WORLD TRADE
ORGANIZATIONWT/DS161/AB/R
WT/DS169/AB/R
11 December 2000
(00-5347)
Original: English
KOREA – MEASURES AFFECTING IMPORTS OF FRESH,
CHILLED AND FROZEN BEEF
AB-2000-8
Report of the Appellate BodyWT/DS161/AB/R
WT/DS169/AB/R
Page i
I. Introduc tion................................................................................................................. ............1
II. Arguments of the Participants  and the Third Particip ants ......................................................4
A. Korea  – Appellant..................................................................................................... 4
1. Terms of Reference.......................................................................................4
2. Domestic Support Under the  Agreement on Agriculture .............................5
3. Dual Retail System .......................................................................................6
B. Australia  – Appellee.................................................................................................. 9
1. Terms of Reference.......................................................................................9
2. Domestic Support Under the  Agreement on Agriculture ...........................10
3. Dual Retail System .....................................................................................11
C. United States – Appellee.......................................................................................... 12
1. Terms of Reference.....................................................................................12
2. Domestic Support Under the  Agreement on Agriculture ...........................13
3. Dual Retail System .....................................................................................14
D. Arguments of the Third Participants........................................................................ 17
1. Canada ........................................................................................................17
2. New Zealand...............................................................................................17
III. Issues Raised in this Appeal ............................................................................................... ..19
IV. Terms of Reference.......................................................................................................... .....20
V. Domestic Support under the  Agreement on Agriculture ......................................................25
A. Korea's Commitment Levels for 1997 and 1998...................................................... 27
B. Korea's Current Total AMS for 1997 and 1998....................................................... 31
VI. Dual Retail System .......................................................................................................... .....38
A. Article III:4 of the GATT 1994 ................................................................................ 38
B. Article XX(d) of the GATT 1994 .............................................................................. 46
VII. Findings and Conclusions................................................................................................... ..56WT/DS161/AB/R
WT/DS169/AB/R
Page 1
WORLD TRADE ORGANIZATION
APPELLATE BODY
Korea – Measures Affecting Imports of
Fresh, Chilled and Frozen Beef
Korea,  Appellant
Australia,   Appellee
United States,   Appellee
Canada,  Third Participant
New Zealand,  Third ParticipantAB-2000-8
Present:Ehlermann,  Presiding Member
Abi-Saab,  Member
Feliciano,  Member
I. Introduction
1. Korea appeals certain issues of law and legal interpretations in the Panel Report,   Korea –
Measures Affecting Imports of Fresh, Chilled and Frozen Beef  (the "Panel Report").  1  The Panel was
established to consider a complaint by Australia and the United States with respect to Koreanmeasures that affect the importation of certain beef products.  The aspects of these measures relevant
for this appeal relate to, first, domestic support provided to the beef industry and to the Korean
agriculture sector more generally, and, second, the separate retail distribution channels that exist forcertain imported and domestic beef products (the so-called "dual retail system") and related measures.The dual retail system is given legal effect by the  Management Guideline for Imported Beef  (the
"Management Guideline ").
 2  The factual aspects of this dispute are described in detail in paragraphs 8
through 29 of the Panel Report.
2. The Panel considered claims by Australia that the requirements imposed on the retail sale of
imported beef are contrary to Articles III and XI of the  General Agreement on Tariffs and
Trade  1994 (the "GATT 1994");  that the tendering process adopted by the Livestock Products
                                                     
1WT/DS161/R, WT/DS169/R, 31 July 2000.
2The essential features of the Korean dual retail system for beef are found in the Guidelines
Concerning Registration and Operation of Specialized Imported Beef Stores,  (61550-81) 29 January 1990,
modified on 15 March 1994;  and the Regulations Concerning Sales of Imported Beef, (51550-100), modified on
27 March 1993, 7 April 1994, and 29 June 1998.  On 1 October 1999, these two instruments were replaced by
the Management Guideline for Imported Beef , (Ministry of Agriculture Notice 1999-67), which maintained,
however, the basic principles of the dual retail system.  The  Management Guideline   is an elaboration of
Article 25 of the Livestock Act (Revised) , as amended by Act No. 5720 on 29 January 1999.WT/DS161/AB/R
WT/DS169/AB/R
Page 2
Marketing Organization (the "LPMO") results in quantitative restrictions being applied to grass-fed
beef, contrary to Articles II:1, III:4, XI:1 and XVII of the GATT 1994;  that discharge procedures forLPMO beef are contrary to Articles III, XI and XVII of the GATT 1994 and Article 4.2 of theAgreement on Agriculture ;  that restrictions on sales of beef imported by the LPMO are contrary to
Article III:4 of the GATT 1994;  that Kor ea applies a mark-up on beef imported under the
"Simultaneous Buy/Sell" ("SBS") system which is inconsistent with Korea's obligations underArticles II or III of the GATT 1994;  that the SBS system applies limitations on the import anddistribution of imported beef, and imposes labelling, reporting and record-keeping requirements, thatare contrary to Articles III and XI of the GATT 1994;  and that, in 1997, Korea provided domesticsupport to its beef industry which resulted in  Korea's Current Total Aggregate Measurement of
Support ("AMS") for 1997 being in excess of its redu ction commitments for that year, contrary to
Articles 3, 6 and 7 of the  Agreement on Agriculture .
 3
3. The Panel also considered claims by the United States that Korea's requirement that imported
beef be sold only in specialized imported beef stores, and its laws and regulations restricting the resale
and distribution of imported beef by SBS super-groups, retailers, customers, and end-users areinconsistent with its obligations under Article III:4  of the GATT 1994;  that Korea's discretionary
import regime, as well as the LPMO's establishment of minimum import prices and delay of bothinvitations to tender as well as quota allocations, are inconsistent with its obligations underArticle XI:1 of the GATT 1994, Article 4.2 of the  Agreement on Agriculture , and Articles 1 and 3 of
the  Agreement on Import Licensing Procedures ;  that Korea's imposition of other duties or charges in
the form of a mark-up not provided for in Korea's Schedule LX is inconsistent with its obligationsunder Article II:1 of the GATT 1994;  and that Korea has failed to fulfill its reduction commitment for
domestic support for 1997 and 1998, and has, thus, acted inconsistently with its obligations under
Articles 3, 6, and 7 of the  Agreement on Agriculture .
 4
4. The Panel Report was circulated to the Members of the World Trade Organization (the
"WTO") on 31 July 2000.
5. The Panel concluded that certain of the measures at issue are included in "the remaining
restrictions" within the meaning of Note 6(e) of Korea's Schedule and thus benefit from a transitionalperiod until 1 January 2001, by which date they shall be eliminated or otherwise brought intoconformity with the  Marrakesh Agreement Establishing the World Trade Organization
(the " WTO Agreement ");  that the dual retail system for beef (including the obligation for department
                                                     
3Panel Report, para. 49.
4Ibid., para. 51.WT/DS161/AB/R
WT/DS169/AB/R
Page 3
stores and supermarkets authorized to sell imported beef to hold a separate display, and the obligation
for foreign beef shops to bear a sign with the words "Specialized Imported Beef Store") is inconsistentwith the provisions of Article III:4 of the GATT 1 994 in that it treats imported beef less favourably
than domestic beef, and cannot be justified pursuant to Article XX(d) of the GATT 1994;  that the
requirement that the supply of beef from the LPMO's wholesale market be limited to specialized
imported beef stores is inconsistent with Article III:4 of the GATT 1994 and cannot be justifiedpursuant to Article XX(d) of the GATT 1994;  that the imposition of more stringent record-keepingrequirements on those who purchase foreign beef imported by the LPMO than on those who purchase
domestic beef is inconsistent with Article III:4 of the GATT 1994;  that the prohibition against cross-trading between end-users of the SBS system is inconsistent with Article III:4 of the GATT 1994;that any additional labelling requirements imposed on foreign beef imported through the SBS systemthat are not also imposed on domestic beef, such as the requirement that the end-consumer, thecontract number and super-group importer be identified and indicated on the imported beef,  are
inconsistent with Article III:4 of the GATT 1994;  that the LPMO's lack of, and delays in, calling for
tenders, and its discharge practices between November 1997 and the end of May 1998, constituteimport restrictions on foreign beef, inconsistent with Article XI of the GATT 1994, and the samepractices are also inconsistent with Article 4.2 of the  Agreement on Agriculture   and its footnote;  that
even if the LPMO had not had monopoly rights over the import and distribution of its share of Korea'sbeef import, the LPMO's lack of, and delays in, calling for tenders during the same period constitutedan import restriction inconsistent with Article XI of the GATT 1994 through the application of theAd Note to Articles XI, XII, XIII, XIV and XVIII of the GATT 1994, and that the LPMO's dischargepractices during the same period were inconsistent with Article XVII:1(a) of the GATT 1994;  that the
LPMO's calls for tenders that are made subject to grass-fed or grain-fed distinctions impose import
restrictions inconsistent with Article XI of the GATT 1994, and treat imports of grass-fed beef lessfavourably than is provided for in Korea's Schedu le, contrary to Article II:1(a) of the GATT 1994;
that Korea's domestic support for beef for 1997 and 1998 was not correctly calculated and exceededthe  de minimis   level, contrary to Article 6 of the  Agreement on Agriculture , and was not included in
Korea's Current Total AMS, contrary to Article 7.2(a) of the  Agreement on Agriculture ;  that Korea's
total domestic support (Current Total AMS) for 1997 and 1998 exceeded Korea's commitment levels,as specified in Part IV, Section I of its Schedule, contrary to Article 3.2 of the  Agreement on
Agriculture .
 5
                                                     
5Panel Report, para. 845.WT/DS161/AB/R
WT/DS169/AB/R
Page 4
6. The Panel recommended that the Dispute Settlement Body ("DSB") request Korea to bring its
measures into conformity with its obligations under the  WTO Agreement . 6
7. On 11 September 2000, Korea notified the DSB of its intention to appeal certain issues of law
covered in the Panel Report and certain legal interpretations developed by the Panel, pursuant to
paragraph 4 of Article 16 of the  Understanding on Rules and Procedures Governing the Settlement of
Disputes  (the "DSU"), and filed a Notice of Appeal pursuant to Rule 20 of the  Working Procedures
for Appellate Review  (the " Working Procedures ").  On 21 September 2000, Korea filed its
appellant's submission.  7  On 6 October 2000, Australia and the United States  8 each filed an
appellee's submission.  On the same day, Canada and New Zealand each filed a third participant'ssubmission.
 9
8. The oral hearing in the appeal was held on 23 and 24 October 2000.  The participants and
third participants presented oral arguments and responded to questions put to them by the Members ofthe Division hearing the appeal.
II. Arguments of the Participants and the Third Participants
A. Korea  – Appellant
1. Terms of Reference
9. Korea claims that the Panel erred by making two findings that were outside its terms of
reference.  First, the Panel erred by ruling on Part IV, Section I of Korea's Schedule LX, in particular
by considering which set of numbers in Schedule LX constitutes Korea's commitment levels.  Neither
the United States nor Australia challenged Korea's Sc hedule LX in their requests for the establishment
of a panel.  As Schedule LX is not mentioned in these panel requests, the complaining parties havenot met the "minimum prerequisite" established by the Appellate Body for panel requests underArticle 6.2 of the DSU, that treaty provisions claime d to have been violated must be identified, and,
therefore, Korea should be considered  per se   to have suffered prejudice.
10. Second, neither the United States nor Australia, in their panel requests, identified Annex 3 of
the  Agreement on Agriculture   as a treaty provision claimed to have been violated in the context of
                                                     
6Panel Report, para. 847.
7Pursuant to Rule 21(1) of the Working Procedures .
8Pursuant to Rule 22 of the Working Procedures .
9Pursuant to Rule 24 of the Working Procedures .WT/DS161/AB/R
WT/DS169/AB/R
Page 5
Korea's calculation methodology for domestic support to the cattle industry.  Consequently, the Panel
acted outside its terms of reference when it ruled that Annex 3 provided the basis for calculatingKorea's current domestic support for beef.  Further, the complaining parties have not met the"minimum prerequisite" established by the Appellate Body for panel requests under Article 6.2 of the
DSU.
2. Domestic Support Under the  Agreement on Agriculture
11. Korea believes the Panel erred in finding that, by virtue of Articles 1(a)(ii) and 1(h)(ii) of the
Agreement on Agriculture , Korea is bound by the provisions of Annex 3 of that Agreement in its
calculation of Current AMS for beef, since it did not have any "constituent data and methodology" forbeef in its Schedule.  The Panel's interpretation of Articles 1(a)(ii) and 1(h)(ii) leads to an unfairoutcome and ignores the object and purpose of the Agreement on Agriculture .  WTO Members'
Schedules on the reduction of subsidies for agricultural products can be understood as multi-yearequations.  One side of the equation includes the commitment level for a given year, while the other
side of the equation includes the actual AMS provided for the same year.  Thus, for the equation to be
meaningful, both sides of the equation should be based on the same set of data and methodology.Using one methodology for commitment levels and another methodology for actual AMS underminescomparability between the two, and leads to unfair results.  All the commitment levels set out inKorea's Schedule and all the actual AMS provided by Korea are calculated on the basis of a consistentmethodology, which relies on the base years of 1989-1991 (with an exception for rice) and an "actualpurchase" definition of eligible production.  However, according to the Panel's ruling, Korea shouldcalculate its Current AMS for beef according to different base years and a different definition ofeligible production than was used for calculating co mmitment levels.  Korea argues that this leads to
unfair results.
12. Furthermore, Korea contends the Panel's interpretation would frustrate the object and purpose
of the  Agreement on Agriculture , which is, in part, to provide for substantial progressive reduction in
agricultural support and protection over an agreed period of time.  The Panel's interpretation wouldmake it impossible correctly to determine whether a Member has abided by its reductioncommitments or not.
13. Moreover, the Panel's interpretation of Articles 1(a)(ii) and 1(h)(ii) of the  Agreement on
Agriculture   would render inutile important parts of th ese provisions.  If the calculation methods of
Annex 3 were mandatory, as the Panel suggests, the reference in Articles 1(a)(ii) and 1(h)(ii) to the
constituent data and methodology in the tables of supporting material would be reduced to
redundancy and inutility.  The Panel found that support to Korea's cattle industry should be calculatedWT/DS161/AB/R
WT/DS169/AB/R
Page 6
solely on the basis of Annex 3, because support to the cattle industry was not included in Korea's
Schedule.  However, Articles 1(a)(ii) and 1(h)(ii) do not make a distinction between products whichare already contained in the Schedule of a Member and those which are not.
14. In addition, in Korea's view, the Panel erred in finding that Korea's annual AMS commitment
levels in its Schedule LX were not the figures in br ackets, but rather the figures not in brackets.  The
Panel was fundamentally in error when it found that "Korea did not identify" which of the two sets offigures for annual commitment levels (figures in brackets or figures not in brackets) constitutesKorea's obligation.  The Panel failed to apply the general rule of interpretation expressed in Article 31of the  Vienna Convention on the Law of Treaties
 10 (the " Vienna Convention ") by not taking into
account the context of the terms of Korea's Schedule LX, in particular Note 1 to Korea's Schedule LX,which refers to Note 1 of Supporting Table 6.  In addition, the Panel's finding on this point wouldreduce the figures in brackets, Note 1 to Schedule LX, and Note 1 in Supporting Table 6 to inutility,again contrary to the customary rules of treaty interpretation and previous Appellate Body rulings.
15. Korea also submits that Korea's commitment levels were "public knowledge".  Korea's
Schedule, including Part IV, Section I, was reviewed by all the negotiating parties during the UruguayRound.  Also, the amount of Korea's subsidy to agricultural products was notified to the Committeeon Agriculture every year since 1996.  In each notification, Korea used the figures within brackets asKorea's commitment level for the given year.  Korea considers that its consistent and amplydocumented position on this issue has been a matter of public record since 1996 and the very firstmeeting of the Committee on Agriculture to review Members' notifications under theAgreement on Agriculture .  Thus, the "subsequent practice" of the parties following the Uruguay
Round sustains Korea's position on this point of interpretation.  Korea also believes that its position is
supported by the manner in which the United States and Australia treated this issue in their first
submissions to the Panel.
3. Dual Retail System
(a) Article III:4 of the GATT 1994
16. To Korea, the Panel fundamentally misinterpreted and misapplied Article III:4 of the
GATT 1994 when it concluded that the dual retail system maintained by Korea is inconsistent with
that provision.  Article III:4 requires that WTO Members provide equal conditions of competition to
both domestic and foreign like products.  Article III:4 is an "obligation of result":  the result that mustbe achieved is "no less favourable treatment for foreign goods".  The particular method of achieving
                                                     
