including Exhibits IND-7 to IND-15, support India's
statement that LPNAI is exotic to poultry in India?" (Panel questions to individual experts of 24 October 2013,
paras. 2.1 and 2.4)
742 Question No. 2 "relates to the United States' allegation that … it is simply not plausible that, during a
period when India had over ninety HPNAI outbreaks, there were no cases of LPNAI in India". It reads, in part,
as follows: "In light of the above [parties'] statements as well as evidence submitted by the parties about
India's LPNAI situation, including Exhibits US-89, US-90, US-92, US-106, US-122, US-143, US-144, US-145,
IND-47, IND-115 and IND-117, is it plausible that a country that has experienced multiple H5N1 HPNAI
outbreaks is free of LPNAI? Please cite to the scientific evidence or information in the record that supports your
conclusions." (Panel questions to individual experts of 24 October 2013, para. 2.7)
743 Question No. 3 "relates to a study by Dr Pawar et al. … submitted by the United States as Exhibit
US-122". Referring to the study, the Panel asked the experts to "provide [their] professional opinion on what
can be inferred from the finding of H5 and H7 antibodies in ducks in India about the LPNAI situation in India".
(Panel questions to individual experts of 24 October 2013, para. 2.12)
744 India's appellant's submission, para. 302.
745 India's appellant's submission, para. 301 (referring to Panel Report, para. 7.442).
746 As discussed supra, in para. 5.260, a complainant bears the overall burden of establishing
prima facie the inconsistency of the SPS measure(s) at issue with Article 2.3, first sentence.
747 Appellate Body Report, EC – Hormones, para. 98 (referring to Appellate Body Report, US – Wool
Shirts and Blouses, p. 14, DSR 1997:I, p. 335).
748 Appellate Body Report, Japan – Apples, para. 154.
749 Panel Report, para. 7.442 (referring to Appellate Body Report, Japan – Apples, para. 157).
750 Panel Report, para. 7.358 (referring to United States' first written submission to the Panel,
para. 174).
751 Panel Report, para. 7.412 (referring to United States' first written submission to the Panel,
paras. 176-178).

that "in practice … while India relies on the detection of LPAI to ban the sale of products, India in
fact applies LPAI-based bans only to imported products because India has failed to put in place
measures that would effectively detect LPAI, so India is not taking steps necessary to restrict
domestic products on account of LPAI".
752 Although the United States did put forth arguments and
evidence to establish that LPNAI is present in India 753, it explained that this was not the most
"crucial point" for the purpose of its claim with respect to the second form of discrimination. 754 For
example, the United States stated that India's resp onse that LPNAI is exotic to India "miss[es] the
point" because "India's imposition of import bans based on LPNAI detections in exporting Members
discriminates against imports not because LPNAI incidents have occurred in India , but because
India's surveillance for LPNAI is inadequate, result ing in a situation where controls on trade in
domestic products due to domestic LPNAI will not be imposed."755
5.276. India, on the other hand, "d[id] not make arguments in relation to whether or not its AI
measures are discriminatory per se; however, India stresse[d] that LPNAI is exotic to India ".756
India argued that, because LPNAI is not present within India, "the risk associated with the
introduction of LPNAI means that 'India is fully justified in prohibiting imports of poultry and
poultry products from countries upon a declaration of LPNAI'." 757 More specifically, India relied on
its assertion that LPNAI is exotic to India in contending that the conditions in India are not similar
or identical to those in the United States 758; that its AI measures do not discriminate against
imported products from other WTO Members 759; and that any discriminatory treatment is not
arbitrary or unjustifiable because there is a legitimate rationale for such treatment.760
5.277. Thus, from the parties' positions before the Panel it appears that the factual assertion that
LPNAI is exotic to India was the crux of India's rebuttal with respect to all three elements under
the first sentence of Article 2.3, and not an element of the United States' prima facie case with
respect to the second form of discrimination. We recall that the United States sought to establish
its prima facie case by demonstrating, inter alia, that India's AI measures arbitrarily and
unjustifiably discriminate against imported products because they prohibit imports upon
occurrence of LPNAI, when India does not have in place a surveillance system capable of reliably
detecting LPNAI, and, therefore, has not taken a critical step that would be necessary to make it
possible to restrict domestic products on account of LPNAI.
5.278. Our review of the Panel's analysis confir ms that this is indeed how the Panel understood
the content of the United States' prima facie case and the nature of India's factual assertion that
LPNAI is exotic to India. We note, in this regard, that the Panel made several findings in the course
of its overall analysis of the different aspects of the United States' claim that are not the subject of
India's appeal. The Panel found, for example, that the risks against which India is protecting
(i.e. LPNAI) constitute conditions that are similar in India and other Members (including the
United States).
761 The Panel also found that India treats domestic and imported products
differently with respect to the risk of LPNAI, depending on whether that risk originates within India
or in another Member. 762 The Panel reached the latter finding after having compared the import
prohibition that India maintains against countries that have notified LPNAI with the surveillance
regime that India maintains for LPNAI in India, and found that the evidence before it did not
suffice to establish that India's domestic surveillan ce regime is adequate to detect reliably LPNAI.

