A new Appellate Body report has upheld a panel report that had struck down an Indian ban on the U.S. agricultural products due to concerns related to the Avian flu. One of issues appealed regarded SPS Article 5.6 (“…Members shall ensure that such measures are not more trade-restrictive than required to achieve their appropriate level of sanitary or phytosanitary protection …”). India’s appeal on this provision centred on the “appropriate level of protection (ALOP).” The AB raised two issues in this regard: first, is the United States required to identify India’s ALOP based on India’s SPS measure at issue (not on domestic measures) to meet its burden of proof under Article 5.6?; second, can the United States meet its burden of proof only when the panel accepts the U.S.’ articulation of India’s ALOP? (para. 5.219)
Based on India’s domestic measures, the United States claimed that India’s ALOP was “quite low” (para. 5.217). Yet, according to India, the United States failed to fulfil its burden of proof under SPS Article 5.6 because it identified India’s ALOP based on India’s domestic control measures, not on the SPS measure (ban) at issue (para. 5.214). Upon a review of India’s submissions, the panel decided that India’s ALOP was indeed “very high or very conservative” (para. 5.217).
The AB viewed that the panel must substantiate not the complainant’s articulation of ALOP (5.220) but the respondent’s ALOP based on the totality of arguments and evidence (5.221). Notably, the AB emphasized that articulating ALOP is “both a privilege and an obligation of then responding Member” (emphasis added, 5.221). Likewise, the AB opined that the panel should not defer completely to the responding Member’s own characterization of ALOP (5.222). Nonetheless, the AB remains ambiguous as to whether a panel must identify the responding Member’s ALOP based on the SPS measure at issue (5.226).
The AB’s stance on ALOP in this case might not dovetail with its previous ruling on the same issue. One may recall that the AB was more deferential to the responding Member (the EU) in identifying ALOP in the Hormones dispute. In that case, the AB seemed to agree with the panel in inferring the EU’s ALOP (such as the “level of protection in respect of natural hormones when used for growth promotion”) directly from the SPS measures at issue (the import ban on hormone-treated beef) (para. 218).
In conclusion, according to the new AB report, the burden of proof on ALOP under SPS Article 5.6 seems quite low; the responding Member must also articulate its own ALOP; finally, the panel must identify (substantiate) ALOP based on the totality of arguments and evidence, not exclusively from the SPS measures at issue.
