WORLD TRADE  
ORGANIZATION   WT/DS18/R  
12 June 1998 
 
(98-2258) 
 Original:   English 
   
 
 
 
AUSTRALIA - MEASURES AFFECTING IMPORTATION OF SALMON  
 
 
REPORT OF THE PANEL  
 
 
 
   
 
   The report of the Panel on Australi a - Measures Affecting Importation of Salmon - is being circulated to all 
Members, pursuant to the DSU.  The report is being circulated as an unrestricted document from 
12 June 1998 pursuant to the Procedures for the Circulation and Derestriction of WTO Documents (WT/L/160/Rev.1).  Members are reminded that in accordance with the DSU only parties to the dispute may appeal a panel report, an appeal shall be limited to issues of law covered in the panel report and legal 
interpretations developed by the panel, and that there shall be no ex parte communications with the panel 
or Appellate Body concerning matters under consideration by the panel or Appellate Body.   
 
    
Note by the Secretariat:  This Panel Report shall be adopted by the Dispute Settlement Body (DSB) within 60 days after the date  of its circulation 
unless a party to the dispute decides to appeal or the DSB decides by consensus not to adopt the report.  If the Panel Report i s appealed to the 
Appellate Body, it shall not be considered for adoption by the DSB until after the completion of the appeal.  Information on th e current status of the 
Panel Report is available from the WTO Secretariat.   
 - i - 
 
TABLE OF CONTENTS  
 
I. INTRODUCTION  ................................................................................................................ 1 
 
II. FACTUAL ASPECTS   .......................................................................................................... 2 
1. General. ................................................................................................................... .. 2 
2. Australia's current provisions relating to the importation of salmonid   product … ..................... ...…………………………………………………………..4 3. International recommendations - the OIE ................................................................. 6 
4. Australia's import risk analysis   ............................................................................... 8 
 III. CLAIMS OF THE PARTIES    ........................................................................................... 10 
1. Canada's claims   ..................................................................................................... 10 2. Australia's claims   .................................................................................................. 10 
 
IV. ARGUMENTS OF THE PARTIES    .…………………………………………………. .. 11 
1. Due Process   ... …….……………………………………………………………...11 2. Relationship between GATT 1994 and the SPS Agreement   ................................. 16 
3. The SPS Agreement   .............................................................................................. 16 
(a) Burden of proof…...…………………………………………………….. . 16 
(b) The measure at issue ................................................................................... 18 (c) The disease agents at issue .. ……...………………………………………21 (d) Article 1.1 ................................................................................................... 29 (e) Article 2.2 .. …...…………………………………………………………..29 (f) Article 2.3 .. …...…………………………………………………………..41 
(g) Article 3.1 .. ……...………………………………………………………..45 
(h) Article 3.3 .. …………...…………………………………………………..50 (i) Article 5.1 ... ……………………..………………………………………..52 (j) Articles 5.2, 5.3 and 5.4 ... ..……………………………………………….63 (k) Article 5.5 .. …..………….………………………………………………..64 
(l) Article 5.6 .. …...…………………………………………………………..81 
4. Articles XI and XX of GATT 1994...... ...…………………………………………84 5. Article XXIII of GATT 1994 ......... ……………………………………………….85 
 V. SUMMARY OF THIRD PARTY SUBMISSIONS    .......................................................... 87 
European Communities . ……….…………………………………………………………..87 
India ….………………………………………………………………………………….89 
Norway…………. ................................................................................................................ 90  
United States .……………………………………………………………………………92 
 VI. PANEL'S CONSULTATION WITH SCIENTIFIC EXPERTS  ...................................... 94 
Panel procedures with regard to scientific expertise ...... ……….………………………….94 
Questions to the experts - Co mpiled Responses... ...... ……….……………………………95 
Risk assessment procedures    …..…………… ..... ………….…………………………….96 The distribution and transmission of fish diseases .......... ..….……………………………125 OIE procedures and recommendations .. .………………….……………………………..127 
 
VII. INTERIM REVIEW   ....................................................................................................... 131 
 VIII.  FINDINGS     .............................................................................................................. …135 
A. CLAIMS OF THE PARTIES   .............................................................................. 135 B. ORGANIZATIONAL ISSUES   ........................................................................... 135 
C. GENERAL INTERPRETATIVE ISSUES   ......................................................... 137 
1. Scope of the Australian m easures in dispute   .......................................... 137 - ii - 
2. The "fundamental changes" introduced by Canada in its oral  
statement at the second substantive meeting ............................................ 142 
3. Canada's claim under Article XXIII:1(b) of GATT 1994 ........................ 143 
4. Application of GATT 1994 and the SPS Agreement ............................... 144 
5. Relationship between the SPS Agreement and GATT 1994 .................... 146 
 D. THE SPS AGREEMENT   .................................................................................... 146 
1. Burden of proof   ...................................................................................... 146 2. Sequence of claims to  be addressed   ....................................................... 147 
3. Canada's claims under Articles 5. 1 and 5.2:  Sanitary measures  
are to be based on a risk assessment   ...................................................... 149 
(a) The salmon products in dispute other than those from  
adult, wild, ocean-caught Pacific salmon……………………….150 
(b) Salmon products in dis pute from adult, wild, ocean- 
caught Pacific salmon ................................................................. 154 
(i) Arguments of the parties ................................................. 154 
(ii) The applicable definition of "risk assessment" ............... 155 (iii) Is the 1996 Final Report a risk assessment in  
accordance with Articles 5.1 and 5.2? ............................ 156 
(iv) Is the sanitary measure at issue "based on" a risk  
 assessment as required in Article 5.1? ............................ 166 
   (c) Summary………… .................. …………………………………170   4. Canada's claims under Article 5.5 ...... …………………………………..171 
(a) Determination of the appropriat e level of sanitary protection ..... 171 
(b) Arbitrary or unjustifiable distinctions in levels of sanitary   protection which result in discrimination or a disguised  
 restriction on trade ...................................................................... 172 
(i) Distinctions in levels of protection for   "different situations" ....................................................... 174 (ii) "Arbitrary or unjustifiable" differences in   levels of protection………… ........ ……………………..181 
(iii) Distinctions in leve ls of protection which  
 result in "discrimination or a disguised   restriction on international trade" ................................... 196 (iv) Summary .......... ………………………………………...198 
5. Canada's claims under Article 5.6:  Measures not more trade   restrictive than required to achieve the appropriate level of 
 protection… ........................................................................ ……………..195 
(a) an alternative measure "reasonably available taking   into account technical and economic feasibility" ....................... 200 
(b) an alternative measure wh ich "achieves [Australia's]  
 appropriate level of san itary ... protection" ................................. 200 
(c) an alternative measure which is "significantly less  
 restrictive to trade" than the sanitary measure contested ............ 205 (d) Summary ...................................................................................... 205 
6. Canada's claims under Articles 2 and 3:  "Basic Rights and   Obligations"and "Harmoni zation"…………………………………… .... 205 
 E. ARTICLE XI OF GATT 1994………………………………………… .............. 205 
 
IX. CONCLUSIONS   .............................................................................................................. 206 
ANNEX 1 - The Four Comparisons under Article 5.5 
ANNEX 2 - Transcript of the Joint Meeting with Experts 
ATTACHMENT TO ANNEX 2     WT/DS18/R 
   Page 1  
 
I. INTRODUCTION  
1.1 On  5 October 1995, Canada requested cons ultations with Australia in accordance with 
Article 4.4 of the Understanding on Rules and Pr ocedures Governing the Settlement of Disputes 
("DSU"), pursuant to Article XXIII:1 of the Ge neral Agreement on Tariffs  and Trade 1994 ("GATT 
1994") and Article 11.1 of the Agreement on the App lication of Sanitary and Phytosanitary Measures 
("SPS Agreement"), regarding the Government of  Australia's prohibition on the importation of 
untreated fresh, chilled or frozen salmon from Cana da under Quarantine Proclamation No. 86A, dated 
19 February 1975.  In the request for consultations, the Government  of Canada expressed the view 
that the application of the import prohibition in ques tion was  inconsistent with the obligations of the 
Government of Australia under GATT 1994 and th e SPS Agreement.  The provisions of these 
Agreements with which the import prohibition was inc onsistent included, but we re not limited to:  (i) 
Articles XI and XIII of GATT 1994;  and (ii) Artic les 2 and 5 of the SPS Agreement.  The import 
prohibition nullified or impaired benefits accr uing to Canada under the Marrakesh Agreement 
Establishing the World Trade Organization ("WTO Agreement").1 
1.2 Australia accepted Canada's request and consultations were held on 23 and 
24 November 1995, in Geneva, with a view to reach ing a satisfactory resolution of the matter.  These 
consultations failed to settle the dispute.  Followi ng the conclusion of the "A ustralian Salmon Import 
Risk Analysis", on 20 December 1996 the Government  of Australia announced that it would maintain 
the measure in force.2  Canada did not request  further consultations. 
1.3 On 7 March 1997, pursuant to Article  XXIII of GATT 1994, Article 11 of the 
SPS Agreement, and Articles 4 and 6 of the DSU, Ca nada requested that the Dispute Settlement Body 
("DSB") establish a panel with standard terms of refe rence.  Canada requested that the panel consider 
and find that the Australian measure was inconsistent  with (i) the SPS Agreement, and in particular 
Articles 2, 3 and 5 thereof;  (ii) GATT 1994, and in particular Articles XI and XIII thereof; and (iii) 
that the application of the Australian measures nul lified or impaired benefi ts accruing to Canada 
pursuant to the WTO Agreement. 
1.4 On 10 April 1997, the DSB established a pane l pursuant to the request of Canada, in 
accordance with Article 6 of the DSU.3  The parties agreed that the panel should have standard terms 
of reference: 
"To examine, in the light of the relevant pr ovisions of the covered agreements cited by 
Canada in document WT/DS18/2, the matter refe rred to the DSB by Canada in that document 
and to make such findings as will assist the DSB in making the recommendations or in giving 
the rulings provided for in those agreements." 
1.5 The European Communities, India, Norway and the United States reserved their right to 
participate in the Panel proceedings as third parties. 
1.6 On 28 May 1997, the Panel was constituted with the following composition:  Chairman: Mr. Michael Cartland 
 Panelists: Mr. Kari Bergholm 
   Ms. Claudia Orozco 
                                                      
1 WT/DS18/1. 
2 WT/DS18/2. 
3 WT/DS18/3/Rev.1. WT/DS18/R 
Page 2  
 
1.7 The Panel met with the parties on 9 and 10 September 1997.  It met with third parties on 
10 September 1997.  The Panel consulted scientific  and technical experts and met with them on 
4 February 1998.  The Panel held a second mee ting with the parties on 5-6 February 1998. 
1.8 On 24 November 1997, the Chairman of the Pa nel informed the DSB that the Panel would not 
be able to issue its report within six months.  Th e reasons for that delay were stated in document 
WT/DS18/4. 
1.9 The Panel issued its interim report on 26 March 1998.  At the request of Australia, an interim 
review meeting was held on 21 April 1998.  The final report was provided to the parties on 5 May 1998. 
II. FACTUAL ASPECTS  
 1. General  
Salmon  
2.1 The product subject to the dispute is fresh , chilled and frozen salmon product destined for 
human consumption that has not been subject to  heat treatment according to certain prescribed 
durations and temperatures, prior to importation into  Australia (paragraph ).  Fresh, chilled and frozen 
salmon comes within Codes 0302 to 0304 of the Ha rmonized System of tariff classification.  
Hereafter this product is referred to as "uncooked salmon" or "fresh, chilled or frozen salmon".
4  The 
family Salmonidae includes a number of species gro ups, such as salmon, trout, charr, grayling and 
whitefish.  Salmonidae is the scientific name and "salmonid" is a common name for this family. 
2.2 In Canada, there are five sources of uncooked salmon for export5: 
(i) adult, wild, ocean-caught Pacific salmon; 
(ii) adult, wild, freshwater-caught Pacific salmon; 
(iii) adult, Pacific salmon cultured in seawater on the Pacific coast; 
(iv) adult, Atlantic salmon cultured in seawater on the Pacific coast; and 
(v) adult, Atlantic salmon cultured in seawater on the Atlantic coast. 
The Canadian salmon farming industry is mainly located in the provinces of New Brunswick and 
British Columbia.   
2.3 Canadian exports of salmon have grown from 30,653 tons in 1969 to 66,234 tons in 1996.  
The proportion of fresh and frozen salmon during this  period has increased significantly: exports of 
fresh and frozen salmon were 14,683 tons in 1969 ( 48 per cent of total exports) and 50,838 tons in 
1996 (77 per cent).  
2.4 "Canadian salmon" is all salmon landed by Canadian vessels.  All such salmon is harvested in 
Canadian waters as no Canadian vessels harvest sal mon on the high seas or in foreign waters.  This 
may include salmon that have spawned in the Unit ed States and that are intercepted by Canadian 
fishermen as they pass through Canadian waters on their return migration to the United States. 
                                                      
4 The importation of live salmonids is not at issue. 
5 Only adult salmon are harvested for export.    WT/DS18/R 
   Page 3  
 
TABLE 1  
Canadian Exports of  Uncooked Salmon  
 
Sources of uncooked salmon for export: Per cent of total exports 
(Average, 1990-1997) 
 
(i) adult, wild, ocean- caught Pacific salmon 58% 
 
(ii) adult, wild, freshwat er-caught Pacific salmon 3% 
 
(iii) adult, Pacific salmon cultured in  seawater on the Pacific coast 12% 
 
(iv) adult, Atlantic salmon culture d in seawater on the Pacific coast 
 15% 
(v) adult, Atlantic salmon cultured in seawater on the Atlantic coast 
 12% 
2.5 The following are considered to be Pacific salmon  species: 
(i) pink salmon; 
(ii) chum salmon; 
(iii) coho salmon; 
(iv) sockeye salmon;  and 
(v) chinook or king salmon. 
2.6 Commercial salmon production in Australia is based on the Atlantic salmon.  Atlantic salmon 
was first imported to Australia in 1864 and last  imported live for the establishment of domestic 
populations in the early 1960s.  Until the 1960s, the farming of salmonids was predominantly conducted by government bodies for the purpose of stocking recreational fisheries. 
2.7 There are five introduced salmonid species in Australia
6: 
(i) rainbow trout; 
(ii) chinook (quinnat) salmon; 
(iii) brown trout; 
(iv) Atlantic salmon;  and 
(v) brook trout. 
In addition, native salmoniforms, or galaxids, are fo und in south eastern Australia (principally in the 
States of New South Wales, Victoria and Tasmania) and the south west of the State of Western Australia. 
2.8 The first commercial production of Atlantic salmon in Australia took place in Tasmania in 
1986-87.  Salmonid production in Australia operates at  the edge of the clim atic range for salmonid 
survival, and for this reason commercial salm onid aquaculture operations in Australia are 
concentrated in Tasmania and, to a lesser extent, in the alpine and sub alpine regions of north east 
Victoria and south east New South Wales.  Tasman ia continues to supply the bulk of Australian 
                                                      
6 Australian Salmon Import Risk Analysis, Final Report, December 1996, p.19. WT/DS18/R 
Page 4  
 
commercial production.  Sea-cage farming of Atlantic  salmon and rainbow trout is a major part of the 
Tasmanian aquaculture industry.7  Atlantic salmon is produced in Victoria and South Australia.8 
2.9  Production grew from about 20 tons in 1986-87 to around 6,192 tons in 1994-95, with further 
growth anticipated.9  Output for 1995-96 was valued at $A  63 million.  Australia exports about 
40 per cent of its production volume, mainly to Japan.  Of the remaining domestic market share, about 
60 per cent is sold fresh and one third is smoked.   Consumption of Atlantic salmon has increased 
significantly in Australia during the 1990s.  Aside from the salmon industry, salmonids are used in 
recreational fisheries in Australia. 
2.10 The major producers of farmed Atlantic salm on in the world are Norway, Chile and Scotland, 
jointly accounting for 80 per cent of world s upply of Atlantic salmon in the early 1990s.10 
Diseases of salmon  
2.11 In the dispute at issue, Australia has iden tified 24 disease agents of concern associated with 
the importation of Canadian salmon.   The identif ied disease agents are listed in Table 3.  The 
Australian Salmon Import Risk Analysis of December  1996 (hereafter "the Final Report") considered 
the importation of uncooked, adult, wild, ocean-caught Pacific  salmonid product from the United 
States and Canada (the first category in paragra ph ).  The Final Report also identifies 24 disease 
agents of concern;  these are iden tical to those identified in the dis pute at issue with the exception of 
Kudoa thyrsites and the addition of Infectious salmon anaemia.11 
2.12 According to the Office international des épizooties, a disease  means the "... clinical or non-
clinical infection with one or more of the aetiological agents of the disease ...".  A disease agent is "... 
an organism which causes or contribut es to the development of a disease ...".12  A disease agent may 
have several strains with varying degrees of harmfulness. 
2.13 The disease agents at issue in this dispute are not of concern from a human health perspective.  
 2. Australia's current provisions relating to the importation of salmonid  
  product  
2.14 Australian Quarantine Proclamation 86A (" QP86A"), dated 19 February 1975, made under 
the Quarantine Act 1908, states the following in  relation to importation of dead salmon13: 
"NOW THEREFORE I, Sir John Robert Kerr,  the Governor-General of Australia, 
acting with the advice of the Executive Council, hereby -  
 ... 
 (d) prohibit the importation into Australia of dead fish of the sub-order 
Salmonidae, or any parts (other than semen or ova) of fish of that sub-order, in any form unless: 
                                                      
7 Ibid., p.93 
8 Australian Atlantic Salmon:  Effects of Import Competition , p.5, Industry Commission,  Research Project, 
20 December 1996.  See also Final Report, p.20. 
9 Final Report p.93. 
10 Australian Atlantic Salmon:  Effects of Import Competition , p.5, Industry Commission,  Research Project, 
20 December 1996. 
11 Final Report, p.133. 
12 OIE International Aquatic Animal Health Code; OIE Code (1995), p.6. 
13 Quarantine Proclamation No. 86A, Australian Government Gazette , No. S33, 21 February 1975.    WT/DS18/R 
   Page 5  
 
(i) prior to importation into Australia th e fish or parts of fish have been 
subject to such treatment as in the opinion of the Director of 
Quarantine is likely to prevent the introduction of any infectious or contagious disease, or disease or pest affecting persons, animals or 
plants; and 
(ii) the Director of Quarantine or a person authorized by him has, by 
instrument in writing, consented to the importation and the instrument is produced to a Collector within the meaning of the Customs Act 
1901-1974 or to a quarantine officer."  
Proclamation 86A delegates authority to the Direct or of Quarantine to determine the conditions of 
entry in accordance with part (d) refe rred to above.  The Director of Quarantine is the Secretary of the 
Department of Primary Industries and Energy or his or her nominee.   
2.15 Before the promulgation of QP86A on 30 June  1975, Australia imposed no restrictions on the 
importation of products derived fro m salmonids.  At the time of proclamation, QP86A primarily had 
application to the protection of the animal health stat us of trout recreational fisheries in Australia from 
disease introduction and, potentially, for the purposes of  protecting the animal health status of any 
future commercial salmonid industry which might be  developed in Australia.  Australia has noted that 
the Proclamation also has application to the animal health status of native salmoniforms.  Australia 
has advised that the term "introduction" is applie d and interpreted in Austra lia in the same sense as 
"entry, establishment or spread" referred to in the text of the SPS Agreement.  
2.16 In accordance with the delegated authority, pursuant to QP86A, the Director of Quarantine 
has permitted the entry of commercial imports of heat-treated salmon produc t for human consumption 
together with non-commercial quantities of other salmon (primarily for scientific purposes) subject to prescribed conditions.  The Director of Quarantine, in accordance with the same delegated authority, 
has decided that imports of uncooked salmon should be restricted.  Specifically, the following 
requirements have been issued in relation to salmon imports: 
(i) "Guidelines for the Importation of Smoke d Salmon and Trout into Australia" (the 
"1983 Guidelines").  Effective 1 September 1983, imports of salmon other than canned salmon were only allowed subject to  an assessment that  the treatment under 
which the salmon had been processed was suffi cient to prevent the entry of disease.  
With immediate effect, "cold smoked" salm on was not allowed to be imported, unless 
evidence was produced that it had been pro cessed in such a way as to inactivate the 
causative organisms of diseases of salmonids.
14  
(ii) "Conditions for the Importation of Sa lmonid Meat and Roe into Australia", of 
December 1986.  This circular required an  import permit for all uncanned salmon and 
trout meat and salmon roe to enter Australia.  Among other requirements, it listed the 
major diseases of concern and established the minimum temperature requirements for 
heating.15  
(iii) "Conditions for the Export of Salmonid M eat and Roe to Australia", dated May 1987.  
This Circular dealt with non-commercial importation of salmonid meat and roe in 
response to difficulties arising in certification requirements for individual 
consignments (under 5kg. in weight) accom panied by passengers entering Australia.16  
                                                      
14 Chief Quarantine Officer (Animals) Circular Memorandum 82/83, dated 25 July 1983. 
15 Chief Quarantine Officer (Animals) Circular Memorandum 399/86. 
16 Chief Quarantine Officer (Animals) Circular Memorandum 121/87, dated 29 May 1987. WT/DS18/R 
Page 6  
 
"Revised conditions for the importation of sal monid meat and roe into Australia" were 
issued in June 1987.17  
(iv) "Conditions for the Importation of Salmonid Meat and Roe into Australia", issued in 
June 1988.  This circular modified the ove n temperatures and time relationships for 
heating of salmon for importation. Under the  new requirements, the minimum processing that salmonid meat would be allowed to undergo was at a temperature of 35ÿC for a period of not less than 7 hours.  This circular replaced the 1983 guidelines 
and are hereafter referred to as the "1988 Conditions".
18  Since the issuance of these 
1988 Conditions, there have been no new treatm ent specifications to date.  The term 
"uncanned heat-treated salmon" and "salm on treated with the 1988 Conditions" are 
the same. 
(v) "Importation of Salmonid Meat in Retortab le Pouches", dated in April 1990.  This 
circular announced the approval of the impor tation of salmonid meat in retortable 
pouches under certain conditions.19  
(vi) "Requirements for the Importation of Individual Consignments  of Smoked  Salmonid 
Meat", dated in January 1996.  This not ice by AQIS set new import requirements for 
individual consignments (under 5kg. in weight).  These are hereafter referred to as the 
"1996 Requirements".20  
2.17 On 13 December 1996, the Executive Direct or of the Australian Quarantine and Inspection 
Service (AQIS) made a policy determination to maintain the existing quarantine policies for the 
importation of salmon product.  This determinati on was based on the Salmon Import Risk Analysis 
(Final Report) and is hereafter referr ed to as "the December 1996 decision":  
"The [Chief Veterinary Officer] recomme nds 'that the status quo for quarantine 
policies for uncooked salmon products continue' 
 - i.e. that the requests from Canada  and US for access for uncooked, wild, 
adult, ocean-caught Pacific salmonid product not be approved. 
... "On the basis of these considerations I have decided that, having regard to Australian 
Government policy on quarantine and after taking account of Australia's international 
obligations, importation of uncooked, wild, adult, ocean-caught Pacific salmonid 
product from the Pacific rim of North Amer ica should not be permitted on quarantine 
grounds."
21 
 3. International recommendations - the OIE  
2.18 The SPS Agreement makes reference, in a numb er of provisions, to the "relevant international 
standards, guidelines and recommendations".  Anne x A:3(b) of the SPS Agreement states that the 
international standards, guidelines a nd recommendations relevant for animal22 health and zoonoses are 
those developed under the auspices of the Office in ternational des épizooties (hereafter the "OIE").  
                                                      
17 Chief Quarantine Officer (Animals) Circular Memorandum 122/87. 
18 Chief Quarantine Officer (Animals) Circular Memorandum 166/88, dated 9 June 1988. 
19 Chief Quarantine Officer (Animals) Circular Memorandum 93/90, April 1990. 
20 AQIS Quarantine Operational Notice 1996/022, 24 January 1996. 
21 AQIS, File Note by Paul Hickey, Executive Director, 13 December 1996. 
22 In Annex A of the SPS Agreement, a footnote on the titl e "Definitions" indicates that "[f]or the purpose of 
these definitions, "animal" includes fish and wild fauna ...".    WT/DS18/R 
   Page 7  
 
These standards, guidelines and recommendations ar e contained in OIE's "International Aquatic 
Animal Health Code".  
2.19 The OIE is an international inter-govern mental organization created in 1924.  In 
November 1997 it had 147 member countries.  Its main objectives are to: 
(i) inform governments of the occurrence and course of animal diseases throughout the 
world and about ways to control these diseases;   
(ii) coordinate, at the international level, st udies devoted to the surveillance and control 
of animal diseases; and 
(iii) harmonize regulations for trade in animal s and animal products among its member 
countries.  
2.20 The OIE operates under the authority and cont rol of its International Committee  which is 
made up of delegations from the member countries.  The International Committee adopts resolutions 
drawn from the work of subordinate commissions (the Administrative Commission, the Regional 
Commissions and the Specialist Commissions).  One of the specialist commissions is the OIE Fish 
Diseases Commission (FDC).  The FDC was establishe d in 1960.  In May 1995, the FDC formally 
adopted the OIE's "International Aquatic Animal He alth Code" (hereafter referred as to the "Code"), 
and the "Diagnostic Manual for Aquatic Animal Diseases" (the "Manual").  The aim of the Code is to 
facilitate international trade in aquatic animals a nd aquatic animal products by "providing detailed 
definitions of minimum health guara ntees to be required of trading part ners in order to avoid the risk 
of spreading aquatic animal diseases.  These guarantees are based on inspection by Competent 
Authorities23, epidemiological surveillance, and standard  methods for laboratory examinations and 
disease diagnosis".  The Code and Manual are update d on a yearly basis at the OIE General Sessions, 
in May.24  References in this report are to  the Code as updated in May 1997. 
2.21 The diseases in the Code are divided into Diseases Notifiable to the OIE (hereafter 
"Notifiable Diseases") and Other Significant Diseases (hereafter "Other Diseases"). 
2.22 According to the OIE Code, Notifiable Diseases  cover those diseases "that are generally 
regarded as having the potential for serious damage to the national aquacultural industries, or wild 
populations of fish, molluscs and crustaceans.  In troduction of these diseases into countries free from 
them or into countries with national control or eradication programmes could cause significant economic loss.  The Veterinary Ad ministrations or other responsible Competent Authorities of such 
importing countries have an obligation to ensure th at new disease agents are not introduced through 
imports, and to seek adequate protection in international health certificates".
25  Notifiable Diseases are 
those "considered to be of socio-economic and/or public health importance wi thin countries and that 
are significant in the international trade of aquatic animals and a quatic animal products".26  The Code 
indicates that "... the list of notifiable diseases of aquatic animals includes only major diseases of 
proven aetiology and limited geographical range ..." (page 109).  
2.23 Other Diseases  include diseases which:  (i) are ser ious, but have a broad geographic 
distribution;  (ii) those causing significant mortality, are transmissible and are of limited geographic 
range, but for which the aetiological agent has not yet been identified, or for which diagnostic tests are 
                                                      
23 A Competent Authority is defined in the OIE Code as "the National Veterinary Services, or other 
Authority of a Member Country, having the responsibility and competence for ensuring or supervising the implementation of the aquatic animal health measures recommended in this Code." 
24 OIE Code, Foreword. 
25 OIE Code, p. 63. 
26 Ibid., p.7. WT/DS18/R 
Page 8  
 
not yet standardized;  (iii) have the potential for causing large losses, but which are too new for 
geographic range to be defined or for the essen tial epidemiological elements to be understood.27 
2.24 Among the 24 diseases listed by Australia as of concern relevant to this dispute two diseases 
are included in the OIE list of Notifiable Diseases and four diseases in the list of Other Diseases (Table 2). 
2.25 Section 1.4 of the OIE Code deals with risk analysis.  The introduction states that: 
"The principal aim of import risk analysis  is to provide importing countries with an 
objective and defensible method of assessing the disease risks asso ciated with the 
importation of aquatic animals. aquatic anim al products, ....  The analysis should be 
transparent.  This is necessary so that the exporting country may be provided with 
clear and documented reasons for the impos ition of import conditions or refusal to 
import.  Transparency is also essential because data are often uncertain and the 
distinction between facts and the analyst's value judgements may blur."
28 
TABLE 2  
"Diseases Notifiable to the OIE" Relevant to Australia's Measure 
Infectious haematopoietic necrosis (IHN) 
Viral haemorrhagic septicaemia (VHS)  
 
"Other Significant Diseases"  Relevant to  Australia's Measure 
Bacterial kidney disease (BKD) Renibacterium salmoninarum ) 
Infectious pancreatic necrosis  (IPN) 
Infectious salmon anaemia29 
Piscirickettsiosis ( Piscirickettsia salmonis ) 
2.26 Chapter 1.4 then goes on to outline items in cluding:  (i) the components of risk analysis 
(hazard identification, risk assessment, risk management and risk communication) and the sequences 
of the import analysis process30;  (ii) the methodology;  and, (iii) documentation of the results of the 
analysis.  Under Article 1.4.1.3 on methodology, th e OIE Code notes that a "[r]isk analysis must be 
able to deal with the complexities of real life situations and no single  method is applicable in all cases.  
For this reason, countries wanting to conduct im port risk analyses may find it necessary to design 
their own process for carrying out the exercise." 
 4. Australia's import risk analysis  
2.27 Following GATT Article XXII consultations in 1994, Australia agreed to document an import 
risk analysis on the quarantine issues involved w ith the importation of uncooked salmon meat from 
North America.  Due to the complexity of the task, by arrangement with Canada and the United 
                                                      
