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US Blocks Indian Compliance Panel Request
The article below was published in South-North Development Monitor (SUNS) #8447,
21 April 2017.
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131 Jalan Macalister
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US blocks Indian compliance panel request
Published in SUNS #8447 dated 21 April 2017
Geneva, 20 Apr (D. Ravi Kanth) - The United States has continued to adopt its
classical policy of double-standards by blocking a first-time request from
India for establishing a compliance panel at the World Trade Organization on 19
April for determining whether New Delhi's implementation measures for removing
the Avian Influenza restrictions on American poultry and poultry products
complied with the recommendations of the Dispute Settlement Body.
[Reference will be automatic, the next time India makes a request. SUNS]
At the Dispute Settlement Body (DSB) meeting on 19 April, India presented its
first request for establishing a compliance panel under Article 21.5 of the
Dispute Settlement Understanding (DSU) against its own implementation measures
after the US refused to accept the measures India undertook as per the DSB
rulings and recommendations.
India provided a detailed account of the steps and measures it undertook since
the adoption of the DSB's recommendations on 19 June 2015 by notifying the
draft amendment to the SPS Committee on 20 April 2016.
The reasonable period of time for India to implement the DSB's recommendations
ended on 19 April 2016.
However, for a day's delay, and without proper legal justification, the US
sought an authorization from the WTO Dispute Settlement Body for trade
retaliatory measures by imposing additional duties on Indian goods to the tune
of US$450 million.
Washington also refused to enter into any sequencing agreement under which the
two parties could proceed during the compliance phase and how they would
approach a compliance panel if there is any disagreement on the implementation
measures in accordance with the DSB's recommendations.
India said it notified the DSB on 18 July 2016 that it had adopted measures
necessary to comply with the recommendations of the DSB.
Subsequently, India said it "entered into bilateral negotiations with the
US so as to address the concerns, if any."
Thereafter, India said it amended its notification S.O. 2337 (E) vide
notification S.O. 2998 (E) and notification S.O.510 (E), and also provided more
information to the US pursuant to Article 5.8 of the SPS Agreement.
The "revised Influenza measures," according to India, "complies
with the recommendations of the DSB in the dispute."
The measures include:
* India allows imports of poultry and poultry products into India in accordance
with the relevant international standard, i.e. the OIE Terrestrial Animal
Health Code ("Terrestrial Code");
* India recognizes the concept of areas of low disease prevalence and
disease-free areas; and
* India provides for the process to be followed for recognition of such
disease-free areas and areas of low disease prevalence, in accordance with the
SPS Agreement and the OIE Terrestrial Code.
Against this backdrop, India said it "strongly considers that it has
complied with the recommendations of the DSB by bringing its measures into
conformity with its WTO obligations and addressed all the concerns raised
during the bilateral discussions by the United States."
Despite clarifying all the relevant measures adopted by India during the
bilateral meetings, the US adopted an inflexible position by not entering into
a sequencing agreement "which would have provided the United States with
an option to approach the compliance panel," India said.
"Moreover, despite India's sincere effort to resolve this issue
bilaterally, till date, the United States has not accepted India's request to
suspend the Article 22.6 proceeding in this dispute [the arbitration
proceedings]," India maintained.
India said it is left with no other option but to proceed with its request
under Article 21.5 of the DSU to establish that it has complied with the
recommendations and rulings of the DSB. India also requested that "the DSB
refer the matter to the original panel, if possible."
In response, the US stuck to its belligerently unilateral position, insisting
that India has no basis for asserting compliance with the WTO ruling.
The US said India continues to maintain a complete ban on US poultry and other
agricultural products. It maintained, without any evidence, that "the
inconsistencies" continue unabated.
The US also threatened that the compliance panel proceedings would not lead to
a prompt resolution of the dispute, claiming that it made concrete proposals to
resolve the dispute but it has not received any response, according to
participants present at the meeting.
Several countries - Brazil, the European Union, Colombia, Canada, and Australia
among others - sharply disagreed with the US stance of proceeding to
arbitration proceedings based on false claims and without addressing the issue
through a compliance panel.
Brazil said the correct path is to approach to address differences through a
compliance panel, maintaining that the drafters of the WTO's DSU did not
envisage a scenario where members seek retaliatory measures parallel to, even
ahead of, proceedings to address disagreements over compliance.
The EU maintained that suspension of concessions/arbitration proceedings must
follow compliance proceedings.
The US double-standards in complying with the WTO rulings is exposed time and
time again in almost every case, said a legal diplomat who asked not to be
quoted. "The US has made a mockery of the DSU and created lawlessness by
flouting the provisions of the internationally agreed trade rules," the
In the tuna dispute with Mexico, which started nine years ago, in 2008, the US
lost the case at every stage and failed to comply with the Dispute Settlement
Body recommendations time and time again.
The US also blocked Mexico's authorization for trade retaliatory measures on 10
March 2016 and then issued an interim final rule based on which it sought a
The US went on to say on 22 April 2016 that the DSB "cannot give
authorization to suspend concessions in any amount where the Member concerned
has come into compliance."
It argued that the US request for a compliance panel is to determine whether
the interim final rule issued by Washington complied with the DSB
But, when it came to India on the revised Avian Influenza measures that New
Delhi implemented following the loss it suffered at the Appellate Body in 2015,
the US demanded a different set of rules, different from what it sought in the
In effect, the US not only violates global trade rules but also "fails to
treat others the same way it wants them to treat it," the diplomat said.