หนังสือ-ProceedingsLawCMU 2019

PROCEEDINGS The 2019 Law CMU International Conference “Law, Legality and Legitimacy in Asia” November 1st, 2019, Chiang Mai, THAILAND Organized by Faculty of Law, Chiang Mai University

Proceedings The 2019 Law CMU International Conference “Law, Legality and Legitimacy in Asia” November 1st, 2019 Chiang Mai, THAILAND Editor Usanee Aimsiranun Faculty of Law, Chiang Mai University Organized by Faculty of Law, Chiang Mai University

All publication decisions are made by the editor on the basis of the reviews provided. This book is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review as permitted under the copyright act, no part may be reproduced by any process without the written permission of the publisher. Responsibility for the content of these articles rests upon the authors and not the publisher. Data presented and conclusions developed by the authors are for information only and are intended for use without independent substantiating investigations on the part of the potential user. Copyright © 2020 by Faculty of Law, Chiang Mai University Proceedings of The 2019 Law CMU International Conference “Law, Legality and Legitimacy in Asia” Editor: Usanee Aimsiranun ISBN: 978-616-398-450-0 Published by Faculty of Law, Chiang Mai University 239 Huay Kaew Road, Muang District, Chiang Mai 50200, Thailand Website: https://www.law.cmu.ac.th/site/ Email: [email protected]

Editorial Board Editor-in-Chief Asst.Prof.Dr.Usanee Aimsiranun, Faculty of Law, Chiang Mai University Editorial Board Asst.Prof.Dr.Pornchai Wisuttisak, Faculty of Law, Chiang Mai University Assoc.Prof.Somchai Preechasinlapakun, Faculty of Law, Chiang Mai University Asst.Prof.Dr.Alexandre Chytov, Faculty of Law, Chiang Mai University Dr. Darunee Paisanpanichkul, Faculty of Law, Chiang Mai University Dr. Nuthamon Kongcharoen, Faculty of Law, Chiang Mai University Dr. Pedithep Youyuenyong, Faculty of Law, Chiang Mai University Dr. Ploykaew Porananond, Faculty of Law, Chiang Mai University International Advisory Board Professor Dr. Zinatul Ashiqin Zainol, National University of Malaysia Asst.Prof.Dr. Nasarudin bin Abdul Rahman, International Islamic University Asst.Prof Dr. Nguyen Bah Binh, Hanoi Law University Editorial Staff Mr.Thinakrit Nuwong, Faculty of Law, Chiang Mai University Ms.Waralak Naksen, Faculty of Law, Chiang Mai University Ms.Khirakorn Chatrattanapong, Faculty of Law, Chiang Mai University

Conference Schedule The 1st Law CMU International Conference 2019 Law, Legality and Legitimacy in Asia at Duangtawan Hotel, Chiang Mai, THAILAND November 1st, 2019 09.00 – 09.30 Registration Opening Ceremony at Chiang Dao Room 1-2 09.30 – 09.45 Welcome Remark by Assistant Professor Dr. Pornchai Wisuttisak Dean of Faculty of Law, Chiang Mai University 09.45 – 10.00 Opening Remark by Clinical Professor Niwes Nantachit President of Chiang Mai University / Representative of Chiang Mai University Keynote Address at Chiang Dao Room 1-2 10.00 – 10.30 Law, Legality and Legitimacy in Asia: Pathway(s) to Human Rights? by Mr. Vitit Muntarbhorn Professor Emeritus, Faculty of Law, Chulalongkorn University (former UN Special Rapporteur, UN Independent Expert and member of UN Commissions of Inquiry on human rights.) 10.30 – 10.45 - Photo Session - Break Session 1 Panel Alternative Dispute Resolution at Chiang Dao Room 1-2 Moderator: Dr. Khanuengnit Khaosaeng 10.45 – 11.45 Negotiating in the Asian Century Bee Chen Goh Conceptualization and Management of New Regime of Alternative Dispute Resolution in India Sakshi Vijay Akshit Rajpal 11.45 – 13.00 Lunch @ Tawan Restaurant (2nd floor)

Panel Business & Trade Session 2 Information Technology at Chiang Dao Room 1-2 Environment at Chiang Kham Room 13.00 at Chiang Dao Room 3 – --- ---- Moderator: Assist. Prof. --- Moderator: Assist. Prof. 15.00 Dr.Pornchai Wisuttisak Moderator: Dr. Nawaporn Dr.Tossapon Tassanakunlapan Competition Law: Is Price- Saeneewong Na Ayudhaya The Influences of the Criminal 15.00 Fixing and Price-Setting Illegal Logging in Russia: a Database Management System - Algorithms Similarly per se Case Study of a Community (CRDBMS) on the Effectiveness Anti-Competitive Infringement Engagement of Cambodian Courts of First 15.15 in Malaysia? Alexandre Chitov Instance’s Administration Angayar Kanni Ramaiah Meymey Kea A Map to Competition Law in Impact of Lower Sesan 2 Privacy under the Surveillance ASEAN (LS2) Hydropower Dam on State: Legitimacy and Limits of Andrea Gideon Cambodian Women’s Rights Citizen Data in Kbal Romeas Chas and S. Mercy Deborah Of Shrimps, Consumers, and Kbal Romeas Thmey Villages, their Impact on the Relations Stung Treng Province The Need to Protect Freedom between Asia and the Tuy Sophorn of Expression Through a Human European Union The Challenge of Organic Rights Based Internet Pallavi Kishore Certification in ASEAN Governance in Indonesia Holding of the Indonesian Nuthamon Kongcharoen A.A.A Nanda Saraswati State-Owned Companies Resilience Level of Digital (BUMN) pursuant to the Waters Transfer Laws and Its Literacy to Deal with Hoax as Government Regulation Discrepancies, a Brief National Security Threat Number 72/2016 and the Overview in Some ASEAN towards Political Year of 2019 Indonesian Competition Law Countries. in Indonesia Number 5/1999 in the World Rozlinda Mohamed Fadzil Fines Fatimah Trade Organization (WTO) Rules Based-System Environmental Insurance Dian Parluhutan Yossi Niken Respati Regulation of Algorithm- Based Price Cartels in the Taxi-Online Business in Indonesia: Quo Vadis? Udin Silalahi Break

Panel Session 3 Education Justice at Chiang Kham Room 15.15 at Chiang Dao Room 3 - --- --- Moderator: 17.15 Moderator: Mr. Chainarong Luengvilai Dr. Kitpatchara Somanawat A New Paradigm of Massive 17.30 Post Conflict Local Open Online Courses (MOOCs) – Reconciliation and Everyday in Higher Education in Indonesia Peace in Cambodia: Unpacking : From Disruptive to Sustaining 18.00 the Silence of Khmer Rouge Innovation 18.00 Genocide Victims Diah Pawestri Manharani Soeung Bunly Airin Liemanto – The Development of Thai Laws 20.00 How the Absence of Specialized and Legal Education: Political Court and Adequate Trial and Social Forces to Modernity Procedural Implementation Nattapong Suwan-in Impacts the Rights of the Child and the Outcome of the Court’s Women Rights: “Role of Women Verdicts: A Study of Cambodia’s Entrepreneurs in Promoting District Court Corporate Social Responsibility Mang Sohan (CSR) in Cambodia” The Dynamic of Anti-Thaksin- Hong Sochea Regime Movements: Constructing Legitimation Through Sets of Language in ‘PDRC Movement’. Itthiphon Kotamee Closing Remarks at Chiang Dao Room 1-2 by Assistant Professor Dr.Usanee Aimsiranun Evening Reception (TBA)

CONTENT Page 1 CONCEPTUALIZATION AND MANAGEMENT OF NEW REGIME OF ALTERNATIVE DISPUTE RESOLUTION IN INDIA 21 48 Sakshi Vijay and Akshit Rajpal 56 66 OF SHRIMPS, CONSUMERS, AND THEIR IMPACT ON THE RELATIONS BETWEEN ASIA AND THE EUROPEAN UNION 84 105 Pallavi Kishore JURIDICAL ANALYSIS RELATED TO HOAX AS A THREAT OF NATIONAL SECURITY IN INDONESIA Fines Fatimah JURIDICAL ANALYSIS RELATED TO HOAX AS A THREAT OF NATIONAL SECURITY IN INDONESIA Soeung Bunly A NEW PARADIGM OF REGULATION OF MASSIVE OPEN ONLINE COURSES (MOOCs) IN HIGHER EDUCATION IN INDONESIA: FROM DISRUPTIVE INNOVATION TO SUSTAINING INNOVATION Diah Pawestri Maharani and Airin Liemanto THE DEVELOPMENT OF THAI LAWS AND LEGAL EDUCATION: POLITICAL AND SOCIAL FORCES TO MODERNITY Nattapong Suwan-in WOMEN RIGHTS: “ROLE OF WOMEN ENTREPRENEURS IN PROMOTING CORPORATE SOCIAL RESPONSIBLY IN CAMBODIA” Hong Sochea

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia CONCEPTUALIZATION AND MANAGEMENT OF NEW REGIME OF ALTERNATIVE DISPUTE RESOLUTION IN INDIA Sakshi Vijay and Akshit Rajpal1 I. Introduction The debate around ‘Alternative Dispute Resolution’ started in 1906 and originated in a speech delivered by Roscoe Pound, who at that time was thirty-six years old and a Professor of Law in Nebraska. At the time when law and court rooms were considered sacred and it was blasphemous to even constructively critique the judicial system, he asked a difficult question which as described by Randall T. Shepard, former Chief Judge of the Supreme Court, “caught the imagination of the legal profession and provoked decades of reform” 2 . His address was titled “The Causes of Popular Dissatisfaction with the Administration of Justice” 3 and is found relevant across borders and after decades of development, even today. His speech questioned the sustainability and efficiency of the administration of justice through Courts in the United States of America and it was the first time that lawyers, judges and jurists were constrained to think of an alternate solution for the resolution of disputes. Just like wine, the questions became more potent with the passage of time and it became more pressing to find solutions for the same. The procedural issues in the system identified by Pound were relatively easier to fix, however his complaint about the “sporting theory of justice” 4 needed a paradigm shift in attitude on part of all stake holders in the system of administration of justice. Pound propounded around century ago that the notion of litigation as a ‘game’ to be ‘won’ by lawyer-gladiators was infecting Americans’ views of the civil justice system. It is incredible to observe that the same stands true for India and other Asian countries even today where the treatment of litigation like a sport leaves the court system in low regard and tends to forget the needs of the parties themselves. 1 Sakshi Vijay is an Assistant Professor with the Jindal Global Law School, O.P. Jindal Global University. Akshit Rajpal is a 4th Year BBA-L.L.B student at Jindal Global Law School, O.P. Jindal Global University. 2 Randall T. Shepard, ‘Introduction: The Hundred-Year Run of Roscoe Pound’, (2007) 82 IND. L.J. 1153. 3 Roscoe Pound, ‘The Causes of Popular Dissatisfaction with the Administration of Justice’, (1906) 40 AM. L. REV. 729, 742. 4 Roscoe Pound, ‘The Causes of Popular Dissatisfaction with the Administration of Justice’, (1906) 40 AM. L. REV. 729, 738. 1

