1875R

IN THE WORLD TRADE ORGANISATION PANEL

WINTERFELL — MEASURES AFFECTING THE IMPORTATION AND

MARKETING OF MEDICINAL PRODUCTS MADE FROM BEARS

WT/DS666/2

DORNE & CASTERLY ROCK

(Complainants)

v.

WINTERFELL

(Respondent)

-WRITTEN SUBMISSION FOR THE RESPONDENT-

1
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS...................................................................................................iii

INDEX OF AUTHORITIES.....................................................................................................iv

STATEMENT OF FACTS.......................................................................................................vi

MEASURES AT ISSUE..........................................................................................................vii

SUMMARY OF PLEADINGS..............................................................................................viii

LEGAL PLEADINGS...............................................................................................................1

1. The legislative scheme adopted by Winterfell to ban the importation and marketing of
medicinal products made from bear bile, adopted with the view to protecting the morals of
citizens, is justified under Article XX(a) of the GATT 1994................................................1

2. The legislative scheme adopted by Winterfell to ban the importation and marketing of
medicinal products made from bear bile is not in violation of Article 2.1 of the TBT
Agreement..............................................................................................................................7

3. Whether the legislative scheme adopted by Winterfell to ban the importation and
marketing of medicinal products made from bear bile is not in violation of Article 2.2 of
the TBT Agreement..............................................................................................................11

REQUEST FOR FINDINGS...................................................................................................16

ii
 LIST OF ABBREVIATIONS

DSU Dispute Settlement Understanding

EC European Communities
GATT General Agreement on Tariffs and Trade,
1994
IC Indigenous Communities
Id. Ibidem
RRM Research and Resource Management
TBT Technical Barriers to Trade
US United States
v. Versus
WTO World Trade Organisation

iii
 INDEX OF AUTHORITIES

AGREEMENTS

Agreement on Technical Barriers to Trade, Jan. 1, 1995, Marrakesh Agreement Establishing

the World Trade Organization, Annex 1A, 1868 U.N.T.S. 120...........................7, 11, 13, 14
GATT 1994: General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh
Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 187
(1994)...........................................................................................................................1, 5, 14

APPELLATE BODY REPORTS

Appellate Body Report, Brazil — Measures Affecting Imports of Retreaded Tyres, WTO
Doc. WT/DS332/AB/R (adopted December 17, 2007).

Appellate Body Report, Canada — Certain measures concerning Periodicals, WTO Doc.
WT/DS31/AB/R (adopted July 30, 1997).

Appellate Body Report, China — Measures Affecting Trading Rights and Distribution
Services for Certain Publications and Audiovisual Entertainment Products, WTO Doc.
WT/DS363/AB/R (adopted January 19, 2010).

Appellate Body Reports, Colombia — Measures Relating to the Importation of Textiles,

Apparel and Footwear, ¶ 5.67-5.70, WTO Doc. WT/DS461/AB/R (adopted Jun. 22, 2016).

Appellate Body Report, European Communities — Measures Affecting Asbestos and

Products Containing Asbestos, WTO Doc. WT/DS135/AB/R (adopted April 5, 2001).

Appellate Body Reports, European Communities — Measures Prohibiting the Importation

and Marketing of Seal Products, WTO Doc. WT/DS401/AB/R (adopted June 18, 2014).

Appellate Body Reports, United States — Certain Country of Origin Labelling (COOL)
Requirements, WTO Doc. WT/DS384/AB/R; WT/DS386/AB/R (adopted July 23, 2012)

Appellate Body Report, United States — Measures Concerning the Importation, Marketing
and Sale of Tuna and Tuna Products, WTO Doc. WT/DS381/AB/R (adopted June 13, 2012).

Appellate Body Report, United States — Standards for Reformulated and Conventional
Gasoline, WTO Doc. WT/DS2/AB/R (adopted May 20, 1996).

iv
Appellate Body Report, United States — Measures Affecting the Cross-Border Supply of
Gambling and Betting Services, ¶309-311, WTO Doc. WT/DS285/AB/R (adopted Apr. 20,
2005).

Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp
Products, ¶ 150, WTO Doc. WT/DS58/AB/R (adopted Nov. 6, 1998).

ARTICLES, ESSAYS AND JOURNALS

Ishikawa, Plain Packaging Requirements and Article 2.2 of the TBT Agreement, CHINESE
(TAIWAN) YEARBOOK OF INTERNATIONAL LAW AND AFFAIRS (2014)...............................14
Voon, Exploring the Meaning of Trade—Restrictiveness in the WTO, 14(3) WORLD TRADE
REVIEW, (2015)....................................................................................................................13

PANEL REPORTS

Panel Reports, Australia — Certain Measures Concerning Trademarks, Geographical

Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and
Packaging, WTO Doc. WT/DS435/R; WT/DS441/R; WT/DS458/R; WT/DS467/R
(adopted Aug. 27, 2018).
Panel Report, Brazil — Certain Measures Concerning Taxation and Charges, ¶ 7.570 and
7.583, WTO Doc. WT/DS472/R (adopted Jan. 11, 2019).

Panel Report, China — Measures Affecting Trading Rights and Distribution Services for
Certain Publications and Audiovisual Entertainment Products, ¶7.759, WTO Doc.
WT/DS363/R (adopted Jan. 19, 2010).

