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
Document: AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Date: 2 February 2015
Document codes: WT/DS430/8
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
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:
a. It made an incorrect interpretation and application of Article 2.2 of the
SPS Agreement2 and therefore committed a legal error. The Panel consequently did
not analyze the independent claim under Article 2.2 of the SPS Agreement on the
ground that India had acted inconsiste ntly with Article 5.1 and 5.2 of the
SPS Agreement.
3

1 WT/DS430/R and WT/DS430/R/Add.1.
2 Panel report, India – Agricultural Products, paragraphs 7.282 and 7.331.
3 Ibid, paragraph 7.332.

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 Agreement
5 and therefore acted inconsistently with Article 11 of
the DSU.
d. the Panel disregarded India's arguments under Article 5.1 of the SPS Agreement and
therefore acted inconsistently with Article 11 of the DSU.6
6. For these reasons, India requests the Appellate Body to reverse the Panel's finding that
India's AI measures are inconsistent with Article 2.2 of the SPS Agreement.7
7. Further, the Appellate Body must, where necessary, complete the legal analysis and find
that:
a. The Panel incorrectly interpreted and applied Article 2.2 of the SPS Agreement.
b. A SPS measure can comply with Article 2.2 of the SPS Agreement by being based
upon scientific principles and sufficient scientific evidence and which would also fulfill
the requirement of Article 5.1 and 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:
a. First, the terms of reference of the Panel to the OIE were inconsistent with
Article 11(2) of the SPS Agreement and Article 13 of the DSU.
8
b. Second, the Panel delegated the judicial function of making an objective assessment
of the matter to the OIE and therefore acted inconsistently with Article 11 of the

4 Ibid, paragraphs 7.331-7.332.
5 Ibid, paragraph 7.332.
6 Ibid, paragraphs 7.309-7.319.
7 Ibid, paragraphs 7.332 and 7.334.
8 Panel Report, India – Agricultural Products, paragraph 1.23. Also see Panel's letter to the parties dated
10 September 2013 and Panel's letter to the OIE dated 11 September 2013.

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

9 Panel Report, India – Agricultural Products, paragraphs 7.231-7.273.
10 Ibid, paragraphs 7.231-7.273.
11 Ibid, paragraphs 7.231-7.273.
12 Ibid, paragraphs 7.231-7.273.
13 Ibid, paragraphs 7.272-7.275.

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
d. Third, the Panel made a legal error by incorrectly interpreting the relationship between
Article 6.1, first sentence and Article 6.3, first sentence. 23 As a result, the Panel
incorrectly concluded that India's AI measures are inconsistent with Article 6.1, first
sentence and consequently with Article 6.1, second sentence.24

14 Panel Report, India – Agricultural Products, paragraphs 7.701 and 7.706.
15 Ibid, paragraphs 7.701; 7.702 and 7.706.
16 Ibid, paragraphs 7.706-7.707.
17 Ibid, paragraph 7.708.
18 Ibid, paragraph 7.698.
19 Ibid, paragraph 7.618.
20 Ibid, paragraph 7.632 and footnote 1155.
21 Ibid, paragraphs 7.693-7.706.
22 Ibid, paragraphs 7.707 and 7.708.
23 Ibid, paragraph 7.711.
24 Ibid, paragraphs 7.711-7.712.

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

25 Ibid, paragraphs 7.707-7.708 and paragraphs 7.709-7.712.
26 Panel Report, India – Agricultural Products, paragraph 7.516.
27 Ibid, paragraph 7.586.
28 Ibid, paragraph 7.487.
29 Ibid, paragraphs 7.529-7.534.

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