10Done at Vienna, 23 May 1969, 1155 U.N.T.S. 331;  8 International Legal Materials 679.WT/DS161/AB/R
WT/DS169/AB/R
Page 7
this result is irrelevant.  Article III:4 neither imposes nor prohibits any particular means that
Members employ to provide equal conditions of competition.  According to Korea, its dual retailsystem does provide "no less favourable treatment to foreign goods", and, therefore, achieves theresult required by Article III:4.  The Panel erroneously concluded that the dual retail system
"constitutes in itself differential treatment."
17. Korea submits that a proper analysis of Korea's obligation under Article III:4 requires review
of both  de jure   and  de facto   discrimination.  The dual retail system does not amount to either
de jure   or  de facto  discrimination.  With regard to  de jure   discrimination, Korea's dual retail
system assures perfect regulatory symmetry between imports and domestic products.  Imported beef issold only in stores that choose to sell imported beef, and domestic beef is sold only in stores choosingto sell domestic beef.  In addition, there is total freedom on the part of retailers to switch from onecategory of shops to the other.  Thus, the Panel failed to demonstrate that there is any discrimination"demonstrated on the basis of the words of the relevant legislation, regulation or other legal
instrument," the standard for a finding of  de jure   discrimination.
18. To demonstrate the presence or absence of  de facto   discrimination, the Panel should have
undertaken an analysis of the market as part of an examination of the "total configuration of the facts".Instead, the Panel resorted to "speculation".  An ex amination of the facts of the Korean beef market
demonstrates that imported and domestic goods experience equal competitive conditions.  Theabsence of such a factual analysis means that the Panel's finding on the dual retail system underArticle III:4 is in error.
19. Korea also argues that the Panel erred in finding the display sign requirement to be
inconsistent with Article III:4.  The first ground offered by the Panel is that the display sign
requirement would necessarily be inconsistent with Article III:4 since the dual retail system had
already been found to be inconsistent.  However, the Panel itself stated that the display signrequirement is a related measure "which the Panel addresses separately in Section 3 thereinafter."  Inother words, the Panel did not include the display sign requirement in its review of the dual retailsystem.
20. The second ground cited by the Panel is that the display sign requirement goes beyond the
indication of origin of goods.  Quoting from a 1956 Working Party Report, the Panel argues that suchrequirements are inconsistent with Article III:4 of the GATT.  To Korea, the legal status of this reportis unclear.  The language of the report suggests that it was not intended to be binding or to provide an
authoritative interpretation of the GATT.WT/DS161/AB/R
WT/DS169/AB/R
Page 8
(b) Article XX(d) of the GATT 1994
21. Should the Appellate Body disagree with Korea's claim that the dual retail system is
consistent with Article III:4, then Korea submits that the Panel erred in ruling that the dual retailsystem was not justified under Article XX(d) of the GATT 1994.
22. The Panel found that Korea did not apply a dual retail system for other products in respect of
which fraudulent sales have occurred.  According to the Panel, such failure was evidence that the dualretail system was not "necessary to secure compliance with laws or regulations which are notinconsistent with the provisions of this Agreement" under Article XX(d).  Korea submits that todecide whether a particular measure is necessary under Article XX(d), panels must simply examinewhether another means exists which is less restrictive than the one used, and which can reach the
objective sought.  Consistency among regulations applicable to different products is irrelevant for
establishing whether the means chosen by a WTO Member is necessary to achieve the objective of theregulation.
23. Furthermore, the Panel, in analyzing alternativ e, less restrictive means, did not take into
account the level of enforcement sought.  Korea's goal is not simply the "reduction or limitation" ofdeceptive practices, but their "elimination".  The Panel considered four less trade-restrictivealternatives, which are investigations, fines, record-keeping and policing.  In view of the fact that allfour alternatives already comprise a package of policy tools used by Korea, along with the dual retailsystem, the Panel should have examined the facts to see whether, if the dual retail system were
withdrawn, Korea's regulatory goal of the  elimination   of deceptive practices would be satisfied.
Instead, the Panel narrowly focused its review on  whether the less restrictive option is reasonably
available.  The Panel failed to link the means of implementation used to the objective sought.
24. Korea's dual retail system satisfies the requirements of the introductory clause of Article XX
of the GATT 1994 as well.  As the Appellate Body has held, the introductory clause of Article XX isconcerned with the "even-handedness" underlying the application of national legislation.  In otherwords, national legislation must be applied "even-handedly" between and among trading partners.Korea's dual retail system does not differentiate between Korea's trading partners.  In fact, the dualretail system imposes, in practice, a much heavier burden on domestic beef producers.
25. Furthermore, in Korea's view, the display sign requirement is justified under Article XX(d) of
the GATT 1994 as it is "necessary to secure compliance with laws or regulations which are notinconsistent with the provisions of this Agreement".  To require shop-owners to display a sign thatWT/DS161/AB/R
WT/DS169/AB/R
Page 9
their store engages in selling imported beef imposes a "proportional burden" in view of the objective
sought.  Korea considered an alternative measure, but it would not have achieved Korea's objective.
26. Finally, Korea argues that the Panel failed to examine whether the display sign requirement
was justified under Article XX(d) of the GATT 1994.  The Panel did not explain its failure to examine
the display sign requirement under Article XX(d), despite the fact that Korea had made clear that its
Article XX defense extended to the display sign requirement as well.  Korea submits that, were theAppellate Body to complete the analysis left undone  by the Panel, the Appellate Body will find that
the display sign requirement is fully justified under Article XX.
B. Australia  – Appellee
1. Terms of Reference
27. Australia considers that Korea's claim that the Panel ruled outside its terms of reference in
making findings as to the commitment levels and the AMS calculation methodology used by Korea tocalculate the Current AMS, is unfounded.  In Australia's view, the Panel correctly ruled that
Australia's panel request meets the requirements of Article 6.2 of the DSU because Australia
identified the specific measures at issue and pr ovided a brief summary of the legal basis of the
complaint sufficient to present the problem clearly.
28. In respect of the commitment levels, Australia argues that as Articles 3, 6 and 7 of the
Agreement on Agriculture   specifically refer to a Member's Schedule, consideration of Korea's
commitment levels contained in Part IV, Section I of Korea's Schedule was within the Panel's terms ofreference.  A determination as to which of Kore a's two sets of commitment levels constituted the
figures against which its Current Total AMS should be compared was necessary to the Panel's legalexamination of claims under Articles 3, 6 and 7 of the  Agreement on Agriculture .
29. With regard to the AMS calculation methodology, Australia submits that the Panel took into
account the linkages between the obligations contained in Articles 3, 6 and 7 of the  Agreement on
Agriculture  and the relevant definitions contained in Article 1 of that Agreement, which include
specific reference to methodologies contained in Annex 3.  The Panel correctly concluded that itcould not assess whether Korea had met its obligatio ns under Articles 3, 6 and 7 without examining
the calculation prescriptions for AMS contained in Annex 3.
30. Furthermore, Australia contends that Korea has failed to show any prejudice arising from a
deficiency in Australia's request for a panel.  Korea appears to have been informed sufficiently well ofthe claims being made to prepare a defence.  Korea seems to have understood the nature of the legalWT/DS161/AB/R
WT/DS169/AB/R
Page 10
claims sufficiently well for the purposes of its first submission, in which it argued at length that its
calculation methodology was in fact consistent with the  Agreement on Agriculture .  It was not until
the final meeting with the Panel that Korea claimed that its ability to defend itself had beenprejudiced.  Korea has also not shown that third parties were prejudiced.
2. Domestic Support Under the  Agreement on Agriculture
31. Australia submits that Korea's argument, that the Panel's interpretation of Articles 1(a)(ii)
and 1(h)(ii) of the  Agreement on Agriculture   is unfair, illogical and results in inappropriate
comparisons between a WTO Member's reduction commitments and support provided, is withoutsubstance.  Korea's arguments evidence a misunderstanding of the concepts of Current AMS, CurrentTotal AMS and Annual and Final Bound Reduction Commitments, as defined in the  Agreement on
Agriculture .  Australia states that the two figures involved in the comparison will not necessarily be
based on the same product mix, as the categories of products that are subsidized may change fromyear to year.
32. Australia considers that Korea's interpretation that Current AMS should be calculated based
on the constituent data and methodology in Korea's Schedule would render the reference to Annex 3in Articles 1(a)(ii) and 1(h)(ii) inutile.  The Panel correctly found that for products where no supportwas included in the base period, there is no relevant "constituent data or methodology" in the tables ofsupporting material.  Calculations based on Annex 3 are, therefore, mandatory.
33. With regard to the two sets of commitment levels  in Korea's Schedule, Australia argues that a
treaty interpreter is not required to give effect to treaty terms which are invalid.  The Panel noted thatKorea is the only WTO Member whose Part IV domestic support Schedule contains two sets ofannual commitment levels, and that no provision of the  Agreement on Agriculture   authorizes such a
departure from the norm or practice.  For this reason, the Panel was under no obligation to give effect
to the commitment level figures in brackets.
34. Australia also contends that the question of whether Korea's commitment levels were "public
knowledge" is beyond the Appellate Body's mandate under Article 17.6 of the DSU to address "issuesof law covered in the panel report and legal interpretations developed by the panel", as Korea did notpresent any such evidence to the Panel.  In any case, public knowledge of a WTO-inconsistentSchedule commitment does not validate that commitment.  Finally, Korea did not meet its burden ofdemonstrating that "subsequent practice" of WTO Members establishes the agreement of Membersregarding the interpretation of Korea's Schedule.WT/DS161/AB/R
WT/DS169/AB/R
Page 11
3. Dual Retail System
(a) Article III:4 of the GATT 1994
35. In Australia's view, Korea's claim that proper analysis of its obligation under Article III:4
requires a two-step review of whether  de jure   or  de facto   discrimination is at issue is legally flawed
and should be rejected.  According to Australia, the legal standard imposed by the phrase "lessfavourable treatment" has long been settled:  a panel must consider whether imported products arebeing accorded effective equality of competitive opportunities.
36. Australia contends that the Panel was correct when it found that the design and architecture of
the dual retail system and related measures clearly provide less favourable treatment for importedbeef.  Australia states that stores selling imported beef face restrictions on volumes, price and types of
beef available for sale, additional record-keeping, recording and signage requirements, and the
commercial disadvantage of having to dismantle their current business in domestic beef if they wishto test the market for imported beef.  Fundamentally, imported beef is prevented from being sold inthe same stores, under the same conditions, as domestic beef.  Thus, the claim by Korea that"regulatory symmetry" exists cannot be sustained.
37. In Australia's view, the Panel correctly concluded that the dual retail system constitutes, in
and of itself, differential treatment.  This differential treatment unavoidably results in imported beefbeing less favourably treated on the Korean market than like domestic products, and the segregationof imported beef provides the domestic product with a competitive advantage over the imported
product.
(b) Article XX(d) of the GATT 1994
38. Australia claims the Panel was correct in finding that, even if the dual retail system had been
instituted to prevent the fraudulent misrepresentation of imported beef as domestic beef, the measurewas not "necessary" to accomplish that purpose, within the meaning of Article XX(d).  The Panelexplored the alternatives available to Korea, includ ing alternatives currently applied to situations of
alleged country of origin fraud involving other foodstuffs where price differentials prevail.  This
approach reflects the ordinary meaning of the term  "necessary" that no reasonable alternative exists,
as well as past GATT and WTO practice.
39. Australia submits that the burden is on Korea to demonstrate a  prima facie   case that the dual
retail system falls within one of the exceptions of Article XX, and that it meets the requirements of theintroductory clause.  Korea has to demonstrate that there was no other alternative measure it couldWT/DS161/AB/R
WT/DS169/AB/R
Page 12
reasonably employ, which was WTO-consistent or less WTO-inconsistent, to secure compliance with
the Unfair Competition Act .  In the particular circumstances of the Korean market for imported beef,
where it is otherwise impossible to distinguish between domestic and imported beef, where there is nodual wholesale system and where no record-keeping by stores selling domestic beef is required, it is
impossible to conclude that the dual retail system has any serious impact on the prevention or
elimination of fraud.
40. Even if the Panel erred in law in finding that the dual retail system did not qualify for the
exception provided by Article XX(d), the Appellate Body has sufficient facts and legal argument tocomplete the Panel's inquiry.  In doing so, the Appe llate Body should find that the dual retail system
does not meet the requirements of the introductory clause of Article XX.  Australia considers relevantthe fact that Korea only applies the dual retail system to imported beef, despite the fact that theproblem of fraud also exists in relation to different types of beef and to a range of other agriculturalproducts where a price differential exists between imported and domestic products.  Furthermore, the
dual retail system is not an isolated measure in an otherwise non-discriminatory environment for
imported beef.  Rather, the dual retail system is part of the regulatory framework for imported beefunder which the importation, distribution and sale of imported beef is tightly regulated and heavilyrestricted by the Korean government, and substantial subsidies are provided to domestic producers,consistent with the government's stabilisation policies for domestic beef.  Consideration of the dualretail system in this context reveals its protective purpose.
41. According to Australia, Korea is incorrect when  it asserts that the Panel did not consider the
display sign requirement in its review of the dual retail system.  The Panel agreed with Korea that thesign requirement was "essentially ancillary to the dual retail system", and considered the two
requirements together under Article XX(d).  Thus , the Panel subsumed its findings related to the
display sign requirement within its findings related to the dual retail system as a whole.
C. United States  – Appellee
1. Terms of Reference
42. According to the United States, its panel request clearly states its claim that Korea has
increased the level of domestic support for its cattle industry to the point that the total domesticsupport provided by Korea exceeds its AMS commitment levels.  Based on Articles 3, 6 and 7 ofthe  Agreement on Agriculture , Korea's current total domestic support is greater than the AMS
commitment levels set out in the  Agreement on Agriculture .  All of the pertinent provisions of the
Agreement on Agriculture , including Annex 3, had to be examined.  The determination of the level ofWT/DS161/AB/R
WT/DS169/AB/R
Page 13
Current Total AMS, requires the application of the provisions of Annex 3, as Annex 3 is "intrinsic" to
the calculation of the Current Total AMS.
43. Similarly, the commitment levels in Korea's Schedule also had to be examined.  As the
Current Total AMS was to be compared to Korea's commitment levels, it was first necessary to
determine which set of figures in Korea's Schedule constituted Korea's commitment levels.
44. The United States notes that the Appellate Body has previously stated that a panel is obliged
to consider provisions that are "directly linked" to  the provisions cited in the panel request.  In this
case, Annex 3 and the commitment levels in Korea's Schedule are "directly linked" to the claim setout in the panel request, and therefore must be considered.
45. Furthermore, Korea suffered no prejudice on this issue as a result of the complaining parties'
panel requests.  In fact, Korea, in its first submission, submitted detailed explanations on how it hadcalculated its AMS for beef.  Thus, Korea clearly understood the matter at issue.
2. Domestic Support Under the  Agreement on Agriculture
46. According to the United States, the Panel was correct in its finding that Korea's Current AMS
for beef must be calculated in accordance with the requirements of Annex 3 of the  Agreement on
Agriculture .  The specific language of Article 1(a)(ii) makes clear that the Current AMS calculation
must be made in accordance with the provisions of Annex 3.  While additional guidance is providedin this provision, to the effect that the "constituent data and methodology" in Korea's Schedulemust be taken into account, this cannot be construed to nullify the express requirement that theCurrent AMS calculation be performed in accordance with Annex 3.
47. If Korea's Current AMS for beef is calculated correctly, it is more than  de minimis   under
Article 6.4 of the  Agreement on Agriculture , and must therefore be included in the calculations for
Current Total AMS.  When Current AMS for beef is included in Current Total AMS, Current Total
AMS exceeds Korea's AMS commitment levels set out in its Schedule.
48. The United States contends that Korea, by in cluding an alternative set of commitment levels
in its Schedule, is trying to modify unilaterally the terms of the  Agreement on Agriculture   to
substitute a domestic support commitment that is not in accordance with Annex 3.  In effect, byclaiming that the figures in brackets represent its  commitment levels, Korea is attempting to inflate
the amount of its annual AMS commitment level.  The methodology used by Korea is not consistentwith the obligations under the  Agreement on Agriculture .  The United States notes that aWT/DS161/AB/R
WT/DS169/AB/R
Page 14
WTO Member may not, in its Schedule, act inconsistently with its WTO obligations.  WTO Members
may yield rights and grant benefits in their Schedules, but may not diminish their obligations.
49. Korea has argued that WTO Members knew of the contents of Korea's Schedule, and,
therefore, they implicitly accepted the figures in th e Schedule.  The United States contends that this
argument is untenable, for two reasons.  First, in making this argument, Korea raises new factual
allegations, which may not be addressed by the Appellate Body on appeal.  Second, WTO Members
did not waive their rights to dispute settlement with regard to other Members' Schedules as a result ofthe signing of the  WTO Agreement .
3. Dual Retail System
(a) Article III:4 of the GATT 1994
50. According to the United States, the Panel correctly found that the dual retail system in itself
constituted "less favourable treatment" inconsistent with Article III:4.  Article III:4 is concernedwith preserving the "effective equality of opportuni ties" for imported products.  With regard to the
dual retail system, the notion of effective equality of opportunities means that there must be apossibility for imported beef to be physically present with "like" domestic beef at the point of sale tothe consumer.  By excluding imported beef from the existing retail system for domestic beef, the dualretail system limits the potential market opportunities for imported beef.  Since imported beef doesnot enjoy the same competitive opportunity to be sold in the same manner and in the same stores inwhich Korean beef is sold, it is treated less favourably than domestic beef.
51. The United States argues that Korea's defense of the dual retail system as providing
"regulatory symmetry" between imported and domestic beef must fail.  The Panel found that, in fact,the dual retail system, in conjunction with certain restrictions on imports, more onerous record-keeping requirements for imported beef sellers, and the display sign requirement imposed on importedbeef sellers, resulted in less favourable treatment for imported beef.
52. Furthermore, the United States contends, the Panel's additional conclusion that the dual retail
system involves  de facto   discrimination against imported beef was also correct.  The Panel noted the
following factors as relevant:  the separate store requirement limits the ability of consumers to make
side-by-side comparisons of imported and domestic beef and to make purchasing decisions based on
differences in quality, characteristics and prices of the respective products;  imported beef is
segregated due to the obstacles confronted by a store owner who wishes to sell imported beef;  andthere are fewer imported than domestic beef stores.  The Panel found that the segregation of domesticWT/DS161/AB/R
WT/DS169/AB/R
Page 15
and imported beef provides domestic beef with a competitive advantage over the imported product.
In the view of the United States, this finding of the Panel should be upheld.
53. Article 9 of the  Management Guideline   requires that imported beef stores display a sign
indicating that the beef sold in the store is imported.  According to the United States, given the
undisputed difference in treatment resulting from Article 9 of the Guidelines, Korea bears the burden
of demonstrating that the dual retail system does not result in less favourable treatment, and Koreahas failed to meet its burden.  The Panel's finding that the display sign requirement was "ancillary" tothe dual retail system was accurate.  The 1956 Working Party Report was simply invoked to"reinforce" the Panel's view, not as a basis for its finding.
(b) Article XX(d) of the GATT 1994
54. The United States argues that the Panel correctly concluded that Korea failed to sustain its
burden of justifying its dual retail system under Article XX(d) of the GATT 1994.  The Paneldetermined that in order to benefit from the Article XX(d) exception, Korea had to demonstrate thatits dual retail regime:  (1) was in place in order to "secure compliance" with laws or regulations thatare themselves not inconsistent with the GATT 1994;  (2) was "necessary" to secure compliance withthose laws or regulations;  and (3) was applied in conformity with the requirements of theintroductory clause of Article XX.  The Panel found that the dual retail system was in place in order to"secure compliance" with laws or regulations that are themselves not inconsistent with theGATT 1994, in particular, the Unfair Competition Act .  However, the Panel found that Korea did not
demonstrate that the dual retail system is "n ecessary" to secure compliance with Korea's
Unfair Competition Act .
55. In particular, Korea failed to demonstrate that the WTO-consistent alternatives shown by the
complaining parties to be available were in adequate to secure compliance with the  Unfair
Competition Act   with regard to imported beef.  The Panel found that Korea employed traditional and
WTO-consistent means, such as inspections, investigations and prosecutions, to enforce theUnfair Competition Act   with respect to other imported food products.  The Panel regarded this as
evidence that Korea could eliminate any fraud involving beef with the same measures.
56. The United States contends that, contrary to Korea's claims, the Panel did not establish a
"consistency" standard requiring that uniform measures be used to secure compliance.  Rather, the
Panel properly examined the enforcement practices  used generally by Korea to obtain compliance
with the  Unfair Competition Act   to determine whether means other than the dual retail system wereWT/DS161/AB/R
WT/DS169/AB/R
Page 16
reasonably available.  Korea's practice with regard to other products was simply one factor to be taken
into account as part of this analysis.
57. In addition, the United States argues that if  the Appellate Body finds Korea's dual retail
system to be "necessary" in terms of Article XX(d), Korea still cannot benefit from the Article XX
exception, as Korea has failed to demonstrate that the dual retail system was designed to "secure
compliance" with the  Unfair Competition Act .  The dual retail system does not prevent actions that
would be illegal under the provisions of the  Unfair Competition Act  relating to fair trade practices.
At most, the dual retail system serves the same objectives as the  Unfair Competition Act .
58. The United States also submits that the dual retail system does not satisfy the requirements of
the introductory clause of Article XX.  For reason s of judicial economy, the Panel did not consider
this issue.  However, if the Appellate Body were to reverse the Panel's finding regarding whether thedual retail system is "necessary" to secure compliance with the  Unfair Competition Act ,  the
Appellate Body should then complete the legal analysis and find that the dual retail system does not
satisfy the requirements of the introductory clause, as that system constitutes "unjustifiable
discrimination" within the meaning of the introductory clause.
59. Korea criticizes the Panel for not separately addressing Korea's assertion that the display sign
requirement is entitled to an exception under Article XX(d).  However, the Panel concluded that thedisplay sign requirement is ancillary to the separate store requirement, and therefore is subject to thesame analysis and legal conclusions.  Thus, in the view of the United States, the Panel's examinationof the dual retail system under Article XX(d) is pertinent to both the separate store requirement and tothe display sign requirement.
60. Finally, the United States argues, it was for Korea to demonstrate that the display sign
requirement was justified under Article XX(d).  However, Korea offered no evidence or reasoning to
support a finding that the display sign requirement is independently necessary to secure compliancewith the  Unfair Competition Act .WT/DS161/AB/R
WT/DS169/AB/R
Page 17
D. Arguments of the Third Participants
1. Canada
(a) Dual Retail System
(i) Article III:4 of the GATT 1994
61. Canada agrees with the Panel's finding that the dual retail system constitutes in itself
differential treatment which leads to "less favourable treatment" for imported products under theterms of Article III:4 of the GATT 1994.  The dual retail system reduces "direct competition" between
imported and domestic beef.  In effect, only domestic beef can compete directly against other
domestic beef.  In these circumstances, imported beef does not benefit from "equal conditions ofcompetition" as compared to domestic beef.
62. Canada supports the Panel's finding that the display sign requirement is "ancillary" to the dual
retail system, and thus is also inconsistent with  Article III:4 of the GATT 1994.  The measure would
be inconsistent even if it existed independently of the dual retail system, as it treats imported beefdifferently than domestic beef, in contravention of Article III:4.
(ii) Article XX(d) of the GATT 1994
63. Canada also agrees with the Panel's finding with regard to Article XX(d).
2. New Zealand
(a) Terms of Reference
64. In New Zealand's view, it is within the Panel's terms of reference to examine the calculation
methodology of AMS in order to determine whether Korea's Current Total AMS exceeds itscommitment levels, in violation of Articles 3, 6 and 7 of the  Agreement on Agriculture .  Although
Annex 3 of the  Agreement on Agriculture   is not specifically referred to in the complaining parties'
panel requests in this dispute, Article 6 of the  Agreement on Agriculture , which is referred to in the
panel requests, defines AMS by reference to Article 1.  Article 1, in turn, refers to the calculation of
AMS in terms of Annex 3.  Thus, the provisions of Annex 3 are necessary to determine whetherKorea has met its domestic support commitments under Articles 3, 6 and 7.
65. Furthermore, the complaining parties have not made a separate claim regarding Annex 3.
Rather, the claim they have made is under Articles 3, 6 and 7 of the  Agreement on Agriculture , and
the references to Annex 3 are simply arguments in support of this claim.  Since the claim underWT/DS161/AB/R
WT/DS169/AB/R
Page 18
Articles 3, 6 and 7 of the  Agreement on Agriculture   is within the Panel's terms of reference,
arguments in support of that claim are within the terms of reference as well.
66. New Zealand also argues that Korea has failed to demonstrate that it has been prejudiced by
the omission of a reference to Annex 3 in the panel request.  The calculation methods set out in
Annex 3 are linked to Articles 3, 6 and 7 of the  Agreement on Agriculture .  New Zealand, as a third
party to the dispute, was able to determine the measure and claims at issue and respond accordinglybased on the reference in the panel request to "domestic support".  Korea has not demonstrated that itcould not do the same.
67. Finally, New Zealand contends that Korea failed to bring its procedural objections before the
Panel in a timely manner.
(b) Domestic Support Under the  Agreement on Agriculture
68. New Zealand notes that, according to Article 1(a)(ii) of the  Agreement on Agriculture , the
AMS is to be calculated "in accordance with" Anne x 3, but "taking into account" the constituent data
and methodology in the supporting tables in a Member's Schedule.  Thus, a Member is to calculate the
AMS according to Annex 3, but may also use the relevant and applicable constituent data andmethodology set out in the supporting tables of its Schedule.  However, resort to such data andmethodology does not absolve a Member of the obligation of correctly calculating the AMS in amanner consistent with Annex 3.
69. New Zealand further submits that a Member can only take into account the constituent data
and methodology where it exists.  As there was no data or methodology for beef set out in thesupporting tables of Part IV of Korea's Schedule, the Panel was correct to calculate AMS by relyingon Annex 3 exclusively.
70. Finally, New Zealand argues that AMS calcul ations under Annex 3 are based on "eligible"
production, as required by that provision.  Thus, the argument of Korea that "actual" purchases are
properly the basis of its AMS calculation should be rejected.
(c) Dual Retail system
(i) Article III:4 of the GATT 1994
71. New Zealand submits that the term "less favourable treatment" under Article III:4 requires
that imported and domestic goods receive "effective equality of opportunities".  New Zealandsupports the Panel's finding that, in the circumstances of this case, Korea's dual retail system for beefWT/DS161/AB/R
WT/DS169/AB/R
Page 19
results in competitive disadvantages for imported beef, as imported beef is denied the opportunity to
compete in the framework of an integrated market.  As the Panel concluded, the existence of a dualretail system, in circumstances where there is an extensive existing retail system, in itself constitutes aviolation of Article III:4.
72. Furthermore, New Zealand agrees with the Panel's finding that the display sign requirement,
being ancillary to the dual retail system, is also inconsistent with Article III:4.  While the Panel choseto consider this aspect of the dual retail system separately, it is nevertheless one of the components ofthe dual retail system.
(ii) Article XX(d) of the GATT 1994
73. New Zealand supports the Panel's finding that Korea failed to show that the dual retail system
was "necessary" within the meaning of Article XX(d) to accomplish Korea's desired level of fraud
prevention.  As stated by the Panel, practices used in other sectors to address deceptive practices arerelevant for a determination of whether certain practices are "necessary" in the beef sector.
74. New Zealand also contends that the dual retail system is not consistent with the requirements
of the introductory clause of Article XX.  The dual retail system enables the Korean Government toprotect Korea's domestic beef producers from import competition by limiting the terms on whichimported products may be sold in the market, and therefore constitutes a means of arbitrary orunjustifiable discrimination between countries where the same conditions prevail, or a disguisedrestriction on international trade, within the meaning of the introductory clause of Article XX.
III. Issues Raised in this Appeal
75. The issues raised in this appeal are the following:
(a) whether examination of Korea's Schedule LX and Annex 3 of the  Agreement on
Agriculture   was within the Panel's terms of reference;
(b) whether the Panel erred in calculating Korea's Current AMS for beef based on
Annex 3 of the  Agreement on Agriculture , and whether the resulting Current Total
AMS exceeded Korea's AMS commitment levels for 1997 and 1998;
(c) whether the "dual retail system", which requires the sale of imported beef in
specialized stores, was inconsistent with Article III:4 of the GATT 1994;  andWT/DS161/AB/R
WT/DS169/AB/R
Page 20
(d) whether the "dual retail system", if inconsistent with Article III:4 of the GATT 1994,
can nevertheless be justified under Article XX(d).
IV. Terms of Reference
76. Before the Panel, Korea argued that its Sche dule LX is not mentioned in the complaining
parties' panel requests and, therefore, no violation can be claimed with regard to the Schedule.  11
Korea further contended that the panel requests were insufficiently detailed and specific to encompass
the complaining parties' claims based on Annex 3 of the  Agreement on Agriculture . 12
77. The Panel held that, when examining claims regarding Articles 3, 6 and 7 of the Agreement
on Agriculture , "its terms of reference require it to examine Korea's Schedule LX to assess whether its
domestic support in 1997 and 1998 exceeded the reduction commitments contained in its Schedule"  13,
and that "its assessment of the compatibility of Korea's domestic support with Articles 3, 6 and 7requires that the Panel compares the effective support provided by Korea as determined using thecalculation parameters of Annex 3."
 14  Therefore, an examination of Korea's Schedule LX and
Annex 3 of the  Agreement on Agriculture   for this purpose was not outside the Panel's terms of
reference.
78. On appeal, Korea argues that the Panel erred by ruling on two claims that were outside of its
terms of reference.  In particular, Korea refers to the Panel's finding as to which set of numbers in itsSchedule LX constitutes Korea's levels of commitment
 15;  and to the Panel's finding that Korea's
methodology for calculating Current Aggregate Meas urement of Support ("AMS") for beef was not
consistent with the methodology provided in Annex 3 of the  Agreement on Agriculture . 16
79. In this dispute, the Panel's terms of reference were defined as follows:
                                                     
