MEMORIAL for APPELLANTS ARGUMENTS ADVANCED

IN THE
DISPUTE SETTLEMENT BODY
WORLD TRADE ORGANIZATION

-IN THE MATTER OF-

ORIGNAL JURISDICTION

[UNDER ARTICLE 4.7 AND 6 OF DISPUTE SETTLEMENT UNDERSTANDING]

KINGDOM OF JUMBREE
…………COMPLAINANT

VERSUS

PEOPLE’S REPUBLIC OF NAGORI

………...RESPONDENT

-WRITTEN SUBMISSIONS ON BEHALF OF THE COMPLAINANT-

OPEN CHALLENGE FOR 14TH GNLU INTERNATIONAL MOOT COURT

COMPETITION,2023

14TH GNLU INTERNATIONAL MOOT COURT COMPETITION,

2023
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MEMORIAL for COMPLAINANT ARGUMENTS ADVANCED

ARGUMENTS ADVANCED

ISSUE II

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’.

The People’s republic of Nagori (hereinafter RESPONDANT) banned the entry of certain
poultry products from the Kingdom of Jumbree (hereinafter COMPLAINANT) via its
notification dated 12/04/20151 on account of microbiological contaminants being found in
those products beyond accepted levels, The COMPLAINANT rectified its sanitary
deficiencies and also revamped its domestic regulations which led to the import ban and the
request for grant of Equivalence for its regulations was placed before the RESPONDANT, the
same was informed to the RESPONDANT via letter dated 07/08/20182, the RESPONDANT
agreed to grant Equivalence to Poultry regulations subject to implementation of four
guarantees recommended by its competent authority 3, the COMPLAINANT agreed to
implement first three of those four guarantees recommended by the RESPONDANT, the
Fourth Guarantee was deemed to be an excessive measure by the COMPLAINANT same was
informed to the RESPONDANT via its letter dated 07/11/2019, the RESPONDANT refused to
grant equivalence without implementation of fourth guarantee. 4 It is humbly submitted before
the Panel that the refusal to grant equivalence without the implementation of fourth guarantee
is Arbitrary and discriminatory as A. Fourth guarantee is an excessive measure to achieve
appropriate level of protection, hence it is trade restrictive B. It is in violation of Article 2.3
of Agreement on the Application of Sanitary and Phytosanitary measures (hereinafter SPS
agreement) C. The Complainant is eligible for grant of Equivalence under article 4 of the SPS
agreement.

A. Fourth guarantee is an excessive measure to achieve appropriate level of protection,

hence it is trade restrictive.

1
Annex-A, Moot Problem.
2
Annex-B, Moot Problem.
3
Annex-C, Moot Problem.
4
Annex-E, Moot Problem.

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MEMORIAL for COMPLAINANT ARGUMENTS ADVANCED

1. The fourth guarantee recommended by the Respondant involves a nation wide green pox
control plan.

2. This plan should test for the presence of green pox in live flocks of poultry and again
before packing the fresh poultry. If the fresh poultry is undergoing further preparations, then
another round of testing of green pox is required on the final product. A total of two rounds
of testing is required for fresh poultry and three rounds for poultry preparation. All six
genotypes of green pox should be tested at all stages of testing.5

¶ 3. It is submitted before the panel that this guarantee is in contravention to Article 5 of the
SPS agreement, Article 5.1 of the SPS agreement reads as “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.”6 And Article
5.2 of SPS agreement reads as “In the assessment of risks, Members shall 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.”7

4. It is pertinent to note that requirement under Article 5.1 of SPS is of proper assessment to
the risks involved and under Article 5.2 it is required that assessment must be based on
sufficient scientific evidence, for the purpose of enforcing any sanitary and phytosanitary
measure.

5. In the present case, the assessment to the risks done by the RESPONDANTS opinionated
that poultry farming districts in Jumbree are prone to flooding. Floods, according to a
minority scientific opinion which was cited in the risk assessment, generally increases the
risk of outbreaks and spread of green pox in poultry from medium-low to high risk.8

5
Annex-C, Moot Problem.
6
Article 5.1 of the SPS agreement.
7
Article 5.2 of the SPS agreement.
8
¶ 17 Moot Problem.

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MEMORIAL for COMPLAINANT ARGUMENTS ADVANCED

6. However, in the recent years due to concerted efforts and environmental planning, the risk
of flooding has been considerably reduced in the kingdom of Jumbree 9, it is also important to
note that floods increasing the risk of spread of green pox is a minority scientific opinion, not
a majority opinion10, therefore recommending for the implementation of fourth guarantee is
too excessive.

7. The Article 2.2 of the SPS reads as “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.”11

8. In the present case RESPONDANTS have not provided sufficient scientific evidence to
consider Green pox control plan as a necessary sanitary control method as required by Article
2.2 of the SPS.

9. The report of this Panel in the case of Japan – Measures affecting agricultural products
held that “Japan maintains the varietal testing requirement without sufficient scientific
evidence in the sense of Article 2.2.”12

10. Therefore, it is humbly submitted before the panel that Fourth guarantee recommended by
the RESPONDANTS would be in violation of Article 2.2, 5.1 and 5.2 of the SPS agreement,
as it is without sufficient risk assessment and scientific evidence within the scope of those
provisions, thus it is excessive and Trade restrictive.

B. It is in violation of Article 2.3 of Agreement on the Application of Sanitary and

Phytosanitary measures.

