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Fishy SPS Measures? The WTO's Korea – Radionuclides Dispute

Published online by Cambridge University Press:  11 June 2021

Rachel Brewster  and
Carolyn Fischer
Rachel Brewster*
Affiliation:
The Jeffrey and Bettysue Hughes Professor of Law and Co-Director of the Center for International and Comparative Law at Duke Law School
Carolyn Fischer
Affiliation:
Canada 150 Research Chair in Climate Economics, Innovation, and Policy, University of Ottawa Department of Spatial Economics, Vrije Universiteit, Amsterdam Resources for the Future, Washington, DC
*
*Corresponding author: Email: brewster@law.duke.edu
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Abstract

The Korea–Radionuclides case addresses Korean SPS measures imposed on Japanese fishery products after the Fukushima Dai-ichi nuclear plant meltdown in 2011. Japan challenged these measures as more restrictive than necessary under the SPS Agreement. The panel agreed with Japan, but this ruling was largely reversed by the Appellate Body. Korea's victory at the Appellate Body was based on procedure. The panel accepted Korea's appropriate level of protection (ALOP), which included both quantitative and qualitative elements. However, the Appellate Body found that the panel only addressed the quantitative aspect of Korea's ALOP and reversed on that basis. The Appellate Body's ruling did not affirmatively find that Korea's SPS measures were legal under WTO rules. Instead, the Appellate Body found that panel had not sufficiently addressed Korea's arguments and, thereby, the panel could not determine that the SPS measures were more restrictive than necessary. The case highlights the need for the Appellate Body to be able to conduct its own factual analysis, a power it could be given if the dispute settlement system is reformed. Without independent fact-finding power, the Appellate Body cannot correct panels’ mistakes, and respondents can prevail based on panel error.

Keywords

WTOSPS AgreementAppropriate Level of Protection
Type
Original Article
Information
World Trade Review , Volume 20 , Special Issue 4: WTO Case Law , October 2021 , pp. 524 - 532
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press

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