Panel Reports, European Communities — Measures Prohibiting the Importation and

Marketing of Seal Products, ¶ 7.409, WTO Doc. WT/DS401/R (adopted Jun. 18, 2014).

Panel Report, United States — Measures Affecting the Production and Sale of Clove
Cigarettes, WTO Doc. WT/DS406/R (adopted April 24, 2012).

Panel Report, Brazil — Certain Measures Concerning Taxation and Charges, ¶ 7.570 and
7.583, WTO Doc. WT/DS472/R (adopted Jan. 11, 2019).

Panel Report, European Communities — Measures Affecting Asbestos and Products

Containing Asbestos, ¶8.177-178, WTO Doc. WT/DS135/R (adopted Apr. 5, 2001).
v
 STATEMENT OF FACTS

BACKGROUND

There was a general public denouncement by the community of Winterfell of the cruel and
inhumane methods of extracting bear bile for medicinal purposes. Following the same,
Winterfell imposed a temporary and selective ban on importation and marketing of medicinal
products made from bears in 2005. The ban was extended several times until 2017, when
Winterfell decided to make it permanent to protect the morals of the citizens of Winterfell.
Since, it was extremely difficult and likely inaccurate to monitor effectively whether
particular bears were treated inhumanely, Winterfell decided to impose a general ban on all
medicinal products made from bears.

ADOPTED MEASURE AT ISSUE

While a ban was imposed for all medicinal products made from bears, several key exceptions
were carved out by Winterfell to maintain a balance. These are:

 IC Exception: indigenous communities such as Baratheon, whose survival depends

on bear bile harvesting, were allowed to use bear products for themselves.
 RRM Exception: products made from bar, solely for the purposes of research and
resource management were allowed. However, such products can be placed only on
non-profit basis and in a non-commercial quantity.
 Traveler Exception: products brought in by travelers for their own use, but in a non-
commercial quantity.

CONCERNS RAISED BY DORNE & CASTERLY ROCK

Both Dorne and Casterly Rock thrive on largest bear bile producing industries in the world.
They have alleged that the measure prohibiting medicinal products made from bile is WTO
inconsistent. In particular, they have alleged that the measure is discriminatory and trade
restrictive. Further, that the public concerns raised by citizens of Winterfell are not moral
concerns, to be justified under Article XX of GATT.

PANEL REQUEST TO SET-UP DISPUTE SETTLEMENT BODY

The consultations between the parties failed to resolve the dispute. Thereafter, Dorne and
Casterly Rock have requested establishment of Pane.
vi
 MEASURES AT ISSUE

WHETHER THE LEGISLATIVE SCHEME ADOPTED BY WINTERFELL TO BAN THE

IMPORTATION AND MARKETING OF MEDICINAL PRODUCTS MADE FROM BEAR BILE,

ADOPTED WITH THE VIEW TO PROTECTING THE MORALS OF CITIZENS, IS JUSTIFIED

UNDER ARTICLE XX(A) OF THE GATT 1994?

II

WHETHER THE LEGISLATIVE SCHEME ADOPTED BY WINTERFELL TO BAN THE

IMPORTATION AND MARKETING OF MEDICINAL PRODUCTS MADE FROM BEAR BILE IS

ADOPTED WITH THE VIEW TO AND WITH THE EFFECT OF ACCORDING LESS FAVOURABLE

TREATMENT TO IMPORTED PRODUCTS, IN VIOLATION OF ARTICLE 2.1 OF THE TBT

AGREEMENT?

III

WHETHER THE LEGISLATIVE SCHEME ADOPTED BY WINTERFELL TO BAN THE

IMPORTATION AND MARKETING OF MEDICINAL PRODUCTS MADE FROM BEAR BILE IS

ADOPTED WITH THE VIEW TO AND WITH THE EFFECT OF CREATING UNNECESSARY

OBSTACLES TO INTERNATIONAL TRADE, IN VIOLATION OF ARTICLE 2.2 OF THE TBT

AGREEMENT?

vii
 SUMMARY OF PLEADINGS

The measure adopted by Winterfell is justified under Article XX(a) because, it is sufficiently
covered by sub-paragraph (a) and satisfies the chapeau test of Article XX. The measure has
been designed in such a manner that it is necessary to protect public morals. The alternative
measure does not contribute to the desired objective and imposes undue burden on the
complainant. Moreover, the measure satisfies the requirements that it is not arbitrary or
unjustifiable and does not poses a disguised restriction on trade. Thus, it is justified by Article
XX of GATT 1994.

II

The measure adopted by Winterfell is not violative of Article 2.1 of the TBT agreement
because, first, it is a technical regulation; second, the products, which means the generally
banned products and excepted products, are not like products; third, though there is a
detrimental effect on the import of products, the same is justified because, they are not like
products and the distinction between the products is legitimate regulatory distinction, which
has been justified by the Respondents using design, revealing structure, etc. of the measure
and calibration test.

III

The measure adopted by Winterfell is not more trade restrictive than necessary under Article
2.2 of the TBT agreement because it follows a legitimate objective of public morality; it is
not more trade restrictive than necessary because it does not have a bearing on the
competitive opportunities; and in light of the nature of risks involves and the gravity of
consequences of non-fulfilment, the alternative proposed by the complainant, although is less
trade restrictive, but falls short of fulfilling the desired objective.

viii
 LEGAL PLEADINGS

1. THE LEGISLATIVE SCHEME ADOPTED BY WINTERFELL TO BAN THE IMPORTATION

AND MARKETING OF MEDICINAL PRODUCTS MADE FROM BEAR BILE, ADOPTED WITH

THE VIEW TO PROTECTING THE MORALS OF CITIZENS, IS JUSTIFIED UNDER ARTICLE

XX(A) OF THE GATT 1994.