752 Panel Report, para. 7.412 (quoting United States' first written submission to the Panel, para. 180).
753 Panel Report, para. 7.360 (referring to United States' second written submission to the Panel,
para. 91).
754 Panel Report, para. 7.360.
756 Panel Report, para. 7.395 (referring to India's first written submission to the Panel, paras. 201-207).
(emphasis added)
757 Panel Report, para. 7.439 (quoting India's first written submission to the Panel, para. 214).
758 Panel Report, paras. 7.395 and 7.466.
759 Panel Report, paras. 7.395 and 7.413.
760 Panel Report, para. 7.439.
761 Panel Report, para. 7.470. In reaching this finding under the third element of its analysis under
Article 2.3, first sentence, the Panel stated that there was no evidence before it "to suggest that the risks
associated with LPNAI are in any way different on the basis of the origin of the relevant product" and, thus,
"India is protecting against an identical or similar risk when it takes measures to protect against LPNAI,
regardless of whether the relevant product originates in India or the United States or somewhere else." (Ibid.,
para. 7.469)
762 Panel Report, para. 7.424.

None of these findings has been appealed by India. 763 India also does not take issue with the
Panel's statement that, without a suitable surveill ance system capable of reliably detecting LPNAI,
it is difficult to establish conclusively the absence of LPNAI within the territory of India.764
5.279. India's appeal under Article 11 of the DSU focuses on the Panel's assessment of whether
LPNAI is exotic to India. The Panel made this factual assessment in analysing the second element
under the first sentence of Article 2.3, namely, "whether the discriminatory treatment maintained
by India through the application of different standards to foreign and Indian products, respectively,
is arbitrary or unjustifiable".
765 The Panel explained, that, in this part of its analysis, it would
"focus on the cause of the discrimination … and th e rationale put forward by India to explain its
existence"766, namely, that LPNAI is exotic to India. 767 The Panel proceeded to consider whether
India's assertion that LPNAI is exotic to India was supported by the facts and evidence before it. In
doing so, the Panel observed that, having made th is factual assertion, India bore the burden of
proving it. The Panel then undertook a review of the relevant evidence. The Panel took particular
account of the views of the independent experts, who "unanimously affirmed that there is no basis
on the record of this dispute to support" the assertion that LPNAI is exotic to India. 768 On this
basis, the Panel found that India had not proven its factual assertion regarding the alleged
absence of LPNAI in India. For this reason, the Panel also found that India had not demonstrated
that there is a rationale for the discriminatory application of its AI measures to foreign products, as
opposed to Indian products, that is rationally connected to the objective of those measures.
769
5.280. Given these observations and findings by the Panel, together with the Panel's finding that
similar or identical conditions prevail in the United States and India, and that India treats domestic
and imported products differently with respect to the risk of LPNAI, depending on whether that risk
originates in India or another Member, we do not consider that the Panel acted inconsistently with
Article 11 in concluding that the United States had discharged its burden of establishing its
prima facie case with respect to the second "form" of discrimination.
770 The central factual pillar of
India's efforts to rebut this case was its assertion that LPNAI was exotic to its territory. In these
circumstances, insofar as the Panel's overall alloca tion of the burden of proof under Article 2.3,
first sentence, is concerned, we do not consider that the Panel erred in observing that "India has
the burden of proving that LPNAI is exotic to India".
771 We therefore reject India's argument that
the Panel acted inconsistently with Article 11 of th e DSU in finding that "India has the burden of
proving that LPNAI is exotic to India".772
5.281. Finally, with respect to the third question raised by India's claim – i.e. whether the fact
that India had never reported to the OIE an occurrence of LPNAI within its territory was sufficient
for the Panel to conclude that LPNAI is exotic to India – we agree with the United States that this
"amounts to a repackaging of [India's] argument that its own assertion of LPNAI freedom should
have been accepted as a fact even in the absence of scientific evidence in the record to support
it".
773 Having found above that the Panel was not obligated by Article 1.6.1 of the OIE Code to
accept as conclusive India's alleged "self-declaration" of LPNAI freedom, we also reject India's

