A. General RUBERIA

Team: 034

ELSA Moot Court Competition on WTO Law

2014-2015

Viridium – Measures Affecting the Agricultural Sector

Ruberia

(Complainant)

vs

Viridium

(Respondent)

Submission of the Complainant

IV

A. General RUBERIA

Table of Contents

List of References III

List of Abbreviations VIII

Summary of Arguments 1

Statement of Facts 3

Identification of the Measures at Issue 4

Legal Pleadings 4

I. The ARRA violates the most favoured nation obligation of Art. I:1 of the GATT 1994 by exempting products from countries with less than 0.15 hectares of arable land per capita. 4

a) The exemption for countries with less than 0.15 hectares of arable land per capita is an advantage. 4

b) The products in question are “like” products, distinguished only on the basis of origin. 5

c) The exemption has not been granted “immediately and unconditionally” to all like products concerned. 5

II. The ARRA violates Art. III:4 of the GATT 1994 by providing less favourable treatment to animals and animal products imported from Ruberia than to like domestic products. 6

a) The domestic and imported products at issue are “like” products. 6

b) The ARRA is “a law, regulation, or requirement” affecting internal sale, transportation, distribution, or use of imported products. 6

c) The ARRA accords de facto less favourable treatment to like products originating in Ruberia compared to like domestic products. 7

III. The ARRA cannot be saved under GATT Art. XX 7

a) The ARRA fails the provisional justification under GATT Art. XX(a) because less trade-restrictive alternatives exist. 8

b) The ARRA cannot be justified under GATT Art. XX(b) because it is not related to protecting or improving animal health and is unnecessary to achieve that objective. 9

IV. The ARRA fails on the GATT Art. XX Chapeau because it is applied arbitrarily and unjustifiably. 10

a) The Discrimination is arbitrary or unjustifiable because the measure’s exceptions defeat the measure's objective. 10

V. The ARRA is a Technical Regulation as set out in TBT Annex 1.1 11

a) The ARRA applies to an identifiable group of products. 12

b) The ARRA lays down process and production methods of products derived from animals. 12

c) Compliance with the ARRA is mandatory. 12

VI. The ARRA violates the National Treatment and MFN obligations of TBT 2.1 because it causes detrimental impact on like products from Ruberia. 12

a) The ARRA causes a detrimental impact on competitive opportunities for like Ruberian products vis-à-vis like domestic and imported products. 13

b) The detrimental impact must not stem from a legitimate regulatory distinction. 14

VII. The ARRA violates Art. 2.4 of the TBT Agreement because it is not based on the relevant international standard. 15

a) The WAWC Guidelines are a relevant international standard. 15

b) The ARRA is not based on the WAWC Guidelines. 16

c) The WAWC Guidelines are an appropriate and effective means for the legitimate objective pursued. 17

