Decisions of the Appellate Body of the World Trade Organization Current Survey Australia--Measures Affecting Importation of Salmon Joel P. Trachtman* Download the Complete Survey (RTF Format) Full text of WTO Appellate Body Report on WTO web site WTO Appellate Body Report: Australia--Measures Affecting Importation of Salmon, AB- 1998-5, WT/DS18/AB/R (98-0000), adopted by Dispute Settlement Body, 6 November 1998. Australia, Appellant/Appellee; Canada, Appellant/Appellee; European Communities, India, Norway and the United States, Third Participants. Division: Ehlermann, Beeby and El-Naggar. Major Topics Addressed by Appellate Body: Application of Arts. 2 and 5 of SPS Agreement to Import Prohibition; Scientific Basis. 1. Abstract This decision evaluated the obligations of Australia under the Agreement on the Application of Sanitary and Phytosanitary Measures (the “SPS Agreement”) in respect of a quarantine on imports of salmon. The Appellate Body reversed the panel’s finding that the measure at issue was a requirement that certain imported salmon be heat-treated, holding that the appropriate measure to evaluate was an import prohibition on fresh, chilled and frozen salmon. The Appellate Body therefore reversed the panel’s finding that the measure examined by the panel was inconsistent with art. 5.1, and by implication, art. 2.2, of the SPS Agreement. Having thrown out the panel’s decision, the Appellate Body, on the basis of factual findings made by the panel, however, found that the Australian measure was not based on a proper risk assessment, violating art. 5.1, and, by implication, art. 2.2, of the SPS Agreement. The Appellate Body also upheld the panel’s finding that the Australian measure violated art. 5.5, and by implication, art. 2.3, of the SPS Agreement. The Appellate Body did so on the basis of differential treatment of imports of certain other types of fish that presented similar or greater risks. The Appellate Body was not able to come to a conclusion with respect to art. 5.6 of the SPS Agreement, because of the paucity of the factual record developed by the panel. This strengthens the argument for giving the Appellate Body the right of remand. * Professor of International Law, The Fletcher School of Law and Diplomacy, Tufts University, Medford, Massachusetts 02155, USA.
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