763 Panel Report, para. 7.423.
764 Panel Report, para. 7.454 and fn 871 thereto (quoting Dr Honhold's statement that, without such a
surveillance system, "absence of evidence is not evidence of absence").
765 Panel Report, para. 7.440.
766 Panel Report, para. 7.440 (referring to Appellate Body Report, Brazil – Retreaded Tyres, para. 226).
767 Panel Report, para. 7.441.
768 Panel Report, para. 7.457.
769 Panel Report, para. 7.457.
770 Although the Panel, in proceeding through the different steps of its analysis, separately assessed
whether India's AI measures discriminate between imported and domestic products, and whether such
discrimination is arbitrary or unjustifiable, the United States did not present its claim in the same segmented
fashion. Rather, the United States contended that, "while India relies on the detection of LPAI to ban the sale
of products, India in fact applies LPAI-based bans only to imported products" because "India has failed to put
in place measures that would effectively detect LPAI, and so India is not taking steps necessary to restrict
domestic products on account of LPAI. India's imposition of a ban on specified imports following LPAI
detections in the exporting country therefore constitutes arbitrary or unjustifiable discrimination in breach of
the first sentence of Article 2.3." (United States' first written submission to the Panel, para. 180. See also Panel
Report, para. 7.363)
771 Panel Report, para. 7.442. In reaching this conclusion, the Panel expressly, and rightly, relied on the
Appellate Body reports in EC – Hormones and Japan – Apples. (Ibid.)
772 Panel Report, para. 7.442.
773 United States' appellee's submission, para. 143.

argument that the fact that India had never reported an occurrence of LPNAI within its territory to
the OIE required the Panel to conclude that LPNAI is exotic to India.
5.282. In the light of the foregoing, we reject India's claim that the Panel acted inconsistently
with Article 11 of the DSU by requiring India to prove that LPNAI is exotic to India.
5.5.2.3 Whether the Panel acted inconsistently with Article 11 of the DSU by delegating
to the experts the factual determination of whether LPNAI is exotic to India
5.283. In its third claim of error under Article 11 of the DSU, India submits that the questions
posed by the Panel to the individual experts amou nted to an improper delegation of the factual
determination of whether LPNAI is exotic to India to the experts. India maintains that Article 11 of
the DSU requires that the objective assessment of the facts be made by a panel, and argues that
this task cannot be delegated.
774 India thus seeks reversal of those Panel findings that were based
on the testimony provided by the individual experts.775
5.284. In response, the United States asserts that India's claim of error under Article 11 fails for
two reasons: first, because the Panel conducted its own objective assessment as to whether LPNAI
is exotic to India; and, second, because the Pane l's questions to the experts did not delegate its
decision-making responsibility, but only sought scientific and technical assistance in evaluating
scientific and technical evidence.
776 The United States notes that, to the extent that India takes
issue with the Panel's use of, or reliance upon, the experts' views, and not just the questions
posed by the Panel, this is an issue that falls beyond the scope of appellate review under
Article 17.6 of the DSU.
777
5.285. We note that India claims that the questions posed by the Panel concerning India's
domestic LPNAI situation "resulted in delegating the factual determination of whether LPNAI is
exotic to India to the individual experts". 778 As the United States rightly points out, India's appeal
is therefore restricted to the scope of the Panel's consultations with the individual experts, i.e. the
questions posed to the individual experts, an d not the Panel's use of, or reliance upon, the
responses provided by the experts. In its appeal, India does not explain, and we do not see, how
the Panel's questions, in and of themselves, can be seen as a delegation by the Panel of its
function as the assessor of facts under Article 11 of the DSU. Nor has India explained how the
mere posing of questions amounted to a lack of objectivity on the part of the Panel. Finally,
although India's claim is that the Panel improperly "delegated" the factual determination of
whether LPNAI is exotic to India, we observe that, ultimately, the Panel did not make a
determination on this factual issue.
779 Instead, the Panel simply ruled that India had not presented
arguments and evidence to substantiate the factual assertion that it made.780
5.286. We therefore reject India's claim that the Panel acted inconsistently with Article 11 of the
DSU because the questions posed by the Panel to th e individual experts amounted to an improper
delegation of its function to make the factual determination of whether LPNAI is exotic to India to
the experts.
5.5.3 Conclusion
5.287. We have rejected each of the three claims of error raised by India in this part of its appeal.
For the reasons set out above, we find that India has not established that the Panel acted
inconsistently with its duty to conduct an objective assessment of the matter pursuant to
Article 11 of the DSU in its assessment and findings with respect to the United States' claim
relating to the second "form" of discrimination under Article 2.3, first sentence, of the

