United States – Shrimp Import Prohibition of Certain Shrimp Products

International Business Law
Case brief
Title:    United States – Shrimp

Import Prohibition of Certain Shrimp Products
Recourse to Article 2.1.5 of the DSU by Malaysia
Facts:
In 1989, to protect endangered sea turtle from incidental mortality from commercial shrimp trawling, the U.S Congress enacted Section 609 of Public Law 101-162.
Section 609 states that the Department of State has to ratify that nations exporting shrimp to the U.S. have to have programs in place (similar to the U.S.’s Turtle Excluder Devices- TEDs) that reduce the incidental capture of sea turtles while fishing for shrimp.
If a nation was not certified, it was banned from exporting shrimp to the United States.
In May 1998, sixteen nations had adopted such programs and were certified by the U.S.

Issue:
Malaysia was not certified and challenged the revised procedure.
Decision:
On the grounds that Section 609 no longer constituted an “unjustified discrimination”, the WTO Panel ruled against Malaysia. This was also because the U.S. State Department revised the guidelines it used to enforce Section 609 so that TEDs only had to be comparable in effectiveness to those used in the States.
An appeal was made and in 2000, the WTO Dispute Settlement Body (DSB) findings showed that, based on revised guidelines, Malaysia had enough flexibility to enable it apply for certification, and for the U.S to consider prevailing conditions in Malaysia in considering the application.
Opinion:
Malaysia should apply for certification, as there is no arbitrary or unjustifiable discrimination against it. Other countries had applied and were certified, so there was no reason that Malaysia would be singled out for disqualification.