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia It was in 1976 that another Conference was organized to take stock of the situation and compare it to the prophecy of Roscoe Pound, titled with the misnomer ‘Second Pound Conference’. It was actually the first time that the Americans acknowledged the address made by Roscoe Pound in 1906. Just like the first Pound Conference asked some difficult questions, the second one gave some complex answers. The man with the solution was the keynote speaker Frank Sander, who had been on the Harvard Law School faculty since 1959. Sander laid out his vision for a courthouse of the future, which would essentially label disputes into different categories—some of which should be litigated, and others that should go through other processes, such as facilitation, mediation, or arbitration. 5 Sander expanded Pound’s initial criticisms of the civil litigation system as slow and archaic by offering a new concept of the system itself: instead of sending every civil dispute to a judge after an extensive discovery process and burdensome motion practice, he proposed a new alternative system that could work parallel to the litigation system. This notion of the “multi-door courthouse” 6 became a hallmark of the dispute resolution movement. This paper is based on the adoption of Frank Sander’s idea in modern day India- what has already been done? What remains? And how will it affect the current system of administration of justice. Robert Kennedy had famously said, “Every generation inherits a world it never made; and, as it does so, it automatically becomes the trustee of that world for those who come after. In due course, each generation makes its own accounting to its children.” 7 Even though this was said in a social and a political context, it stands true for the process of administration of justice which is inherited, endured and cured by every generation and each generation has an equal responsibility to make it more efficient for the generation to come. II. Administration of Justice in India in 2019: The Supreme Court of India has 58,669 cases pending as on 1st June 2019 whereas the 24 High Courts in India have a collective load of more than 4.3 million cases out of which 2.667 5 Frank E.A. Sander, ‘Varieties of Dispute Processing, Address Before the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice’, (1976) 70 F.R.D. 79, 111. 6 A Dialogue Between Professors Frank Sander and Mariana Hernandez Crespo, ‘Exploring the Evolution of the Multi-Door Courthouse’, (2008) 5 U. ST. THOMAS L.J. 665, 670. Note that Multi-door courthouse was not a name given to the idea by Frank Sander himself, he commented that “On the cover, [the ABA] had a whole bunch of doors, and they called it the multi-door courthouse. I had given it a much more academic name, the ‘comprehensive justice center,’ but so often the label you give an idea depends a lot on the dissemination and the popularity of the idea. So, I am indebted to the ABA for having this catchy name—multi-door courthouse.” 7 Robert F Kennedy, ‘Keynote Address’ (at a Meeting of the University of South Carolina Chapter American Association of University Professors, Columbia, South Carolina. April 25, 1963) 2

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia million are less than five years old. 0.844 million cases are pending for more than 5 years but less than 10 years and then 0.835 million cases are those which are pending since more than 10 years ago. 8 The problem is not restricted to the volume of cases pending in India, but it is spiraled due to the duration for which they have been pending. The oldest case pending with the Calcutta High Court was filed in 1833 about the immovable property of Raja Deb and the family pleads that it does not have enough resources to even maintain the property as of today. 9 This may be an exceptional case, but even regular commercial cases take longer time for adjudication by Courts compared to their counterparts in more developed jurisdictions like UK, USA, Singapore, Australia, etc. Typically, suits in India take significant time before a judgment is pronounced primarily due to various stages, which include, inter alia, framing of issues, submission of evidence, chief examination and cross-examination. In addition, the archaic procedural laws and frequent adjournments further contribute to the stretched timelines, though there are conscious efforts being made to change this situation. 10 In pursuit of a more time effective adjudication system, certain legislations have been recently introduced to expedite the process of resolution. For instance, the Insolvency and Bankruptcy Code 2016 (IBC) has been introduced to complete the insolvency process within 180 days (extendable to 270 days). 11 The Commercial Courts Act 2015 prescribes strict timelines for the conduct and disposal of commercial disputes in India. 12 Similar strict deadlines have been instituted in the frame of arbitration laws in India. However, despite the efforts made by the Legislature, the effective result of such amendments have not been verified by the Judiciary. Meanwhile, the delays and overburdening of courts continue at its peak. The people to Judges ratio in India is such that there are 19 judges for every hundred thousand . 13 Therefore, it is not very difficult to guess that people in India are 8 “Supreme Court of India” (Statistics | Supreme Court of India) <https://sci.gov.in/statistics> accessed October 15, 2019 9 Raaj N, “175 Years Later, West Bengal Case Goes on and on : India News - Times of India” (The Times of India) <https://timesofindia.indiatimes.com/india/175-years-later-West-Bengal-case-goes-on-and- on/articleshow/3690564.cms> accessed October 15, 2019. 10 Shah K, Kapoor A and Adlakha K, “Complex Commercial Litigation in India” (LexologyMarch 26, 2019) <https://www.lexology.com/library/detail.aspx?g=4449b31a-ff8d-4dd8-a9bc-a9eadd092b24> accessed October 15, 2019. 11 The Insolvency and Bankruptcy Code, 2016. 12 The Commercial Courts Act, 2015. 13 Pti, “India Has 19 Judges per 10 Lakh People: Data” (@businesslineSeptember 24, 2018) <https://www.thehindubusinessline.com/news/india-has-19-judges-per-10-lakh-people- data/article25030009.ece> accessed October 15, 2019. 3

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia weary of going to the Court and even international business community is suspicious of dispute resolution in the country. The solution that the government (in the last decade) has been working on is the strengthening of Alternative Dispute Resolution methods, specially arbitration in the country. Substantial efforts have been made to establish arbitration as a conclusive method of dispute resolution, but they have been slow at delivering positive affect due to psychological, physical and legal hindrances. Discontent against arbitral awards stems from its adjudicatory nature, where-as mediation or conciliation empowers the parties to decide on their own dispute. However, there has been no substantial effort to establish mediations an effective Alternative Dispute Resolution mechanism in India. In this paper it is suggested that in the extra-ordinary situation that India is facing today, it is not enough that we develop individual modes of Alternative Dispute Resolution but it is imperative that we develop a multi-door court house which will help us to direct the dispute to the most appropriate resolution system and then that system be integrated to meet international best practices. III. Alternative Dispute Resolution in India-Scope and Objective In India the alternative dispute resolution methods have been made inter-alia on the following considerations, namely (a) It enhances access to justice by giving an alternative to the civil justice system beset by delays and cost overruns. (b) It enhances party autonomy to protect its interests, and not merely rights. (c) Alternative Dispute Resolution methods ensure civic virtues by undermining the adversarial nature of litigation and shall maximize welfare. When Section 89 was first inserted in The Code of Civil Procedure, 1908 (hereinafter referred to as the CPC) (through amendment of 1999 which came into effect in 2002) it was proposed that parties be made to resort to Alternative Dispute Resolution before resorting to litigation but such decision was to be made by the presiding Judge, instead of the parties involved. Section 89 reads as follows: “(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the 4

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia court may reformulate the terms of a possible settlement and refer the same for (a) arbitration; (b) conciliation (c) judicial settlement including settlement through Lok Adalat; or (d)mediation. (2) Where a dispute had been referred- (a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act. (b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat; (c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act; (d) for mediation, the court shall affect a compromise between the parties and shall follow such procedure as may be prescribed.]” 14 It was presumed that the inclusion of this provision in the Civil Procedure Code in India will create an effective system and culture of Court attached Alternative Dispute Resolution in various parts of the country. However, on the contrary, it created more confusion than it cured. The choice of words and the language of the provision was such that it required to be corrected or interpreted in a way that it would give effect to the object of the amendment. Relief was provided by the Supreme Court when it pronounced the landmark judgment in the case of Afcons Infrastructure and Orsv/s Cherian Verkay Construction and Ors15 . The judgment described the requisite procedure that should be followed by Judges while applying section 89. The provision when read with Order X Rule 1-A provided that the court can direct the parties to one of the five modes of Alternative Dispute Resolution and directs the court to formulate the terms of settlement. If read literally, this provision would put the cart before the 14 The Code of Civil Procedure, 1908. 15 (2010) (8) SCC 24. 5

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia horse and require the Court to formulate terms of settlement, which should ideally be formulated by the parties since it is consensual dispute resolution. The Court held therefore, that the only practical way of reading Section 89 and Order 10, Rule 1-A is that after the pleadings are complete and after seeking admission/denials wherever required, and before framing issues, the court will have recourse to section 89 of the Code. Such recourse requires the court to consider and record the nature of the dispute, inform the parties about the five options available and take note of their preferences and then refer them to one of the alternative dispute resolution processes. It was clarified that if the reference is to conciliation/mediation/Lok Adalat, then drawing up the terms of the settlement or reformulating them is the job of the parties under the guidance of the conciliator or the mediator or the Lok Adalat, after going through the entire process of conciliation/ mediation. Thus, the terms of settlement drawn up by the court will be totally useless in any subsequent Alternative Dispute Resolution process. Another amendment suggested by the Court was to swap the words ‘judicial settlement’ and ‘mediation’ as given in sub-clause (c) and (d) of Section 89 Hence section 89 read with the interpretation provided in the above mentioned case provided enough power to Judges in Indian courts to refer cases to various agencies (court attached) for appropriate resolution of dispute. The statutory lacuna existed for want of enforcement where the parties wanted to resolve the disputes themselves without the directions of the Court The situation today is such that majority of the cases in India are settled by way of litigation, with the active involvement of the courts or tribunals. However, efforts are being made so that Alternative Dispute Resolution receives its rightful place especially in commercial disputes in India and it is no longer ‘Alternative’ as much as it is the ‘Appropriate’ method of dispute resolution. Major reasons for the growing dependence on alternative modes of dispute resolution include, time efficiency, cost efficiency, party autonomy in resolution of dispute or specialized adjudicator for resolving disputes. Under different statutes, conciliatory dispute resolution methods like mediation are made compulsory to be exhausted before litigation commences, for example, the Commercial Courts Act, 2015 and the Consumer Protection Act 2016. A. The following are the alternative methods of resolving disputes that are suggested in Section 89 of the CPC: I. Lok Adalats: (People's Court) is one of the indigenous and home grown methods of dispute resolution in India, it is a forum where cases pending in courts or at pre-litigation stage 6

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia are settled. Lok Adalats have been given statutory status under the Legal Services Authorities Act, 1987. Under this Act, the award (decision) made by the Lok Adalats is deemed to be a decree of a civil court and is final and binding. No appeal against such an award lies before any court of law but aggrieved party is free to initiate litigation by approaching the court of appropriate jurisdiction by filing a case by following the required procedure, in exercise of their right to litigate. Through the year 2018 the cases settled by the Lok Adalats (other than the National Lok Adalat) was 1,357,963 cases and the National Lok Adalat settled 5,882,561 cases. Thus, the Lok Adalats in total managed to settle 7,240,524 cases through one year. 16 There is no court fee payable when a matter is settled in a Lok Adalat. If a matter pending in court is referred to the Lok Adalat and is settled subsequently, the court fee originally paid is also refunded back to the parties. The persons deciding the cases in the Lok Adalats are called the Members of the Lok Adalats, they have the role of statutory conciliators only and do not have any judicial role; therefore, they can only persuade the parties to come to a conclusion for settling the dispute outside the court in the Lok Adalat and shall not pressurize or coerce any of the parties to compromise or settle cases either directly or indirectly. The Members are encouraged and incentivized to help the parties come to a settlement but they have to walk on egg shells to ensure that they do not coerce a party. The members shall only assist the parties in an independent and impartial manner in their attempt to reach amicable settlement of their dispute. 17 . II. Arbitration: The Arbitration & Conciliation Act, 1996 makes arbitration, domestic and international, effective and efficient in India. The Act is based on the UNCITRAL Model Law and facilitates International Dispute Resolution in India. Under the said Act, an arbitral award can be challenged only on limited grounds and in the manner prescribed. India is also party to the New York Convention on The Recognition and Enforcement of Foreign Arbitral Awards, 1958. The following are the different kinds of Arbitrations found in India: 1. Ad-hoc Arbitration – One in which there is no institution to administer the arbitration. 2. Institutional Arbitration – Usually administered by an arbitral institution. 3. Statutory Arbitration – Imposed on the parties by operation of law. 4. Foreign Arbitration – Proceedings are conducted in a place outside India. 16 Annual Report 2018” (National Legal Services AuthorityApril 24, 2019) <https://nalsa.gov.in/library/annual- reports/annual-report-2018> accessed October 15, 2019 17 “Lok Adalat” (National Legal Services Authority February 26, 2019) <https://nalsa.gov.in/lok-adalat> accessed October 15, 2019 7

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Recent amendments and developments have testified that India is focusing on development of Institutional arbitration and is rising towards being an arbitration hub with world class infrastructure and legal and statutory support. III. Conciliation: Conciliation has been inserted in Part III of the Act and it has been adopted as one of the efficient means of settlement of disputes. The Act is drafted on the lines of the UNCITRAL Model Arbitration Law and the UNCITRAL Conciliation Rules. It is a non- binding procedure in which a neutral conciliator assists the parties to a dispute in reaching a mutually agreed settlement. Section 61 of the Act reads that conciliation shall apply in disputes arising out of a legal relationship whether contractual or not, and to all proceedings relating thereto. IV. Mediation: Courts in India can identify cases where an amicable settlement is possible, refer the disputes to Court attached mediation centers for resolution. The Commercial Courts Amendment Act of 2018 has provided great impetus to mediation. The amendment has inserted a new Chapter IIIA into the Act. It entails that where a suit does not contemplate urgent interim relief, the plaintiff has to undergo pre-institution mediation. B. Latest Development in the Field of Alternative Dispute Resolution in India: I. The Singapore Convention-India signed United Nations Convention on International Settlement Agreements (UNISA) also known as Singapore Convention on Mediation So far 46 countries have signed this international treaty on settlement agreements. It is particularly important for the growth of mediation in India and enhancing the ease of doing business in India particularly in the legal front. It will help to boost confidence of investors especially foreign investors investing in India. It will act as a positive signal to foreign investors about India’s commitment for adhering to international practice on Alternative Dispute Resolution and external dispute resolution. II. Amendment of 2019 to Arbitration and Conciliation Act- the Arbitration and Conciliation (Amendment) Bill, 2019 aims at making India an international arbitration hub. The bill aims to establish an independent body called Arbitration Council of India (ACI) for promotion of arbitration, mediation, conciliation and other alternative dispute redressal mechanisms. ACI’s functions would include framing policies for grading arbitral institutions and accrediting arbitrators, making policies for establishment, operation and maintenance of uniform professional standards for all alternative dispute redressal matters, and maintaining a depository of arbitral awards made in India and abroad. 8

