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A written submission for the complainant in the 13th gnlu international law moot court competition 2022, focusing on a dispute between danizia and the federal republic of valaria concerning the valarian ethical cosmetics act (eca) and its impact on international trade. The submission argues that the eca's labelling and certification requirements violate the wto's tbt agreement, while the taxation measure under the sta violates gatt obligations. It also requests the panel to exercise its discretion under art. 19.1 of the dsu with respect to danizia's request for a recommendation.
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In the WORLD TRADE ORGANIZATION PANEL VALARIA – MEASURES AFFECTING THE IMPORTATION AND MARKETING OF COSMETIC PRODUCTS WT/DSXXX DANIZIA ( CLAIMANT ) v. FEDERAL REPUBLIC OF VALARIA ( RESPONDENT ) W RITTEN SUBMISSION for C OMPLAINANT
W RITTEN S UBMISSION for C OMPLAINANT T ABLE OF C ONTENTS
I. Isle of Nysa’s request to file an amicus curiae brief should be accepted and considered in this dispute. ................................................................................................ 1 A. THE PANEL’S AUTHORITY UNDER ART. 13 OF DSU IS COMPREHENSIVE IN NATURE. .. 1 B. ISLE OF NYSA’S AMICUS CURIAE BRIEF IS UNBIASED AND PERTINENT TO THE DISPUTE. 2 II. Labelling requirement under Section 6 of the Ethical Cosmetics Act, 2021 is in violation with Art. 2.2 of TBT Agreement. ..................................................................... 3 A. LABELLING REQUIREMENT CONSTITUTES A TECHNICAL REGULATION. ........................ 3 B. LABELLING REQUIREMENT DOES NOT PURSUE A LEGITIMATE OBJECTIVE. ................... 4 C. LABELLING REQUIREMENT IS MORE TRADE RESTRICTIVE THAN NECESSARY TO FULFIL THE STATED OBJECTIVE. ...................................................................................................... 6
W RITTEN S UBMISSION for C OMPLAINANT T ABLE OF C ONTENTS
W RITTEN S UBMISSION for C OMPLAINANT L IST OF A BBREVIATIONS
AB/R Appellate Body/Report Art. Article Doc. Document DSB/M Dispute Settlement Body/Mechanism DSU Dispute Settlement Understanding ed. Edition et. Al. And others Govt. Government Id. Ibidem i.e. Id Est No. Number PR Panel Report p./ pp. Page/ Pages s. Section WTO World Trade Organization WT/DS World Trade/ Dispute Settlement v. Versus
W RITTEN S UBMISSION for C OMPLAINANT I NDEX OF A UTHORITIES Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres , ¶ 178, WTO Doc. WT/DS332/AB/R (adopted Dec. 3, 2007)
Appellate Body Report, Canada – Certain Measures Concerning Periodicals , ¶¶ 22 & 23, WTO Doc. WT/DS31/AB/R (adopted Jun. 30,
Appellate Body Report, Chile – Taxes on Alcoholic Beverages, ¶49, WTO Doc. WT/DS87/AB/R WT/DS110/AB/R (adopted Dec. 13, 1999)
Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audio-Visual Entertainment Products , ¶240, WTO Doc. WT/DS363/AB/R (adopted Dec. 21, 2009)
Appellate Body Report, China – Measures Related to the Exploration of Various Raw Materials , ¶251, WTO Doc. WT/DS394/AB/R, WT/DS395/AB/R, WT/DS398/AB/R (adopted Jan. 30, 2012)
Appellate Body Report, European Communities — Measures Affecting Asbestos and Products Containing Asbestos , ¶55, WTO Doc. WT/DS135/AB/R (adopted Apr. 5, 2001)
Appellate Body Report, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products , ¶ 5.1, WTO Doc. WT/DS400/AB/R, WT/DS401/AB/R (adopted Jun. 18, 2014)
Appellate Body Report, European Communities – Regime for the Importation, Sale, and Distribution of Bananas – Recourse to Article 21. by United States/ Second Recourse to Article 21.5 by Ecuador, ¶325, WTO Doc. WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA (adopted Nov. 25, 2008)
Appellate Body Report, European Communities – Trade Description of Sardines , ¶¶ 164, 167, WTO Doc. WT/DS231/AB/R (adopted Oct. 23,
W RITTEN S UBMISSION for C OMPLAINANT I NDEX OF A UTHORITIES
