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HI5015 Legal aspects group assignment sample Holmes

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Canada v. Australia – Measures Affecting Importation of Salmon (Case Study)

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Executive Summary

The assignment provides the details analysis of a case study named Canada v. Australia – Measures Affecting Importation of Salmon. The assignment includes Background of the Dispute, Brief Facts of the Case, The Legal Issues, The Individual Parties’ Arguments, with Particular Emphasis on Your Selected Party’s Argument, The Tribunal’s Decision and The Importance or Significance of the Case in International Law

Table of Contents

Background of the Dispute. 3

Brief Facts of the Case. 4

The Legal Issues Presented. 4

The Individual Parties’ Arguments, with Particular Emphasis on Your Selected Party’s Arguments. 7

The Tribunal’s Decision. 7

The Importance or Significance of the Case in International Law.. 8

References. 8

Canada v. Australia – Measures Affecting Importation of Salmon

Background of the Dispute

It is a case which is related to the dispute that occurred between the countries Canada and Australia on the quarantine restriction of Australia. This case study also focuses on the measures taken to avoid the import of salmon from Canada to Australia. In the aforesaid case both the parties presented their pleas to the dispute settlement mechanism which is introduced by the World Trade Organization. It is also known as Dispute Settlement Body (DSB).

A panel was made for the settlement of the dispute. However, the decision was appealed was subsequently made to the Appellate body by both Canada and Australia. It also came to light that during the process of appeal other countries such as India, Norway, European Communities and United States of America acted as the third participant in the aforesaid case.

The panel in this case found that the measures of Australia which were complained by Canada were inconsistent. It also came to light that the complaints made by Canada were inconsistent under article 2.2, 2.3, 5.1, 5.5, and 5.6 of the SPS Agreement. The complaints can also be considered as null or that it is obtaining benefits to Canada under the provisions of the Sanitary and Phytosanitary Measures Agreement.

Brief Facts of the Case

In the year 1990, a dispute of trade occurred between Australia and Canada in respect of the fresh salmon.  Regarding this, Canada filed a complaint in the office of the World Trade Organization in the year 1995.  It is to be noted that both the countries Australia and Canada are the part of the World Trade Organization. In the complaint made by Canada it stated about the restriction on Australia for the import of salmon which is also a part of the quarantine measure affecting the health of an individual.

The compliant made by Canada was favored by the Dispute Resolution of the World Trade Organization in the year 1997  in decision of panel as well the subsequent decision made by the World Trade Organization Appellate body.  In the case, the World Trade Organization concluded that the according to the provisions of the Agreement on the Application of Sanitary and Phytosanitary Measures will not prevent the ban of import for salmon for Australia. The World Trade Organization then passed an order to Australia to lift the aforesaid ban and increase the supply of salmon as well other species fish. Both parties in this case i.e. Canada and Australia resolved their dispute in the year 2000.

The Legal Issues Presented

Upon request of Canada to the DSB, is established a panel for the discussion on the aforesaid matter which was held on 10 April 1997. In this discussion cum meeting a few countries such the European Community, Norway, India and United States of America acted as the third participants.  In the year 1998 the panel report of the aforesaid meeting was published. The panel in this case found that the measures of Australia which were complained by Canada were inconsistent. It also came to light that the complaints made by Canada were inconsistent under article 2.2, 2.3, 5.1, 5.5, and 5.6 of the SPS Agreement. The complaints can also be considered as null or that it is obtaining benefits to Canada under the provisions of the Sanitary and Phytosanitary Measures Agreement.

Later in that year, on 22 July 1998, Australia also provided a chance to appeal for the issues in the law and legal interpretation developed by the panel. The report of the said appeal was published and was distributed among the members on 20 October 1998. The Appellate Body in this case flipped the decision of the panel in relation to the articles 5.1 and 2.2 of the Sanitary and Phytosanitary Measures Agreement. However, the Appellate Body found the following issues in the judgment of the panel;

According to the provisions of Articles 5.1 and 2.2 of the Sanitary and Phytosanitary Measures Agreement Australia had acted inconsistently.

The Appellate body in this matter extended the findings of panel that Australia has acted inconsistently in this matter according to the provisions of the Articles 5.1 and 2.2 of the Sanitary and Phytosanitary Measures Agreement.

The Appellate Body later in this matter reversed the findings of the panel that according to the provisions of Articles 5.1 and 2.2 of the Sanitary and Phytosanitary Measures Agreement Australia had acted inconsistently. However, the appellate was unable to find a conclusion in this case If Australia has taken the wrong measure as it is inconsistent under Article 5.6. The reason for not finding the appropriate conclusion is that the findings of the panel were insufficient.

The Dispute Settlement Body in this matter adopted the report of appellate body and panel report as it was modified by the Appellate body report on 6 November in that year.  In the year 1999, Canada under the provisions of article 21.5 of the  DSU requested to determine if the original panel in this case has focused if the measures taken in respect of Australia  for the implementation and recommendation of World Trade Organization and Dispute Settlement Body.

Previously, Canada also made a request to Dispute Settlement body under article 22.2 for the authorization for the suspension of the obligation in this case. Later the request of Canada was approved by the Dispute Settlement Body at the meeting held on 28 July 1999. The dispute settlement body then looked after the issue of inconsistency and implementation measures provided by the original panel and World Trade Organization. Later, on 7 September 1999, the European Communities, India, Norway and United States of Australia acted as third parties and a new compliance panel was formed.