774 India's appellant's submission, para. 306 (referring to Appellate Body Reports, India – Quantitative
775 India's appellant's submission, para. 307.
776 United States' appellee's submission, para. 148.
777 United States' appellee's submission, para. 148 (referring to Appellate Body Report, EC – Tube or
Pipe Fittings, para. 141).
778 India's appellant's submission, para. 306.
779 To the contrary, the Panel stressed that it could not make, and was not making, a finding on whether
LPNAI is exotic to India. (Panel Report, paras. 7.455-7.456)
780 Panel Report, para. 7.455.

SPS Agreement and, more specifically, in its consultations with the individual experts regarding the
issue of whether LPNAI is exotic to India, or by requiring India to prove that LPNAI is exotic to
India. Accordingly, we uphold the Panel's find ing, in paragraphs 7.472 and 8.1.c.vi of the
Panel Report, that India's AI measures are inconsistent with Article 2.3, first sentence, of the
SPS Agreement because they arbitrarily or unj ustifiably discriminate between WTO Members
where identical or similar conditions prevail.
6 FINDINGS AND CONCLUSIONS
6.1. For the reasons set out in this Report, the Appellate Body:
a. with respect to Articles 2.2, 5.1, and 5.2 of the SPS Agreement:
i. finds that the Panel did not err in its interpretation of Articles 2.2, 5.1, and 5.2, and,
in particular, in its understanding of the re lationship between Article 2.2, on the one
hand, and Articles 5.1 and 5.2, on the other hand;
ii. finds that, by failing to consider whether the presumption of inconsistency with
Article 2.2 that flowed from its finding that India's AI measures are inconsistent with
Articles 5.1 and 5.2 was rebutted by th e arguments and evidence presented by
India, the Panel erred in its application of Article 2.2 to India's AI measures with
respect to the import prohibition on fresh meat of poultry and eggs from countries
reporting LPNAI; and, therefore
iii. reverses, in part, the Panel's findings, in paragraphs 7.332, 7.334, and 8.1.c.v of the
Panel Report, that India's AI measures are inconsistent with Article 2.2 because they
are not based on scientific principles and are maintained without sufficient scientific
evidence, insofar as those findings concern India's import prohibition on fresh meat
of poultry and eggs from countries reporting LPNAI;
iv. finds that India has not established that the Panel acted inconsistently with its duty
to conduct an objective assessment of the matter pursuant to Article 11 of the DSU;
v. finds that it is unable to complete the legal analysis and assess the consistency of
India's AI measures with Article 2.2 with respect to the import prohibitions on fresh
meat of poultry and eggs from countries reporting LPNAI; and
vi. upholds the Panel's findings, in paragraphs 7.318, 7.319, 7.333, 8.1.c.iii,
and 8.1.c.iv of the Panel Report, that India's AI measures are inconsistent with
Articles 5.1 and 5.2;
b. with respect to Articles 3.1 and 3.2 of the SPS Agreement:
i. finds that the Panel did not act inconsistently with Article 11.2 of the SPS Agreement
or Article 13.2 of the DSU in consulting with the OIE regarding the meaning of the
OIE Code;
ii. finds that India has not established that the Panel acted inconsistently with its duty
to conduct an objective assessment of the matter pursuant to Article 11 of the DSU
in its assessment of the meaning of the OIE Code; and
iii. upholds the Panel's findings, in paragraphs 7.274, 7.275, and 8.1.c.ii of the Panel
Report, that India's AI measures are inconsistent with Article 3.1, and that India is
not entitled to benefit from the presumption of consistency of its AI measures with
other relevant provisions of the SPS Agreement and the GATT 1994 as provided for
under Article 3.2;
c. with respect to Article 6 of the SPS Agreement:
i. finds that the Panel did not err in its interpretation of the relationship between
Articles 6.1 and Article 6.3;

ANNEX 1

2 February 2015
(15-0717) Page: 1/6
 Original: English

INDIA – MEASURES CONCERNING THE IMPORTATION OF
CERTAIN AGRICULTURAL PRODUCTS
NOTIFICATION OF AN APPEAL BY INDIA
UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES
AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU),
AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
 The following notification, dated 26 January 2015, from the Delegation of India, is being
circulated to Members.