VIII. The ARRA violates TBT Art. 3.1 by failing to ensure private entities comply with TBT Art. 2.4. 17

IX. The ARRA violates TBT Art. 3.4 as it encourages local bodies to act inconsistently with TBT Art. 2.4. 18

X. In the alternative, the ARRA violates TBT Art. 4.1 and Annex 3F. 19

Request for Findings 20

List of References

Short Form / Full Citation
TREATIES AND AGREEMENTS
GATT / General Agreement on Tariffs and Trade 1994 (15 April 1994) LT/UR/A-1A/1/GATT/1 <http://docsonline.wto.org>.
TBT / Agreement on Technical Barriers to Trade (15 April 1994) LT/UR/A-1A/10.
VCLT / Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155 UNTS 331.
WTO Enabling Clause / Differential and More Favourable Treatment Reciprocity and Fuller Participation of Developing Countries (28 November 1979) BISD 26S/203.
WTO MATERIALS
Border Tax Adjustments / Working Party Report, Border Tax Adjustments (2 December 1970) BISD 18S/97.
ELSA DOCUMENTS
Clarifications / Clarifications, ELSA Moot Court Competition (EMC2) on WTO Law, Case 2014-2015, Viridium – Measures Affecting the Agricultural Sector.
Problem / Problem, ELSA Moot Court Competition (EMC2) on WTO Law, Case 2014-2015, Viridium – Measures Affecting the Agricultural Sector.
WTO APPELLATE BODY REPORTS
Brazil – Retreaded Tyres / Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres (3 December 2007) WT/DS332/AB/R.
Canada – Autos / Appellate Body Report, Canada – Certain Measures Affecting the Automotive Industry (19 June 2000) WT/DS139/AB/R and WT/DS142/AB/R.
China – Audiovisual / Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (21 December 2009) WT/DS363/AB/R.
EC – Asbestos / Appellate Body Report, European Communities – Measures Affecting Asbestos and Products Containing Asbestos (12 March 2001) WT/DS135/AB/R.
EC – Bananas III / Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas (25 September 1997) WT/DS27/AB/R.
EC – Sardines / Appellate Body Report, European Communities – Trade Description of Sardines (26 September 2002) WT/DS231/AB/R.
EC – Seals / Appellate Body Report, EC – Measures Prohibiting the Importation and Marketing of Seal Products (22 May 2014) WT/DS400/AB/R and WT/DS401/AB/R.
Japan – Alcohol / Appellate Body Report, Japan – Taxes on Alcoholic Beverage (1, November, 1996) WT/DS8/AB/R, WT/DS10/AB/R and WT/DS11/AB/R.
Korea – Beef / Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef (10 January 2001) WT/DS161/AB/R and WT/DS169/AB/R.
US – Clove Cigarettes / Appellate Body Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes (4 April 2012) WT/DS406/AB/R.
US – COOL / Appellate Body Report, United States – Certain Country of Origin Labelling (COOL) Requirements (29 June 2012) WT/DS384/AB/R.
US – Gambling / Appellate Body Report, Measures Affecting the Cross-Border Supply of Gambling and Betting Services (20 April 2005) WT/DS285/AB/R.
US – Gasoline / Appellate Body Report, United States – Standards for Reformulated and Conventional Gasoline (20 May 1996) WT/DS2/AB/R.
US – Shrimp / Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products (12 October 1998) WT/DS58/AB/R.
US – Tuna II (Mexico) / Appellate Body Report, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (16 May 2012) WT/DS381/AB/R.
WTO PANEL REPORTS
Canada – Autos / Panel Report, Certain Measures Affecting the Automotive Industry (11 February 2000) WT/DS139/R and WT/DS142/R.
Canada – Wheat / Panel Report, Measures Relating to Exports of Wheat and Treatment of Imported Grain (6 April 2004) WT/DS276/R.
China – Audiovisuals / Panel Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, (12 August 2009) WT/DS363/R.
Colombia – Ports of Entry / Panel Report, Indicative Prices and Restrictions on Ports of Entry (27 April 2009) WT/DS366/R.
EC – Sardines / Panel Report, European Communities – Trade Description of Sardines (29 May 2002) WT/DS231/R.
EC – Seal Products / Panel Report, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (25 November 2013) WT/DS400/R and WT/DS401/R.
EC – Tariff Preferences / Panel Report, EC – Tariff Preferences (1 December 2003) WT/DS246/R.
Indonesia – Autos / Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry (2 July 1998) WT/DS54/R, WT/DS55/R, WT/DS59/R and WT/DS64/R.
US - COOL / Panel Report, US – Certain Country of Origin Labelling (COOL) Requirement (18 November 2011) WT/DS384/R and WT/DS386/R.
OTHER INERNATIONAL MATERIALS
ISO/IEC Guide 2 / ISO/IEC Guide 2:1991, General terms and their definitions concerning standardization and related activities <http://www.iso.org>.
SECONDARY SOURCES
Arcuri / Alessandra Arcuri, “The TBT Agreement and Private Standards” in Tracey Epps and Michael J. Trebilcock (eds), Research Handbook on the WTO and Technical Barriers to Trade (Edward Elgar Publishing 2013).
Conrad / Christiane R. Conrad, Processes and Production Methods (PPMs) in WTO Law: Interfacing Trade and Social Goals (CUP 2011).
De Schutter / Oliver De Schutter, “Trade in the service of climate change: the question of linkage” in Anna Grear and Conor Gearty (eds), Choosing a Future: The Social and Legal Aspects of Climate Change (Edward Elgar Publishing 2014).
Guzman & Pauwelyn / Andrew T. Guzman and Joost H.B. Pauwelyn, International Trade Law (2nd edn, Wolters Kluwer 2012).
Howse / Robert Howse, “A New Device for Creating International Legal Normativity: The WTO Technical Barriers to Trade Agreement and ‘International Standards’” in Christian Joerges and Ernst-Ulrich Petersmann (eds), Constitutionalism, Multilevel Trade Governance and International Economic Law (Hart Publishing 2011).
Irish / Maureen Irish, “Renewable Energy and Trade: Interpreting against Fragmentation” [2013] 51 Canadian Yearbook of International Law 224.
Koebele / Michael Koebele, “Preamble TBT” in Wolfrum et al. (eds), WTO – Technical Barriers and SPS Measures (Koninklijke Brill NV 2007).
Lester, Mercurio and Davies / Simon Lester, Bryan Mercurio and Arwel Davies, World trade law: text, materials and commentary (Portland: Hart Publishing 2012).
Marceau and Trachtmann / Gabrielle Marceau & Joel P. Trachtman, “A Map of the World Trade Organization Law of Domestic Regulation of Goods: The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade” [2014] 48(2) JWT 351.
McDonald / Jan McDonald, “Domestic regulation, international standards, and
technical barriers to trade” [2005] 4(2) World Trade Review.
Nielsen / Laura Nielsen, The WTO, Animals and PPMs (Koninklijke Brill NV 2007).
Oxford English Dictionary / OED Online (Oxford University Press, December 2014) <www.oed.com> accessed 25 November 2014.
Regan / Donald Regan, “The Meaning of 'Necessary' in GATT Article XX and GATS Article XIV: The Myth of Cost-Benefit Balancing” in Lorand Bartels and Federico Ortino (eds), The Regulation of Goods (Ashgate 2013).
Struck / Christian Struck, Product Regulations and Standards in WTO Law (Wolters Kluwer 2014).
Trebilcock, Howse and Eliason / Michael Trebilcock, Robert Howse and Antonia Eliason, The Regulation of International Trade (3rd edn, Routledge 2013).
Van den Bossche & Zdouc / Peter Van den Bossche and Werner Zdouc, The Law and Policy of the World Trade Organization (3rd edn, Cambridge University Press 2013).
Zhou / Weihuan Zhou, “US – Clove Cigarettes and US – Tuna II (Mexico): Implications for the role of regulatory purpose under Article III:4 of the GATT” [2012] 15(4) Journal of International Economic Law 1075.