Article XX of the GATT exempts actions from being deemed WTO violations for various
domestic policy goals, including subparagraph (a) which refers to the protection of public
morals.1

The Appellate Body ruled in Brazil — Retreaded Tyres that the evaluation of a measure under
Article XX is two-tiered.2 A Panel must first determine whether a measure is covered by one
of the exceptions stated in Article XX’s numerous sub-paragraphs. Following that, a Panel
must determine whether the proposed measure meets the standards of Article XX’s chapeau. 3
Both components of the two-tiered test must be fulfilled for an Article XX defense to
prevail.4

The adopted measure falls under Article XX(a) of GATT 1994.

In determining the objective of the measure, a panel must consider not only the respondent’s
characterization of its objective but also evidence such as the wording of relevant regulations,
legislative history, and the ‘structure and operation’ of the measure.5

The Panel in US–Gambling defined the term Public Morals as:

“The term ‘public morals’ denotes standards of right and wrong conduct maintained by or on
behalf of a community or nation’ … ‘the content of these concepts for Members can vary in
time and space, depending upon a range of factors, including prevailing social, cultural,

1
GATT 1994: General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement
Establishing the World Trade Organization, Annex 1A, art. XX, 1867 U.N.T.S. 187 (1994).
2
Appellate Body Report, Brazil — Measures Affecting Imports of Retreaded Tyres, ¶ 139, WTO Doc.
WT/DS332/AB/R (adopted Dec. 17, 2007).
3
Id.
4
Appellate Body Report, Brazil – Retreaded Tyres, supra note 2, ¶ 139.
5
Appellate Body Reports, European Communities — Measures Prohibiting the Importation and Marketing of
Seal Products, ¶ 5.144, WTO Doc. WT/DS401/AB/R (adopted Jun. 18, 2014).
1
 ethical and religious values’ … Members, in applying this and other similar societal
concepts, ‘should be given some scope to define and apply for themselves the concepts of
‘public morals’ … in their respective territories, according to their own systems and scales of
values’.”6

The Panel adopted the same definition in China–Publications and Audiovisual Products, in
context of Article XX, and thereafter, in EC–Seal Products in context of Article XX(a).7 The
Panel in former case also admitted that, public morals rank among the most important values
or interests pursued by Members as a matter of public policy.8

In the present case, the ban on importation and marketing has been adopted as a result of the
general public denouncement of the inhumane methods used to extract bear bile. The
legislative history evidences that the ban has been there since 2005, extending till 2017, when
it was decided to make it permanent. Thus, the measure has been adopted to protect the
morals of the citizens of respondent country by shielding them from products made through
such inhumane treatment.

The measure is justified under Article XX(a) of GATT 1994.

In Colombia–Textiles, the Appellate Body held that an analysis of measure falling under
Article XX(a) involves a two-tier test. First, the measure must be “designed” to protect
public morals, and second, the measure must be “necessary” to protect public morals.

Design of the measure protects public morals:

The measure is designed to protect public morals when there is a relationship between the
measure and the protection of public morals. It means that the measure must not be incapable
of protecting public morals.9 To establish such a relationship, the Panel examines the content,
structure, and expected operation of the measure at issue.10
6
Panel Report, China — Measures Affecting Trading Rights and Distribution Services for Certain Publications
and Audiovisual Entertainment Products, ¶7.759, WTO Doc. WT/DS363/R (adopted Jan. 19, 2010).
7
Panel Reports, European Communities — Measures Prohibiting the Importation and Marketing of Seal
Products, ¶ 7.409, WTO Doc. WT/DS401/R (adopted Jun. 18, 2014).
8
Panel Report, China - Publications and Audiovisual Products, supra note 6, ¶7.187.
9
Panel Report, Brazil — Certain Measures Concerning Taxation and Charges, ¶ 7.570 and 7.583, WTO Doc.
WT/DS472/R (adopted Jan. 11, 2019).
10
Appellate Body Reports, Colombia — Measures Relating to the Importation of Textiles, Apparel and
Footwear, ¶ 5.67-5.70, WTO Doc. WT/DS461/AB/R (adopted Jun. 22, 2016).
2
The very fact that the measure has been adopted in light of the general public denouncement
of the inhumane methods of bile extraction, proves that the measure traces its roots to public
morals. Moreover, the measure is not incapable of contributing to public morality, because it
aims to shield the population from products made through inhumane treatment.

