Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Canada Requests WTO Panel Against South Korea's Continued Ban of Canadian Beef

On July 9, 2009, Canada's Minister of International Trade / Minister for the Asia-pacific Gateway, Stockwell Day and Minister of Agriculture and Agri-Food, Gerry Ritz, announced that Canada had made its first request for the establishment of a WTO Panel on the issue of South Korea's continuing ban on the importation of Canadian beef. It is expected that South Korea will not agree to the establishment of a WTO dispute settlement panel and Canada will make a second request in one month's time. This is usual. The second request will lead to the establishment of a panel (unless a miracle occurs and South Korea stops the ban).

In May 2003, South Korea imposed a ban against imports of Canadian beef after BSE was discovered in a single mad cow from a single farm in Alberta. The South Korean measures at issue include, but are not limited to, the following:

- Administrative Order No. 51584-476, which entered into force on 21 May 2003;

- Korean Act No. 9130 amending the Act on the Prevention of Contagious Animal Diseases (also known as the Livestock Epidemic Prevention Act), which entered into force on 11 September 2008.

In May 2007, the World Organisation for Animal Health (OIE) officially categorized Canada as a "Controlled Risk" country for BSE after recognizing the effectiveness of Canada's surveillance, mitigation and eradication measures. The OIE confirms Canada's safe status in 2008 and 2009.

South Korea did not lift its ban after the OIE positive regard for Canada. however, South Korea did dispatch a 6-person team from the Ministry for Food, Agriculture, Forestry and Fisheries to work in Canada to inspect the country's livestock and feed systems and review evidence compiled by Canadian officials.

However, at that time, Canada identified its 16th BSE case.

After diplomatic discussions, on April 9, 2009, Canada filed at the WTO a Request for Consultations with South Korea. The consultations, held on May 7, 2009, did not resolve the issue.

The WTO dispute will consider the prohibition of importation bans and the Agreement on Sanitary and Phyto-Sanitary Measures (SPS Agreement). Canada is of the view that these measures are inconsistent with the obligations of South Korea under the SPS Agreement and the GATT 1994. The provisions of these Agreements with which the measures appear to be inconsistent include the following:

* Articles 2.2, 2.3, 3.1, 3.3, 5.1, 5.5, 5.6, 5.7, 6.1, 8 and Annex C of the SPS Agreement; and

* Articles I:1, III:4 and XI:1 of the GATT 1994.

Canada has reserved the right to raise additional claims and legal matters regarding the measures at issue during the course of consultations.

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