I've been reading the U.S. - Animals (yes, that's the official short title!) WTO panel report. It's over 200 pages long, and goes into great detail about foot and mouth disease and the relevant international standards, before delving into a variety of claims under the SPS Agreement (various provisions of Articles 2, 3, 5, 6, 8 and Annex C, among others, were all in play).
I think it's fair to say that, as a result of the complex facts and many legal claims, this report is a difficult read, through no fault of those writing the report. What it made me wonder is this: What have we gained by handling food safety disputes under the SPS Agreement? Argentina did make claims under GATT Articles I and XI, but the Panel exercised judicial economy. What would the report have looked like if the complaint had been brought solely under the GATT?
My sense is that a lot of the same issues dealt with under the SPS claims would have arisen under the GATT claims and Article XX defenses. And we would have gotten to the same result.
But is it possible that the panel report based on GATT claims only would have been shorter and clearer? With the SPS Agreement, there are lots of provisions, with lot of elements to them, and lots of interpretations. It takes a while to get through all the claims. With the GATT, this would have mostly come down to discrimination, with a few other elements thrown in here and there as part of the discrimination analysis.
If that's right, where does the SPS Agreement get us? Usually, it gets us to a violation. But could we get to the same place more quickly and clearly under the GATT?