27 Ibid., p.109. 
28Ibid, p. 29. 
29 Disease number 24 in Table 3. 
30 Ibid., Figure 1, p.28.    WT/DS18/R 
   Page 9  
 
States, Australia restricted the analysis to the im portation of wild, ocean-caught Pacific salmon in the 
first instance.  The risk analysis process involved the preparation of  two  draft reports, issued in May 
1995 and  May 1996, and a Final Report of Decemb er 1996.  The reports included identification of 
potential disease agents, analysis of  disease risks, scientific review of data for salmonid diseases, 
socio-economic assessment of the potential im pact of salmonid disease introduction  and 
identification of options for risk reduction and risk management. The May 1996 and Final Reports also included summaries of issues raised by domestic and international respondents as part of the risk 
communication process.  (See also the response to Question 1 by the experts advising the Panel for a 
summary of the reports, paragraphs 6.13-6.42.) 
2.28 The "May 1995 Draft Report" noted that ther e had been no evidence of the spread of diseases 
via fish products for human consumption, desp ite "the wide scale movement of salmonid product 
within and between continents".  Furthermore, th e report listed a sequence of events of which each 
event had to occur for the imported salmon products to cause an exotic disease  to become established 
in Australia.  It was noted that although zero ri sk was not attainable, the risk of disease introduction 
might be reduced to negligible values if one or mo re events in the sequence were extremely unlikely 
to occur or if a number of events in the sequen ce had a relatively low probability.  The May 1995 
Draft Report noted that as with any other importation there was a risk of introducing exotic pathogens via the importation of uncooked salmon product deri ved from wild, ocean-caught Pacific salmon from 
Canada and the United States, but that this risk w as so small as to not merit continuation of the 
present quarantine restrictions.  The Draft Report c oncluded that:  "the importation of eviscerated, 
headless, wild, ocean-caught Pacific salmon from Ca nada and the USA should  be permitted, under 
specified conditions ...".  The conditions required, inter alia , that the fish be suitable for human 
consumption, certified by the appropriate au thorities as processed in Federally approved 
establishments, inspected and graded , sub-adult or mature fish, etc.
31 
2.29 In May 1996, AQIS published a revised draf t Salmon Import Risk Analysis,  "An assessment 
by the Australian Government of quarantine c ontrols on uncooked, wild, ocean-caught Pacific 
salmonid product sourced from the United States of Am erica and Canada".  (The product considered 
was eviscerated fish.)  The "Revised Draft IR A" took into account comments received by AQIS on 
the May 1995 Draft Report.  The Revised Draft IRA made no specific recommendation to permit or not to permit importation but identified a number of risk management options for consideration.  
2.30 In December 1996, the Department of Pr imary Industries and Energy published the final 
version of the "Australian Salmon Import Risk Analys is (the "Final Report").  In its conclusions, the 
Final Report noted that there was a possibility that up  to 20  disease agents exotic to Australia might 
be present in Pacific salmon products  and although the probability of establishment would be low, 
there would be major economic impacts which could seriously threaten the viability of aquacultural 
operations and the recreational fishing industries, in  addition to adverse environmental impacts on the 
built environment of Australia.  The Report cons idered that should any of the 20 diseases become 
established, they would almost certainly be ineradicable.  The Report went on to note: 
"It is likely that scientific knowledge will rapidly advance consideration of these 
issues over the next few years.  Australia  will review this information as it becomes 
available.  In particular, countries proposi ng to export fresh salmon to Australia must 
provide, to the extent possible, improved epidemiological evidence to support assertions of safety of fresh product." 
On 13 December 1996, the Director of Quarantine d ecided to accept the recommendation of the Final 
Report that "...given the unique circumstances,  range of potential disease agents and potential 
                                                      
31 "Draft Import Risk Analysis - Disease risks asso ciated with the importation of uncooked, wild, ocean-
caught Pacific salmon product from the USA and Canada", Australian Quarantine and Inspection Service, May 1995, Appendix 6, pp.273-275. WT/DS18/R 
Page 10  
 
socio-economic and environmental impacts, entr y of uncooked salmonid prod ucts from Canada and 
the United States not be permitted at this time" and th at other issues related to salmon, such as current 
policies for importing heat-treated salmon, should  be considered in the light of priorities 
recommended by the National Task Force on Imported Fish and Fish Products.   
III. CLAIMS OF THE PARTIES  
 1. Canada's claims  
3.1 Canada claimed that the Australia's measure was an illegal import prohibition under 
Article XI:1 of GATT 1994,  that found no justifica tion in Article XI:2 or Article XX or in GATT 
1994. 
3.2 Australia's measure fell with in the definition of a sanitary   measure in accordance with 
Article 1 of the SPS Agreement, and Annex A.1(a) ther eto.  It was thus subject to that Agreement's 
provisions.  Canada claimed that Australia's me asure had not been developed and applied in 
accordance with the SPS Agreement in that: 
(i) the measure violated Article 3.1 of the SPS Agreement as it was not based on existing 
international standards, guidelines or recomme ndations pursuant to Article 3.1 (in this 
case, recommendations of the Office international des épizooties), and did not meet 
the conditions of Article 3.3 of the SPS Agreement; 
(ii) the measure was not based on a proper asse ssment of the risks to salmonid life or 
health and accordingly failed to meet  the requirements of Article 5.1; 
(iii) the measure was not based on an assessment of  risks that took into account available 
scientific evidence contrary to Article 5.2 of the SPS Agreement; 
(iv) the measure was inconsistent with Austra lia's obligation to avoid arbitrary and 
unjustifiable distinctions in the levels of pr otection it considered to be appropriate in 
different situations, distinctions that resulte d in a disguised restriction on trade, and 
accordingly violated Article 5.5; 
(v) the measure was more trade restrictive than required to achieve Australia's 
appropriate level of sanitary protection and accordingly violated Article 5.6; 
(vi) the measure was in conflict with Article  2.2 of the SPS Agreement because it was 
maintained without sufficient scientific evidence;  and 
(vii) the measure arbitrarily or unjustifiably di scriminated between Members where similar 
conditions prevailed, specifically betw een Australia and Canada, and accordingly 
violated Article 2.3. 
3.3 Canada furthermore claimed that Australia's  measure had nullified or impaired benefits 
accruing to Canada under the WTO Agreement pursuan t to Article XXIII:1(a) or (b) of GATT 1994. 
 2. Australia's claims  
3.4 Australia claimed that it was fo r the complaining party to present a prima facie  case of 
inconsistency before the Panel and that it was theref ore for Canada, in the first instance, to provide 
sufficient evidence to raise a presumption that Aust ralia's measure was inconsistent with the rights    WT/DS18/R 
   Page 11  
 
and obligations under the cited Agre ements.  Australia cl aimed that Canada had not satisfied its 
evidentiary and legal burden of proof in respect of  the claims it had made.  In so doing, Australia 
claimed that evidentiary standards had not been met and that there was a need to distinguish between 
facts and assertion, including in regard to the legal relevance of matters raised  by Canada which, in 
Australia's view represented an attempt to ascribe motive to actions.   
3.5 Australia claimed that the Panel should first examine consistency with the SPS Agreement.  
Australia claimed that unless Canada could successfully  demonstrate that Australia's measure did not 
conform to the provisions of the SPS Agreement, th e measure would be presumed to be in accordance 
with the provisions of GATT 1994, as Article 2.4 of the SPS Agreement provided that if a measure 
conformed with the provisions of the SPS Agreemen t the measure was presumed to be in accordance 
with obligations of Members under the provisions of GATT 1994 which related to the use of sanitary 
or phytosanitary measures, in particular the provi sions of Article XX(b).  It would therefore be 
necessary to first consider the measure against the rights and obligations established under the SPS 
Agreement.  Australia maintained that its measure was in conformity to its obligations under the SPS 
Agreement. 
3.6 Australia further claimed that the Panel's term s of reference did not extend to Canada's claims 
of non-violation, nullification and impairment unde r Article XXIII:1(b) of GATT 1994, or to what 
Australia considered as new claims submitted by Ca nada in the course of the panel proceedings.  
Australia also claimed that Article 3 did not have application to the measure at issue.  In the  
alternative, Australia claimed that its measure w as not in violation of the SPS Agreement or GATT 
1994 and that Canada's claim of non vi olation could not be sustained.   
IV. ARGUMENTS OF THE PARTIES  
 1. Due Process  
4.1 In the course of the Panel proceedings, Australia  raised concerns that it was disadvantaged 
by certain procedures.  Australia noted that neither the Final Report nor the December 1996 Decision 
had been discussed in WTO consultations.  Australia had therefore not been in the position to respond 
to the substance of Canada's claims and argumen ts until receipt of Canada's First Submission on 
29 July 1997.  Hence, the time frame for Australia to  engage in detailed preparation for the first stage 
of the panel process had been limited to three week s.  In contrast, Canada had the opportunity of 
several months in which to prepare its claims since receipt of the Final Report in December 1996.   As 
Canada had not identified the specific matters at issu e, as required by Article 6.2, Australia could not 
reasonably have been expected to anticipate the detail  of Canada's claims.  I ndeed, Canada had altered 
its claims about the specific measure on several oc casions throughout the panel process and had added 
new claims or rebased its legal claims, including in  the final stages of the panel process.  Australia 
drew attention to the Appellate Body Report on India - Patent Protection for Pharmaceutical and 
Agricultural Chemical Products :  
"All parties engaged in dispute settlement ... must be fully forthcoming from the very 
beginning both as to the claims involved in the dispute and as to the facts relating to 
those claims.  Claims must be stated clearly .  Facts must be disclosed freely.  This 
must be so in consultations as well as in the more formal setting of panel proceedings.  In fact, the demands of due process that ar e implicit in the DSU make this especially 
necessary during consultations.  For the claims  that are made and the facts that are 
established during consultations do much to shape the substance and scope of 
subsequent panel proceedings ... in the ab sence of the inclusion of a claim in the WT/DS18/R 
Page 12  
 
terms of reference, a panel mu st neither be expected nor permitted to modify rules in 
the DSU."32 
4.2 Australia further stated that due process concerns did not involve the development of 
arguments, but related to new claims, including the basis of claims, and to evidence submitted 
subsequent to the date determined by the Panel in  its working procedures.  Australia noted that, in 
accordance with DSU rules, the establishment of a panel was automatic and that effectively, the 
complainant determined the terms of reference.  U nder these circumstances, it was imperative that due 
process be observed, as confirme d above by the Appellate Body. 
4.3 Australia further indicated concern in regard  to some of the Panel's questions, including 
Question 12 of 23 January 1998.33 It was Australia's view that the question invited Canada to raise a 
legal claim in respect of Article 5.5 which it had elected not to include in its submissions.  A respondent could not be expected to rebut a legal cl aim that had not been raised by the complainant. 
4.4 Australia noted that documenta ry evidence needed to be provid ed at the earliest stage of a 
panel process.  The appropriate time would have b een the time of the lodging of Canada's first 
submission, during the first substantive meeting between  the parties and the Panel.  In this regard, a 
Secretariat paper regarding panel tim e frames had indicated that all evidence was to be submitted by 
7 October 1997.
34  In light of the above, Australia request ed that the Panel exclude the "Quantitative 
analysis of the risk of establishment of Aeromonas salmonicida  and Renibacterium salmoniarum  in 
Australia as a result of importing Canadian ocean- caught salmon" by David Vose (the "Vose Report") 
from its consideration of evidence submitted by Canada, together with the article attached to Canada's 
Second Oral Argument of 5 February 1998.  The or iginal Vose Report had been provided by Canada 
at the end of December 1997.  A partially ille gible copy had been received by Australia on 
18 December, and a legible copy was not received in Canberra until 23 December;  i.e., the beginning of the statutory summer holiday period in Australia.  No explanation had been offered by Canada why 
the evidence had not been provided during the consulta tions or at the beginning of the panel process.  
Without prejudice to the admissibility of the Vose Report,  Australia drew attention to the fact that this 
had been revised between 5 and 6 February.  On 13 February, Australia ha d furnished initial written 
comments on the revised report, but the admissibility of  this comment had been contested by Canada.  
Australia noted also that no effo rt had been made to subject this  evidence from Canada to the same 
legal scrutiny as the Final Report. 
4.5 Canada  noted that Australia had received the Vose Report on 18 December 1997.  In their 
view, this had given Australia ample opportunity  to consider it and provide comments, which 
Australia did at the Second Substantive Meeting,  on 5 February 1998, and in its 13 February 1998 
submission to the Panel. 
4.6 In terms of the scope of the dispute, Australia  acknowledged that Canada's requests for 
consultation and a panel extended to fresh, chilled and frozen salmon and was not limited to Pacific 
salmon.  Nonetheless, Australia could not reasonably have been expected to undertake a formal risk 
assessment on all uncooked salmon of Canadian origin  within the time frame in which Canada sought 
a panel, or for that matter, within the time frames of a panel process.  The Final Report was limited to 
the Pacific product by agreement with Canada, and at no stage had Canada subsequently requested 
that the product coverage be extended to all Ca nadian salmon.  Canada had not communicated to 
Australia that it wished to reverse this arrangeme nt until the panel process was under way.  Australia, 
therefore, requested that the Panel limit its findings  to fresh, chilled and frozen, adult, wild, ocean-
caught Pacific salmon. 
                                                      
32 Adopted 16 January 1998, WT/DS50/AB/R, para. 94. 
33 Question 12:  "Can Canada confirm that it is of the view that the contested measure 'results in ... a 
disguised restriction on international trade' in the sense of Article 5.5?  If so, why?" 
34 The Panel's Revised Timetable, distributed to Parties on 10 September 1997.    WT/DS18/R 
   Page 13  
 
4.7 Canada  refuted this argument and noted that accord ing to Article 5.1 of  the SPS Agreement, 
it was for Members taking measures to base those me asures on an assessment of risk.  The obligation 
was not limited to those instances where another Memb er requested that a measure be based on a risk 
assessment.  Canada never excused Australia from its  obligations under Article 5.1.  Australia's 
obligation under Article 5.1 was not to do a risk assessment, but to base its measure on one. 
4.8 Australia  contended that Canada had introduced fu ndamental changes in the nature of its 
specific legal claims at the final meeting of the part ies with the Panel (5-6 February 1998).  Canada's 
oral statement of 5 February was a 44-page docum ent which had the character of a formal written 
submission in regard to legal claims and rebased le gal claims as well as detailed content.  It was not a 
document that was capable of being addressed fully (in respect of legal claims, the legal basis of 
claims and evidence) overnight or within the space of  one week.  This was a violation of due process 
and had put Australia in a disadvantag eous position.  In this regard, Au stralia argued that in relation to 
new or re-based claims, Canada's claim of inconsis tency with Article 5.1 had been extended, on 5 
February, to include claims in respect of product coverage (heat-treated salmon and salmon other than 
salmon covered by the scope of the Final Report).  Au stralia argued that heat-treated product had not 
been addressed in the Final Report for the very reason that Canada had not sought a risk assessment 
on heat-treated product, for which it already ha d access, accounting for some $A 10 million of 
Australia's import of that product.  Australia had been reliant on the agreement reached with Canada 
on the limited scope of the risk assessment, but  because of this, currently faced a claim of 
inconsistency with WTO treaty obligations, a claim wh ich had not been advanced until 5 February.   
4.9 Canada  stated that Australia had been fully aware since 10 March 1997 that Canada was 
claiming that Australia had violated Articles 2, 3 and 5 of the SPS Agreement and had done so by way 
of QP86A and the amendments or modifications to  it, which included heat treatment requirements.35  
The requirement of heat treatment and the prohi bition on salmon product that had not been heat-
treated (i.e. fresh, chilled or frozen salmon) were two sides of the same coin.  There was no "new 
identification of the measure".  Canada further noted that the argument  that Australia's measure was in 
violation of Article 5.1 was in Canada's First Submission (paragraphs 165 to 181), and, as the Panel 
had raised the issue of whether Australia had base d its measure, including the requirement of heat 
treatment, on a risk assessment36, Canada had a right and an obligation to address these issues in its 
argument. 
4.10 Australia  further alleged that Canada had introdu ced a new specific claim that Australia had 
violated Articles 5.1, 5.2 and 2.2 of the SPS Agreement, on the basis that there was no rational relationship between the measure and the scientific evidence.  The basis fo r this claim had been 
largely heat-treated product, a claim not previously ra ised in relation to those provisions.  Canada had 
not clearly identified the basis for its claim in the te xt of the SPS Agreement.  It appeared that Canada 
was requesting the Panel to make a general judge ment whether Australia's measure was rationally 
supported by the available scientific evidence to achie ve Australia's appropriate level of protection, 
                                                      
35 The fourth paragraph of Canada's First Submission (28 July 1997) stated that: 
"The Australian measure at issue is Quarantine Proclamation 86A ("QP86A") and published requirements 
pursuant to QP86A that together require salmonid product to be heat-treated for certain prescribed durations 
and temperatures, prior to importation into Australia, ... The result of Australia's measure is to prohibit the 
importation of salmonid products destined for human consumption that have not been subject to such heat treatment, (hereinafter "uncooked salmon" or "fresh, chilled or frozen salmon"). 
36 The Panel's Additional Questions to the Parties of 8 December 1997. 
  Question 11:  Australia indicates that it will in the future undertake a risk assessment on "uncanned heat-treated salmon".  What requirements currently apply to imports of this product?  Is there any difference between "uncanned heat-treated salmon" and salmon treated in accordance with the 1988 Conditions? On what scientific or other basis does Australia currently allow imports of salmon products treated in accordance with the 1988 Conditions? 
 Question 13:  To what extent and where precisely in its Final Report has Australia analyzed and 
compared the risks related to the different sanitary options it considered?  To what extent and where precisely in its Final Report did Australia take into account the element of trade restrictiveness in such comparison?  WT/DS18/R 
Page 14  
 
rather than to examine Austra lia's compliance with specific SPS obligations.  Such a request, 
according to Australia, was in conflict with the DSU (Articles 3.2 and 19.2) in that the findings and 
recommendations of a panel could not add to or dimi nish the rights and obligations provided in the 
covered agreements, as confirme d in the Appellate Body Report EC - Measures Concerning Meat and 
Meat Products  (hereafter " EC - Hormones "):   
"To adopt a standard of review not clearly  rooted in the text of the SPS Agreement 
itself may well amount to changing that finely  drawn balance [in the Agreement] ..."  
"... between the jurisdictional competences conceded by Members to the WTO and 
the jurisdictional competences retain ed by the Members themselves ...." 37  
4.11 Canada  noted that it had argued throughout the pr oceedings that Australia's measure was 
maintained without sufficient scien tific evidence.  The "rational relationship" between a scientific 
basis for a measure in Article 2.2 and the "based on" requirement in Article 5.1 reflected the approach 
taken by the Appellate Body in EC - Hormones .38  Furthermore, the Panel had itself raised the issue of 
scientific basis for heat treatment in the written ques tions that it had put to the Parties at the First 
Substantive Meeting.39  
4.12 In respect of Article 5.5, Australia  claimed that Canada had not previously made a legal 
claim that the measure resulted in a disguised restri ction on international trade, including as a discrete 
legal obligation under Article 5.5.  Hence, Canada  had introduced a new claim of inconsistency in 
regard to purported differences between heat-treated and other salmon.  This was an entirely different 
claim from allegations of differences between live an d bait fish and salmon.  Canada had, in seeking 
to demonstrate that the alleged arbitrary or unjustifia ble distinctions in Australia's level of protection 
resulted in a disguised restriction on trade, attempte d to infer motive to Australia's decisions.  There 
was a fundamental difference between an attempt to  demonstrate a disguised restriction  on trade 
through inferring motive, and presenting evidence based on an analysis of the architecture and 
structure of Australia's measure which Canada had failed to do.  Canada was in essence requesting the 
Panel to undertake a de novo  review and had ignored due defere nce and the standard of review 
referred to in paragraphs 115 to 117 and 244 to 245 of the Appellate Body Report on EC - Hormones . 
4.13 Canada noted that it had argued from the outset that  Australia had violated Article 5.5 and 
that there were three elements to a violation of  Article 5.5 and that the third element "disguised 
restriction on international trade" had been satisfi ed  (Canada's First Submission paragraphs 182 to 
216 and 197). Furthermore, Canada's argument in its Second Oral Statement reflected the approach of 
the Appellate Body in EC - Hormones . 
4.14 Australia  further maintained that in regard to Article 3.3, Canada had not previously 
requested the Panel to make a finding of violation in  respect of Article 3.3.  The legal claim had been 
one of inconsistency with Article 3.1.  Austra lia noted that it did not have benefit of WTO 
consultations in which to address the specific claims of  Canada in relation to the Article 3.  Article 3 
was not identified in Canada's request for consu ltations, but in keeping with the objective of WTO 
dispute resolution, Australia agreed to discuss Canada 's claims in respect of Article 3.  However, no 
                                                      
37 Adopted 13 February 1998, WT/DS26/AB/R and WT/DS48/AB/R, para. 115. 
38 Ibid., para. 193. 
39 Question 23 of 10 September 1997:  The 1996 Final Report addresses the risks related to import of 
uncooked wild caught adult Pacific salmon from Canada and the United States into Australia.  Is there any scientific evidence available related to the effectiveness of the tec hnique of cooking (as prescribed by the Australian measure) 
as a tool to reduce risk (or on the effectiveness of any other alternative suggested in the 1996 Final Report).  What is the relationship between the risks alleged in the 1996 Final Report and cooking as a tool to reduce these risks?  What is the difference in effectiveness of cooking versus evisceration with respect to the diseases at issue?   
Question 13 to the experts of 31 October 1997:  With respect to the diseases at issue, what is the difference 
in effectiveness, with regard to reducing the risk of di sease transmission, of evisceration as compared to heat 
treatment of the product?  as opposed to full cooking of the flesh of the product?     WT/DS18/R 
   Page 15  
 
details were forthcoming at the consultations.  Au stralia's due process concer ns had been compounded 
by the last- minute introduction of a new legal claim by Canada. 
4.15 Canada  maintained that prior to the Report of the Appellate Body in EC - Hormones , the 
question of whether Article 3.3 was an exception to Ar ticle 3.1 was in issue.  However, the Appellate 
Body had found that Article 3.3 was an obligation in and of itself.  Canada's arguments in its Second 
Oral Statement reflected the Appellate Body's reasoning in EC - Hormones .  In addition, Canada 
argued that "does not meet the conditions of Article 3.3" and "is inconsistent with Article 3.3" was a 
distinction without a meaningful difference. 
4.16 In regard to Article 5.6, Australia  argued that Canada had introduced a new legal claim in 
respect of heat-treated product.  Canada's claims that Australia's requirements on heat-treated product 
were not sufficiently restrictive to achieve Austra lia's level of protection did not constitute evidence 
that a significantly less trade restrictive measur e was available that would achieve Australia's 
appropriate level of protec tion in relation to uncooked salmon.  Cana da's new legal claims in regard to 
heat-treated product implied that consistency wi th Article 5.6 could be assured by placing a 
quarantine prohibition on heat-treated product. 
4.17 Canada stated that it had argued from the outset that Australia had violated Article 5.6 and 
that this violation was due in part to Australia's  inability to distinguish among the risks entailed by 
various sanitary measure of differing trade restrictiveness (Canada's First Submission, paragraphs 224 to 227).  These measures included heat treatment, th e most trade restrictive of the measures identified 
in the Final Report and the one that Australia had ch osen to maintain.  The Terms of Reference made 
it clear that heat treatment had always been at issu e in this case.  The Panel had furthermore raised the 
issue of heat treatment and the other options identified in the Final Report in its Additional 
Question 13 to the Parties of 8 December 1997.
40  
4.18 Regarding Australia's due process claims in general, Canada conte nded that Australia had 
confused the distinction, made clear by the Appellate Body, between claims and arguments.  
According to the Appellate Body in EC - Regime for the Importation, Sale and Distribution of 
Bananas : 
"... there is a significant difference between th e claims identified in the request for the 
establishment of a panel, which establis h the panel's terms 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 m eetings with the parties." 41  (emphasis in the original) 
4.19 Hence, while claims  had to be "specified sufficiently in  the request for the establishment of a 
panel in order to allow the defending party ... to know the legal basis of the complaint" 42, the 
arguments  in support of those claims were to be set out  and refined in the course of the proceedings.  
The Appellate Body had concluded: 
"There is no requirement in the DSU or in  GATT practice for arguments on all claims 
relating to the matter referred to the DSB to be set out in a complaining party's first written submission to the panel.  It is th e panel's terms of reference, governed by 
Article 7 of the DSU, which set out the claims of the complaining parties relating to the matter referred to the DSB."
43  
                                                      
40 Reproduced in footnote 35. 
41 WT/DS27/AB/R adopted 25 September 1997, para. 141.  Canada also noted that the distinction was 
reiterated in:  WT/DS50/AB/R, para. 91 and WT/DS26/AB/R, and WT/DS48/AB/R para. 156. 
42 WT/DS27/AB/R, para. 143. 
43 Ibid., para. 145. WT/DS18/R 
Page 16  
 
The question of whether Canada had made "new claims" had therefore to be assessed in the light of 
Canada's Request for the Establishment of a Panel44, which established the Panel's terms of reference.  
In respect of Australia's alleged "new claims" c ited above, Canada claimed that these pertained to 
claims that were set out in Canada's Request fo r the Establishment of a Panel, namely, that the 
Australian measure was inconsistent with Articles 2, 3 and 5 of the SPS Agreement. 
4.20 Canada argued that Australia's claims of a violation of due process were groundless because 
(i) Canada had made no new claims, and (ii) the arguments that Australia characterized as "new claims" could be found in the various submissions that Canada had made throughout the proceedings 
and for which Australia had the opportunity to respond.   Canada's arguments had been refined in the 
light of the Appellate Body's Report on EC - Hormones .  This had been precisely what had been 
contemplated when the Panel had agreed to the Parties' request to delay the second substantive 
meeting until after the release of  the Appellate Body's Report. 
 2. Relationship between GATT 1994 and the SPS Agreement  
4.21 Canada argued, in the first instance, that Au stralia's measure was an illegal import 
prohibition under Article XI:1 of GATT 1994.  A lthough Australia's measure was a sanitary measure 
which affected international trade within the mean ing of Article 1.1 of the SPS Agreement, it was not 
"developed and applied according to the provisions of  the Agreement" (Article 1.1) and was thus 
inconsistent with the SPS Agreement.  Sin ce there was no presumption that the measure was 
consistent with the SPS Agreement, Article 2.4 of  the SPS Agreement could not be used to justify 
Australia's violation of Article XI of GATT 1994. 
4.22 Australia  agreed that the measure was a sanitary me asure which affected international trade 
within the meaning of Article 1.1 of the SPS Agreem ent.  Thus, Australia observed, the Panel would 
first have to examine claims in respect of the SPS Agreement in order to avoid a situation where the 
Panel first found inconsistencie s with regard to a Party's obligations under GATT 1994 and 
subsequently found that party to be in full confor mity with its obligations under the SPS Agreement 
and therefore, within the meaning of Article 2. 4 of the SPS Agreement, in conformity with the 
relevant provisions of GATT 1994.   Australia indicated that wher eas the parties were in agreement 
that the measure came within the scope of the SPS Agreement, they did not agree on the identification 
of the measure at issue. 
 3. The SPS Agreement  
  (a) Burden of proof  
4.23 Canada argued that Australia's measure was inconsis tent with Articles 2, 3 and 5 of the SPS 
Agreement.  Canada accepted that it was requi red to present evidence sufficient to establish a 
presumption of a prima facie  case that Australia's m easure was inconsistent with its obligations under 
the SPS Agreement.  In this regard, Canada mainta ined that it had put forward evidence that provided 
                                                      
44 WT/DS18/2.    WT/DS18/R 
   Page 17  
 
legal arguments showing that Australia's measure was inconsistent with the above cited provisions.45  
It was Australia's obligation, in turn, to put forw ard any alternative scientific evidence to demonstrate 
the scientific basis for its measure.  This Australia had failed to do. 
4.24 Australia  agreed that it was up to the complaining party to, in the first instance, provide 
prima facie  evidence to raise a presumption of inconsiste ncy with regard to Australia's measure.  
However, Australia argued that Canada had not me t the evidentiary and legal burden of proof in 
regard to all provisions cited by Canada.  Australia noted that in regard to a prima facie  case, the 
Appellate Body in United States - Measure Affecting Imports of Woven Wool Shirts and Blouses from 
India , had stated: 
"In addressing this issue, we find it difficult, indeed, to see how any system of 
judicial settlement could work if it in corporated the proposition that the mere 
assertion of a claim might amount to proof.  It is, thus, hardly surprising that various 
international tribunals, including the Interna tional Court of Justice, have generally 
and consistently accepted and applied the rule that the party who asserts a fact, whether the claimant or the respondent, is responsible for providing proof thereof.  
Also, it is a generally-accepted canon of evid ence in civil law, common law and, in 
fact, most jurisdictions, that the burden of proof rests upon the party, whether 
complaining or defending, who asserts the affirmative of a particular claim or 
defence.  If that party adduces evidence suffi cient to raise a presumption that what is 
claimed is true, the burden then shifts to the other party, who will fail unless it 
adduces sufficient evidence to rebut the presumption."
46  (footnotes omitted)  
Hence, Australia argued, the mere assertion of a cl aim did not amount to proof.  In the above cited 
case, Australia recalled that the Appellate Body had ruled that: 
"Since India is the party that initiated the dispute settlement proceedings, we consider 
that it is for India to put forward factual a nd legal arguments in order to establish that 
the US restriction was inconsistent with Article 2 of the ATC and that the US 
                                                      
45 Canada noted that the issues had been exhaustively reviewed in the Appellate Body report in United States 
- Measures Affecting Imports of Woven Wool Shirts and Blouses from India  (adopted on 23 May 1997, 
WT/DS33/AB/R).  There, the Appellate Body had consider ed the issue of burden of proof under the Agreement on 
Textiles and Clothing (the "ATC") respecting the issue of a complaint by India that certain restrictions imposed by the United States did not respect the transitional safeguard provi sions of Articles 2.4 and 6 of the ATC.  The Appellate 
Body had stated that: 
"We agree with the Panel that it was up to India to present evidence and argument sufficient to 
establish a presumption that the transitional safeguard determination made by the United States was inconsistent with its obligations under Article 6 of the ATC.  With this presumption thus 
established, it was then up to the United States to bring evidence and argument to rebut the presumption." (p.13) 
... 
"[A] party claiming a violation of a provision of the WTO Agreement  by another Member must 
assert and prove its claim.  In this case, India cl aimed a violation by the United States of Article 6 
of the ATC.  We agree with the Panel that it, therefore, was up to India to put forward evidence and 
legal argument sufficient to demonstrate that the transitional safeguard action by the United States was inconsistent with the obligations assumed by the United States under Articles 2 and 6 of the ATC.  India did so in this case.  And, with India having done so, the onus then shifted to the United 
States to bring forward evidence and argument to disprove the claim.  This, the United States was not able to do and, therefore, the Panel found that the transitional safeguard action by the United States "violated the provisions of Ar ticles 2 and 6 of the ATC"." (p.16) 
Canada stated that the reasoning in the Appellate Body decision equally applied to the SPS Agreement. 
46 Ibid., p.14. WT/DS18/R 
Page 18  
 
determination for a safeguard action was inconsistent with the provisions of Article 6 
of the ATC".47 
4.25 In EC - Hormones , the Appellate Body had confirmed that the complainant had the burden of 
establishing a prima facie  case in respect of all provisions of the SPS Agreement.  In its findings and 
conclusions, the Appellate Body had reversed the panel's general interpretative ruling that the SPS 
Agreement allocated the evidentiary  burden to the Member imposing an SPS measure.  The Appellate 
Body had also reversed the panel's conclusion that  when a measure was not based on an international 
standard in accordance with Article 3.1, the burde n was on the Member to show that its SPS measure 
was consistent with Article 3.3 of the SPS Agreement.48  It was clear from the Appellate Body's report 
that the complainant's burden of establishing a prima facie  case applied across all provision of the 
SPS Agreement.49 
(b) The measure at issue 
 
Sanitary or phytosanitary measure – Any measure applied: 
 (a) to protect animal or plant life or health within the territory  of the Member from risk s arising from the entry, 
 establishment or spread of pests, diseases, diseas e-carrying organisms or disease-causing organisms;   
 (b) to protect human or animal life or health within the territory  of the Member from risks arising from additives, 
 contaminants, toxins or disease-causing orga nisms in foods, beverages or feedstuffs;   
 (c) to protect human life or health within the territory of the  Member from risks ar ising from diseases carried by  animals, 
plants or products thereof, or from the entry, establishment or spread of pests;  or 
 (d) to prevent or limit other damage within the territory of the  Member from the entry,  establishment or spread of  pests.   
 
