14TH GNLU INTERNATIONAL MOOT COURT COMPETITION 2022

In the WORLD TRADE ORGANIZATION PANEL

NAGORI – Measures concerning the importation of certain agricultural

products

JUMBREE

(COMPLAINANT)

v.

NAGORI

(RESPONDENT)

WRITTEN SUBMISSION for RESPONDENT

 14TH GNLU INTERNATIONAL MOOT COURT COMPETETION, 2023

TABLE OF CONTNETS

CONTENT PAGE NO.

Index of Abbreviations...............................................................................................................3

Index of Authorities................................................................................................................4-5

Statement of Facts...................................................................................................................6-7

Measures at Issues......................................................................................................................8

Summary of Pleadings..........................................................................................................9-10

Legal Pleadings...................................................................................................................11-31

Request for finding…...............................................................................................................32

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INDEX OF ABBREVIATIONS

ABBREVIATIONS EXPANSIONS

Art. Article

AB/R Appellate Body / Report

Doc. Document

DSB/M Dispute Settlement Body / Mechanism

DSU Dispute Settlement Understanding

ed. Edition

et. And others

Al. European Union
EU
Govt. Government

Id. Ibidem

i.e. Id Est

No. Number

PR Panel Report

p./ pp. Page/ Pages

s. Section
SPS Sanitary and Phytosanitary measures
USA United States of America
v. Versus

WTO World Trade Organization

WT/DS World Trade/ Dispute Settlement

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INDEX OF AUTHORITIES

 AGREEMENTS

1. Sanitary and Phytosanitary Measures (SPS Agreement)

2. Dispute Settlement Understanding of the World Trade Organization (WTO)

 PANEL AND APPELATE BODY REPORTS

1. Panel Report, US – Poultry (China), paras. 7.136-7.137.)

2. Appellate Body Report, Korea-Definitive Safeguard Measure on Imports of
Certain Dairy Products.
3. Appellate Body Report, Australia – Salmon
4. Appellate Body report, EC – Hormones, para. 194
5. Appellate Body Reports, US/Canada – Continued Suspension, para 591.
6. Panel Report, Costa Rica – Avocados (Mexico), para. 7.425
7. Appellate Body Report, Australia – Apples, para. 246. See also Panel Report, Costa
Rica – Avocados (Mexico), para. 7.1582
8. DS76: Japan — Measures Affecting Agricultural Products.
9. DS430: India — Measures Concerning the Importation of Certain Agricultural
Products
10. Panel Report, EC – Approval and Marketing of Biotech Products, para. 7.1424
11. Appellate Body Report, Japan – Agricultural Products II, para. 73
12. Panel Report, Japan – Apples (Article 21.5 – US), para. 8.45
13. WTO appellate body report, EC measures concerning meat and meat products
WT/DS48/AB/R (adopted 13 February 1998)
14. US — Gasoline, AB-1996-1 - Report of the Appellate Body

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 JOURNALS

1. David Winickoff, Sheila Jasanoff, Lawrence Busch, Robin Grove-White & Brian
Wynne, Adjudicating the GM Food Wars: Science, Risk, and Democracy in World
Trade Law, 30 Yale Journal of International Law 81 (2005).
2. The impact of the precautionary principle and the SPS agrrement on international
trade by Chinyama G.

 BOOKS

1. Catherine Button, Power to Protect. Trade, Health and World Trade

Organization, Hart Publishing, Oxford and Portland: 2004
2. Howse, ‘Democracy, Science and Free Trade: Risk Regulation on Trial at
the World TradeOrganization’, 98 Michigan L Rev (2000) 2333

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STATEMENT OF FACTS

1. Nagori (Respondent), is a populous and thriving democracy. The eastern part of

Nagori which has a coastline as well as tracts of arable land supports 85% of Nagori’s
population. Nagori has seen an uptick in food borne diseases where entire local
populations were severely affected by contaminated food, sometimes even resulting
in deaths. In 2017 national elections, Dr. Faqir Chelam became the Prime Minister of
Nagori. Chelam had centered his electoral campaign around pressing issues like
education reforms, food safety, and improving the quality of public healthcare and
now the government of Nagori wishes to establish a reign where food safety is
maintained and both the economy and people nation stay protected.

2. Jumbree (complaint) is a tropical country with more than 1,600 kms. of coastline
and multiple glacial rivers which flow down from the Jumba Mountains situated in
the north. Jumbree is a major exporter of food grains, poultry and marine products.
Both Nagori and Jumbree are founding members of the World Trade Organization
(‘WTO’).

3. In 2018 a mega project titled ‘Project Asalsukh’ was launched in 2018 by Jumbree
to boost the dairy sector, meat and poultry production, and commercial fishing. The
success of Project Asalsukh led to an oversupply of poultry and marine fishes in the
domestic markets.

Date Events
Nagori suspended imports of poultry and
12.04.2015 poultry products from Jumbree due to various
SPS measures.
Jumbree requested resumption of trade in
07.08.2018 poultry and poultry products and recognition
of equivalence.
Nagori asked for 4 guarantees (including the
18.09.2019 4th guarantee for testing for green pox) to be

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fulfilled for granting equivalence according

to the risk assessment.
07.11.2019 Denied to implement the 4th guarantee
Communicated of the inability to grant the
12.07.2020 equivalence without implementation of the
4th guarantee.

4. Nagori is also a big consumer market for fresh Ilish and Ilish preparations. Ilish is
considered pious in Nagori. Jumbree has been a traditional exporter of fresh Ilish to
Nagori. To protect the local fisher folk whose livelihoods are dependent on Ilish
fishing, Nagori has a tariff-rate quota (‘TRQ’) on the imports of Ilish. For the past
three years, Jumbree’s fishing industry has been facing an issue of oversupply of Ilish
this oversupply is on account of a push by the government. Jumbree enjoys a 0%
tariff rate quota on exporting fresh and raw Ilish for upto 10000 MT and above this
number export of fresh and raw Ilish attracts a tariff of 30% however Ilish
preparations only attract a tariff of 10%.