Appellate Body Report, European Union – Anti-Dumping Measures on Imports of Certain Fatty Alcohols from Indonesia , ¶ 5.208 WTO Doc. WT/DS442/AB/R (adopted Sep. 5, 2017)
Appellate Body Report, Japan – Taxes on Alcoholic Beverages , pg. 19, WTO Doc. WT/DS11/AB/R (adopted Oct. 4, 1996)
Appellate Body Report, Korea — Measures Affecting Imports of Fresh, Chilled and Frozen Beef , ¶133, WTO Doc. WT/DS161/AB/R, WT/DS169/AB/R (adopted Dec. 11, 2000)
Appellate Body Report, Philippines – Taxes on Distilled Spirits , ¶168, WTO Doc. WT/DS396/AB/R, WT/DS403/AB/R (adopted Dec. 21, 2011)
Appellate Body Report, Russia – Measures Affecting the Importation of Railway Equipment and Parts thereof , ¶5.162, WTO Doc. WT/DS499/AB/R (adopted Feb. 2020)
Appellate Body Report, United States – Certain Country of Origin Labelling (COOL) Requirements – Recourse to Article 21.5 of DSU by Canada & Mexico , ¶¶ 5.197, 5.198, WTO Doc. WT/DS384/AB/RW, WT/DS386/AB/RW (adopted May 18. 2015)
Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products , ¶79, WTO Doc. WT/DS58/AB/R, (adopted Nov. 6, 1998)
Appellate Body Report, United States – Laws, Regulations and Methodology for Calculating Dumping Margins (Zeroing) – Recourse to Article 21.5 of the DSU by the European Communities , ¶466, WTO Doc. WT/DS294/AB/RW (adopted May 14, 2009)
Appellate Body Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes , ¶91, WTO Doc.
W RITTEN S UBMISSION for C OMPLAINANT I NDEX OF A UTHORITIES (adopted Dec. 19, 2000) Panel Report, Australia – Certain Measures Concerning Trademarks, Geographical Indications and other Plain Packaging Requirements Applicable to Tobacco Products and Packaging , ¶ 7.149, WTO Doc. WT/DS435/R, WT/DS441/R WT/DS458/R, WT/DS467/R (adopted Jun. 28, 2018)
Panel Report, Brazil – Certain Measures Concerning Taxation and Charges, ¶7.105, WTO Doc. WT/DS472/R, WT/DS497/R (adopted Aug. 30, 2017)
Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres , ¶7.114, WTO Doc. WT/DS332/R (adopted Jun. 12, 2007)
Panel Report, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products , ¶7.523, WTO Doc. WT/DS400/R WT/DS401/R (adopted Nov. 25, 2013)
Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry , ¶¶ 14.121, 14.122, WTO Doc. WT/DS64/R (adopted Jul. 2, 1998)
Panel Report, Japan – Taxes on Alcoholic Beverages , ¶ 43-45, WTO Doc. WT/DS11/R (adopted Jul. 11, 1996)
Panel Report, Russia – Measures affecting the importation of Railway Equipment and Parts thereof , ¶7.403, WTO Doc. WT/DS499/R (adopted Jul. 30, 2018)
Panel Report, Turkey – Restrictions on Import of Textile and Clothing Products , ¶ 4.1- 4.3, WTO Doc. WT/DS34/R, (adopted May 31, 1999)
Panel Report, United States – Certain Country of Origin Labelling (COOL) Requirements , ¶7.572, WTO Doc. WT/DS384/R, WT/DS386/R (adopted Nov. 28, 2011)
W RITTEN S UBMISSION for C OMPLAINANT I NDEX OF A UTHORITIES Panel Report, United States – Continued Dumping and Subsidy Offset Act of 2000 , ¶8.6, WTO Doc. WT/DS217/AB/R, WT/DS234/AB/R (adopted Jan. 16, 2003)
Panel Report , United States – Measures Affecting Alcoholic and Malt Beverages , ¶5.6, BISD 39S/206, DS23/R - 39S/206 (adopted Mar. 16, 1992);
Panel Report, United States – Measures Affecting the Production and Sale of Clove Cigarettes , ¶ 7.24, WTO Doc. WT/DS406/R (adopted Sep. 11,
Panel Report, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products , ¶7.445, WTO Doc. WT/DS381/R (adopted Sep. 15, 2011)
Panel Report, United States – Measures Concerning the Importation, Marketing and Sale of Tune and Tune Products , ¶7.405, WTO Doc. WT/DS381/R (adopted Sep. 15, 2011)
Panel Report, United States – Tariff Measures on Certain Goods from China , ¶7.140, WTO Doc. WT/DS543/R (adopted Sep. 15, 2020)
Panel Report, United States – Taxes on Petroleum and Certain Imported Substances , L/6175 – 34S/136, BISD 34S/136 (adopted Jun. 5, 1987)
Panel Reports, United States – Certain Country of Origin Labelling (COOL) Requirements , ¶7.667, WTO Doc. WT/DS384/R / WT/DS386/R (adopted Jul. 23, 2012)