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Law Minister has said, while replying to a debate on the bill in the Indian Parliament that “India should not accept imperialism in the field of arbitration. The best would be when Indian arbitrators are sought globally. We want India to become a hub of international arbitration.\" III. Commercial Courts Act and Consumer Protection Act- The Commercial Courts, Commercial Division and Commercial Appellate Division of High Court (Amendment) Ordinance of 2018, has inserted section 12A to the Commercial Courts Act, 2015, contemplating pre-institution mediation and settlement, before the filing of any commercial disputes. Specifically, Section 12A (1) the Commercial Courts Act, 2015 states that \"a suit which does not contemplate any urgent relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation and settlement in accordance with such manner and procedure as may be prescribed by rules made by the central government”. 18 The model contemplated by the ordinance is similar to the most successful opt-out model widely used in Italy in limited civil and commercial cases wherein litigants will not have direct access to the Italian courts if they cannot prove that they have attended an initial mediation meeting. Lithuania, Luxembourg, United Kingdom, Ireland also use this model for a certain category of disputes. This mandatory mediation meeting is an opportunity for parties and their legal counsels to meet with a professional neutral mediator at a neutral place to learn about the process and decide whether they would like to give themselves the opportunity to collaboratively settle the dispute. If after this mandated initial session, the parties are amenable to try and settle their dispute through mediation, the process can start right away. If the parties, however, decide not to proceed with mediation, they are deemed to have fulfilled the requirements of the law. Similarly, amendments to the Consumer Protection Act in India have ensured that customers who have complains get a rightful chance of mediation before they have to go through the adjudicatory method of dispute resolution. C. Alternative Dispute Resolution and status quo: It is generally understood that notwithstanding the merits of the case every kind of disputes can be outsourced to Alternative Dispute Resolution. There is an element of public interest in retaining certain types of disputes in the justice system. There are disputes that are in nature of ‘in rem’ interests are involved and disputes that are criminal in nature. The Supreme 18 The Commercial Courts Act, 2015. 9

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Court of India in the case of Afcons Infrastructure v Cherian Verkey19 gives an illustrative list of cases. However, it is submitted that it does not disclose any universal principle on the basis of which such exclusion is being made but a mere rule of thumb. For example, arbitration is barred in matrimonial disputes, but conciliation and mediation is often resorted to. Petty crimes are often referred to the Lok Adalat even when criminal matters are barred from Alternative Dispute Resolution processes. The second difficulty lies in the selection of the proper Alternative Dispute Resolution process. Once again, the Supreme Court laid down a selection criterion in Afcons20 but the same was not based on any hard data. Indeed, the selection was based on “logistical” concerns and anecdotal understating of these processes. The general answer to the selection problem is to rely on party choices. It is questionable whether party choice is an informed one. In any case that choice may not be a socially optimum choice. For example, a systematic choice of mediation in matrimonial matters may lead to non- optimum enforcement of domestic violence legislation. IV. Original Idea by Frank Sander: Roscoe Pound and Frank Sander even though separated by a generation may be called the of Adam and Eve of Alternative Dispute Resolution. Frank Sander’s interest in the Alternative Dispute Resolution field developed out of a sabbatical reflection in Sweden. In 1975 Frank was studying the legal rights of co-habiting (e.g. non-married couples). While sitting at the University of Stockholm, he was struck by the contrast between his labor arbitration experience where disputes were resolved quickly and inexpensively outside the courts versus family law divorce disputes in the U.S. where the involvement of lawyers and courts cost families huge sums, often made the situation more adversarial, and didn’t necessarily produce more stable life for the children. Frank put thoughts (what he called “musings”) to paper contrasting the worlds of mediation and family justice centers used more in China or Sweden with litigation and traditional court adjudication used in the U.S. and sent his memo back home to some of his HLS colleagues.21 19 (2010) (8) SCC 24. 20 Ibid. 21 “Leading the Alternative Dispute Resolution (ALTERNATIVE DISPUTE RESOLUTION) Field” (Frank Sander) <http://franksander.com/leading-the-alternative-dispute-resolution-field/> accessed October 15, 2019 10

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia It is in his words that he says, “I was sitting around writing Christmas cards in December 1975 when I received a telegram from Chief Justice Warren Burger asking if I would be willing to come down and talk to him about giving a paper at the Pound Conference… next April on dispute settlement. I was totally unqualified to do it as a scholar but I went there and had a very interesting discussion with Burger and the net result was that I crash- educated myself and gave a paper called ‘Varieties of Dispute Processing’ at the Conference with over 200 judges, scholars and bar leaders in attendance. In the paper I went through different dispute processes and explored what they were best suited for and at the end came out with the notion of the multi-door courthouse (i.e., a courthouse where disputes would be screened at entry and referred to different processes or doors for their resolution).” 22 Sander’s addresses set the tone for the discussion, that Alternative Dispute Resolution could be a “promising remedy for the particular dissatisfaction that arose from the cost, delay, and inaccessibility of adjudication.” 23 The reasons he used to justify the system propounded by him are still relevant and is used by advocates of mediation and conciliation even today. Simply put, he proposed a specialization in the resolution of disputes, but unlike doctors where education and training decide the specialization, this specialization was based on characteristics of the dispute faced by the parties. Sander divided the renaissance of the Multi-door court house system into the following three periods: i) Period of Great Experimentation: Let 1,000 Followers Bloom 1976-1986 ii) Sorting the Wheat from the Chaff: 1987-1997 iii) Institutionalization: Taking the Best of the Field and Working it into the Basic structure of our Dispute Resolution System 1998-2008 As we stand beyond 2008, the world of Alternative Dispute Resolution has not developed to the stage of ‘auto pilot’ but it will not be incorrect to say that countries like the United States of America have achieved institutionalization in many aspects of Alternative Dispute Resolution and countries like India are aiming towards institutionalization of Arbitration. 24 22 Ibid 23 Dorothy J. Della Noce, ‘Mediation Theory and Policy: The Legacy of the Pound Conference’, (2002) 17 OHIO ST. J. ON DISP. RESOL. 545, 546. 24 The Arbitration and Conciliation (Amendment) Act, 2019. 11

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Frank Sander and his predictions may have expired but his legacy lives on and it was celebrated in the Global Pound Conference (GPC) World Series 2016-2017. 25 The series which ran throughout 2016-2017, represented the latest moment in which the field has engaged in intentional reflection. i) How well does our system of justice work? ii) Can human beings effectively, efficiently, and fairly resolve the conflicts that inevitably emerge among us? iii) Does society offer meaningful alternatives to courtroom litigation? The GPC series engaged judges, lawyers, mediators, arbitrators, governments, students, and academics on six continents and in 31 countries around these questions. Its goal, not an immodest one, was “to create a conversation about what can be done to improve access to justice and the quality of justice around the world in civil and commercial conflicts.” 26 The series had conducted a survey across continents to find answers to the above mentioned questions, the result of which is being published and analyzed in various other papers. However, we are yet to find a break-through of the magnitude of Roscoe Pound and Frank Sander. V. The lessons from District of Columbia, USA 27 The concept of the Multi-door court house system was originated in April 1976 at a conference convened by Chief Justice Warren Burger that was the result of consistent problems faced by the justice system due to the influx of the number of pending cases in the courts. The first functional court was created as a part of District of Columbia Dispute Resolution Program. The first proper door ‘was’ opened in the year 1985 by the D.C. Mediation Service for civil suits involving damages up to 2000 USD and due to the specificity of the claims that could have come to them, they managed to do much better than expected with close to 200 cases mediated each month. The second dispute resolution program was open and was called the Domestic Relations Mediation. Through various years of trying the system, professionals have learnt that Mediation as a technique could either perform well or fail. For cases such as small claims, mediation shall serve as the quickest form of justice. On the other hand, cases regarding 25 Deborah Masucci, Michael McIlwrath& Jeremy Lack, ‘The Global Pound Conference Series’, (2016) DISP. RESOL. MAG. 28. 26 “About the 2016-2017 Global Pound Conference” (International Mediation Institute) <https://www.imimediation.org/research/gpc/gpc-about/> accessed October 13, 2019 27 Gladys Kessler & Linda J. Finkelstein, ‘The Evolution of a Multi-Door Courthouse’ (1988), 37 Cath. U. L. Rev. 577. 12

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia personal relationships etc. a proper process of mediation cannot take place due to the unequal parity in the bargaining power. Eventually, they realized the benefits of the Multi-door court house system, the initial funding of the same might be high, but having a strong and viable plan was much needed for a permanent future. A system like this requires qualified and skilled staff as well in various roles. Every staff member has to be well versed with the mediation process and if a certain staff member isn’t, the courthouse shall have training for the same. For a mechanism like the Multi-Door courthouse system there needs to be an involvement of the judges who held leadership positions in the court which will help them coordinate the policy and procedure that is needed for the smooth functioning of a multi-door court house system. Through the changing course of the legal framework, it has been realized that the closest substitute to help the backlog of cases in higher courts is the process of Alternative Dispute Resolution with a multi-door courthouse that shall accommodate all kinds of cases, no matter big or small. As discussed earlier, the number of cases that were pending in the Supreme and High Courts of India are immense and the legal system needs to be constantly developed to accommodate the same and be prepared for the ongoing influx of cases. By introducing the Multi- Door courthouse, not only will we be able to create more job opportunities, we will also be able to overcome the burden of pending cases. Owing to India’s population it needs to be understood the number of possible cases that could come up and the burden the pending cases have. As a nation, India should strive to provide a smooth legal system to its citizens and opening a Multi- Door courthouse is the only way that is possible in the foreseeable future. Columbia has tried the same in multiple ways and has failed in multiple ways as well, but eventually, they depleted their level of backlogs and gave the Court Judges a relief, and justice to the people who were stuck because of the backlog of cases. It is only a matter of time before the same is properly infused with the Indian legal system VI. Application of Sander’s proposal in the Indian Alternative Dispute Resolution Ecosystem: As mentioned earlier, in 1976 Frank Sander developed a system of profiling of cases for resolution by the most suitable method of dispute resolution, including litigation. Based on the same ‘Comprehensive Justice Centre’, the following diversification of cases in India is proposed. All efforts made towards Alternative Dispute Resolution, is to be channelized into a system which will filter cases suitable for resolution through appropriate method of Alternative Dispute Resolution and ensure that only cases which cannot be resolved through alternative 13

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia means be adjudicated in Court. This will include the institution of a multi-door courthouse where disputes will be profiled on the basis of certain attributes that they exhibit and will be bound to be resolved via the most suitable method of resolution. Example, a dispute for divorce be resolved via mediation whereas decriminalization of Homosexuality be heard by the constitutional Courts. Illustration V(i): Demonstrates the breakdown of types of disputes for every 100 disputes in the Indian Courts and differentiates them stating which could be adjudicated upon using Alternative Dispute Resolution methods. The object of the system will be to match dispute to the appropriate forum which will ensure the highest probability for resolution in the first instance. This system would require inter-alia the following: - A. Step one: The case profiling system will be data backed. At present behavioral data for Alternative Dispute Resolution systems is lacking. In Step One the endevour would be to develop behavioral data about Alternative Dispute Resolution systems. B. Step two: The exponential development of the forums for resolution. This requires institution, efficient management and quality control of various forms of Alternative Dispute Resolution, example- Arbitral Institutions, Mediation and Conciliation Centers, Lok Adalats etc. 14