Necessity Analysis:

The Appellate Body has explained that a necessity analysis involves a process of ‘weighing
and balancing’ a number of factors, such as, the societal interest at stake, the contribution of
the measure to the objective it pursues (through qualitative and quantitative assessment 11),
and the trade-restrictiveness of the measure.12

In China — Publications and Audiovisual Products, the Appellate Body held that the above
analysis is undertaken for both, the measure sought to be justified as “necessary” and to
possible alternative measures proposed by the complainant.13

The greater the contribution the measure makes, the more likely it is to be categorized as
necessary.14 In US – Tariff Measures, it was asserted by the United States that the measure
may be necessary to protect public morals without being limited to a product which itself
offends public morality.15 The Panel accepted the same, as long as other requirements were
also shown to be fulfilled.16

As has been demonstrated above, the public morals rank amongst the highest of values
pursued by the member as a part of public policy. Moreover, both qualitatively and
quantitively, by banning the importation and marketing of products made from bear bile
extraction, Winterfell is ensuring that the morals of citizens of Winterfell are protected. Thus,
the degree of contribution made by the objective is higher. Since, the contribution is higher, it
can be accepted that the measure is necessary.

11
Appellate Body Reports, EC–Seal Products, supra note 5, ¶ 5.169, 5.215, 5.221.
12
Appellate Body Reports, Colombia – Textiles, supra note 10, ¶ 5.67-5.70.
13
Appellate Body Report, China — Measures Affecting Trading Rights and Distribution Services for Certain
Publications and Audiovisual Entertainment Products, ¶239, WTO Doc. WT/DS363/AB/R (adopted Jan. 19,
2010).
14
Appellate Body Report, China – Publications and Audiovisual Products, supra note 13, ¶251-254.
15
Panel Report, United States — Tariff Measures on Certain Goods from China, ¶7.177, WTO Doc.
WT/DS543/R (adopted Sep. 15, 2020).
16
Id. ¶7.178-7.179.
3
This is followed by a comparison of the present measure with the proposed alternative to
determine the last leg of necessity analysis, which is trade restrictiveness of the measure.

Trade restrictiveness of the measure:

The Responding party does not have to bear the burden of identifying the universe of less
trade restrictive measures and then prove that none of the identified measures achieve the
desired objectives.17 In the case of China — Publications and Audiovisual Products, the
Panel analysed the restrictive effect of the proposed alternative, the contribution of such
alternative to the desired objective and weighed these factors together with the interest at
stake and China’s desired high level of protection.18

The Appellate Body has ruled that an alternative measure is said to be not reasonably
available, when the alternative measure imposes undue burden on the responding member,
19
such as prohibitive costs or substantial technical difficulties. The Panel itself
admitted in EC — Seal Products, that

“even the most stringent certification system would be difficult to implement and enforce, and
would lead to increased numbers of inhumanely killed seals. The Panel further considered
that making the welfare standards or the certification and labelling requirements more
lenient would make the alternative measure more reasonably available but would not
meaningfully contribute to addressing EU public moral concerns regarding seal welfare.”20

If a responding party demonstrates that the alternative measure is not reasonably available, in
light of the societal interests being pursued and the party’s desired level of protection, then it
follows that the challenged measure must be necessary.21

The alternative proposed by the Complainants which is, labelling the products based on
whether the animal welfare standards have been met or not does not contribute to the desired
objective and imposes undue burden on the Respondent.

It does not contribute to the desired objective because, the alternative does not propose that
Respondent should only allow products which meets the animal welfare standards. Thus, both
17
Appellate Body Report, United States — Measures Affecting the Cross-Border Supply of Gambling and
Betting Services, ¶309-311, WTO Doc. WT/DS285/AB/R (adopted Apr. 20, 2005).
18
Appellate Body Report, China – Publications and Audiovisual Products, supra note 13, ¶246.
19
Appellate Body Reports, Colombia – Textiles, supra note 10, ¶ 5.71-5.74.
20
Appellate Body Reports, EC – Seal Products, supra note 5, ¶ 5.279.
21
Appellate Body Report, China – Publications and Audiovisual Products, supra note 13, ¶319.
4
humanely and inhumanely treated animal products will enter the market. It means that by the
time the product will enter the market, the bear would have been treated cruelly and
inhumanely. Moreover, labels do not act sufficiently to discourage use of bear bile in
products.

Secondly, the labeling requirements adds undue burden on the Respondent because to rely on
the labelling of the product, Respondent will have to establish certification agencies to
certify the genuineness of the labels before they enter the market. This will require huge
costs and undue burden on the Respondent in form of prohibitive costs and substantial
technical difficulties.

Therefore, the alternative does not contribute meaningfully to the desired objective and
imposes undue burden on the Respondent. Thus, Article XX(a) of the GATT recognizes
Winterfell’s right to pursue legitimate policy objectives, such as public morality because it is
indeed necessary.

Second Leg of Article XX, the Chapeau Test:

The final step in an Article XX defence involves establishing that the challenged measure
complies with the chapeau to Article XX. Article XX’s chapeau adds that the measure’s
implementation must not be a “disguised constraint on international trade” or a “means of
arbitrary or unlawful discrimination.”22

The three-tier test of the chapeau of Article XX laid down in US – Shrimp, provides that
first, the application of measure must result in discrimination; second, the discrimination
must be arbitrary or unjustifiable; and third, the discrimination must occur between countries
where same conditions prevail.23 Moreover, disguised restriction may be read as restrictions
resulting in arbitrary or disguised discrimination, under the guise of general exception.
Therefore, same considerations may be taken into account to determine both.24