Report of the Panel, European Economic Community – Payment and Subsidies Paid to Processors and Producers of Oilseeds and Related Animal-Feed Proteins , ¶144, L/6627 (Mar. 13, 1992) BISD 37S/ (adopted Jan. 25, 1990)
W RITTEN S UBMISSION for C OMPLAINANT I NDEX OF A UTHORITIES Jason Potts, The legality of PPMs under the GATT: Challenges and Opportunities for Sustainable Trade Policy , INTERNATIONAL INSTITUTE FOR SUSTAINABLE DEVELOPMENT 3 (2008)
Joseph Keller, The Future of Amicus Participation at the WTO: Implications of the Sardines Decision and Suggestions for Further Developments , 33(3) INTERNATIONAL JOURNAL OF LEGAL INFORMATION 449, 456 (2005)
Kahneman, D., & Tversky, A. Prospect Theory: An Analysis of Decision under Risk , 47(2) ECONOMETRICA 263 – 291 (1979)
Lauren Konken, Silence is Golden? Revisiting Third Party Participation in World Trade Organization Litigation 23 (Sep. 2018)
Marc Busch & Eric Reinhardt, Three's a Crowd: Third Parties and WTO Dispute Settlement , 58(3) WORLD POLITICS 446 – 477 (2006)
Nanda Schrama, Positive versus Negative eco-labelling; will negative labels change consumer behaviour , STUDENT CONSUMER SCIENCE, 1 (Mar.
Nikos Lavranos, The (ab)use of Third-Party Submissions , 5(1) EUROPEAN INVESTMENT LAW AND ARBITRATION REVIEW ONLINE 426 - 436 (2020)
Stephen G. Masciocchi, What Amici Curiae Can and Cannot Do with Amicus Briefs , 46 COLORADO LAWYER 23 (Apr. 2017)
Cambridge English Dictionary, https://dictionary.cambridge.org/dictionary/english/inconvenience (Last accessed Mar. 12, 2021)
W RITTEN S UBMISSION for C OMPLAINANT I NDEX OF A UTHORITIES Do Invertebrates Feel Pain? The Senate Standing Committee on Legal and Constitutional Affairs, https://sencanada.ca/content/sen/committee/372/lega/witn/shelly-e.htm
Lisa A. Robinson et. Al., Consumer Warning Labels Aren’t Working , HARVARD BUSINESS REVIEW (Mar. 13, 2022) https://hbr.org/2016/11/consumer-warning-labels-arent-working
Shorter Oxford English Dictionary 2, 1895 (4th edn., 1993) 10 The Climate Protection Act of 2013, § 332, 113th Congress (2009) (USA) 20 World Trade Organisation, Chapter 9.3 Participation in dispute settlement proceedings of Dispute Settlement System Training Module, https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c9s p1_e.htm
W RITTEN S UBMISSION for C OMPLAINANT S TATEMENT OF F ACTS animal testing in cosmetic industry. It also reported that the domestic cosmetic industry is struggling to compete with imports. April 1, 2021 The RESPONDENT published the draft Ethical Cosmetics Act, 2021 [“ECA”] and draft Sustainable Taxation (Amendment) Act, 2021 [“STA”]. CEO of Valaria’s largest cosmetic producer supported these legislations. They have been campaigning for the same for they were losing market share to cheaper imports. April 23, 2021 The RESPONDENT notified ECA to Technical Barriers to Trade [ “TBT” ] Committee. Shortly after the Notification Danizia sent written comments to Valaria requesting it to review the inclusion of Cephalopods in ECA. July 3-4 2021 Several WTO members expressed their concerns regarding ECA noting that the Act misleads consumer, disregards equivalency arrangements, sets up prohibitive costs and imposes barriers to trade for fast moving goods such as cosmetics. October 17, 2021 The RESPONDENT enacted both the ECA and SCA without incorporating any of the suggested changes November 23, 2021 The COMPLAINANT requested to form Panel. December 2021 No Danizian certification body was accredited by Valaria. January 8, 2022 Dispute Settlement Body [“DSB”] accepted the request from Danizia and formed a panel chaired by Mr. George Oscar Bluth II. February 4, 2022 Isle of Nysa requested to submit an amicus curiae brief before the first substantive meeting of the Panel. Valaria objected to acceptance of the said request. February 6, 2022 The COMPLAINANT supported Isle of Nysa’s request.