Sanitary or phytosanitary measures include all relevant la ws, decrees, regulations, requirements and procedures including, inter alia , 
end product criteria;  processes and production methods;  testing,  inspection, certification and approval procedures;  quaranti ne 
treatments including relevant requirements associated with the tran sport of animals or plants, or with the materials necessary for their 
survival during transport;  provisions on relevant statistical me thods, sampling procedures and methods of risk assessment;  an d 
packaging and labelling requirements di rectly related to food safety. 
 
SPS Agreement, Annex A:   Definitions  
4.26 Canada  stated that the measure at issue was Quarantine Proclamation 86A (hereafter 
"QP86A") introduced in February 1975, and publishe d requirements pursuant to QP86A, that together 
required salmonid product to be heat treated for cert ain prescribed durations and temperatures prior to 
importation into Australia.  Canada listed th e 1983 Guidelines, the 1988 Conditions and the 1996 
Requirements as published requirements pursuant to QP86A.50  The result of Australia's measure, 
according to Canada, was to prohibit the importa tion of salmonid products destined for human 
consumption that had not been subject to such heat treatment.  Canada's claim was that the prohibition 
on the importation of all fresh, chilled or frozen Canadian sal mon, as a result of the Australian 
measure that included QP86A and any amendments or modifications to it, violated Australia's 
obligations under the SPS Agreemen t and GATT 1994.  The products that were the subject of 
Canada's complaint before the DSU included Tariff Items: 
0302.12.00  Fresh or chilled Paci fic, Atlantic and Danube salmon 
0303.10.10  Frozen Pacific salmon 0303.22.00  Frozen Atlantic and Danube salmon 
                                                      
47 Ibid., p.12 (the Appellate Body's confirmation of the Panel's findings). 
48 Op. cit., para. 253. 
49 Ibid., para. 108. 
50 Paragraph 2.16.    WT/DS18/R 
   Page 19  
 
0304.10.00  Fresh or chilled fish fillets 
0304.20.00  Frozen fish fillets 0305.30.00
*  Fish fillets, dried, salted or in brine, but not smoked 
0305.41.00*  Smoked Pacific, Atlantic and Danube salmon (incl. fillets) 
0305.59.00*  Dried fish, not smoked (excl. cod) 
0305.69.00*  Other fish salted or in brine but not dried or smoked, nes 
1604.20.00*    Other prepared or preserved fish, nes 
Note:  The products marked "*" fall outside the HS  tariff classifications of fresh, chilled and frozen 
salmon for human consumption. 
4.27 Canada argued that Australia's measur e (QP86A of 1975 and subsequent published 
requirements pursuant to QP86A51 fell within the definition of a sanitary measure in Annex A:1, 
paragraph (a), as well as within the second part of  Annex A.1 ("Sanitary or phytosanitary measures 
include all relevant laws, decrees, regula tions, requirements and procedures including, inter alia , end 
product criteria;  processes and production methods;  .... "). 
4.28 Australia  argued that QP86A and any amendments or modifications thereto did not  represent 
a prohibition on imports of uncooked salmon.  QP86A provided a legal basis for conditions of entry 
for salmon but did not constitute a prohibition per se .  It established a system of permit or consent.  
There had not been any amendments or modificati ons to QP86A and substa ntial imports of product 
coming within the scope of QP86A had in fact ente red Australia.   QP86A did not operate as an 
import prohibition, but as a system of permit and consent.  The Director of Quarantine had discretion 
whether to allow importation or not;  the condition to  be met was that "[t]he Director of Quarantine 
must be satisfied that prior to importation into  Australia the product has been subject to such 
treatment as in the opinion of th e Director of Quarantine is likel y to prevent the introduction of any 
infectious or contagious disease, or disease or  pest affecting persons, animals or plants."52  T h e  
conditions to be attached for treatment did not pro scribe the entry of fresh, chilled or frozen salmon.  
It was noted that experts advising the Panel did no t consider heat-treated salmon to be the same 
product as fresh, chilled and frozen salmon and that heat- treated salmon w as normally traded in 
eviscerated form, hence different considerations would apply.  In this regard Australia noted that heat-
treated salmon had been allowed into Australia si nce the issuance of QP86A in accordance with the 
exercise of the delegated authority conferred on th e Director of Quarantine by QP86A;  for example, 
substantial quantities of heat-treated salmon, incl uding imports from Canada valued at some $A 10 
million in 1996.  Fresh, chilled and frozen salmon ha d been addressed separately, following which a 
decision had been taken that a permit for this produc t would not be issued at the present time.  Only 
minuscule, non commercial quantities of frozen un cooked salmon tissue had been imported for 
scientific purposes and for taxidermy.  At the curre nt time, Australia did not permit the commercial 
importation of fresh, chilled or frozen salmon from any country.  
4.29 In common with most other countries, Austra lia had historically not generally restricted 
imports of aquatic animal produc ts for reasons of disease risks.  Reasons include that by long 
established practice, aquatic products were primarily  sourced from the sea, fishing vessels were free 
to catch product not subject to private ownership and  the significance of aquatic animal disease was 
not fully appreciated - no ready dis tinctions could be made between the relevant disease status of fish 
caught in littoral waters or from other, more remo te stocks.  The growth of aquaculture and other 
developments changed this situation, including in  relation to the rapid accumulation of evidence on 
incidents of disease caused damage in aquaculture a nd wild stocks,  in part reflecting the commercial 
asset value of privately owned stocks. 
                                                      
51 The 1983 Guidelines, the 1988 Conditions and the 1996 Requirements, paragraph . 
52 Paragraph 2.14. WT/DS18/R 
Page 20  
 
4.30 Australia stated that the measure at issu e was the 13 December 1996 Decision of the Director 
of Quarantine, which was that quarantine restric tions on imports into Australia of uncooked salmon 
product from Canada and the United States should not be permitted entry at the present time, 
following an import risk analysis.  This decision deri ved from the exercise of authority by the Director 
of Quarantine in accordance with QP86A.  In essence, the December 1996 decision meant that a 
permit would not be issued for importation of uncooked salmon for the purposes of free circulation 
within Australia for commercial consumption.  Th is measure was applied within the meaning of  
paragraphs 1(a) and (b) of Annex A of the SPS Agreement as a measure a pplied for the purposes of 
protection of animal life and health which affect ed international trade within the meaning of 
Article 1.1 of the SPS Agreement.  The protection of  human life or health was not an issue in this 
dispute. 
4.31 Canada  noted that Australia's claim that the "measure" was the December 1996 decision by 
the Director of Quarantine limited the scope of th e measure to wild, ocean-caught Pacific salmonids 
from Canada and the United States.  However, the Terms of Reference for the current Panel extended 
to all fresh, chilled and frozen salmon from Canada.53  The Request for the Establishment of a Panel 
had made it clear that Canada's claim was not li mited to wild, ocean-caught Pacific salmon.  The 
matter set out in the Request was "measures prohi biting the importation of fresh, chilled or frozen 
salmon" through the application of QP86A and any amendments or modifications made thereto.  
Thus, although the December 1996 decision fell within  the Terms of Reference, it did not exhaust 
them.  In other words, while the 1996 Decision dea lt only with wild, ocean-caught Pacific salmonids, 
the Terms of Reference covered all fresh, chilled or frozen salmon.54  The scope of Canada's 
complaint covered the following species:  
 Pacific55 Oncorhynchus gorbuscha   pink salmon 
 salmon  Oncorhynchus keta    chum salmon 
   Oncorhynchus kisutch    coho salmon 
   Oncorhynchus nerka    sockeye salmon 
   Oncorhynchus tshawytscha   chinook or king salmon 
   Oncorhynchus mykiss    steelhead/rainbow trout 
   Salmo salar     Atlantic salmon 
In Canada, only adult salmon is harvested for export.    Th e importation of live salmon was not an 
issue in this case.  Live salmonids and their genetic material had not been approved for importation 
into Australia since the promulgation of QP86A in 1975.56 
4.32 However, if the Panel were to find that the measure at issue was the 1996 Decision, Canada 
argued, in the alternative, that Australia had viol ated Article XI of GATT for the reasons outlined in 
paragraph 4.228.  
4.33 Furthermore, Canada maintained that para graph 1(b) of Annex A was not relevant to the 
measure in question.  Canada noted that in the Final Report there had been no mention of assessing 
risks to salmon from disease-causing organisms in food, nor could it be expected that such an 
assessment be made when the product in question was intended for human consumption.  The first 
introductory paragraph of the Final Report stated that the main issues discussed were, inter alia , "the 
                                                      
53 WT/DS18/2. 
54 Table 1. 
55 The first five species are known collectively as "Pacific salmon".  Most harvested Pacific salmon is wild, 
ocean-caught.  Almost all Atlantic salmon is farmed, including on the Pacific coast. 
56 Final Report, p.5.    WT/DS18/R 
   Page 21  
 
likelihood of disease entry and establishment" and "t he consequences that may arise from that disease 
entry and establishment".57 
  (c) The disease agents at issue  
4.34 Australia stated that the number of disease agents at issue depended on the scope of the 
dispute and the specific products being addressed.  The initial scope of the risk assessment was 
uncooked salmon from both Canada and the United St ates.  The Final Report identified 24 disease 
agents at issue, of which at least 20 disease agents  exotic to Australia were identified as present or 
potentially present in adult, wild, ocean-caught Paci fic salmon of Canadian and US origin.  It was 
important to put any discussion on the number of disease agents at issue into the context of the 
specific product, for example whether reference was bei ng made to Pacific, Atlantic or all products.   
4.35 The risk at issue was to the health of  fish, particularly salmonids and salmoniforms58, as a 
potential consequence of the entry or spread of one or more of at least 20 disease agents likely to be 
present in uncooked wild, ocean-caught Pacific salm on of Canadian (and US) origin.  The risk was 
identified as the potential consequences of entry, estab lishment or spread of exotic diseases, including 
biological and economic consequences, for the life a nd health of live fish in Australia's Territory.  
This included the economic consequences of the impact  of disease entry, establishment or spread in 
regard to the economic asset value of salmonid aqua culture and recreational fisheries, the biological 
value in regard to native salmoniforms in the bu ilt environment and extended to the quality premiums 
that were commanded for Australian uncooked salmon in export markets.  Australian environmental 
conditions and the geographical c oncentration of commercial salmoni d aquaculture left Australia 
significantly exposed to the impact of exotic di sease establishment.  Salmon had been identified in 
Australian scientific studies as coming within the "h igh risk" category  in respect of exotic diseases.  
Salmonid  recreational  fisheries  added  significant economic benefit to regions in southern Australia, 
in addition to the  social asset value to the popula tion.  Australia confirmed that the diseases were not 
of concern from a human health perspective, but that they related to the potential consequences 
associated with the importation of salmon for human consumption, including the pathways by which 
events might occur.  As noted in the Final Report (pages 29 and 30) the product proposed for importation was intended for human consumption.  Although most was likely to be consumed by 
humans the product might be used for purposes other than human consumption.  The form of the 
product could have an impact on its final use;  ot her possible end uses included pet feed, bait and fish 
feed and disposal as scrap.  In this context, Australia noted that  Dr. Rodgers had confirmed that 
salmon were scavengers.  
4.36 Australia observed that, as a general rule, salmonids (salmon and trout) would be more likely 
to carry salmonid diseases than non-salmonids.  Du e to the commercial importance of salmon, the 
amount of science documented on salmonid disease was quite extensive when compared to other fish 
species, but when compared to th e knowledge built up over centuries of terrestrial animal production 
and medicine, this total amount was small and patc hy.  The gaps in data were compounded by the 
amount of interaction between disease agents, their ho sts and the environment.  Australia noted that 
there was a difference between "known to occur" and "may occur".  For many diseases there was 
scientific data to support the likely presence of the pathogen in salmon, though for a number of reasons the pathogen might not yet have been isol ated from adult ocean-caught salmon.  There were 
difficulties associated with growing and identifying pathogens from fish in the carrier state and the 
presence or absence of monitoring and survei llance programs for the disease agents.  The 
identification of an agent in a particular host woul d also reflect the intensity of the testing and the 
sensitivity of the methodology used.  When an outbreak of disease occurred, scientific resources 
                                                      
57 Ibid., "Purpose of Paper", p.3. 
58 Salmoniforms is the common name for the Order Salmoniformes.  Salmonids is the common name for the 
Family Salmonidae within the Order Salmoniformes. WT/DS18/R 
Page 22  
 
tended to give priority to control and eradication rather than identifying the source of the disease or 
transmission  possibilities. 
4.37 Australia noted that, in addition to the id entification of disease agents, disease transmission 
would depend on many factors, including scientific evaluation of the following: 
(i) source of product; 
(ii) number of different disease agents of qua rantine concern that may be found in a 
species; 
(iii) prevalence of the agent in source popula tion (whether naturally present, whether 
infection recognised under experime ntal or unusual circumstances; 
(iv) relationship between the agent in the host  and that found in the salmon in question 
(whether strains are specific to the host, th e species that the strains infect naturally, 
the circumstances under which the salmonids would be affected); 
(v) number of agents present and their tissue distribution; 
(vi) impact of processing on viability of agent; 
(vii) comparative amount that will be imported (t otal risk depends on volume imported); 
(viii) likely patterns of use in the importing country; 
(ix) likely manner of preparation and its impact in regard to the number of infectious 
agents present (for example, whether more  likely to be eaten raw or cooked); 
(x) likely means of disposal;  and 
(xi) consequences that would follow from introduction of the disease. 
4.38 Canada  argued that Australia had not indicated what disease agents/diseases identified in the 
Final Report were "addressed by" Australia's measu re.  Canada supported the comment of the United 
States in its "Third Party Oral Statement" that Au stralia seemed unable even to make up its mind as to 
how many disease agents were of concern.  Aust ralia first referred to "20 or more diseases under 
consideration," (paragraph 47 of Aust ralia's first submission), but then in the next sentence referred to 
"a possibility that up to 20 disease agents exotic to Australia may be present in Pacific salmon 
products".  This would apparently limit the number of disease agents of concern to no more than 20.  
In the next paragraph, however, Australia liste d 21 disease agents without identifying which 20 of 
these were of concern (paragraph 48 of Australia's Firs t Submission).  Australia next referred to "the 
23 identified disease agents" that were"‘at issue" (p aragraph 110 of Australia's First Submission).  
Australia never identified which 23 agents these were .  Thus, even after Australia had done what it 
purported to be a risk assessment, it could not or would not state which disease agents were the basis 
of its measure. 
4.39 Canada argued that when the Panel ask ed Australia how many and which diseases were 
addressed by its measure, Australia presented a list of 24 disease agents "of concern".  This list included infectious salmon anaemia virus (ISA), wh ich was never mentioned before, but no longer 
included Kudoa thyrsites, which was included in th e list of diseases set out in the Final Report.  
Moreover, the list of disease agents of concern di d not specify which disease agents were actually 
addressed by Australia's measure.  This was due to the failing of the Final Report to assess the 
likelihood that each of the diseases Australia ha d identified as being "of concern" would actually 
establish in Australia as a result of the importati on of uncooked Canadian sa lmon.  Thus, Australia 
had begun its Final Report with the premise that 24 diseases or disease agents might pose a risk and 
concluded exactly the same way.  In Canada's vi ew, this was one of the reasons why the experts 
advising the Panel considered the Final Report to be nothing more than a "hazard identification". 
4.40 Canada maintained that not more than 19 of  these disease agents of concern to Australia were 
known to occur in wild or farmed salmon from Canada .  Furthermore, some strains of four of these    WT/DS18/R 
   Page 23  
 
disease agents were endemic to aquatic animals in Australia.59  With respect to adult, wild ocean-
caught Pacific salmon , for which Australia had performed a ri sk assessment, Canada argued that only 
four disease agents were known to occur in that category of salmon (Table 4). 
4.41 Australia noted that the number of disease agents a nd the issue of whether they were exotic 
or non-exotic to Australia needed to be put into context in regard to strains of disease agents, as 
provided in the OIE Code.  Furthermore, as earlier indicated, the precise number of disease agents at issue depended on the product being discussed.  In re gard to Pacific salmon, there were at least 20 
disease agents of concern, but if considering all salmon, the number would be 24.  The Final Report 
addressed 24 disease agents, it did not claim that ther e were 24 disease agents at issue in regard to 
wild ocean-caught Pacific salmon.   
TABLE 3  
Disease Agents of Concern to Australia  
 
# Disease Agent 
 Known to occur in any of the five categories of 
salmon from Canada (Note 1) Endemic to 
Australia 
  Disease According to 
ALA: 
(Note 2) According to 
CAN: 
  
1 Aeromonas salmonicida  
(typical strain) 
 
Aeromonas salmonicida  
(atypical strain) furunculosis 
 
 
various names such as 
goldfish ulcer disease 
 YES 
 
YES YES 
 
 
YES  
 
 
X 
(some strains) 
2 Edwardsiella tarda edwardsiellosis YES YES X 
3 *Piscirickettsia salmonis piscirickettsiosis YES YES  
4 *Renibacterium salmoninarum bacterial kidney 
disease (BKD) YES YES  
5 Vibrio ordalii   and V. 
anguillarum  vibriosis YES YES X 
V. anguillarum 
(some strains) 
6 Vibrio salmonicida Hitra disease or 
coldwater vibriosis 
  YES YES  
7 Yersinia ruckeri enteric redmouth 
disease (ERM) 
  YES YES X 
(some strains) 
8 erythrocytic necrosis virus viral erythrocytic 
necrosis (VEN) 
  YES YES  
                                                      
59 Aeromonas salmonicida  (some atypical strains), Edwardisiella tarda , Yersinia ruckeri  (some strains) and 
Vibrio anguillarum  (some strains). WT/DS18/R 
Page 24  
 
TABLE 3  
Disease Agents of Concern to Australia  
 
# Disease Agent 
 Known to occur in any of the five categories of 
salmon from Canada (Note 1) Endemic to 
Australia 
  Disease According to 
ALA: 
(Note 2) According to 
CAN: 
  
9 Herpesvirus salmonis  type 1 - 
  NO NO  
10 †infectious haematopoietic 
necrosis virus (IHNV) infectious 
haematopoietic 
necrosis (IHN) 
  YES YES  
11 *infectious pancr eatic necrosis 
virus (IPNV) infectious pancreatic 
necrosis (IPN) 
  YES YES  
12 Pacific salmon anaemia virus erythrocytic inclusion 
body syndrome (EIBS)
  YES NO  
13 salmon leukaemia virus (SLV) plasmacytoid 
leukaemia 
  YES YES  
14 salmon pancreas disease virus pancrease disease YES YES  
15 †viral haemorrhagic septicaemia 
virus (VHSV) viral haemorrhagic 
septicaemia (VHS)  
  NO YES  
      
16 Enterocytozoon salmonis - 
  YES YES  
17 Loma salmonae - 
  YES YES  
18 Ceratomyxa shasta ceratomyxosis 
  YES YES  
19 Henneguya salminicola - 
  YES YES  
20 Myxobolus cerebralis whirling disease 
  YES 
 NO  
 
21 Parvicapsula sp. parvicapsula disease 
  YES YES     WT/DS18/R 
   Page 25  
 
TABLE 3  
Disease Agents of Concern to Australia  
 
# Disease Agent 
 Known to occur in any of the five categories of 
salmon from Canada (Note 1) Endemic to 
Australia 
  Disease According to 
ALA: 
(Note 2) According to 
CAN: 
  
22 proliferative kidney disease 
agent (sometimes called PKX) proliferative kidney 
disease (PKD) 
 YES NO  
23 rosette agent  YES YES 
  
24 *Infectious salmon anaemia 
virus (Note 3) 
   YES n.a.  
Note 1: See the five categories in Canada's as set out in Table 1 (Canada's response to the Panel's Question 2 of 
7 October 1997). 
Note 2: In response to the Panel's question.  "[w]hich of the identified diseases are known to occur in salmon 
from Canada? ...", Australia listed those diseases "c urrently known to occur in different subsets of 
Canadian salmon".  Australia noted, inter alia , that the information re flected current knowledge 
(Australia's 7 October 1997 answer to the Panel's Question 2). 
Note 3: This disease was identified after the issuance of the Final Report.  Australia indicated that this disease 
was not brought to its attention until September 1997, following the presumptive diagnosis of the 
disease in New Brunswick salmon, which was announ ced by Canadian authorities in late 1997.  See 
Australia's Rebuttal, p.31, p.33 as well as Australia's Responses to the Panel's Questions 1, 2, 11 and 25 of 7 October.  It should be noted that this list of diseases does not include Kudoa thyrsites , which was 
one of the 24 diseases of concern in the Final Report (p.133).  Canada notes this in their Comments on 
the experts' responses, of 18 December, p.10. 
* OIE - Other Significant Disease (shaded) 
† OIE Notifiable Disease (shaded) 
n.a. Not addressed WT/DS18/R 
Page 26  
 
 
TABLE 4  
Disease Agents Known To Occur In:  
 
 Adult  , wild ocean-caught 
Pacific salmon 
according to Canada   (4): 
 Wild caught Pacific salmon 
according to Australia (14) 
 
Disease agents  Renibacterium 
salmoninarum Renibacterium 
salmoninarum 
 Infectious haematopoietic 
necrosis  (IHN) Infectious haematopoietic 
necrosis  (IHN) 
 Salmon leukaemia virus Salmon leukaemia virus 
 Henneguya salminicola Henneguya salminicola 
  Vibrio anguillarum and V. 
ordalii  
  Yersina ruckeri 
  Erythrocytic necrosis virus 
  Piscirickettsia salmonis (?)   
  Edwardsiella tarda 
  Loma salmonae 
  Ceratomyxa shasta  
(affected individuals die as juveniles ?) 
  Aeromonas salmonicida  
(typical and atypical strain) 
  Parvicapsula spp. 
  Proliferative kidney disease 
agent (PKX) 
Note 1:  In Canada, only adult salmon are harvested for export. 
Note 2: Australia claimed that the fact that a disease agent pres ent in juvenile fish had not been identified in adult fish did  not rule 
out the presence of that agent in adult fish.  
Note 3: While Australia did not explicitly contest Canada's cla im that only four diseases (shaded in the table above) are known  to 
occur in adult, wild, ocean-caught Pacifi c salmon, Australia argued that there wa s a difference between "known to occur" 
and "may occur".  As Australia had been obliged to make a judgement about risk in a highl y uncertain field in the Final 
Report, it was misleading to imply that only those diseases known to occur were relevant. 
Source: Parties' response to the Panel's Questi on 2 of 7 October 1997 (see Note 2 in Table 3). 
4.42 Australia indicated that the Final Report (Sec tion 3) included a stochastic assessment of the 
economic impact in relation to two diseases (Furunculosis and IHN), including the economic and technical feasibility of prevention and control.  This demonstrated that Furunculosis  (Aeromonas 
salmonicida ) and Infectious haematopoetic necrosis virus (IHN) were diseases where the potential 
impact to Australian waters would be particular ly high given that the entire salmon industry would 
probably cease operation in the event of disease outbreak.  In addition, the introduction of Whirling    WT/DS18/R 
   Page 27  
 
disease into Australia would substantially raise the costs of production of salmon in Australia and 
increase mortality.60  Australia noted that Infectious salmon anaemia (ISA), a disease exotic to 
Australia, had recently been presumptively diag nosed in Canada (New Brunswick salmon).  
According to Australia, this disease had previously been thought to occur on ly in Norway.  If the 
presumptive diagnosis were confirmed in Canada, it would demonstrate that the disease was capable 
of spreading despite strict controls imposed by importing countries.  Australia further noted that 
Canada had not disagreed that there was a ri sk of disease spread through product for human 
consumption.  
4.43 Australia stated that the Final Report had b een obliged to make a judgment about risk in the 
face of considerable uncertainties resulting from ex tensive data gaps.  Australia had sought from 
Canada, but not received directly relevant scientif ic information on endemic disease agents present in 
a major resource, pertaining to: 
- prevalence of infection in adult, wild, ocean-caught Pacific salmon; 
- impact of processing and handling on the infection; - effectiveness of inspection at detecting infections; - infectious dose;  and 
- route of infection. 
In view of this dearth of information, the Canadi an presentation of those diseases that might be found 
in adult, wild, ocean-caught Pacific salmon from Canada was a simplification of a very complex issue.  Australia contended that, given the disease data gaps together with limitations in surveillance 
programs and testing protocols, it was misleading to concentrate only on those diseases that were 
known to occur.  Accordingly, Australia pointed out that there was a difference between "known to 
occur" and "may occur".  For example, the fact th at a disease agent present in juvenile fish had not 
been identified in adult fish did not rule out the presen ce of that agent in adult fish.  Equally, Australia 
contended that the fact that an agent had only been  recorded from fresh water did not mean that the 
agent would not be carried in the same host species under marine conditions.  
4.44 Of the total of 24 diseases of concern listed in  the Final Report, Australia claimed that 14 of 
these disease agents might occur in wild caught Pacific salmon from Canada.  The remainder had 
been included in the list as they were either found in  US stocks;  had been recorded to date only from 
the Atlantic coast of Canada;  or had only been isolated from farmed salmon.  For example, while 
Australia recognized that Myxobolus cerebralis  (whirling disease) was not present in Canadian 
salmon, Australia argued that the disease was present in US stocks and could therefore be present in 
exports from Canada.  As such Myxobolus cerebralis  was considered in the risk assessment on adult, 
wild, ocean-caught Pacific salmon.  Australia noted that Dr. Wooldridge supported the inclusion of any disease in a risk assessment for which there was reason to suspect that it was in the product.
61  In 
addition to the uncertainty presented by the above, the complexity of the issue had been further 
heightened by many product-related factors such as the spoilage of flesh, as seen with Henneguya 
salminicola.  This spoilage had the potential for increased wastage of uncooked flesh and consequent 
increase in the likelihood of such infected product en tering the water where susc eptible species occur.  
Australia emphasised that in the context of quaran tine, the concern was the dose needed to establish 
carrier status, which might be considerably lowe r than that required for actual clinical disease.  
Australia also noted that Canada had not contested the scientific evidence of the Final Report that all 
of the agents at issue, other than pancreas disease virus and Vibrio salmonicida , had been found in at 
least one age group of salmonids in the Pacific region. 
4.45 Australia argued that although there was no definitive proof of the spread of fish diseases via 
fish products for human consumption, the potential for introduction of exotic pathogens in this 
                                                      
