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Risky Apples Again? Australia – Measures Affecting the Importation of Apples from New Zealand

Published online by Cambridge University Press:  20 January 2017

Alessandra Arcuri ,
Lukasz Gruszczynski  and
Alexia Herwig
Alessandra Arcuri
Affiliation:
Erasmus School of Law, Erasmus University Rotterdam
Lukasz Gruszczynski
Affiliation:
Institute of Legal Studies, Polish Academy of Sciences
Alexia Herwig
Affiliation:
Centre for Law and Cosmopolitan Values and University of Antwerp
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Abstract

The section on WTO law highlights the interface between international trade law and national risk regulation. It is meant to cover cases and other legal developments regarding the SPS, TBT and TRIPS Agreements and the general exceptions in both GATT 1994 and GATS as well as to inform about pertinent developments in recognized international standardization bodies and international law. Of recurrent interest in this area are questions of whether precautionary policies can be justified under WTO law, the standard of review with which panels and the Appellate Body assess scientific evidence and the extent to which policy can and should influence risk regulation.

Type
Reports
Information
European Journal of Risk Regulation , Volume 1 , Issue 4 , December 2010 , pp. 437 - 443
Copyright
Copyright © Cambridge University Press 2010

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References

1 Panel Report, Australia – Measures Affecting the Importation of Apples from New Zealand WT/DS367/12 (not yet adopted).

2 Agreement on the Application of Sanitary and Phytosanitary Measures, 1867 U.N.T.S. 493.

3 Panel Report, Japan – Measures Affecting the Importation of Apples, WT/DS245/R, adopted 10 December 2003, upheld by Appellate Body Report WT/DS245/AB/R, DSR 2003:IX, 4481 and Appellate Body Report, Japan – Measures Affecting the Importation of Apples, WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, 4391.

4 Panel Report, Japan – Measures Affecting the Importation of Apples – Recourse to Article 21.5 of the DSU by the United States, WT/DS245/RW, adopted 20 July 2005, DSR 2005:XVI, 7911.

5 Japan prohibited the importation of apples from orchards with fire blight symptoms and of apples from US states other than Oregon and Washington, it required that export orchards be surrounded by a 500 m buffer zone free of fire blight and that orchards be inspected three times a year for fire blight symptoms, that apples, containers and packing facilities be treated with chlorine, postharvest separation of apples destined for Japan from other apples and certification requirements.

6 Panel Report, Japan –Apples, paras. 8.123–8, 8.137–9.

7 Ibidem, para. 8.153.

8 Ibidem, para. 8.166.

9 Ibidem, paras. 8.213–22.

10 Ibidem, paras. 8.271, 8.177–97, 8.198–9, 8.223–4.

11 Appellate Body Report, Japan – Apples, paras. 160, 168, 182, 185, 188, 206, 209, 216, 224, 231, 241, 242.

12 Panel Report, Japan – Measures Affecting the Importation of Apples (Article 21.5) WT/DS245/RW, para. 8.33.

13 PR, Japan – Apples (Article 21.5), paras. 8.89, 8.94, 8.97, 8.102, 8.106, 8.112, 8.117, 8.118, 8.157. The compliance panel accepted only Japan's requirement that US officials certify that exported apples are free from fire blight and the related Japanese confirmation (paras. 8.111, 8.116).

14 Ibidem, paras. 8.194–9.

15 Appellate Body Report, United States – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/AB/R, adopted 14 November 2008.

16 Panel Report, Australia – Apples, paras. 7.1–7.2.

17 Ibidem, para. 7.5.

18 Ibidem, para. 7.9.

19 Ibidem, para. 7.21.

20 Ibidem, paras. 7.34–7.36.

21 Ibidem, para. 7.82.

22 Ibidem, paras. 7.144–7.150.

23 Ibidem, paras. 7.151–7.152.

24 For a critique of the EC – Biotech panel's finding in this respect, see Prévost, Denis, “Opening Pandora's Box: The Panel's Findings in the EC-Biotech Dispute”, 34(1) Legal Issues of Economic Integration 67 (2007), p. 75 et sqq.Google Scholar

25 Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, 135.

26 The following reasoning from the previous Continued Suspension Appellate Body report seems to have been particularly influential in the Panel's logic: “A panel should also assess whether the reasoning articulated on the basis of the scientific evidence is objective and coherent” (para. 591).

27 Panel Report, Australia – Measures Affecting Importation of Salmon – Recourse to Article 21.5 of the DSU by Canada, WT/DS18/ RW, adopted 20 March 2000, DSR 2000:IV, 2031.

28 Panel Report, Australia – Apples, para. 7.228.

29 Ibidem, paras. 7.510 (for fire blight), 7.779 (for European canker) and 7.887 (for ALCM).

30 Appellate Body Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327.

31 Panel Report, Australia – Apples, para. 7.937.

32 Ibidem, para. 7.988.

33 Ibidem, para. 7.955 (for comparability of fire blight with Japanese Erwinia) and para. 7.960 (for comparability of European Canker and brown rot).

34 Ibidem, para. 7.988.

35 Ibidem, para. 7.1089.

36 Ibidem, para. 7.1098, quoting Appellate Body Report on Australia – Salmon, para. 194, and Appellate Body Report on Japan – Agricultural Products II, para. 95.

37 The three measures for which the Panel found that New Zealand was not able to prove that the inconsistency with Article 5.6 were the so-called “general measures”. In particular, New Zealand failed to demonstrate that the proposed alternative measure was less trade restrictive than the three general measures.