Settlement Body in its meeting dated 18 November 2014, India hereby notifies the Dispute
Settlement Body of its decision to appeal certain issues of law and legal interpretation in the Panel
Report in India – Measures Concerning the Import ation of Certain Agricultural Products
(WT/DS430) ("Panel Report").
1
2. Pursuant to Rules 20(1) and 21(1) of the Work ing Procedures, India files this Notice of
Appeal together with its Appellant's Submission with the Appellate Body Secretariat.
3. Pursuant to Rule 20(2)(d)(iii) of the Working Pr ocedures, this Notice of Appeal provides an
indicative list of the paragraphs of the Panel Report containing the alleged errors of law and legal
interpretation by the Panel in its report, without prejudice to India's ability to rely on other
paragraphs of the Panel Report in its appeal.
4. India seeks review by the Appellate Body of the errors of law and legal interpretation by the
Panel in its Report and requests findings by the Appellate Body as noted below.
A. The Panel has committed legal errors in Sections 7.5.2 - 7.5.4 of its Report and in
connected findings in Section 7.5.5 of its Report
5. The Panel erred in its interpretation and application of Article 2.2 of the SPS Agreement
and/or failed to make an objective assessment of the matter pursuant to Article 11 of the DSU, in
so far as the Panel found that India's Avian Influenza (' AI') measures are inconsistent with
Article 2.2 of the SPS Agreement. In particular, the Panel erred because:

1 WT/DS430/R and WT/DS430/R/Add.1.

a. It made an incorrect interpretation and application of Article 2.2 of the
SPS Agreement2 and therefore committed a legal error. The Panel consequently did
not analyze the independent claim under Article 2.2 of the SPS Agreement on the
ground that India had acted inconsiste ntly with Article 5.1 and 5.2 of the
SPS Agreement.
3
b. the Panel failed to make an objective assessment of the matter by disregarding
arguments and evidence presented by India to establish that its AI measures are
based on scientific principles and sufficient scientific evidence pursuant to Article 2.2
of the SPS Agreement.4
c. it failed to take into account that the United States arguments under Article 2.2 of the
SPS Agreement were limited to the ban upon occurrence of LPNAI in fresh meat of
poultry and eggs and did not include the ban upon occurrence of HPNAI. In spite of
the limited nature of the claim, the Panel ruled that India's AI measures which provide
for import prohibition upon occurrence of HPNAI and LPNAI are inconsistent with
Article 2.2 of the SPS Agreement5 and therefore acted inconsistently with Article 11 of
the DSU.
d. the Panel disregarded India's arguments under Article 5.1 of the SPS Agreement and
therefore acted inconsistently with Article 11 of the DSU.6
6. For these reasons, India requests the Appellate Body to reverse the Panel's finding that
India's AI measures are inconsistent with Article 2.2 of the SPS Agreement.7
7. Further, the Appellate Body must, where necessary, complete the legal analysis and find
that:
a. The Panel incorrectly interpreted and applied Article 2.2 of the SPS Agreement.
b. A SPS measure can comply with Article 2.2 of the SPS Agreement by being based
upon scientific principles and sufficient scientific evidence and which would also fulfill
the requirement of Article 5.1 and Article 5.2 of the SPS Agreement.
c. The Panel has failed to make an objective assessment of the matter pursuant to
Article 11 of the DSU by completely disr egarding the evidence and the arguments
submitted by India with respect to Article 2.2 of the SPS Agreement.
d. The arguments of the United States with re spect to its claim under Article 2.2 of the
SPS Agreement are limited to eggs and fresh meat of poultry upon occurrence of
LPNAI.
e. In light of the scientific evidence submitte d by India, its AI measures are based on
scientific principles and sufficient scientific evidence and are consistent with Article 2.2
of the SPS Agreement.
B. The Panel has committed legal errors in Sect ions 7.4.2.2 - 7.4.2.3 of its Report and
in connected findings in Sections 7.4.2.2.4; 7.4.2.2.6 and 7.4.2.3 of its Report
8. The Panel erred in its interpretation and application of Article 3.1 and Article 3.2 of the
SPS Agreement and/or failed to make an objective assessment of the matter pursuant to Article 11
of the DSU, in so far as the Panel found that India's AI measures do not conform with the
international standard and therefore are inconsistent with Article 3.2 of the SPS Agreement and/or
are not based on international standard and are therefore inconsistent with Article 3.1 of the
SPS Agreement. In particular, the Panel erred because:

2 Panel report, India – Agricultural Products, paragraphs 7.282 and 7.331.
3 Ibid, paragraph 7.332.
4 Ibid, paragraphs 7.331-7.332.
5 Ibid, paragraph 7.332.
6 Ibid, paragraphs 7.309-7.319.
7 Ibid, paragraphs 7.332 and 7.334.