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Illustration V(ii):Demonstrates the mechanism of the Multi-Door courthouse and how the same shall be applicable in the Lower Courts in India. If we critically analyze the status of development of various forms of Alternative Dispute Resolution in India, we will find that we have reached closer to the goal mentioned in step 2 but the system in step 1 has not been considered at all VII. The Multi-door courthouse of case Management for today’s India After the Pound Conference in 1976, a formal Pound Conference Follow-Up Task Force was charged with articulating and overseeing the development of specific recommendations. 28 This Task Force submitted its recommendations to the American Bar Association (hereinafter referred to as ABA) in a Report in the summer of 1976 that touched on topics as wide-ranging as the proliferation of administrative agencies to the role of the trial judge in issuing discovery sanctions. 29 It is pertinent for us to note the three main recommendations for establishing the new Alternative Dispute Resolution regime in India. A. First, the Report advised that the ABA work with local courts and communities to create Neighborhood Justice Centers—essentially facilities that “would be designed to make available a variety of methods of processing disputes, including arbitration, mediation, referral to small claims courts as well as referral to courts of general jurisdiction.” Not surprisingly, such facilities sound a great deal like the “multi-door courthouse” proposed by Sander, which could effectively determine which method of conflict resolution would best fit a particular conflict. In India, this may be established with the help of the Legal Aid Centers (established under the Legal Services Authorities Act, 1987. These centers work pro bono in every district in the 28 William H. Erickson, ‘The Pound Conference Recommendations: A Blueprint for the Justice System in the Twenty-First Century’ (1978), 76 F.R.D. 277, 279–80. 29 ‘American Bar Association Report of Pound Conference Follow-Up Task Force’ (1976), 74 F.R.D. 159, 161 15

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia country to ensure that anyone who is unsure about his or her legal rights, is educated about the same. The structure of Referral Officers30 may be included in the Legal Aid centres and it shall be made compulsory for parties to get counselled for the most appropriate method of dispute resolution, devised statutorily (for example under the Commercial Courts Act, if it is a commercial dispute where amount in dispute exceeds Rs. 3 lakhs and if the parties do not require any urgent interim relief, then it is mandatory for them to go through mediation) or on the basis of certain characteristics (for example matrimonial disputes are often better settled between the parties) and it shall be made mandatory for the parties to adhere to the recommendation of such referral officers. As learnt from the experience in District of Columbia, in USA, it shall be crucial that the officers are appropriately trained for such a demanding role. The idea of Artificial Intelligence to help such referral officers may also be explored. B. Second, the Report endorsed the expanded use of compulsory arbitration of certain disputes where the amount in controversy was relatively low. The Task Force favorably cited programs where such disputes were decided by three experienced attorneys, typically where the amount in controversy was below $10,000 and no equitable relief was sought. This suggestion may be unrealistic in today’s world, since it has been accepted globally that parties cannot be made to arbitrate a dispute unless they have unequivocally agreed to do so themselves. However, in the Indian context such decision-making power, for cases with lower amount in dispute and no substantial question of law involved, for example- default in payment of electricity charges, Lok Adalats 31 have been found to be the appropriate forum for adjudication. C. Third, the Report suggested that federal, state and local courts should not be used for non- adversarial proceedings. The use of courts, the Task Force argued, “should be reserved for the resolution of controversies and the vindication of rights.” Courts need not be used for non- adversarial legal matters, such as “uncontested probate, uncontested divorce, incorporating membership corporations, approving changes of name and, in some cases, making appointments to semi-public offices.” 30 An officer of the Court who will be the first point of contact when a party approaches the Court, and shall be in the position to counsel the parties as to which method of dispute resolution shall they opt for . 31 “Lok Adalat” (National Legal Services Authority February 26, 2019) <https://nalsa.gov.in/lok-adalat> accessed October 15, 2019. 16

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Such administrative functions in India have already been assigned to the office of the District Magistrates and other non-judicial authorities. 32 This rule is, however, important in principle as it provides for a separation of duties for the Court and administrative authorities. Apart from the points mentioned above, the following may be pertinent to explore when we are aiming to develop a Multi-Door courthouse system in India: A. Working of section 89 of the Civil Procedure Code- Section 89 would become redundant in a way that instead of the Judge in the Civil Court directing the parties to try a specific mode of dispute resolution, it will be the Referral Officers who will assume that role. The list of methods of Alternative Dispute Resolution as given under the provision will also be expanded to include new methods like expert evaluation and ombudsman. B. Development and training of personnel in different fields- This is probably the most important aspect of development of the system and it can hardly be overemphasized. Training of the personnel will be required at various levels including: 1. Referral officers 2. Administrative staff of the Referral office 3. Mediators and Conciliators 4. Arbitrators 5.Tribunal Secretaries 6. Institutional staff of Mediation and Arbitration Centres. The training of the personnel will determine the success or failure of the system. C. Accreditation of Mediators/Conciliators and Arbitrators- Apart from training, it is equally important that the Presiding officers (even if they have no role in adjudication) be accredited for quality control. The accreditation must be from a centralized (preferably Government) body and uniformity should be maintained across the country. Similarly, Arbitrators, most of whom are currently retired Judges will have to be home grown. The profession will have to be developed in a way that lawyers and other Industry experts practice as arbitrators full time. The profession of arbitrators just like Chartered Accountants will have to be self-regulated centrally. D. Exploring the use of Artificial Intelligence and Data Analysis- Data analysis should be used to profile cases and to predict what method of dispute resolution is best suited for what kind of cases. For example, if it is established through data analysis that ninety percent of 32 Example, getting a legal heir certificate is not from the Court but the local Registrar of the State District Office. 17

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia consumer disputes reach a mediated settlement if the parties are mandated to attempt mediation before litigation whereas Ombudsman only resolve forty percent of disputes that they hear, then it can be concluded that strictly for consumer disputes, mediation has a better success rate than ombudsmen. Artificial intelligence can also be used to extract relevant information from the parties so that their dispute can be appropriately profiled. E. Evolution of statutory mandates- The development of statutory provisions for mandating Alternative Dispute Resolution has already begun in India. Disputes regarding consumer complaints, commercial issues and even IBC have to be attempted to be resolved by mediation first but the statutory lacuna is evident in the fact that there is still no law which governs how mediations have to be conducted in India. Hence there is no law to enforce confidentiality in mediation or even to enforce the settlement agreement arising out of the mediation. As much as statutory mandates will help disputants to attempt Alternative Dispute Resolution but it will only prosper if the quality of the process is maintained well and if we can curate a culture of confidence and trust around Alternative Dispute Resolution. F. Broadening of legal education- As quoted by Abraham Lincoln “The philosophy of the school room in one generation will be the philosophy of government in the next.” Therefore, it is pertinent that Alternative Dispute Resolution be given its due place in Law schools and Universities in India. It is in law schools that young lawyers are taught that all glory is confined to ‘winning’ a particular case or an argument and that needs to be changed. Students who are lawyers of tomorrow should be made to understand that disputes are also an opportunity of value creation. If we are successful in creating this culture in classrooms, we can look forward to the same spreading in the legal fraternity and other industries soon. G. Presence of Ombudsman for Industries – This is a culture of the west and has often proved to be a good filter for disputes to be settled at the industry level itself. An ombudsman is an independent person attached to an industry, for example- the aviation industry in Europe will have an ombudsman who will be the first point of contact for the customer for any dispute between the customer and the industry. The ombudsman will help the complainant (customer) to know the provisions of the contract, his/her rights under it and the options for redressal. It is often seen that such legal aid helps in resolving certain disputes at the ombudsman level itself. It is suggested that a similar system of industry wise ombudsman may be established in certain industries in India where complains are frequent. For example- online shopping websites. 18

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia H. Industry support for Alternative Dispute Resolution-It is important for businesses to understand the benefit of using Alternative Dispute Resolution methods for internal and external dispute resolution. If they are educated about the procedure and the benefits of Alternative Dispute Resolution, then it will be easier to solicit support from them. The proof is in the pudding itself for commercial parties to see the cost and time efficiency of such alternate processes. I. Expansion of awareness- All other efforts will remain ineffective unless there is general awareness created about the use, relevance and benefits of Alternative Dispute Resolution in India. There have been piecemeal efforts made by court attached mediation centers and Lok Adalats, but such efforts have to be integrated and reinforced at a nation-wide level. J. Alternative Dispute Resolution Bar in India- Just like it is important to develop a bench dedicated full time to arbitration, it is also imperative that we have a distinct group of lawyers in every court in each part of the country who are specialized and dedicated in working in the field of Alternative Dispute Resolution. This will be a contrast from the situation today where lawyers only do arbitration on weekends when they are free from regular court practice. VIII. Conclusion Voltaire had said “I was never ruined but twice: once when I lost a lawsuit, and once when I won one.” This is very true for litigants in India today as it is exhausting to go to court on frequent dates and carry the burden of hate that is complementary with any adversarial system of resolution of disputes. Even after a party wins a dispute, it is only the end of the battle and the war still stands in the form of execution of the favorable decree. India with a population of 1.25 billion which is only projected to increase in the foreseeable future, has to pay a price for its demographics. Even though the people here are discouraged to go to Courts unless they have to, there are far too many people who have to go to Courts for interim relief or even for execution of orders in their favor (if received through Alternative Dispute Resolution). As the country and its people develop, there will be more and more people buying cars, property and shares. There will be a simultaneous growth in business, commerce and trade and it will all lead to increase in disputes. It is hence inevitable to avoid disputes or even growth in disputes, what can be done is that we can foresee the growth in disputes and prepare for them to be appropriately resolved. The Pound Conference is a suitable way to revisit the discussion and debate over the latest development around Alternative Dispute Resolution. It also helps to take stock of how much are the stockholders of disputes satisfied with resolution of the same. It is still a distant 19

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia dream but a possibility that India can be displaying its multi-door court house in the next Global Pound Conference fifty years from now! 20

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia OF SHRIMPS, CONSUMERS, AND THEIR IMPACT ON THE RELATIONS BETWEEN ASIA AND THE EUROPEAN UNION Pallavi Kishore ABSTRACT This article examines the functioning of the European Union’s (EU’s) consumer protection law in an incident in which the EU banned Asian shrimps in order to protect its consumers and aims to answer the following questions 1.Are the EU’s actions in compliance with its own law and the law of the World Trade Organization (WTO)? 2.What is the impact of these actions on international trade and on the EU’s trading partners especially if they are developing countries? The most important consequence of this incident is its restrictive impact on international trade and/or the use of consumer protection as a tool for protectionism. In this particular incident, it does appear that the EU’s actions could have violated WTO law had the Asian developing countries brought a case against the EU. The article will conclude by examining the impact of the EU’s actions on its relations with Asia. Keywords: Antibiotics, consumer protection, protectionism INTRODUCTION Relations between Europe and Asia have been framed in the Asia-Europe Meeting (ASEM) process in which a summit is held every two years. Twelve summits have been held from 1996 to 2018.The first ASEM summit was held in Bangkok in 1996 and the twelfth ASEM summit was held in Brussels in 2018. The main aim of the summits is to promote political, economic, and cultural exchange. Europe’s trade relations with Asia are fairly significant. Asia is a crucial partner for the European Union (EU) as the EU’s total trade in goods with Asia is worth €1.4 trillion.1 1 Jean-Luc Demarty, ‘EU-Asia Trade – The Bright Future Ahead’ (Friends of Europe, 29 May 2018) <www.friendsofeurope.org/publication/eu-asia-trade-bright-future-ahead> accessed 13 May 2019. 21