W RITTEN S UBMISSION for C OMPLAINANT M EASURES AT I SSUE
W RITTEN S UBMISSION for C OMPLAINANT S UMMARY OF P LEADINGS
GATT Art. III:2 establishes a National Treatment obligation on the contracting parties whereby no regulation, law, or taxation pattern can be applied as a protectionist measure. Valaria introduced a tax through Section 5 of STA to be borne by Danizian manufacturers for relying on animal test data while assessing the safety of cosmetic products. The taxation measure disregards the distinction between humane and inhumane methods of testing and results in imported cosmetic products getting taxed in excess of like domestic products. This measure violates the obligation set under GATT as: firstly , the taxation measure is not in compliance with GATT Art. III:2, First Sentence ; and secondly , the taxation requirement is not justified under the substantive provisions of GATT Art. XX. V. THE PANEL SHOULD EXERCISE ITS DISCRETION UNDER ART. 19.1 OF THE DSU WITH RESPECT TO DANIZIA’S REQUEST FOR A RECOMMENDATION. Art. 19.1 of DSU stipulates that when a panel finds a measure to be inconsistent with a covered agreement, it shall recommend the member concerned to bring the measure inconformity with the agreement. Valaria has not accredited sufficient certification bodies outside of Valaria and the date of entry into force of the ECA did not provide sufficient time to the manufacturers to adjust to the new CAP. The panel should exercise its discretion to recommend Valaria to postpone the CAP measure for a year until sufficient certification bodies are accredited as: firstly , the established violations nullify or impair benefits accruing to Danizia within the meaning of Art. XXIII: 1(a) of GATT; and secondly , the panel has the discretion to recommend Valaria to postpone implementation of CAP.
W RITTEN S UBMISSION for C OMPLAINANT L EGAL P LEADINGS
CONSIDERED IN THIS DISPUTE [ ¶ 1 ] Amicus Curiae is a “friend of the court”,^1 and assists the proceedings by offering evidence outside the record and advancing unique arguments.^2 Art. 13.1 of the Dispute Settlement Understanding (“ DSU ”) empowers the panel to seek information from any relevant source.^3 The Appellate Body (“ AB ”) in EC – Sardines ,^4 confirmed that it is entitled to accept amicus curiae briefs from a WTO member. [ ¶ 2 ] Amicus curiae briefs have been accepted both when they were attached to the participant’s submissions,^5 and when they were filed separately by private individuals and organizations.^6 The COMPLAINANT supports Isle of Nysa’s request to file amicus curiae brief and submits that the Panel’s authority under Art. 13 of DSU is comprehensive in nature (A) ; and that Isle of Nysa’s amicus curiae brief is unbiased and pertinent to the dispute (B). A. The Panel’s authority under Art. 13 of DSU is comprehensive in nature. [ ¶ 3 ] The panel’s authority is comprehensive, and it may “seek information and technical advice” from any ‘relevant’ source it deems appropriate.^7 The panel is also empowered to accept unsolicited briefs.^8 For instance, the Panel sought relevant factual and legal information from the European Communities even when it was not a party to the dispute.^9 Further, the participation by a member as amicus curiae is not prohibited merely because DSU stipulates provisions for third party submissions.^10 [ ¶ 4 ] Isle of Nysa could avail third party rights; however, it may choose to participate in (^1) World Trade Organisation, Chapter 9.3 Participation in dispute settlement proceedings of Dispute Settlement System Training Module, https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c9s3p1_e.htm. (^2) Stephen G. Masciocchi, What Amici Curiae Can and Cannot Do with Amicus Briefs , 46 COLORADO LAWYER 23 (Apr. 2017). (^3) Understanding on Rules and Procedures Governing the Settlement of Disputes art. 13.1, Apr. 15, 1994, Marrakesh Agreement establishing the World Trade Organization, Annex 2, 1869 U.N.T.S. 401 [hereinafter ‘DSU’]. (^4) Appellate Body Report, European Communities – Trade Description of Sardines , ¶¶ 164, 167, WTO Doc. WT/DS231/AB/R (adopted Oct. 23, 2002) [hereinafter ABR EC-Sardines ]. (^5) Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products , ¶79, WTO Doc. WT/DS58/AB/R, (adopted Nov. 6, 1998) [hereinafter ABR US-Shrimp ]. (^6) Appellate Body Report, European Communities — Measures Affecting Asbestos and Products Containing Asbestos , ¶55, WTO Doc. WT/DS135/AB/R (adopted Apr.5, 2001) [hereinafter ABR EC - Asbestos ]. (^7) ABR US – Shrimp , supra note 5, ¶ 104. (^8) ABR US – Shrimp , supra note 5, ¶¶ 108 & 109. (^9) Panel Report, Turkey – Restrictions on Import of Textile and Clothing Products , ¶ 4.1- 4.3, WTO Doc. WT/DS34/R, (adopted May 31, 1999). (^10) Appellate Body Report EC-Sardines, supra note 4, ¶165.