a. First, the terms of reference of the Panel to the OIE were inconsistent with
Article 11(2) of the SPS Agreement and Article 13 of the DSU.8
b. Second, the Panel delegated the judicial function of making an objective assessment
of the matter to the OIE and therefore acted inconsistently with Article 11 of the
DSU.9 It also failed to make an objective assessment of the matter by disregarding
India's arguments and evidence.10 Further, it also acted inconsistently with Article 3.2
of the DSU by not interpreting the OIE Code in accordance with the customary
principles of international law as codified in Article 31 and Article 32 of the VCLT.11
c. Third, the Panel has arrived at a conclusion which is not supported by the evidence
available and thus is not an objective assessment of matter.12
9. For these reasons, India requests the Appellate Body to reverse the Panel's finding that
India's AI measures do not conform to and/or are not based upon the international standard and
therefore are inconsistent with Article 3.1 and Article 3.2 of the SPS Agreement.13
10. Further, the Appellate Body must, where necessary, complete the legal analysis and find
that:
a. The Panel's terms of reference to the OIE we re inconsistent with Article 13(2) of the
DSU and Article 11(2) of the SPS Agreement.
b. The Panel delegated the judicial function of making an objective assessment of the
matter to the OIE and therefore acted inconsistently with Article 11 of the DSU.
c. The Panel has failed to make an objective assessment of the matter pursuant to
Article 11 of the DSU by completely disr egarding the evidence and the arguments
submitted by India with respect to Article 3.2 and Article 3.1 of the SPS Agreement.
d. The conclusion of the Panel with respect to Article 3.1 and Article 3.2 of the
SPS Agreement is not based upon the factual evidence and thus, the Panel failed to
make an objective assessment of the matter.
e. Interpret Article 10.4.1.10 of the OIE Code in accordance with the customary
principles of international law as codified in Article 31 and Article 32 of the VCLT and
to conclude that a country can impose a trade ban upon occurrence of HPAI/LPNAI in
poultry.
f. Interpret the product specific recommendatio n s i n c h a p t e r 1 0 . 4 o f t h e O I E C o d e i n
accordance with the customary principles of international law as codified in Article 31
and Article 32 of the VCLT and to conclude that an importing country based upon its
ALOP can import from a NAI free country/zone/compartment or HPNAI free
country/zone/ compartment and in the event this condition of entry is not fulfilled,
products of concern may not be imported.
g. Clause 1(ii)(a) of S.O. 1663(E) (live poultry) conforms to Article 10.4.1.10 and
Article 10.4.5 of the OIE Code; Clause 1(ii)(b) of S.O. 1663(E) conforms to
Article 10.4.1.10 and Article 10.4.7 of the OIE Code; Clause 1(ii)(c) of S.O. 1663(E)
conforms to Article 10.4.1.10 and Article 10.4.19 of the OIE Code; Clause 1(ii)(d) of
S.O. 1663(E) conforms to Article 10.4.1.10 and Article 10.4.10 of the OIE Code;
Clause 1(ii)(e) of S.O. 1663(E) conforms to Article 10.4.1.10; Article 10.4.13 and
Article 10.4.15 of the OIE Code; Clause 1(ii)(j) of S.O. 1663(E) (poultry semen)
conforms to Article 10.4.1.10 and Article 10.4.16 of the OIE Code. These clauses of

8 Panel Report, India – Agricultural Products, paragraph 1.23. Also see Panel's letter to the parties dated
10 September 2013 and Panel's letter to the OIE dated 11 September 2013.
9 Panel Report, India – Agricultural Products, paragraphs 7.231-7.273.
10 Ibid, paragraphs 7.231-7.273.
11 Ibid, paragraphs 7.231-7.273.
12 Ibid, paragraphs 7.231-7.273.
13 Ibid, paragraphs 7.272-7.275.