5. Jumbree started adding salt and pepper to the fresh Ilish to make it qualify as an
‘Ilish preparation’. Nagori’s food safety law imposes a “Chimera” testing
requirement on domestic and imported Ilish and Ilish preparations. Chimera is a
bacteria that can be life-threatening for humans. This is a zoonotic disease, which
means it can be transmitted directly or indirectly between animals and humans and it
can be transferred by food as well.

6. In 2019, Nagori and a few other WTO Members imposed enhanced checks on the
salt and pepper used to make Ilish preparations by Jumbree for the presence of
chimera in excess levels. According to this risk assessment, Ilish has a high risk of
containing chimera and therefore Nagori applied enhanced testing import on Ilish
and Ilish preparations. Also, a labeling requirement was applied to make consumers
aware of hazards Ilish fish may carry, this labeling requirement was applied to the
sale of both domestic as well as imported Ilish.

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MEASURES AT ISSUE

POULTRY

1. The denial of equivalence for the refusal to implement the fourth guarantee is a
‘measure’ within the scope of the Dispute Settlement Understanding, and a
‘SPS measure’ as understood under the SPS Agreement.

2. The denial of equivalence for the refusal to implement the fourth guarantee is
discriminatory as it ‘arbitrarily or unjustifiably discriminates between
Members where identical or similar conditions prevail’.

ILISH

3. The enhanced testing requirements are not ‘based on’ a risk assessment
as understood under the SPS agreement.

4. The enhanced testing requirements are more trade-restrictive than required to

achieve the appropriate level of sanitary protection, taking into account
technical and economic feasibility.

5. The enhanced testing requirements are not based on scientific principles; are in
excess to what is required to protect human, animal or plant life or health; and
are being maintained without sufficient scientific evidence.

6. There is a de facto discrimination in applying the cautionary labelling

requirement as domestic Ilish is regularly sold without the cautionary label in
Nagori’s local wet markets.

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SUMMARY OF PLEADINGS

ISSUE 1 – The denial of equivalence as a measure does not fall within the scope of DSU

The denial of equivalence for the refusal to implement the fourth guarantee does not fall
within the scope of DSU because it is not violating any article of SPS agreement. Therefore,
Nagori would like to draw attention towards the material prejudice caused by Jumbree, in its
failure to specify the brief summary of the legal basis of the complaint which should be
sufficient to present the problem clearly as require under Article 6.2 of the DSU. Also, as per
Article 19.1 of DSU, the Panel can make recommendation only if a measure violates covered
agreement i.e., SPS Agreement.

ISSUE 2 – The denial of equivalence is not discriminatory and doesnot “arbitrarily

or unjustifiably discriminates between members where identical or similar conditions
prevail.

The measures adopted by Nagori are consistent and are in accordance to appropriate level of
protection, with the requirements of the SPS Agreement and it cannot be considered as
‘arbitrary’ or ‘unjustifiably discriminatory.’ The measures were adopted in accordance of
Article 2.3 of the SPS Agreement to tackle the impeding threat of Green Pox, which is a
highly contagious viral disease with mortality rate of 100%. Furthermore, it cannot be
maintained that identical and similar conditions prevail in the territory of Nagori and that of
Jumbree as, Jumbree is a tropical country which is prone to flooding and as per minority
scientific opinion which was cited in the risk assessment, there is an increased risk of
outbreaks and spread of Green Pox during floods

ISSUE 3 – The enhanced testing requirement are based on risk assessment as understood
under the SPS agreement

The chimera testing requirement is based on a risk assessment prepared by Nagori’s Food
Safety Authority (‘FSA’) which is the central body administering Nagori’s Food Safety
Laws. According to this risk assessment, Ilish has a high risk of containing chimera. The
risk assessment also notes that the risk is higher for Ilish Preparations as they are
generally consumed undercooked, or directly consumed without cooking. So if Nagori on
the basis of its central body as well as other WTO members is putting enhanced checks
on Jumbree imports, because there is a likelihood of entry of Chimera from the imported

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fisheries from Jumbree and these checks will prevent the spreading of the disease in
Nagori which will help to save the fishes as well as humans and their livelihoods.

ISSUE 4 – The enhanced testing requirements are not trade- restrictive and have been put in
place while taking into account technical and economic feasibility.

The enhanced testing requirements applied by Nagori under Art. 2.3 to achieve its ALOP are
consistent with Art. 5.3 and Art. 5.6 of the SPS and thus they are not trade-restrictive in any
way. Factors are given under Art. 5.3 which should be necessarily taken into consideration
before applying any measure to achieve ALOP were considered by Nagori. No alternative
measures to achieve the ALOP of Nagori were suggested by Jumbree hence the complainant
cannot seek relief under any article of the SPS agreement.

ISSUE 5 - The enhanced testing requirements are imposed based on sufficient scientific
evidence

The testing requirements by Nagori are put in place to the extent necessary only to save
animal and human health which is the first requirement of this article. Secondly, the
measures are based on the risk assessment prepared by Nagori’s Food Safety Laws,
which is a central body on basis of which the testing requirements for Chimera are put in
place. The risk assessment done by the central body is sufficient scientific evidence.

ISSUE 6 – There is no discrimination in applying the cautionary labelling requirement.

This labelling requirement applied by Nagori is in no way discriminatory as it is applicable in

the selling of all the fresh Ilish sold in the market of Jumbree irrespective of the source from
which the fish comes. Members shall ensure that their sanitary and phytosanitary measures
do not arbitrarily or unjustifiably discriminate between Members where identical or similar
conditions prevail (Art 2.3), the measures applied by Nagori are rational and justified, and
also the conditions which are required to be identical between importing and exploring
country are not identical in the case present at hand because the chances of an outbreak of
Chimera in Jumbree are much more in comparison to Nagori. The essential ingredients which
are required to be proved to show there was discrimination under Art 5.5 as per the EU
hormones case are not fulfilled at all in the present case by the complainant.