11. The Article 2.3 of the SPS agreement reads as “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

9
¶ 4 Moot Problem.
10
¶ 17 Moot Problem.
11
Article 2.2 of the SPS agreement.
12
Japan – Measures affecting agricultural products Pg. 111 ¶8.43 (WT/DS76/R).

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MEMORIAL for COMPLAINANT ARGUMENTS ADVANCED

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.”13

12. It is important to note that Article 2.3 of the SPS agreement prohibits discrimination
between members, whenever any member is imposing any sanitary measure, speaking in
layman’s language, it prohibits discrimination on implementation of sanitary measures
between the member who is implementing it and the member who is exporting any goods.

13. In the case of Australia – Measures affecting Importation of salmon of this panel found
that there were three elements required in order to establish a violation of Article 2.3, first
sentence: (i) that 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) that the discrimination is arbitrary or unjustifiable; and (iii)
that identical or similar conditions prevail in the territory of the Members compared. 14

14. The above principles have been upheld in the subsequent cases, for instance this panel in
the case of United States – Certain Measures Affecting Imports of Poultry From China
applied the logic of the above case and held that Section 727 is inconsistent with article 2.3 of
the SPS agreement15 and the same principle was also upheld in the case of India – Measures
concerning importation of certain agricultural products16.

15. Applying the principles enshrined in the above case to the case at hand it is evident that
firstly, the fourth guarantee discriminates between the member imposing the measure and that
of other member, as the RESPONDANT in their own country do not have any such measure,
regulation or guideline which prescribes a nation wide implementation of Green pox testing
plan17, still the RESPONDANT have asked the COMPLAINANT to implement such measure,
which is purely discriminatory and violation of the first principle enshrined in the above case.

16. Secondly, the RESPONDANT have given no clarification or justification on why the
fourth guarantee was need in the first place, as the COMPLAINANT has already revamped its

13
Article 2.3 of the SPS agreement.
14
Australia – Measures affecting Importation of Salmon Pg. 127 ¶7.111 (WT/DS18/RW).
15
United States – Certain Measures Affecting Imports of Poultry From China Pg. 151 ¶7.138 (WT/DS392/R).
16
India – Measures concerning importation of certain agricultural products Pg. 130 (WT/DS430/R).
17
¶ 15 Moot Problem.

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MEMORIAL for COMPLAINANT ARGUMENTS ADVANCED

sanitary guidelines according to the global best practices 18 and it has also implemented the
other guarantees recommended by the RESPONDANT19, No clarity has been provided as to
why the RESPONDANT asked to implement a guarantee which even they themselves don’t
implement, thus it is arbitrary and discriminatory and violation of second principle enshrined
in the above case.

17. Thirdly, the RESPONDANT and COMPLAINANT are based in the territory where
identical and similar conditions prevail, Green pox has been identified in the RESPONDANT
terroritory20, still they have no measure to check the spread of Green pox 21, while they have
recommended the same for the COMPLAINANT, it is a clear case of discrimination where
similar or identical conditions prevail, and thus it is violation of the third principle enshrined
in the above case.

18. Having said that above, it is thereby proved that the fourth guarantee recommended by
the RESPONDANTS is in clear violation of Article 2.3 of the SPS agreement.

19. Therefore, 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’.

C. The Complainant is eligible for grant of Equivalence under Article 4 of the SPS
agreement.

20. The Article 4.1 of the SPS agreement reads as “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.”22

18
¶ 12, Moot Problem.
19
Annex D, Moot Problem.
20
¶ 18, Moot Problem.
21
Ibid.
22
Article 4.1 of the SPS agreement.

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MEMORIAL for COMPLAINANT ARGUMENTS ADVANCED

21. In the instant case the COMPLAINANT is eligible for grant of equivalence for its poultry
regulations under article 4 of the SPS agreement.

22. It is obligatory for members under article 4 to grant equivalence for sanitary measures, if
the exporting member objectively demonstrates that its sanitary measures are equivalent to
those applicable in the territory of importing member, the importing member upon request
will be given reasonable access in the exporting members territory to check the same.

23. In the scenario of the present case the COMPLAINANT asked for the grant of equivalence
after revamping its poultry regulations and aligning them with global best practices 23, same
was denied by the RESPONDANT on refusal to implement the fourth guarantee by the
COMPLAINANT.

24. It is pertinent to note that COMPLAINANT sanitary measures are better than those
implemented by the RESPONDANT in its own territory, moreover the RESPONDANT
themselves does not implement the fourth guarantee which they recommended to the
COMPLAINANT.

25. The requirement under Article 4.1 of the SPS agreement for grant of equivalence is of
same sanitary measures should be applicable to exporting member as applicable on importing
members territory, however it is not mandatory.

26. In the present case, the sanitary measures applicable in exporting members territory are
better than those applicable inside importing members territory, which is a perfect ground for
grant of Equivalence for the poultry regulations of the COMPLAINANT under Article 4 of the
SPS, denial of it would be violation of the same.

23
¶ 12, Moot Problem.

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MEMORIAL for COMPLAINANT PRAYER FOR RELIEF

PRAYER FOR RELIEF

Wherefore in the light of the arguments advanced and authorities cited, the Complainants
humbly submit that the Hon'ble Panel may be pleased to adjudge and declare that:

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’.

AND

That the panel may issue any other order as the panel deems fit in the interest of justice,
equity and good conscience. For this act of kindness, the Complainants shall be duty-bound
forever.

ALL OF WHICH IS MOST HUMBLY AND RESPECTFULLY SUBMITTED.

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