oultryCaseReport-中美家禽进口案.docx

United States-Certain Measures Affecting Imports of Poultry from China Zhang Yan MB 350821 18 April 20141.Facts of the CaseIn the background of the global economic downturn, the world trade protectionism has risen recently, such cases in China increased sharply. In March 2009, U.S. President Obama signed the article 727of the Consolidated Appropriations Act ,2009, the content is under any funds provided by this Act shall not be used for making or perform any permitted for U.S. imports of poultry products from China. The provision by means of limiting government funding purposes does not allow the relevant government departments to carry out the ban on import of poultry products from China and curbs on Chinese poultry products exports to the America.Bill was signed the same day, the Chinese Ministry of Commerce that responded, made it clear that section 727 is a typical discriminatory trade protectionism, a serious violation of the WTO rules, interferes with the normal development of Sino-US poultry trade. After the provision, the two governments started negotiations on poultry imports, but fruitless, leading to Chinese poultry products cant return to the American market and Chinese interests seriously damaged, the typical discriminatory trade protectionism caused strong opposition from China.On April 17, 2009, China will limit the measures taken by the United States to Chinese poultry resort to WTO dispute settlement mechanism, and urged the United States as soon as possible to cancel this discriminatory trade protectionism and correct the erroneous practice. On June 23, China requested a WTO panel established to hear the case of American restrictive measures on Chinese poultry imports. At the request of China, the world trade organization officially decided to set up expert group on July 31, 2009 ，investigating and ruling the relevant measures of United States to restrict imports of poultry meat from China is in violation of WTO rules. The lawsuit also caused the wide attention of the world. On May 3, 2010, the WTO panel released its statement part of the report. On June 14, the panel released the interim report. On July 26, the panel submitted its final report to the parties, the report formally announced on September 29 and on October 25, DSB passed the report by the panel.The world trade organization expert group on the China and the United States import poultry restrictions case released ruling report on the 29th, in the two hundred pages report, the panel ruled that the U.S. Consolidated Appropriations Act ,2009 provisions on restrictions on Chinese poultry imports violate the WTO rules, including a number of the most-favored-nation Treatment principle and the SPS Agreement. The Permanent Mission of China to the World Trade Organization welcomes this ruling, and stressed that Chinese poultry products are safe. Chinese Permanent Mission to the WTO said China hopes the U.S. side can attach importance to Chinas concerns and take further positive measures to eliminate any discriminatory measures specifically for the Chinese poultry products, fair and justice to carry out the assessment of Chinas poultry and import inspection, the early realization of the normal poultry trade between the two countriesThe two countries continually upgrade the war of poultry finally settled under the WTO ruling for Chinas overall victory. This case was the first time for China to challenge the legislation of the U.S. Congress within the framework of WTO, for the first time about SPS disputes, won a comprehensive victory is of great significance.2. the Main Issues Involved in the Dispute 2.1 Identify Issues Related to SPS Measures As the name suggests, SPS measures both health measures, including plant quarantine measures. Health measures for human and animal health, and plant quarantine measures are for plants and plant products. According to SPS Agreement sanitary and plant quarantine measures means any measure used for the following purposes: (1) the elimination of pests, diseases, disease-carrying organisms or disease-causing organisms and the risk of growth or spread, in order to protect the WTO members within the territory of animal or plant life or health; (2) the elimination of contaminants, toxins or disease-causing organisms risks arising from the food, beverage or feed additives, in order to protect the WTO members within the territory of human or animal life or health; (3) the elimination of the incoming animals, plants or products carry diseases and pests or the risks of growing or spreading to protect the members within the territory of human life or health; (4) to prevent or control the members within the territory due to the incoming or growth of pests, or resulting from other damage.In general, sanitary or plant quarantine measures include all relevant laws, decrees, regulations, requirements and procedures, especially in the final product standards, processes and production methods, testing, inspection, certification and approval procedures, quarantine treatment, including animals or plants transport related or during transport of animals and plants in order to maintain the requirements of the material needed for the plant and animal life, relevant statistical methods, sampling procedures and the provisions of the risk assessment method and food safety directly related to packaging and labeling requirements. In comparison, the article 727of the Consolidated Appropriations Act ,2009only requires the relevant administrative departments do not establish rules for imports of poultry products from China, the provision itself does not appear related to