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LEGAL PLEADINGS

ISSUE 1 - Whether the denial of equivalence for the refusal to implement the fourth
guarantee is a ‘measure’ within the scope of the Dispute Settlement Understanding, and
a ‘SPS measure' as understood under SPS Agreement?

1. That the Nagori do not dispute that the measures at issue are covered by the SPS
Agreement and further maintain that the requirement of demonstration of the efficacy of
the said measures are consistent and in conformity with international practice and the
requirement of concerned agreement. There is nothing in the SPS Agreement that
prevented enforcement of such measure.

Denial of Equivalence

Article 4.1 of the SPS Agreement reads as:

2. Members shall accept the sanitary or phytosanitary measures of other Members as

equivalent, even if these measures differ from their own or from those used by other
Members trading in the same product, if the exporting Member objectively demonstrates
to the importing Member that its measures achieve the importing Member's appropriate
level of sanitary or phytosanitary protection. For this purpose, reasonable access shall be
given, upon request, to the importing Member for inspection, testing and other relevant
procedures.

3. The Panel in US – Poultry (China)1 in reviewing the text of Article 4 and the Decision on
Equivalence observed that Article 4 is not the only provision in the SPS Agreement that
regulates the operation of equivalence regimes. The Panel therefore, reasoned that this
provision should not be applied in isolation from other relevant provisions of the SPS
Agreement. It can be understood that denial of equivalence for the refusal of
implementing the 4th guarantee is objectively justified.

1
Panel Report, US – Poultry (China), paras. 7.136-7.137.)

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4. It is pertinent to note that Jumbree has not submitted any demonstration that their
measures achieve the Nagori’s appropriate level of sanitary or phytosanitary
protection therefore, it can be ascertained that recognition of equivalence cannot be
granted.

Dispute Settlement Understanding

Article 6.2 of Dispute Settlement Understanding, reads as:

5. The request for the establishment of a panel shall be made in writing. It shall indicate
whether consultations were held, identify the specific measures at issue and provide a
brief summary of the legal basis of the complaint sufficient to present the problem
clearly. In case the applicant requests the establishment of a panel with other than
standard terms of reference, the written request shall include the proposed text of special
terms of reference.

6. It is most humbly submitted that the claims referred to by Jumbree in their request for the
establishment of the panel are insufficient to meet the obligations set under Art. 6.2 of
the DSU

7. That Article 6.2 of the DSU requires the complaining party to “identify the specific
measures at issue and provide a brief summary of the legal basis of the complaint
sufficient to present the problem clearly”. Jumbree in its approach to the formation of
panel under DSU had failed to facilitate a brief summary of the legal basis of
complaint which would be adequate to present the problem clearly to Nagori.

8. The Appellate Body in Korea-Dairy2 held that if the respondent is prejudiced in its ability
to defend itself by the mere listing of the articles stated to have been violated, then there
would be a violation of Art. 6.2 of the DSU. It follows that the ineptitude Jumbree as per
the requisites of Article 6.2 had caused material prejudice to Nagori.

Jurisdiction of Panel
2
Appellate Body Report, Korea-Definitive Safeguard Measure on Imports of Certain Dairy
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Products, para 127, WTO Doc. WT/DS98/AB/R (Dec. 14, 1999)

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Article 19.1 of Dispute Settlement of Understanding, reads as:

9. Where a panel or the Appellate Body concludes that a measure is inconsistent with a
covered agreement, it shall recommend that the Member concerned to bring the measure
into conformity with that agreement. In addition to its recommendations, the panel or
Appellate Body may suggest ways in which the Member concerned could implement
the recommendations.

10. It is hereby contested that the measures regulated by Nagori are consistent and in
conformity with the provisions of the SPS agreement. It follows that in absence of
any violation of the SPS Agreement, the panel established under DSU does not have
the competency to give recommendations in respect of the present complaint.

ISSUE 2 - Whether denial of equivalence for the refusal to implement the 4th guarantee

is ‘arbitrary and unjustifiably discriminates’ between members where identical or

similar conditions prevail?

Arbitrary and Unjustifiable Discrimination

11. Article 2 of the SPS Agreement reads as:

1. Members have the right to take sanitary and phytosanitary measures necessary for
the protection of human, animal or plant life or health, provided that such measures are
not inconsistent with the provisions of this Agreement.
2. 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.
3. Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily or
unjustifiably discriminate between Members where identical or similar conditions prevail,
including between their own territory and that of other Members. Sanitary and
phytosanitary measures shall not be applied in a manner which would constitute a disguised
restriction on international trade.

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12. In Korea- Import ban case3 the Appellate Body noted that as per the provisions of Article
2.3 of the SPS Agreement, a complainant has the burden of establishing that a
measure arbitrarily and unjustifiably discriminates between Members where identical
or similar conditions prevail, including between their own territory and that of the
Member.

13. It is humbly submitted before this Panel that the measures adopted by Nagori are
consistent and are appropriate level of protection with the requirements of SPS
agreement and it cannot be held to be ‘arbitrary’ or ‘unjustifiably discriminatory’

14. That the Nagori in accordance with the provisions of Article 2. 1 implemented the said
measures i.e., 4th guarantee to curb the menace of Green Pox, which is a highly
contagious and easily transmissible viral disease affecting poultry and has a mortality
rate of 100%.

15. In Beef Hormone case4, the Appellate Body postulated important guidelines with
respect to Article 2.3. As per these guidelines that the Complainant must show presence
of three elements. The elements are as follows:
a) The first element is that Member imposing the measure complained of has adopted
its own appropriate level of sanitary protection against the risk to human life or
health in several different situations
b) The second element to be shown is that those level of protection exhibit arbitrary
and unjustifiable differences in different situations
c) The last element requires that arbitrary or unjustifiable differences results
in discrimination or a disguised restriction of international trade.

