In the year 1990, a dispute over the trade of salmon was raised between Australia and Canada as Canada complained about the restriction imposed by Australia for importing the salmon (Footer, 2006). This legal assignment will depict the issues of this case along with the related legal aspects and their conclusion that led to a legal solution of this problem.
Australia imposed a ban on importing fresh salmon from the international water through procuring a regulation of quarantine in order to safeguard the fish stock of Australia from any kind of imported diseases. Australia allowed the importing of smoked salmon, canning salmon and non-fresh salmon whereas the half of the import value came from Canada. The Australian salmon was more reliable and healthy for the environmental regulation in the global market. In this aspect, the measure at issues is the legitimacy of the import ban of Australia of fresh salmon from Canada whereas the product at issue is the frozen or fresh Canadian salmon fish. The alternative dispute resolution board of WTO supported Canada as they found no proper evidence to term the salmon of Canada to be unsafe for health (Murray et al. 2005). The Appellate Body of WTO made another subsequent decision by determining the incapability of the Agreement on The Application of Sanitary and Phytosanitary Measures to procure the ban on importing salmon from Canada. Subsequently, the WTO ordered the Australian government to dismiss the ban along with increasing the requirements of quarantine for all kind of fish imports including salmon. The Australian government tried to justify the ban in the health grounds whereas Canada completely nullified that allegation to term the banning of Australia as protectionism for business.
This case was lodged in WTO as per the dispute DS18 as it challenged the SPS agreement and the Uruguay round. Canada urged for consultation as they claimed that the prohibition in salmon importing by Australia with using the quarantine regulation was not at all compatible with the SPS agreement. On the other hand, Canada also showed the article 11 and article 12 of the General Agreement on Tariff and Trade 1994 to prove the discrepancies in the quarantine policy of Australia as a violation of international trade law. In response of the request of Canada to make dispute resolution panel, the board was formed by keeping India, Norway and US as the third parties in the case. As per the article 2.2 of the SPS Agreement, any country needs to prove the fault or hazardous element in consumables and foods to impose a ban on the importing. In this case too, Australia had to provide chemical evidence to prove the fresh salmon as hazardous to health to establish their decision of banning as legitimate as per the law (Pauwelyn, 1999). The dispute resolution panel of WTO did term the banning decision of Australia as definitely inconsistent with the article 2.3 and 5.5 of the SPS Agreement whereas this decision also nullified the accuring benefits for Canada as per the guidelines of the SPS Agreement. On the other hand, Australia did make another appeal by challenging this decision in the Appellate Body of WTO in the circulation of 1998. The reasoning of the article 5.5 and article 2.2 of the SPS agreement were reviewed whereas this body also did find out that the action of Australia was utterly inconsistent with the sections of the agreement articles.
The panel determination was expanded by the body in order to depict that the action of imposing a ban was also a sheer deviation from the articles 5.6 and 2.2 of the SPS agreement. At the end, the Appellate body completely reversed the finding of the legal panel and depicted that the activity of Australia was very much inconsistent with the article 5.6 of the SPS agreement but the body failed to depict whether the measurement of Australia was appropriate with the article 5.6 for lack of sufficient and complete findings of the panel. This decision caused direction for the Australian government to lift the prohibition on the import of salmon fish of Canada along with other quarantine requirements for varied species of fish imports (Peeler et al. 2005). The DSB sanctioned the report of the Appellate Body whereas the Australian government also agreed upon the decision and promised to follow the verdict. On the other hand, Canadian government made another claim for arbitration as per the article 21.3 (c) to the Dispute Settlement Understanding to determine a specific period of time to implement and incorporate the legal changes instructed by the DSB. As per the article 21.3 of the arbitration council of WTO, the reasonable period for implementing the changes in importing policy of Australia was settled as eight months in the year 1999.
This led Australia to publish the 1999 Import Risk Analysis as a response of the dispute by WTO as Australia depicted the chilled and fresh salmon are potential health risk for the people. Canada again made a request to the DSU for determining an original panel to take further decisions about the consistency of the Australian measurements with the rules of WTO to foster the dispute resolution process. The DSB made another agreement to acknowledge the request of Canada for referring the legal dispute back to the original dispute resolution panel. The third party rights were again reserved for the countries like Norway, United States and India. There were no measurements for compliance in the article 21.5 of the DSU for the different covered products along with specified time frame. On the contrary, Australia had to use the recommendations of the DSB for extended time beyond the reasonable time period for making delay in the entering process of forcing the measurements in action. As the result of this dispute, those periods experienced the futility of Australia to implement the measurements for conforming to the guidelines of the SPS agreement by complying with the article 22.6 of the DSU.