11Panel Report, para. 787.
12Ibid.
13Ibid., para. 803.
14Ibid., para. 815.
15Korea's appellant's submission, paras. 15-25.
16Ibid., paras. 65-70.WT/DS161/AB/R
WT/DS169/AB/R
Page 21
To examine, in the light of the relevant provisions of the covered
agreements cited by the United States in document WT/DS/161/5 and
by Australia in document WT/DS/169/5, the matter referred to the
DSB by the United States and Australia in those documents and to
make such findings as will assist the DSB in making therecommendations or in giving the rulings provided for in those
agreements.
 17
Thus, the Panel's terms of reference required it to examine the "matter" referred to the DSB by the
complaining parties in the requests for the establishm ent of a panel by the United States and Australia,
respectively.  18  The "matter" referred to the DSB is the set of claims made in these requests. . 19
80. In its panel request, Australia stated, in respect of Korea's agricultural domestic support, that:
Korea has also increased the level of domestic support for its cattle
industry in amounts which result in the total domestic support
provided by Korea exceeding its Aggregate Measurement of Support(AMS) under the Agreement on Agriculture.
Australia went on to state that Korea was acting inconsistently with obligations under,  inter alia ,
Articles 3, 6 and 7 of the  Agreement on Agriculture .
81. The United States, in its panel request, stated, in very similar terms:
At the same time, Korea has increased the level of domestic support
for its cattle industry to the point that the total domestic supportprovided by Korea exceeds its Aggregate Measurement of Support
(AMS) under the Agreement on Agriculture.
The United States also referred to Korea's measures as being inconsistent with, inter alia , Articles 3,
6, and 7 of the  Agreement on Agriculture .
82. Thus, the claim made by both complaining parties was that Korea's domestic support for its
cattle industry had increased to the point that Ko rea exceeded its AMS commitment levels for certain
years, in contravention of Articles 3, 6 and 7 of the  Agreement on Agriculture .
                                                     