16. In the US- Standards for Reformulated and Conventional Gasoline case5, the Appellate
Body surmised that the term ‘arbitrary,’ ‘unjustifiable discriminatory’ and ‘disguised
restriction’ should be complimentary and they impart meaning to each other

3
Appellate Body report Korea — Radionuclides (Japan)
4
Appellate Body report, EC – Hormones
5
US — Gasoline, AB-1996-1 - Report of the Appellate Body
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17. In Japan- Alcoholic beverages case6, the Appellate Body ascertained that for a measure to
be considered as ‘arbitrary’ and ‘unjustifiably discriminatory’ it is paramount to note that
it shall afford protection to domestic production

18. The first SPS report (EC – Hormones) suggested that a considerable degree of deference
should have been granted to WTO Members. In particular, the Appellate Body
recognized that Members were entitled to base their SPS measure not only on the
mainstream science but could also rely on minority scientific opinions. This obviously
limits the discretion of a panel as to re-assessment of scientific evidence

19. The measures posited by the Nagori therefore cannot be said to be ‘arbitrary’ and
‘unjustifiably discriminatory’ as it has been adopted after due risk assessment which is as
a matter of fact based on scientific evidence and certain scientific studies indicate that
any increased exposure to green pox has the potential to cause drastic loss to Nagori’s
poultry sector

Whether identical and similar conditions prevail?

20. As per article 2.3, the complainant must show that a measure ‘arbitrarily’ and
‘unjustifiably discriminates’ between members where identical and similar
conditions prevail. That it can be maintained that identical and similar conditions
exist between Nagori and Jumbree with respect to Article 2.3 of the SPS Agreement.

21. In Korea- Import Bans, and Testing and Certification Requirements for Radionuclides7
The Appellate Body reversed the Panel’s findings of inconsistency under Art. 2.3 due
to the Panel’s error in finding that “similar conditions” prevail between Japan and other
Members. According to the Appellate Body, the Panel did not consider all relevant
conditions, including territorial conditions with potential to affect products that have
not manifested in products but “are relevant in light of the regulatory objective and
specific SPS risk at issue”. Consequently, the Panel erred by focusing on product test
data to the exclusion of territorial conditions that could differently affect the potential
for contamination.

6
Appellate Body report Japan-Alcohol
7
Appellate Body report Korea — Radionuclides (Japan)

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22. It is pertinent to note that in the territory of Nagori, although green pox has been
identified, the outbreaks have been very limited therefore, the need for implementing
any control mechanism has not been addressed

23. As per the risk assessment, the poultry farming districts of Jumbree are prone to
flooding. Floods according to minority scientific opinion which was cited in risk
assessment, generally increase the risk of outbreaks and spread of green pox in poultry
from medium- low to high risk.

ISSUE – 3 The enhanced testing requirements are not ‘based on’ a risk assessment as
understood under the SPS agreement

Annexure A clause (4) of the SPS agreement defines risk assessment as –

24. The evaluation of the likelihood of entry, establishment 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.

25. Also, Article 5.1 of the SPS agreement says that Members shall 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, taking into account
risk assessment techniques developed by the relevant international organizations.

26. In Australia – Salmon, the Appellate Body identified three elements of the risk
assessment process prescribed in the first clause of paragraph 4 of Annex A:

a) Identify the diseases whose entry, establishment or spread a Member wants to

prevent within its territory, as well as the potential biological and economic

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consequences associated with the entry, establishment or spread of these

diseases;
b) Evaluate the likelihood of entry, establishment or spread of these diseases, as
well as the associated potential biological and economic consequences; and
c) Evaluate the likelihood of entry, establishment or spread of these diseases
according to the SPS measures which might be applied8."

27. It is humbly pleaded before this panel that all three elements are fulfilled while applying
the measure. Nagori’s food safety law imposes a Chimera testing requirement which is
the disease whose entry, establishment or spread Nagori wants to prevent within its
territory. Chimera is a bacteria that can cause illness in humans. This is a zoonotic
disease, which means it can be transmitted directly or indirectly between animals and
humans. Additionally, it can also be transmitted from other food sources including fruits,
vegetables, and condiments. Symptoms of chimera include fever, diarrhea and abdominal
cramps. In the event that it infects the bloodstream, it can be life-threatening as well.9

28. It is to be duly noted that this disease is a threat to both animal and human health. Also,
the local fisher folk’s livelihood is dependent upon Ilish fishing and the spreading of
Chimera can be of huge negative economic consequence for both the fishermen as well
the economy of Nagori.

29. To overcome the tariff rates Jumbree’s industry started adding salt and pepper to the fresh
Ilish to make it qualify as an ‘Ilish preparation’ under Nagori’s tariff schedule. In 2019,
Nagori and a few other WTO Members imposed enhanced checks on salt and pepper
from Jumbree for the presence of chimera in excess levels. It is the same salt and pepper
that is being used in salted and peppered Ilish from Jumbree. The chimera testing
requirement is based on a risk assessment prepared by Nagori’s Food Safety Authority
(‘FSA’) which is the central body administering Nagori’s Food Safety Laws. According
to this risk assessment, Ilish has a high risk of containing chimera. The risk assessment
also notes that the risk is higher for Ilish Preparations as they are generally consumed
undercooked, or directly consumed without cooking. So if Nagori on the basis of its
central body as well as other WTO members is putting enhanced checks on Jumbree
8
Appellate Body Report, Australia – Salmon, para. 121.
9
Moot proposition 5th footnote

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imports, because there is a likelihood of entry of Chimera from the imported fisheries
from Jumbree and these checks will prevent the spreading of the disease in Nagori which
will help to save the fishes as well as humans and their livelihoods.

30. A Member is also free to choose any appropriate level of protection and this decision is
not subject to any review. Moreover, the Appellate Body in the EC-Hormone case also
signaled that the connection, which is required between risk assessment and SPS measure,
is merely a reasonable relationship that may be influenced by the character of risk.
Therefore the enhanced testing requirement is a measure under the SPS agreement and is
based on risk assessment by the premier health administering body of Nagori which is
high which is reasonable enough to put on the testing requirement.

