Decisions of the Appellate Body of the World Trade Organization

Japan - Measures Affecting Agricultural Products

Full text of the WTO Appellate Body Report (PDF Format) ^*

Oliver Landwehr^**

WTO Panel Report and Appellate Body Report:Japan - Measures Affecting Agricultural Products , WT/DS76/R and WT/DS/AB/R, adopted by Dispute Settlement Body, 19 March 1999, Japan, Appellant/Appellee; United States, Appellant/Appellee; European Communities, Brazil, Hungary, Third Participants, Division: Beeby, Lacarte-Muró and Matsushita, Major Topics Addressed by Appellate Body: application of Articles 2 and 5 of SPS Agreement; Scientific Basis.

1. ABSTRACT

In this third case under the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), the Dispute Settlement Body (DSB) found that Japan had acted inconsistently with the SPS Agreement by imposing certain quarantine measures concerning agricultural products. The Appellate Body upheld the Panel's finding that Japanese testing requirements as they applied to apples, cherries, nectarines and walnuts were inconsistent with Articles 2.2, 5.7 and 7 of the Agreement. It reversed the finding of inconsistency under Article 5.6 - not because it thought the Panel's conclusion that there was a less trade-restrictive measure was wrong, but because this finding was reached in a manner inconsistent with the rules on the burden of proof. Having criticized the Panel for not making findings under Article 5.1 with regard to a number of products, the Appellate Body, on the basis of the factual findings of the Panel, concluded that a Pest Risk Assessment produced by Japan was no proper risk assessment in the sense of Article 5.1.

For the first time, the Appellate Body dealt with the requirements of Article 5.7, which it had described in EC - Hormones as the embodiment of the precautionary approach in the SPS Agreement.¹ The Appellate Body noted that Article 5.7 contained four requirements which had to be met cumulatively.

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** Institut für Völkerrecht, Ludwig-Maximilians-Universität, Munich..

1 Appellate Body Report EC - Measures Affecting Meat and Meat Products (Hormones), adopted 13 February 1998, WT/DS48/AB/R, para. 123 f.

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