17WT/DS161/6, WT/DS169/6; see also Article 7.1 of the DSU.
18WT/DS161/5, WT/DS169/5.
19See Appellate Body Report, Brazil – Measures Affecting Dessicated Coconut , WT/DS22/AB/R,
adopted 20 March 1997, p. 22;  Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding
Portland Cement from Mexico , WT/DS60/AB/R, adopted 25 November 1998, para. 72.WT/DS161/AB/R
WT/DS169/AB/R
Page 22
83. With respect to Korea's claim that the Panel ac ted outside its terms of reference in examining
the "commitment levels" in Korea's Schedule, the fo llowing paragraphs of Articles 3 and 6 of the
Agreement on Agriculture   are of particular importance.  Article 3.2 obligates Members not to exceed
the support levels they had specified in their Schedules:
Subject to the provisions of Article 6, a  Member shall not provide
support   in favour of domestic producers in excess of the commitment
levels specified in Section I of Part IV of its Schedule . (emphasis added)
Article 6.3 in turn states:
A Member shall be considered to be in compliance with its domestic
support reduction commitments in any year in which  its domestic
support  in favour of agricultural producers expressed in terms of
Current Total AMS  does not exceed   the corresponding  annual or
final bound commitment level specified in Part IV of the Member's
Schedule . (emphasis added)
Articles 3.2 and 6.3 both refer explicitly to the "commitment level" specified in Part IV of a Member's
Schedule.  In order to make a finding on the complaining parties' claim, the Panel had no choice but todetermine the appropriate "commitment levels" in Korea's Schedule.
84. With respect to Korea's claim
 20 that the Panel acted outside its terms of reference in
examining Annex 3 of the  Agreement on Agriculture ,  we note that Article 6.4 provides:
(a) A Member shall not be required to include in the calculation
of its Current Total AMS and shall not be required to reduce:
(i) product-specific domestic support which would
otherwise be required to be included in a Member's
calculation of its Current AMS where such supportdoes not exceed 5 per cent of that Member's total
value of production of a basic agricultural product
during the relevant year;
…
(b) For developing country Members, the de minimis  percentage
under this paragraph shall be 10 per cent.
Article 7.2(a) states:
                                                     
20Supra , para. 78.WT/DS161/AB/R
WT/DS169/AB/R
Page 23
Any domestic support measure in favour of agricultural producers,
including any modification to such measure, and any measure that is
subsequently introduced that cannot be shown to satisfy the criteria in
Annex 2 to this Agreement or to be exempt from reduction by reason
of any other provision of this Agreement shall be included in theMember's calculation of its Current Total AMS.
Both Articles 6 and 7, claimed by the complaining parties to have been violated by Korea, refer
explicitly to Current AMS and/or Current Total AMS.
85. AMS and Total AMS are defined in Article 1 of the  Agreement on Agriculture , entitled
"Definition of Terms".  According to Article 1(a)
"Aggregate Measurement of Support " and " AMS " mean the annual
level of support, expressed in monetary terms, provided for an
agricultural product in favour of the producers of the basic
agricultural product … which is:
…
(ii) with respect to support provided during any year of the
implementation period and thereafter, calculated in
accordance with the provisions of Annex 3 of this Agreement
and taking into account the constituent data and methodologyused in the tables of supporting material incorporated by
reference in Part IV of the Member's Schedule; (emphasis
added)
According to Article 1(h)
"Total Aggregate Measurement of Support " and " Total AMS " mean
the sum of all domestic support provided in favour of agricultural
producers, calculated as the sum of all aggregate measurements ofsupport for basic agricultural products, … which is:
…
(ii) with respect to the level of support actually provided during
any year of the implementation period and thereafter (i.e.  the
"Current Total AMS"), calculated in accordance with the
provisions of this Agreement , including Article 6, and with the
constituent data and methodology used in the tables of
supporting material incorporated by reference in Part IV of
the Member's Schedule; (emphasis added)
86. While Article 1(h)(ii) uses the terms "provisions of this Agreement", Article 1(a)(ii) is more
specific and refers precisely to " the provisions of Annex 3 of this Agreement ".  Annex 3 is entitled
"Domestic Support:  Calculation of Aggregate Measurement of Support".  Through the definitions setWT/DS161/AB/R
WT/DS169/AB/R
Page 24
out in Article 1, Annex 3 thus becomes part of Articles 6 and 7.  In examining the claims under
Articles 3, 6 and 7, the Panel, therefore, had to examine the terms of Annex 3 as well.  The Panel hadto calculate Current AMS for beef  " in accordance with the provisions of Annex 3 … and taking into
account the constituent data and methodology …" to determine whether Current AMS for beef was to
be included in Current Total AMS.  Thus, in or der to reach a finding on the complaining parties'
claim, the Panel in this case had to ascertain the appropriate "commitment levels" inKorea's Schedule, and had to calculate Current AMS for beef "in accordance with the provisions ofAnnex 3 … " to determine whether Current AMS for beef was to be included in Current Total AMS.
87. It is true that, as Korea states, the panel requests in this dispute do not explicitly refer to the
"commitment levels" in Korea's Schedule or to "Annex 3" of the  Agreement on Agriculture .  In
Argentina – Safeguard Measures on Imports of Footwear ,  however, we held that the "terms of
Article 4.2(c) of the  Agreement on Safeguards   expressly incorporate the provisions of Article 3" of
that Agreement.
21  In that case, we stated that "we find it difficult to see how a panel could examine
whether a Member had complied with Article 4.2(c) without also referring to the provisions of
Article 3 of the  Agreement on Safeguards ." 22  We believe the same approach appropriately applies
here.  Although the "commitment levels" in Korea's Schedule and "Annex 3" of the  Agreement on
Agriculture   were  not explicitly   referred to in the panel requests in this dispute, it is clear that
Articles 3 and 6 of the  Agreement on Agriculture , which  were referred  to in the panel requests,
incorporate those terms, either directly through Articles 3.2 and 6.3, in the case of the "commitmentlevels", or indirectly through Article 1(a)(ii), in the case of "Annex 3".  In our view, the commitmentlevels in Korea's Schedule and the provisions of Anne x 3 were in effect referred to in the complaining
parties' panel requests, and were, therefore, within the Panel's terms of reference.
88. It is useful to add that, in deciding which set of figures in Korea's Schedule constituted the
true and effective commitment levels of Korea and in determining how Current AMS should becalculated under Annex 3, the Panel did not rule on a separate "claim".
 23  Rather, it examined specific
arguments related to the claim that Korea's domestic support exceeded its AMS commitment levels.
                                                     
21Appellate Body Report, WT/DS121/AB/R, adopted 12 January 2000, para. 74.
22Ibid.
23We note that in paragraph 800 of its Report, the Panel addressed the United States' "claim" that the
Base Total AMS specified in Part IV, Section I of Korea's Schedule was initially miscalculated.  The Panelconsidered that this "claim" was not properly before it.  It concluded "that the only measure at issue is Korea'scurrent domestic support for its beef industry in the context of Korea's scheduled commitment levels ondomestic support under the Agreement on Agriculture ".  This conclusion of the Panel has not been appealed and
is not before us.WT/DS161/AB/R
WT/DS169/AB/R
Page 25
In this context, it seems useful to recall our statement in   European Communities – Regime for the
Importation, Sale and Distribution of Bananas   that:
… there is a significant difference between the claims  identified in the
request for the establishment of a panel, which establish the panel'sterms of reference under Article 7 of the DSU, and the arguments
supporting those claims, which are set out and progressively clarified in
the first written submissions, the rebuttal submissions and the first and
second panel meetings with the parties.
 24
The claim of the complaining parties was that Korea's domestic support for beef had increased to the
point that this support exceeded Korea's commitment levels for certain specified years.  This claimwas made under Articles 3, 6 and 7 of the  Agreement on Agriculture ,  as stated in both panel requests,
and was clearly within the Panel's terms of reference.  The Panel's examination of the commitment
levels in Korea's Schedule and the calculation methodology in Annex 3 was carried out in the courseof assessing arguments related to the complaining parties' claim.
89. For these reasons, we conclude that the Panel did not err in finding that the issue of which set of
figures constituted Korea's commitment levels and the issue of whether Current AMS for beef must be
calculated in accordance with Annex 3 were within its terms of reference.
V. Domestic Support under the  Agreement on Agriculture
90. In the Panel proceedings, the complaining parties claimed that Korea provided domestic
support to its beef industry, measured by Current AMS, in amounts which exceeded  de minimis  
levels in 1997 and 1998 and which, therefore, were required to be included in Korea's calculation ofCurrent Total AMS for those years.  When domestic support for beef was included in Current TotalAMS, they contended, Korea's Current Total AMS exceeded its commitment levels set out in Part IVof its Schedule for those years, contrary to Articles 3 and 6 of the  Agreement on Agriculture .
 25
91. In addressing the above claim, the Panel ascertained both Korea's commitment levels for 1997
and 1998 and Korea's Current Total AMS for those years.  With regard to Korea's commitment levels,
the Panel noted that there were two sets of figures in Korea's Schedule in the column entitled "Annual
                                                     
24WT/DS27/AB/R, adopted 25 September 1997, para. 141.
25See Panel Report, paras. 49, 51 and 818.  Australia argued that Korea exceeded its commitment levels
only for 1997, whereas the United States argued that Korea exceeded its commitment levels for both 1997and 1998.WT/DS161/AB/R
WT/DS169/AB/R
Page 26
and final bound commitments level 1995-2004", with one set in brackets and the other set not in
brackets.  The Panel concluded that the figures  not  in brackets constituted Korea's commitment
levels.  26  With regard to Current Total AMS for 1997 and 1998, the Panel first examined whether
Current AMS for beef exceeded the 10 per cent de minimis  level set out in Article 6.4 of the
Agreement on Agriculture .  The Panel found that Current AMS for beef exceeded the  de minimis 
level, and, therefore, was required to be included  in Current Total AMS, and that Korea's failure to
include Current AMS for beef in Current Total AMS was inconsistent with Article 7.2(a) of theAgreement on Agriculture.
 27  The Panel then compared Current Total AMS for 1997 and 1998 with
Korea's commitment levels for those years, and concluded that Current Total AMS exceeded the
commitment levels, contrary to Article 3.2 of the  Agreement on Agriculture . 28
92. On appeal, Korea argues that the Panel's conclusion that Korea exceeded its commitment
levels for 1997 and 1998 was in error, for two reasons.  First, Korea's view is that the Panel's finding
that Korea's commitment levels, as set out in its Schedule, comprise the figures not in brackets is
wrong.  According to Korea, the commitment levels are, in fact, embodied in the figures in brackets,
as Note 1 of Supporting Table 6 of Korea's Schedule makes clear.  29  Second, Korea contends that the
Panel's conclusion that Current AMS for beef must be included in Current Total AMS was alsowrong.  According to Korea, the Panel mistakenly looked to Annex 3 of the  Agreement on
Agriculture  in order to calculate the Current AMS for beef, failing to rely instead on the "constituent
data and methodology" provided in Korea's Schedule, as required by Articles 1(a)(ii) and 1(h)(ii).Korea claims that its Current AMS for beef was properly calculated, on the basis of "constituent dataand methodology" in its Schedule, and is less than the  de minimis  level established in Article 6.4 of
the  Agreement on Agriculture .  Therefore, Korea argues, Current AMS for beef need not be included
in Current Total AMS.
 30
93. The issue before us on appeal has two parts:  did the Panel err in finding, firstly, that Korea
failed to include Current AMS for beef in Curren t Total AMS, contrary to Article 7.2(a) of the
Agreement on Agriculture ,  and in finding, secondly, that, contrary to Article 3.2 of the  Agreement on
Agriculture , Korea's Current Total AMS exceeds the comm itment levels in Part IV of its Schedule
for 1997 and 1998?  In examining the component parts of  this issue, it is necessary for us to ascertain
two sets of figures: the figures which constitute Korea's commitment levels for 1997 and 1998, and
                                                     
26Panel Report, para. 821.
27Ibid., para. 841.
28Ibid., para. 843.
29Korea's appellant's submission, paras. 26-54.
30Ibid., paras. 79-90.WT/DS161/AB/R
WT/DS169/AB/R
Page 27
the figures for Korea's Current Total AMS for 1997 and 1998.  We turn first to an examination of
Korea's commitment levels for 1997 and 1998.
A. Korea's Commitment Levels  for 1997 and 1998
94. In Korea's Schedule LX, Part IV, Section I, entitled "Domestic Support: Total AMS
Commitments", Korea has provided annual bound commitment levels for domestic support for
agriculture for the period 1995-2004.  The Schedule contains three columns, as follows:
W = Korean Won
Base Total
AMSAnnual and final bound commitments level
1995 -  2004Relevant Supporting Tables
and document reference
12 3
bil. W      bil. W
1,718.6 1995: 1,695.74 (2,182.55) *Note 1 AGST/KOR (Supporting
1996: 1,672.90 (2,105.60) Table 4, 5, 6, 7, 8 and 10)1997: 1,650.03 (2,028.65)
1998: 1,627.17 (1,951.70)
1999: 1,604.32 (1,874.75)2000: 1,581.46 (1,797.80)2001: 1,558.60 (1,720.85)2002: 1,535.74 (1,643.90)2003: 1,512.89 (1,566.95)2004: 1,490.00 (1,490.00)
*Note 1 : Refer to Note 1 of Supporting Table 6 about the numbers in parentheses.
Korea's commitment levels are in Column 2, entitled "Annual and final bound commitments
level 1995-2004".  This column contains two sets of  figures pertaining to the years 1995-2004:  one
set in brackets, and one set not in brackets.
95. In its findings, the Panel referred to part of Korea's Schedule.  In particular, the Panel referred
to the figures in Column 1 and Column 2.  However, the Panel did not refer to "* Note 1" in
Column 2, nor to the explanatory information set out in Note 1, and did not reprint Column 3.  31  The
Panel concluded that the set of figures not in brackets constitutes Korea's commitment levels.  Insupport of its conclusion, the Panel noted that "the unbracketed figures in Korea's Schedule arederived from, and directly linked to, the 'Base Total AMS'".  By contrast, the figures in the columnwith brackets "bear no such relationship to the specified 'Base Total AMS' of 1,718.60 billion won."
 32
Therefore, Korea's commitment level for 1997 is 1,650.03 billion won, while the commitment level
                                                     
31Panel Report, para. 820.
32Ibid., para. 822.WT/DS161/AB/R
WT/DS169/AB/R
Page 28
for 1998 is 1,627.17 billion won.  33  On appeal, Korea argues that the Panel's conclusion was in
error.  34
96. Examining this issue requires us to interpret Ko rea's Schedule.  At the outset, we note, as we
have previously stated in  European Communities – Customs Classification of Certain Computer
Equipment , that:
A Schedule is … an integral part of the GATT 1994 … .  Therefore,
the concessions provided for in that schedule are part of the terms of
the treaty.  As such, the only rules which may be applied in
interpreting the meaning of a concession are the general rules of treaty
interpretation set out in the  Vienna Convention . 35
Thus, we now examine Korea's Schedule in light of the rules of treaty interpretation.  We begin with
the ordinary meaning of the terms of the Schedule, in their context and in the light of the object andpurpose of the treaty, in accordance with Article 31(1) of the  Vienna Convention .
97. The Panel examined the two sets of figures provided by Korea, as well as the figure for "Base
Total AMS".  However, as is clear from the table in Korea's Schedule LX, Part IV, Section I, which
has been reprinted in paragraph 94 above, the two sets of figures do not exist in isolation.  Rather, tothe right of the two sets of figures is the notation "* Note 1".  At the bottom of Korea's Schedule, thereis "* Note 1" which states:  "Refer to Note 1 of Supporting Table 6 about the numbers in parentheses."The Panel, in its reasoning, referred to the set of figures in Column 1 and Column 2, but did  not  refer
to "* Note 1", nor did it consider the terms of "* Note 1".
 36  An examination of the ordinary meaning
of the terms of a treaty must take into account  all  of those terms, and, accordingly, we proceed with
an examination of Korea's Schedule, including Note 1 of Supporting Table 6.  In our view, the Panel'sexamination of the "ordinary meaning" of Korea's Schedule was not done in accordance with the rules
of interpretation of general international law as codified in the  Vienna Convention .
98. Supporting Table 6 is entitled "Aggregate Measurements of Support: Market Price Support".
This table provides the supporting figures for the commitment levels set out in Part IV, Section I ofKorea's Schedule LX, that is, the figures used to calculate the commitment levels.  Supporting figuresare provided for rice, barley, soybean, maize (corn) and rape seeds.  In respect of each product, theAMS for each of the years 1989-1991 is provided, along with an average AMS level for the years                                                     
33See Panel Report, para. 843.
34Korea's appellant's submission, paras. 26-54.
35Appellate Body Report, WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, adopted 22 June 1998,
para. 84.
36See Panel Report, paras. 820-823.WT/DS161/AB/R
WT/DS169/AB/R
Page 29
1989-1991.  For rice, AMS figures for 1993 are given as well.  The figures for each product were
combined in order to obtain a Base Total AMS figure which could then be used to determine
commitment levels for the years 1995-2004.
99. Note 1 of Supporting Table 6 reads as follows:
The AMS for rice has been calculated based on 1993 market price
support instead of 1989-1991 average.  The Final Bound Commitment
level in 2004, however, is the level reduced by 13.3% from the 1989-
1991 average Base Total AMS.  37
As the Panel did not consider Note 1 at the bottom of Korea's Schedule LX, Part IV, Section I, it did
not consider Note 1 of Supporting Table 6 either.
100. In interpreting Note 1 of Supporting Table 6, we look again at its ordinary meaning.  The first
sentence of this Note indicates that the AMS calculations for  rice  are based on 1993 figures, whereas
for products other than rice, the AMS figures are based on the 1989-1991 average amounts.
101. The second sentence of Note 1 of Supporting Table 6 makes clear that the final bound
commitment level for 2004 has been determined by reducing the 1989-1991 average Base Total AMSby 13.3 per cent.
102. We note that the use of the term "however" ordinarily indicates a contrast between two things,
and lends support to Korea's position.  The contrast here is the following: whereas the starting AMSamount is calculated using the 1989-1991 figures for products other than rice and the 1993 figures forrice, the Final Bound Commitment level for 2004 is calculated based on the 1989-1991 average BaseTotal AMS, which relies on 1989-1991 figures for  all  products, including rice.  It appears to us that
what Korea stated in Note 1 of Supporting Table 6 was this:  the starting AMS commitment levelfor 1995 is determined by using AMS calculations relying on base years of 1989-1991 for all productsexcept rice, and 1993 for rice;  "however", the fina l target commitment level for 2004 is based on the
Base Total AMS figure which was derived by using the base years 1989-1991 for  all  products.  The
starting AMS commitment level figure for 1995 (2182.55 billion won) was reduced in equal annual
amounts over the period from 1995 to 2004 in order to reach the final target commitment level for2004 (1490.00 billion won).  The reduced commitment levels for each year over the period 1995-2004, the calculation of which has been described by Korea in Note 1 of Supporting Table 6, are set
                                                     