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia The EU has separate agreements with many Asian countries as it is keen to develop its relations with them.2 The European Commission also came out with a communication entitled “Towards a New Asia Strategy” in 1994. 3 But the rapidly evolving global environment compelled it to update its communication and it came out with another communication called “Europe and Asia: A Strategic Framework for Enhanced Partnerships” in 2001. It was based on a practical and in depth analysis of its relations with the various Asian countries and aimed to strengthen the EU’s overall presence in Asia by building a coherent and extensive partnership between the two.4 The EU has proposed stronger bilateral commercial relations with countries which make an effort to open their markets to foreign investment leading to a climate conducive to business and continued interaction. It also emphasises the importance of transparency and accountability in the functioning of regulatory bodies in these countries. It is also desirous of promoting private sector participation in its relations with Asia through various economic actors in the two regions. Paradigms have been defined in financial and economic sectors. The EU wants to deepen its dialogue with Asia on liberalisation of trade and investment and encourage reforms which address commercial concerns of both sides. It also intends to help in the achievement of social goals on the agenda of Asian countries. It is highly concerned about environmental problems and has called for joint efforts to resolve them. The EU also wants to have better relations with members of the Association of South- East Asian Nations (ASEAN). The EU is ASEAN’s second largest trading partner and the ASEAN is EU’s third largest trading partner.5 In Asia, the one country that commands attention is China. It has made tremendous progress in international trade. The relationship between the EU and China is political as well as economic. The growing participation of the Chinese economy in international trade led to enhanced cooperation between China and the EU. Fully aware of the herculean influence that China exerts in every field, Europe tilted its priorities towards China. It, therefore, published a 2 Jean-Luc Demarty, ‘EU-Asia Trade – The Bright Future Ahead’ (Friends of Europe, 29 May 2018) <www.friendsofeurope.org/publication/eu-asia-trade-bright-future-ahead> accessed 13 May 2019. 3 Commission, ‘Towards a New Asia Strategy’ (Communication) COM(94) 314 final. 4 Commission, ‘Europe and Asia: A Strategic Framework for Enhanced Partnerships’ (Communication) COM(2001) 469 final. According to this communication, the EU would encourage peace and security in the Asian region; contribute to the maintenance of democracy and the protection of human rights; help in the eradication of poverty; reinforce EU’s imports and exports with the region; aid Asian countries in dealing with challenges thrown by globalisation; deal with difficult environmental issues; and strengthen the awareness of Asia in Europe. See Summary on p. 3 of the communication. 5 Association of South East Asian Nations (ASEAN)’ (European Commission) <http://ec.europa.eu/trade/policy/countries-and- regions/regions/asean/> accessed 13 May 2019. 22

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia communication entitled “A Long-Term Policy for China-Europe Relations” in 1995 outlining various fields of cooperation between the two. 6 In an increasingly interdependent world, competition is getting tougher. The EU, because of its belief in liberalisation of trade, supported China’s integration in the world economy by its accession to the World Trade Organization (WTO). This clearly shows that the EU is keen to safeguard the interests of developing countries. But is this all there is to this policy? How can one explain the EU’s ban on shrimps imported from Asian countries despite its encouraging policies towards them? In the WTO, there have been many cases relating to shrimps for various reasons such as protection of the environment and anti-dumping measures. All these cases pitted developing countries, mainly Asian, against the United States (US). Most cases have been decided since few did not proceed beyond the stage of consultations. This article examines another instance involving a ban on the imports of shrimps. However, this instance is different because the ban was imposed by the EU for consumer protection and the case did not find its way to the WTO. The only similarity with the previous cases is that a powerful WTO Member imposed the ban on imports coming from Asian developing countries. The article examines the ban imposed by the EU in 2002 on the imports of shrimps from Asian countries in light of its relations with Asia. Interestingly, such activities including bans and/or inspections have continued.7 However, no case has been filed by the aggrieved countries in the WTO despite the important repercussions of the ban for EU-Asia relations. Therefore, this article evaluates the ban in light of the EU’s consumer protection laws and cases as well as in light of landmark WTO cases decided at the time of the ban to determine if it would withstand a challenge in the WTO. As much as the article undertakes this evaluation from different dimensions in order to provide an objective appraisal of the issues involved, its approach is titled in favour of the Asian developing exporting countries. Even though the entities representing European integration have undergone change from European Community (EC) to EU, its consumer protection laws have remained the same. Therefore, this article does not take these changes into account.8 It mainly focuses on the 6 Commission, ‘A Long-Term Policy for China-Europe Relations’ (Communication) COM(95) 279 final. 7 Sri Lakshmi Muttevi and Aditya Pavan, ‘EU turns down antibiotics-laced shrimp shipment’ (The New Indian Express, 25 October 2017) <www.newindianexpress.com/states/andhra-pradesh/2017/oct/25/eu-turns-down- antibiotics-laced-shrimp-shipment-1682162.html> accessed 13 May 2019. 8 In this article, the term European Union or abbreviation EU will be used except when referring to any specific law pertaining to the European Community or EC. 23

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia consumer protection laws in force in the EU in 2002 (irrespective of whether or not they are in force at present) since that is the (earliest) ban it examines. That was the first time the issue of antibiotics in imported shrimps made headlines in Europe and subsequently, in other developed countries as well.9 Section I of the article discusses the facts of the case. Section II analyses the validity of the EU’s ban in view of its legislation and cases. Section III analyses it in view of some important WTO cases. The Conclusion discusses the impact of this ban on the EU’s relations with Asia. I. THE FACTS OF THE SHRIMPS EPISODE In January 2002, the EU found traces of Chloramphenicol, an antibiotic, in imports of shrimps, rabbit meat, poultry meat, honey, molluscs, crustaceans, prawns, and pet food from China.10 Chloramphenicol is used in humans and animals to treat various infections.11 However, it can cause a type of bone-marrow depression (aplastic anaemia), usually irreversible and fatal, in humans.12 Its use in food-producing animals is banned in the EU.13 The US Food and Drug Administration (FDA) allowed 5 parts per billion (ppb) of Chloramphenicol whereas the EU was testing at a level of 0.1 to 0.3 ppb.14 On 25 January 2002, the EU imposed a ban on Chinese imports after its Standing Veterinary Committee reported Chloramphenicol in the Chinese imports and voted in favour of their ban.15 The report was based on the findings of an EU mission to China in November 2001.16 A spokesman for David Byrne, the EU Commissioner for Health and Consumer Protection, said that “China’s food control [could not] be trusted.17” Shi Guangsheng, China's 9 ‘Suspicious Shrimp’ (Food and Water Europe, 4 November 2009) <www.foodandwatereurope.org/reports/suspicious-shrimp/> accessed 13 May 2019. 10 ‘China, EU in Brussels Agree to Study Food Ban’(China Daily,1 February 2002) <www.china.org.cn/english/2002/Feb/26290.htm> accessed 14 May 2019. 11 EFSA CONTAM Panel (EFSA Panel on Contaminants in the Food Chain), 2014. Scientific Opinion on Chloramphenicol in food and feed. EFSA Journal 2014;12(11):3907, 146 pp. doi:10.2903/j.efsa.2014.3907, p. 3. 12 ‘Suspicious Shrimp’ (Food and Water Europe, 4 November 2009) <www.foodandwatereurope.org/reports/suspicious-shrimp/> accessed 14 May 2019. 13 EFSA CONTAM Panel (EFSA Panel on Contaminants in the Food Chain), 2014. Scientific Opinion on Chloramphenicol in food and feed. EFSA Journal 2014;12(11):3907, 146 pp. doi:10.2903/j.efsa.2014.3907, p. 3. 14 Peter Debaere, ‘Small fish–big issues: the effect of trade policy on the global shrimp market’ (2010) 9 World Trade Review 353, 358. 15 ‘China, EU in Brussels Agree to Study Food Ban’(China Daily,1 February 2002) <www.china.org.cn/english/2002/Feb/26290.htm> accessed 14 May 2019; 16 ‘China, EU in Brussels Agree to Study Food Ban’ (China Daily, 1 February 2002) <www.china.org.cn/english/2002/Feb/26290.htm> accessed 14 May 2019. 17 Luise Hemmer Pihl, ‘Chinese foods to be banned by EU’ (EU Observer, 28 January 2002) <https://euobserver.com/news/4949> accessed 10 May 2019. 24

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia Minister of Foreign Trade and Economic Cooperation, however, pointed out that the EU’s report was inaccurate and drafted without consulting the Chinese authorities.18 In March 2002, tests revealed the presence of another antibiotic, Nitrofuran, in shrimps imported from Thailand.19 Earlier, the shrimps from other countries such as China, Indonesia, India, Vietnam, and Myanmar had also tested positive for Nitrofuran.20 Therefore, the EU imposed 100% testing on the imports of shrimps. The use of Nitrofurans in food-producing animals is no longer allowed in the EU because of a possible risk of cancer in humans.21 Once this problem came to the fore, various Asian shrimp exporters tried to resolve it immediately.22 The Thai government’s attitude was very cooperative. It immediately revised its existing legislations and regulations including those for the import of the antibiotic into Thailand.23 In this respect, Council Directive 70/524/EEC of 23 November 1970 concerning additives in feeding- stuffs24 lays down that antibiotics “must not be used in feeding-stuffs for the prime purpose of diagnosing, treating or preventing disease” (preamble) and “they must not endanger animal or human health” (preamble). The Resolution on antibiotics in animal feed25 states that “there are concerns about the possible consequences of widespread use of antibiotics in animal feed production in terms of animal and human health, and the medical implications thereof” (recital A). II. ANALYSIS OF THE LEGALITY OF THE EU’S BAN IN LIGHT OF EU LEGISLATION AND CASES Consumers in the EU are very well-protected because their interests are safeguarded at the national and European level at the same time. The EU institutions have come out with a vast array of laws which aim for a high level of protection. 18 ‘China, EU in Brussels Agree to Study Food Ban’ (China Daily,1 February 2002) <www.china.org.cn/english/2002/Feb/26290.htm> accessed 14 May 2019. 19 Sujittra Phongvivat, ‘Nitrofurans Case Study: Thailand's experience’ (Food and Agriculture Organization) <www.fao.org/3/y5723e0u.htm> accessed 14 May 2019. 20 ‘Suspicious Shrimp’ (Food and Water Europe, 4November 2009) <www.foodandwatereurope.org/reports/suspicious-shrimp/> accessed 14 May 2019. 21 EFSA CONTAM Panel (EFSA Panel on Contaminants in the Food Chain), 2014. Scientific Opinion on Chloramphenicol in food and feed. EFSA Journal 2014;12(11):3907, 146 pp. doi:10.2903/j.efsa.2014.3907, p. 82; EFSA CONTAM Panel (EFSA Panel on Contaminants in the Food Chain), 2015. Scientific Opinion on nitrofurans and their metabolites in food. EFSA Journal 2015;13(6):4140, 217 pp. doi:10.2903/j.efsa.2015.4140, p. 2. 22 Peter Debaere, ‘Small fish–big issues: the effect of trade policy on the global shrimp market’ (2010) 9 World Trade Review 353, 358-359. 23 Sujittra Phongvivat, ‘Nitrofurans Case Study: Thailand's experience’ (Food and Agriculture Organization) <www.fao.org/3/y5723e0u.htm> accessed 14 May 2019. 24 [1970] OJ L270/1. 25 [1998] OJ C167/306. 25

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia In this respect, the Treaty establishing the European Community26 in article 3(1)(t) states that “the activities of the Community shall include … a contribution to the strengthening of consumer protection.” It is one of the prime goals of the EC as it is stated in the first part of the treaty and is reinforced in various articles in its text. Articles 28 and 29 prohibit quantitative restrictions between Member States (MS) but article 30 allows those which can be justified on the ground of protection of health and life of humans. Article 95(3) explains that “[t]he Commission, in its proposals … concerning health, safety, … and consumer protection, will take as a base a high level of protection, taking account in particular of any new development based on scientific facts.” Further, article 152(1) enjoins the EC to take care of human health. It reads, “[a] high level of human health protection shall be ensured in the definition and implementation of all Community policies and activities. Community action, which shall complement national policies, shall be directed towards improving public health, preventing human illness and diseases, and obviating sources of danger to human health.” The scope of this article is very wide and includes prevention of risk to consumers’ health. In this context, article 153(1) states that “[i]n order to promote the interests of consumers and to ensure a high level of consumer protection, the Community shall contribute to protecting the health, safety and economic interests of consumers.” Article 153(2) stipulates that “[c]onsumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.” In light of these provisions, it is amply clear that the EU will not let its consumers be imperilled in any way. Apart from the treaty, there are numerous directives, strategies, resolutions, regulations, communications, recommendations, and opinions on the subject. Most of the consumer legislation was a result of the shrimps crisis and contains provisions for informing consumers about the dangers of products. The consumers can decide for themselves whether or not they want to buy a product if they are informed that it contains antibiotics. Food safety agencies inform consumers in case of articles such as peanuts; they could do the same for shrimps. To do otherwise would mean the EU is taking decisions for its consumers. Despite its concern for its consumers, the EU does not give them a chance to participate in matters which concern them directly. Moreover, it is debateable if the procedure mentioned in the EU legislation was followed while imposing the ban. Also, the action of the EU seems to be in conflict with various provisions of EU law. Therefore, it would be in order 26 Treaty establishing the European Community (Nice consolidated version) [2002] OJ C325/33 [1997] OJ C340/173. 26