List of Abbreviations

Abbreviation / Description
0.15 Countries / Countries with less than 0.15 hectares of arable land per capita
0.15 Hectare condition / Less than 0.15 hectares of arable land per capita
AB / Appellate Body
AFO / Animal Feeding Operation
ARRA / Agricultural Reconstruction and Reform Act
Art./Arts. / Article/Articles
CAFO / Concentrated Animal Feeding Operation
EC / European Communities
GATT / General Agreement on Tariffs and Trade 1994
ISO/IEC / International Organization for Standardization/ International Electrotechnical Commission
LDC / Least-Developed Country
MFN / Most Favoured Nation
Para./Paras. / Paragraph/Paragraphs
PPM / Process and Production Method
SDT / Special and Differential Treatment
TBT / Agreement on Technical Barriers to Trade 1994
VCLT / Vienna Convention on the Law of the Treaties
WAWC / World Animal Welfare Council
WTO / World Trade Organization

IV

B. Substantive RUBERIA

Summary of Arguments

I. The ARRA violates the MFN obligations under Art. I:1 GATT 1994 by exempting countries with less than 0.15 hectares of arable land per capita.

·  Viridium’s exemption to the ARRA Art. 2 requirements to countries with less than 0.15 hectares of arable land per capita while like products from Ruberia are banned from import and sale in Viridium. Consequently, the exemption is an advantage for countries that meet the hectare condition as it modifies the conditions of competition between like products—meat and animal products—originating in Ruberia and the exempted countries.

·  By not immediately and unconditionally granting Ruberia the exemption granted to countries that meet the arable land condition, Viridium violates its Art. I:1 MFN obligation.

II. The ARRA violates Art. III:4 GATT 1994 by providing de facto less favourable treatment to like imported products from Ruberia than domestic products.

  • Ruberian meat and animal products are ‘like’ Viridium’s meat and animal products. Viridium cannot distinguish the products based on “consumers’ tastes and habits” given Ruberia’s command of the market share prior to ARRA’s adoption, nor can it claim that the quality of products is different based on a “belief”.

·  The ARRA accords de facto less favourable treatment because it has a direct detrimental impact on competitive opportunities for Ruberian beef and eggs, violating the national treatment obligation under Art. III:4 of GATT 1994.

III. The ARRA cannot be provisionally justified under one of GATT 1994 Art. XX subparagraphs, nor does it meet Art. XX chapeau requirements.

·  The ARRA is an import ban that does not fit within GATT Art. XX's subparagraphs and cannot meet GATT Art. XX chapeau requirements.

·  The ARRA cannot be provisionally justified under GATT 1994 Art. XX subparagraphs (a) or (b). XX(a) is unavailable because less trade-restrictive alternatives exists. XX(b) is unavailable because the ARRA does not protect animal life and the ARRA is unnecessary to accomplishing this goal.

·  The ARRA cannot meet the Chapeau requirements because it is applied arbitrarily or unjustifiably. The ARRA includes exceptions for developing and least-developed countries, and those with less than 0.15 hectares of arable land per capita which defeat the measure's objective. These exceptions are unrelated to the ARRA's measures to treat animals humanely.

IV. The ARRA is a Technical Regulation that lays down processes and production methods (PPMs) related to product characteristics.

·  Viridium’s ARRA meets all criteria under Para 1 of TBT Annex 1.1: The ARRA applies to meat and products derived from animals, specifies the product characteristics “tastier” and “of better quality” as well as related PPMs concerning the humane treatment of animals and requires mandatory compliance.

V. The ARRA violates TBT. 2.1 by causing a detrimental impact to like products imported from Ruberia

·  The ARRA violates both MFN and National Treatment obligations of TBT Art. 2.1 by causing de facto detrimental impact on the competitive opportunities between like Ruberian products vis-à-vis like domestic and imported products.

·  The detrimental impact cannot be justified under the legitimate regulatory distinction test because the distinction is arbitrary and the measure lacks even-handedness.