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Pigs, African Swine Fever and the Principle of Regionalisation: Comments on the Appellate Body Report in the Russia – Pigs Dispute

Published online by Cambridge University Press:  22 March 2018

Alessandra ARCURI  and
Lukasz GRUSZCZYNSKI
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Abstract

This commentary examines the recent Appellate Body Report in Russia – Pigs. This case is salient because it offers further clarification of the principle of regionalisation in the context of WTO law. By reading the different terms of Article 6 of the SPS Agreement in a holistic way, the Appellate Body has offered an interpretation of the legal text that arguably strengthens the principle.

Type
Reports
Information
European Journal of Risk Regulation , Volume 9 , Special Issue 1: Special Issue on Judge-Made Risk Regulation and Tort Law , March 2018 , pp. 137 - 145
Copyright
© Cambridge University Press 

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Footnotes

*

Alessandra Arcuri is an Associate Professor at the Erasmus School of Law (ESL); Lukasz Gruszczynski is an Associate Professor at the Institute of Law Studies of the Polish Academy of Sciences (Warsaw, Poland); Research Fellow at the HAS Centre for Social Sciences Institute for Legal Studies and International Chair at the National University of Public Service (Budapest, Hungary). The authors would like to thank the anonymous EJRR reviewer as well as the participants of the Symposium on EU – Russia Trade Law and Policy Relations, organised by MGIMO/ESI and the Diplomatic Academy in Vienna for helpful comments on an earlier draft of this paper. Dr Arcuri acknowledges the support of the Erasmus + Jean Monnet Network for a collaborative project on “WTO and EU-Russia Cooperation: Legal and Economic Aspects”, generously funded by the European Commission.

References

1 Appellate Body Report, Russian Federation – Measures on the Importation of Live Pigs, Pork and Other Pig Products from the European Union, WT/DS475/AB/R, 23 February 2017 (Russia – Pigs).

2 See also E Besedina and T Coupe, Beggar Thy Neighbor? Application of SPS measures by the Russian Federation, NUPI Working Paper 840 (arguing that SPS measures are used as means to exert political and economic pressure on the Russian trading partners).

3 Committee on Sanitary and Phytosanitary Measures, Summary of the Meeting of 13–14 July 2017. Note by the Secretariat, G/SPS/R/87.

4 For the economic assessment of trade sanctions imposed by the EU and countersanctions, see D Gros and M Di Salvo, Revisiting Sanctions on Russia and Counter-Sanctions on the EU: The economic impact three years later, CEPS Commentary, 13 July 2017, available at <bit.ly/2hXi0hc>, accessed 15 December 2017.

5 Russian Food and Agricultural Import Ban (Cornhusker Economics, 5 April 2017), available at <bit.ly/2AiTlc6>, accessed 15 December 2017.

6 ibid. In this context, it is worth noting that a number of disputes against Russia over its technical barriers to trade are currently pending in the WTO (all of them still at the consultation stage). This particularly includes: Russian Federation – Recycling Fee on Motor Vehicles, DS463 (complaint by Japan); Russia – Measures Affecting the Importation of Railway Equipment and Parts Thereof, DS499 (complaint by Ukraine); and Russia – Measures Concerning the Importation and Transit of Certain Ukrainian Products, DS532 (complaint by Ukraine).

7 Panel Report, Russian Federation – Measures on the Importation of Live Pigs, Pork and Other Pig Products from the European Union, WT/DS475/R, 19 August 2016, para. 2.1; the panel referred in this context to the OIE General Disease Information Sheets: African Swine Fever (ASF Disease Information Sheet) (Exhibits RUS-4 and RUS-171), available at <www.oie.int/fileadmin/Home/eng/Media_Center/docs/pdf/Disease_cards/ASF-EN.pdf>, accessed 15 December 2017.

8 Cf Panel Report, Russia – Pigs, supra, note 7, para. 7.37.

9 See Salas, B, “Questions Raised in the Aftermath of the African Swine Fever Outbreak in the EU” (2014) 2 EJRR 218 Google Scholar at 218.

10 The delay was caused by the resignation of two members of the panel (and the subsequent need to reappoint new panellists) and the complexity of the dispute (eg the panel decided to appoint several scientific experts to advise it on technical aspects of the Russian measures).

11 See respectively, Russian Federation – measures on the importation of live pigs, pork and other pig products from the European Union, Recourse to Article 22.2 of the DSU by the European Union, WT/DS475/17, 20 December 2017, and Russian Federation – measures on the importation of live pigs, pork and other pig products from the European Union, Recourse to Article 22.6 of the DSU by the Russian Federation, WT/DS475/17, 3 January 2018; available at <www.wto.org/english/tratop_e/dispu_e/cases_e/ds475_e.htm>, accessed 24 January 2018). For a first comment on these developments, see “EU-Russia arbitration in pork dispute unlikely to be completed in due time – WTO (TASS, 8 January 2018), available at <http://tass.com/economy/984204>, accessed 24 January 2018.