First, there exists a discrimination in the existing provision, whereby certain exceptions
have been carved out to allow products made from such bear bile extraction. Therefore, there
is existence of discrimination.
22
GATT 1994, supra note 1, art. XX.
23
Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, ¶ 150,
WTO Doc. WT/DS58/AB/R (adopted Nov. 6, 1998).
24
Appellate Body Report, United States — Standards for Reformulated and Conventional Gasoline, ¶25, WTO
Doc. WT/DS2/AB/R (adopted May 20, 1996).
5
Second, the discrimination must be arbitrary or unjustifiable. Arbitrary or unjustifiable
discrimination arises, when the discrimination bears no rational nexus with the objective
falling under one of the sub-paragraphs of Article XX, or would go against the objective. 25 In
EC — Seal Products, the Appellate Body decided that establishing whether discrimination is
unjustifiable is based on the quantifiable effect of the discrimination on the accomplishment
of the measure’s objective.26

In the present case, the distinction made between products made from bears and otherwise,
the exceptions are not arbitrary or unjustifiable. The IC exception prohibits
commercialization of products made from bile production for the sole motive of earning
profits, however, where the survival and livelihood of the communities depends on such
activity, it may be allowed amongst themselves. Additionally, it becomes pertinent to balance
the interest of all the groups within the society.

The RRM Exception and Travelers exception allows such products as long as they are non-
commercial uses. It must be noted that research and resource management occupies a
significant value for the scientific development of the country, and thus, has been allowed on
a non-profit basis.

Since, these exceptions have been allowed on a non-profit and non-commercial basis, they do
not promote profitization of the inhumane treatment meted out to bears, against the morals of
the citizens of Winterfell. Thus, the measure satisfies the chapeau test of Article XX.

It is pertinent to note that, until the Complainant, in their rebuttal to invocation of Article XX,
has sufficiently backed their arguments with evidence, the Respondent is not required to
prove them incorrect.27

2. THE LEGISLATIVE SCHEME ADOPTED BY WINTERFELL TO BAN THE IMPORTATION

AND MARKETING OF MEDICINAL PRODUCTS MADE FROM BEAR BILE IS NOT IN

VIOLATION OF ARTICLE 2.1 OF THE TBT AGREEMENT.

25
Appellate Body Reports, Brazil–Retreaded Tyres, supra note 2, ¶ 227.
26
Appellate Body Reports, EC–Seal Products, supra note 5, ¶ 5.298.
27
Panel Report, European Communities — Measures Affecting Asbestos and Products Containing Asbestos,
¶8.177-178, WTO Doc. WT/DS135/R (adopted Apr. 5, 2001).
6
Article 2.1 of the TBT Agreement contains national treatment and most-favoured nation
treatment obligations.28

In order to establish an inconsistency with Article 2.1, three elements must be demonstrated.
These are: first, that the measure at issue constitutes a technical regulation, as defined under
Annex 1.1; second, the products in question must be like products; third, the treatment
accorded to imported products must be less favourable than like domestic products and like
products from other countries. 29 The burden of proving these lies on the Complainant. 30

The measure is a Technical Regulation

Annex 1.1 of the TBT agreement defines technical regulation as:

“Document which lays down product characteristics or their related processes and
production methods, including the applicable administrative provisions, with which
compliance is mandatory. It may also include or deal exclusively with terminology, symbols,
packaging, marking or labelling requirements as they apply to a product, process or
production method.”

To be called as technical regulation, the measure must identify a product, and the measure
must relate to the process or production methods related to the product and compliance with
the measure must be mandatory.

In the present case, the measure has been adopted for products made from bears, in relation to
the process of bile extraction from bears, and a general and mandatory ban has been imposed
on importation and marketing of products made from such bile extraction. Thus, the measure
is a technical regulation.

The products are not Like Products

28
Agreement on Technical Barriers to Trade, Jan. 1, 1995, Marrakesh Agreement Establishing the World Trade
Organization, Annex 1A, art. 2.1, 1868 U.N.T.S. 120; Appellate Body Report, US – Clove Cigarettes, ¶87.
29
Appellate Body Report, United States — Measures Concerning the Importation, Marketing and Sale of Tuna
and Tuna Products, ¶202, WTO Doc. WT/DS381/AB/R (adopted Jun. 13, 2012).
30
Appellate Body Report, US – Tuna II (Mexico), supra note 29, ¶ 216.
7
In Canada — Periodicals, the Appellate Body laid down the proper test for determination of
“like products” for the purposes of Article III:2, by examining relevant factors including 31:
the product’s end-uses in a given market; consumers’ tastes and habits; and the product’s
properties, nature and quality.32 In EC — Asbestos, the Appellate Body stressed the need for
an assessment utilising “an unavoidable element of individual, discretionary judgment” to be
made on a case-by-case basis.33

It was laid down in US—Tuna II (Mexico), that so long as similarities and differences can be
identified between the provisions, the jurisprudence developed in the context of one
agreement, can be relied on, for purposes of conducting an analysis under the other.34

The Appellate Body emphasized the importance of considering consumers’ tastes and habits
which, they said, are more comprehensively termed consumers’ perceptions and behaviour in
assessing “likeness.”35 Moreover, the underlying regulatory concerns, for instance, the public
morality concerns, may be relevant in determining likeness, to the extent that they have an
impact on the competitive relationship between the products concerned.36

Therefore, after importing the definition and jurisprudence of likeness into TBT Agreement,
it can be said that the products falling under the general ban, which includes imported
products and products falling under the exceptions are not like products.