37G/AG/AGST/KOR, p. 8.WT/DS161/AB/R
WT/DS169/AB/R
Page 30
out in the figures in brackets.  It follows from the wording of Korea's Schedule LX, Part IV, Section I,
read together with Note 1 of the Supporting Table 6, that Korea's AMS commitment levels for 1995-2004 are not represented, as the Panel concluded, by the figures not in brackets, but, rather, as Koreacontends, by the figures in brackets.
103. The above view is reflected in Korea's subsequent statements before the Committee on
Agriculture.  At a November 1996 Committee on Agriculture meeting, New Zealand asked Korea thisquestion: "Noted that Korea's Schedule contains two sets of figures regarding annual and final boundcommitment levels.  Which set is accurate?"  Korea responded as follows:
The figures in brackets correspond to Korea's real annual
commitment level, using the 1993 base period for rice and the 1989-
1991 base period for other products , as indicated in the footnote of
Korea's Schedule LX.  The said calculation and annual commitment
level of AMS were already reviewed and agreed upon by Membercountries in March 1994.  The other set of figures corresponds to the
annual commitment using the base period of 1989-1991 for all the
products .
 38 (emphasis added)
104. Furthermore, in its official annual Notifications to the Committee on Agriculture concerning
domestic support commitments for 1995 to 1998, Korea made reference to its commitment level forthe period in question.  In each Notification, the figure Korea provided was the relevant commitmentlevel from Korea's Schedule set out in the figures in brackets.  Next to the AMS figure in eachNotification is a note which says "See Note 1 of Supporting Table 6 in G/AG/AGST/KOR".
 39
105. For these reasons, we conclude that Korea's commitment levels in Part IV, Section I of its
Schedule LX are denoted by the figures in the Column entitled "Annual and final bound commitmentslevel 1995-2004" which are in brackets.  Thus, Korea's commitment level is 2,028.65 billion won for
the year 1997, and 1,951.70 billion won for the year 1998.
106. We turn next to an examination of Korea's Current Total AMS for 1997 and 1998, to
determine whether Korea's Current Total AMS for these years exceeded its commitment levels for
those same years.
                                                     
38G/AG/R/9, 17 January 1997.
39See G/AG/N/KOR/24, 25 August 1999; G/AG/N/KOR/18, 16 September 1998; G/AG/N/KOR/14, 15
September 1997; G/AG/N/KOR/7, 18 November 1996.WT/DS161/AB/R
WT/DS169/AB/R
Page 31
B. Korea's Current Total AMS for  1997 and 1998
107. In its Notifications to the Committee on Agriculture for 1997 and 1998, Korea provided
figures for the Current Total AMS for those years.  Korea claimed that for 1997 it provided CurrentTotal AMS of 1,936.95 billion won, and for 1998 it provided 1,562.77 billion won.
 40  T h e
complaining parties argue that Korea's Current Total AMS as provided in its Notifications was
calculated improperly, as Korea did not include Current AMS for beef in its Current Total AMS.  TheUnited States contends that when Current AMS for beef is included in Current Total AMS, asrequired, Current Total AMS for both 1997 and 1998 exceeded Korea's commitment levels for 1997and 1998, whereas Australia limits its contention to 1997.
41
108. The Panel found that Korea's Current AMS for beef did exceed the  de minimis   level for 1997
and 1998, and, therefore, was required to be included in Current Total AMS, under Article 7.2(a) ofthe  Agreement on Agriculture .
 42  The Panel then compared Korea's Current Total AMS to Korea's
commitment levels for 1997 and 1998, and concluded that Current Total AMS exceeded the
commitment levels, contrary to Article 3.2 of the  Agreement on Agriculture . 43
109. On appeal, Korea contends that the Panel's conclusion that Current AMS for beef must be
included in Current Total AMS is incorrect.  Acco rding to Korea, the Panel mistakenly looked to
Annex 3 of the  Agreement on Agriculture  in order to calculate the Current AMS for beef, while
failing to take into account the "constituent data and methodology" provided in Korea's Schedule, asrequired by Articles 1(a)(ii) and 1(h)(ii) of the Agreement on Agriculture .  Korea claims that its
Current AMS for beef was properly calculated in its Notifications to the Committee on Agriculture,based on the "constituent data and methodology" in its Schedule, and that consequently this CurrentAMS fell below the  de minimis   level established in Article 6.4 of the  Agreement on Agriculture .
Therefore, Korea argues, the Current AMS for beef need not be included in the Current Total AMS,
and Current Total AMS was properly calculated in its Notifications.
 44
110. In examining this issue, we need to determ ine first whether Current AMS for beef for 1997
and 1998 must be included in Korea's Current Total AMS for those years.  We recall that Article 6.4of the  Agreement on Agriculture  states that:
                                                     
40See G/AG/N/KOR/24, 25 August 1999; G/AG/N/KOR/18, 16 September 1998.
41See  supra , footnote 25.
42Panel Report, para. 841.
43Ibid., para. 843.
44Korea's appellant's submission, paras. 79-90.WT/DS161/AB/R
WT/DS169/AB/R
Page 32
A Member shall not be required to include in the calculation of its
Current Total AMS and shall not be required to reduce:
(i) product-specific domestic s upport which would otherwise be
required to be included in a Member's calculation of its Current
AMS where such support does not exceed 5 per cent of thatMember's total value of production of a basic agricultural
product during the relevant year;
…
For developing country Members the  de minimis   percentage level under this paragraph is 10 per cent.
 45
Thus, Korea's Current AMS for beef must be incl uded in Current Total AMS only if the Current AMS
for beef exceeds the 10 per cent  de minimis   requirement applicable in respect of developing country
Members.
111. To determine whether Korea's Current AMS for b eef exceeds 10 per cent of total value of beef
production, we refer again to Article 1(a)(ii) of the  Agreement on Agriculture ,  which defines Current
AMS.  Under this provision, Current AMS is to be
calculated in accordance with the provisions of Annex 3 of this
Agreement and taking into account the constituent data and
methodology used in the tables of supporting material incorporated by
reference in Part IV of the Member's Schedule; … (emphasis added)
Article 1(a)(ii) contains two express requirements for calculating Current AMS.  First, Current AMS
is to be "calculated  in accordance with   the provisions of Annex 3 of  this Agreement".  The ordinary
meaning of "accordance" is "agreement, conformity, harmony".  46  Thus, Current AMS must be
calculated in "conformity" with the provisions of A nnex 3.  Second, Article 1(a)(ii) provides that the
calculation of Current AMS is to be made while  "taking into account the constituent data and
methodology used in the tables of supporting material  incorporated by reference in Part IV of the
Member's Schedule."  "Take into account" is defined as "take into consideration, notice".  47  Thus, when
Current AMS is calculated, the "constituent data  and methodology" in a Member's Schedule must be
"taken into account", that is, it must be "considered".  48
                                                     
45Article 6.4(b) of the  Agreement on Agriculture .
46The New Shorter Oxford English Dictionary , (Clarendon Press, 1993), Vol. I, p. 15.
47Ibid.
48We note that this difference is not reflected in the wording of the definition of Current Total AMS in
Article 1(h).  Article 1(h)(ii) provides that Current  Total AMS is to be calculated "in accordance with the
provisions of this Agreement, including Article 6,  and  with the constituent data and methodology used in the
tables of supporting material incorporated by reference in Part IV of the Member's Schedule". (emphasis added)WT/DS161/AB/R
WT/DS169/AB/R
Page 33
112. Looking at the wording of Article 1(a)(ii) itself, it seems to us that this provision attributes
higher priority to "the provisions of Annex 3" than to the "constituent data and methodology".  Fromthe viewpoint of ordinary meaning, the term "in ac cordance with" reflects a more rigorous standard
than the term "taking into account".
113. We note, however, that the Panel did not base its reasoning on this apparent hierarchy as
between "the provisions of Annex 3" and the "constituent data and methodology".
 49  Instead, the
Panel considered that where no support was included in the base period calculation for a givenproduct, there is no "constituent data or methodology" to refer to, so that the only means available forcalculating domestic support is that provided in Annex 3.
 50  As beef had not been included in
Supporting Table 6 of Korea's Schedule LX, Part IV, Section I, the Panel concluded that Annex 3alone is applicable for the purposes of calculating current non-exempt support in respect of Koreanbeef.
 51
114. In the circumstances of the present case, it is not necessary to decide how a conflict between
"the provisions of Annex 3" and the "constituent data and methodology used in the tables of
supporting material incorporated by reference in Pa rt IV of the Member's Schedule" would have to be
resolved in principle.  As the Panel has found, in this case, there simply are no constituent data andmethodology for beef.
 52  Assuming  arguendo   that one would be justified – in spite of the wording of
Article 1(a)(ii) – to give priority to constituent data and methodology used in the tables of supportingmaterial over the guidance of Annex 3, for products entering into the calculation of the Base TotalAMS, such a step would seem to us to be unwarranted in calculating Current AMS for a productwhich did  not  enter into the Base Total AMS calculation.  We do not believe that the  Agreement on
Agriculture   would sustain such an extrapolation.  We, therefore, agree with the Panel that, in this
case, Current AMS for beef has to be calculated in accordance with the provisions of Annex 3, and
with these provisions alone.
115. Korea has argued that:
                                                     
49On the contrary, the Panel opines that the "constituent data and methodology" has an important role
to play in ensuring that the calculation of support to any given product is calculated in subsequent yearsconsistently with support calculated in the base period.  Panel Report, para. 811.
50Ibid.
51Ibid., para. 812.
52Ibid.  In other words, there is no  data  (product)  in respect of which the   methodology   of
Schedule LX of Korea (that is, the use of figures for the years 1989-1991) could be applied, in so far as beef isconcerned.WT/DS161/AB/R
WT/DS169/AB/R
Page 34
National schedules on the reduction of subsidies in favour of
agricultural products … can be understood as multi-year equations.
One side of the equation includes the commitment level for a given
year, while the other side of the equation includes the actual AMS for
the same year.  Thus, for the equation to be meaningful, both sides ofthe equation should be based on the same sets of data and
methodology. …  Using one methodology for commitment levels and
another methodology for actual AMS undermines comparability
between the two, and leads to unfair results.
 53
We believe that it is not necessary or appropriate to conceive of the pertinent provisions of the
Agreement on Agriculture   as establishing "multi-year equations".  The treaty definitions of both AMS
and Total AMS, set out in Articles 1(a) and 1(h) respectively, do provide a specific methodology for
calculating Current AMS and Current Total AMS in respect of a particular year during the
implementation period.  However, with respect to the other side of a hypothetical equation, therelevant treaty provisions do  not  provide for any particular mode of calculation of the "Base Total
AMS", from which figure the commitment levels for particular years of the implementation period arearithmetically derived.  Article 1(a)(i) of the  Agreement on Agriculture   dealing with AMS states that
"with respect to support provided during the base peri od", a treaty interpreter needs only to go to "the
relevant tables of supporting material incorporated by reference in Part IV of a Member's
Schedule  … ". (emphasis added)  Similarly, Article 1(h)(i) dealing with Total AMS, states that "with
respect to support provided during the base period (i.e., the 'Base Total AMS') and the maximum
support permitted to be provided during any year of the implementation period or thereafter (i.e., the
'Annual and Final Bound Commitment Levels')", a tr eaty interpreter needs only to go to what is
"specified in Part IV of a Member's Schedule  … ". (emphasis added)  Thus, for purposes of
determining whether a Member has exceeded its commitment levels, Base Total AMS, and thecommitment levels resulting or derived therefrom, are not themselves formulae to be worked out, butsimply absolute figures set out in the Schedule of the Member concerned.  As a result, Current TotalAMS which is calculated according to Annex 3, is compared to the commitment level for a given yearthat is already specified as a given, absolute, figure in the Member's Schedule.
116. We examine next Annex 3, entitled:  "Dom estic Support: Calculation of Aggregate
Measurement of Support".  Paragraphs 8 and 9 of Annex 3 provide the following definition of
"market price support", the particular form of domestic support at issue here:
                                                     
53Korea's appellant's submission, para. 63.WT/DS161/AB/R
WT/DS169/AB/R
Page 35
… market price support  shall be calculated using the gap between a
fixed external reference price and the applied administered price
multiplied by the  quantity of production eligible to receive   the applied
administered price.  Budgetary payments made to maintain this gap,
such as buying-in or storage costs,  shall not be included in the AMS.
The  fixed external reference price shall be based on the years 1986
to 1988  and shall generally be the average f.o.b. unit value for the basic
agricultural product concerned in a net exporting country and the
average c.i.f. unit value for the basi c agricultural product concerned in a
net importing country in the base period.  The fixed reference price may
be adjusted for quality differences as necessary. (emphasis added)
Thus, under Annex 3, "market price support" is calcu lated by taking the difference between a fixed
external reference price and the applied administer ed price, and multiplying that difference by "the
quantity of  production eligible   to receive the applied administered  price". (emphasis added)  The fixed
external reference price "shall be  based on the years 1986 to 1988 ". (emphasis added)
117. The Panel found that in both 1997 and 1998 Korea miscalculated its fixed external reference
price, contrary to Article 6 and paragraph 9 of Annex 3, by using a fixed external reference price based
on data for 1989-1991.  54  Korea justifies this choice by invoking the "constituent data and
methodology" used in its Supporting Table 6 for all products other than rice, i.e., for barley, soybean,maize (corn) and rape seeds.  In Supporting Table 6, all these products use the period 1989-1991 forthe fixed external reference price.
 55
118. We have already explained above that we share the Panel's view with respect to Korea's
argument on "constituent data and methodology" used in the table of supporting material.  We agreewith the Panel that, in this case, Current AMS for beef has to be calculated in accordance withAnnex 3.  According to Annex 3, "[t]he fixed exte rnal reference price shall be based on the years
1986 to 1988".  We, therefore, also agree with the Panel that in calculating the product specific AMS
for beef for the years 1997 and 1998, Korea should have used an external reference price based ondata for 1986-1988, instead of data for 1989-1991.
119. The Panel found that, in calculating the Current AMS for beef for the years 1997 and 1998,
Korea made a further mistake.  In determining its market price support for beef, Korea used thequantity of Hanwoo cattle actually purchased.  The Panel found that "[t]he actual quantity ofpurchases is not relevant in the calculation of market price support.  Korea, by indicating its intent to
                                                     
