Decisions of the Appellate Body of the World Trade Organization Japan - Measures Affecting the Importation of Apples Download the Complete Survey (PDF Format) * WTO Appellate Body Report: Japan - Measures Affecting the Importation of Apples, WT/DS245/AB/R, adopted 10 December 2003. Japan, Appellant/Appellee; US, Appellant/Appellee; Australia, Brazil, European Communities, New Zealand, and Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu, Third Participants. Division: Lockhart, Baptista and Sacerdoti. Major Topics Addressed by the Appellate Body: sufficient scientific evidence under Article 2.2 of the SPS Agreement; provisional measures under Article 5.7 of the SPS Agreement; based on a risk assessment under Article 5.1 of the SPS Agreement. 1. Abstract In this case, Japan, challenged a panel decision finding that its measures protecting against the spread of fire blight through apples violated the SPS Agreement. The Appellate Body upheld the panel decision. The Appellate Body examined the burden of establishing a prima facie case under Art. 2.2 of the SPS Agreement and distinguished this burden from the burden of proof. Under Art. 2.2, the sufficiency of scientific evidence is to be measured in respect of the measure actually applied and its application in the specific context and claim at issue, rather than more general risk. The Appellate Body accepted the panel's determination, under the facts of this particular case, that the sufficiency of evidence under Art. 2.2 requires that the measure not be disproportionate to the risk. Under Art. 11 of the DSU, there is no particular margin of deference to be accorded to national determinations; rather, the panel is to make an objective assessment of the facts. The Appellate Body upheld the panel's determination that the Japanese measure could not could not qualify as a provisional measure under Art. 5.7, as there already existed sufficient scientific evidence. * The free viewer (Acrobat Reader) for PDF file is available at the Adobe Systems
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