The end uses of both the category of products are different. For instance, the products falling
under the category of IC exception have since long been used by the indigenous communities
for their own survival because of the medicinal properties present in the product. The ones
falling under RRM exception is for scientific development and the one falling under traveler
exception is for their own consumption. In contrast to this, the products falling under general
ban are used for commercialization and profitization through selling of medicinal products,
including cosmetics and toothpaste which have bile as one of the ingredients.

Moreover, the citizens of Winterfell regard the products made from bear bile and marketed in
their country as cruel and inhumane to bears, which is against their morals. Thus, considering

31
Appellate Body Report, Canada — Certain measures concerning Periodicals, ¶5.21, WTO Doc.
WT/DS31/AB/R (adopted Jul. 30, 1997).
32
Appellate Body Report, Canada — Periodicals, supra note 91, ¶ 5.21.
33
Appellate Body Report, European Communities — Measures Affecting Asbestos and Products Containing
Asbestos, ¶101, WTO Doc. WT/DS135/AB/R (adopted Apr. 5, 2001).
34
Appellate Body Report, US – Tuna II (Mexico), supra note 29, ¶ 7.345 and 7.347.
35
Appellate Body Report, EC—Asbestos, supra note 33, ¶ 101.
36
Appellate Body Report, US – Clove Cigarettes, supra note 28, ¶119.
8
consumers preferences and intended end-uses of the product, the identified products are not
like products.

Less Favorable Treatment

The Appellate Body had observed that, technical regulations are measures that, by their very
nature, establish distinctions between products (according to their characteristics, or related
processes and production methods). Therefore, Article 2.1 should not be read to mean that
any distinctions, in particular ones that are based exclusively on such particular product
characteristics or on particular processes and production methods, would per se constitute
less favorable treatment within the meaning of Article 2.1.37

The determination of whether the imported products are treated less favourably than their like
counterparts would be assessed by examining whether a measure modifies the conditions of
competition in the relevant market to the detriment of imported products. 38 However, if the
respondent is able to prove that where the detrimental effect on imported products arises from
a legitimate regulatory distinction, then the measure would not be inconsistent with Article
2.1.39

In the present case, the respondent submits that the banned products and excepted products
are not like products for examination of less favorable treatment. Even arguendo, the
detrimental effect on the imports of products made from bear arises out of legitimate
regulatory distinctions between the products.

Legitimate Regulatory Distinctions:

In identifying legitimate regulatory distinction, the Panel takes into account various factors
such as design, architecture, revealing structure, operation, and application of the technical
regulation at issue, as well as the features of the market in question.40 The measure must be
designed and applied in a manner such that the application is even handed, and not arbitrary
or unjustifiable.41

37
Appellate Body Reports, US – COOL, supra note 39, ¶ 268.
38
Appellate Body Report, US – Tuna II (Mexico), supra note 29, ¶ 214.
39
Appellate Body Report, US – Tuna II (Mexico), supra note 29, ¶ 216.
40
Appellate Body Report, US – Clove Cigarettes, supra note 28, ¶182.
41
Appellate Body Reports, US – COOL, supra note 39, ¶ 340.
9
In the present case, the design, architecture, revealing structure, operation, and application of
the technical regulation at issue, all of them points towards the fact that the exceptions carved
out under the measure is such that the excepted products (products falling under exception)
do not enter the market. Meaning, that they are allowed on a non-profit and non-commercial
basis.

Therefore, the application of the measure is even-handed and non-arbitrary in the sense that
no products made from bear are allowed to be marketed in the country.

Calibration Test to access legitimacy of Regulatory Distinctions:

Moreover, calibration test may be used to access legitimacy of regulatory distinctions. 42 In

US — Tuna II (Mexico), the Appellate Body explained calibration analysis to entail,

“identification of whether different tuna fishing methods in different areas of the oceans pose
different risks to dolphins” and examining whether, in light of these risks, “the different
treatment created by the relevant regulatory distinction shows that, as between different
groups, the treatment accorded to each group is commensurate with the relevant risks”

Thus, importing the same definition in our context, it would mean identification of different
conditions in different groups, and examining whether in light of the different conditions
prevailing, the different treatment accorded to them is justified.43

The present measure identifies four groups of bear products. These are: generally all
medicinal products made from bile extraction, including products such as toothpaste and
cosmetics which uses bile extracted from bear; bile used by indigenous communities for their
own survival due to its medicinal properties; bile used in research and resource management;
and bile used by travelers for their own consumption because they do not share the same
morals as the citizens of Winterfell does.

Since, different conditions prevail in these different groups, different treatment has been
accorded to them. Depending on the larger objective of public morality, one groups has been
banned and other have been allowed.

42
Appellate Body Report, United States — Measures Concerning the Importation, Marketing and Sale of Tuna
and Tuna Products, ¶6.13, WTO Doc. WT/DS381/AB/RW/USA (adopted Jan. 11, 2019).
43
Id. ¶ 6.63.
10
Therefore, since, the detrimental effect is owed to the legitimate regulatory distinctions, no
less favorable treatment has been accorded to imported products.

3. THE LEGISLATIVE SCHEME ADOPTED BY WINTERFELL TO BAN THE IMPORTATION

AND MARKETING OF MEDICINAL PRODUCTS MADE FROM BEAR BILE IS NOT IN

VIOLATION OF ARTICLE 2.2 OF THE TBT AGREEMENT.

