MEASURES CONCERNING THE IMPORTATION OF CERTAIN POULTRY MEAT

PREPARATIONS FROM BRAZIL.

By: Mathews Master Mbale
Student Number: s219822700
 LAW FACULTY

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Signature: Mathews Master Mbale

Date: 14 April 2022

 MEASURES CONCERNING THE IMPORTATION OF CERTAIN POULTRY MEAT
PREPARATIONS FROM BRAZIL.

The matter presented before is that of an International dispute which relates to the
exportation of certain goods from Brazil to the European Union (EU). The goods that
are of dispute relate to that of fresh poultry meat and certain poultry meat
preparations and the adequate level of sanitary protection necessary to address
risks to human health from the contamination of Salmonella in products under these
foods categories. It was reported that in the EU, that the most common Salmonella is
that of S. Enteritis and that of S.Typhimurium which reflected a 70.3% in Salmonella
cases.1 The matter is yet to be heard by any governing body in relation to trade law
between the countries as Brazil await to receive a response from the European
Union or EU as it will be referred to from now on. The matter present before us offers
a much broader perspective of how issues are dealt with on an international scale
and also the topics that this article provides assist us to evaluate and also provide
some support as to how such a matter is properly dealt with between different
countries.
When countries agree on a contract where one countries obligation is to provide
certain goods or services towards another, the understanding to sell and buy from
each other involves different aspects that include the delivery or transportation of the
object of sale, the payment of the purchase price through documentary letter of
credit and also including the insurance of goods to be transported. 2 Hence in
conjunction with the fact that the matter is yet to be heard, I provide an analysis of
the various forms of dispute settlements that are available when it comes to trade.
Disputes are settled by the Dispute Settlement Body which also consist of various
members of the World Trade Organisation (WTO). Considering that Brazil has a
claim as to why the products it provides to the EU are being hindered, it is the
responsibility of the Dispute Settlement Body to establish panels of experts to
consider the case and to accepts or reject whether the claims are based on justified
reasons. Hence prior to judgment being passed we must consider the elements
available so as to see which options Brazil may have in asides from the ones that
maybe be already available.

1
European Union One Health Zoonoses Report 2019, p.67.
2
Niekerk and Schulze the South African Law of International Trade, 3ed (2011) 336.
ISSUE
The EU has raised stringent rules in relation to the importation of Salmonella where it
states that fresh poultry meat will not be placed on the market if the two serotypes of
Salmonella are identified. Hence Brazil raised the issue with the EU under backings
of the Sanitary and phytosanitary committee. Among the arguments brought by
Brazil that relate to the matter of international dispute include:

 Article 2.2 of the Sanitary and Phytosanitary Agreement which indicated that
the measures were not based on scientific facts, as they are not applied only
to the extent necessary to protect human, animal plant life or health, and are
maintained without sufficient scientific evidence. 3
 Article 5.4 of Sanitary and Phytosanitary Agreement, because the EU did not
take into account the objective of minimizing negative trade effect when
4
determining the appropriate level of sanitary protection.
 Article 5.6 of the Sanitary and Phytosanitary Agreement, because the EU
applies arbitrary or unjustifiable distinction in the levels of protection it
considers appropriate in different situations, resulting in discrimination or a
5
disguised on international trade.
 XI:1 of the General Administration on Trade and Tariff 1994, because the
measure operates as a restriction on the importation of certain poultry meat
preparation into the EU. 6

3
WT/DS607/1G/SPS/GEN/1972G/L/1419.
4
Ibid.
5
Ibid
6
Ibid.
NATURE OF THE INTERNATIONAL DISPUTE.
The term “place of business” has been considered in some courts to include any
location from which a party participates in economic activities in an independent
manner. Hence a court clarified that the place where the breach of obligations
occurred was not a relevant consideration.7
Courts have held that in case concerning agreements for the sale of goods, the
place of delivery and acceptance of goods or of transfer of risks and loading
operations should be considered as the place where a substantial part of the
obligations was performed. In cases involving agreements between parties having
their place of business in the same jurisdiction, the arbitration was considered
international because goods were to be transported between ports and it was
considered that the place where a substantial part of the obligations was undertaken
was situated outside the jurisdiction. 8 While the courts in the cases mentioned in the
earlier paragraphs seem to have interpreted the term “a substantial part” of the
obligation to mean most of the obligations, one court had a different approach and
considered that so long as some substantial activities were performed outside the
place of business of one of the parties, the arbitration could be considered as
international.9
It is observed that the issues brought by Brazil can be settled whether judicially or
extrajudicial. Considering the EU is a collective of various countries the matter is that
of a broader scale and thus is handled extra judicially. Therefore, extra judicial
dispute settlement varies in relation to a judicial settlement and what they tackle and
may include problem solving, negotiations, mediation, conciliation, facilitation,
arbitration just to name a few. Extrajudicial settlement of disputes which arise from
international transactions especially that of arbitration and any other form of dispute
settlement offer a number of real advantages over litigation for the parties to such
matters.