31. It is broadly admitted in the literature, the assessment of risk is not a purely scientific
task and depends on the specific socio-cultural conditions of a particular country 10. Such
assessment inevitably involves subjective judgments of the assessors that reflect their
attitudes toward particular risks, values of the relevant community in which the experts
are acting or other normative elements such as the required level of protection or
treatment of uncertainties.11

32. Similarly, the testing requirement put by Nagori has been put in place by taking into
consideration various socio-economic factors. The people of Nagori treat Ilish as a
delicacy to be savored on special occasions. Ilish also is considered pious, and an offering
of a pair of Ilish to the Gods – a sacred duty during holy rituals like marriages, initiations,
etc.12Also Nagori is a densely populated country as its eastern side comprises 85% of
population13 , so this makes it more vulnerable of spreading of disease. Nagori has also
seen an uptick in food-borne diseases where entire local populations were severely
affected by contaminated food sometimes even resulting in deaths. Therefore it is
necessary to put these testing requirements on the import of Ilish fish.

10
See generally, David Winickoff, Sheila Jasanoff, Lawrence Busch, Robin Grove-White &
Brian Wynne, Adjudicating the GM Food Wars: Science, Risk, and Democracy in World
Trade Law, 30 Yale Journal of International Law 81 (2005).
11
Catherine Button, Power to Protect. Trade, Health and World Trade Organization, Hart
Publishing, Oxford and Portland: 2004
12
Moot proposition para 19
13
Moot proposition para 1

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33. If a panel ends up imposing on the WTO Members its own vision of science, these
normative and context-dependent elements will be lost, while the ultimate determination
will most probably fail to produce a correct result. Although the Appellate Body did not
explain that finding in detail, one may rationally assume that it gives an additional margin
of discretion to national authorities in applying a measure. (e.g., risk for human life and
health are related to less intrusive scrutiny).14

34. The review power of the Panel is not to determine whether the risk assessment undertaken
by a WTO Member is correct but rather to determine whether that risk assessment is
supported by coherent reasoning and respectable scientific evidence and is, in this sense,
objectively justifiable. The Appellate Body then set out four key indicators that must be
taken into account by a panel when reviewing a Member's risk assessment:
(a) Whether the views upon which an SPS measure is based are from
qualified and respected sources;
(b) Whether the reasoning articulated on the basis of scientific evidence
is objective and coherent;
(c) Whether the particular conclusions drawn by the Member assessing the
risk find sufficient support in the scientific evidence relied upon; and
(d) Whether the results of the risk's assessment sufficiently warrant the
SPS measure at issue15

35. "The Panel recognizes that the determination of the presence or absence of a pest in the
territory of a WTO Member is the responsibility of that Member, which is therefore
also responsible for the relevant surveillance efforts in order to make such a
determination16.

36. Thus in the light of ruling , Nagori is a WTO member and it is its responsibility to
recognize a disease as a risk for the people and the risk is based on credible sources
as well.

37. The Panel in Australia – Salmon held that a risk assessment need not be an official
government report: "We note that these reports do not form part of Australia's formal
risk assessment nor represent Australia's official government policy. However, to the

extent

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14
Appellate Body report, EC – Hormones, para. 194
15
Appellate Body Reports, US/Canada – Continued Suspension, para 591.
16
Panel Report, Costa Rica – Avocados (Mexico), para. 7.425

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they constitute relevant available scientific information that was submitted to the Panel,
we consider it our task to take this evidence into account. We consider that, for purposes
of our examination, the scientific and technical content of these reports and studies is
relevant, not their administrative status (i.e., whether they are official government reports
or not). … Whether or not this evidence is part of official Australian government policy
does not, in our mind, change the scientific weight to be given to it"17

38. The Appellate Body in Australia – Apples noted that, while Article 5.1 directs a
Member conducting a risk assessment to take into account internationally developed risk
assessment techniques, "this does not mean that a risk assessment must be based on or
conform to such techniques". The Appellate Body also considered that compliance with
such techniques alone does not suffice to demonstrate compliance with a Member’s
obligations under the SPS Agreement.18

39. According to the above-cited cases, Nagori’s central body’s report on risk assessment
is admissible as a piece of evidence and it is not necessary that risk assessment must be
based on any international standard. Therefore the testing requirements are based on a
risk assessment as understood under the SPS agreement and the complainant’s claim is
baseless.

ISSUE 4 - The enhanced testing requirements are more trade-restrictive than

required to achieve the appropriate level of sanitary protection, taking into account
technical and economic feasibility.

(i) Whether the measures applied by Nagori were consistent with Article 5.6
of SPS?

40. According to Article 5.6 of SPS - Members shall ensure that such measures they
take to achieve ALOP are not more trade-restrictive than required to achieve their
appropriate level of sanitary or phytosanitary protection, taking into account
technical

17
Panel Report, Australia – Salmon, paras. 8.136-8.137.
18
Appellate Body Report, Australia – Apples, para. 246. See also Panel Report, Costa Rica –

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Avocados (Mexico), para. 7.1582

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and economic feasibility.19

41. For purposes of paragraph 6 of Article 5, a measure is not more trade-restrictive

than requiredunless there is another measure, reasonably available taking into
account technical and economic feasibility, that achieves the appropriate level of
sanitary or phytosanitary protectionand is significantly less restrictive to trade. 20

42. The panel and Appellate Body in the Australia – Salmon case21 held that there shall
be three elements that an alternative measure should meet within the meaning of Art.
5.6: the alternative measure (i) is reasonably available taking into account technical
and economic feasibility; (ii) achieves the Member's appropriate level of
phytosanitary protection, and (iii) is significantly less restrictive to trade than the
measure at issue. These elements are cumulative in nature such that,in order to
establish an inconsistency with this provision, all three elements must be
demonstrated.