60 Final Report, p.48 and pp.251-255. 
61 Wooldridge, Transcript, para. 107. WT/DS18/R 
Page 28  
 
manner could not be discounted.  Australia maintained that this lack of evid ence must be viewed in 
the context of the factors that would minimize th e likelihood of detecting the spread of a pathogen, 
should it occur.  These factors included the prev ailing situation where most salmon product was 
traded between countries where salmon diseases were already present.  Delay between any incident 
introducing the agent and the recognition of the presence of the agent would further minimize the chance of relating disease introduction to product movement.  The thoroughness and timeliness of 
disease surveillance and reporting as a factor contributin g to the lack of evid ence for pathogen spread 
through fish product for human consumpti on was also highlighted by Australia. 
4.46 To support its argument for transfer  of disease agents through product for human 
consumption, Australia cited examples of other pr oducts for human consumption, such as avian and 
mammalian tissues, known to have spread animal di seases.  These included the numerous recordings 
of international transmission of animal disease th rough products for human consumption such as foot 
and mouth disease, African swine fever, classical sw ine fever (hog cholera), swine vesicular disease 
and Newcastle disease.  Australia noted that the OIE International Animal Health Code included 
restrictions in respect of these di seases for the same reason.  In a ddition, Australia contended that 
given both the difficulty of proving the spread of  aquatic animal diseases through product and the 
very short history of aquatic animal medicine in comparison to its terrestrial animal counterpart, it 
would be prudent to consider that rather than be ing unlikely, it was probably only a matter of time and 
attention until there was definitive proof of the spread of aquatic animal disease via product for 
human consumption.  Australia further supported th is argument with evidence on previously exotic 
prawn viruses, responsible for the diseases Taura syndrome, whitespot and yellowhead, that had 
recently been found in the United States.  Though th e route of entry of these pathogens was unknown, 
the importation of farmed prawns for human cons umption from South America and Asia where these 
diseases were endemic had been proposed as the source of the infection 
4.47 With respect to Australia's concerns  regarding disease surveillance and reporting, Canada 
recalled Dr. Rodgers' comments that: 
"One other aspect to consider [i.e. in assessing the degree of confidence of disease detection] 
is that regularly tested stocks are normally c onsidered as a lesser risk than occasionally, or 
untested stocks, or products, since regular m onitoring will provide a background database of 
information over time. 
... 
"Unfortunately, this is rarely the case for wild  populations of fish because regular monitoring 
programmes do not normally exist, unless diagnosis  is related to the occurrence of large, 
noticeable mortalities.  However, sampling returning anadromous salmonids in their 
freshwater phase is occasionally the exception."
62 
Canada indicated, however, that over the past 20 years it had developed an extensive programme of 
disease monitoring of its wild population of Pacific salmon, particularly adults returning to fresh 
water to spawn.  These data had been provided to Australia and were included in Australia's Final 
Report.  For example, between 1972 and 1993, Canada sampled: 
- 21,495 returning anadromous salmonids for Aeromonas Salmonicida (atypical and 
typical); 
- 21,999 returning anadromous salmonids for Renibacterium salmoninarum ; 
- 21,495 returning anadromous salmonids for Yersinia ruckeri ; 
- 21,495 returning anadromous salmonids for Vibrio anguillarum  and Vibrio ordalii ; 
- 14,595 returning anadromous salmonids for infectious haematopoietic necrosis; 
                                                      
62 Paragraph 6.91.    WT/DS18/R 
   Page 29  
 
- 14,595 returning anadromous salmonids fo r infectious pancreatic necrosis;  and 
- 14,595 returning anadromous salmonids  for viral haemorrhagic septicaemia.63 
4.48 Canada further noted that ISA had been a dded to the list of diseases of concern to Australia 
during the Panel process, without a risk assessment .  Furthermore, Australia had acknowledged that 
the disease had only been identified in adult Atlantic  salmon farmed in New Brunswick. 
4.49 In regard to the New Brunswick salmon, Australia noted that Canada's comments were valid 
only insofar as the product at issue in the dispute were limited to the Pacific product addressed in the Final Report.  However, Canada claimed that the dispute extended to New Brunswick salmon. 
  (d) Article 1.1
 
This Agreement applies to all sanitary and phytosanitary measures which may, directly or indirectly, affect  international trade .  Such 
measures shall be developed and applied in acco rdance with the provisions of this Agreement. 
 
SPS Agreement, Article 1.1  
4.50 Canada observed that Australia's measure directly or indirectly affected international trade 
within the meaning of Article 1.1 of the SPS Ag reement, however, Canada maintained that the 
measure was not "developed and applied" in accordance with the SPS Agreement and that it was 
therefore in violation thereof.  
4.51 Australia  agreed that the measure taken, as identif ied by Australia, was a sanitary measure 
for the protection of animal life and health within  Australia's Territory an d within the meaning of 
Article 1.1 of the SPS Agreement, but did not agree that the measure at issue was as described by 
Canada.  Australia claimed that the Panel was not  required to examine whether there had been a 
violation of Article 1 of the SPS Agreement, as Canada  had not claimed a violation of this provision.  
As stated above, the measure was applied for the purposes of protection of animal life and health and 
affected international trade within the mean ing of Article 1.1 of the SPS Agreement.   
  (e) Article 2.2 
Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to protect human, anima l or 
plant life or health, is based on scientific principles and is not maintained without sufficient  scientific evidence, except as  provided for 
in paragraph 7 of Article 5. 
SPS Agreement, Article 2.2  
4.52 Canada  claimed that Australia was required to ensure that its ban on the importation of 
uncooked salmon was sustained by sufficient, rele vant, scientific evidence,  reflecting the risks 
Australia claimed would arise from the entry of salmonid diseases through the importation of uncooked salmon.  There was a substantial body of re levant scientific evidence which made it clear 
that Australia had failed to ensure that its measur e was "not maintained w ithout sufficient scientific 
evidence".  Therefore, Canada contended, Australia had failed to meet the fundamental obligations on 
the application of SPS measures, as set out in Article 2.2.  
4.53 Canada recalled that the Appellate Body in EC - Hormones  had considered that Article 2.2 
and Article 5.1 of the SPS Agreemen t had constantly to be read t ogether and that elements which 
                                                      
63 Final Report pp. 137, 157, 175, 165, 191,  197, and May 1995 Draft Report, p.196. WT/DS18/R 
Page 30  
 
defined Article 2.2 imparted meaning to 5.1.64  The Appellate Body had c oncluded that the result of a 
risk assessment had to sufficiently warrant or reas onably support the sanitary measure at issue.  There 
had to be a rational relationship between the scientific evidence discl osed in a risk assessment and the 
sanitary measure.65  Canada argued that the foundation of any sanitary measure must be science, not 
protectionism or politics.  Article 5.1 of the SPS Agreement required that a sanitary measure must be 
based on a risk assessment.  Article 5.2 provided that Members must take into account available 
scientific evidence in assessing this risk.  Thus, the heat treatment conditions set out in Australia's 
measure and the consequent ban on the importa tion of uncooked salmon had to be rationally 
supported by the available scientific evidence to achie ve Australia's appropriate level of protection.  
Canada stated that there was no sound scientific r eason for Australia to continue to maintain a 
heat-treatment policy that had the effect of banning the importation of uncooked Canadian salmonid 
products into Australia.  In Canada's view, Australia's  measure violated Articles 2.2, 5.1 and 5.2 of the 
SPS Agreement.  
4.54 Australia  argued that Article 2 of the SPS Agreem ent accorded basic rights and obligations 
to Members in respect of the application of sanita ry measures referred to under Article 1 of the SPS 
Agreement.  Article 2.1 enabled Australia to take  sanitary measures which might be necessary for the 
protection of animal life and health, provided that  the measures were not inconsistent with the 
provisions of the SPS Agreement.66  Article 2 conferred a basic right , and Canada had therefore a 
higher burden of proof to establish a prima facie  case that the conditions attached to Article 2.1 had 
not been met.  Nevertheless, without prejudice to the question of burden of proof, Australia's 
contended that the measure was necessary and was not inconsistent with the SPS Agreement. 
4.55 Australia noted that Canada's claims of viol ation of Article 2.2 were limited to the measure 
not being based on sufficient evidence.  In the context of Article 2.2, Canada had not claimed that the 
measure was being applied beyond what was necessary to protect animal life.  As had been noted by 
the Appellate Body in EC - Hormones , Articles 2.2 and 5.1 had constantly to be read together.67  The 
Appellate Body had also noted:  
"... a panel charged with determining, for inst ance, whether "sufficien t scientific evidence" 
exists to warrant the maintenance by a Member of a particular SPS measure may, of course, and should, bear in mind that responsible , representative governments commonly act from 
perspectives of prudence and precaution where risks are irreversible ...." 
68 
Australia maintained that there was sufficient scientific evidence to maintain the measure, which 
reflected Australia's appropriate level of protecti on.  Canada's evidence related to opinions expressed 
about the absence of conclusive sci entific evidence;  this did not contradict the evidence on which 
Australia had based its measure.   
Sufficient scientific evidence  
4.56 Canada  noted that in addition to Australia's alle ged import risk analysis (paragraphs 2.27-
2.30 refer), various studies and reports  have considered issues relevant to the matter in dispute.  In 
December 1992 the Working Group on Aquacultu re, a Commonwealth/State/Territory Group 
commissioned background documents for discussion by the Australian and New Zealand Fisheries 
and Aquaculture Council.  Technical Paper No.2 , "Relationship Between Wild Fisheries and 
Aquaculture", studied the major positive and nega tive interactions between wild-fisheries and 
                                                      
64 Op. cit, para. 180. 
65 Ibid., para. 193. 
66 Article 2.1 of the SPS Agreement:  "Members have th e right to take sanitary and phytosantiary measures 
necessary for the protection of human, animal or plant life or health, provided that such measures are not inconsistent 
with the provisions of this Agreement." 
67 Op. cit., para. 180.   
68 Ibid., para. 124.    WT/DS18/R 
   Page 31  
 
aquaculture.  Possible objectives and recommendations were made, including in the areas of 
marketing, co-operation, education, environmen t, government and management.  Technical Paper 
No.3, "Quarantine, Health and Movement", examined inter alia , the importation of fish and fish 
products (including salmonid produc ts), interstate movement and disease control.  The Paper set up a 
list of priorities which included the principles for the development of appropriate protocols for the 
importation of fish and fish products from overs eas. The technical papers were prepared by 
consultants as background papers for the Draft National Strategy on Aquaculture. 
4.57 In September 1994, the New Zealand Ministry of Agriculture and Fisheries Regulatory 
Authority published a report on "The Risk of In troducing Exotic Diseases of Fish into New Zealand 
through the Importation of Ocean-caught Pacific Salmon from Canada".  The "1994 New Zealand 
Risk Assessment" on imports of wild, ocean-caught Pacific salmon from Canada concluded that "the 
overall risk of introducing diseases of salmon thr ough the vehicle of headle ss, eviscerated, wild, 
ocean-caught Pacific salmon, appropriately certified by the Canadian Government authorities as to 
origin and grade, is negligible and poses no threat  to either New Zealand's wild and farmed salmonid 
stocks or to non-salmonid fish stocks".     
4.58 The Australian Quarantine and Inspection Se rvice (AQIS) in 1992 commissioned a review of 
Australia's aquatic animal quarantine policies as a basis for a review by AQIS of its quarantine 
policies and procedures.  The review was conducted by  a scientific working party led by M.J. Nunn of 
the Bureau of Resource Sciences.  Its report, "Aqua tic Animal Quarantine in Australia - Report of the 
Scientific Working Party on Aquatic Animal Quaran tine" (the "BRS Report") was released in 1995.  
This report concluded, inter alia , that the present restrictions on the importation of salmonid flesh for 
human consumption could not be ju stified and should be revised.  Th e report also made a number of 
recommendations for AQIS to consider, including that:  salmonid fish should be individually inspected for evidence of muscle, skin, visceral lesions or abnormaliti es, and should be certified as 
free of such by a competent govern ment authority;  unless other safeguards are taken to minimize 
possible risks, salmonid fish should be imported as eviscerated, filleted flesh to minimise possible 
contamination by exotic pathogens;  databases on several aspects of aquatic animal health and disease 
should be developed;  and that research was needed , for example, in regard to the inactivation of 
pathogens (by heat). 
4.59 In order to facilitate th e above-mentioned BRS Report, a c onsultant was commissioned to 
produce a detailed independent review of the scien tific literature and Australian quarantine policies 
and practices for aquatic animals and their products .  "Australian Quarantine Policies and Practices 
for Aquatic Animals and their Products: a review for the Scientific Working Party on Aquatic Animal 
Quarantine", by J.D. Humphrey, Bureau of Resource Sciences, was distributed in 1995 (the "1995 Humphrey Report").  This report concluded that there was little evidence to support a case that the 
importation of products derived from aquatic animals destined fo r human consumption presented a 
risk of establishment of exotic pathogens in th e aquatic environment.  It concluded that an 
inconsistency currently existed whereby fresh or frozen products derived from finfish other than 
salmonids might be imported without specific quara ntine restrictions, wher eas salmonid flesh was 
prohibited unless treated in a manner to inactivate potential pathogens.  It also concluded that the 
current process of heating salmonid fish to inac tivate potential exotic pa thogens did not have a 
rational basis in view of the thermal stability of a number of pathogens of high quarantine importance, 
especially at the lower temperature ranges. 
4.60 In response to requests for market access for salmon from Australia and the United States, 
New Zealand undertook an analysis of disease risk s from wild and aquacultured salmonid products 
from a wide range of countries, issued in Septem ber 1997.  The "1997 New Zealand Risk Analysis" 
considered in particular headed, gilled and evi scerated salmon, and included both a qualitative and a 
quantitative assessment.  One conclusion of the quan titative assessment was th at the upper 95 per cent 
confidence limits for the probability of Aeromonas salmonicida introduction per tonne of head-off, 
eviscerated, commercially-harvested, wild Pacific salmon from North America was 2.27 x 10
-9 and for WT/DS18/R 
Page 32  
 
farmed Atlantic salmon from Norway is. 5.48 x 10-8.  New Zealand concluded "[c]onsidering that the 
probability of an aquatic animal disease being in troduced into New Zealand through imports of the 
commodity is likely to be negligible for most diseases and very low for others, continuing  a 
prohibition on imports is inappropriate."69  (emphasis in the original)  
4.61 Australia  observed that the studies referred to by Canada did not reflect official government 
policy.    In December 1988, Australian governme nt policy objectives on quarantine were set out in 
"Australian Quarantine - Looking to the Future: a Government policy statement", known as the "Cook 
Statement".  This statement sets out Australia's  long-term quarantine policy fundamentals and 
organization. 
4.62 In October 1996, a report on "Australian Qu arantine - A shared responsibility" was published 
by the Department of Primary Industries and Energy .  This document (the "Nairn Report") set out a 
series of recommendations to the Australian G overnment.  Following these recommendations, a 
program of aquatic quarantine revi ews was established.  A National Task Force on Imported Fish and 
Fish Products was commissioned by the Australian G overnment to prepare a paper that would enable 
a coordinated response to several current aquatic animal health issues.  The "Task Force" had 
representatives from the Federal and State levels of the Government, industry, recreational fisheries, 
conservation groups and the scientific community.  "A Report into the implications arising from 
aquatic animal imports", also called the "Repor t of the National Task Force", was published in 
December 1996.  In August 1997, the Government's response to the Nairn Report and the Report of 
the National Task Force was published as "Austra lian Quarantine: A Shared Responsibility - The 
Government Response".  This document set out current Australian quarantine policy.  
4.63 Australia also contended that the economic  study by the Industry Commission on "Australian 
Atlantic Salmon - Effects of Import Competition" , dated 20 December 1996, was highly pertinent. 
4.64 More importantly, Australia indicated that it was the practice of the Australian government to 
commission studies by consultants at the policy formulation stage.  It was also the practice of the 
Australian government, at the policy development stage, to commission draft reports containing 
recommendations designed to stimulate public res ponse.  These reports often made proposals for 
change, which resulted in public responses by all stak eholders.  However, official decision makers 
often rejected the draft recommendations or accepted them only partially or in modified form.  The various studies and reports cited by Canada, and the recommendations th ey contained, had to be seen 
in this light.  Furthermore, Canada had selectivel y quoted from these reports, giving an inaccurate 
rendition of factual and scientific circumstances.  Nor had these reports been subject to the same 
scientific scrutiny as the Final Report. 
4.65 Canada  argued that the Humphrey Report, the BRS  Report, and Technical Paper No. 3, all 
commissioned by Australia, represented thorough sci entific analysis and opinion that together 
constituted significant evidentiary material before th e Panel.  These reports concluded that there were 
no confirmed examples of diseases that had been established in aquatic animal populations as the 
result of the introduction of fresh or frozen product from aquatic animals including salmonids;  that there was little scientific evidence to support a case  that the importation of products derived from 
aquatic animals including salmonids destined for human consumption presented a risk of 
establishment of exotic pathogens in  the aquatic environment;  that evisceration of fish was a reliable 
means of preventing the spread of aquatic animal pa thogens through the international trade in aquatic 
animals;  and that a continued ban on the importation of uncooked salmonid products was 
scientifically difficult to justify.  The reports show ed that Australia's measure was without scientific 
foundation.  Australia had not questioned the credib ility of the scientific an alysis and conclusions 
contained in the reports.  Nor had Australia pr esented any alternative scientific evidence that 
                                                      
69 M. Stone, S. MacDiarmid, and H. Pharo, "Import Health Risk Analysis:  Salmonids for Human 
Consumption", New Zealand Ministry of Agriculture Regulatory Authority, 1997, p. 6.    WT/DS18/R 
   Page 33  
 
contradicted the conclusions contained in the repo rts.  Rather, Australia discredited these reports only 
because they did not represent official government policy. 
4.66 Australia  argued that Technical Paper No. 3 was commissioned as a discussion paper for the 
purpose of assisting an Australian aquaculture workin g group to identify potential issues and options 
for developing policies and measures to address poten tial concerns in relation to aquaculture in 
general.  It did not have the purpose of a compre hensive examination of salmonid issues and did not 
include comprehensive detail on salmonid health.  Au stralia noted that the purpose of the BRS Report 
was to identify issues and possible options as part  of a review of Australia's aquatic quarantine 
policies.  Again, the authors did not have the manda te to undertake a risk assessment, nor to limit the 
scope of the study to salmon.  The Humphrey Report was commissioned to assist the authors preparing the BRS Report, hence it formed part of the BRS Report.  To the extent that these papers 
and reports  contained relevant , valid and uncontradicted scientif ic data, it was drawn upon in the 
salmon risk assessment process.  
4.67 Canada  observed further that Australia had acknow ledged in the Final Report that there was 
no evidence to link trade in salmon products for human consumption to spread of diseases.
70  Hence, 
Canada argued there was substantial epidemiological ev idence in respect of the lack of spread of the 
diseases through international trade in uncooked salmon.71  The Final Report had asserted that:  
"The potential for pathogenic exotic organisms to  enter Australia via imports of salmon from 
Canada and the United States is a risk and for some of the disease agents under consideration 
it is probable  that if commercial quantiti es of product were imported some  of the exotic 
agents would be introduced with the produc t.  This must be considered against the 
background that there is no epidemiological evidence recorded in the literature  of disease 
having been spread via trade in salmon products for human consumption although it must be acknowledged that in practice the occurrence of su ch events would be difficult to determine." 
... 
"Although there is no scientific evidence for th e spread of the disease agents under 
consideration  via product for human consumption, it is possible that such events, if they have 
occurred, would be relatively uncommon and extremely difficult to recognise."
72 
4.68 Canada noted that the Final Report acknow ledged that, since the May 1995 Draft Report, 
despite further inquiries, no reports had been found in the scientific literature of transmission of 
disease via salmon product for human consumption73 and that the scientific evidence did not sustain 
the conclusion that disease agents were sp read through trade in eviscerated fish.74  On the contrary, 
there was ample scientific evidence, consistent with  a substantial body of epidemiological data, to 
show that Australia had not ensured that its  ban on the importation of uncooked salmon was 
maintained on the basis of su fficient scientific evidence. 
4.69 Canada stated that in both the Final Report and the May 1995 Draft Report, the importance of 
the sequence of events that had to be met for an exotic disease to become established in Australia had 
                                                      
70 Final Report, p.364. ("There is  no evidence to link trade ..."). 
71 Canada cited a number of reports, including:  the 1994 New Zealand Risk Assessment, pp.5-6;  May 1995 
Report, p.i, p.iii, p.218;  Humphrey Report, pp. 89, 117;  Nunn Report, p.34;  P. de Kinkelin and R.P. Hedrick, 
"Dilemmas of Disease Control Policies" (1991), 11, Bulletin of the European Association of Fish Pathologists 3;   
Technical Paper No.3. 
72 Final Report, p.66 and p. 67. 
73 Ibid., p.67, 37, p.349 "Despite further inquiries no reports ...". 
74 Ibid., p. 47 for Ceratomyxa shasta  and Henneguya salminicola ; p.44 for IHNV.   See also New Zealand 
Import Risk Assessment, p. 20 for IHNV. WT/DS18/R 
Page 34  
 
been noted.75  For the first step in the sequence of events, "the source fish must contain exotic 
pathogens", Australia had acknowledged in the Final Report that there was no evidence that several of 
the pathogens at issue had ever been found in w ild, ocean-caught Pacific salmon (Table 5).  In its 
response to the Panel's additional questions (Question 3)76, Australia had also acknowledged that "the 
'known' presence of an agent with a particular hos t by itself is not an accurate indicator of the 
likelihood of disease introduction, establishment or spread". 
4.70 Canada argued that in examining the likeli hood that every step in the sequence of events 
would occur, in light of the scientific evidence on th e health status of North American salmonids, the 
May 1995 Draft Report had concluded that importa tion under specified conditions of wild, ocean-
caught Pacific salmon from Canada and the United States for human consumption did not present a 
significant risk of the introduction and establishment of  an exotic disease or strain of a disease to 
Australia.77  This conclusion was consistent w ith the 1994 New Zealand Risk Assessment 78 and had 
been supported by comments from peer reviewers.79  Canada noted, furthermore, that both 
Drs. Wooldridge and Rodgers had stated that  the May 1995 Draft Report was a qualitative risk 
analysis.  Australia had acknowledged this, st ating that the 1995 Draft Report fulfilled the 
requirements under Article 5.  Yet the Final Re port had rejected these two conclusions, reached 
independently of each other.  Moreover, the Final Report did not show that the scientific evidence in 
the May 1995 Draft Report was incorrect or not appr opriate.  Neither did the additional scientific 
references included in the Final Report provide ev idence that importations of uncooked salmon would 
result in the introduction of each or any one of the pathogens of concern.  Further aggravating the 
situation, Australia had left out data in the Final Report which was present in the May 1995 Draft 
Report;  a fact that both Drs. Wooldridge and Rodge rs noted in their submissions to the Panel.  
Nonetheless Australia's Final Report had come to exactly the opposite conc lusion of the May 1995 
Draft Report in prohibiting the importation of un cooked salmon under any condition.  In Canada's 
view the only conclusion that could be drawn was that extraneous factors, other than scientific 
evidence, were at the root of Australia's measure. 
4.71 Canada refuted Australia's demand that Ca nada provide scientific proof that disease would 
not be transmitted through eviscerated product.  Canada  countered that it would never be able to meet 
the scientific burden Australia was imposing; as Dr . Burmaster had noted, "one can never prove the 
negative in science".80 
                                                      
75 Ibid., p.51;  May 1995 Draft Report, p.215. 
76 The Panel's Additional Questions to the Parties of 8 December 1997. 
Question 3:  Which aquatic animals other than salmonids, that are known to be carriers of any, 
several or all of the 24 diseases of concern to Au stralia, does Australia import?  For such imports, 
please indicate  (i) the purpose(s) and subsequent us e thereof (e.g. for human consumption, bait), (ii) 
the approximate volume currently imported and that imported over the last 20 years (iii) the form of 
the product allowed for importation (i.e. eviscerated, frozen) and (iv) the specific sanitary measures applied to these non-salmonids, other than those identified in your response to Question 4 (c) and (d) of 7 October (under what specific conditions can, for example, Pacific herring be imported as bait fish). 
77 May 1995 Draft Report, p.223 (Conclusi ons), see also paragraph 4.172.  
78 1994 New Zealand Risk Assessment, p.2. 
79 Tore Håstein (July 1995) and A.H. Mc.Vicar (August 1995). 
80 Burmaster, Transcript, para. 250.    WT/DS18/R 
   Page 35  
 
 
TABLE 5  
Occurrence Of Diseases In Wild, Ocean-Caught Pacific Salmon  
(Excerpts from the Final Report)  
Disease Agent Final Report 
Aeromonas salmonicida  (typical strain) 
Aeromonas salmonicida  (atypical strain) p.38 . "Its presence has not been reported in  wild, adult, marine Pacific salmon in 
North America, nor elsewhere in the North Pacific Ocean." 
Yersinia ruckeri p.42.  "Disease due to Y. ruckeri  infection has not been reported in adult, wild, 
marine Pacific salmon ... " 
Piscirickettsia salmonis p.40.  " P. salmonis  has not been observed in adult,  wild, marine Pacific salmon, 
but it has been seen in captive Pacific salmon stock held in sea water in the 
region." 
Salmon pancreas disease virus p.45.  "Although pancreas di sease has not been reported in wild, adult, marine 
Pacific salmon, as the causal agent has onl y recently been identified as a virus 
the likelihood that Pacific salmon could be infected cannot be predicted with any 
certainty." 
Viral haemorrhagic septicaemia virus (VHSV) p.45.  "The virus has not been identified in adult,  wild, marine Pacific salmon, 
but has been identified in spawning salm on, perhaps as a result of contact with 
cod and/or herring in marine waters." 
Enterocytozoon salmonis p.46.  "Of the species currently under c onsideration, natural infection has only 
been identified in chinook salmon and ha s not been reported in adult, wild 
marine Pacific salmon." 
Loma salmonae p.46.  "Infection may occur at sea, but has not been reported in adult, wild, 
marine Pacific salmon." 
 
