INTERNATIONAL & COMPARATIVE LAW
New procedure of 'ad hoc consultations' agreed for mediating food safety and animal-plant health friction
According to official WTO wesite news, the voluntary procedure (document G/SPS/61) was agreed subject to confirmation (“ad referendum”) in the 9–10 July 2014 meeting of the Sanitary and Phytosanitary Measures (SPS) Committee, with members given until 5 September to raise any final objections. No delegation did and so the decision has now been officially adopted.
The mediation decision, sometimes called “ad hoc consultations”, is the committee’s latest contribution to helping trade flow more smoothly as it deals with one of the pre-occupations of importers and exporters facing non-tariff barriers — the standards countries set on a range of issues, from maximum pesticide residues in food to preventing the spread of pests such as fruit fly and diseases such as bird flu in agricultural products.
It adds a new tool for resolving differences on specific trade concerns, while avoiding expensive and complicated legal challenge under the WTO’s dispute settlement procedure.
Concerns of this nature are usually first raised in the committee, when members seek a resolution through consultations, discussion in the committee, and peer pressure. Here, the two sides are left to resolve their differences on their own.
The new system bridges a gap between raising concerns in the committee and full-scale litigation. It is voluntary and is not legally binding but it does provide an opportunity for the two sides to hear the opinion of a third party: a mediator, usually the SPS Committee’s chairperson. This could be confidential or reported publicly.
The SPS Agreement already allows members to seek the chair’s services as a mediator (Art.12.2). The new decision spells out steps that the members concerned and the chair should follow, provided those members agree to use the system.