Article 2.2 of the TBT Agreement states that, “Members shall ensure that technical
regulations are not prepared, adopted or applied with a view to or with the effect of creating
unnecessary obstacles to international trade”.44

For a technical regulation to be violative of Article 2.2, the following requirements have to be
proved by the Complainant45: first, the objective pursued by the regulating member is not
legitimate; and second, the measure adopted by the regulating member is more trade
restrictive than necessary.46

Legitimate Objective

The TBT Agreement allows the regulating member, the autonomy to decide the objectives
which they want to pursue, as well as the levels at which they are to be pursued. 47 A technical
regulation, adopted by the member, can have more than one objective. 48 Solely because a
measure adopted by regulating member entails a burden on trade, is not conclusive that the
objective is not legitimate.49

It has further been laid by the WTO Appellate Body that the means used to pursue the
objective cannot call into question their legitimacy. 50 So far, the legitimacy of the objectives
has not been successfully rebutted in WTO.51

44
TBT Agreement, supra note 28, art. 2.2.
45
Panel Report, United States — Measures Affecting the Production and Sale of Clove Cigarettes, ¶7.333, WTO
Doc. WT/DS406/R (adopted Apr. 24, 2012).
46
Panel Report, US — Clove Cigarettes, supra note 47, ¶7.333.
47
TBT Agreement, supra note 1, Preamble.
48
Panel Report, US — Clove Cigarettes, supra note 47, ¶7.342.
49
Appellate Body Report, US – Tuna II (Mexico), supra note 29, ¶338.
50
Appellate Body Report, US – Tuna II (Mexico), supra note 29, ¶335—339.
51
Appellate Body Report, US – Tuna II (Mexico), supra note 29, ¶338.
11
In the present case, the objective pursued by the members is protection of public morality. It
was observed by the Panel in China – Publications and Audiovisual Products, that public
morality ranks amongst the highest of values and interests which a member seeks to protect
as part of its public policy. It was further observed that it is not a coincidence that it has been
ranked as the first justification under Article XX of GATT 1994. Solely, because the adopted
measure detriments imports of products made from bile extraction by countries such as Dorne
and Casterly Rock, cannot call into question the legitimacy of public morality.

Moreover, public morality is to be judged depending on the unique circumstances existing

within the member-country. Solely, because bile production is culturally important for Dorne
and Casterly Rock unlike Winterfell where it is denounced, does not mean that morals of
citizens of Winterfell are not legitimate.

Trade Restrictiveness of the Measure:

An assessment of whether the regulatory measure is more trade restrictive than necessary
involves analysis of, the degree of contribution made by the measure to the legitimate
objective at issue; the trade-restrictiveness of the measure; and the nature of risks at issue and
the gravity of consequences arising from non-fulfilment of the objectives pursued by the
regulating member through the measure.52

Degree of contribution made by the measure:

The degree of contribution required to be fulfilled by the measure does not have to be a
fulfilment of a certain minimum level.53 The term “fulfil” in Article 2.2 of the TBT
Agreement does not have to be complete achievement but some level of contribution to the
legitimate objective sought to be pursued.54 For instance, the Appellate Body reversed Panel’s
finding of inconsistency of COOL measure with Article 2.2 because the Panel had erred in its
reasoning that the COOL measure should have satisfied a minimum certain threshold.55

52
Appellate Body Report, US — Tuna II (Mexico), supra note 29, ¶313, 318, 320; Appellate Body Reports, US
COOL, supra note 39, ¶369, 375.
53
Appellate Body Reports, US — COOL, supra note 39, ¶467—468.
54
Appellate Body Report, US — Tuna II (Mexico), supra note 29, ¶315.
55
Appellate Body Report, US — COOL, supra note 39, ¶468.
12
There is no minimum threshold which has to be fulfilled by the measure seeking to impose
ban on the importation and marketing of products made from bear. Neither, the measure has
to portray complete achievement of satisfaction of public morality.

Further, it is submitted that, level of contribution to satisfaction of public morality cannot be

determined accurately. Therefore, the contribution made by the measure can be assessed by
the very nature of the fact that the ban was the result of general public denouncement. The
ban was made permanent to protect the morality of the citizens by shielding them from
products made from such inhumane treatment.

Trade restrictiveness of the measure:

According to the second, fifth and sixth recitals of the preamble of the TBT Agreement, the
object and purpose of the TBT Agreement is to achieve a balance between trade liberalization
and regulatory autonomy.56 The Appellate Body has held that the technical regulation adopted
by a member would not be inconsistent with Article 2.2 unless it is found to constitute an
“unnecessary obstacle to international trade”.57

The Panel and Appellate Body have interpreted the term “trade restrictiveness” to mean
having a “limiting effect on international trade”. 58 Moreover, a difference in conditions of
competition, without a consequent limiting effect would not amount to trade restrictiveness. 59
Further, it has been claimed that a non-discriminatory internal measure that affects the sales
of both domestic and imported products, does not have a bearing on the competitive
opportunity so as to become unfavorable to imported products as against their domestic
counterparts.60

Since, the measure at issue does not discriminate between imported and domestic products
made from bear bile, the issue is a non-discriminatory internal measure that affects the sale of
all products made from bear bile, which are marketed for commercial profitable purposes,
irrespective of their source of origin, whether domestic or imported.

