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NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

SYNOPSIS
INTERNATIONAL TRADE LAW
NINTH TRIMESTER

THE OBSTACLE OF THE ‘LIKE PRODUCT’ INTERPRETATION AT

WTO FOR ANIMAL WELFARE

Submitted To: Ms. Saubhagya Bhadkaria

Submitted By: Kshitiz

Roll No.: 2017BALLB81

INTRODUCTION
Article I of the GATT is headed “General Most-Favoured-Nation Treatment” and in effect
means that each nation must, as regards imports and exports of goods and services, treat all
other nations favourably as the “most-favoured-nation.” It embodies the principle that
countries are prohibited from discriminating between like goods from different foreign
nations and further to not discriminate between imported and domestic ‘like’ goods. Over the
last decade the WTO has indeed recognized that animal welfare grounds can be used as a
legitimate objective to impose trade restrictions. 1

However, several regulations and interpretations of the laws as perceived by WTO say
otherwise. An often-cited example is the “like” products requirement, which basically says
that a country cannot discriminate between like products, irrespective of their origin. GATT
dispute panels have held that in determining whether two products are “like” one another, one

1
Peter Stevenson, The World Trade Organisation Rules: A Legal Analysis of Their Adverse Impact on
Animal Welfare.
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may only consider the end product and not the way in which it is produced. Thus, the process
and production methods (PPMs) may not be considered in deciding the issue of “likeness”. 2

The deleterious impact of such an interpretation of likeness disregards, say for example, the
difference between all battery eggs and free-range eggs. Because the end product is the same,
that is an egg. The WTO disregards the fact that battery eggs are from chickens treated
cruelly. Or that no distinction can be drawn between beef from cows cramped into small
enclosures which are subjected to cruelty and between cows that can forage freely on
pastures. 3 Such regulations which ignore the process and production methods have shocking
impacts on animal well-being. The effect of this interpretation on animal welfare came to
light after the two Tuna-Dolphin cases. The same interpretation also led the EU to abandon
the ban on the import of furs from countries, which use the leghold trap.

Similarly, the EU still has not brought into force its ban on the sale of cosmetics tested on
animals for fear of backlash from its trade partners. Although Article XX of GATT 1994 does
provide for some general public policy exceptions, but animal welfare is not one, and there is
a strong presumption against the recognition of process methods for differentiating between
goods as stated above. Other agreements which form a part of the WTO law which can have
an impact on animal welfare are Agreement on Technical Barriers to Trade , the Agreement
on Agriculture (‘AOA’) and the Agreement on the Application of Sanitary and Phytosanitary
Measures (‘SPS’). This reflects the tendency of WTO to underestimate the importance of
animal welfare by continuously taking a ‘commercial’ outlook to interpret measures’ legality.
The outcome of the tuna/dolphin, shrimp/turtle and leghold trap issues support this view.
Although several attempts have been made to balance trade and animal interests, for WTO to
remain relevant in a sustainable development-oriented century, it is necessary for it to address
these growing concerns with renewed vigour.

Thus, the aim of this project will be to analyse in depth the impact of the ‘like product’
interpretation on animal welfare around the world.

HYPOTHESIS
2
Edward M. Thomas, Playing Chicken at the WTO: Defending an Animal Welfare-Based Trade
Restriction Under GATT's Moral Exception, 34 B.C. Envtl. Aff. L. Rev. 605 (2007).
3
Lurié, Andrew, and Maria Kalinina, Protecting Animals In International Trade: A Study Of The Recent
Successes At The WTO And In Free Trade Agreements, American University International Law Review
30 no. 3 (2015): 431-487.
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There are more than one interpretation provided to the term ‘like product’ which in turn
affects the animal welfare aspect of world trade. A stable interpretation might help in
achieving proper achievement of animal welfare in world trade by making it a legalised
exception (trade barrier) to the ‘no discrimination between foreign and domestic products
rule’ which is embodied in article I of GATT.

STATEMENT OF PROBLEM
The various interpretations given to the ‘like product’ in the matters of international trade
affect the animal welfare aspect of world trade. The commercial outlook of WTO in some
cases underestimates the importance of animal welfare which results in adverse effects on
animal and cattle life.

RESEARCH METHODOLOGY
The doctrinal method of study has been adopted in making this project. The analysis and
conclusion are based on secondary sources of information, primarily case laws and restricted
literature on International Trade Law found in books, articles, journals, and web resources.

RESEARCH QUESTIONS
1. What are the concerns arising from the interpretation given to ‘like product’ criteria
by the WTO?
2. What are the steps that can be taken to address these concerns at WTO?

OBJECTIVES
● To critically examine various decisions taken at WTO and their impact on
animal health and welfare.
● To assess whether such regulations for animal welfare are technical
barriers, and if so whether an exception can be carved out for them.
● To analyse whether articles XX:b and XX:g can be used to enable
protection of animal welfare, especially with regard to likeness criteria.
● To assess whether animal concerns can be addressed a part of public morals
under Article XX:a.

SCOPE
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This project would explore the ‘Like Product’ interpretation in detail with the help of various
relevant international trade law cases. It would conclude with the required suggestions on a
way forward on complex interpretations of ‘like product’ which would be favourable for
animal welfare.

REVIEW OF LITERATURE
 International Trade Law by Ishita Chatterjee (2 nd Edition, 2016) The present book
discusses important and relevant information related to GATT and its related
controversial and non-controversial agreements together with WTO in precise and
lucid manner. -The incorporation, role, and structure of UNCTAD, as an organ of
United Nations has been discussed. -The Bretton Wood system, which gave birth to
IMF and IBRD, which plays a prominent role in proving international liquidity and
capital has been presented in a lucid manner.
 ‘Like Product’ in International Trade Law by Won-Mog Choi (1 st Edition, 2003)
The obligations of international trade law hinge upon the question of what constitutes
"like products." Trade disputes will often involve an examination of whether the
products in question are in competition with one another. This book seeks to develop
consistent principles and an effective definition for this central issue of world trade
law.
 Understanding International Trade Law by Simone Schnitzer (1 st Edition, 2006)
This book provides an accessible overview of international trade law and examines in
detail the interconnection and the practical relevance of the different contracts to be
concluded in pursuance of a single international sale transaction. The text focuses on
the international sale of goods, which are transported by ship, road and air with the
main attention being given to sea transport. It introduces the reader to the trade terms
used in international sale contracts, in common law and Incoterms in particular. The
text examines how the parties have to fulfil their relative duties, highlighting essential
issues of contracts of carriage and cargo insurance. Special attention is given to
aspects of financing international trade and securing payment. The text also highlights
the importance of choosing the applicable law and dispute resolution mechanism.
 The WTO Rules: A Legal Analysis of their Adverse Effects on Animal Welfare
by Peter Stevenson (Animal Law Journal, 2003) The article examines the WTO
rules and how they have been interpreted by case law. It then identifies the way in
which the WTO rules need to be reformed if they are not to continue to have a
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deleterious effect on animal welfare. Finally, the article argues that WTO members
could quite properly interpret the existing rules less restrictively in such a way as to
permit measures designed to improve animal welfare.

TENTATIVE CHAPTERISATION
1. Introduction
2. The ‘like product’ interpretation: a cause of concern
3. A legal quagmire
 Tuna-Dolphin I case (1991)
 Tuna-Dolphin II case (1994)
 Shrimp-Turtle case (1998)
4. Other issues
 EC Asbestos (2001)
 EC Seal (2014)
5. Suggesting a way forward
6. Conclusion