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia to evaluate the ban under the relevant laws and cases. Council Directive 89/108/EEC of 21 December 1988 on the approximation of the laws of the Member States relating to quick-frozen foodstuffs for human consumption27 mentions adopting rules for the labelling of quick-frozen foodstuffs as it will facilitate trade (preamble). Thus, the EU could have adopted rules for labelling the shrimps so as to inform its consumers and this would have facilitated trade as well. Article 3(2) of Council Directive 92/59/EEC of 29 June 1992 on general product safety28 states that “producers shall … provide consumers with the relevant information to enable them to assess the risks inherent in a product throughout the normal or reasonably foreseeable period of its use, where such risks are not immediately obvious without adequate warnings, and to take precautions against those risks.” Producer includes importer as per article 2(d); therefore, the EU could have required the importers to provide information to the consumers on the risks associated with shrimps. Article 6(1) reads, “Member States shall have the necessary powers … to adopt appropriate measures with a view … to … (d) subjecting product marketing to prior conditions designed to ensure product safety and requiring that suitable warnings be affixed regarding the risks which the product may present; (e) making arrangements to ensure that persons who might be exposed to a risk from a product are informed in good time and in a suitable manner of the said risk by, inter alia, the publication of special warnings.” Neither of these steps was undertaken. According to article 4(2), if neither Community nor national rules exist in this sphere, safety is assessed with reference to codes of good practice in respect of health and safety and to the safety that consumers may reasonably expect. With respect to the ban on the imports of shrimps, the question is what was the reasonable expectation of the EU consumers regarding safety? Did they expect shrimps to be banned? The behaviour of the consumers in continuing to consume shrimps did not display any such expectation. Article 2(b) states that “[t]he feasibility of obtaining higher levels of safety or the availability of other products presenting a lesser degree of risk shall not constitute grounds for considering a product to be 'unsafe' or 'dangerous'.” This means that shrimps with and without antibiotics cannot be compared to declare the former unsafe. Article 14(1) paragraph 2 states that “[t]he parties concerned shall, whenever feasible, be given an opportunity to submit their views before the adoption of the measure. If this has not 27 [1989] OJ L40/34. 28 [1992] OJ L228/24. 27

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia been done in advance because of the urgency of the measures to be taken, such opportunity shall be given in due course after the measure has been implemented.” The fact that Asian exporters and European importers were not given the opportunity to justify their situation means that it was not feasible. In such a case, they should have been given this opportunity after the imposition of the ban. Paragraph 2 of the Annex to the Directive states that products involving possible long-term risks are excluded from the scope of this directive since its article 8 relates to products posing immediate threats to consumers. Cancer and/or aplastic anaemia from contaminated shrimps were not immediate threats; rather their risk was absent.29 So shrimps were excluded from the scope of this directive. Paragraph 3 of the Annex requires the MS to seek the point of view of the producer or distributor in case of a serious problem because their opinion may help in resolving the issue without much disruption in the market and at the same time protecting the consumers. Even if the contaminated shrimps posed an immediate threat and were, thus, included within the scope of this directive, the procedure mentioned in this paragraph was not followed. Council Directive 96/22/EC of 29 April 1996 concerning the prohibition on the use in stockfarming of certain substances having a hormonal or thyrostatic action and of ß-agonists, and repealing Directives 81/602/EEC, 88/146/EEC and 88/299/EEC30 states that “it is necessary to ensure that all consumers are able to acquire meat and foodstuffs … and that those products correspond as closely as possible to their concerns and expectations” (recital 8). But what were the expectations of consumers in the case of shrimps? Most consumers did not know about the antibiotics in the shrimps until the EU banned them and even after that, people continued to buy shrimp which was already on the market. Moreover, it is obvious that the shrimp on the market would not last long after the ban so how would it be ensured that consumers continue to acquire it? Council Directive 96/51/EC of 23 July 1996 amending Directive 70/524/EEC concerning additives in feedingstuffs31 states that “the use of antibiotics … should not be authorized by any mode of administration other than incorporation in feedingstuffs” (recital 20). The ban on shrimp imports comes as a surprise after reading this provision. Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 29 JC Hanekamp, G Frapporti, K Olieman, ‘Chloramphenicol, food safety and precautionary thinking in Europe’ (2003) 11(6) Environmental Liability 209. 30 [1996] OJ L125/3. 31 [1996] OJ L235/39. 28

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia on general product safety32 states that “[i]n the absence of specific regulations and when the European standards established under mandates set by the Commission are not available or recourse is not made to such standards, the safety of products should be assessed taking into account … the safety which consumers may reasonably expect” (recital 16). Irrespective of the presence or absence of regulations and/or standards, the question is what were the expectations of the consumers? They were buying the shrimps whether or not they knew about the antibiotic residues in them. The question then is whether the EU should be deciding for its consumers the safety that they expect of a particular product. Article 3(3) states that the safety of the product shall be judged in light of the following factors – “(e) the state of the art and technology; (f) reasonable consumer expectations concerning safety.” These guidelines were not followed. Firstly, Asian exporters do not have the same infrastructure and technology as Europe. This means that the sophisticated technology in Europe may allow detection of very low levels of Chloramphenicol in shrimps classified as free of this antibiotic by the exporting country due to the use of not so-advanced technology unable to detect very low levels of this antibiotic.33 Secondly, European consumers were not given a chance to express their views so it is not possible to know of their expectations. Article 8(1)(b)(i) states that a MS is entitled to require that the risk posed by a product be mentioned on the product itself in clear and simple words in the language of the MS in which it is being sold. But the EU banned the imports of shrimps before any MS could take this step. Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety34 came into force after antibiotics were discovered in shrimps. It states that the EC has chosen a high level of health protection which it applies without discrimination whether food or feed is traded internally or internationally (recital 8). The EU may have chosen a high level of health protection but it does not apply it without discrimination since it was exporting contaminated food to Asian countries.35 The regulation recognises the fact that the exercise of the precautionary principle leads to restriction of trade (recital 20). Therefore, article 7(2) requires the adoption of precautionary measures that are proportionate and not more restrictive of trade than required for 32 [2002] OJ L11/4. 33 JC Hanekamp, G Frapporti, K Olieman, ‘Chloramphenicol, food safety and precautionary thinking in Europe’ (2003) 11(6) Environmental Liability 209. 34 [2002] OJ L31/1. 35 Dirk Bannink, ‘Contaminated foodstuffs dumped on world market’ (Nuclear Monitor Issue: # 349-350, 5 April 1991) <www.wiseinternational.org/nuclear-monitor/349-350/contaminated-foodstuffs-dumped-world-market> accessed 14 May 2019. 29

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia the protection of public health. Given that the EU was not willing to accept even the slightest trace of antibiotics in shrimps, it could argue that its ban was proportionate to this requirement and not more trade restrictive than necessary. But the real question is whether it is proportionate to require zero antibiotics in shrimps when the risk is absent? The ban on shrimp imports was a swift and perhaps panic-stricken exercise of the precautionary principle on the EU’s part which led to a complete restriction of shrimp trade between the EU and Asia. It also aims to boost consumers’ and international trading partners’ confidence in food policy by informing them when there are reasonable grounds to believe that a product presents a risk (recital 22). Neither consumers nor international trading partners were informed or consulted before imposing the ban. This opaque functioning of the European authorities will not increase the public’s trust in them. The regulation explicitly states that the safety of consumers within the EC and outside is very important, that the EC contributes to the development of international food law standards, and that it supports free trade without discrimination following fair and ethical trading practices (recital 23). The EU’s ban on Asian shrimps can be examined in light of each of these statements. Firstly, it is clear that the consumers outside the EU have no importance for it because the EU is a regional grouping and also because it was exporting contaminated food to Asia.36 Secondly, it is not clear how imposition of a unilateral ban will lead to development of international food law standards. Thirdly, the EU does not believe in free trade as evidenced by its unilateral ban. It also practices discrimination and does not believe in fair and ethical trading practices as it was exporting contaminated food to Asia37 and also because the ban was imposed without obtaining the views of the other side.38 An important point it makes is that harmful food or feed cannot be exported or re-exported from the EC (recital 24). Despite this provision, the EU has been exporting contaminated food to Asia.39 How can the EU expect its partners to be fair if it is not fair itself? The EU should exercise a level of care similar to the one it expects of its partners. 36 Dirk Bannink, ‘Contaminated foodstuffs dumped on world market’ (Nuclear Monitor Issue: # 349-350, 5 April 1991) <www.wiseinternational.org/nuclear-monitor/349-350/contaminated-foodstuffs-dumped-world- market> accessed 14 May 2019. 37 Dirk Bannink, ‘Contaminated foodstuffs dumped on world market’ (Nuclear Monitor Issue: # 349-350, 5 April 1991) <www.wiseinternational.org/nuclear-monitor/349-350/contaminated-foodstuffs-dumped-world-market> accessed 14 May 2019. 38 China, EU in Brussels Agree to Study Food Ban’ (China Daily, 1 February 2002) <www.china.org.cn/english/2002/Feb/26290.htm> accessed 14 May 2019. 39 Dirk Bannink, ‘Contaminated foodstuffs dumped on world market’ (Nuclear Monitor Issue: # 349-350, 5 April 1991) www.wiseinternational.org/nuclear-monitor/349-350/contaminated-foodstuffs-dumped-world-market accessed 14 May 2019. 30

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia The Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of Regions Consumer policy strategy 2002-2006 (COM(2002) 208 final),40 in the rationale of the new consumer policy strategy in paragraph 2, states that “[m]easures have frequently sought to give consumers the means to protect their own interests by making autonomous, informed choices. This typically ensures that consumers will have sufficient, correct information before engaging in transactions … However, in some situations, providing a basis for informed choice and legal redress has been regarded as insufficient, notably as regards protection of physical health and safety. In such situations, harmonised rules are considered necessary to guarantee an adequate level of protection to all consumers quite independently of their ability to protect themselves by making informed choices. The decision to adopt such a measure depends to a large extent on a political assessment of the importance of the interest to be protected and the feasibility of consumers being able to protect themselves by informed choices in practice.” This communication came after antibiotics were discovered in shrimps. In the case of shrimps, the consumers were not given an opportunity to decide for themselves because the ban was imposed without their conference. The EU probably presumed that it was not feasible for its consumers to protect themselves even after being informed of the risk. It remains to be seen if the EU will inform its consumers if such a situation arises in the future so as to allow them to make choices. Additionally, the meaning of political assessment has not been explained. Moreover, it is not clear why a political assessment is required, given that such problems can be resolved by the EU consumer institutions. This could point in the direction that the EU wants to impose not only its economic but also political will on the international scene. In its Summary of Opinions Adopted, Plenary Assembly,41 the EESC aims to support Commission proposals so that all European citizens can be educated and trained as consumers as is their right and duty.42 This opinion was given one year after the ban was imposed. It reflects the general principles followed by the EU when defining its policies and taking action. It also presumes that citizens are capable of taking decisions as consumers when informed of the risks in a product. But the EU ignored this basic concept when it imposed the ban. Does the EU not want to educate and train its citizens as consumers because they might make choices not beneficial to the EU domestic industry (of shrimps, in this case)? After analysing the ban in light of EU law, the following section discusses two pertinent 40 [2002] OJ C137/2. 41 European Economic and Social Committee, 26 and 27 March 2003, Brussels, 16 p. 42 European Economic and Social Committee, 26 and 27 March 2003, Brussels, p. 4. 31