43. Also In Japan – Agricultural Products II22 the Appellate Body considered that the
burden rests on the complaining party to establish a prima facie case that there is
an alternative measure thatmeets all three elements under Article 5.6 in order to
establish a prima facie case of inconsistency with Article 5.6. In this present case,
the complainant has failed to show or suggest any alternative measure which
achieves the ALOP for Nagori and is significantly less restrictive to trade.

(ii) Whether the measures applied by Nagori were consistent with Article 5.3
of SPS?

44. Member shall take into account the relevant economic factors listed in Article 5.323
when determining the measure it will apply to achieve its ALOP. These factors are:

a) The potential damage in terms of loss of production or sales in the event of

the entry.

b) Establishment or spread of a pest or disease -

19
Art. 5.6 SPS Agreement
20
Art. 5 footnote SPS Agreement
21
DS18: Australia — Measures Affecting Importation of Salmon
DS76: Japan — Measures Affecting Agricultural Products.
22

Art. 5.3 SPS Agreement

23

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45. Chimera is a bacteria that can cause illness in humans. It is a highly

contagious disease that could be spread by animals, fruits, vegetables, and
condiments. If it infects the bloodstream, it can be life-threatening as well. 24

According to this risk assessment, Ilish has a high risk of containing chimera25.
Also In 2019, Nagori and a few other WTO Members imposed enhanced checks on
salt and pepper from Jumbree for the presence of chimera in excess levels. It is the
same salt and pepperthat is being used in salted and peppered Ilish from Jumbree. 26

46. The risk of presence of Chimera is there in both Ilish and the salt and pepper used
on the Ilish. These facts state the risk associated with Chimera is of the highest
degree and hence testing requirements on all the 3 stages in case of Ilish
preparation and 2 stages in case of fresh Ilish ismandatory.

47. The Panel in Costa Rica – Avocados (Mexico)27 stated that, under Article 5.5, it is
the importingMember's prerogative to establish its ALOP. The Panel recalls that it is
the prerogative of the importing

48. Member to establish its ALOP. The panel held that if the risk in a situation is
higher, the measuresmay be stricter in order to achieve the given ALOP.

(1) The costs of control or eradication in the territory of the importing Member-

49. Up to 2017 Nagori has seen an uptick in food-borne diseases where entire local
populations wereseverely affected by contaminated food, sometimes even resulting in
deaths. Instances of food adulteration and lack of sanitary controls on fresh produce,
fish, meat, and poultry products had resulted in much public discontent against the
government and had also heavily depleted the exchequer due to increased spending
on healthcare. 28

24
Footnote number 5 - memo
25
Para 27 Memo
26
Para 25 Memo
27
DS524: Costa Rica — Measures Concerning the Importation of Avocados
fromMexico
28
Para 3 Memo

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(2) The relative cost-effectiveness of alternative approaches

to limiting risks –

50. In India – Agricultural Products29, the Appellate Body held that

"The identification of the respondent's appropriate level of protection is not per se the
ultimateaim of the analysis. Rather, the ultimate aim of conducting this analysis is to
determine whether a significantly less trade-restrictive alternative measure that would
meet therespondent's appropriate level of protection is available.

51. The complainant on whom bop lies to show the availability of an alternative measure
has not suggested any alternate measure.

(iii) Whether the actions of the Nagori were cooperative instead of imposing
trade restrictions onJumbree?

52. Nagori is one of the largest trade partners of Jumbree.30 In 2017 the PLP
Government undertook an economic feasibility analysis for implementing
corrective measures that would curethe deficiencies which led to the import ban by
Nagori. 31

53. These facts show that Nagori was more willing than Jumbree itself to resume trade
with Jumbreeand this analysis aimed to implement corrective measures was
initiated on its own by Nagori and it was based on economic feasibility as well.

54. For the past three years, Jumbree’s fishing industry has been facing an issue of
oversupply of Ilish leading to falling prices in the domestic market. This
oversupply is on account of a push bythe government for the adoption of
mechanized fishing as part of Project Asalsukh 32 now since this oversupply is due
to poor planning of Jumbree, neither the state of Nagori could be blamed as trade
restrictive and nor it could be made to compensate for it.

55. When Jumbree wanted to earn good profit they were happy to sell their salted and

29
DS430: India — Measures Concerning the Importation of Certain Agricultural
Products
30
Para 11 Memo
31
Para 12 Memo

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32
Para 22 Memo

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peppered Ilishas an Ilish preparation but when there is a need to implement

enhanced testing on Ilish prep they want it to be categorized as fresh Ilish. This
shows the hypocrisy of Jumbree.

56. If there are some effects of enhanced testing on the export of Jumbree then it is
merely incidentaland non-intentional since the only objective behind imposing such
measure was to enhance public safety, and it is neither was done to affect trade with
Jumbree nor there were any alternatives available. Moreover, due to the oversupply of
Ilish in Jumbree, there are chances that Jumbree still earns more profit on the exported
products than what they’re earning by selling products domestically.

57. Howse’s main point is that the additional economic gains from ‘freer trade’ may
not outweigh thelosses in democratic welfare.33

58. In the run-up to the 2017 national elections, Nagori has seen an uptick in food-
borne diseaseswhich led to not only economic loss but to loss of human lives as
well. In the 2017 national elections, the Nagoris voted for Dr. Faqir Chelam
who became the Prime Minister of Nagori. A doctor by profession, Chelam had
centered his electoral campaign around pressing issues like education reforms,
food safety, and improving the quality of public healthcare34(16) Therefore the
government of Nagori has the responsibility to take measures to achieve its
ALOP and failure on the account of government to do so would be nothing less
thancheating the citizens of Nagori .

59. The people of Nagori treat Ilish as a delicacy to be savored on special occasions.
Ilish also is considered pious, and an offering of a pair of Ilish to the Gods – a sacred
duty during holy ritualslike marriages, initiations, etc.(3517)

60. Therefore it is the responsibility of the government of Nagori to not only

protect the Socio-culturalinterests of the nation along with the health of
citizens.