In February 2000 the aforesaid compliance panel published a report and distributed the same among the members. The findings of the compliance panel in this matter found the following issues;

The delay in the implementation of several measures which led to extended the reasonable period of time according to which the recommendation of Dispute Settlement body can be implemented by Australia. It is also noted that no measures were taken compiling according to of Article 21.5 of the DSU. The said article includes a few products and for a particular period of time. As a consequence, during this period Australia was not able to follow the measures with the Sanitary Phytosanitary Measures Agreement according to Article 22.6 of the DSU.

It was also revealed that salmon is the consumer ready product in Australia which is specifically defined and that it can be imported to Australia. It is also found that the salmon are quarantine released and that was maintain all types of sanitary measures so that there may be require for a risk assessment.  The aforesaid provision was in relation to the Articles 5.1 and 2.2 of the SPS Agreement. The panel also considered the same requirement to be in violation of Article 5.6 of the Sanitary Phytosanitary Measures Agreement.

 At last the compliance panel observed that there was a violation in Articles 5.1 and 2.2 of Sanitary Phytosanitary Measures Agreement by Australia. As a result as per the provisions provided by the Government of Tasmania, there will be a prohibition in the import of some salmon product of Canada without any risk assessment and insufficient scientific proof.

The Individual Parties’ Arguments, with Particular Emphasis on Your Selected Party’s Arguments

In July1999, Canada requested authorization of the Dispute Settlement Body in respect of Article 22.2 of the DSU, for the suspension of the concession to Australia for not complying with recommendation provided by the Dispute Settlement Committee in this case.  Later in that month Australia filed an objection for the aforesaid proposed suspension of concession by Canada. Australia then requested the matter to be referred as arbitration under Article 22.6 of the DSU.

After a few days, The Dispute Settlement Body referred the aforesaid matter to arbitration.  In the year 1999 the composition of arbitrator was made. In July 1999 the proceeding of arbitration suspended after the revelation of the proceedings of the compliances.

Analysis shows that salmon is the consumer ready product in Australia which is specifically defined and that it can be imported to Australia. It is also found that the salmon are quarantine released and that was maintain all types of sanitary measures so that there may be require for a risk assessment.  The aforesaid provision was in relation to the Articles 5.1 and 2.2 of the SPS Agreement. The panel also considered the same requirement to be in violation of Article 5.6 of the Sanitary Phytosanitary Measures Agreement.

In May 2000, Canada came to a conclusion that it is ready to resolve the aforesaid dispute with Australia. After which an agreement text was made in form a letters between both the parties Canada and Australia.  It was also held that Canada will monitor the commitment of Australia for the implementation of the agreement until June 2000.  Later the Dispute Settlement Body concluded and hoped that both the parties will settle their dispute mutually and will notify the same to it.

The Tribunal’s Decision

The Appellate Body in this case provide the final decision which states that Australia had violated the Article 5.5 (and by association Article 2.3) of the Sanitary Phytosanitary Measures Agreement which put a prohibition on the measures of Sanitary Phytosanitary Measures Agreement which consists arbitrary restriction  for the protection of international trade in respect of discriminated and disguised restriction. Particularly, the panel in this matter found that apart from salmon other untreated fish products would have carried some life threading diseases was allowed by Australia and that the for this reason the imports were banned. As a result it created a unfair restriction on the import of salmon of Canada.

Later in 2000 Canada came to a conclusion that it is ready to resolve the aforesaid dispute with Australia. After which an agreement text was made in form a letters between both the parties Canada and Australia.  It was also held that Canada will monitor the commitment of Australia for the implementation of the agreement until June 2000.  Later the Dispute Settlement Body concluded and hoped that both the parties will settle their dispute mutually and will notify the same to it.

The Importance or Significance of the Case in International Law

With the above explanation and discussion, it can be concluded that the aforesaid case law has a major impact in the international law in respect of the development of the international trade. Today, in the period of globalization, we can say that the international trade plays an important role in the trade practices of each and every country across the globe.  Thus, it is important to act according to the prescribed law of the countries while importing goods from this other countries.

Analysis of the according case suggests that , a dispute of trade occurred between Australia and Canada in respect of the fresh salmon.  Regarding this, Canada filed a complaint in the office of the World Trade Organization in the year 1995.  It is to be noted that both the countries Australia and Canada are the part of the World Trade Organization. In the complaint made by Canada it stated about the restriction on Australia for the import of salmon which is also a part of the quarantine measure affecting the health of an individual. Thus, it shows that a checking process must be done before importing goods from other countries.

References

Austlii, C. (2000). Australian International Law Journal .

Bridges. (1998). WTO Issues Final Ruling on Australia-Salmon Case , 2 (14).

Organization, W. T. (1998, June 12). Australia – Measures Affecting Importation of Salmon .

Organization, W. T. (2000, May 18). Australia — Measures Affecting Importation of Salmon .

Organization, W. T. (2000, February 18). AUSTRALIA – MEASURES AFFECTING IMPORTATION OF SALMON .

Taylort, M. D. (2000). THE WTO PANEL DECISION ON AUSTRALIA’S SALMON IMPORT GUIDELINES: EVIDENCE THAT THEPS AGREEMENT CAN EFFECTIVELY PROTECTHUMAN HEALTH INTERESTS .

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