7
Fung Sang Trading Limited v Kai Sun Products and Foods Company Limited.
8
Katran Shipping CO. Ltd v Kenven Transportation.
9
Mitsui Engineering and Shipbuilding v PSA Corporation, Keppel Engineering.
Some of the advantages that are available to this cause include:
 Compared to judicial decisions, arbitral award, although binding is generally
final and not subject to appeal and further appeal.
 In the case of arbitration when disputes relate to complex technical matters,
the parties can agree on the persons by whom and institutions before which
the dispute which is to be settled.
 Arbitration maybe resorted to not only to settle disputes which may also have
been the subject of litigation, but also to resolve disputes which could not
have been properly litigated before the courts. Free from procedures,
formalism and restraints imposed by a particular legal system which may
delay if not frustrate the settlement of a particular dispute.
This is also referred to as alternate dispute resolution (ADR) whereby it provides a
platform for parties to resolve disputes amicably in the best way suited to their
needs. Henceforth, ADR provides cross national application as it provides a flexible,
cost-efficient, time-effective form of dispute settlement while giving the parties more
control over the process. Hence we observe the benefits in a situation of arbitration
where it is international if the parties to an arbitration agreement have, at the time of
the conclusion of that agreement, their places of business in different states. 10
Furthermore, one of the following places is situated outside the state in which the
parties have their places of business and any place where a substantial part of the
obligations of the commercial relationship is to be performed or the place with which
11
the subject matter of the dispute is most connected.

ARBITRATION IN RELATION TO THE MATTER

The idea of arbitration is routed in the fact that there needs to exist a dispute or the
potential of a dispute requiring resolution between the parties, and also an
agreement to refer such disputes to a third person as arbitrator and whose decision
is to be final and binding upon the parties. 12 In understanding the issue that Brazil
faces, they make use of the agreement reached upon by the World Trade

10
UNCITRAL 2012 Digest of Case Law on the Model Law of International Commercial Arbitration.
11
Ibid.
12
Mayers v Dlugash.
Organisation (WTO) in relation to Sanitary and Phytosanitary Measures, they bring
forth the relevant concerns that the agreement talks of.
Hence a distinction can be observed in relation to the method that Brazil approaches
in the concerning matter. In international disputes such as this, the parties have
either to apply an ad hoc form of arbitration or an institutional form of arbitration. A
difference is noted where Brazil’s approach is that of Institutional arbitration, whereby
arbitration regime is supported by an institutional infrastructure. In addition to this,
the use of WTO justifies the use of an already established entity that through laws
which enables courts to enforce arbitration agreements. Furthermore, another type
of institutional infrastructure which entails the provision by internationally recognised
institutions of forums and rules for international commercial arbitrations which
13
include International Chamber of Commerce (ICC), London Court of Arbitration.
Upon deciding which form of ADR the party may likely take or the one that may suit
best which would be Arbitration, it is important to note that this form of dispute
resolution is governed by the Court of Arbitration of the International Chamber of
Commerce which enforces to provide an all-encompassing set of principles and
procedures to cover all aspects of arbitration which are covered under them without
the need for any use of a national system of arbitration law. In managing the matter
of arbitration the following model arbitration clause is recommended by the ICC
when arbitration is initiated which states that disputes shall be settled by one or more
arbitrators appointed in accordance with the said rules. An arbitrators job should be
one that is singled out from any other individual who may play a role in the matter in
relation to resolving it, where one of the courts examined the distinction between the
role of an arbitrator and that of an expert undertaking a valuation exercise. The court
examined that the paramount obligations of an arbitrator and that of an expert was
that an expert did not act solely on the evidence before him and had discretion to
adopt inquisitorial process and use his personal knowledge and while an arbitrator
was required to hear the parties on all the issues that were to be determined, an
expert did not need to do so. 14 Therefore, one of the routes available to Brazil
moving forward would be this form where article 4 and 6 lay down the procedures for
the commencement of arbitration.

13
Niekerk and Schulze the South African Law of International Trade: Selected Topics, (2011) 349.
14
Westco Air-conditioning Ltd v Sui Chong Constructions.
It would require Brazil and its representatives to submit a request for arbitration to
the secretariat of the ICC court of Arbitration. Further information that would be
required include a description of the nature circumstances of the dispute giving rise
to the claims, names of the parties involved and any relevant agreements between
the parties. In considering the aspect of any relevant agreement, it provides the
arbitrators prior knowledge of the conduct. We are aware that the matter has been
brought up for discussion multiple times and hence we would understand Brazil’s
frustration towards the EU.
CONCLUSION
Hence upon providing some of the dispute settlements that are available, I am of the
opinion that the way forward by Brazil would be that of Arbitration as this has been
the main aspect that has been covered in the sections written above. Off course
they’re other alternatives but considering this scenario there was already a trade
agreement in place and is a matter of why such restrictions have been applied
against Brazil regardless of the EU efforts to deter fresh poultry meat and certain
poultry meat preparations.

LINK TO ARTICLE:
https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds607_e.htm.
Bibliography

Articles
European Union One Health Zoonoses Report 2019.
Niekerk and Schulze the South African Law of International Trade 3ed.
UNCITRAL 2012 Digest of Case Law on the Model Law of International Commercial
Arbitration.
CASES
Fung Sang Trading Limited v Kai Sun Products and Foods Company Limited.
Westco Air-conditioning Ltd v Sui Chong Constructions
Mayers v Dlugash.
Katran Shipping CO. Ltd v Kenven Transportation.
Mitsui Engineering and Shipbuilding v PSA Corporation, Keppel Engineering.