ISSUE – 5 The enhanced testing requirements are not based on scientific principles; are
in excess to what is required to protect human, animal or plant life or health; and are

33
Howse, ‘Democracy, Science and Free Trade: Risk Regulation on Trial at the World
TradeOrganization’, 98 Michigan L Rev (2000) 2333
34
Para 2 Memo

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35
Para 19 Memo

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being maintained without sufficient scientific evidence

Article 2.2 of the SPS agreements states that –

61. 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.

62. In EC – Approval and Marketing of Biotech Products, the Panel listed the requirements
within Article 2.2 of the SPS Agreement: It is apparent from the text of Article 2.2 that
this provision contains three separate requirements:

a) the requirement that SPS measures be applied only to the extent necessary to protect
human, animal or plant life or health;
b) the requirement that SPS measures be based on scientific principles; and
c) the requirement that SPS measures not be maintained without sufficient scientific
evidence.36

63. It is humbly pleaded before this panel that all three requirements of the said section are
fulfilled while applying a measure by Nagori. The testing requirements are put in place to
the extent necessary only to save animal and human health which is the first requirement
of this article. Secondly, the measures are based on the risk assessment prepared by
Nagori’s Food Safety Laws, which is a central body on basis of which the testing
requirements for Chimera are put in place. The risk assessment done by the central body
is sufficient scientific evidence.

64. The Panel in US – Poultry (China) was of the view that to maintain a measure with
sufficient scientific evidence, the scientific evidence must bear a rational relationship to
the measure, be sufficient to demonstrate the extent of the risk which the measure is
supposed to address, and be of the kind necessary for a risk assessment37.

36
Panel Report, EC – Approval and Marketing of Biotech Products, para. 7.1424
37
Panel Report, US – Poultry (China), para. 7.200

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65. Here in this case the risk is high according to the risk assessment and also the life of
animals and humans is at stake. Hence, the measure is put in place according to the extent
of risk.

66. In Japan – Agricultural Products II, with respect to the term "sufficient" in Article 2.2, the
Appellate Body required an adequate relationship between the SPS measure and the
scientific evidence. “The ordinary meaning of 'sufficient' is 'of a quantity, extent, or scope
adequate to a certain purpose or object'. From this, we can conclude that 'sufficiency' is a
relational concept. 'Sufficiency' requires the existence of a sufficient or adequate
relationship between two elements, in case, between the SPS measure and the scientific
evidence."38

67. In Japan – Apples (Article 21.5 – US), the Panel found that "In order for scientific
evidence to support a measure sufficiently, it seems logical to us that such scientific
evidence must also be sufficient to demonstrate the existence of the risk which the
measure is supposed to address. As a result, it seems reasonable to consider the extent of
the relationship between the scientific evidence and the risk which this evidence is
claimed to establish39

68. The SPS measure applied here is testing of Ilish fish which are prone to suffer from
Chimera. It is to be noted that not only Nagori but other WTO members have also
imposed enhanced checks for the presence of Chimera in excess level. And the testing is
imposed on the basis of risk assessment and it is an appropriate level of protection.
Therefore the evidence is sufficient and it is related to the SPS measure.

69. The Panel in Japan – Apples looked into the meaning of "scientific evidence" and
discussed the significance of the nature of the evidence that ought to be considered when
a Member is making a determination of what measure to put in place: We note that
scientific evidence may include evidence that a particular risk may occur as well as
evidence that a particular requirement may reduce or eliminate that risk.

70. The Respondent wants to reiterate before this panel that the risk assessment done by

38
Appellate Body Report, Japan – Agricultural Products II, para. 73
39
Panel Report, Japan – Apples (Article 21.5 – US), para. 8.45

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Nagori’s Food Safety Authority, Ilish has a high risk of containing Chimera and the
testing requirement put in place as a SPS measure will help in containing Chimera and
preventing its spread in the densely populated Nagori consequently saving lives of its
citizens.

71. The Appellate Body in EC – Hormones noted that - "A panel charged with determining,
for instance, whether 'sufficient scientific evidence' exists to warrant the maintenance by a
Member of a particular SPS measure may, of course, and should, bear in mind that
responsible, representative governments commonly act from perspectives of prudence and
precaution where risks of irreversible, e.g. life-terminating, damage to human health are
concerned.”

72. In this case, also the Respondent has acted in a prudent manner to prevent the spread of
the Chimera disease to save the lives of its citizens and animals.

73. The Appellate Body in its report on EC – Upholding the decision of the Panel, agreed that
Article 5.1 is a “specific application” of the basic obligation contained in Article 2.2. In
other words, Article 2.2 and Article 5.1 should be “constantly read together”. Article 2.2
focuses on the basic obligations of the SPS Agreement, while Article 5.1 construes the
specific application of Article 2.2. Indeed, in the case of a sanitary measure not to be
based on a risk assessment in accordance with Article 5.1, this measure would be
presumed, more generally, not to be imposed on the basis of scientific principles or to be
maintained without sufficient scientific evidence.

74. But it is pleaded before this hon’ble panel that the respondent in issue no. 3 has already
proved that the testing requirements are based on risk assessment consistent with the
provisions of Article 5.1 of the SPS agreement, hence it is proved that the testing
requirements are based on sufficient scientific evidence as understood under Article 2.2.

75. Is it worth to lose one statistical life over some additional trade liberalization? How to
compare damage to the environment caused by the invasion of foreign species with
potential gains generated by trade increase? A loss of statistical life as a consequence of
removing trade barrier appears to be more costly as a matter of principle than any
damage to international trade. Another cost is generated by the problem of compliance.

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In case

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health and safety measures (which are, by their nature, very sensitive cases) the risk of
non-compliance of the complainant again seems to be higher than in other more
traditional trade disputes.