Herpesvirus salmonis  type 1 p.43.  "Infection has not been de tected in the Pacific salmon species under 
consideration, nor has it been detected in  salmon in British Columbia or Alaska." 
Infectious haematopoietic necrosis virus (IHNV) p.43.  "IHNV ha s been recovered on one occasion from a group of fish returning 
to spawn, and this was regarded as an  unusual event ... All other attempts to 
isolate the virus in adult, wild, marine  Pacific salmon have been unsuccessful." 
Infectious pancreatic necrosis virus (IPNV)  p.44.  "Extensive sampling of wild a dult Pacific salmon in British Columbia and 
Alaska failed to detect the presence of IPNV." 
Pacific salmon anaemia virus p.44.  "Infection with PSAV has not been reported in adult, wild, marine Pacific 
salmon."  
Myxobolus cerebralis p.48.  "Infection has not been reported in Canada or Alaska. ... Very few if any 
adult marine salmonids in the Pacific ri m of North America would be expected 
to be infected with M. cerebralis ." 
Rosette agent p.49.  "It has been recognised in farmed salmonids, but not , to date, in adult, 
wild, marine Pacific salmon." 
Source:  First submission of Canada, pp.96-97;  Final Report, pp.38-49.  WT/DS18/R 
Page 36  
 
 
4.72 In order to determine what conclusions Au stralia might have reached had it used the data 
available to it, Canada had commissioned David Vo se, an expert with considerable experience in 
animal import risk assessments, to prepare an as sessment of the likelihood that imports of uncooked 
Canadian salmon would result in the establishment of the two disease agents identified by the May 
1995 Draft Report as posing the greatest risk of introduction, Aeromonas salmonicida  and 
Renibacterium salmoninarum .  Canada instructed Mr. Vose to c onsider only information cited in the 
May 1995 Draft Report or the Final Report or that was otherwise available to Australia when it was 
preparing its reports.  Canada observed that both Dr s. Wooldridge and Burmaster considered the Vose 
Report to be "very relevant"81 to the case at hand.  The Vose Report concluded that 82:   
- a salmonid would need to consume 400,000 kg. of Canadian salmon scraps to be 
50 per cent certain of receiving an infective dose of Aeromonas salmonicida  or 
7,800 kg. of Canadian salmon scraps to be 50 per cent certain of receiving an 
infective dose of Renibacterium salmoninarum ; 
- the dilution rates in dumps containing Ca nadian salmon scraps which might carry the 
two disease agents would be so high as to make the risk associated with water run-off 
negligibly small; 
- the maximum average levels of the two disease agents in waste water due to imports 
of Canadian salmon would be billions of times lower than the levels necessary to 
cause an infection;  and 
- one would have to wait hundreds of thousands or even millions of years to be 
50 per cent sure of at least one lesion containing the disease agents entering Australia 
in imported Canadian salmon and that lesion would then have to complete intact all 
of the remaining post-entry steps in orde r to lead to possible disease establishment. 
4.73 Australia  drew attention to its request that the Vose Report be excluded as evidence.83  The 
Vose Report had been amended overnight and the revi sed version was not  communicated to Australia 
until 6 February 1998.  Australia had subsequently provided initial written comment which contested 
some of the science, but Canada had contested th e admissibility of this comment as evidence.  
Australia had noted that the Vose Report and other studies had not been subjected to the same WTO 
legal scrutiny as the Final Report, nor did they pur port to be risk assessments in the sense of the SPS 
Agreement.  Canada was ignoring requirements of  due deference and was requesting the Panel to 
undertake a de novo  review. 
4.74 Nonetheless, without prejudice to Australia's  concerns about its admissibility as evidence - 
and also without prejudice to Australia's concerns th at this paper had not been subject to the same 
scientific scrutiny (including scientific peer review ) as the Final Report, Australia argued that the 
Vose Report attempted to assess only the risk of in troduction and establishment of only two of the 24 
agents of concern and did not attempt to assess the consequences of introduction.  Australia agreed 
that it provided a reasonable approach to deve loping a quantitative model of the risk of introduction  
of these two agents, if sufficient relevant date were available.  However, Australia stressed that the 
paper's attempt at a quantitative as sessment of the risk of disease establishment  was incomplete in that 
it attempted to assess for only two of the 24 agents  of concern only one of a potentially large number 
                                                      
81 Wooldridge, Transcript, para. 255, and Burmaster, para. 257. 
82 "Quantitative analysis of the risk of establishment of Aeromonas salmonicida  and Renibacterium 
salmoninarum  in Australia as a result of importing Canadian ocean-caught salmon", David Vose, (the "Vose Report"), 
December 1997. 
83 Paragraph 4.4.    WT/DS18/R 
   Page 37  
 
of pathways by which contaminated or diseased impo rted product could reach susceptible host fish in 
Australia.  The particular post-entry exposure path way that the Vose Report attempted to model (i.e. 
exposure via contaminated groundwater from garb age containing contaminated or diseased imported 
product) ignored other higher risk pathways associat ed with the disposal of  scraps as waste (e.g. the 
risk of spread via excess run-off and floods, scavengi ng birds such as seagulls, or the entry of raw or 
poorly cooked scraps to waterways by other means, in cluding restaurant scraps, picnickers, or people 
deliberately feeding scraps to birds or fish).  Aust ralia also raised concerns regarding the paper's 
omission of consideration of the risk  of introduction and establishment of Aeromonas salmonicida , 
the causative agent of furunculosis, through sk in mucus of salmon.  What the Vose Report did not  
attempt to model was of considerably more importan ce than the details of what it did attempt, and it 
confirmed Australia's view that a fully quantita tive approach for evaluating the likelihood of 
establishment and spread of exotic pathogens importe d with the product at issue was not feasible or 
appropriate.  Australia noted again that it was under no obligation to attempt a quantitative risk 
assessment and reiterated concerns it had previously expressed about the difficulty and limitations of 
a quantitative approach in complex scenarios where there were significant gaps in information. 
4.75 Australia contended that much of what Cana da claimed to be substantial scientific evidence 
simply related to an absence of reports.  It did not re late to directed scientific work aimed at detecting 
whether something occurred or not.  Spread, if occurring through product, in countries where the disease agent existed was unlikely to be attributed to the movement of product, frequently because of 
the delay between any  incident introducing the agen t and the recognition of the presence of the agent.  
Also, once a presumptive diagnosis was made of a newly identified disease agent, the bulk of scientific work was concentrated on control and eradi cation.  Canada's evidence was in the realm of 
assertion, drawing on a statement in a New Zealan d risk assessment and selective quotations from 
various Australian  studies, which did not contradict  the science of the Final Report.  The "substantial 
epidemiological evidence" cited by Canada related so lely to opinions expressed in reports and studies, 
much of this relating to levels of risk.  Some of  this opinion had since stood corrected in relation to 
the recent presumptive diagnosis of ISA in New Brunswick salmon, which had led to stock eradication and other quarantine measures, at significant financial cost.   
4.76 Australia argued that in order to establis h whether a measure was "necessary", reference had 
to be made to the appropriate le vel of protection and whether there was a risk that the appropriate 
level of protection would not be achieved if the pr oduct (uncooked salmon) were to be imported in 
any form.  Australia had not claimed that there need ed to be irrefutable scientific evidence that an 
event would not occur, rather that "sufficient scientific evidence" was relevant to the appropriate level 
of protection.  Australia had identified through sci entific research that there was a potential for a 
number of disease agents exotic to Australia to be present in uncooked Canadian salmon.  If product 
entered, disease agents would enter.  This was not in  dispute.  On the basis of available scientific 
information, it had been determined that there was a likelihood that those disease agents could be 
present in the product on arrival in Australia even if  the product had been subject to certain forms of 
treatment other than heat treatment.  In addition it had been established that the entry, establishment 
or spread of those disease agents could occur through certain identified pathways.  Options for 
managing the risk by means other than restricti ons on imports had been a ddressed but had not been 
considered to be adequate to achieve the appropriate  level of protection.  It had been concluded that 
there was an unacceptable level of ri sk associated with the importation of the product in question.  For 
these reasons, Australia argued that it determined that the measure was necessary to achieve its 
appropriate level of protection.   
4.77 Australia  argued that "sufficient scientific  evidence" did not require a demonstration of 
conclusive scientific evidence.  Australia was entitled to adopt a cautious approach.  There was 
sufficient scientific evidence of a risk of disease entry, spread or establishment to maintain its 
measure.
84  The SPS Agreement did not set value or vol ume thresholds nor categorize obligations 
                                                      
84 Final Report, pp. 7-10 outlines the process used to gather information. WT/DS18/R 
Page 38  
 
according to trade or economic concerns.  There were no limits to the type or scope of a measure used 
by a Member;  the SPS Agreement did not preclude Members from maintaining import prohibitions if 
such measures were necessary for the protection of  life and health.   The evidence presented by 
Australia was sufficient for the purposes of determini ng that the appropriate level of protection could 
not be achieved if uncooked salmon from Canada were permitted entry.85  Australia was not obliged 
to demonstrate that there was conclusive eviden ce.  Canada's arguments were based on opinions 
expressed about the absence of conclusive evidence.  Australia had pointed out the significant gaps in 
scientific research in salmon and other aquatic animal s compared to the work undertaken on terrestrial 
animals, where products for human consumption were  known to have spread disease.  In terms of 
"sufficient scientific evidence", the Appellate Body in EC - Hormones  made it clear that a risk 
assessment did not necessarily have to embody only the vi ew of the majority of the relevant scientific 
community and Members were entitled to take d ecisions notwithstanding scientific uncertainty.86 
4.78 Australia summarized that the availa ble scientific evidence indicated that: 
- at least 20 disease agents, exotic to Austra lia were potentially present in adult, wild, 
ocean-caught Pacific salmon which might be imported into Australia from Canada; 
- some or all of these disease agents, togeth er with some other disease agents present in 
other Canadian salmon populations, could en ter, establish or spread in Australia 
through the importation of uncooked salmon of Canadian (or United States) origin; 
and 
- if established, the disease or strains of di sease agent were unlikely to be amenable to 
eradication, with serious economic and environmental impact. 
4.79 Australia argued that for most of the diseas e agents, the information necessary to establish the 
likelihood of their entry through the importation of uncooked Canadian salmon was lacking.  The data 
that was available was often fragmentary or incomplete.87  The gaps in information were significant to 
quarantine decision making.  This had not been cha llenged by Canada and the gaps in data had been 
acknowledged by the experts advising the Panel.  The experts referred to the contribution of the Final 
Report in this regard.  Improved epidemiological  evidence was particularly needed to support 
assertions of the safety of uncooked products.  Ne ither had Canada provid ed any alternative or 
supplementary scientific evidence which would refute  the conclusion, based on available scientific 
evidence, that there was a risk of entry, spread or  establishment of the diseases at issue.  This had 
furthermore been confirmed by the experts advising the Panel.  Canada's evidence did not relate to 
science, but to level of risk.  Gaps in scientific  knowledge did not equate to insufficient scientific 
evidence.  If those gaps were filled and provi ded evidence which might modify the basis for 
conclusions, Australia would be prepar ed to review the information, as made clear in the Final Report.  
To date, Canada had been unable to provide directly relevant scientific evidence on endemic disease 
agents present in a major resource, including inform ation pertaining to:  prevalence of infection in 
adult, wild, ocean-caught Pacific salmon;  impact  of processing and handling on the infection;  
effectiveness of inspection at detecting infections ;  infectious dose;  or route of infection. 
4.80 Australia contended that the absence of evid ence of spread was not equivalent to evidence 
that spread did not occur.88  In this regard, Australia claimed that the recent introduction of prawn 
diseases, yellowhead, whitespot and Taura syndrome into North America provided strong evidence 
that products destined for human consumption could be responsible for the sp read of aquatic animal 
                                                      
85 References cited in the Final Report. 
86 Op. cit., paras. 193 and 194. 
87 Final Report, pp.VIII-IX. 
88 Humphrey Report, p.117.    WT/DS18/R 
   Page 39  
 
diseases.  These diseases had a substantial impact on the American prawn industry.  In regard to 
evidence presented in Table 5, Canada had not in cluded all disease agents considered in the Final 
Report, thus the information was not a reliable indi cator for the totality of the risk being addressed.  
Finally, Canada had not disagreed that there was a risk of disease spread through product for human 
consumption.   
4.81 Australia noted that it was a misrepresentati on of the conclusions reached in the Final Report 
to state that they were the opposite of those reached in May 1995.  The recommendation from the 
May 1995 Draft Report had been among the five op tions which had been considered in the Final 
Report. The recommendations of the May 1995 Draf t Report represented the next greatest level of 
risk when compared to recommendations in the Final Report. The Final Report incorporated the 
science of the May 1995 Draft Report but could not be described as a reversal of a policy position.  
Rather, it had been decided to adopt the next more  conservative option, consistent with Australia's 
appropriate level of risk. 
4.82 Canada  refuted Australia's reference to "advances in scientific knowledge" in respect of new 
pathogens, prawn viruses, biofilms and the identificati on in Australia of the alternate host of whirling 
disease pathogen.  When questioned by the Panel, Dr. Rogers had said that all experts advising the 
Panel agreed that they were not aware of any in formation advances in scientific knowledge that would 
justify a change in the conclusions from th e May 1995 Draft Report to the Final Report. 
4.83 According to Canada, none  of the cited information constituted advances in scientific 
knowledge that would justify a change in the c onclusions.  Regarding pathogen identification, 
Australia had acknowledged that the information a bout ISA, Erythrocytic necrosis virus and VHS 
came after   the Final Report.  The apparent identifica tion of these pathogens in Atlantic salmon had 
no relevance to Australia's Final Report, which examined only wild, ocean-caught Pacific salmon. 
4.84 Canada noted that with regard to praw n viruses, Australia had acknowledged in the Final 
Report that the route of entry of the virus into the United States was unknown and that the relevance 
of this example was limited.89  Australia, in attempting to explai n why non-salmonids hosting several 
of the same disease agents common to salmon were permitted entry into Australia (while salmon was 
not), had argued that with regard to the carriage of organisms by species of fish  other than salmonid, it 
was difficult to draw any conclusions without having first undertaken any risk analysis.  Yet Australia 
was more than willing to use the purported spread of  prawn viruses as evidence of the risk of entry, 
establishment or spread of disease agents to justify its prohibition on the importation of uncooked salmon products.  In terms of biofilms, Australia had acknowledged in the Final Report that biofilms 
had minimal if any relevance to Australia's measure and had showed that the information on biofilms 
could not be used to justify the prohibition on uncooked salmon. 
4.85 Last, Canada argued that the identifica tion in Australia of the alternate host for M. cerebralis , 
was not enough to justify a complete reversal of the May 1995 Draft Report's conclusion.  Australia 
had acknowledged in the Final Report that whirling di sease was not present in Canada at all, and, in 
any event, the disease was associated with young sal monids in freshwater.  Hence, the Final Report 
did not contain advances in scientific evidence sufficient to justify the reversal of the 
recommendations in the May 1995 Draft Report. 
4.86 The heat treatment conditions set out in Au stralia's measure and the consequent ban on the 
importation of uncooked salmon product  had to be rationally supported by the available scientific 
evidence to achieve Australia's appropriate level of protection.  In Canada's view, there was no sound 
scientific reason for Australia to continue to mainta in a heat treatment policy that had the effect of 
banning the importation of uncooked Ca nadian salmonid products into Au stralia.  Canada noted that 
Australia had stated that "[w]hat is certain is that applied heat will reduce  the number of viable 
                                                      
89 Final Report, p.38. WT/DS18/R 
Page 40  
 
disease agents that may be present" (emphasis added) .  Australia had furthermore stated that the 
scientific basis for its heat treatment policy was based on information available in 1983.  Canada 
claimed that in 1988, when the heat treatment requirements were  last amended, the scientific 
information then available about the effectiveness of heat treatment in inactivating the 24 pathogens 
listed in the Final Report was at best sparse and con tinued to be limited.  Australia continued not to 
have scientific evidence of the inactivation of any of the disease agents listed in the Final Report when 
the fish host was heated.90  Australia had acknowledged that exis ting heat treatment requirements had 
to be reviewed. In the BRS Report, it had been stated that: 
"The current process of heating salmonid finfish to inactivate potential exotic 
pathogens does not have a rational basis in view of the thermal stability of a number of pathogens of high quarantine importance, especially at the lower temperature ranges."
91 
4.87 Canada noted that Australia was not awar e of any studies that had examined the heat 
inactivation of many of these pathogens when grown in  artificial medium (i.e. outside the host fish).  
Thus, in Canada's view, it was clear that for a nu mber of pathogens listed in the Final Report there 
was no "certainty" that heat treatment woul d reduce the number of viable pathogens.92  To the 
contrary, Canada claimed that Australia had been aware, since 1991, that especially at the lower 
temperature range of its heat treatment requirement s several pathogens not only survived but actually 
would grow.93 
4.88 Australia  contended its assessment of the 24 salmonid disease agents was based on relevant 
scientific data.  It had evaluated: 
- the presence of the disease in Australia (disease status, testing methodology and 
reliability, control measures); 
- exporting country factors (population susceptible  to infection by agent, prevalence of 
infection, effectiveness of the diagnostic tests applied to the agent, disease control 
policies of the exporting country, disease zoning); 
- commodity factors (whether agent found in host, whether there is change of 
prevalence with the time of year/life cycle); 
- pathogenesis factors (disease agent predil ection sites, the number of disease agents 
likely to be found in the commodity, ease of disease agent contamination and the sequence of events for an exotic disease to become established in Australia); 
- agent factors (pH lability of the agent,  agent's liability to cooling, freezing and 
heating in the product, whether the ag ent survives free in the environment); 
- exposure factors (what hosts are infected  naturally, distribution of known primary, 
secondary and intermediate hosts, mode of transmission and infectious dose); 
- risk reduction factors (restricting zone of origin, species of origin, life cycle stage, 
pre- and post-shipping quarantine, product testing with tests having high sensitivity, 
                                                      
90 Final Report, Chapter 2. 
91 BRS Report, p.37. 
92 Final Report, pp. 262, 257, 244, 238,  233, 227, 216, 206, 182, 166, 138. 
93 Pathogens in the Final Report known to survive included Aeromonas salmonicida  (typical),  
Renibacterium salmoninarum , Edwardsiella tarda , Yersinia rucke ri, and infectious pancreatic necrosis virus.  
Pathogens known to grow at the lower temperature range included Edwardsiella tarda and Yersinia ruckeri .    WT/DS18/R 
   Page 41  
 
processing, maturation and storage for specified time and temperature, treating such 
as heating or disinfection, restricting the d estination, vaccination, certification); and 
- consequences (consequence of disease intr oduction on native and introduced species, 
ability to control or eradicate if disease were introduced). 
The risk assessment had also included a study of the economic impact of two salmonid diseases, 
furunculosis and infectious haematopoietic necrosis (IHN). 
4.89 In regard to heat-treated product, Australia  recalled that heat-treated product was not within 
the scope of Canada's initial complaint (paragraph 4.8).  Nonetheless, Australia referred to its 
statements under the relevant provisions of Artic le 5 (paragraphs 4.194-4.213), including that heat-
treated product was scheduled to be reassessed as part of the aquatic review.   The current measures 
for heat-treated product were ba sed on science available in 1982 and there had  been some views 
expressed that the measures might not be sufficiently restrictive in terms of Australia's appropriate 
level of protection.  In regard to  Canada's arguments of "refutations " of Australia's claims, Australia  
reiterated the different status of various studies a nd reports cited by Canada , including the difference 
between opinions on levels of protection and judgme nts on the basis of a detailed risk assessment.  
Australia also referred to its statements in para graphs 4.152-4.154 that it was not claiming that the 
difference between the recommendations of the Final and draft reports was for reasons of new science 
  (f) Article 2.3 
Members shall ensure that their sanitary and phytosanitary measures do not arbitraril y or unjustifiably discriminate between Me mbers 
where identical or similar conditions preva il, including between their own territory and that of other Members.  Sanitary and 
phytosanitary measures shall not be applie d in a manner which would constitute a dis guised restriction on international trade. 
SPS Agreement, Article 2.3  
4.90 Canada  argued that Australia's ban on the importation of uncooked salmon violated the first 
sentence of Article 2.3.  This sentence provided th at where identical or similar conditions existed 
between Australia and any other WTO Member, Au stralia was under a positive obligation to ensure 
that any of its sanitary measures applied to protect  salmonid life or health in its territory did not 
arbitrarily or unjustifiably discriminate against any other WTO Member. 
4.91 Australia  noted that Canada's claim in respect of Article 2.3 was limited to the measure being 
discriminatory contrary to Article 2.3.  In the cont ext of Article 2.3, Canada had not claimed that the 
measure constituted a disguised restriction on international trade.  
4.92 Australia argued that Article 2.3 represen ted a basic obligation, elaborated under the 
provisions of Article 5.  The basic obligation set out in  Article 2.3 needed to be read in the context of 
the use of the same terms in Article 5.5.   The Appellate Body in EC - Hormones , had affirmed that 
Articles 2.3 and 5.5 had to be read in context a nd that Article 5.5 marked out and elaborated a 
particular route leading to the same destination as Article 2.3.  In particular, Articles 5.2 and 5.3 
needed to be taken into account in determining wh ether there were similar conditions in the sense of 
Article 2.3 in the same way as when examining Article 5.5.94  The basic obligation under Article 2.3 
was: (i)  that the measure (the quarantine pr ohibition on uncooked salm on from Canada) did not 
arbitrarily or unjustifiably discriminate between Ca nada and Australia or be tween Canada and other 
Members, under circumstances where identical or si milar conditions prevailed, and (ii) that the 
measure was not applied in a way which could constitute a disguised restriction on trade.  
                                                      
94 Op. cit., para. 212. WT/DS18/R 
Page 42  
 
4.93 Australia claimed that there was no situati on in existence which imposed different conditions 
on different Members in respect of the importation of uncooked salmon.  In a ddition, Australia argued 
that under circumstances where a number of disease ag ents exotic to Australia had the potential to 
enter, establish or spread subsequent to imports of uncooked salmon of Cana dian origin, it could not 
be claimed that there were identical or similar c onditions prevailing between Australia and Canada in 
respect of the same product and the same diseases. 
4.94 In regard to other products which might hos t the same diseases or disease agents exotic to 
Australia, Australia argued that it would have to be necessary to establish whether there would be 
identical or similar adverse health effects or conse quences of the kind listed in Article 5.3, in the event 
that such a product were permitted entry.  A simple comparison of trade restrictions on those products 
did not constitute evidence of "ide ntical or similar conditions".  A prima facie  case could not be 
established solely by identifying that different m easures applied to other products which might host 
one or more of the diseases present in uncooked salmon.   It was Australia's contention that there were 
no prevailing conditions which were identical or simi lar to the risks and con sequences associated with 
the 24 disease agents of concern potentially pr esent in uncooked salmon of Canadian origin. 
4.95 Canada  argued that in Australia there were di sease agents of serious pathogenicity not 
examined in the Final Report that were exotic to some of Australia's States with salmonid aquaculture 
or recreational fisheries.  Australia did not cont rol the movement of salmonid products from infected 
States to disease free States or Territories to protect its salmonid populations from these salmonid 
disease agents.  An example was epizootic haematopoi etic necrosis virus (EHNV), a disease notifiable 
to the OIE.95  EHNV had been recorded in Australia, and was found in Victoria where salmonid 
populations of rainbow trout and Atlantic salmon were  substantial.  EHNV had not been reported in 
Western Australia where rainbow trout was commerc ially cultured and provided an important sport 
fishery.  Yet the Final Report had made it clear th at Australian State and Territory governments had 
not placed any controls on the movement of salmonid products from areas where EHNV was found to 
areas where EHNV was exotic: 
"Control measures have been placed on the movement of live salmonids from EHNV infected 
areas to free areas, but as infection of salmonids  is rare it has not been necessary to place 
controls on the movement of salmonid product." 96 
4.96 Canada argued that this cons tituted an arbitrary and unjustifiabl e distinction. In the case of the 
interstate movement of salmonid products from a State where an OIE Notifiable salmonid disease was 
detected to a State that was free of the di sease, Australia had claimed that there was a  possibility  of 
disease establishment in salmonids via salmonid products , but this was "rare" and thus it had not been 
necessary to place controls on the movement of the salmonid products.  However, in the case of the 
movement of salmonid products from a Member into Australia, the existence of any one of a number 
of diseases that Australia claimed were exotic raised for Australia the possibility of disease 
establishment in salmonids via salmonid products.  Regardless of the degree of pathogenicity of the 
diseases or the likelihood of disease establishment, this possibility was the basis for Australia's 
prohibition on the importation of uncooked salmon.  In this sense, Canada argued that Australia 
violated the first sentence of Article 2.3 of the SPS Agreement. 
4.97 Australia  argued that Canada's assertion that identi cal or similar conditions prevailed were 
based in part on the fact that EHNV was an OIE notifiable disease, and as such would be at least as 
serious a health concern as the exotic salmonid disease or strains of disease agents.  In this respect, 
Australia argued that status as a Notifiable disease di d not constitute evidence of "identical or similar 
conditions".  There remained a question whether the classification of EHNV as a notifiable disease 
was appropriate in the light of  it being a disease that caused little environmental or commercial 
                                                      
95 OIE Code, p.67. 
96 Final Report, p.379.    WT/DS18/R 
   Page 43  
 
damage within Australia.97  The OIE list of notifiable diseases did not include those diseases which 
were serious, but had a br oad geographic distribution, nor did it reflect the severity of the disease in 
terms of risk of occurrence or consequences.98  It did not list some serious salmonid diseases of 
quarantine concern to Australia.99  EHN was not considered a significant disease of salmonid fish 
compared to redfin perch.  Nor could EHN be  compared to some of the more serious diseases of 
salmonid such as BKD, ISA and typical A. salmonicida .  Furthermore, it was also noted that the OIE 
Fish Diseases Commission (FDC) did not have the ca pacity to undertake detailed risk analysis in 
considering individual diseases for categorizati on and listing, nor did the OIE Code contain any 
guidelines specific to salmonids.   Australia also referred to its comments with respect to EHNV in 
paragraphs 4.99, 4.102, 4.208 and 4.214(v). 
4.98 The Australian measure was di rected against the totality of the risk of diseases (cumulative 
effect of identified disease agents potentially present in Canadian salmon), not against a single disease 
agent.  Yet Canada, in Australia's view, appeared to be basing its claims on a like product concept, 
inferring that the existence of any disease in a comp arable product equated to  "similar conditions".  
Consideration of similar conditions under the SPS Ag reement involved similar adverse health effects 
and similar biological and economic consequences , together with the feasibility of employing a 
similar measure to address the similar risk and conse quences.  Even if there were evidence of similar 
conditions and measures, there woul d have to be evidence that the non-application of a technically 
and economically feasible similar measure arbitrarily or unjustifiably discriminated between Australia 
and Canada. 
4.99 The factors Members were required to take into account, as detailed in Article 5.3, included 
the potential damage in terms of loss of production or sales.  These factors might not necessarily be 
comparable;  by reason of climatic and topogra phical factors the salmonid populations of Western 
Australia did not have the same significance in term s of commercial or recreational fisheries as in 
south eastern Australia.   Hence, the controls on in ternal movement of aquatic animals in regard to 
diseases which were not exotic to certain regions of Australia could not be e quated to controls on the 
import of products which might carry disease which we re exotic to all regions.  The consequences 
from exotic pathogen introduction w ould be far greater than those associated, for example, with EHN 
alone.  In addition, other factors being equal, controlling a disease was easier than attempting to eradicate or control one that was already endemic.   It was Australia's view that there was no 
identified, endemic aquatic disease in Australia for which it was warranted, feasible and cost effective 
to place internal movement restrictions on product.  Australia noted that:  (i) there was no significant trade of fresh salmonid product into Tasmania
100 from the mainland and local demand in Tasmania 
was met by local product101;  (ii) if EHNV were to enter W estern Australia, the consequences for 
salmonids would be minimal;  (iii) if EHNV were to  enter Queensland and the Northern Territory, the 
consequences for salmonids would be highly margin al due to climatic factors unsuited to salmonid 
life (there were no salmonid populations in the No rthern Territory, and in Queensland they were 
restricted to a few isolated mountain areas).  Wh ere it was present in Australia, EHNV it did not cause 
major problems to salmonids.  
4.100 Australia maintained that Canada had not  provided evidence that identical or similar 
conditions existed, only th at controls on introduction within Australia of one disease which was not 
exotic to certain regions of Australia differed from the controls on introduction within the whole of 
Australia's Territory of diseases which were exotic to Australia.  Canada had therefore not made a  
                                                      
97 Australia refers to Resolution No. XII "Amendments to  the International Aquatic Animal Health Code and 
Diagnostic Manual for Aquatic Animal Diseases", adopted by the OIE International Committee on 29 May 1997.   
98 OIE Code, p.109. 
99 Final Report, p.12. 
100 EHNV had not been reported in the Northern Territory, Queensland, Tasmania or Western Australia. 
101 Although demand was met by local product, Australia pointed out that Canadian and Tasmanian product 
would fill different markets.  Thus, local production could not be relied upon to prevent Canadian salmon from entering Tasmania.  WT/DS18/R 
Page 44  
 
prima facie  case that identical or similar conditions preva iled.  Furthermore, Australia argued that 
there was no element of arbitrary or unjustifiabl e discrimination against Canadian uncooked salmon 
arising from different measures applying to internal quarantine on salmonids and other fish in relation 
to a different disease which was not exotic to certain regions of Australia.  Establishing that there was 
a difference in a measure in regard to different diseases did not imply that there was arbitrary or 
unjustifiable discrimination.   
4.101 Canada refuted Australia's claim that th e consequences from exotic  pathogen introduction 
would be far greater than those associated with EHNV alone.  In spite of the fact that the Final Report 
had shown that EHNV could cause mortalities in sev eral native salmoniforms including the threatened 
Maquaria australasica  (Macquarie perch)102, Australia imposed no controls on the movement of 
salmonid product that might contain EHNV into EHNV -free States.  Australia's attempt to justify its 
"no controls policy" for EHNV by claiming that th ere were no salmonids in the Northern Territory 
and isolated salmonid production in Queensland stood in stark contrast to the fact that Canadian salmonid product was not allowed into the Northern  Territory or Queensland.  Australia had first 
claimed that for Western Australia the consequences  for salmonids would be minimal.  Yet, in its 
response to a question from the Panel regarding th e importance of salmonid culture Australia had 
acknowledged that in Western Australia a nd other States salmonid fisheries had a significant local 
economic impact.  Canada stated that it was clear, in light of the above, that for uncooked salmonid 
products Australia had violated the non-discrimination requirement of the first sentence of Article 2.3. 
4.102 Australia  noted that EHN was well understood in Au stralia and that effective management 
practices had been developed appropr iate to unique circumstances.  Australia  referred to the facts of 
salmonid production and distribution in Australia, including the concentration of salmonid production 
in the south east of Australia because of favourable  biological conditions.  In States and Territories 
other than Tasmania, New South Wales and Vict oria, salmonid aquaculture operations range from 
minor (for recreational purposes) to zero.  In West ern Australia for example, there was little salmonid 
culture.  Total aquaculture trout production in that State was 41 tons, valued at $A 455,000 per year.  
The hatcheries which provided trout for stocking severa l rivers in the south west of that State for 
recreational purposes were routinely monitored for E HN so that, if needed, control measures could be 
quickly instituted with a view to avoiding any ex tremely localised economic impact .  The disease was 
endemic in Victoria, New South Wales and South Australia.  It was endemic to redfin perch 
populations and hence the potential for eradication woul d be very low.  It would be relatively more 
difficult and far less practicable to control the spr ead of pathogens into regions where salmonids were 
present, than to prevent the entry of an exotic  pathogen into Australia through imported product.  
What also needed to be considered were the econom ic and technical feasibility of controlling endemic 
disease through internal controls.  This required a case-by-case approach and Australia had in place 
emergency preparedness plans for such incidents.  In regard to Tasmania, there was no significant 
interstate trade in fresh salmonid products, but it could not be conc luded that consumption in that 
State would be fully met by local production in th e event that imports were permitted entry.    
Australia had considered the possibility of limiting fi sh distribution in Australia, but concluded that 
such a measure would not be economically or tec hnically feasible and would not meet Australia's 
appropriate level of protection.  Australia noted also that, in relation to its federal structure, 
operational control of aquatic animal diseases rested with the States and Territories.  Coordination of 
policy was achieved through a committee struct ure, with members drawn from State and 
Commonwealth Government.    
                                                      
