Zoekresultaten

Zoekopdracht: faculteit: "FdR" en publicatiejaar: "2012"

AuteurM. Andruczyk
TitelDoes Korea discriminate against Canadian beef under the guise of BSE protections?
BegeleiderJ. Mathis
Jaar2012
Pagina's50
FaculteitFaculteit der Rechtsgeleerdheid
OpleidingFdR MA International and European Law: International Trade and Investment Law
TrefwoordenWTO; trade barriers; food trade; beef trade; BSE
SamenvattingThe following paper intends to outline the major points of contention and arguments, which are likely to be raised by the complainant (Canada) as well as the respondent (Republic of Korea) in the course of the proceedings in the Korea-Beef case. The actual argumentation of the parties was not available to the author and may never be so, as it appears that the dispute will be resolved amicably and the Canadian beef will be allowed access to the Korean market. The value of the analysis may therefore lie not so much in the particular case at hand, but rather in bringing to light certain patterns of reasoning that may be leveraged in other cases, as certain important markets are still closed to the Canadian beef.
The central legal issue in the paper is ‘discrimination’. The paper attempts to analyze Canada’s legal claims of discriminatory treatment by Korea of Canadian beef vis-à-vis the American beef. The examination of the claim is conducted through the prism of Article 5.5 of the SPS Agreement, which elaborates the details of the application of the concept of ‘discrimination’ in the context of sanitary measures in international trade.
The analysis of the case is conducted within the framework set out by the jurisprudence, in particular the three-pronged cumulative test for discriminatory treatment. Each of the elements of the test is examined for violation by the Korean measures and where possible, tentative ‘verdict/opinion’ is issued by the author.
Prominent part in the analysis is played by the OIE (World Organization for Animal Health) guidelines for trade in beef, as elaborated by Chapter 11.5 of the Terrestrial Animal Health Code. Even though the provision pertaining to the use of the international standards is Article 3.1 of the SPS agreement, OIE’s BSE standard served as a ‘benchmark’ in the Article 5.5 analysis, against which the respective Korean measures employed vis-à-vis Canada and the US could be compared.
Finally, this thesis would not be possible without access to translations of the original Korean legislation. It is the complex of logically connected legislative provisions that constitutes the Korean ‘measure’ against the Canadian beef and without understanding that network, no meaningful analysis would have been possible. Therefore, the author would like to extend heartfelt thanks to Mme. Ladi Jateau and Mr. Rahool Watchmaker, both of the Department of Foreign Affairs and International Trade in Ottawa, Canada, for their expert, prompt and above all, generous assistance.
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