This is from the Indonesia - Chicken WTO panel report, circulated yesterday:
Fn. 318. We note that Indonesia's defence under Article XX(b) raises a food safety issue. We observe that the SPS Agreement, according to its Preamble, "elaborates rules for the application of the provisions of the GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article XX(b)". Brazil, in its panel request, made a number of claims under the SPS Agreement, which it, however, did not develop in its submissions. In its response to a question from the Panel, Brazil took the view that it would have been for Indonesia to "claim" that the challenged measures are SPS (or TBT) measures (see Brazil's response to Panel's question No.1). We do not share the view that it would be for the responding party to make a "claim" that a measure is in the nature of an SPS measure. It is for a complaining party to raise claims under the specific covered agreements, not for the responding party to "invoke" such agreements. In our view, therefore, in the absence of evidence and arguments submitted by Brazil, we cannot address any SPS claims, even if we were to consider that they are applicable. See Appellate Body Report, US – Gambling, para. 281 (citing Appellate Body Report Chile - Price Band System, para. 173).
Are SPS cases getting too complex and unwieldy? Is it easier to make a GATT claim and then let the respondent invoke GATT Article XX, as Brazil chose to do here?