102 Final Report, p.98 and p.345.    WT/DS18/R 
   Page 45  
 
  (g) Article 3.1 
To harmonize sanitary and phytosanitary meas ures on as wide a basis as possible, Memb ers shall base their sanitary or phytosani tary 
measures on international standards, guidelin es or recommendations, where they exist, except as otherwise provided for in this 
Agreement, and in partic ular in paragraph 3. 
SPS Agreement, Article 3.1  
Harmonization  – The establishment, recognition and application of co mmon sanitary and phytosanitary measures by different 
Members.  
SPS Agreement, Annex A.2 
4.103 Canada  argued that Article 3.1 of the SPS Agreem ent imposed an obligation on Australia to 
base its sanitary measures on the standards, guidelin es or recommendations developed under the OIE.  
With regard to the disease agents at issue (Table 3), Canada note d that infectious haematopoietic 
necrosis (IHN) and viral haemorrhagic septicaemi a (VHS) were OIE Notifiable Diseases.  For these 
diseases, the OIE Code stipulated that relevant competent authorities103 in countries officially declared 
to be free from the respective diseases, should dema nd that dead fish for importation from countries 
not free from the respective diseases be eviscerated before transit.104  That is, the OIE Code for these 
two diseases recommended certification only for imports of live fish or dead, uneviscerated  fish.  
Hence, Canada argued, Australia's prohibition on the importation of uncooked salmon was not based 
on the relevant OIE Code standards for IHN and VHS. 
4.104 Australia  claimed that Article 3 did not have app lication to the dispute.  Notwithstanding 
Canada's claims of the existence of certain OI E guidelines in respect of two OIE Notifiable disease 
agents, it was not possible to apply these two standa rds in respect of a product-based measure.  The 
risk to Australia related to the presence or pot ential presence of up to 24 disease agents in a product 
which might be imported into Australia.  The OI E guidelines did not extend to all the diseases at 
issue.  The fact that the OIE did not have guidelin es for all of the disease agents at issue meant that 
there was no relevant OIE guideline on which Au stralia might base its measure.  Nor could the 
practice of other countries be taken as an OIE sta ndard, particularly in light of the sovereignty 
accorded WTO Members to determine their own appropriate leve ls of protection. 
4.105 Australia further claimed that Canada had not met its burden of proof in regard to the 
existence of relevant international standards,  guidelines or recommendations on which Australia 
might base a measure in respect of a number of disease agents present or potentially present in a 
product and for which there were no OIE guidelines in existence.  There could be no presumption that 
an OIE guideline existed on the basis that the OIE had not addressed certain disease agents.  Canada 
had not demonstrated the applicability of Artic le 3 of the SPS Agreement to the measure.  
Furthermore, Australia contended that the OIE Code did not state that evisceration was adequate for the two Notifiable Diseases in question.  It did not go beyond recommending, as part of a minimum  
worldwide standard for the control of aquatic di seases, that authorities of countries free of IHN and 
VHS should demand evisceration in regard to fish from countries not free from those diseases.
105  
More importantly, Australia argued that the OI E did not provide relevant guidelines on which a 
product specific measure could be based for the purposes of achieving the appropriate level of 
protection in regard to the totality of the disease ag ents of concern to Australia.  To assert that WTO 
Members could apply no more than the OIE minimu m standard was in effect imposing on Members a 
set level of protection, irrespective of the like lihood of disease introduction and the consequences that 
would arise from such an introduction.  This was in contradiction to each Member's sovereign right to 
                                                      
103 See footnote . 
104 OIE Code, Articles 2.1.2.4 and 2.1.5.4 referri ng to IHN and VHS, pp. 74 and 86, respectively. 
105 OIE Code, pp.74 and 86. WT/DS18/R 
Page 46  
 
determine its own appropriate level of protection.  Hence, Australia argued that the guidelines had to 
be seen as minimum recommendations and not as a firm set of standards. 
4.106 Without prejudice to Australia's  claims in respect of the non a pplication of Article 3 Australia 
cited the Appellate Body Report on EC - Hormones  in support of its claim that the existence of an 
international standard did not raise a presumption of inconsistency with Article  3.1.  Australia argued 
that Canada had the burden of proof in regard to all aspects of Article 3, including evidence that it 
would be possible to base the measure on existing international standards. 
4.107 Australia stressed that OIE recommendations  were characterised as minimum standards and 
that the listing or otherwise coul d not be taken as an indicator of the seriousness of disease agent in 
terms of adverse health effect, management or consequences.  The diseases listed were those of 
primary concern to Northern Hemisphere countries,  in many cases where th e disease was endemic and 
hence the focus was more on disease management.  Au stralia also noted that evisceration reflected 
commercial trading practice of those countries.  The potential biological and economic consequences 
of disease agents exotic to Aust ralia was an entirely different ma tter than the management of non-
exotic diseases.  As confirmed by scientific disease experts advising the Panel, evisceration, while 
assisting in the reduction of risk in some instances, would not eliminate the risk.  In the case of some 
of the disease agents at issue, evisceration would no t have any effect in situations where the disease 
agent for instance was blood borne.   Australia also noted that OIE standards were not based on an 
assessment of risks, and that compared to terrestri al animals, OIE work on aquatic diseases was in its 
infancy.  In this context, Australia noted the comm ents by the experts advising the Panel that the Final 
Report and the present dispute had enhanced  their understanding about salmon diseases. 
4.108 Canada  noted that piscirickettsiosis, bact erial kidney disease (BKD), and infectious 
pancreatic necrosis (IPN) were classified as "Oth er Diseases" under the OIE Code.  With respect to 
these disease agents, the OIE recommendations were limit ed to live fish or uneviscerated fish.  As the 
OIE made no recommendation in respect of importation of dead eviscerated fish, by implication, the importation of such fish raised minimal risk fo r transmitting these three diseases.  Consequently, 
Canada argued that Australia's measure was not based on OIE recommendations and was in violation 
of Article 3.1. 
4.109 In addition, Australia's m easure was not "based on" the relevant OIE Code recommendation.  
The Appellate Body Report in EC - Hormones  examined the meaning of "based on" in Article 3.1 and 
concluded that to be based on an international st andard, a sanitary measure had to adopt some though 
not necessarily all of the elements of the international standard.
106  For finfish, including salmonids, 
evisceration was the existing OIE recommendation to pr event the transmission of Notifiable or Other 
Significant Diseases.  Dr. Winton, in advising the Pane l, had stated that evisceration had attained the 
status of a de facto  standard and that FDC considered eviscer ated fish to represent a minimal, i.e., 
negligible risk that did not warrant restriction of trade, and, accordingly, fell outside the concern of 
the FDC.  Dr. Winton further noted that th ere was no evidence of transmission of disease from 
eviscerated product and until scientific evidence show ed otherwise, the level of risk of disease 
transmission from trade in eviscerated products was such that it was not of concern to the FDC. 
4.110 In regard to the effectiveness of eviscerati on, Canada noted that neither Drs. Winton nor 
Rodgers knew of any specific case of disease transm ission from eviscerated fish, including salmonids.  
Dr. Winton had noted two scientific studies in this r espect that had not been published simply because 
the virus had not been found in the flesh of the t ested fish.  Canada argued that the scientific 
community was concerned with carrier fish in th e epizootiology of several diseases, but only in 
                                                      
106 Op cit., para. 171, pp.68-69.    WT/DS18/R 
   Page 47  
 
respect of live fish.  Scientific research did not focus on dead eviscerated aquatic animals because it 
was irrelevant.107  In respect of evisceration, Dr. Winton noted that:  
"The FDC has considered this point carefully and is unanimous in the opinion that 
evisceration of fin fish (e.g., salmonids in this case) provides a very high level of 
safety against transmission of disease and that none of the notifiable or other significant diseases are likely to be transported with such products.  Thus, the FDC has judged that eviscerated products fall outsi de the concern of the FDC.  In fact, a 
paragraph in the first edition of the A quatic Animal Code (Article 1.5.5.2 
paragraph 3) was specifically deleted in the current edition to clarify this point 
because the former language provided an op tion for countries to require inspections 
of any fish products (even eviscerated fish) that were, in the opinion of the importing country capable of introducing a disease of concern.  Members of the FDC have reviewed the scientific evidence and are not  aware of a known expansion of range for 
a fish pathogen due to the movement of evi scerated fish;  conversely, there are many 
cases of disease transmission associated with shipment of infected live fish, live eggs, 
or even uneviscerated fish used to feed ot her aquatic animals that are documented in 
the scientific literature." (paragraph 6.144) 
... "As stated above, the FDC currently regards evi scerated fish to represent a minimal risk that 
does not warrant restriction of trade."  (paragraph 6.145) 
Dr. Rogers stated that: 
"It is probably true to say that for a gi ven disease agent, the likelihood of disease 
establishment is higher for imports of whole, non-ev iscerated bait fish and for live fish than it 
is from imports of uncooked salmon for human consumption." (paragraph 6.100). 
4.111 In addition, Canada noted that Dr. Winton went on to suggest that the mere presence of 
pathogens in the flesh was not synonymous with th e establishment or spread of fish disease.  There 
had been examples where fish that potentially contai ned high levels of an infectious agent had not 
resulted in transmission of disease if eviscerated. 
4.112 Australia  noted that Dr. Winton's comments in rega rd to a "de facto standard" referred only 
to the United States, Canada and the European Co mmunities and that he had qualified this comment 
to the effect that it was hard to say that there was an international standard in existence.  The 
relevance of unpublished studies referred to by Dr. Winton was difficult to judge because the methodology of the studies had not been provided, nor had the studies apparently been subject to peer 
review.  Australia stated that, from a scientific perspective, it ha d doubts about the conclusions from 
these unpublished studies or in relation to extending the information provided to the wide range of 
different agents of different ta xonomic groups involved and the different circumstances that may 
exist. 
4.113 Australia considered that evisceration might ser ve to reduce the risk in regard to some of the 
disease agents at issue, in particular in regard to VHS, but that it would not serve to reduce the risk in 
accordance with Australia's appropriate level of prot ection.  With regard to many of the diseases at 
issue, including IHN, Aeromonas salmonicida , Renibacterium salmoniarum and Piscirickettsia 
                                                      
107 Canada noted that in a recent book entitled Furunculosis: Multidisciplinary Fish Disease Research, an 
entire chapter was devoted to the specific issue of carriers of Aeromonas salmonicida .  Yet the chapter did not even 
consider the role of dead eviscerated fish in the epidemiology of the disease because it was irrelevant.  The publication was mentioned in the Final Report on pp.353-354. WT/DS18/R 
Page 48  
 
salmonis , evisceration was not effective.  Furthermore,  although evisceration could reduce the level of 
risk from some diseases as the process physically removed tissues that could carry the disease agents, 
this would not substantially  reduce the risk because the disease agen t could be present in other tissues, 
or it could be mechanically transferred from an inf ected tissue to a tissue that  was free of the disease 
agent.  It was clear from the view of the experts advising the Panel that there was no scientific basis 
for assertions that evisceration was an effective me ans of reducing the risk to what some experts 
might consider to be a "negligible" level.  This w as without prejudice to Australia's views on the legal 
relevance of an expert's views of what might cons titute a "negligible" level, within the context of a 
Member's sovereignty in regard to levels of prot ection and bearing in mind that the views put forward 
by experts advising the Panel had not been formed on the basis of a risk assessment, including the 
biological and economic consequences of  disease entry, establishment or spread. 
4.114 Australia acknowledged that the movement of fish and their genetic materials for stocking 
purposes and uneviscerated fish had been identified as causes of spread of disease.  Nevertheless, the 
fact that disease spread was more commonly iden tified with these situations did not eliminate 
eviscerated fish as means of spread.  Dr. Winton ha d not claimed that evisceration eliminated risk.  
Hence, although Australia noted that evisceration woul d reduce the risk, it did not do so to the extent 
that it achieved the level of protection required by Australia since it did not fully address Australia's concerns in regard to the disease agents which could be found in sk in, bone, muscle and blood. It was 
evident that not permitting the importation of sal mon provided a higher level of protection than 
allowing the import of eviscerated product.  Dr. Wi nton had not described what level of risk was 
implicit in the OIE recommendations, nor had he been able to refer to any detailed scientific data to 
support the FDC's opinion on the alleged safety of evi scerated product.  Furthermore, it could not be 
demonstrated that evisceration was as effective, or more effective than heat treatment, given in 
particular that heat-treated product was eviscerated.  Australia contended that eviscerated fish had to 
be regarded as a risk product capable of spreading disease.  Nor were Dr. Winton's comments made in 
the context of a situation of low risk and high consequences. 
4.115 Australia argued that the OIE recommended that product be imported in uneviscerated form 
only from countries where Piscirickettsiosis, BKD, and IPN were not present.
108  As Piscirickettsiosis, 
BKD and IPN were present in Canadi an fish, the OIE standard was not relevant to Australia's measure 
and did not have application.  The Code was irreleva nt in regard to eviscerat ed fish for such diseases 
as it did not provide guidelines regarding importation of dead, eviscerated fish.  Hence, Australia 
noted, the relevant OIE standards, guidelines or recommendations covered only 2 of the 24 diseases of 
concern (IHN and VHS).  These guidelines were disease-specific and, as Australia's measure related to the risk of introduction of a number of diseases which the product potentially could host, there were 
no OIE guidelines in existence on which Australia coul d base its measure.  The measure could not, in 
this regard, be broken down into components fo r the individual disease agents;  it was a measure 
which dealt with the totality of the disease risk.  Au stralia maintained that Canada had not submitted 
evidence of the existence of a releva nt international standard applicab le to the totality of the entry, 
establishment or spread of the 24 diseases of concern.  
4.116 Australia noted that there were no detailed cr iteria for diseases to be listed in the OIE Code;  
these were listed as a result of discretionary decision making and not necessarily as a result of considered scientific analysis.  Australia recalled Dr . Winton's statement to the effect that there was 
no formal method for evaluation of disease risk a nd that the FDC decisions were not based on any 
scientific risk assessments process.  Hence, Austra lia argued, the FDC itself did not make decisions 
based on the risk analysis process that the OIE advocated, and on which Australia had modelled its 
Final Report.  Australia noted that the FDC did not base its recommendations on detailed examination 
of risks.  The matter was not helped by the fact that the FDC did not keep any detailed minutes from 
the meetings of the FDC.  Regarding the diseases examined by the OIE, Dr. Winton had noted that a 
lack of a listing (as a Notifiable Disease) did not mean that the FDC considered the disease to be of 
                                                      
108 Australia noted that ISA was included in the OIE list of Other Diseases.    WT/DS18/R 
   Page 49  
 
low priority.  Given that many serious salmonid diseases were endemic in the northern hemisphere, it 
was probable that this had influenced the FDC's c onsideration of salmonid diseases.  In other words, 
Australia had every right to be concerned about diseases that occurred in adult, wild, ocean-caught 
Pacific salmon from North America but that did not occur in Australia - regardless of whether or not 
they appeared on the current FDC list of Notifiable Diseases.  In this respect, Australia noted that the 
five Members of the FDC were from a restricted geographical distribution, with no member being from a country in the southern hemisphere.  None of the FDC members could be expected to have a 
deep understanding of the health or production of salm onids in the southern hemi sphere - in particular 
of Australia's favourable health status and its freedom from the diseases that caused production 
problems in countries of the northern hemisphere.  Hence, Australia argued that the OIE 
recommendations did not reflect the significance to Australia of certain diseases which might be 
exotic to Australia but endemic in major aquaculture  fishing nations.  In light of the above, Australia 
reiterated that there was no relevant OIE standard  on which it would be possible to base a measure in 
respect of a large number of exotic salmonid diseases. 
4.117 Canada  refuted Australia's argument that releva nt OIE Code recommendations did not exist 
because the OIE did not provide a recommendation for each and every pathogen covered by Australia's measure.  Canada recalled that Australia had acknowledge d in the Final Report
109 that:  (i) 
there were international standards applicable to th e importation of uncooked salmon, (ii) the standard 
was evisceration, but that (iii) this standard was inappropriate to Australia's circumstances.  This 
position was consistent with Australia's past re asoning at the October 1996 meeting of the SPS 
Committee where Australia, addressing the salmon import ban, had announced to the Committee that the relevant OIE standard did not meet Australia's acceptable level of protection.
110  According to 
Canada, these two facts were sufficient to show th at Australia's position before the Panel was a matter 
of "after the fact" reasoning.   
4.118 Furthermore, the Appellate Body in EC - Hormones , had noted that there were international 
standards, guidelines or recommendations for five of  the six hormones that were covered by the EC 
directives at issue.  In other words, the Appe llate Body had not concluded that there were no 
international standards applicable to the five hor mones at issue.  Rather, the Appellate Body had 
concluded that the European Communities was entitle d to deviate from these standards provided the 
EC measures for these five hormones complied with th e conditions set out in Article 3.3 (e.g., based 
on a risk assessment in accordance with Article 5.1).111  In this case the reasoning by the Appellate 
Body meant that just because Aust ralia's sanitary measure applied to more pathogens than were 
identified in the OIE Code did not mean that ther e was no relevant OIE recommendation applicable to 
the measure.  Rather, it meant that for the pathogens  identified in the OIE Code, Australia's measure 
had to be based on the relevant OIE recommendation or  comply with the provisions of Article 3.3 of 
the SPS Agreement.  Canada stated that if Austra lia's argument were accepted, it would also mean 
that so long as a Member claimed that a measure a pplied to just one disease agent not listed in the 
OIE Code, all of its other standards, guidelines or recommendations would not apply to the measure.  
According to Canada, this would mean that the importance of Article 3.1 to the SPS Agreement 
would depend on a Member willing to forego the temptation of saying that its sanitary measure 
addressed just one other pathogen.  The consequenc e of accepting Australia's argument was that the 
importance of internationals standards, guidelines or recommendation to the SPS Agreement would be 
critically weakened. 
4.119 Australia  noted that, while it might be possible to consider application of individual 
standards in  regard to additives, it was not possibl e to base a measure on an international standard in 
circumstances  of diseases present or potentially pre sent in a single product and for which there were 
few disease-based international standards in existence.     
                                                      
109 Final Report, p.66. 
110 G/SPS/R/6, "Summary Report of SPS Committee meeting on 8-9 October 1996", p.4. 
111 Op. cit., para. 209, p.86. WT/DS18/R 
Page 50  
 
  (h) Article 3.3 
Members may introduce or maintain sanitary or phytosanitary measures which result in a higher level of sanitary or phytosanitar y 
protection than would be achieved by measures based on the rele vant international standards, guidelines or recommendations, if there 
is a scientific justification, or as a c onsequence of the level of sanitary or phyto sanitary protection a Member determines to be 
appropriate in accordance with the relevant provi sions of paragraphs 1 through 8 of Article 5.2 Notwithstanding the above, all 
measures which result in a level of sanitary  or phytosanitary protection different from  that which would be achieved by measure s 
based on international standards, guidelines or recommendations sh all not be inconsistent with any other provision of this Agre ement.   
Footnote 2: 
For the purposes of paragraph 3 of Article 3, there is a scien tific justification if, on the basi s of an examination and evalua tion of 
available scientific information in conformi ty with the relevant provisions of this Ag reement, a Member determines that the rel evant 
international standards, guidelines or recommendations are not su fficient to achieve its appropria te level of sanitary or phyto sanitary 
protection. 
SPS Agreement, Article 3.3 
4.120 Prior to the Appellate Body Report in EC - Hormones , Canada argued that the last phrase of 
Article 3.1 was phrased as an "exception to the posit ive obligation contained in Article 3.1".  Hence, 
Australia had the burden of proving that non-use of OIE standards, guidelines or recommendations 
was justified under Article 3.3 and me t the conditions set out therein.  Canada claimed that Australia's 
measure (i) did not result in a higher level of sanita ry protection than would have been achieved by a 
measure based on the OIE standards, guidelines or  recommendations, (ii) was not scientifically 
justifiable and, (iii) was inconsistent with other Articles of the SPS Agreement, including Articles 5.1, 
5.5, 5.6 as well as Article 2.  Therefore the cond itions of Article 3.3 were  not met and the measure 
was inconsistent with Article 3.1.  Canada thus ar gued that Australia had failed to comply with its 
obligations unde r Article 3.3. 
4.121 Canada further noted that the Appellate Body Report in EC - Hormones , stated that under 
Article 3.3 a Member could choose to set for itself a level of protection that was different from that 
implicit in an international standard and to implem ent that level of protection in a measure that was 
"not based on" the international standard.  However, in implementing that measure, the Member had to comply with the provisions of Article 5.
112  However Australia's measure had (i) failed to specify its 
appropriate level of protection for its sanitary meas ure, (ii) assuming that the level of protection 
implemented by Australia's measure was a negligible level of risk, Australia's measure did not provide 
a higher level of protection than a measure based  on the OIE Code recommendation of evisceration, 
and (iii) Australia's measure was inconsistent with th e provisions of Articles 2.2, 2.3 and Article 5, in 
particular 5.1, 5.2, 5.5 and 5.6.  As a result, Aust ralia's measure was inconsiste nt with Article 3 of the 
SPS Agreement. 
4.122 Without prejudice to the application of Article 3, Australia stressed that Members were not 
required to change their appropriate  level of protection in regard to the objective of furthering the use 
of harmonized international standards.  This was emphasized in the preamble to the SPS Agreement, 
the basic rights and obligations in Article 2, as well as in Article 3.3 itself.113  There could be no 
presumption of inconsistency simply on the basis of  evidence that a measure had not been based on a 
relevant existing internatio nal standard.  In light of this, the last sentence in Article 3.3 could not be 
read as an exception but as a conditional right. Au stralia further noted that although Canada had 
                                                      
112 Ibid., para. 172, p.69. 
113 The sixth indent of the Preamble states: 
"Desiring  to further the use of harmonized sanitary and phytosanitary measures between Members, 
on the basis of international standards, guidelines and recommendations developed by the relevant international organizations, including ... the Inte rnational Office of Epizootics, ... , without 
requiring Members to change their appropriate level of  protection of human, animal or plant life or 
health; ..."    WT/DS18/R 
   Page 51  
 
claimed that Article 3.3 represented an exceptional ri ght and that Australia had the burden of proof to 
demonstrate consistency with  Article 3.3, Canada had not claimed that Australia's measure was in 
violation of Article 3.3. 
4.123 Australia contended that the Appellate Body in EC - Hormones , had confirmed Australia's 
interpretation of Article 3 obligations, includi ng in regard to the burden of proof on the 
complainant.114  The Appellate Body had also confirmed th at international standards, guidelines and 
recommendations did not have obligatory force and effect and that a Member was not required to 
conform or comply with such standards.  Nor did Article 3.3 represent an exceptional right.115 
4.124 Australia argued that Canada had not pr esented any evidence to establish a presumption that 
Australia was acting in violation of Article 3.3, par ticularly in respect of the "special meaning" given 
to the term "scientific justification" in footnote 2 to Article 3.3.  Canada's mere reference to 
inconsistency with other provisions of the SPS Agreement in the context of Article 3.3 was 
furthermore not sufficient to establish a prima facie  case of violation of the provisions of Article 3.3.  
Without prejudice to Australia's claims that Article 3 did not have application to the dispute at issue, 
Australia had, as a result of its risk assessment and in conformity with its rights under the SPS Agreement, applied a measure different from the inte rnational standard and wh ich resulted in a higher 
level of protection than would have  been achieved if it were based  on the international standard.  
Australia stressed that OIE standards, guidelines or recommendations were minimum guidelines, 
specifically recognized as such by the OIE: 
"Realising that the Code represents a worldwide standard  for the control of the listed 
aquatic animal diseases, Member Countries may use risk assessment approaches to 
include other diseases of particular concern in their national regulations."
116  
(emphasis added)  
4.125 Australia further argued that  claims about the practices of ot her Members (which appeared to 
be limited to the United States, Canada and the European Communities) did not constitute scientific 
justification that those practices would achieve Austra lia's desired level of protection.  Canada had not 
provided alternative scientific evidence about how  a measure based on a standard expressed as a 
minimal worldwide standard could achieve the leve l of protection Australia considered appropriate 
for the diseases at issue.  The OIE standards, guidelines or recommendations provided for guidance 
and did not impede a country's sove reign right to determine its accept able level of risk, provided there 
was scientific basis for the decision. 
4.126 Australia contended that the OIE's Internati onal Aquatic Animal Health  Code did not provide 
a single appropriate level of protection.  It noted that none of the experts advising the Panel appeared 
to have responded to the part of Question 26 d ealing with the implicit level of risk in OIE 
recommendations (see paragraphs 6.146-6.148).  Dr. Winton had stated that, because of the differing 
health conditions in various OIE member coun tries, it was impractical to have different 
recommendations for each country.  Australia stated that, in fact, the OIE recommendations provide a 
minimal level of protection against disease entry.  The associated implicit level of risk could not be 
considered to be the same for all OIE recommendati ons regarding fish.  This was because risk had 
two components, the likelihood of disease intr oduction, establishment and spread; and the 
consequence (or harm) that would result because of disease introduction, establishment or spread.   
4.127 In the event that the Panel were to find that OIE's standards, guidelines or recommendations 
were relevant to the dispute, Australia argued, in  the alternative and without prejudice to the above, 
                                                      
114 Op. cit., paras. 102, 165 and 171. 
115 Ibid., para. 165. 
116 OIE Code, Introduction, p.vi. WT/DS18/R 
Page 52  
 
that, contrary to Canada's claims, (i) its own measure  would result in a higher level of protection than 
would be achieved by measures based on OIE guidelines,  and that (ii) on the basis of examination and 
evaluation of available scientific information in conformity with the relevant provisions of the 
Agreement (Articles 5.1, 5.2 and 5.3), there was scie ntific justification that a higher level of sanitary 
protection would be achieved by Australia's measure.  Australia recalled that the text of Article 3.3 
provided two options for compliance with the conditions  attached to the exercise of the right not to 
base the measure on an international standard.  In accordance with footnote 2, the condition of 
scientific justification was met if a Member determin ed that the relevant international standard was 
insufficient to meet the appropriate level of protec tion and provided also that the determination had 
been made on the basis of an examination and eval uation of available scientific information.  The 
other option was compliance with the provisions of Article 5.   
  (i) Article 5.1 
Members shall ensure that their sanitary  or phytosanitary measures are based on an assessment, as appropriate to the 
circumstances, of the risks to human, anim al or plant life or health, taking into acc ount risk assessment techniques developed by 
the relevant international organizations. 
SPS Agreement, Article 5.1 
Risk assessment - The evaluation of the likelihood of entry,  es tablishment or spread of a pest  or disease within the territory  of an 
importing Member according to the sanitary or  phytosanitary measures which might be applied, and of the associated potential 
biological and economic consequences; or the evaluation of the pot ential for adverse effects on human or animal health arising 
from the presence of additives, contaminants, toxins or dis ease-causing organisms in food, beverages or feedstuffs.   
SPS Agreement, Annex A, paragraph 4 
 
4.128 Australia argued that Canada  confused scientific justification with opinions about a level of 
risk.  It had not provided alterna tive evidence to the detailed science of the Final Report, including the 
examination of options which might reduce the risk .  Canada could not claim, for instance, that 
evisceration would achieve a higher level of protecti on than controls on the importation of a product.  
If product entered, disease agents would enter.  Th is was not contested.  Nor could there be any 
presumption that an international standard was nece ssarily based on scientific justification.  It also 
noted that consideration of appropr iate levels of protection includ ed consequences as well as disease 
transmission and that the two factors could not be divorced from each other.  Australia maintained that Canada's arguments in respect of the contention that the measure did not result in a higher level of 
protection rested on a quotation from the Final Report in regard to the difficulty in distinguishing 
levels of risk in regard to each option presented by  a continuum of risks.  Australia had provided clear 
scientific evidence, supported by the fish disease expert s, that evisceration would not result in a higher 
level of protection than the measure applied by Au stralia.  None of the reports cited by Canada 
concluded that basing measures on an international st andard would be sufficient to achieve Australia's 
appropriate level of protection.  In contrast, the Final Report, on which the measure was based, 
contained a detailed and exhaustive ev aluation and examination of available scientific information, on 
which basis it was concluded that the OIE guidelin es would not be a sufficient basis to achieve the 
appropriate level of protection.  
4.129 Canada  recalled the requirement of Article 5.1 that a sanitary measure be based on an 
appropriate assessment of the risks.  Canada argued th at the Final Report did not meet this criteria as 
it did not (i) evaluate the likelihood of disease intr oduction but merely identified the possibility;  (ii) 
examine the risks on a disease-by-disease basis;  and ( iii) evaluate the risk on the basis of the various 
risk mitigation measures that might be applied.    WT/DS18/R 
   Page 53  
 