54Panel Report, para. 830.
55Korea's appellant's submission, paras. 79-80.WT/DS161/AB/R
WT/DS169/AB/R
Page 36
purchase specified quantities, made them eligible to receive the applied administered price, and
consequently affected and supported the price of all such products".  56
120. We share the Panel's view that the words "production  eligible   to receive the applied
administered price" in paragraph 8 of Annex 3 have a different meaning in ordinary usage from
"production  actually purchased  ".  The ordinary meaning of "eligible" is "fit or  entitled   to be
chosen".  57  Thus, "production eligible" refers to production that is "fit or entitled" to be purchased
rather than production that was actually purchased.  In establishing its program for future market pricesupport, a government is able to define and to limit "eligible" production.  Production actuallypurchased may often be less than eligible production.
121. In the present case, Korea, in effect, declared the quantity of "eligible production" when it
announced in January, 1997, that it would purchase 500 head per day of Hanwoo cattle above 500 kgwithin the 27 January to 31 December 1997 period, which would be 170,000 head of cattle forthe 1997 calendar year.
 58  That figure, under paragraph 8 of Annex 3, accordingly constitutes the
quantity of "eligible production".  While there may be nothing under the  Agreement on Agriculture  
to prevent Korea from changing the quantity of "eligible production", Korea did not do so, so far asthe record of this case shows.  Korea instead simply purchased a lesser number of cattle by ceasing itspurchases.
122. Korea argues that it is entitled to calculate market price support in 1997 and 1998 by using
actual purchases, because it used actual purchases in its calculations in the tables of supportingmaterial in its Schedule.  We recall that we share the Panel's view that for beef, "constituent data andmethodology" do not exist in the Schedule, as beef did not enter into the calculation of Korea's initialBase Total AMS.  We, therefore, agree with the Panel's finding that Korea erred in calculating market
price support in 1997 and 1998 by using the amount of production actually purchased, instead of
production declared eligible to receive the applied administered price, according to the provisions ofparagraph 8 of Annex 3.
123. Having reached the conclusion that Korea had miscalculated its market price support in 1997
and 1998, the Panel attempted to evaluate correctly Korea's Current AMS for beef.  In doing so, thePanel stated that "[f]or reasons of clarity and simplicity", it would rely on market price support
                                                     
56Panel Report, para. 831.
57The Concise Oxford English Dictionary , (Clarendon Press, 1995), p. 438.
58Panel Report, para. 834.WT/DS161/AB/R
WT/DS169/AB/R
Page 37
calculations submitted by New Zealand for Korea's Current AMS for beef.  59  B a s e d  o n  t h e s e
calculations, the Panel found that Korea's AMS for beef had exceeded the 10 per cent  de minimis  
threshold referred to in Article 6.4(b) of the  Agreement on Agriculture  in 1997 and 1998.  60
124. We note that in calculating Korea's Current AMS for beef, New Zealand uses – like Korea – a
fixed external reference price based on 1989-1991 data.  As we have found above, the use of such an
external reference price is incompatible with paragraph 9 of Annex 3, which requires an externalreference price based on the years 1986-1988.
125. The Panel was aware of this incompatibility, but seemed to assume that New Zealand's
reference to 1989-1991 data benefitted, rather than harmed, Korea.
 61  This could be the case if
the 1989-1991 data would result in a higher external reference price than the one prescribed byparagraph 9 of Annex 3, i.e., the external reference price based on the years 1986-1988.  There is,however, no indication in the Panel Report of the level of the external reference price for theyears 1986-1988.  Furthermore, neither the Panel Report nor the Panel record contain any elements
which might allow us to determine the level of such an external reference price.
 62
126. We, therefore, must reverse the Panel's finding that Korea exceeded the 10 per cent
de minimis   threshold of Current AMS for beef in 1997 and 1998, and the consequent finding that the
failure to include Current AMS for beef in Current Total AMS in these years is inconsistent withArticles 6 and 7.2(a) of the  Agreement on Agriculture .
127. As a consequence, we must also reverse the Panel's finding that, in 1997 and 1998, Korea's
Current Total AMS exceeded Korea's commitment levels, as specified in Part IV, Section I of itsSchedule, in violation of Article 3.2 of the  Agreement on Agriculture .
                                                     
59Panel Report, para. 838.
60Ibid., para. 840.
61This seems to be the meaning of the words "inflating Korea's legitimate level of domestic support" in
footnote 442 of the Panel Report which reads as follows:
The Panel notes that for this recalculation of Korea's FERP, New Zealand
even used 1989-1991 data (inflating Korea's legitimate level of domestic
support), contrary to the Panel's conclusion that pursuant to Annex 3 a 1986-
1988 FERP should have been employed.
62In  Australia – Measures Affecting the Importation of Salmon  we stated that where we have reversed
a finding of a panel, we should attempt to complete a panel's legal analysis "to the extent possible on the basis ofthe factual findings of the Panel and/or of undisputed facts in the Panel record".  Appellate Body Report,WT/DS18/AB/R, adopted 6 November 1998, para. 118.  See also, Appellate Body Report, Canada – Certain
Measures Affecting the Automotive Industry , WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000,
para. 133.WT/DS161/AB/R
WT/DS169/AB/R
Page 38
128. We should, however, stress that, as there is insufficient information in the Panel record to
allow determination of whether Current AMS for beef exceeded the  de minimis   threshold in 1997
and 1998, and, therefore, had to be included in Current Total AMS, we reach no conclusion as towhether or not Korea acted inconsistently with Articles 6 and 7.2(a) of the  Agreement on Agriculture .
129. Furthermore, as a determination of Current Total AMS cannot be made without first
ascertaining Current AMS for beef, no Current Total AMS can be calculated for 1997 and 1998.  As aresult, there is no basis on which we can reach a conclusion on the issue of whether or not Koreaexceeded its commitment levels in Part IV of its Schedule for 1997 and 1998, contrary to Article 3.2of the  Agreement on Agriculture .
VI. Dual Retail System
A. Article III:4 of the GATT 1994
130. The Panel found that Korea's dual retail system for beef accords treatment less favourable to
imported beef
  than to like Korean beef, and is, thus, inconsistent with Article III:4 of the GATT 1994.
This finding was based on the Panel's view that any measure based exclusively on criteria relating tothe origin of a product is inconsistent with Article III:4.
 63  The finding was also based on the Panel's
assessment of how the dual retail system modifies  the conditions of competition between imported
and like domestic beef in the Korean market.  64
131. Korea argues on appeal that the dual retail system does not accord treatment less favourable to
imported beef than to like domestic beef.  For Korea, the dual retail system does not  on its face  
violate Article III:4, since there is "perfect regulatory symmetry" in the separation of imported anddomestic beef at the retail level, and there is "no regulatory barrier" which prevents traders fromconverting from one type of retail store to another.
 65  Nor, Korea argues, does the dual retail system
violate Article III:4  de facto , and the Panel's conclusion to the contrary was not based on a proper
empirical analysis of the Korean beef market.  66
                                                     
63Panel Report, para. 627.
64Ibid., paras. 631-637.
65Korea's appellant's submission, paras. 119-126.
66Ibid., paras. 127-156.WT/DS161/AB/R
WT/DS169/AB/R
Page 39
132. Article III:4 of the GATT 1994 reads in relevant part:
The products of the territory of any Member imported into the
territory of any other Member shall be accorded  treatment no less
favourable  than that accorded to like products of national origin in
respect of all laws, regulations and requirements affecting their
internal sale, offering for sale, purchase, transportation, distribution or
use. (emphasis added)
133. For a violation of Article III:4 to be established, three elements must be satisfied:  that the
imported and domestic products at issue are "like products";  that the measure at issue is a "law,regulation, or requirement affecting their internal sale, offering for sale, purchase, transportation,distribution, or use";  and that the imported products are accorded "less favourable" treatment than
that accorded to like domestic products.  Only the last element – "less favourable" treatment – is
disputed by the parties and is at issue in this appeal.
134. The Panel began its analysis of the phrase "treatment no less favourable" by reviewing past
GATT and WTO cases.  It found that "treatment no less favourable" under Article III:4 requires that aMember accord to imported products "effective equality of opportunities" with like domestic productsin respect of the application of laws, regulations and requirements.
 67  The Panel concluded its review
of the case law by stating:
Any regulatory distinction that is based exclusively on criteria relating
to the nationality or the origin of the products is incompatible withArticle III and this conclusion can be reached even in the absence of
any imports (as hypothetical imports can be used to reach this
conclusion) confirming that there is no need to demonstrate the actual
and specific trade effects of a measure for it to be found in violation
of Article III.  The object of Article III:4 is, thus, to guaranteeeffective market access to imported products and to ensure that the
latter are offered the same market opportunities as domestic
products.
 68
135. The Panel stated that "any regulatory distinction that is based exclusively on criteria relating
to the nationality or origin" of products is incompatible with Article III:4.  We observe, however, that
                                                     
67Panel Report, para. 624.
68Ibid., para. 627. (footnotes omitted)WT/DS161/AB/R
WT/DS169/AB/R
Page 40
Article III:4 requires only that a measure accord treatment to imported products that is "no less
favourable" than that accorded to like domestic products.  A measure that provides treatment toimported products that is  different   from that accorded to like domestic products is not necessarily
inconsistent with Article III:4, as long as the treatment provided by the measure is "no less
favourable".  According "treatment no less favourab le" means, as we have previously said, according
conditions of competition  no less favourable to the imported product than to the like domestic
product.  In  Japan – Taxes on Alcoholic Beverages ,  we described the legal standard in Article III as
follows:
The broad and fundamental purpos e of Article III is to avoid
protectionism in the application of internal tax and regulatory measures.
More specifically, the purpose of Article III "is to ensure that internalmeasures 'not be applied to imported or domestic products so as to
afford protection to domestic production'".  Toward this end, Article III
obliges Members of the WTO to provide  equality of competitive
conditions   for imported products in relation to domestic products.
"[T]he intention of the drafters of the Agreement was clearly to treat the
imported products in the same way as the like domestic products oncethey had been cleared through custom s.  Otherwise indirect protection
could be given".
 69 (emphasis added)
136. This interpretation, which focuses on the  conditions of competition   between imported and
domestic like products, implies that a measure according formally  different   treatment to imported
products does not  per se ,  that is, necessarily, violate Article III:4.  In  United States – Section 337 , 
this point was persuasively made.  In that case, the panel had to determine whether United States
patent enforcement procedures, which were formally different for imported and for domestic
products, violated Article III:4.  That panel said:
                                                     
69Appellate Body Report, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted
1 November 1996 , pp. 16-17.  The original passage contains footnotes.  The second sentence is footnoted to
United States - Section 337 of the Tariff Act of 1930  ("United States – Section 337 "), BISD 36S/345, para. 5.10.
The third sentence is footnoted to United States – Taxes on Petroleum and Certain Imported Substances ,
BISD 34S/136, para. 5.1.9;  and  Japan – Customs Duties, Taxes and Labe lling Practices on Imported Wines and
Alcoholic Beverages , BISD 34S/83, para. 5.5(b).  The fifth sentence is footnoted to Italian Discrimination Against
Imported Agricultural Machinery , BISD 7S/60, para. 11.WT/DS161/AB/R
WT/DS169/AB/R
Page 41
On the one hand, contracting parties may apply to imported products
different  formal legal requirements if doing so would accord
imported products more favourable treatment.  On the other hand, it
also has to be recognised that there may be cases where the
application of formally  identical  legal provisions would in practice
accord less favourable treatment to imported products and a
contracting party might thus have to apply different legal provisions
to imported products to ensure that the treatment accorded them is in
fact no less favourable.  For these reasons, the mere fact that imported
products are subject under Section 337 to legal provisions that are
different from those applying to products of national origin is in itself
not conclusive in establishing inconsistency with Article III:4.  70
(emphasis added)
137. A formal difference in treatment between imported and like domestic products is thus neither
necessary, nor sufficient, to show a violation of Article III:4.  Whether or not imported products aretreated "less favourably" than like domestic products should be assessed instead by examiningwhether a measure modifies the conditions of competition   in the relevant market to the detriment of
imported products.
138. We conclude that the Panel erred in its general interpretation that "[a]ny regulatory distinction
that is based exclusively on criteria relating to the nationality or the origin of the products is
incompatible with Article III."
 71
139. The Panel went on, however, to examine the conditions of competition between imported and
like domestic beef in the Korean market.  The Panel gave several reasons why it believed that the dualretail system alters the conditions of competition in the Korean market in favour of domestic beef.First, it found that the dual retail system would "limit the possibility for consumers to compareimported and domestic products", and thereby "reduce opportunities for imported products to competedirectly with domestic products".
 72  Second, the Panel found that, under the dual retail system, "the
only way an imported product can get on the shelves is if the retailer agrees to substitute it, not onlyfor one but for all existing like domestic products."  This disadvantage would be more serious when
the market share of imports (as is the case with imported beef) is small.
 73  Third, the Panel found that
the dual retail system, by excluding imported beef from "the vast majority of sales outlets", limits thepotential market opportunities for imported beef.  This would apply particularly to products
                                                     
70United States – Section 337 , supra , footnote 69, paragraph 5.11.
71Panel Report, para. 627.
72Ibid., para. 631.
73Ibid., para. 632.WT/DS161/AB/R
WT/DS169/AB/R
Page 42
"consumed on a daily basis", like beef, where consumers may not be willing to "shop around".  74
Fourth, the Panel found that the dual retail system imposes more costs on the imported product, since
the domestic product will tend to continue to be sold from existing retail stores, whereas importedbeef will require new stores to be established.
 75  Fifth, the Panel found that the dual retail system
"encourages the perception that imported and domestic beef are different, when they are in fact like
products belonging to the same market", which gives a competitive advantage to domestic beef,"based on criteria not related to the products themselves".
 76  Sixth, the Panel found that the dual retail
system "facilitates the maintenance of a price differential" to the advantage of domestic beef.  77
140. On appeal, Korea argues that the Panel's analysis of the conditions of competition in the
Korean market is seriously flawed, relying largely on speculation rather than on factual analysis.Korea maintains that the dual retail system does not deny consumers the possibility to makecomparisons, and the numbers of outlets selling imported beef, as compared with outlets sellingdomestic beef, does not support the Panel's findings.  Korea argues, furthermore, that the dual retail
system neither adds to the costs of, nor shelters high prices for, domestic beef.
 78
141. It will be seen below that we share the ultimate conclusion of the Panel in respect of the
consistency of the dual retail system for beef with  Article III:4 of the GATT 1994.  Portions, however,
of the Panel's analysis  en route   to that conclusion appear to us problematic.  For instance, while
limitation of the ability to compare visually two pr oducts, local and imported, at the point of sale may
have resulted from the dual retail system, such limitation does not, in our view, necessarily reduce theopportunity for the imported product to compete "dir ectly" or on "an equal footing" with the domestic
product.
 79  Again, even if we were to accept that the dual retail system "encourages" the perception of
consumers that imported and domestic beef are "different", we do not think it has been demonstrated
that such encouragement necessarily implie s a competitive advantage for domestic beef.  80
Circumstances like limitation of "side-by-side" comparison and "encouragement" of consumer
perceptions of "differences" may be simply incidental effects of the dual retail system withoutdecisive implications for the issue of consistency with Article III:4.
                                                     
74Panel Report, para. 633.
75Ibid., para. 634.
76Ibid.
77Ibid.
78Korea's appellant's submission, paras. 101, 127-156.
79See Panel Report, para. 633.
80Ibid., para. 634.WT/DS161/AB/R
WT/DS169/AB/R
Page 43
142. We believe that a more direct, and perhaps simpler, approach to the dual retail system of
Korea may be usefully followed in the present case.  In the following paragraphs, we seek to focus onwhat appears to us to be the fundamental thrust and effect of the measure itself.
143. Korean law in effect requires the existence of two distinct retail distribution systems so far as
beef is concerned:  one system for the retail sale of domestic beef and another system for the retail
sale of imported beef.
 81  A small retailer (that is, a non-supermarket or non-department store) which is
a "Specialized Imported Beef Store" may sell any meat  except domestic beef ;  any other small retailer
may sell any meat  except imported beef . 82  A large retailer (that is, a supermarket or department
store) may sell both imported and domestic beef, as long as the imported beef and domestic beef aresold in separate sales areas.
 83  A retailer selling imported beef is required to display a sign reading
"Specialized Imported Beef Store".  84
144. Thus, the Korean measure formally separates the selling of imported beef and domestic beef.
However, that formal separation,  in and of itself ,  does not necessarily compel the conclusion that the
treatment thus accorded to imported beef is less fa vourable than the treatment accorded to domestic
beef.   85  To determine whether the treatment given to imported beef is less favourable than that given
to domestic beef, we must, as earlier indicated, inquire into whether or not the Korean dual retailsystem for beef modifies the  conditions of competition   in the Korean beef market to the disadvantage
of the imported product.
145. When beef was first imported into Korea in 1988, the new product simply entered into the
pre-existing distribution system that had been handling domestic beef.  The beef retail system was aunitary one, and the conditions of competition affecting the sale of beef were the same for both thedomestic and the imported product.  In 1990, Korea promulgated its dual retail system for beef.
 86
                                                     