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia cases that arose in the EU at around the same time as the ban on Asian shrimps. In Alpharma Inc. vs. Council of the European Union43 and Pfizer Animal Health SA vs. Council of the European Union,44 the Court elaborated on the use of the precautionary principle. Article 1 of Council Regulation (EC) No 2821/98 of 17 December 1998 amending, as regards withdrawal of the authorisation of certain antibiotics, Directive 70/524/EEC concerning additives in feedingstuffs 45 banned the use of four antibiotics 46 as additives in animal feedingstuffs. Various scientific bodies claimed that animals would develop resistance to these antibiotics and that it would get transferred to humans via the food chain. But this had not been proved at the time of adoption of the impugned regulation. So the Council action was taken as a measure of precaution. The Court held that it was possible to take pre-emptive action before the risk becomes manifest. It qualified this finding by stating that such a measure could not be based on mere speculation not proved by science but could be taken only if the risk was real. Risk means that there is some possibility that the negative consequences which the measure aims to avoid will occur. Therefore, the public authority must do a meticulous risk assessment considering the urgency of the risk. The Court also stated that the public authority must obtain the opinions of the relevant scientific bodies even if not provided for by law unless it has scientific reasons to impose the prohibition. In addition, the Resolution on antibiotics in animal feed47 states that “the possible risk or danger posed by the use of antibiotics in animal feed must be adequately proven by scientific means in order to justify a ban” (recital C). The contested regulation states that “SCAN48 is of the opinion that the possibility that an increase in the resistance pool at animal level might pose risks to humans has been neither proved nor disproved, but that such a risk might be expected to be demonstrated” (recital 9). The EU’s own scientific body was not sure if resistance to antibiotics in animals could be transferred to humans. In fact, the risk of such transfer was only an expectation. In spite of this, this regulation banned the use of four antibiotics in animal feed. Further, it goes on to say that “the Committee concluded … that the use of virginiamycin as a growth promoter did not constitute a real immediate risk to public health in Denmark since Denmark had provided no 43 Case T-70/99 [2002] ECR II-03495. 44 Case T-13/99 [2002] ECR II-03305. 45 [1998] OJ L351/4. 46 Virginiamycin, bacitracin zinc, spiramycin, and tylosin phosphate. 47 [1998] OJ C167/306. 48 Scientific Committee on Animal Nutrition. 32

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia new evidence to substantiate the transfer of streptogramin resistance from organisms of animal origin to those resident in the human digestive tract, which would compromise the future use of human medicinal products” (recital 15). Countries like Denmark and Sweden had already done research in this field. It was the responsibility of the EU institutions to further that research and study the effects of virginiamycin in other MS. Instead, the Council banned the four antibiotics in all the MS. These cases and the ban on Asian shrimps point in the direction of a tendency on the part of the EU to impose bans without sufficient research regarding the risk involved in the banned product. Interestingly, there is research contradicting the stand of the EU. This research states that Chloramphenicol can enter shrimps by various means, for example (1) the antibiotic may be disposed of in water channels after human medical use and thus enter the shrimps (2) it is naturally found in the environment and may thus enter the shrimps. So every finding of this antibiotic in shrimps does not necessarily mean that it has been added by the exporters. Similarly, for Nitrofuran, there are many sources and every finding of this antibiotic in shrimps does not necessarily mean that it has been added by the exporters. Moreover, aplastic anaemia has never been caused by the consumption of food having Chloramphenicol residues.49 The next part will examine the legality and the implications of the EU’s action in light of some important WTO cases. III. ANALYSIS OF THE LEGALITY OF THE EU’S BAN IN LIGHT OF WTO CASES Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general product safety50 states that “the adoption of measures concerning imported products … with a view to preventing risks to the safety and health of consumers must comply with the Community's international obligations” (recital 38). The action of the EU can be analysed in light of some cases to determine (1) whether or not it complied with WTO law and (2) the real motive for the import ban. 49 JC Hanekamp, G Frapporti, K Olieman, ‘Chloramphenicol, food safety and precautionary thinking in Europe’ (2003) 11(6) Environmental Liability 209; JC Hanekamp, Utopia and gospel: Unearthing the good news in precautionary culture (Doctor of Philosophy, Tilburg School of Humanities and Digital Sciences, [s.n.] 2015) 63-78. 50 [2002] OJ L11/4. 33

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia In EC – Hormones,51 the Appellate Body (AB) held that the EU measures prohibiting the import and marketing of hormone-treated beef were not based on a risk assessment under article 5(1) of the Agreement on the Application of Sanitary and Phytosanitary Measures52 (SPS Agreement). The AB said that the EU’s evidence was not specific and did not throw light on the kinds of risks arising from hormone residues in meat. As a result of this decision, the EU undertook extensive study of the impact of the relevant hormones on humans and found that it was not possible to quantify the risk. Therefore, it decided not to lift the ban. But the fact is that American producers still do not have access to European markets. What would be the result if these American producers were to be replaced by the producers in the developing countries of Asia? In analysing the action of the EU in banning Asian shrimps, one can raise various questions. Firstly, did the EU conduct an adequate risk assessment in the case of Chloramphenicol and Nitrofuran? Secondly, if China had gone before the WTO as it had threatened to do53 and if the EU had lost, would it have undertaken more research under article 5(7) of the SPS Agreement?54 Thirdly, these antibiotics were used to ward off disease and not to improve the growth of the animals. In Korea – Various Measures on Beef,55 the AB held that the dual retail system was not necessary to promote compliance with fraud avoidance laws under article XX(d) of the General Agreement on Tariffs and Trade56 (GATT). The AB held that the relative importance of the public interest that the measure is expected to protect has to be taken into account in order to 51 WTO, European Communities: Measures Concerning Meat and Meat Products (Hormones)—Report of the Appellate Body (16 January 1998) WT/DS26/AB/R and WT/DS48/AB/R <http://docsonline.wto.org>. 52 This article states that “[m]embers shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organizations.” 53 ‘EU's Ban on Meat 'Runs Counter to Rules'’ (China Daily, 28 January 2002) <www.china.org.cn/english/2002/Jan/25989.htm> accessed 14 May 2019. 54 This article states that “[i]n cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time.” 55 WTO, Korea: Measures Affecting Imports of Fresh, Chilled and Frozen Beef—Report of the Appellate Body (11 December 2000) WT/DS161/AB/R and WT/DS169/AB/R. 56 This article states that “[s]ubject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: … (d) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement, including those relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII, the protection of patents, trade marks and copyrights, and the prevention of deceptive practices.” 34

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia determine if a measure restricting trade is necessary and falls within article XX(d).57 The importance of the public interest and the acceptability of the measure are directly proportional. So the necessity of the measure will be more acceptable if the public interest to be protected has greater significance. Moreover, the extent of trade restriction has to be related to the extent to which it contributes to the regulatory goal. Applying this logic to the prohibition on imports of shrimps, it is clear that the ban does not really advance the goal stated in article XX(b), that of protection of human, animal or plant life or health.58 Were the EU to argue its case before the WTO, it would probably take this argument. But this measure is not necessary because the goal advanced is not considerable either. There are no chances that a consumer would get cancer from the consumption of shrimps containing antibiotics. So the link between the measure and the goal pursued is absent which results in the measure not being necessary. In EC – Asbestos,59 the AB held that risk to health could be a criterion for determining likeness of competing products.60 The AB also held that public health could not be a separate criterion in itself and must be examined along with the physical properties of the product and consumer tastes and preferences. Thus, if the consumers were not informed of the risk involved in one of the products, the risk would not affect competition between the products. Furthermore, risk to health is a very wide term and covers situations where health can be affected without being endangered. In such a case, the risk has a smaller effect on the competition between the products. So if the risk is not imminent or is not sufficiently dangerous to be covered by article III(4),61 it can be covered under article XX(b). This could be a legal basis for discriminating 57 Marie-Pierre Lanfranchi, ‘Observations sous “Etats-Unis-Crevettes II” : quel statut pour les mesures unilatérales environnementales dans le droit de l’OMC ?’ (2002) 13 L’Observateur des Nations Unies 65. 58 This article states that “[s]ubject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: … (b) necessary to protect human, animal or plant life or health.” 59 WTO, European Communities: Measures Affecting Asbestos and Products Containing Asbestos—Report of the Appellate Body (12 March 2001) WT/DS135/AB/R. 60 Gabrielle Marceau and El Hadji Abourahmane Diouf, ‘L’OMC réconcilie commerce et santé : La nouvelle jurisprudence de l’Organe d’appel dans l’affaire “CE-AMIANTE”’ (2002) 12 L’Observateur des Nations Unies 49. 61 This article states that “[t]he products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use.” 35

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia against imported products.62 A complete ban would be justified if the product were lethal.63 Another point on which the AB threw light was the necessity test under article XX(b). Following the Korea – Various Measures on Beef decision, it reiterated that the importance of the public interest served is paramount. It stated that it is not necessary for the measure to achieve all the goals it aims to achieve. It took into account the extent to which such public interest goals could be met by other measures. Finally, the AB held that the French measure fulfilled the requirements of article XX(b). It is obvious that European shrimps would compete with Asian shrimps and they can be considered like products. There is a very high possibility that the ban aims to protect the domestic industry if two competing products are like. It is preferable to inform the consumers of the risk rather than take the shrimp off retailers’ shelves because that could reflect on the intention of the EU. The most important point is that the consumption of contaminated shrimps was not lethal. Therefore, a complete ban was unwarranted. In US – Shrimp,64 the US ban on imports of shrimps was held to be discriminatory and thus, illegal. Therefore, the US amended it to allow imports of shrimps irrespective of the fishing method used as long as turtles were protected. Malaysia sought redress under article 21(5) of the Dispute Settlement Understanding.65 It argued that the US was required to conclude a multilateral agreement in this respect and not just negotiate one. It also alleged that the US did not lift the ban and that it could not impose it without being authorised by an international instrument.66 The panel found that the US had made efforts in good faith to include all the parties in a multilateral framework and its action was no longer arbitrary. The AB confirmed this finding on appeal because compelling the US to conclude an agreement would put the other parties in a stronger position leading to reverse unilateralism thus defeating the principle of equality. Also, the AB approved the fact that the altered American law required achievement of 62 Gabrielle Marceau and El Hadji Abdourahmane Diouf, ‘L’OMC réconcilie commerce et santé : La nouvelle jurisprudence de l’Organe d’appel dans l’affaire “CE-AMIANTE”’ (2002) 12 L’Observateur des Nations Unies 49, 56-57. 63 Marie-Pierre Lanfranchi, ‘Observations sous “Etats-Unis-Crevettes II” : quel statut pour les mesures unilatérales environnementales dans le droit de l’OMC ?’ (2002) 13 L’Observateur des Nations Unies 65, 66. 64 WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products—Report of the Panel (15 May 1998) WT/DS58/R and Report of the Appellate Body (12 October 1998) WT/DS58/AB/R; WTO, United States: Import Prohibition of Certain Shrimp and Shrimp Products—Recourse to Article 21.5 of the DSU by Malaysia—Report of the Panel (15 June 2001) WT/DS58/RW and Report of the Appellate Body (22 October 2001) WT/D58/AB/RW. 65 This article states that “[w]here there is disagreement as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings such dispute shall be decided through recourse to these dispute settlement procedures, including wherever possible resort to the original panel.” 66 Hélène Ruiz Fabri, ‘Organisation mondiale du commerce Chronique du règlement des différends’ (2002) 3 Journal du Droit International 882. 36

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia a certain result whatever the means used.67 The AB stated that the importing state could not oblige the exporting state to follow a rigid policy set by the former because it had to bear in mind the different circumstances prevailing in the exporting countries. This deference to local conditions helps to guard against protectionism. However, the EU’s ban does not take into account the dissimilar situation of each country. It is no secret that China and Myanmar are at two different levels of development. Despite the fact that the US started negotiations with the complainants after having adopted section 609 embodying the ban and despite the fact that this section constituted an effective source of pressure on those countries, the US had made continued efforts to come up with a regional convention.68 But the EU did not make any efforts. It first banned the shrimps and then started discussions with the exporting countries (without the aim of arriving at a multilateral agreement). Significantly, the first AB report stated that the country imposing the restriction is in a stronger position especially when there are economic consequences. Such a measure would necessarily be prejudicial to developing countries when it is imposed by one of the largest economic powers in the world, the US in this case.69 The EU is an economic giant. Therefore, its trading partners have no choice but to follow its policies. This is not trade as trade is supposed to be equitable. The action of the EU means that Asian shrimp farmers must obey the EU if they want to exercise their rights under the GATT. Is the EU legitimately pursuing the goal of protection of public health or is it illegitimately pursuing the goal of protectionism? This is the first ruling in the multilateral trading system in which unilateral extra-territorial measures to protect the environment were allowed, which is extremely disfavourable to developing countries because it is possible that such measures introduce protectionism in the garb of environmental protection. Such a precedent has allowed the EU to impose import restrictions without amending the WTO rules. The EU managed to get environmental concerns included in the WTO’s programme of negotiations in 2001 at Doha. Since 1995, the EU has been insisting on the inclusion of public interests in the WTO agenda but the real reason is that it wants the freedom to restrict trade. It does not take into account the fact that different societies have different priorities and thus, diverse policies. Therefore, it uses coercive measures such as 67 Hélène Ruiz Fabri, ‘Organisation mondiale du commerce Chronique du règlement des différends’ (2002) 3 Journal du Droit International 882, 885. 68 Marie-Pierre Lanfranchi, ‘Observations sous “Etats-Unis-Crevettes II” : quel statut pour les mesures unilatérales environnementales dans le droit de l’OMC ?’ (2002) 13 L’Observateur des Nations Unies 65, 72. 69 Marie-Pierre Lanfranchi, ‘Observations sous “Etats-Unis-Crevettes II” : quel statut pour les mesures unilatérales environnementales dans le droit de l’OMC ?’ (2002) 13 L’Observateur des Nations Unies 65, 74. 37