S.O. 1663(E) conform to the international st andard and are therefore consistent with
Article 3.2 of the SPS Agreement.
h. Alternatively, Clause 1(ii)(a) of S.O. 1663(E) (live poultry) is based upon
Article 10.4.1.10 and Article 10.4.5 of the OIE Code; Clause 1(ii)(b) of S.O. 1663(E) is
based upon Article 10.4.1.10 and Article 10.4.7 of the OIE Code; Clause 1(ii)(c) of
S.O. 1663(E) is based upon Article 10.4.1.10 and Article 10.4.19 of the OIE Code;
Clause 1(ii)(d) of S.O. 1663(E) is based upon Article 10.4.1.10 and Article 10.4.10 of
the OIE Code; Clause 1(ii)(e) of S.O. 1663(E) is based upon Article 10.4.1.10;
Article 10.4.13 and Article 10.4.15 of the OIE Code; Clause 1(ii)(j) of S.O. 1663(E)
(poultry semen) is based upon Article 10.4.1.10 and Article 10.4.16 of the OIE Code.
These clauses of S.O. 1663(E) are based upon the international standard and
therefore are consistent with Article 3.1 of the SPS Agreement.
C. The Panel has committed legal errors in Sect ions 7.9.2.3 - 7.9.2.4 of its Report and
in connected findings in Section 7.9.2.6 of its Report
11. The Panel erred in its interpretation and application of Article 6.1 and 6.2 of the
SPS Agreement and/or failed to make an objective assessment of the matter pursuant to Article 11
of the DSU, in so far as the Panel found that Indi a's AI measures fail to recognize the concept of
disease free areas and areas of low disease prevalence and therefore are inconsistent with
Article 6.2 of the SPS Agreement and are also inconsistent with Article 6.1 of the SPS Agreement
as India's AI measures fail to adapt to the SPS characteristics of the areas from where the
products originate. In particular, the Panel erred because:
a. The Panel observed that India pursuant to Livestock Act may be able to recognize the
concepts of disease-free areas and areas of low disease prevalence
14, though there is
no evidence of this being ever recognized and in addition, S.O. 1663(E) provides for a
country wide prohibition.15 On this basis, the Panel concluded that India's AI measures
do not recognize the concept of disease-free areas and areas of low disease
prevalence with respect to AI and therefore are inconsistent with Article 6.2, first
sentence.
16 Consequently, the Panel ruled that India's AI measures are also
inconsistent with Article 6.2, second sentence.17
b. The Panel while coming to this conclusion has committed legal errors. The first is a
legal error as the requirement under Article 6.2, first sentence of the SPS Agreement
is of recognizing the concept of disease free areas in a domestic measure and not of
implementing a domestic measure which recognizes the concept of disease free
areas.
18 The Panel's conclusion was therefore not consistent with the obligation as
provided in Article 6.2, first sentence of the SPS Agreement. Further, this analysis and
conclusion by the Panel, was not based on and is contrary to the United States'
argument under Article 6 of the SPS Agreement which is limited to the argument that
India as a policy does not recognize the concept of disease-free areas and areas of
low disease prevalence
19. Thus, the Panel also failed to make an objective analysis of
the matter under Article 11 of the DSU as its conclusion is based on an argument not
advanced by the United States.
c. Second, the Panel erred in disregarding ar guments and evidence submitted by India
20
as the same do not find any mention in the Panel's analysis 21 and therefore the Panel
acted inconsistently with Article 11 of the DSU. As a result, the Panel incorrectly
concluded that India's AI measures are inconsistent with Article 6.2.22

14 Panel Report, India – Agricultural Products, paragraphs 7.701 and 7.706.
15 Ibid, paragraphs 7.701; 7.702 and 7.706.
16 Ibid, paragraphs 7.706-7.707.
17 Ibid, paragraph 7.708.
18 Ibid, paragraph 7.698.
19 Ibid, paragraph 7.618.
20 Ibid, paragraph 7.632 and footnote 1155.
21 Ibid, paragraphs 7.693-7.706.
22 Ibid, paragraphs 7.707 and 7.708.