4.130 In Canada's view, the term "as appropriate to  the circumstances" referred to the circumstances 
in which a risk assessment was being undertaken.  Referring to Annex A.1 and Annex A.4 of the SPS 
Agreement, Canada claimed that these circumstances concerned (i) the source of risk (i.e. whether it 
was posed by an animal pathogen or a chemical contam inant); and (ii) the subject of risk (i.e. whether 
it was to human, animal or plant life or health).   The risk assessment and risk assessment techniques 
that are appropriate in the circumstances for one type  of measure, such as a measure in respect of risks 
to human health from chemicals in food, may well be different from that for another, such as a 
measure in respect of risks from the entry, estab lishment or spread of disease from an imported 
product.   
4.131 Australia  advised that, in accordance with the Vienna  Convention, it interpreted the term "as 
appropriate to the circumstances" as requiring a risk  assessment based on product, country of origin 
and country of destination.  In other words, it c onferred a right and obligation on a Member to include 
country-specific information in a product-based asse ssment of risk, and to assess the need for sanitary 
and phytosanitary measures on a case-by-case basis.  Australia drew attention to the  relevant 
negotiating texts of the SPS Agreement, from which it was evident that a "one model fits all" 
approach to risk assessment had been rejected.  The term "as appropriate to the circumstances" was 
first introduced into the draft text in 1991, in preference to earlier drafts of "risk assessment when 
appropriate", "based on adequate risk assessment procedures" and "based on an assessment of actual 
risks entailed".  It was considered that those term s, while indicating a high degree of flexibility in 
making a sovereign judgment as to the level of deta il of any risk assessment, did not address concerns 
regarding specific or unique situations or a Member's  right to take them into consideration.  During 
the course of the negotiations of the SPS Agreement, it was Australia's view th at the risk assessment 
policies and practices as detailed in its 1988 policy statement (paragraph (iv) refers) represented 
prevailing international risk assessment methodology incorporating the need to address specific or 
unique situations appropriate to the circumstances.  This had been the basis for Australia's acceptance 
of the term "as appropriate to the circumstances" fo r incorporation in the final text of Article 5.1 of 
the SPS Agreement.  Australia further argued that the non prescriptive approach of the SPS 
Agreement  to risk assessment was consistent with  the approach adopted in WTO Agreements relating 
to subsidies and countervailing measures, anti-dum ping and safeguards.  Those Agreements provided 
the envelope of disciplines while allowing for si gnificant differences in approach for assessing key 
issues, including the need to deal with a wi de variety of different circumstances.   
4.132 Hence, in Australia's view "appropriate to the circumstances" with regard to risk assessment 
included (i) that the approach had to include, but not be limited to, the risk assessment techniques 
which were still being developed and refined by the relevant international organizations, such as the 
OIE; and, (ii) the approach had also to recogni ze that there was no single model for risk assessment 
and that recent developments in the field might have to be taken into account.  Australia drew 
attention to the discussions with the experts advisi ng the Panel, from which it was clear that risk 
assessment techniques were in constant evolution and th at the views of experts, in respect of desirable 
risk assessment methodology and techniques, could not provide a basis for interpretation of WTO 
treaty obligations.  Australia noted that Article 5.1 did not require that a risk assessment be based on risk assessment techniques developed by the relevant  international organisation, rather that they 
should be taken into account. 
4.133 Australia argued that what constituted an a ppropriate risk assessment could differ from one 
case to another.  In view of the gaps in information on many aquatic animal diseases and the relative stage of development of work on aquatic disease compared to that on terrestrial animals (in part due to historical circumstances), it was Australia's opini on that the qualitative approach taken in the Final 
Report was the most appropriate to the circumstan ces.  Nothing in the SPS Agreement imposed an 
obligation on a Member to quantify its level of ri sk.  Australia considered that a quantitative risk 
assessment might be appropriate when there was a single chain of events in an import pathway.  
However, there was no contemporary quantitative me thodology that could provide a mathematically 
rigorous, stochastic approach for a quantitative risk  assessment of a multiple  pathway scenario as WT/DS18/R 
Page 54  
 
posed by the salmon example (multiple disease agents  and more than one route by which the agent 
could establish in the susceptible population).  Th e feasibility of a quantitative risk assessment would 
be further limited by (i) insufficient volume of de tailed scientific information;  (ii) insufficient 
knowledge of likely volumes to be imported each year  and (iii) the absence, in Australia, of a policy 
judgement to determine what final level of risk w as acceptable, including in regard to consequences.  
According to Australia, a qualitative risk analysis w as the most appropriate approach in this case.  
Hence, Australia maintained that  its measure was based on a risk assessment as appropriate to the 
circumstances and that the risk assessment took into account the risk assessment techniques developed 
by the relevant international orga nizations.  Canada has not met the burden of proof in regard to its 
claim that Australia had not undertaken an appropriate risk assessment. 
4.134 Australia drew attention to the following  excerpts from the Final Report in this context117: 
"A qualitative approach has been taken in this risk analysis as there are major 
impediments to performing a quantitative analysis. These include the lack of reliable quantitative data with which to perform th e analysis. Further difficulties are posed by 
the multiple, complex, and - in some scenar ios - the long, indirect potential pathways 
through which susceptible animals could be exposed to the disease agent in imported 
product. These pathways are difficult to defi ne - and there is virtually no reliable 
quantitative data to use in calculating the likel y prevalence of agents in product or the 
likelihood of susceptible animals being exposed to imported product. The scenarios 
of exposure involve unpredicta ble and unusual events which are difficult to model. 
It is noted that New Zealand MAF attemp ted a quantitative risk analysis using only 
Aeromonas salmonicida  with other agents assessed on a qualitative basis. New 
Zealand MAF concluded that, as a result of the importation of chilled, headless, eviscerated salmon from Canada, there is a 95 per cent probability that there would be 
fewer than one disease introduction of Aeromonas salmonicida  per ten million tons of 
salmon imported. However some have argued that the statistical reliability of that 
analysis, including the assumptions used, is  open to question. Australia believes the 
importation of salmon from Canada and the United States falls into this category 
where it is inappropriate to undertake a quantitative analysis." 
4.135 Regarding the scope of the Final Report, Australia argued that  it had acceded to a request in 
late 1994 from Canada and the United States that pr iority be accorded to a risk assessment on wild, 
adult, ocean-caught Pacific salmon.  There had been  no request from Canada to proceed with a risk 
analysis for the other categories of salmon product from Canada. 
4.136 In respect of the scope of the Final Report, Canada noted that in order to proceed more 
quickly and in light of the magnitude of the t ask, Canada had suggested that Australia proceed  first  
with an assessment of wild, adult, ocean-caught Pacific salmon, on the understanding that an 
assessment of other salmon products would follow thereafter.  The scope of the task had been 
narrowed with a view to facilitating the task so as to  achieve progress.  According to Article 5.1, it 
was for Members taking measures to base those measu re on an assessment of risks.  The obligation 
was not limited to those instances where another Memb er requested that a measure be based on a risk 
assessment.  Canada had not excused Austra lia from its obligations under Article 5.1. 
Evaluation of likelihood  
4.137 Canada argued that the Final Report did not focus on the probability, but rather on the 
possibility  of the risk event occurring.  The risk event,  in this case, was the establishment of exotic 
diseases through the importation of uncooked, wild, ocean -caught Pacific salmon.  In line with Annex 
                                                      
117 Final Report, p.24.    WT/DS18/R 
   Page 55  
 
A.4 and Article 5.1, a risk assessment had to assess the likelihood of the occu rrence of the event that 
the measure in question was designed to prev ent by the making of probabilistic estimates.  
Probability, in Canada's view, could be expressed  qualitatively as well as quantitatively.  The OIE 
guidelines focused on the "estimation of the probability of an adverse event".118  This view was 
supported by Dr. Wooldridge: 
"In my opinion, the requirement of a risk assessment is to evaluate the probability  of 
risk.  Given the existence of a particular disease agent, one can always  construct a 
possible  infection transmission scenario, however improbable, and therefore 
demonstration of the possibility of successful transmission and disease is not adequate.  (paragraph 6.59) 
"The OIE code does require an evaluation of probability (either qualitatively or 
quantitatively) rather than merely possibilit y of a given outcome or consequence even 
if, given current knowledge levels, the confid ence limits on that probability are wide."  
(paragraph 6.152) 
4.138 Canada noted that in the earlier Australian  risk analysis, the May 1995 Draft Report, it had 
been stated that in order for uncooked Pacific sa lmon to cause exotic diseases to become established 
in Australia, each step in a sequence of events ha d to occur.  The risk, according to the May 1995 
Draft Report, would be reduced to negligible va lues if one or more events in the sequence was 
extremely unlikely to occur, or if a number of ev ents in the sequence had a relatively low probability. 
These events were listed in the May 1995 Draft Report: 
"For imported salmon products to cause an exotic disease to become established in Australia, 
the following sequence of events must take place: 
  (i) the product must contain exotic pathogens; 
  (ii) the pathogens must survive processing;   (iii) the fish must be visibly normal (to pass inspection); 
(iv) the pathogens must survive physical/c hemical treatments, (such as freezing) 
in biologically significant numbers; 
  (v) the edible product and/or waste products must enter natural water courses; 
  (vi) the water must contain susceptible aquatic animals;   (vii) the pathogens must survive for sufficient time and in significant numbers; 
(viii) the pathogens must be exposed to a susceptible host by a route that allows 
infection; 
(ix) the pathogens must be present in suffi cient numbers to initia te infection in the 
host;  and 
  (x) the host must transmit infection to other susceptible animals."
119 
4.139 Canada observed that New Zealand had al so undertaken an assessment of the risks of 
importing wild, ocean-caught Pacific salmon from Ca nada.  The 1994 New Zealand Risk Assessment, 
like the May 1995 Draft Report, had demonstrated that  it was possible to provide a clear statement of 
probability (whether quantitative or qualitative) by considering the full sequence of events required 
for disease establishment.  Although Canada did not contend that the 1994 New Zealand Risk 
Assessment was conclusive of the issue of risk posed by importation of uncooked, wild, ocean-caught 
Pacific salmon to Australia, it was important to note  that the 1994 New Zealand Risk Assessment had 
concluded that, when certain sanitary measures were applied, the probability of  disease introduction in 
respect of each of the diseases in question was negligible. 
                                                      
118 OIE Code, Chapter 1.4.2 (See the titl e of the Article 1.4.2.1), p. 33. 
119 May 1995 Draft Report, p. ii (Executive  Summary), see also p.218, para. 7. WT/DS18/R 
Page 56  
 
4.140 Canada maintained that the Final Report  was not a risk assessment because it did not assess 
probability.  Canada noted that this was made cl ear in the reasons given in the Final Report for 
maintaining the measure, which included "the possi bility of diseases establishing in Australia".  While 
it was recognized that probability could be expressed  qualitatively as well as quantitatively, all of the 
experts advising the Panel agreed that a minimum requirement of a risk assessment was that it assessed probability.  The experts advising the Panel ag reed that the Final Report did not do so and 
therefore did not meet that minimum requirement.  The Appellate Body in EC -Hormones , had noted 
that "probability" referred to "likelihood"
120, hence, it was clear that a ri sk assessment, in the sense of 
the first definition in Annex A:4, which refers to the "[t]he evaluation of the likelihood of entry, 
establishment or spread of a pest or disease...", must  evaluate probability.  A mere evaluation of the 
possibility was not enough. 
4.141 Furthermore, Article 1.4.2.1 of the OIE Code  provided that "[t]he number of aquatic animal 
import units being imported significantly influences the risk assessment".  "Aquatic animal import units" was defined in Section 1.1 of the OIE Code  as "a specified weight of a product of aquatic 
origin".  Yet the Final Report had made no atte mpt to estimate the volume or weight of salmon 
product that would be imported, despite the fact that  quantitative data directly  relevant to such an 
estimate was included in the May 1995 Draft Report.
121  Hence, the Final Report did not conform to 
the OIE Guidelines for Risk Assessment. 
4.142 Even if the Final Report had constituted a risk assessment, Canada argued that Australia's 
measure  was not based on a risk assessment.  The re quirement in the SPS Agreement was not to do a 
risk assessment, but to base its measure on one.  Yet Australia's measure operated to prohibit the entry 
of all five categories122 of uncooked salmonids from Canada wh ile the Final Report considered only 
adult, wild, ocean-caught Pacific salmon.  The meas ure was hence maintained against the other four 
categories of salmon without a risk assessment. 
4.143 Finally, Australia's measure operated to a llow entry into Australia only for salmon product 
that had been heat treated according to certain ti me/temperature requirements.  Heat treatment was 
thus part of Australia's measure.  However, Austra lia itself had stated that the Final Report did not 
cover heat-treated product and that it would in the future undertake a risk ass essment for heat-treated 
salmon.  As the Appellate Body had stated in EC - Hormones , there needed to be a rational 
relationship between the measure and available sci entific evidence contained in the Final Report.123  
Australia's current measure was not based on a risk assessment and was in violation of Article 5.1. 
4.144 Australia  noted that Canada's claims of violati on under Article 5.1 were based on a reading 
of Annex A of the Agreement, rather than on the terms of Article 5.1.  Canada's claim represented a 
selective interpretation of risk assessment.  Cana da had read requirements into paragraph 4 of 
Annex A for which there was no textual basis.  Atte mpts to assign a probabilistic interpretation rested 
on a quote from a single dictionary definition.  Re ference to other dictionary sources, including 
dictionaries of legal usage, revealed that Cana da's interpretation of "likelihood" as equating to 
"probability" was not a universally shared view which would be capable of application as a legal 
definition, even within national ju risdictions.  Contrary to Canada's assertion that the Appellate Body 
Report on EC - Hormones  supported this interpretation, the Appellate Body in that case did not 
address definitions of "likelihood".  
4.145 Australia drew attention to the views of the experts advising the Panel in regard to the 
confusions associated with the use of terms such as probability, which they were clearly using in the 
sense of statistical risk assessme nt techniques and methodology which, they noted, were evolving 
                                                      
120 Op. cit., para. 184. 
121 May 1995 Draft Report, p.23. 
122 Table 1. 
123 Op. cit., para. 193, p.78.    WT/DS18/R 
   Page 57  
 
over time.  Australia argued that an expert's pref erence for a statistical probability based methodology 
or techniques  in risk assessment could not be used to define a constant le gal obligation.  Experts 
advising the Panel had pointed to the linguistic diffi culties and confusions associated with definitions 
of "probability", which may not  adequately describe a range of possible situations, hence the 
preference of some experts for a quantitative appr oach as a desirable future goal (although they 
recognised that a quantitative approach might not be  possible where there were gaps in data).   
4.146 Australia further argued that "likelihood" could not be interpreted in a way which would 
restrict the sovereign right of a Member to determ ine its appropriate level of protection, and that 
interpretations of "likelihood" coul d not be constructed in a contex t divorced from considerations of 
the appropriate level of protection, including in ci rcumstances of low risk of occurrence and high 
consequences.  Australia noted that "likelihood" had formed part of the SPS draft text in 1990, but on 
the basis of legal claims advanced by Canada, the Panel was now being requested to interpret 
"likelihood" in the context of the 1998 views of experts on appropriate methodology, which experts did not view as static.  Australia stated that in terms of "likelihood", it did not require scientific 
certainty, rather that there should be sufficient info rmation to allow reasonable judgments to be made 
in assessing whether the risk met Australia's appropriate  level of protection.  Australia referred to the 
comments of a risk assessment expert advising the Pane l in regard to the need for a judgment to be 
made.   
4.147 Australia argued that in interpreting the SPS Agreement, a distinction had to be made between 
the definition of "risk assessment" set out in Anne x A paragraph 4, and the substantive provisions 
including those set out in Article 5.  To do otherwi se, according to Australia, would be to fail to give 
effect to all the terms of the Agreement in their co ntext.  Australia pointed out that the definition of 
risk assessment as set out in Annex A paragraph 4, c ontained two parts joined by the word "or".  This 
clearly indicated that there was no requirement for a risk assessment to meet all the terms in paragraph 4;  compliance with either of the two pa rts of the definition was sufficient. In this sense, 
according to Australia,  Canada had not put forward any claims that the risk assessment (in the Final 
Report) did not fall within the definition contained in  the second part of the sentence in paragraph 4.  
Hence, Australia contended that the risk assess ment contained in the Final Report had been 
undertaken as defined in paragraph 4 of Annex A a nd that it met the requirements of Article 5, of 
which paragraphs 2 and 3 thereof elaborated the f actors to be taken into account in a risk assessment, 
and as such provided further definition to what cons tituted a risk assessment.  There was furthermore 
no limitation on the form that an "evaluation of likel ihood" might take, except that is should consider 
the possible risk management measures and th e consequences.  The SPS Agreement was not 
prescriptive about the methodology of risk assessment. 
4.148 Australia observed that both Drs. Rodge rs and Wooldridge accepted that quantitative 
assessment (i.e. numerical probabilities) could not al ways be done in such a subject as fish diseases 
where there were often gaps in rele vant data.  Dr. Rodgers noted that: 
"The possibility and the probability of an event occurring both embody elements of 
likelihood and risk.  However, as far as I am aware there is currently no pre-requisite to use the quantitative method, particularly in view of the lack of data in certain key 
areas of aquatic animal health.  This appli es equally when dealing with more than one 
disease agent, since, although many risk factors are common between different 
diseases, each disease may have unique factor to consider and each of these will have 
a variable quantity and quality of useable data." (paragraph 6.58) 
In situation where all the scientific information si gnificant to a risk assessment could not be obtained, 
it was necessary to apply expert judgement with su itable allowance for uncertainty.  The application 
of such judgement in the present case had led to the conclusion that no set of technically feasible 
measures met Australia's appropr iate level of protection. WT/DS18/R 
Page 58  
 
4.149 Also, the Appellate Body in EC - Hormones  had rejected the interpretations of the 
requirements of the SPS Agreement to the effect that  there was a requirement that a risk assessment 
"establish a minimum magnitude of risk". The Appellate Body noted that124: 
"the ordinary meaning of "potential" relat es to "possibility" and is different from the 
ordinary meaning of "probability".  "Pr obability" implies a higher degree or a 
threshold of potentiality or po ssibility.  It thus appears th at here the Panel introduces a 
quantitative dimension to the notion of risk." 
"... We must note that imposition of such a quantitative requirement [in regard to a 
minimum magnitude of risk] finds no basis in the SPS Agreement." 
4.150 Notwithstanding the above, Australia did not agree that the Final Report assessed only the 
possibility of an event.  Australia contended that the possibility of an event occurring (i.e. possible 
pathways) had been evaluated as a first step in th e risk analysis process.  This was supported in 
Dr. Wooldridge's advice to the Panel.  The Final Repo rt had concluded that the risk of introduction of 
unwanted exotic diseases from imported salmon meat  of adult, wild, ocean-caught Pacific salmon 
from North America was likely to be small.125  This conclusion was re peated in the Executive 
Summary in the Final Report, although the term "low" was used.126  However, given the potential 
consequences, and the uncertainty inherent in the assessment, this was judged not to be sufficiently so 
low as to meet Australia's appropriate level of protec tion.  Australia  drew attention to the absence of 
argumentation from Canada in respect of the fact ors to be taken into account as enumerated in 
Articles 5.2 and 5.3 of the SPS Agreement.  Cana da's arguments addressed only entry, establishment 
or spread and not biological or economic conseque nces.   The SPS Agreement accorded Members the 
right to take into account consequences in regard to  animal health measures and consideration of the 
risk of transmission could not be separated from consequences in the context of determining which 
measure might achieve the appropriate level of protection.   The present circumstances related to low risk and high consequences.  It was conceivable that in circumstances of a high risk/low consequence 
a  Member might decide that a  particular quarantin e restriction might not be warranted in the context 
of achieving an appropriate level of  protection, by reason of the capacity to manage or eradicate the 
risk or by reason of the minor economic or biolog ical consequences, including the low economic or 
social value that a community might attach to conseq uences.  This illustrated that the appropriate level 
of protection might still be the same in circumstan ces of widely varying levels of risk of entry, 
establishment or spread.  
4.151 In respect of the sequence of events set out  above (in paragraph 4.138), Australia argued that 
although the cumulative probability of the 10 events  would be low, there were (i) multiple and 
complex pathways of disease introduction and establishment
127, (ii) a significant number of diseases 
of concern, (iii) large uncertainties in any estimates  of probabilities, and (iv) considerable debate on 
the number of actual "steps" or "events" in each chain or branch in the possible scenario tree. 
4.152 Australia stressed that a comparison of th e conclusions between the May 1995 Draft Report 
and Final Report was not valid.  The May 1995 Draft Report was a draft  import risk analysis intended 
as a public discussion paper and designed to elicit public  comment;  as such it had no official status.  
It represented the risk communication stage of a ri sk analysis, including recommendations designed to 
encourage public debate.  There had been two op portunities for comment:  the May 1995 Draft Report 
and the "Revised Draft IRA", released in May 1996.128  In addition, this information had been 
                                                      
124 Op. cit., paras. 184 and 186. 
125 Final Report, p.70. 
126 Ibid., p.xi 
127 Ibid., pp.366-371. 
128 The 1996 Revised Draft Import Risk Analysis took into account the comments made on the May 1995 
Draft IRA.  Final Report, p.318.    WT/DS18/R 
   Page 59  
 
documented and made available for peer review.129  The May 1995 Draft Report was part of a process 
leading to the Final Report, which was submitted to  the Director of Quarantine for decision.  The 
format of the Revised Draft IRA differed from that of the 1995 Draft Report to ensure it was 
presented in accordance with OIE guidelines.  As no adverse comments had been received on the 
change in the format, the Final Report was structured  in the same fashion.  No inferences of motive 
could be attached to the differences in recomme ndations.  Australia was not seeking to explain the 
differences between the draft and final recommendations as due to new scientific data as such.  The Final Report was an independent document that shoul d be considered on its me rits and should not be 
compared to other studies which had been undertak en for different purposes and which had not been 
subject to the same level of scientific or legal scrutiny.  The  May 1995 draft was evaluated following 
public comment and included a re-evaluation of the sci entific data in light of Australia's appropriate 
level of protection.  The conclusion was reached that  the level of risk had been underestimated in the 
draft report. 
4.153 Australia noted that some information had b een included in the Final Report which was not in 
the May 1995 Draft Report.  This included the sp read of prawn viruses in the United States, the 
biofilms issue and the presence of the whirling disease a lternate host in Australia.  Furthermore, since 
the release of the Final Report, infectious salmon an aemia had been identified in Canada, erythrocytic 
necrosis virus had apparently been identified in Atlantic salmon in British Columbia and there was 
apparently strain differences in the IHN virus a ffecting wild and aquaculture salmonids in British 
Columbia.  Australia noted that Dr. Rodgers had al so pointed at the presence of VHS in Canadian 
Atlantic salmon, a fact of which Aust ralia had not been previously aware. 
4.154 Although the vast majority of the information in the May 1995 Draft Report was included in 
the Final Report, some information was no longer required as a result of the re-formatting of the 
document or was not relevant to the decision making process.  For example, the information on the 
percentage breakdown of a salmon into its variou s tissues was omitted as it did not add to the 
decision-making process in a qualitative risk analysis;  also, the usage of water and waste disposal in 
Sydney and Melbourne did not address waste dispo sal in a number of other regions which were 
potentially of a higher risk (Tasmania and regional areas).  The technical content and the evaluations 
made in the Final Report and the May 1995 Draft Re port were similar.  The recommendation of the 
1996 Final Report differed from the draft reco mmendation because after evaluating the almost 
200 comments submitted and re-evaluating the Ma y 1995 Draft Report, the conclusion was reached 
that the level of risk of exotic disease entry, th e potential for their spread and establishment and the 
economic and environmental impacts, includi ng on recreational fishing, had been underestimated  in 
the May 1995 Draft Report.  Australia stressed that  the risk assessment at issue was the Final Report 
of December 1996 and that there was no other ri sk assessment on uncooked salmon from Canada.  
There was thus no other risk assessment on which the existing measure was based. 
4.155 Australia also argued that the New Zealand import risk analysis was not relevant to the 
present dispute as (i) Australia believed that New Zealand's use of a quantitative risk analysis 
technique was not appropriate in the circumstances;  (ii) post entry factors including species at risk, 
industry practices, population distribution, waste di sposal practices, environmental conditions, and 
disease status were different between Australia and Ne w Zealand;  (iii) the New Zealand risk analysis 
did not consider the consequences arising from th e introduction of diseases and pests;  (iv) the 
assumptions made by New Zealand scientists a nd decision-makers did not necessarily reflect 
Australia's approach to risk and its appropriate le vel of protection, and, (v) the New Zealand report 
had several shortcomings in its modelling techni ques.  The relevance of the New Zealand risk 
assessment was valid solely in regard to scien tific evidence and whether undisputed scientific 
evidence in the New Zealand risk assessment was taken account as part of relevant "available 
                                                      
129 Canada submitted the peer reviews of the May 1995 Draft Report by Dr. Tore Hästein of the Norwegian 
Central Veterinay Laboratory and Dr. A.H. McVicar of the Scottish Marine Laboratory. WT/DS18/R 
Page 60  
 
scientific evidence".  Australia noted further that  the New Zealand risk assessment, together with 
other relevant studies, had not been subject to th e same WTO legal scrutiny as the Final Report.   
4.156 Australia noted that Members of the WTO were not limited to the consideration of the risk of 
transmission of a disease in determining the measure which might be applied, but had in principle the 
right to introduce or maintain trade restrictiv e measures in circumstanc es where the likelihood of 
entry or establishment might be small, but the con sequences were of an unacceptable magnitude.  In 
line with Articles 5.2 and 5.3 of the SPS Agreement, the consequences of occurr ence also required an 
evaluation for the purposes of determining the measur e which might be applied.  The Appellate Body 
had clarified in EC - Hormones  that the SPS Agreement did not distinguish between "risk assessment" 
and "risk management" and that defi nitions of "risk assessment" did not stop at scientific evaluation 
of risk.130  Experts advising the Panel had, in this cont ext, stressed that once a level of risk of 
occurrence had been defined, it was by far more  difficult to decide how to determine an acceptable  
level of risk.  This was, at the end of the day, a judgement for individual countries.  In this regard, 
Australian salmon was internationall y competitive and in addition recei ved a premium based, at least 
to some extent, on its quality and disease free status , both of which could be threatened by disease 
introduction.  As Australian product already compet ed effectively with product from North America, 
it was unlikely to suffer any adverse economic imp act from competition in the Australian market.  
However, the costs of disease introduction were subs tantial enough to threaten the very viability of 
the industry.  Disease introducti on could affect not only the comme rcial salmonid industry and its 
local and export markets, but also have serious implication for recreational and native fisheries. 
Disease-by-disease basis  
4.157 Canada  argued that Australia, having identified 24 disease agents of concern, was obliged in 
its risk assessment to make an evaluation of the likelihood of establishment for each one of the 
diseases.  As Australia had not done this, it was impo ssible to determine the risk, if any, posed by a 
particular disease agent.  Canada pointed out that the May 1995 Draft Report had contained a 
substantial amount of information that had not been included in the Final Report.  The May 1995 
Draft Report had examined the risk of the same 24 diseases and had reached  conclusions as to the risk for individual diseases.  The May 1995 Draft Report had stated that the risk was so small as to not merit continuation of the present quarantine restrictions.
131  The Final Report had begun with the 
premise that 24 disease agents posed a risk and had concluded in exactly the same way.  In other 
words, it reached no conclusions as to which of the diseases or disease agents of concern did in fact 
pose a risk that required the particular measure to  ensure that Australia's appropriate level of 
protection was met.  In Canada's view this was one  of the reasons why the experts advising the Panel 
had considered the Final Report to be no thing more than a "hazard identification".132  Hence, the Final 
Report did not fulfil the requirements of a risk assessment as set out in Article 5.1 and did not meet 
the definition of a risk assessment in Annex A of the SPS Agreement. 
4.158 Canada noted that Article 1.4.2.1 of the OI E Code provided that the factors listed needed to 
be considered "in constructing a scenario by which a disease agent  might be introduced into the 
importing country" (emphasis added).  Further, in referring to country, commodity, exposure and risk reduction factors, the Guidelines provided that: " Depending on  the commodity and the disease agent , 
any number of these factors may be used to estim ate the probability of an adverse event for the 
importing country" (emphasis added). 
4.159 Australia  noted that there was no textual basis for Canada's claim that a risk assessment must 
separately evaluate risk of occurrence for each dis ease and for each measure which might be applied.  
Australia did not exclude that such an approach might be feasible in certain circumstances, for 
                                                      
