Friday, May 23, 2014

Who actually won and what will the measures to comply be?

Preliminary reactions coming in from the parties to the EU Seals dispute:

"The WTO confirmed the EU's right to ban seal products on moral grounds related to animal welfare and the way the seals are killed. It did, however, criticise the way the exception for Inuit hunts has been designed and implemented. 
The European Commission will review the findings on these exceptions to the ban and consider options for implementation. Overall, the Commission welcomes today's ruling as it upholds the ban imposed in reaction to genuine concerns of EU citizens."
“We are pleased that today’s decision by the WTO Appellate Body confirms what we have said all along, namely that the EU’s seal regime is arbitrarily and unjustifiably applied and is therefore inconsistent with the EU’s obligations. The WTO Appellate Body confirmed that the EU measure violates its international obligations and has ordered the EU to bring itself into compliance. We are currently reviewing the practical impact of the decision on the Atlantic and northern seal harvests.
Makes one wonder who actually won and what would the measures taken to comply with the decision be?


Jayant Raghu Ram said...

Hi Mr. Srikar,

Something very interesting that you have pointed out. As is typical with most WTO disputes, it is often that both parties (the complainant and the respondent) claim victory on the outcome of every dispute. That is what even I see in the EC-Seals dispute. Here is my explanation:
For the EC, the panel/AB upheld the right of the EU to ban the import, sale, distribution, production of products containing seal on grounds of Article XX(a). The measure was considered necessary for the protection of public morals. This defended the EU from claims that the measure itself was inconsistent with Article XX(a), and more trade restrictive than necessary.

On the other hand, the victory for Canada meant that it the de facto discriminatory aspects of the measure, which in effect favoured countries such as Greenland was declared inconsistent with the chapeau of Article XX. This in effect discriminated against Canada. [The IC and MRM exceptions to be specific.]

From a DSM angle, haveto also point out the Us-Section 301-310 dispute which was initiated by the EU against the US on its Spl 301 mechanism. Here too, there was victory for both the EU and and the US. On the other hand, the measure was deemed DSU inconsistent (Article 23.1), hence a victory for the EU. However, to the extent the DSU clarified that it would use the measure only to the extent consistent with the DSU as stated in its Statement of Administrative Action, it was a victory for the US.

Not to say that ALL WTO disputes are double edged victories however.

Just my thoughts.

Srikar said...

Yes, Jayant! Interesting observations. No decision is in black or white!