d. Third, the Panel made a legal error by incorrectly interpreting the relationship between
Article 6.1, first sentence and Article 6.3, first sentence. 23 As a result, the Panel
incorrectly concluded that India's AI measures are inconsistent with Article 6.1, first
sentence and consequently with Article 6.1, second sentence.
24
12. For these reasons, India requests the Appellate Body to reverse the Panel's finding that
India's AI measures are inconsistent with Article 6.1 and Article 6.2 of the SPS Agreement.25
13. Further, the Appellate Body must, where necessary, complete the legal analysis and find
that:
a. Article 6.2, first sentence of the SPS Agreement only requires recognition of the
concepts of pest- or disease-free areas and areas of low pest or disease prevalence
and not of implementation of these concep ts. The Panel therefore committed a legal
error in coming to its conclusion in Articl e 6.2, first sentence. Further, the Panel's
conclusion was also not based upon an objective assessment of the matter as the
Panel ruled on a claim not argued by the United States.
b. The Panel also acted inconsistently with Article 11 of the DSU by disregarding
evidence under Article 6.2, first sentence of the SPS Agreement which was of critical
importance to India and therefore failed to make an objective assessment of the
matter.
c. Pursuant to Article 6.1, first sentence of the SPS Agreement an importing country is
required to adapt its sanitary measures to the sanitary or phytosanitary characteristics
of the area of the exporting country only upon receiving a formal proposal pursuant to
Article 6.3 of the SPS Agreement.
d. Since the United States has not made any formal proposal pursuant to Article 6.3 of
the SPS Agreement, India has not acted incons istently with Article 6.1, first sentence
and Article 6.1, second sentence of the SPS Agreement.
D. The Panel has committed legal errors in Sect ions 7.8.2.1 - 7.8.2.3 of its Report and
in connected findings in Sections 7.8.2.1 - 7.8.3 of its Report
14. The Panel erred in its interpretation and application of Article 5.6 and 2.2 of the
SPS Agreement and/or failed to make an objective assessment of the matter pursuant to Article 11
of the DSU, in so far as the Panel found that India's AI measures are more trade restrictive than
required to achieve India's ALOP and therefore are inconsistent with Article 5.6 of the
SPS Agreement and as a consequence are also inconsistent with Article 2.2 of the SPS Agreement.
In particular, the Panel erred because:
a. the Panel concluded that the United States' claim under Article 5.6 of the
SPS Agreement is not restricted to LPNAI
26 and the alternate measure is Chapter 10.4
of the Terrestrial Code which would fulfill India's ALOP. 27 However, the United States
had only presented arguments and evidence for LPNAI whereas the OIE Code includes
recommendations for both HPNAI and LPNAI. The Panel therefore ruled on a claim not
argued by the United States and therefore failed to make an objective analysis of the
matter.
b. the United States failed to make a prima facie case as the alternate measure identified
by the United States to fulfill India's ALOP was not based upon the measure at issue
but was instead based upon its domestic control measure
28. Further, the Panel
disregarded India's arguments and therefore failed to make an objective assessment
of the matter.

23 Ibid, paragraph 7.711.
24 Ibid, paragraphs 7.711-7.712.
25 Ibid, paragraphs 7.707-7.708 and paragraphs 7.709-7.712.
26 Panel Report, India – Agricultural Products, paragraph 7.516.
27 Ibid, paragraph 7.586.
28 Ibid, paragraph 7.487.

c. the Panel did not identify the proposed alternative measure with precision 29 and
therefore committed a legal error by concluding that the alternate measure would
fulfill India's ALOP.
30 Further, the United States presented a prima facie case with
respect to only two products and upon occurrence of HPNAI.31
15. For these reasons, India requests the Appellate Body to reverse the Panel's finding that
India's AI measures are more trade restrictive than required to achieve India's ALOP and therefore
are inconsistent with Article 5.6 of the SPS Agreement and as a consequence are also inconsistent
with Article 2.2 of the SPS Agreement.32
16. Further, the Appellate Body must, where necessary, complete the legal analysis and find
that India's AI measures are consistent with Article 5.6 of the SPS Agreement and consequently
with Article 2.2 of the SPS Agreement.
E. The Panel has committed legal errors in Sect ions 7.6.4.2.1 - 7.6.4.2.2 of its Report
and in connected findings in Sections 7.6.5 - 7.7. of its Report
17. The Panel erred in its interpretation and application of Article 2.3 of the SPS Agreement
and/or failed to make an objective assessment of the matter pursuant to Article 11 of the DSU, in
so far as the Panel found that India's AI measures arbitrarily and unjustifiably discriminate
between members where identical or similar conditio ns prevail and therefore are inconsistent with
first sentence of Article 2.3 of the SPS Agreement. In particular, the Panel erred because:
a. the terms of reference of the Panel's consultation with the individual experts
33 were
beyond the scope of the OIE Code which with respect to avian influenza does not
provide for review of member countries' domestic surveillance regime and allows self
certification of freedom from avian influenza by member countries. The Panel
therefore acted inconsistently with Article 11 of the DSU.
b. the Panel's questions to the experts on this issue erroneously shifted the burden of
proof onto India even though it was th e United States which had presented the
hypothesis that LPNAI must be present in India as it is ubiquitous in wild birds. The
Panel therefore acted inconsistently with Article 11 of the DSU.
34
c. the Panel questions to the individual expe rts delegated the determination of India's
LPNAI status to the individual experts and which is inconsistent with Article 11 of the
DSU.
35
18. For these reasons, India requests the Appellate Body to reverse the Panel's finding which is
based upon the testimony provided by the individual experts.36