the wording of inspection, quarantine risk. So apparently, Section 727 cannot be directly classified as an SPS measure. The section 727of the Consolidated Appropriations Act ,2009 of America is or not an SPS measure, that is one of the key points to both sides dispute and expert group decision.But the panel ruled that even though section 727 clause is an appropriations bill, but this is American congress is responsible for the implementation of SPS regulations on administration of control mode, such an appropriations bill cannot be ruled out the scope of SPS measures. Article 727 satisfied the provision in article 1 of the SPS agreement that the two conditions of as a measure is defined as SPS measures: First, the policy target or legal intention of the article 727 is to ensure the life and health of the people and animals dont suffer from the risk of contaminated poultry products imported from China, so the measure is used to comply with the SPS agreement attachment 1 referred to in article 1 (b) to establish the purpose of the measures; Second, the panel ruled that article 727 directly or indirectly affect the poultry products in the international trade. 2.2 the Jurisdiction of the PanelIf the United States the section 727of Agriculture Appropriations Act ,2009 is not an SPS measure, China is associated with the SPS agreement of complaints are not within the jurisdiction of the panel. Thus, the scope of the functions of the panel in the case just can rule that whether the section 727 is a violation of the principle of non-discrimination of the GATT and general prohibition of quantitative restrictions. Panel determined based on the implement purpose of article 727 is to protect human and animal life and health, at the same time the measures cause unnecessary restrictions to international trade, so the article 727 is an SPS measures.Panel does not agree with the point of view that China is not based on SPS Agreement come up with consultation requirement the United States provided. Instead, the panelo6jij suggested that although China presented the request for consultations in a conditional manner in consultation, but this conditional request for consultations is still based on article 11 of the SPS Agreement. Whether section 727 is a violation of SPS Agreement to be included in the terms of reference of the panel.Once considered a measure is inconsistent with the relevant agreement, the expert group will make recommendations for adjustments, WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) Section 19.1 states: The panel shall recommend that the member about the applicable measures for adjustment to consistent with the relevant agreement. However, just because the measures involved in this dispute, namely 727 was valid in the expert group released ruling report is no longer valid, the panel did not suggest that DSB demanded that the United States to take measures in the SPS agreement and the obligations stipulated in the GATT1994 is consistent.China asked the panel according to the article 19.1 of the DSU to use its discretion to suggest that the United States implement the recommendations and the ruling of the DSU. Chinese special demands expert group to advise the United States no longer use similar to article 727 of the language in the later legislation. To this, the panel said: we cant put forward suggestions according to the measures in addition to article 727 of the other, because the other measures, including the possible measures in the future, is beyond our scope. We did notice that article 727 of the any decision of expert group for conformance with the relevant agreement should be make the obligations of members on the basis of these agreements clearer, this can also provide certain predictability to deal with same or similar situation in the future. Therefore, the group decided in the case of the section 727of Agriculture Appropriations Act ,2009 lapsed, although it has been held that the section 727 of Consolidated Appropriations Act ,2009 in violation of SPS Agreement and GATT1994, but not according to the requirements of China is put forward under the DSU article 19 to ask the United States to adjust its measures in accordance with the award.3.the Analysis of the American Poultry Products DisputeAmerican Poultry Products Dispute is first happened WTO dispute between China and the United States in the trade dispute directly involved in the SPS agreement. The dispute settlement on Chinas victory in the end. However, there are a few problems to be further discussed in the dispute.3.1 About the start time of the WTO dispute settlement procedures Note that in this case several time involved: (1) December 26, 2007, Agriculture Appropriations Act ,2008 came into force that contains special restrictions on Chinese poultry imports , on September 30, 2009, terminated due to the expiration of their implementation; (2) April 17, 2009, our country for the Agriculture Appropriations Act ,2009 section 727 to the U.S. request for consultations, which officially launched the WTO dispute settlement procedures; (3) September 29, 2010, the panel report released that ruled China won (at this point the agriculture appropriations act of 2009 has been terminated); (4) October 25, 2010, WTO dispute Settlement Body adopted the expert group reports.As can be seen from the above several time points, the United States on Chinese poultry products export of discriminatory measures earlier, but our country is in the Agriculture Appropriations Act ,2009, rather than the Agriculture Appropriations Act ,2008 began the resort to WTO dispute settlement mechanism, it shows that our countrys omissions