12 Panel Report, Russia – Pigs, supra, note 7, para. 7.74.

13 ibid, paras. 7.75–7.83.

14 ibid, paras. 7.113–7.114. For a good general analysis on the relationship between WTO agreements and accession protocols, see Qin, JY, “Mind the Gap. Navigating Between the WTO Agreement and Its Accession Protocols” in M Elsing, B Hoekman and J Pauwelyn (eds), Assessing the World Trade Organization. Fit for Purpose? (Cambridge University Press 2017)Google Scholar.

15 See Appellate Body Report, Russia – Pigs, supra, note 1, paras. 5.21–5.23.

16 ibid, para. 5.34.

17 ibid.

18 Supra, note 1, paras. 5.103–5.108.

19 Cf eg Committee on Sanitary and Phytosanitary Measures, Comments on Article 6 of the SPS Agreement – Regionalization. Communication by Mexico, G/SPS/GEN/388, 1 May 2003. See also Micara, AG, “Regionalization Within the SPS Agreement: Recent Developments” in G Adinolfi et al (eds), International Economic Law. Contemporary Issues (Springer 2017)Google Scholar. At the same time, we are not aware of any statistical data that would provide information on the average length of the recognition process in WTO Members.

20 Gruszczynski, L, Regulating Health and Environmental Risks under WTO Law. A Critical Analysis of the SPS Agreement (Oxford University Press 2010) 261–262 Google Scholar.

21 SPS Committee, Guidelines to Further Practical Implementation of Article 6 of the Agreement on the Application of Sanitary and Phytosanitary Measures, G/SPS/48, 16 May 2008.

22 Appellate Body Report, India – Measures Concerning the Importation of Certain Agricultural Products, AB/DS430/AB/R, 4 June 2015 (India – Agricultural Products).

23 Panel Report, United States – Measures Affecting the Importation of Animals, Meat and Other Animal Products from Argentina, WT/DS447/R, 24 July 2015 (US – Animals).

24 A similar conclusion is reached by Brendan McGivern, WTO Appellate Body Report: Russia – Pigs (EU), White & Case WTO report, available at <bit.ly/2g2224U>, accessed 15 December 2017.

25 Appellate Body Report, Russia – Pigs, supra, note 1, para. 5.66.

26 For a more detailed discussion, see Gruszczynski, L and Vadi, V, “Standard of Review and Scientific Evidence in WTO Law and International Investment Arbitration: Converging Parallels?” in L Gruszczynski and W Werner (eds), Deference in International Courts and Tribunals. Standard of Review and Margin of Appreciation (Oxford University Press 2014)CrossRefGoogle Scholar.

27 Appellate Body Report, Russia – Pigs, supra, note 1, para. 5.63.

28 Cf eg Appellate Body Report, European Communities – Measures Concerning Meat and Meat Products (EC-Hormones), WT/DS26/AB/R, WT/DS48/AB/R, 13 February 1998, para. 200.

29 Cf eg Panel Report, United States – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/R, 31 March 2008, para. 7.605.

30 Cf Appellate Body Report, United States – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/AB/R, 16 October 2008, para. 679.

31 Appellate Body Report, Russia – Pigs, supra, note 1, para. 5.99.

32 This may not have been entirely clear from the US – Animals panel which first conceded that “the obligations in 6.1 and 6.2 are not necessarily contingent on the actions of the exporting Member under Article 6.3”, but then concluded that in certain cases the possibility for a Member to adapt the measures in line with Art 6.1 is “dependent on the exporting Member’s compliance with Article 6.3” and talked of compliance with Art 6.3 as a “precondition for the application of Art 6.1”. Cf Panel Report, US – Animals, supra, note 23, paras. 7.663, 7.664 and 7.667 respectively.

33 Appellate Body Report, Russia – Pigs, supra, note 1, paras. 5.97–5.98. See also Appellate Body Report, India – Agricultural Products, supra, note 22, para. 5.157.

34 Appellate Body Report, Russia – Pigs, supra note 1, paras. 5.97–5.98.

35 ibid, para. 5.126.

36 Panel Report, US – Animals, supra, note 23, para. 7.660. Here the panel referred to both the factors listed in Art 6.2 and the Art 6 Guidelines.

37 This risk was presented by the EU as one of its arguments in the appeal (cf ibid, para. 5.131).

38 Cf <www.wto.org/english/tratop_e/dispu_e/dispu_by_country_e.htm>, accessed 15 December 2017. This is a relatively high number compared with other countries of comparable size and relatively short history in the WTO.

39 See G Shaffer, M Elsig and M Pollak, “The Slow Killing of the World Trade Organization”, Huffington Post, 17 November 2017, available at <www.huffingtonpost.com/entry/the-slow-killing-of-the-world-trade-organization_us_5a0ccd1de4b03fe7403f82df?ncid=engmodushpmg00000004#>, accessed 15 December 2017.