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia import bans rather than democratic measures such as discussions and negotiations. Due to the decision in this case, importing countries can impose restrictions based on the process and production method (PPM) and ask exporting countries to change their domestic policies. Economically powerful countries will be able to impose their will on weaker states which need access to their markets. There will be no such thing as free trade since the weaker countries will not have much of a voice in decision- making. The concept of exceptions is so much in conflict with the chapeau of article XX that restrictions are imposed only in very extreme situations but the threat of cancer by antibiotics was neither immediate nor extreme; rather it was absent. In US – Tuna,70 the US took the defence of article XX(b) and (g).71 However, the panel found that the prohibition was not necessary. The US had not made sufficient efforts to exhaust alternative remedies (for example, an international agreement on tuna/dolphins) before imposing the ban. It also found that article XX(g) could not be applied extra-territorially to tuna originating in Mexico because its language “in conjunction with restrictions on domestic production or consumption” meant that the measures must be primarily aimed at rendering “effective” domestic restrictions. A country can control production and consumption only if they are under its jurisdiction. The panel concluded that the ban was an illegal quantitative restriction since it did not meet the requirements of article XX. The ruling was due to GATT’s resistance to cases in which PPM was a major factor. Three years later, in US – Tuna,72 a separate panel came to the same conclusion i.e. the GATT did not apply to PPM. The complainant, the EU, stated that the actions of all nations would be obstructed if one nation enforced strict regulations for the protection of dolphins. The panel held that the exporting country had to use fishing methods conforming to the American ones in order to satisfy the terms of the US law. But the US was not entitled to use the GATT to compel other countries to adopt its policies. The US law prohibited the tuna simply on the basis of a country’s policies regardless of whether an individual tuna may have been caught without harming dolphins. Similarly, the EU prohibited all shrimps regardless of whether an individual shrimp may not contain antibiotics. These US – Tuna cases (despite both reports being unadopted) provide another example 70 United States – Restrictions on Imports of Tuna (1991) GATT BISD DS21/R - 39S/155. 71 This article states that “[s]ubject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: … (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.” 72 United States – Restrictions on Imports of Tuna (1994) GATT BISD DS29/R. 38

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia of superpowers adopting unilateral measures to change domestic policies of other countries. Of course, they have been overruled by US – Shrimp. In the case of Asian shrimps, the EU would not succeed if it took the argument of article XX(b) if the ruling of the panel in the above case that article XX(g) does not have extra- territorial jurisdiction is applied to article XX(b). The panel concluded that a country can control the production and consumption of a natural resource within its jurisdiction. In this case, the production of shrimps was not within the jurisdiction of the EU. Since the panel had held that the US cannot force countries to change their policies in accordance with its own policies, the same would be applicable to the EU. The ban does not explicitly require countries to change their policies. However, countries have changed their policies as a consequence of the ban. There is evidence to this effect. Countries where the use of Chloramphenicol and Nitrofuran was allowed banned their use after the EU’s prohibition.73 Thus, the prohibition did have extra-territorial effect. According to the panel, the word “necessary” means that no cooperative efforts were possible to solve the problem. But the EU did not even try to use such measures so one does not know if they were possible. Also, the GATT cases did not touch upon PPM, even though that has been overruled by US - Shrimp. The antibiotics were mixed in shrimp feed when shrimps were raised on shrimp farms. This is part of the production process. Moreover, in the above case, the EU showed concern about multilateral measures but it used a unilateral measure to protect its consumers from antibiotics. It is, thus, a clear restriction on trade. In fact, the ban only served to bring down the demand after creating a scare about the antibiotics, thus, proving the role of the EU in restricting trade. Additionally, the EU violated its own argument in US – Tuna that the actions of all nations would be obstructed if one nation enforced strict regulations for the protection of dolphins, by enforcing strict regulations regarding the residues of antibiotics in shrimps. In its Summary of Opinions Adopted, Plenary Assembly,74 the EESC intends to aid the Commission’s efforts to satisfy the justified demands of developing countries. It proposes to provide continuous support to less developed countries by transferring resources and technical expertise so that their participation in WTO processes is substantial and fruitful.75 Had the Asian countries brought the case to the WTO, would the EESC have supported their participation in the WTO dispute settlement process or would the Commission have considered such participation unjustified given that it would have been defending itself? 73 Peter Debaere, ‘Small fish–big issues: the effect of trade policy on the global shrimp market’ (2010) 9 World Trade Review 353, 358. 74 European Economic and Social Committee, 26 and 27 March 2003, Brussels, 16 p. 75 European Economic and Social Committee, 26 and 27 March 2003, Brussels, p. 6. 39

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia These cases show the EU’s preoccupation with its consumers’ health. Its over-cautious approach leads it to expect zero risk, something which cannot exist unless trade is banned. Additionally, there was no urgency to take the measure as the risk from Chloramphenicol and Nitrofuran was not immediate; rather it was absent. In February 2000, the European Commission released a communication on the precautionary principle.76 It stated that the precautionary principle should be applied when “there are reasonable grounds for concern that the potentially dangerous effects on the environment, human, animal or plant health may be inconsistent with the high level of protection chosen for the Community” (paragraph 3, page 2). But there were no chances of getting cancer from the contaminated shrimps. Thus, there were no reasonable grounds for the EU’s ban. The EU can claim that it has acted as a measure of precaution but the consequences are very grave for Asian shrimp farmers. In fact, the zero tolerance policy of the EU meant to protect European citizens from potential non-existent risks results in poor Asian farmers losing their livelihood.77 If the EU were so concerned about its consumers, national sovereignty, and freedom of trade, it would use methods which fulfil all the three objectives such as negotiations, instead of bans. These cases and the ban on Asian shrimps reveal a tendency on the part of the EU to impose unilateral measures. It has used its commercial policy to impose its power on the rest of the world. It wants to influence other countries’ laws and standards to increase its authority over their markets and at the same time denying them access to its markets. The fact that it is a party in many of the cases shows its desire to impose its point of view over a multinational organisation like the WTO and other countries. This is not plain unfurling of commercial policy; rather it amounts to pursuing political ends. In fact, Pascal Lamy, the EU Commissioner for Trade at that time, even expressed overt dissatisfaction at the forming of the Free Trade Areas of the Americas in 2001. He felt that the US would be spreading its opinions, rules, and ideas throughout the American continent which would pose a serious problem for the EU. He even stated that by being a party to this Free Trade Area, the South American states would have to decide what sort of “geo-economic-political” balance they wanted between the US and the EU.78 It is not surprising why such a grouping should pose a problem for the EU. The EU wants to penetrate South American markets and 76 Commission, ‘Communication from the Commission on the precautionary principle’ COM (2000) 1. 77 JC Hanekamp, G Frapporti, K Olieman, ‘Chloramphenicol, food safety and precautionary thinking in Europe’ (2003) 11(6) Environmental Liability 209. 78 Olivier Cattaneo, Quelles ambitions pour la politique commerciale de l’Union européenne ?, La stratégie d’influence de l’Union européenne (Les notes de l’ifri, no. 39, Institut français des relations internationales 2002) 24-25. 40

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia these kinds of groupings do not augur well for it. Another instrument used to pressure developing countries is the Generalised System of Preferences (GSP) scheme. It is in the developing countries’ interest not to displease the EU since it can suspend all benefits under the GSP scheme in certain cases. 79 The EU, being aware of the influence it exerts on the international scene, prefers to regulate the functioning of markets and not only conquer them. The EU has a propensity to regulate and knows that making use of public concerns (such as consumer protection) is an effective way of doing so. Additionally, the EU also wants to control the working of various sectors in developing countries. What could be the reason behind this? The world was traditionally divided into rich countries with high productivity and high wages, and poor countries with low productivity and low wages. But now there is a third category too. Some countries have high productivity and low wages. Thus, their capacity to compete is much higher. The emergence of such economies is viewed as a threat by developed countries. A report released in 1993 by former President of the European Commission Jacques Delors stated that the reason for growing unemployment in Europe was the competition from such countries where costs were simply unrivalled when compared with those in Europe.80 This is the reason why the EU wants to control the working of these countries. The aim of development is to improve the life of millions of people. This goal will not be achieved if the EU and other developed countries impose trade restrictions.81 CONCLUSION Various foods labelled as “made in factory dealing with Soya or peanuts” are found in the market because people are allergic to them. Medicines containing Sulpha are freely available in the market even though some people may react fatally to it. People can even die when they are vaccinated or when a medicine is tried on them before they are administered the full dose. But these products have not been banned. Why not? Because the chances of reacting to these products are so low that it would not be in the interest of society to ban them. If zero tolerance standards are not imposed for allergies to peanuts and Soya despite abundant data on the danger they pose to certain persons and if these foods are not banned, then seafood with residues not 79 Olivier Cattaneo, Quelles ambitions pour la politique commerciale de l’Union européenne ?, La stratégie d’influence de l’Union européenne (Les notes de l’ifri, no. 39, Institut français des relations internationales 2002) 30. 80 Paul R Krugman, La mondialisation n’est pas coupable : Vertus et limites du libre échange (Casbah Editions 1999) 62-63. 81 Paul R Krugman, La mondialisation n’est pas coupable : Vertus et limites du libre échange (Casbah Editions 1999) 80. 41

The 2019 Law CMU International Conference Law: Legality and Legitimacy in Asia harmful to the general public should not be banned either. In fact, the Asian developing exporting countries were left with no choice but to meet the demands of the EU since it was the buyer or stop exporting to the EU. Many Thai companies stopped exporting to the EU after the ban. Thai shrimp exports to the EU fell from 14,000 tons in 2001 to 6,000 tons in 2002.82 The EU wants to be seen as a developer in Asian circles but that is not possible in such a situation. This reflects poorly on the EU’s interest in developing the region. Moreover, the Asian countries were doing their best to resolve the issue. Some of them already had laws prohibiting the use of the antibiotics and others banned their use in their countries.83 So there was no urgency to take such a harsh measure. As a consequence, banning imports from entire countries because of a few contaminated shiploads is viewed as poor policy. Consumer protection can be accomplished in other ways such as testing and holding shipments that fail the test. Developed countries should help developing countries to improve their veterinary practices and checks on edible products. But is Europe ready to do this? In comparison, the US FDA took time to bring its standard of Chloramphenicol down from 5 ppb to 0.3 ppb. It first brought down its standard to 1 ppb in May 2002. Later, in July 2003, it brought down its standard to a level of 0.3 ppb. It did not impose an outright ban on the imports. With respect to Nitrofuran, it announced testing of shrimps in 2004.84 Given this attitude of the EU, what were the consequences of such a ban for EU-Asia relations? The cooperative attitude of the Asian governments was tempered by calls from domestic industry to retaliate. The ASEAN Fisheries Federation called for a reduction in or even cessation of exports to the EU until it eased its restrictions. This call was made due to the EU’s opaque and discriminatory ban, a non- tariff barrier, according to which contaminated imports were to be destroyed without recourse to appeal. The Federation also intended to ask the governments of ASEAN countries to impose stringent laboratory controls on European imports and to retaliate by destroying contaminated products. It also intended to hire a lawyer to file a suit 82 ‘ASEAN Fisheries Federation Says EU Ban Unfair’ (Shrimp Media Monitoring “A Synthesis of Shrimp News From the International Media and Internet”, 24 March–7 April 2003) <http://library.enaca.org/Shrimp/Newsletter- 24-Mar-7-Apr-2003.pdf> accessed 15 May 2019. 83 Peter Debaere, ‘Small fish–big issues: the effect of trade policy on the global shrimp market’ (2010) 9 World Trade Review 353, 358. 84 Peter Debaere, ‘Small fish–big issues: the effect of trade policy on the global shrimp market’ (2010) 9 World Trade Review 353, 358. 42