81The essential features of the Korean dual retail system for beef are found in the Guidelines
Concerning Registration and Operation of Specialized Imported Beef Stores,  (61550-81) 29 January 1990,
modified on 15 March 1994;  and the Regulations Concerning Sales of Imported Beef, (51550-100), modified on
27 March 1993, 7 April 1994, and 29 June 1998.  On 1 Oc tober 1999, these two instruments were replaced by
the Management Guideline for Imported Beef , (Ministry of Agriculture Notice 1999-67), which maintained,
however, the basic principles of the dual retail system.
82Guidelines Concerning Registration and Operation of Specialized Imported Beef Stores   Art. 5(C);
Regulations Concerning Sales of Imported Beef,   Art. 14(5);  Management Guideline for Imported Beef , Art. 15.
83Guidelines Concerning Registration and Operation of Specialized Imported Beef Stores,  Art. 3(A);
Management Guideline for Imported Beef , Art. 9(5).
84Guidelines Concerning Registration and Operation of Specialized Imported Beef Stores,  Art. 5(A);
Regulations Concerning Sales of Imported Beef,  Art. 14(5);  Management Guideline for Imported Beef ,
Art. 9(6).
85Apart from the display sign requirement, dealt with in para. 151.
86See Panel Report, para. 630.WT/DS161/AB/R
WT/DS169/AB/R
Page 44
Accordingly, the existing small retailers had to choose between, on the one hand, continuing to sell
domestic beef and renouncing the sale of imported beef or, on the other hand, ceasing to sell domesticbeef in order to be allowed to sell the imported product.  Apparently, the vast majority of the smallmeat retailers chose the first option.
 87  The result was the virtual exclusion of imported beef from the
retail distribution channels through which domestic beef (and until then, imported beef, too) was
distributed to Korean households and other consumers throughout the country.  Accordingly, a newand separate retail system had to be established and gradually built from the ground up for bringingthe imported product to the same households and other consumers if the imported product was tocompete at all with the domestic product.  Put in slig htly different terms, the putting into legal effect
of the dual retail system for beef meant, in direct practical effect, so far as imported beef wasconcerned, the sudden cutting off of access to the normal, that is, the previously existing, distributionoutlets through which the domestic product continued to flow to consumers in the urban centers andcountryside that make up the Korean national territory.  The central consequence of the dual retail
system can only be reasonably construed, in our view, as the imposition of a drastic reduction of
commercial opportunity to reach, and hence to generate sales to, the same consumers served by thetraditional retail channels for domestic beef.  In 1998, when this case began, eight years after the dualretail system was first prescribed, the consequent reduction of commercial opportunity was reflectedin the much smaller number of specialized imported beef shops (approximately 5,000 shops) ascompared with the number of retailers (approximately 45,000 shops) selling domestic beef.
  88
146. We are aware that the dramatic reduction in number of retail outlets for imported beef
followed from the decisions of individual retailer s who could choose freely to sell the domestic
product or the imported product.  The legal necessity of making a choice was, however, imposed by
the measure itself.  The restricted nature of that choice should be noted.  The choice given to the meat
retailers was  not  an option between remaining with the pre-existing unified distribution set-up or
going to a dual retail system.  The choice was limited to selling domestic beef only or imported beefonly.  Thus, the reduction of access to normal retail channels is, in legal contemplation, the effect ofthat measure.  In these circumstances, the intervention of some element of private choice does notrelieve Korea of responsibility under the GATT 1994 for the resulting establishment of competitiveconditions less favourable for the imported product than for the domestic product.
                                                     
87Panel Report, para. 633.
88The number of imported beef shops is noted by the Panel in footnote 347 of the Panel Report;  the
number of domestic beef shops has been provided by the United States in para. 175 of the Panel Report, and hasnot been contested by Korea.WT/DS161/AB/R
WT/DS169/AB/R
Page 45
147. We also note that the reduction of competitive opportunity through the restriction of access to
consumers results from the imposition of the dual retail system for beef, notwithstanding the "perfectregulatory symmetry" of that system
89, and is not a function of the limited volume of foreign beef
actually imported into Korea.  The fact that the WTO-consistent quota for beef has, save for two
years, been fully utilized does not detract from the lack of equality of competitive conditions entailed
by the dual retail system.
148. We believe, and so hold, that the treatment accorded to imported beef, as a consequence of the
dual retail system established for beef by Korean law and regulation, is less favourable than thetreatment given to like domestic beef and is, accordingly, not consistent with the requirements ofArticle III:4 of the GATT 1994.
149. It may finally be useful to indicate, however broadly, what we are  not  saying in reaching our
above conclusion.  We are  not  holding that a dual or parallel distribution system that is  not  imposed
directly or indirectly by law or governmental regulation, but is rather solely the result of private
entrepreneurs acting on their own calculations of comparative costs and benefits of differentiated
distribution systems, is unlawful under Article III:4 of the GATT 1994.  What is addressed by
Article III:4 is merely the  governmental   intervention that affects the conditions under which like
goods, domestic and imported, compete in the market within a Member's territory.
150. Finally, we note that Korea requires that imported beef be sold in a store displaying a sign
declaring "Specialized Imported Beef Store".  The Panel found that the sign requirement was"essentially ancillary to the dual retail system", and, since the dual retail system was inconsistent withArticle III:4, the Panel found that the sign requirement was as well.
 90  The Panel found also that, since
the sign requirement went beyond an obligation to in dicate origin, it was inconsistent with statements
contained in a 1956 GATT Working Party Report.  91  On appeal, Korea claims that the Panel used
"erroneous logic" in its conclusion based on the ancillary character of the sign requirement, and thatthe statement in the Working Party Report did not apply to the sign requirement.
 92
151. Without a system of specialized imported beef stores, the sign requirement would have no
meaning and would not be required.  When considered independently from a dual retail system, a sign
                                                     
89The notion of "perfect regulatory symmetry" is set out in Korea's appellant's submission, para. 95.
See also  supra , para. 17.
90Panel Report, para. 641.
91Working Party Report, Certificates of Origin, Marks of Origin, Consular Formalities , adopted
17 November 1956, BISD 5S/102, para. 13.
92Korea's appellant's submission, paras. 206-213.WT/DS161/AB/R
WT/DS169/AB/R
Page 46
requirement might or might not be characterized legally as consistent with Article III:4 of the
GATT 1994.  On the other hand, when considered simply as a detail of the dual retail system, the signrequirement partakes of the legal characterization given to that system itself.  We believe itunnecessary to pass upon separately the consistency of  the display sign requirement with Article III:4
of the GATT 1994.
B. Article XX(d)  of the GATT 1994
152. The Panel went on to conclude that the dual retail system, which it found to be inconsistent
with Article III:4, could  not  be justified pursuant to Article XX(d) of the GATT 1994.  The Panel
found that the dual retail system is a disproportionate measure not necessary to secure compliancewith the Korean law against deceptive practices.
 93
153. The Panel began its examination of Korea's dua l retail system under Arti cle XX(d) by finding
that the dual retail system was designed to "secure compliance" with the  Unfair Competition Act , a
law consistent on its face with WTO provisions.  94  The Panel then focused on whether the dual retail
system is "necessary" to secure compliance with that law.  It examined enforcement measures taken
by Korea for related products where fraudulent misrepresentation or passing of one product foranother has occurred, and found that in these areas a dual retail system was not used.  Instead, inrespect of such product areas, Korea uses traditional enforcement measures, consistent with WTOrules, which include record-keeping, investigations, policing and fines.  The Panel next inquired intowhether these alternative, WTO-consistent measures were "reasonably available" to Korea to meetKorea's desired level of enforcement of laws against fraudulent misrepresentation in the retail beefsector.  The Panel concluded that these measures are "reasonably available" alternative measures, andthat Korea therefore cannot justify the dual  retail system as "necessary" under Article XX(d).
 95
154. Korea appeals the Panel's conclusion.  Korea argues that the Panel incorrectly interpreted the
term "necessary" in Article XX(d) as requiring  consistency  among enforcement measures taken in
related product areas.  96  Further, according to Korea, the Pa nel neglected to take into account the
level of enforcement  that Korea sought with respect to preventing the fraudulent sale of imported
beef.  97
                                                     
93Panel Report, para. 675.
94Ibid., para. 658.
95Ibid., paras. 660-674.
96Korea's appellant's submission, paras. 166-180.
97Ibid., paras. 181-193.WT/DS161/AB/R
WT/DS169/AB/R
Page 47
155. Article XX(d), together with the introductory clause of Article XX, reads as follows:
Article XX
General Exceptions
Subject to the requirement that such measures are not applied in a
manner which would constitute a means of arbitrary or unjustifiable
discrimination between countries where the same conditions prevail,or a disguised restriction on international trade, nothing in this
Agreement shall be construed to prevent the adoption or enforcement
by any Member of measures:
…
(d) necessary to secure compliance with laws or regulations
which are not inconsistent with the provisions of this Agreement,
including those relating to customs enforcement, the enforcement of
monopolies operated under paragraph 4 of Article II and Article XVII,
the protection of patents, trade marks and copyrights, and theprevention of deceptive practices;
156. We note that in examining the Korean dual retail system under Article XX, the Panel
followed the appropriate sequence of steps outlined in  United States – Standards for Reformulated
and Conventional Gasoline  ("United States – Gasoline ").  There we said:
In order that the justifying protec tion of Article XX may be extended to
it, the measure at issue must not onl y come under one or another of the
particular exceptions -- paragraphs (a) to (j) -- listed under Article XX;
it must also satisfy the requirements imposed by the opening clauses of
Article XX.  The analysis is, in other words, two-tiered:  first,
provisional justification by reason of characterization of the measure
under  XX(g);  second, further appraisal of the same measure under the
introductory clauses of Article XX .
 98 (emphasis added)
The Panel concentrated its analysis on paragraph (d), that is, the first-tier analysis.  Having found that
the dual retail system did not fulfill the requirements of paragraph (d), the Panel correctly consideredthat it did not need to proceed to the second-tier analysis, that is, to examine the application in thiscase of the requirements of the introductory clause of Article XX.
157. For a measure, otherwise inconsistent with GATT 1994, to be justified provisionally under
paragraph (d) of Article XX, two elements must be shown.  First, the measure must be one designed
to "secure compliance" with laws or regulations that are not themselves inconsistent with some
                                                     
98Appellate Body Report, WT/DS2/AB/R, adopted 20 May 1996, p. 22.  See also, Appellate Body
Report,  United States – Import Prohibition of Certain Shrimp and Shrimp Products ("United States – Shrimp "),
WT/DS58/AB/R, adopted 6 November 1998, paras. 119-121.WT/DS161/AB/R
WT/DS169/AB/R
Page 48
provision of the GATT 1994.  Second, the measure must be "necessary" to secure such compliance.
A Member who invokes Article XX(d) as a justification has the burden of demonstrating that thesetwo requirements are met.
 99
158. The Panel examined these two aspects one after the other.  The Panel found, "despite …
troublesome aspects, … that the dual retail system was put in place, at least in part, in order to secure
compliance with the Korean legislation against deceptive practices to the extent that it serves toprevent acts inconsistent with the  Unfair Competition Act ."
 100  It recognized that the system was
established at a time when acts of misrepresentation of origin were widespread in the beef sector.  Italso acknowledged that the dual retail system "does appear to reduce the opportunities and thus thetemptations for butchers to misrepresent [less expensive] foreign beef for [more expensive] domesticbeef
 ". 101  The parties did not appeal these findings of the Panel.
159. We turn, therefore, to the question of whether the dual retail system is "necessary" to secure
compliance with the  Unfair Competition Act .  Once again, we look first to the ordinary meaning of
the word "necessary", in its context and in the light of the object and purpose of Article XX, in
accordance with Article 31(1) of the  Vienna Convention.
160. The word "necessary" normally denotes something "that cannot be dispensed with or done
without, requisite, essential, needful".  102  We note, however, that a standard law dictionary cautions
that:
[t]his word must be considered in the connection in which it is used,
as it is a word susceptible of various meanings.  It may import
absolute physical necessity or inevitability, or it may import that
which is only convenient, useful, appropriate, suitable, proper, or
conducive to the end sought.  It is an adjective expressing degrees,and may express mere convenience or that which is indispensable or
an absolute physical necessity".
 103
                                                     
99Appellate Body Report, United States – Gasoline , supra , footnote 98,  pp. 22-23;   Appellate Body
Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India ,
WT/DS33/AB/R, adopted 23 May 1997,  pp. 14-16;  Panel report, United States – Section 337 , supra ,
footnote 69, para. 5.27.
100Panel Report, para. 658.
101Ibid.
102The New Shorter Oxford English Dictionary , (Clarendon Press, 1993) , Vol. II, p. 1895.
103Black’s Law Dictionary , (West Publishing, 1995) ,  p. 1029 .WT/DS161/AB/R
WT/DS169/AB/R
Page 49
161. We believe that, as used in the context of Article XX(d), the reach of the word "necessary" is
not limited to that which is "indispensable" or "of absolute necessity" or "inevitable".  Measureswhich are indispensable or of absolute necessity or inevitable to secure compliance certainly fulfil the
requirements of Article XX(d).  But other measures, too, may fall within the ambit of this exception.
As used in Article XX(d), the term "necessary" refers, in our view, to a range of degrees of necessity.
At one end of this continuum lies "necessary" understood as "indispensable";  at the other end, is"necessary" taken to mean as "making a contribution to."  We consider that a "necessary" measure is,in this continuum, located significantly closer to the pole of "indispensable" than to the opposite poleof simply "making a contribution to".
 104
162. In appraising the "necessity" of a measure in these terms, it is useful to bear in mind the
context in which "necessary" is found in Article XX(d).  The measure at stake has to be "necessary toensure compliance with laws and regulations … ,  including   those relating to customs enforcement,
the enforcement of [lawful] monopolies … , the protection of patents, trade marks and copyrights, and
the prevention of deceptive practices". (emphasis added)  Clearly, Article XX(d) is susceptible of
application in respect of a wide variety of "laws and regulations" to be enforced.  It seems to us that atreaty interpreter assessing a measure claimed to be necessary to secure compliance of a WTO-consistent law or regulation may, in appropriate cases, take into account the relative importance of thecommon interests or values that the law or regulation to be enforced is intended to protect.  The more
vital or important those common interests or values are, the easier it would be to accept as "necessary"a measure designed as an enforcement instrument.
163. There are other aspects of the enforcement measure to be considered in evaluating that
measure as "necessary".  One is the extent to which the measure contributes to the realization of the
end pursued, the securing of compliance with the law or regulation at issue.  The greater the
contribution, the more easily a measure might be considered to be "necessary".  Another aspect is theextent to which the compliance measure produces restrictive effects on international commerce
 105,
that is, in respect of a measure inconsistent with Article III:4, restrictive effects  on imported goods .
                                                     
104We recall that we have twice interpreted Article XX(g), which requires a measure " relating  to the
conservation of exhaustible natural resources". (emphasis added).  This requirement is more flexible textually
than the "necessity" requirement found in Article XX(d).  We note that, under the more flexible " relating to "
standard of Article XX(g), we accepted in  United States – Gasoline  a measure because it presented a
"substantial  relationship", (emphasis added)  i.e., a close and genuine  relationship of ends and means, with the
conservation of clean air.  Supra , footnote 98, p.19.  In  United States – Shrimp  we accepted a measure because
it was " reasonably related " to the protection and conservation of sea turtles.  Supra , footnote 98, at para. 141.
105We recall that the last paragraph of the Preamble of the GATT of 1994 reads as follows:  "Being
desirous of contributing to these objectives by entering into reciprocal and mutually advantageous arrangements
directed to the substantial reduction of tariffs and other barriers to trade  and to the elimination of discriminatory
treatment in international commerce ". (emphasis added)WT/DS161/AB/R
WT/DS169/AB/R
Page 50
A measure with a relatively slight impact upon imported products might more easily be considered as
"necessary" than a measure with intense or broader restrictive effects.
164. In sum, determination of whether a measure, which is not "indispensable", may nevertheless
be "necessary" within the contemplation of Article XX(d), involves in every case a process of
weighing and balancing a series of factors which prominently include the contribution made by the
compliance measure to the enforcement of the law or regulation at issue, the importance of the
common interests or values protected by that law or regulation, and the accompanying impact of thelaw or regulation on imports or exports.
165. The panel in  United States – Section 337   described the applicable standard for evaluating
whether a measure is "necessary" under Article XX(d) in the following terms:
It was clear to the Panel that a contracting party cannot justify a
measure inconsistent with another GATT provision as "necessary" interms of Article XX(d) if an alternative measure which it could
reasonably be expected to employ and which is not inconsistent with
other GATT provisions is available to it.  By the same token, in cases
where a measure consistent with other GATT provisions is not
reasonably available, a contracting party is bound to use, among themeasures reasonably available to it, that which entails the least degree
of inconsistency with other GATT provisions.
 106
166. The standard described by the panel in  United States – Section 337   encapsulates the general
considerations we have adverted to above.  In our view, the weighing and balancing process we have
outlined is comprehended in the determination of whether a WTO-consistent alternative measure
which the Member concerned could "reasonably be e xpected to employ" is available, or whether a
less WTO-inconsistent measure is "reasonably available".
167. The Panel followed the standard identified by the panel in  United States – Section 337.   I t
started scrutinizing whether the dual retail system is "necessary" under paragraph (d) of Article XX bystating:
Korea has to convince the Panel that, contrary to what was alleged by
Australia and the United States, no alternative measure consistentwith the WTO Agreement is reasonably available at present in order
to deal with misrepresentation in the retail market as to the origin of
beef.
 107
                                                     