to the United States trade policy review. According to WTO Trade Policy Review Mechanism, the trade policy review is for members of the WTO trade policy and measures for comprehensive Review. The WTO Trade Policy Review Mechanism on a country (including the U.S.) to develop and implement trade policy proposed regulatory requirements. Our country should be more active participation in the WTO trade policy review mechanism body(TPRB) for important trade policies and measures of the multilateral review and evaluation, and strive to eliminate the trade dispute in the bud.3.2 the Nature of the Panel Award Under the WTO dispute settlement mechanism of the panel decision is not the pedagogical mechanism, the panels ruling in the present is the complaint filed charges are still in the implementation of trade measures. Such as in the case, China proposed that the similar wording with section 727 in the United States should not appear in later legislation, in order to avoid the discrimination to Chinese exports of poultry products continue to implement. In fact, the United States, Agriculture Appropriations Act ,2009 the provisions of article 727 of the funds limit requirements was followed applicable by the Agriculture Appropriations Act ,2010the 743th.To this, the panel in the panel report published on September 29, 2010, Agriculture Appropriations Act ,2009has been terminated, and the Agriculture Appropriations Act ,2010 was not included in article 743 of China submitted items require expert group decision, so the United States how to express in its future legislation to restrict the export of Chinese poultry products is not the panel should be ruled.3.3 The Panel shall Award Expired Measures Because section 727 is to expire on September 30, 2009, that China first written material submitted two days before the deadline expired. Therefore, whether the panel shall have the right to award has failure measures become the another concern to the case. In the past, the panel has decided to make measures in the following cases for overdue, the complainant does not recognize its expiration measures is not consistent with the WTO, and measures have been repealed easily to be reestablished.Combined with the case, the panel think of section 727 is the case, the United States does not recognize charged 727 clauses not in conformity with the WTO, such appropriations law is annual in the United States. Article 727 with the same words repeated language prescribed by the funding of the preceding year. Section 727 replaced the section 733, section 743 also replaced the 733 terms. Although section 743 and section 727 and section 733 do not use the same language, but panel believe that if they refuse to decide 727 clause has expired, the expert group is likely to be deprived Chinese requests for American actions consistent with WTO obligations for the rights of the substantive examination, and is likely to allow potential WTO unlawful act repeat.Therefore, the panel decided to continue with the WTO ruling 727 matches of terms, and it is within its purview. However, the group also acknowledged that the legal effect already terminated of an act, WTO lawless measures were repealed, it would not be appropriate to make recommendations based on DSU Article 19.3.4 Use of WTO Rules Become Activists in the Trade FrictionIn recent years, with the expansion of the U.S. trade deficit with China, the United States implement the various forms of trade restrictions to China, and trying to create a new tool to meet their needs. In this case, the Consolidated Appropriations Act ,2009, in respect of the provision of the restricted imports of Chinese poultry is another innovation of the trade protection. In recent years, along with the increase of our country to participate in the WTO dispute settlement practice, the government understand and grasp the deepening to WTO rules and operating procedures ,it can be more scientific and reasonable use rules to realize own appeal, safeguard their rights and interests to the greatest extent. Therefore, although nearly ten years before we won this first victory, but believe that with such a good start, in the WTO will continue to harvest more for China.4.Conclusion”American Poultry Products Dispute is due to the U.S. congress passed the Ministry of Agriculture banned the use of federal funding restrictions on imports of Chinese poultry products, but background to develop and apply section 727 is the United States does not recognize the Chinese inspection and quarantine system associated with corresponding mechanism of the U.S. domestic equivalent resistance, the SPS measures peer recognition mechanism becomes a technical barriers, the United States in violation of the WTO non-discriminatory principle. This dispute is a typical case that the United States for Chinese products apply discriminatory technical barriers. When the expert group to make a final ruling, the United States implemented the Consolidated Appropriations Act ,2009has expired, the implementation of Article 727 is no longer practical significance, panel decisions thus greatly reduced. So I put forward here for foreign technical regulations and standards, to be implemented at the beginning or implementation of our follow-up study should be conducted, the adoption of countermeasures as early as possible.China should take this case as an opportunity to learn to make full use of WTO rules to maintain their own rights and interests, good grasp of the litigation strategy to break through the blockade of trade protection measures. To achieve this goal needs the joint efforts of government departments and enterprises coop