ISSUE 6 - There is a de facto discrimination in applying the cautionary labelling

requirement as domestic Ilish is regularly sold without the cautionary label in Nagori’s
local wet markets.

76. U/A 2.1 Members have the right to take sanitary and phytosanitary measures
necessary for theprotection of human, animal, or plant life or health, provided
that such measures are not inconsistent with the provisions of this Agreement.
(Art 2.1 SPS Agreement) The enhanced testing and labeling measure applied
is consistent with the provisions of the SPS Agreement.

77. U/A 2.2 - Members shall ensure that any sanitary or phytosanitary measure is
applied only to theextent necessary to protect human, animal, or plant life or
health, is based on scientific principles, and is not maintained without
sufficient scientific evidence. (Art. 2.2 SPS)

78. The measures applied by Nagori are based on scientific evidence, these measures are
necessaryto prevent life and they are applied to the available extent only.

1) Whether there was any discrimination in applying the cautionary labeling

requirement byNagori?

79. Nagori has also recently come up with a requirement that all Fresh Ilish sold in the
domestic retailmarket has to compulsorily bear a caution label there is no de facto
discrimination in applying this cautionary labeling requirement as this requirement is
applicable in the selling of all the freshIlish sold in in the market of Jumbree
irrespective of the source from which the fish comes from.

80. U/A 2.3- Members shall ensure that their sanitary and phytosanitary measures
do not arbitrarilyor unjustifiably discriminate between Members where
identical or

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similar conditions prevail, including between their territory and that of other
Members. Sanitary and phytosanitary measures shall not be applied in a manner
that would constitute a disguised restriction on international trade.

81. The measures applied by Nagori are justifiable and rational. Also, the conditions
which prevail inNagori and Jumbree are not identical since the conditions for the
outbreak of chimera are much more favorable in Jumbree but not in Nagori.
Also, it’s Jumbree that is facing the problem of oversupply of Ilish, not Nagori.
Under project Asalsukh Jumbree used advanced technology to capture fish
however people of Nagori are yet dependent on traditional methods, and they
can’t be compared on the scale to that of Jumbree.

82. Also, the Measures are not implemented with a protectionist agenda of protecting the
local industry but it is imposed to secure human, animal and plant life.

83. U/A 5.5 - With the objective of achieving consistency in the application of the
concept of the appropriate level of sanitary or phytosanitary protection against risks
to human life or health, orto animal and plant life or health, each Member shall
avoid arbitrary or unjustifiable distinctions inthe levels it considers to be
appropriate in different situations if such distinctions result in discrimination or a
disguised restriction on international trade.

84. Close inspection of Article 5.5 indicates that a complaint of a violation of this
Article must showthe presence of three distinct elements.

a) The first element is that the Member imposing the measure complained of
has adopted itsappropriate levels of sanitary protection against risks to
human life or health in several different situations.
b) The second element to be shown is that those levels of protection exhibit
arbitrary or unjustifiable differences ("distinctions" in the language of
Article 5.5) in their treatment ofdifferent situations.
c) The last element [which arises in part from reading Article 5:1 in the context
of Article 2:3of the SPS Agreement] requires that arbitrary or unjustifiable

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differences result in discrimination or a disguised restriction of international

trade. 40

85. The measures applied by Nagori fail test number 2 and 3 propounded
by Panel in the “EUhormones case”

86. Also, it has been explained above in detail how these measures are justifiable and
nonarbitrary and these measures do not cause any discrimination or disguised
restrictions on trade becausethe elements which are required to prove that there is a
violation of Article 5.5 leading to discrimination are not fulfilled as these measures
are in consistency with Art. 5.5.

87. Explicit identification of the presence of a GMO alerts and sensitizes operators and
users of a product containing or consisting of a GMO to the possibility that any
observed adverse effects ofthe product on human health or the environment might
be attributable to the presence of a GMOas opposed to other factors. 41

88. The citizens of Nagori have the right to know if there’s any hazard or
harm that could beassociated with the choice of food they make.

89. The appellate body in the case cited above held that the EU was not violating Article
5.5 when itapplied measures allowing only certain kinds of meats to be imported.

90. Moreover according to the Principle of natural justice ordinarily the burden of
proof to show that the measures are discriminatory or arbitrary lies on the
complaint.

Whether the panel should not make a recommendation under art. 19.1 of DSU.

91. Measures invoked by Nagori are consistent with the SPS agreement. The
Respondent submits that there is no violation of Art. 2.3,4,5.3 or 5.5 of SPS and
thus, it cannot nullify or impair the rights given to members of WTO under
Art.2.1

40
WTO appellate body report, ec measures concerning meat and meat products
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(hormones) WT/DS48/AB/R (adopted 13 February 1998)

41
Panel Report, EC – Approval, and Marketing of Biotech Products

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of SPS. A panel may make a recommendation under Art. 19.1 of DSU only when
there is any inconsistency of the measure at issue with a covered agreement. (DSU
Art.19). Thus, a recommendation under Art. 19.1 should not be made

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REQUEST FOR FINDINGS

Wherefore in light of the measures at issue, legal pleadings, reasons given, and
authorities cited, Nagori, the RESPONDENT, respectfully requests the Panel to:

1. Find that the denial of equivalence as a measure is not within the scope of DSU
and the measure is not discriminatory and is not arbitrary according to Article 2.3
of the SPS agreement.
2. Find that the enhanced testing requirements are based on a risk assessment as
understood under the SPS agreement.
3. Find that the enhanced testing requirements are not trade restrictive and are put
in place while taking into account technical and economic feasibility as per
Article
5.5 and 5.6 of the SPS agreement.
4. Find that the enhanced testing requirements are based on scientific principles
and are being maintained with sufficient evidence as per Article 2.2 of the SPS
agreement.
5. Find that there is no de facto discrimination of any kind in applying the cautionary
labeling requirement.

Agents of the Government of NAGORI

(RESPONDENT)
3