Australia focused on only importing the consumer ready salmon fishes to release from the quarantine through maintaining the measurements of sanitary hygiene to fructify the risk assessment process. This activity was completely a violation of the articles 5.1 and the article 2.2 of the agreement guidelines of the SPS. The original panel of WTO also considered the identical requirements of the quarantine process of Australian policy as sheer violation of the article 5.6 of the SPS agreement proctored by the World Trade Organisation (Atik, 2004). In the final process, the original panel had found out that the quarantine policy of Australia was intense violation and breach of the article 2.2 and article 5.1 of the SPS agreement as the measurement by the Tasmanian government was illegal too. The CFIA or Canadian Food Inspection Agency verified that the exported fresh salmon are completely compatible with the food standard of Canada as the Fish Inspection Act 1978 was used by Canada to provide a substantial export of salmon for answering the vague speculations of Australia. On the other hand, the hundred year trade relationship of Canada and Australia was severely disturbed with the salmon issue.
As per the article 5.1 of SPS the risk assessment is evident that was also ventilated in the finding of Appellate body for the wrong measurements in the import prohibition of the Australian government over the fresh salmon from Canada. The decision was not based on the risk assessment requirement of article 5.1 and thus the decision is termed as violation of law. Apart from that, the prohibition of the discrimination along with disguised ban of international trade was another key finding through this case. The Appellate Body stated the prohibition as violation of article 5.5 by terming it as completely unjustifiable to cause an illegal situation of discriminated restriction for the Canadian fresh salmon. The ban on salmon was only a disguised restriction as compared to the importing of other fishes and related products like herrings along with finfish. The case also witnessed the violation of the article 5.6 of the SPS that depicts the appropriate protection level through importing activities (Voon, 2009). The findings of the original panel was reviewed and sustained by Appellate board as they found that treatment of more trade restriction than the basic requirement by Australia was sheer violation of the article standards. The treatment of the import by Australia was completely wrongful in measure whereas the board was unable to complete the panel analysis for lack of proper facts for establishing the violation of article 5.6 by the Tasmanian government of Australia.
The Appellate board focused on going to possible extent to analyse the factual findings of the recorded data by the panel along with the undisputed facts in the case. The case is imbued with false judicial economy for making limited findings of the issues of this case spcially the treatment to other Canadian salmon as per the article 5.5 and 5.6 (Carlson et al. 1999). It was being clarified that the panels ought to emphasize on the claims for the incorporation of judicial economy in order to make positive solution to this case to mitigate the legal dispute in international trade practices. The provision of partial resolution in the legal matter of issue can be considered as false economy of judicial system. The panel also refused the application of Australia for granting the imposition of limitation through judicial provision on the article 21.5 for procuring ease in maintaining compliance whereas the certain issues of this article procure considerable measures to solve business related disputes.
The panel of compliance can evaluate the compliance measurements for coping up with the guidelines of the recommendations by DSB that also ruled out the provision of covered agreements in this dispute. The panel raised general obligation for the Australian government as per article 2.2 for constituting a risk assessment to formulate a rational relationship to avoid any kind of breach in the guidelines of world trade rules (Thorn et al. 1999). This specified rational relationship led to remark the activity of prohibition by Tasmanian government as sheer breach of the article 2.2 and 5.1. The employment of different level of protection by Australia not was scientifically justified and this treatment is considered as disguised restriction only for Canadian fresh salmon by contemplating the virtue of international trade affairs. The technical and economic feasibility of the measurements taken by Australia generated less-trade measurements of restriction to cause safeguard of import protection. This alternative measurement for protection by Australia through special packaging process are violations of the law.
The Tasmanian government imposed prohibition on the certain fresh salmon of Canada without making any risk assessment for justifying the reason of the ban. This act of the government without any scientific evidence was considered as a prior violation of the international trade law and importing regulation by trade blocs like WTO (Johanson et al. 1999). The DSB adopted the compliance panel report in the year 2000. Before the process of compliance, Canada asked for authorization as per the article 22.2 of the DSB and DSU for procuring suspension of the concessions for Australia for their activities of violating the law. The level of suspension proposed by Canada was strictly objected by Australia and asked for further decisions through arbitration tribunal as per the article 22.6 of the DSU. In response to the urge, the DSB agreed for arbitration proceedings whereas this process was suspended until the completion of the proceedings of compliance.
The DSB followed the decision of the original panel of compliance to foster discussion between the Australia and Canada government by keeping WTO as a mediator. The discussion process also included the specified government sectors and panels of those two countries along with the panel of businesses. Canada urged to make an agreement with Australia about the import of fresh salmon to close the dispute in legal process (Stewart et al. 1998). There was exchange of agreement letter among the two dispute parties as the agreement procured the provision for Canada to closely monitor the commitment of Australia for implementing the performance of the contractual obligation that was effective from the 2000.
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