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Dear Adarsh, the present dispute DS 430 itself provides for such a scenario. In this dispute, India argued that it has not conducted a risk assessment. Thus it was concluded that India's measures were inconsistent with Article 5.1 and Article 5.2 of the SPS Agreement. However India provided many scientific articles which in the opinion of India established the rationale behind the SPS measure and the disease. The AB found fault with the Panel for not analyzing the evidence provided by India. Thus theoretically to me, the presumption under Article 2.2 can be rebutted.
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Dear Adarsh, coming to your question, my understanding subject to correction is that if the OIE Code is considered a reference under Article 31(2)(a) and (b) of VCLT, then it would form a question of law. Of course the AB has disagreed, so the above proposition may not happen.
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Dear Mr. Hoogh, thanks for your comments but i would beg to differ. The reference to international standards as developed by the OIE in the SPS Agreement is clear and unambiguous in Annex (A)(3) of the SPS Agreement. This reference in the Annex to me puts the international standards developed by the three organizations as referred in Annex (A)(3) of the SPS Agreement on a different pedestal.
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Adarsh, I partially agree and partially disagree. At the outset, the finding of the AB with respect to violation of Article 2.2 in Australia- Apples was on account of the fact that the respondent did not raised any argument or provided any evidence pursuant to Article 2.2 and its entire defense was based on Article 5.1 of the SPS Agreement. Since there was a violation of Article 5.1 and as no evidence was provided under Article 2.2, the AB also found a violation of Article 2.2. Thus the accepted jurisprudence and which has been affirmed in this dispute is that a violation of Article 5.1 of the SPS Agreement would only lead to presumption of violation of Article 2.2 of the SPS Agreement but which is rebuttable. However some of the observation by the AB is abstract and may lead to diluting the accepted jurisprudence as mentioned above. For e.g. the the AB in footnote 305 observes that if a SPS measure is inconsistent with Article 5.1 for reasons relating to scientific basis underlying the risk assessment, it would be difficult for the member to establish that the SPS measure is still consistent with Article 2.2 of the SPS Agreement. However this observation in my opinion, does not completely gels with the established jurisprudence. If the presumption is rebuttable then it means that even if the respondent country does not comply with the requirement of risk assessment under Article 5.1, it may based upon the evidence can establish the consistency of its SPS measure with Article 2.2. Thus i am not sure how a violation of Article 5.1 would lead to a situation wherein it would be more difficult for the respondent country to establish the consistency of its SPS measure with Article 2.2 of the SPS Agreement.
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Hi Adarsh, nice to read your post. Just to clarify, the argument of India was not that the OIE Code should be interpreted as a treaty pursuant to Article 3.2 of DSU. The argument of India was that the OIE Code (chapter 10.4) forms the relevant context [Article 31(2)(a) and (b) of VCLT] for interpreting Article 3.1 and Article 3.2 of the SPS Agreement as they are the relevant international standard as referred in Annex 1 of the SPS Agreement. Thus in order to effectively interpret Article 3.1 and 3.2 of the SPS Agreement, its relevant context, i.e. Chapter 10.4 of the OIE Code has to be interpreted in accordance with Article 3.2 of the DSU. In my opinion and subject to correction, the above argument is more of a question of law than a question of fact. However i don't think, the AB has not properly addressed this issue. Ashish Chandra Disclaimer- I was part of the legal team which represented India before the AB in this appeal.
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Jul 2, 2015