106Panel report, United States – Section 337 , supra , footnote 69, para. 5.26.
107Panel Report, para. 659.WT/DS161/AB/R
WT/DS169/AB/R
Page 51
168. The Panel first considered a range of possible alternative measures, by examining measures
taken by Korea with respect to situations invo lving, or which could involve, deceptive practices
similar to those which in 1989-1990 had affected the retail sale of foreign beef.  The Panel found thatKorea does not require a dual retail system in  related product areas ,  but relies instead on traditional
enforcement procedures.  There is no requirement, for example, for a dual retail system separating
domestic Hanwoo beef from domestic dairy cattle beef.
 108  Nor is there a requirement for a dual retail
system for any other meat or food product, such as pork or seafood.  109  Finally, there is no
requirement for a system of separate restaurants, depending on whether they serve domestic orimported beef, even though approximately 45 per cent of the beef imported into Korea is sold inrestaurants.
 110  Yet, in all of these cases, the Panel found that there were numerous cases of fraudulent
misrepresentation.  111  For the Panel, these examples indicated that misrepresentation of origin could,
in principle, be dealt with "on the basis of basic methods … such as normal policing under the KoreanUnfair Competition Act ."
 112
169. Korea argues, on appeal, that the Panel, by drawing conclusions from the absence of any
requirement for a dual retail system in related product areas, introduces an illegitimate "consistencytest" into Article XX(d).  For Korea, the proper test for "necessary" under Article XX(d):
… is to see whether another means exists which is less restrictive than
the one used and which can reach the objective sought.  Whether such
means will be applied  consistently  to other products or not is not a
matter of concern for the necessity requirement under
Article XX(d).
 113
170. Examining enforcement measures applicable to th e same illegal behaviour relating to like, or
at least similar, products does not necessarily imply the introduction of a "consistency" requirementinto the "necessary" concept of Article XX(d).  Examining such enforcement measures may provide
useful input in the course of determining whether an alternative measure which could "reasonably beexpected" to be utilized, is available or not.
                                                     
108In 1998, domestic dairy cattle beef amounted to 12 percent of total beef  consumption in Korea.
Panel Report, para. 661.
109Ibid., para. 662.
110Ibid., para. 663.
111Ibid., paras. 661-663, including footnote 366, in which the Panel noted "that the Livestock Times
reported that the deceptive beef marke ting practice was widespread in restaurants (where price differential was
58 per cent)".
112Ibid., para. 664.
113Korea's appellant's submission, para. 167.WT/DS161/AB/R
WT/DS169/AB/R
Page 52
171. The enforcement measures that the Panel examined were measures taken to enforce the same
law, the  Unfair Competition Act . 114   This law provides for penal and other sanctions  115 against any
"unfair competitive act", which includes any:
Act misleading the public to understand the place of origin of any
goods  either by falsely marking that place on any commercial
document or communication, in said goods or any advertisement
thereof  or in any manner of misleading the general public , or by
selling, distributing, importing or exporting goods bearing such
mark;  116
  (emphasis added)
The language used in this law to define an "unfair competitive act" – "any manner of misleading the
general public" – is broad.  It applies to all the examples raised by the Panel – domestic dairy beef
sold as Hanwoo beef, foreign pork or seafood sold as domestic product, as well as to imported beef
served as domestic beef in restaurants.
172. The application by a Member of  WTO- compatible   enforcement measures to the same kind
of illegal behaviour – the passing off of one product for another – for like or at least similar products,provides a suggestive indication that an alternative measure which could "reasonably be expected" tobe employed may well be available.  The application of such measures for the control of the sameillegal behaviour for like, or at least similar, products raises doubts with respect to the objectivenecessity  of a different, much stricter, and WTO-inconsistent enforcement measure.  The Panel was,
in our opinion, entitled to consider that the "examples taken from outside as well as within the beef
sector indicate that misrepresentation of origin can indeed be dealt with on the basis of basic methods,
consistent with the  WTO Agreement , and thus less trade restrictive and less market intrusive, such as
normal policing under the Korean  Unfair Competition Act ."
 117
173. Having found that possible alternative enforcement measures, consistent with the
WTO Agreement , existed in other related product areas, the Panel went on to state that:
                                                     
114In GATT case law, comparisons have been made between enforcement measures taken in different
jurisdictions .  In the  United States – Measures Affect ing Alcoholic and Malt Beverages  case, the panel said that
"[t]he fact that  not all fifty states  maintain discriminatory distribution systems indicates to the Panel that
alternative measure for enforcement of state excise tax laws do indeed exist."  Adopted 19 June 1992,
BISD 39S/206, para. 5.43.  In the  United States – Section 337  case, the panel "did not consider that a different
scheme for imports alleged to infringe process patents is  necessary, since  many countries  grant to their civil
courts jurisdiction over imports of products manufactured abroad under processes protected by patents of theimporting country".  Supra , footnote 69, para. 5.28.
115Unfair Competition Prevention and Business Secret Protection Act , Article 2(1)(c), Article 8.
116Unfair Competition Prevention and Business Secret Protection Act , Article 2(1)(c) (from translation
provided by Korea as Exhibit 28 of its second submission to the Panel.
117Panel Report, para. 664.WT/DS161/AB/R
WT/DS169/AB/R
Page 53
… it is for Korea to demonstrate that such an alternative measure is
not  reasonably available  or is unreasonably burdensome, financially
or technically, taking into account a variety of factors including the
domestic costs of such alternative measure, to ensure that consumers
are not misled as to the origin of beef.  118
174. The Panel proceeded to examine whether the alternative measures or "basic methods" –
investigations, prosecutions, fines, and record-keeping – which were used in related product areas,were "reasonably available" to Korea to secure compliance with the  Unfair Competition Act.   Th e
Panel concluded "that Korea has not demonstrated to the satisfaction of the Panel that alternativemeasures consistent with the WTO Agreement were not reasonably available".
 119 Thus, as noted at
the outset, the Panel found that the dual retail system was "a disproportionate measure not necessaryto secure compliance with the Korean law against deceptive practices".
 120  The dual retail system was,
therefore, not justified under Article XX(d).  121
175. Korea also argues on appeal that the Panel erred in applying Article XX(d) because it did not
"pay due attention to the level of enforcement sought."  122  For Korea, under Article XX(d), a panel
must:
… examine whether a means reasonably available to the WTO
Member could have been used in order to reach the objective sought
without putting into question the level of enforcement sought.  123
For Korea, alternative measures must not only be reasonably available, but must also  guarantee   the
level of enforcement sought which, in the case of the dual retail system, is the  elimination   of fraud in
the beef retail market.  124  With respect to investigations, Korea argues that this tool can only reveal
fraud  ex post , whereas the dual retail system can combat fraudulent practices  ex ante.  125  K o r e a
contends that  ex post   investigations do not  guarantee   the level of enforcement that Korea has
chosen, and therefore should not be considered.  With respect to policing, Korea believes that thisoption is not "reasonably available", because Korea lacks the resources to police thousands of shopson a round-the-clock basis.
                                                     
118Panel Report, para. 665.
119Ibid., para. 674.
120Ibid., para 675.
121Ibid.
122Korea's appellant's submission, para. 182.
123Ibid., para. 181.
124Ibid., paras. 181, 185.
125Ibid., para. 192.WT/DS161/AB/R
WT/DS169/AB/R
Page 54
176. It is not open to doubt that Members of the WTO have the right to determine for themselves
the level of enforcement of their WTO-consistent laws and regulations.  We note that this has alsobeen recognized by the panel in  United States – Section 337 , where it said:  "The Panel wished to
make it clear that this [the obligation to choo se a reasonably available GATT-consistent or less
inconsistent measure] does not mean that a contracting party could be asked to change its substantive
patent law or its desired  level of enforcement   of that law …. ". (emphasis added)  The panel added,
however, the caveat that "provided that such law and such  level of enforcement   are the same for
imported and domestically-produced products".
 126
177. We recognize that, in establishing the dual retail system, Korea could well have intended to
secure a higher level of enforcement of the prohibition, provided by the  Unfair Competition Act ,  of
acts misleading the public  about the origin of beef  (domestic or imported)  sold by retailers , than the
level of enforcement of the same prohibition of the  Unfair Competition Act   with respect to  beef
served in restaurants , or the sale by  retailers of other meat or food products , such as  pork or
seafood .
178. We think it unlikely that Korea intended to establish a level of protection that  totally
eliminates  fraud with respect to the origin of beef (domestic or foreign) sold by retailers.  The total
elimination of fraud would probably require a total ban of imports.  Consequently, we assume that ineffect Korea intended to  reduce considerably   the number of cases of fraud occurring with respect to
the origin of beef sold by retailers.  The Panel did find that the dual retail system "does appear toreduce the opportunities and thus the temptations for butchers to misrepresent foreign beef fordomestic beef
 ". 127  And we accept Korea's argument that the dual retail system  facilitates   control
and permits combatting fraudulent practices  ex ante .  Nevertheless, it must be noted that the dual
retail system is only an  instrument   to achieve a significant reduction of violations of the  Unfair
Competition Act .  Therefore, the question remains whether other, conventional and WTO-consistent
instruments can not reasonably be expected to be employed to achieve the same result.
179. Turning to investigations, the Panel found that Korea, in the past, had been able to distinguish
imported beef from domestic beef, and had, in fact, published figures on the amount of imported beeffraudulently sold as domestic beef.  This meant that Korea was able, in fact, to detect fraud.
 128  On
fines, the Panel found that these could be an effective deterrent, as long as they outweighed the
                                                     
126Panel report, United States – Section 337 , supra , footnote 69, para. 5.26.
127Panel Report, para. 658.
128Ibid., para. 668.WT/DS161/AB/R
WT/DS169/AB/R
Page 55
potential profits from fraud.  129  On record-keeping, the Panel felt that if beef traders at all levels were
required to keep records of their transactions, th en effective investigations could be carried out.  130
Finally, on policing, the Panel noted that Korea had not demonstrated that the costs would be too
high.  131  For all these reasons, the Panel considered "that Korea has not demonstrated to the
satisfaction of the Panel that alternative measures consistent with the WTO Agreement were not
reasonably available".  132 Thus, as already noted, the Panel found that the dual retail system was "a
disproportionate measure not necessary to secure compliance with the Korean law against deceptivepractices".
 133
180. We share the Panel's conclusion.  We are not persuaded that Korea could not achieve its
desired level of enforcement of the  Unfair Competition Act  with respect to the origin of beef sold by
retailers by using conventional WTO-consistent enforcement measures, if Korea would devote moreresources to its enforcement efforts on the beef sector.  It might also be added that Korea's argumentabout the lack of resources to police thousands of shops on a round-the-clock basis is, in the end, not
sufficiently persuasive.  Violations of laws and regulations like the Korean  Unfair Competition Act 
can be expected to be routinely investigated and detected through selective, but well-targeted, controlsof potential wrongdoers.  The control of records will assist in selecting the shops to which the policecould pay particular attention.
181. There is still another aspect that should be noted relating to both the method actually chosen
by Korea – its dual retail system for beef – and alternative traditional enforcement measures.Securing through conventional, WTO-consistent measures a higher level of enforcement of theUnfair Competition Act   with respect to the retail sale of beef, could well entail higher enforcement
costs for the national budget.  It is pertinent to observe that, through its dual retail system, Korea has
in effect shifted all, or the great bulk, of these potential costs of enforcement (translated into a drastic
reduction of competitive access to consumers) to imported goods and retailers of imported goods,instead of evenly distributing such costs between the domestic and imported products.  In contrast, themore conventional, WTO-consistent measures of enforcement do not involve such onerous shifting ofenforcement costs which ordinarily are borne by the Member's public purse.
                                                     
129Panel Report, para. 669
130Ibid., para. 672.
131Ibid., para. 673.
132Ibid., para. 674.
133Ibid., para. 675.WT/DS161/AB/R
WT/DS169/AB/R
Page 56
182. For these reasons, we uphold the conclusion of the Panel that Korea has not discharged its
burden of demonstrating under Article XX(d) that alternative WTO-consistent measures were not
"reasonably available" in order to detect and suppress deceptive practices in the beef retail sector  134,
and that the dual retail system is therefore not justified by Article XX(d).  135
183. Korea further argues, on appeal, that the Panel did not make a separate finding on whether the
display sign requirement was justified by Article XX(d), and requests that, should the Appellate Bodyuphold the Panel's finding that the sign requirement was inconsistent with Article III:4, it shouldproceed to consider the issue of its justification under Article XX(d).
 136
184. We recall that Korean law requires an imported beef retailer to display a sign reading
"Specialized Imported Beef Store".  137  Since the Panel correctly regarded the sign requirement as
merely ancillary to the dual retail system, we consider that it is unnecessary to examine separatelywhether the display sign requirement can be justified under Article XX(d).
185. In sum, we uphold the Panel's conclusion that the dual retail system, which is inconsistent
with Article III:4, is not justified under Article XX(d) of the GATT 1994.
VII. Findings and Conclusions
186. For the reasons set out in this Report, the Appellate Body:
(a) upholds the Panel's conclusion that, under the Panel's terms of reference, the Panel
was required to examine, pursuant to the complaining parties' claims, the commitment
levels in Korea's Schedule and Annex 3 of the  Agreement on Agriculture;
(b) upholds the Panel's conclusion that Korea's domestic support for beef for 1997
and 1998 was not correctly calculated pursuant to Article 1(a)(ii) and Annex 3 of theAgreement on Agriculture ;
(c) reverses the Panel's finding on recalculated amounts of Korea's domestic support for
beef in 1997 and 1998, as the Panel used, for these recalculations, a methodologyinconsistent with Article 1(a)(ii) and Annex 3 of the  Agreement on Agriculture ;  and
                                                     
134Panel Report, para. 674.
135Ibid., para. 675.
136Korea's appellant's submission, paras. 217-223.
137Panel Report, paras. 642-643.WT/DS161/AB/R
WT/DS169/AB/R
Page 57
reverses, therefore, the Panel's following conclusions, based on these recalculated
amounts:  (i) that Korea's domestic support for beef in 1997 and 1998 exceeded thede minimis  level contrary to Article 6 of the  Agreement on Agriculture ;  (ii) that
Korea's failure to include Current AMS for beef in Korea's Current Total AMS was
contrary to Article 7.2(a) of that Agreement;  and (iii) that Korea's total domestic
support for 1997 and 1998 exceeded Korea's commitment levels contrary toArticle 3.2 of the Agreement on Agriculture ;
(d) is unable, in view of the insufficient factual findings made by the Panel, to complete
the legal analysis of:  (i) whether Korea's domestic support for beef exceeds thede minimis  level contrary to Article 6 of the  Agreement on Agriculture ;  (ii) whether
the failure to include Current AMS for beef in Korea's Current Total AMS wascontrary to Article 7.2(a) of that Agreement;  and (iii) whether Korea's total domesticsupport for 1997 and 1998 exceeded Korea's commitment levels contrary to
Article 3.2 of the  Agreement on Agriculture ;
(e) upholds the Panel's ultimate conclusion that Korea's dual retail system for beef is
inconsistent with Article III:4 of the GATT 1994;
(f) upholds the Panel's conclusion that Korea's dual retail system for beef is not justified
under Article XX(d) of the GATT 1994;  and
(g) finds it unnecessary to pass upon separately whether the ancillary sign requirement is
consistent with Article III:4 or justified under Article XX(d) of the GATT 1994.
187. The Appellate Body recommends that the DSB request that Korea bring its measures found in
this Report, and in the Panel Report as modified by this Report, to be inconsistent with Korea's
obligations under the GATT 1994 and the  Agreement on Agriculture   into conformity with its
obligations under those Agreements.WT/DS161/AB/R
WT/DS169/AB/R
Page 58
Signed in the original at Geneva this 2nd day of December 2000 by:
_________________________
Claus-Dieter Ehlermann
Presiding Member
_________________________ _________________________
Georges-Michel Abi-Saab Florentino P. Feliciano
Member Member