56
TBT Agreement, supra note 28, Preamble.
57
Appellate Body Report, US — Tuna II (Mexico), supra note 29, ¶338.
58
Panel Report, Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other
Plain Packaging Requirements Applicable to Tobacco Products and Packaging, ¶7.1072, WTO Doc.
WT/DS435/R; WT/DS441/R; WT/DS458/R; WT/DS467/R (adopted Aug. 27, 2018).
59
Panel Report, Australia — Tobacco Plain Packaging, supra note 61, ¶7.1166.
60
Voon, Exploring the Meaning of Trade—Restrictiveness in the WTO, 14(3) WORLD TRADE REVIEW, 451–477,
477 (2015).
13
The measure at issue is therefore, a non-discriminatory internal measure that affects the sales
of both domestic and imported products. It does not have a bearing on the competitive
opportunity so as to become unfavorable to imported products as against their domestic
counterparts. Since there is no effect on the competitive opportunity, the measure is not trade
restrictive.

Nature of risks at issue and the gravity of consequences arising from non-fulfilment of
the objectives:

Taking account of the nature of the risks involved, the Appellate Body has held that a
comparison with the reasonably available alternative measure is helpful to determine whether
the measure at issue is more trade restrictive than necessary.61 It was further clarified that, the
assessment of risks may be made by taking consideration of factors like, “available scientific
and technical information, related processing technology, intended end use of the product”,
etc.62

When the risks of non-fulfilment of an objective are high, then choosing an alternative
proposed by the Complainant, which do not achieve the chosen level of protection could be
risky.63 Thus, the alternatives proposed by the Complainant should not only be less trade-
restrictive than the measure at issue, but also make an equivalent contribution to the
objectives while being reasonably available.64

It was observed in US — COOL, that Complainant are required to provide sufficient

explanation of the implementation of proposed alternative along with the assessment of other
factors, in light of the risk of non-fulfilment of the objective.65

In the present case, the nature of risk is non-protection of the morality of citizens of
Winterfell. If the products are allowed to be imported and marketed against the general
denouncement of public, it poses huge risks to the public policy of Winterfell. It not only puts
at risk the social and public order, but can also lead to political instability within the country,

61
Appellate Body Report, US — Tuna II (Mexico), supra note 29, ¶321.
62
Appellate Body Report, US — Tuna II (Mexico), supra note 29, ¶321.
63
Ishikawa, Plain Packaging Requirements and Article 2.2 of the TBT Agreement, CHINESE (TAIWAN)
YEARBOOK OF INTERNATIONAL LAW AND AFFAIRS pp. 39 (2014); Donald H. Regan, The Meaning of
‘Necessary’ in GATT Article XX and GATS Article XIV: The Myth of Cost—Benefit Balancing, 6 WORLD TRADE
REV, 347, 352 (2007).
64
Panel Report, Australia — Tobacco Plain Packaging, supra note 61, ¶7.1528.
65
Appellate Body Reports, US — COOL, supra note 39, ¶469.
14
leading to a situation of civil war. In light of the huge risks which non-fulfilment of the
objective proposes, the alternative proposed should not only be less trade restrictive, but also
able to achieve the desired high level of compliance with public morality principles of
Winterfell.

In the present case, the alternative proposed by the Complainants which is, labelling the
products based on whether the animal welfare standards have been met or not, even though is
less trade restrictive, but does not contribute to the desired objective and imposes undue
burden on the Respondent.

It does not contribute to the desired objective because, the alternative does not propose that
Respondent should only allow products which meets the animal welfare standards. Thus, the
complainants have failed to provide sufficient explanation of the implementation of proposed
alternative.

It means that both humanely and inhumanely treated animal products will enter the market,
which implies that by the time the product will enter the market, the bear would have been
treated cruelly and inhumanely. Moreover, labels do not act sufficiently to discourage use of
bear bile in products.

Secondly, the labeling requirements adds undue burden on the Respondent because to rely on
the labelling of the product, Respondent will have to establish certification agencies to certify
the genuineness of the labels before they enter the market. This will require huge costs and
undue burden on the Respondent in form of prohibitive costs and substantial technical
difficulties.

Therefore, the alternative does not contribute meaningfully to the desired objective and
imposes undue burden on the Respondent. Therefore, in light of the nature of risks involved,
and the gravity of consequences arising from non-fulfilment of the objective, the alternative
provided by the complainant fails. The measure adopted by Respondents is therefore, not
more trade restrictive than necessary. Thus, the measure is not violative of Article 2.2 of the
TBT Agreement.

15
 REQUEST FOR FINDINGS

Wherefore in light of the measures at issue, legal pleadings, reasons given and authorities
cited, Winterfell, the Respondent, respectfully requests the Panel to DECLARE that:

1. Through the ban on importation and marketing of medicinal products made from bears,
Winterfell seeks to protect the morals of its citizens, thereby justifying the measure
under Article XX(a) of the GATT 1994.

2. Through the adopted legislative scheme, Winterfell does not subject like imported
products to a less favorable treatment, in violation of Article 2.1 of the TBT
Agreement.

3. Through the adopted legislative scheme, Winterfell adopts a technical regulation which
is not in violation of Article 2.2 of TBT Agreement.

All of which is respectfully affirmed and submitted.

Agent for the Government of Winterfell

(Respondent)

16