130 Op. cit., para. 181. 
131 May 1995 Draft Report, p.218. 
132 Burmaster, Transcript, para. 322.    WT/DS18/R 
   Page 61  
 
instance where an individual measure might prove capable of reducing or eliminating a single risk 
from an individual disease, pest or substance in rega rd to a human health matter addressing the risk of 
occurrence and consequences of di fferent additives.  But such an approach was not feasible in 
circumstances of the potential risk of multiple diseases carried by a product.  As exemplified in 
Articles 5.2 and 5.3, the consequences also require d evaluation.  Risk of occurrence and risk of 
consequences could not be considered in isolation. 
4.160 Australia drew attention to its arguments  that the SPS Agreement was not prescriptive about 
the methodology of a risk assessment (see paragra ph 4.132).  In terms of conformity with the 
provisions of the SPS Agreement, a risk assessment need ed to be examined in regard to the factors 
enumerated in Articles 5.2 and 5.3, as well as the pr ovisions of Article 2 of the Agreement, including 
in regard to scientific evidence and scientific principles.  Australia considered that, as an initial step, 
each disease had to be considered individually, where appropriate and where information was available;  and collectively in the light of the fact that the measure was applied for all agents 
collectively.  This had been done in Section 1.4 and Section 2 of the Final Report.  Australia argued 
that the OIE recommendations did not require an assessment for each  disease or an evaluation of 
possible introduction scenarios.  Rather, the risk  assessment technique recommended by the OIE was 
based on the  elaboration  of introductory scenarios according to  the components stipulated.  Australia 
noted that the OIE risk assessment guidelines referred  to "the risk associated with one or more  
disease agents".  Hence, Australia maintained th at its measure was based on a risk assessment as 
appropriate to the circumstances133 which took full account of OIE techniques, including assessment 
of the risk associated with one or more exotic di sease agents and the scenarios that might be involved 
in their introduction, together with subsequent exposure and transmission to aquatic animals.  
Australia's risk assessment was based on existi ng, accepted international guidelines contained in 
Section 1.4 of the OIE Code in line with Article 5.1.134  Australia noted that the OIE Code indicated: 
"Risk analysis must be able to deal with the complexities of reallife situations and no 
single method is applicable in all cases.  Fo r this reason, countries wanting to conduct 
import risk analyses may find it necessary to design their own process for carrying 
out the exercise."135 
4.161 Australia argued that Canada's interpre tations of OIE methodology requirements were not 
relevant.  Australia was not required to conform with or base its requirements on OIE techniques.  
OIE techniques were in the process of constant change and could not be used to define "risk 
assessment" in the context of the SPS Agreement.  Yet, in Australia's view, this seemed to be 
Canada's main evidence of the need  for a disease-by-disease evaluation. 
Evaluation of risk in light of measures which might be applied  
4.162 Canada  argued that Australia failed to evalua te the likelihood of the establishment of the 
disease (the risk event occurring) according to each sanitary measure which might be applied (as set 
out in Annex A.4).  If a Member did not do so, it would not be able to identify the least trade restrictive measure that would achieve its appropr iate level of protection.  The Final Report was 
largely a descriptive document.  It described scen arios by which a disease establishment might occur, 
and it described a number of the factors that were rele vant to an estimation of the probability of such 
an occurrence, but it avoided making the necessar y probability assertions for the scenarios it had 
postulated.  Although the Final Report did identify fi ve quarantine policy options, it did not evaluate 
the likelihood that each option would lead to the establishment of any of the diseases of concern.
136 
                                                      
133 Paragraph 4.129 and following. 
134 Final Report, p.37 (Risk Analysis Considerations). 
135 OIE Code, Section 1.4.1.3, p.30. 
136 Final Report, p.69. WT/DS18/R 
Page 62  
 
4.163 Australia  argued that a decision on which measure to take in a particular case would be made 
on the basis of a risk assessment against the level of protection which a Member had "deemed" to be generally appropriate, in accordance with paragraph 5 of  Annex A.  In this sense, the risk assessment 
in the Final Report had evaluated the likelihood of ri sk according to the range of possible measure that 
might be applied.  Australia noted that there was no limitation as to the form that this evaluation had 
to take except that it had to consider the possibl e risk management measures and the consequences. 
4.164 Australia drew attention to the options iden tified in the Final Report.  Options for pre- and 
post-entry quarantine conditions on im ported product were built into all stages of the risk analysis and 
could not  be separated out.  The Report containe d a technical review of data which examined, for 
each disease, control measures, exporting country fact ors, pathogenic factors, agent factors, exposure 
factors and risk reduction factors and consequences.  In regard to risk reduction factors, the following 
issues were addressed: 
- restricting the zone of origin, sp ecies of origin, life cycle stage; 
- pre and post shipping quarantine; 
- product testing with tests having high sensitivity; 
- processing, maturation and storage for specified time and temperature; - treatments such as heating and disinfection; - restricting the destination; - vaccination;  and 
- certification. 
As noted elsewhere, the Final Report included an eval uation of the costs of control or eradication in 
respect of furunculosis and IHN, including the rela tive cost effectiveness of alternative approaches to 
limiting the risk.  In regard to consequences, cons ideration was given, for each disease, to the ability 
to control or eradicate if the di sease were introduced into Australia. 
4.165 The Final Report also addressed the follo wing options as part of the risk analysis: 
- heat treatment of pathogens of concern, pr e- and post-entry (but Australia noted that 
this was outside the scope of the access request by Canada and United States); 
- implement the findings of the BRS report in part or in full; - permit the importation of retail ready fi llets, for distribution in raw form under 
specified conditions; 
- permit the importation of headless, gilled, eviscerated product under specified 
conditions;  and 
- permit the import of product that complies with current international standards of 
evisceration. 
4.166 In regard to the options identified in the Final Report, Australia noted that for each option 
there was a distinct level of protection and it ha d been established that only the option chosen would 
achieve the appropriate level of protection.  Australia noted that in regard to the continuum of risks, it 
was true that it was difficult to quantify the differen ces in the level of risk afforded by each option, 
but, nevertheless, the fact that differences prevailed was evident.  The Final Report stated that " [t]he 
difference in level of risk between each op tion is incremental and cannot be quantified".
137  However, 
the Final Report had clearly stated that Option 1 repr esented the lowest level of risk (highest degree of 
security) of any option considered.138  Options 2, 3 and 4 were not ranked other than that these fell 
between Option 1 (lowest risk) and Option 5 (highest risk).139 
                                                      
137 Ibid., p.62. 
138 Ibid., pp. 62 and 69. 
139 Australia noted that on page ix of the Final Report "lowest" was an editorial error, and should read 
"lower".    WT/DS18/R 
   Page 63  
 
  (j) Articles 5.2, 5.3 and 5.4 
In the assessment of risks, Members shall take into account ava ilable scientific evidence;  relevant processes and production m ethods;  
relevant inspection, sampling and testing methods;  prevalence of specific diseases or pests; existence of pest- or disease-fre e areas; 
relevant ecological and environmental cond itions; and quarantine or other treatment. 
SPS Agreement, Article 5.2  
In assessing the risk to animal or plant life or health and de termining the measure to be applied for achieving the appropriate  level of 
sanitary or phytosanitary protection from such risk, Members sh all take into account as relevant  economic factors:  the potenti al 
damage in terms of loss of production or sale s in the event of the entry, establishment or spread of a pest or disease;  the co sts of 
control or eradication in the territory of  the importing Member;  and the relative co st-effectiveness of alternative approaches  to 
limiting risks. 
SPS Agreement, Article 5.3  
Members should, when determining the appropria te level of sanitary or phytosanitary pr otection, take into account the objective  of 
minimizing negative trade effects. 
SPS Agreement, Article 5.4 
4.167 Canada  claimed that Australia's measure was contra ry to Article 5.2 of the SPS Agreement.  
Canada argued that according to Articles 5.1 a nd 5.2 a sanitary measure must be based on an 
assessment of risks to animal life or health taking  into account scientific evidence of the likelihood of 
the entry, establishment or spread of a disease.  Canada noted that the Final Report came to the 
opposite conclusion of the May 1995 Draft Report without calling into question the scientific 
credibility of the May 1995 Draft Report, and without presenting additional scientific evidence that 
warranted a wholesale reexamination of the conclusions of the May 1995 Draft Report. 
4.168 Canada argued that the heat treatment conditions set out in Australia's measure and 
consequent ban on the importation of  uncooked salmon were not rationa lly supported by the available 
scientific evidence, and were therefore in violation of Article 5.2. 
4.169 Australia  drew attention to its due process concerns , which included concerns in relation to 
Canada's claim of inconsistency w ith Article 5.2 (paragraph 4.10).  Australia argued that the Panel 
was thus not required to make findings in respect of the consistency of Australia's measure with 
respect to that provision.  Nonetheless, without pr ejudice to its due process concerns, Australia noted 
that Canada's claims rested on a new specific clai m that there was no rational relationship between the 
measure and the scientific evidence.  The basis for that claim was ne w, in regard to heat-treated 
product.  However, Canada had not clearly identifie d the basis for its claim in the text of the SPS 
Agreement. It had cited the Appellate Body Report in EC - Hormones, but its characterisation of legal 
issues differed markedly from the language used by the Appellate Body. 
4.170 Australia observed that Articles 5.2 and 5.3, together with Article 5.5, imparted meaning to 
the scope of a risk assessment, as defined in paragraph 4 of Annex A.  The Final Report had 
extensively considered the factors set out in Article 5. 2.  This had been done in regard to the source of 
the product and the receiving environment in co nsidering each disease agent.  Furthermore, in 
assessing the risk and determining the measure to be  applied for achieving th e appropriate level of 
protection, Australia had taken into  account all relevant factors listed in Article 5.3.  Australia argued 
that although Article 5.4 did not contain any subs tantive obligations, it did impart meaning to the 
substantive obligations in Article 2. 2 (in regard to "necessary") and Article  5, in particular Article 5.5.  
The fact that Australia had previously determined, inter alia , that canned and heat-treated, uncanned 
salmon would be permitted entry, was evidence that Austra lia had taken into account the objective of 
minimizing negative trade effects. 
4.171 Australia noted also that Canada had never addressed the May 1995 Draft Report in terms of 
legal consistency, but presumably its endorsement of th at draft report related to the conclusions rather 
than the content.  Australia maintained that SPS legal obligations were not about ascribing motive or WT/DS18/R 
Page 64  
 
intent, but it would be highly misleading to believe that there had been a change in Australia's policy 
on an appropriate level of pr otection between 1995 and 1996. 
  (k) Article 5.5 
With the objective of achieving consistency in  the application of the concept of appropr iate level of sanitary or phytosanitary  
protection against risks to human life or health, or to animal a nd plant life or health, each Member shall avoid arbitrary or u njustifiable 
distinctions in the levels it considers to be appropriate in different situations, if  such distinctions result in discriminatio n or a disguised 
restriction on international trade  ....  
SPS Agreement, Article 5.5 
Appropriate level of sanitary  or phytosanitary protection  – The level of protection deemed appr opriate by the Member establishing a 
sanitary or phytosanitary measure to protect human, animal or plant life or h ealth within its territory. 
SPS Agreement,Annex A, paragraph 5 
Determination of the acceptable level of risk  
4.172 Canada  noted that a fundamental problem in accep ting Australia's contention that only heat-
treated product would achieve its appropriate level of  protection was Australia's failure to adequately 
express its appropriate level of protection.  While a Member had a sovereign right to choose its own 
appropriate level of protection, Australia had failed to determine its "appropriate level of sanitary 
protection" in maintaining the measure at issue.  In not doing so, Australia had, on this ground alone, 
violated its obligations under Article 5.5 of the SPS Agreement.  Canada noted that among the 
conclusions in the May 1995 Draft Report, Australia had stated: 
"In light of the substantial information c onsidered on the health status of North 
American salmonids, it is AQIS's judgement the importation of salmonid product derived from wild, ocean-caught Pacific salmon from Canada and the USA under specified conditions for the purposes of human consumption does not present a 
significant risk  of the introduction and establishment of an exotic disease or strain of 
disease to Australia.  Accordingly, AQIS recommends that importation be permitted under the draft conditions described in Appendix 6. 
"It has concluded that the risk of dis ease introduction is acceptably low, having 
regard to the potentially serious consequences of such an event."
140  (emphasis added) 
4.173 Canada observed that in the Final Report, Australia had indicated: 
"As a practical matter, the concept of "acceptable risk" is applied in most 
circumstances in a qualitative manner, as is the practice in comparable countries.  
Because of its favourable animal health stat us, Australia has traditionally maintained 
a consistently conservative approach  to the management of risk  in accordance with 
the broad policy position of government. 
... "Where Australia has a great deal to lose from the entry and establishment of exotic 
diseases, controls on imports are set so as to reduce risk to very low  levels."
141  
(emphasis added) 
                                                      
140 May 1995 Draft Report, Conclusion, p. 223. 
141 May 1995 Draft Report, Conclusion, p. 223.    WT/DS18/R 
   Page 65  
 
Furthermore, the final paragraph of th e conclusion in the Final Report stated: 
"On the basis of the large number of disease agents in question; the many unknowns 
about them ;  the impossibility of detecting covertly infected animals at inspection;  
the multiple, complex pathways thro ugh which imported product could enter 
Australian waterways;  the presence of potential host species in Australian 
waterways;  the possibility of diseases est ablishing in Australia ;  the substantial 
economic impacts that could result to the salmonid aquaculture industry from disease establishment;  the potential loss of amenity and economic impact on recreational fishing and associated business;  the potential environmental impacts on listed endangered and vulnerable species;  an d the ineradicability of disease, it is 
recommended that the present quarantine policies for uncooked salmon products 
remain in place."
142  (emphasis added) 
4.174 Thus, in Canada's view, Australia had gone from apparently  using the standard of "no 
significant risk" (May 1995 Draft Report), to "very low risk" and "possibility" of risk in the Final 
Report.  Canada argued that to use the possibility  of disease establishment as a basis for refusing 
access for uncooked salmon was tantamount to a "zero-risk" policy.  In its Rebuttal Submission, 
Australia had stated that Canada had not put fort h evidence "that spread could not occur" and that 
"Canada is unable to say that there is no risk or that none of the disease agents in question will be 
found in Pacific salmon in the Pacific region".  It appeared to confirm this when it indicated in 
response to a question from the Panel (Question 24)143 that it required freedom of a product from pests 
or diseases of concern as the basis for access to its markets.  Thus, Australia appeared to be 
demanding zero risk that a disease agent would even  enter its territory through the importation of 
Canadian salmon.  Canada also noted that Aust ralia appeared to admit explicitly in its First 
Submission (at paragraph 382) that it had not de termined its acceptable level of risk at all: 
"Use of a quantitative approach implies that there is agreement on what level of risk 
is acceptable.  A policy judgement is needed  to determine whether or not such a risk 
is "acceptable", including in regard to c onsequence, and to da te, no such level of 
acceptability has been ag reed in Australia." 
Australia's shifting and contradictory statements in  respect of its appropriate level of protection 
indicated that Australia had either not determined its appropriate level of protection, or that it was 
using its appropriate le vel of protection not to protect its fish, but to protect its measure. 
4.175 Australia  argued that the evidence cited by Canada was incorrect or misleading.  Australia 
recalled its arguments in paragraph  that inferences of motive or intent belonged in the realm of 
assertion and did not constitute evidence, and further th at there had not been a change in Australia's 
policy on an appropriate level of protection for salmon between May 1995 and 1996.  Rather, the 
recommendations of the Final Report were made af ter a full evaluation of comments in response to 
the draft import risk analysis  (whose recommendati ons were framed with a view to eliciting public 
comment) and a thorough evaluation of the draft repor t by experts.  Furthermore, Australia argued 
that claims whether Australia had or had not unde rtaken a risk assessment n eeded to be addressed in 
the context of Article 5.1. 
4.176 Without prejudice to the forgoing, Austra lia had the right to take into account the 
consequences  of entry, spread or establishment, including the factors listed in Article 5.3 of the SPS 
                                                      
142 Ibid., Conclusions, p.70. 
143 Panel's Questions to the Parties on 10 September 1997. 
Question 24:  Is it correct to say that Australia effectively bans all uncooked salmon whether or not it originates from Canada or the United States?  What is the status of imports of New Zealand 
salmon into Australia?  What are the possibilities for a country to prove that it is free of the diseases of concern to Australia and thus to get permission to export its salmon to Australia?  WT/DS18/R 
Page 66  
 
Agreement.  The appropriate level of protection was determined in regard to risk, including 
consequences - a likelihood of occurrence might be small, but the consequences were of an 
unacceptable magnitude.  The level of protection deemed appropriate was that of the Member 
establishing the measure - there were no minimum or maximum thresholds.  The issue of the 
determination of Australia's acceptable level of risk was not relevant to the examination of 
consistency within the provisions of  Article 5.5.  Furthermore, Aust ralia claimed that Canada had not 
met its burden of proof with respect to Article 5.5.   Canada's  evidence was in the realm of assertion, 
based on assumptions derived from a comparative an alysis of the May 1995 Draft Report, the 1994 
New Zealand Assessment and the Final Report.  Th is ignored the standard of review and was 
tantamount to a de novo  review. 
4.177 The basis for Canada's claim that Australia  had not determined its  appropriate level of 
protection appeared to be the non-quantification of th e acceptable level of risk.  Australia argued that 
there was nothing in the SPS Agreement which impo sed an obligation on a Member to quantify its 
level of risk.  Determination of the appropriate level of protection was a sovereign decision as was 
evident from the definition of the term (Annex A,  paragraph 5), and the preamble to the SPS 
Agreement.  Australia recalled its earlier arguments  in this respect (see paragraphs 4.146-4.149). 
4.178 Australia argued that the appropriate level of protection reflected community expectations 
across a range of issues and activities to protect human, animal and plant life, health and safety.  The determination of the appropriate level of protection included consideration of, inter alia , the benefits 
of access for imported products as against the costs of pest or disease incursions - in a general sense, 
not on a case-by-case basis.  The decision on which me asure to take in a particular case would be 
made on the basis of a risk assessment against the level of protection which a Member had deemed generally appropriate, in accordance with the defini tion of risk assessment in Annex A, paragraph 5.  
According to Australia, the risk as sessment evaluated the likelihood of risk according to the range of 
possible measure that might be applied.  Subse quently, in the case of protection from pests and 
diseases, a quarantine decision, including specific quarantine measures applicable (ranging from free 
entry to prohibition) and consistent with Australia's  appropriate level of prot ection, was then made.  
Factors to be considered in the case of protecti on from pests and diseases included the likelihood of 
introduction, establishment or spread, the conseque nces (economic and social) that would result from 
that event occurring and the weighting that would be  applied where uncertainty existed.  Australia 
noted that in the Final Report, explanations or term s to describe the concept of the appropriate level of 
protection included: 
- "very conservative"; 
- "where Australia has a great deal to lo se from the entry and establishment of exotic 
diseases, controls on imports are set so as to reduce risk to very low levels";  and,  
- "Australia develops quarantine measur es to provide the appropriate level of 
quarantine security acceptable to  the Australian community". 
4.179 Australia argued that successive Australian gove rnments, in the light of Australia being an 
island State free of many pests and diseases and with a very high economic dependence on agricultural production and exports, had consistently adopted a conservative approach with respect to 
the appropriate level of protection.  Quarantine was seen as a fundamental to the protection of 
Australia's unique environment and was clearly linke d to Australia's export future which depended on 
Australia's relative freedom from pests and diseases. There was a history in Australia of new agents/pests (for example the cane toad, papaya fruit fly) having a significantly greater impact than in 
other countries.  Australian quarantine policy, while not based on a zero risk approach, was very risk 
adverse because of the consequences of not maintaini ng the current pest and disease status.  In regard 
to salmonids, the number and distribution of su sceptible salmonid hosts within Australia had 
increased significantly since the 1970s.  This cha nge, combined with greater mobility of people 
(including recreational boating and ecotourism), as well as dietary changes (including greater consumption of raw fish products) had significantly increased the risk of exposure of salmonids to    WT/DS18/R 
   Page 67  
 
imported product since the 1970s.  Australia intended  to maintain its conservative approach to 
quarantine policy while ensuring that  sufficient resources were availa ble to maintain a science-based 
quarantine system capable of decision making b ased on the weight of scientific evidence and 
judgement.  Australia underscored that care had to be used when making comparisons between 
decisions that had been taken at different times sinc e community expectations on the appropriate level 
of protection changed with time. 
4.180 Canada  refuted Australia's attempt to justify its measure in part by asserting special 
ecological circumstances.144  Australia had offered no evidence for its assertions regarding export 
price premiums due to a "privileged health status ".  Moreover, many salmonid diseases were endemic 
to Australia.145  Any price premium Australia received was clearly not due to its self-proclaimed 
"privileged health status", but rather was likely due to commercial and marketing factors such as 
Australia's ability to supply product from January to March (a low production and export period for 
northern hemisphere countries), and the freshness of its product due to its proximity to markets such 
as Japan.  While Australia had argued that dead Canadian salmon posed a potential  threat to its 
indigenous fish populations146, Australia had ignored documented threats to those same populations 
from its live, introduced recreational salmonid populations.147  
4.181 Canada argued, specifically, that Australia ha d contravened each of the three distinct elements 
that the Appellate Body in EC - Hormones   had indicated were required to make a violation of 
Article 5.5, namely: 
(i) that the Member imposing the measure compla ined of has adopted appropriate levels 
of sanitary protection in different situations;  
(ii) that those levels of protection exhibit arbitrary or unjustifiable differences or 
distinctions in their treatment of different situations;  and  
(iii) that the arbitrary or unjustifiable differences result in discrimination or a disguised 
restriction on international trade through the measure embodying a particular level of 
protection.148 
Different levels of protection in different situations  
4.182 Canada  recalled that Article 5.5 required Austra lia to "avoid arbitrary or unjustifiable 
distinctions in the levels it consid ers appropriate in different situati ons, if such distinctions result in 
discrimination or a disguised restriction on intern ational trade".  Canada argued that "different 
situations" in this case were, at minimum, those th at involved at least some of the same 24  disease 
agents that Australia had used as a justification fo r its measure.  Thus, whatever level of protection 
was reflected in Australia's measure, Australia w ould have to impose the same restrictions on the 
importation of all products known to  host any of the same 24 disease agents, irrespective of whether 
the hosts were salmonids or not.  The consequences of establishment of the disease would be the same 
whether a given disease was established via salmoni d or non-salmonid imports.  However, Canada 
contended that Australia did not do this.  Austra lia explicitly distinguished between salmonids and 
                                                      
144 Final Report, p.70. 
145 These included septicaemic and ulcerative disease attributed to Vibrio anguillarum ; septicaemic diseases 
caused by Yersinia ruckeri , Enterococcus seriolicida  and Lactobacillus piscicola ; amoebic gill disease caused by 
Paramoeba  sp.; haemorrhagic gill lesions caused by Ceratothoa  sp.; ulcerative dermatitis caused by Flexibacter 
maritimus  and Cytophaga psychrophila  and various skin and gill diseases caused by the fungi Saprolegnia  sp.  
Furthermore, Canada observed that endemic to Australia were diseases of other species which affected salmonids, including Aeromonas salmonicida  (atypical), Edwardsiella tarda , and epizootic haematopoietic necrosis (EHN), an 
OIE Notifiable disease not found in North America.  
146 Final Report, p.108 (Response to Question 3). 
147 Report of the National Task Force, p.69;  Final Report, p.97. 
148 Op. cit., para. 214. WT/DS18/R 
Page 68  
 
other finfish for sanitary purposes, despite scientif ic evidence that many of the 24 disease agents of 
concern to Australia could also occur in a wide  range of non-salmonids (Table 6 and Table 7). 
4.183 Canada pointed out that the Appellate Body in EC - Hormones  had taken a broad view on 
what constituted different situations for the purpose of identifying different levels of protection in 
different situations, namely some common element or elements that rendered them comparable.149  
The common element for the products Canada had id entified was that they all were known to host 
disease agents that were also found in salmonids, th at were exotic to Australia, that might infect 
salmon and other salmonids in Australia and that Au stralia had claimed as the basis for its prohibition 
on uncooked salmon.  Canada also noted Australia's  failure to control the internal movement of 
salmonids that might host EHNV as another example.   In that case, the common element was that 
EHNV was another serious disease agent of salmonids, and Australia claimed it was attempting to avoid the introduction of serious diseases of salmonids by its prohibition of uncooked salmon from Canada. 
4.184 Australia argued that, as supported by the Appellate Body Report on EC - Hormones , 
consistency was not an obligation of Article 5.5.   Nevertheless Australia had taken steps towards 
achieving consistency in regard to aquatic animals as well as in other areas, as evident in the detailed 
program of scheduled risk analyses (paragraph  refers).   Different  situations needed to be interpreted 
in the light of the Appellate Body Report on EC - Hormones , that is that there must be sufficient 
elements in common  for the purposes of comparison.   The concepts of Article III of GATT 1994 in 
respect of "like" or "directly competitive or substit utable" products was not relevant.  Article 2.2 , 
which was relevant, referred to "conditions", not products.  It was Australia's contention that, in 
regard to  the evidence submitted by Canada, th ere were no common elements sufficient to render 
comparable the levels of protection on salmoni ds and non salmonids.  There could not be any 
assumption that the existence of th e same disease in another product was an element sufficient to 
render comparable the treatment of another produc t which hosted or potentially hosted a significant 
number of other diseases.  Any such assumption did not have scientific validity.  Nor as, evidenced by 
the views of the experts advising the Panel, were th ere sufficient common elements in regard to heat-
treated product. 
4.185 Australia had imposed the measure on salm on because of the range of disease agents that 
potentially might be present in imported salmon.  The measure had not been put in place for any one 
particular disease agent.  The only fact in common was that salmon and another fish might have a disease agent in common.  However, the existence of different measures for different products where 
there were one or more diseases in common did not  constitute evidence of distinctions in the 
appropriate level of protection.  Canada had not addressed the issue of comparability of (i) the 
likelihood of entry, establishment or spread of di seases in these different products;  (ii) the biological 
or economic consequences;  or (iii)  the risk management factors. 
4.186 Australia contended that "different situati ons" might occur in regard to the same product and 
the same diseases where there might be an identical or similar adverse health effect and identical or 
similar consequences.  Different situations could also involve the same a dverse health effects and 
consequences in respect of different products.  In re gard to identical or similar adverse health effect 
and consequences, Australia had permitted the entr y of certain cooked prod ucts, which had been 
determined to represent an acceptable level of risk .  In regard to the same product and the same 
diseases, Australia had determined that the same leve l of protection had to be applied to products from 
all sources.  With respect to EHNV, Australia recal led its response to Canada's arguments given in 
paragraphs 4.97, 4.99 and 4.102 . 
                                                      
149 Ibid., para. 217, p.88.    WT/DS18/R 
   Page 69  
 
TABLE 6  
Salmonid Disease Agents Identified In Australia's Final Report Known To Occur  
 In Non-Salmonid Fish Imported Fresh Or Frozen Into Australia  
(As Argued By Canada) 
Disease Agent Non-salmonid host species  
(Number of additional non-salmonid host 
species) Australian import 
A.  BACTERIA 
 
Aeromonas salmonicida  (atypical)  
Pacific herring 
Haddock Atlantic cod Plaice 
Japanese eel 
(28)  
Herring 
Haddock Cod Plaice 
Eel 
 
Aeromonas salmonicida  (typical)  
Coalfish 
American eel 
Atlantic cod (32)  
Coalfish 
Eel 
Cod 
 
Edwardsiella tarda  
Japanese eel 
(10)  
Eel 
 
Vibrio anguillarum    
Atlantic cod 
Coalfish  
(8)  
Cod 
Coalfish  
 
Vibrio salmonicida  
Atlantic cod  
Cod  
 Yersinia ruckeri  
European eel Coalfish 
(9)  
Eel Coalfish 
B.  VIRUSES 
 Erythrocytic necrosis virus  
Atlantic herring Pacific herring Atlantic cod 
(15)  
Herring  Cod 
 Infectious pancreatic necrosis virus (IPNV)   
European eel Japanese eel 
Dover sole 
Cod (25)  Eel 
 Sole 
Cod 
  
 Infectious haematopoietic virus (IHNV)  
Pacific herring  
Herring 
 
Viral haemorrhagic septicaemia virus 
(VHSV) (N.A. strain)  
Pacific herring 
Pacific cod  
Herring 
Cod  
 Viral haemorrhagic septicaemia virus 
(VHSV) (European strain)  
Atlantic cod 
Haddock 
European eel (3)  
Cod 
Haddock 
Eel 
Source:  First submission of  Canada, Table 6, p.79-80.  WT/DS18/R 
Page 70  
 
TABLE 7  
Australian Imports Of Live Fish Known To Host Disease Agents  
Identified In Australia's Final Report  
(As Argued By Canada)  
Fish Disease Agent Total number of  
fish Imported  
1988-1995 
 
Ornamental:  fresh water  
IPNV A. salmonicida  (atypical) 
Y. ruckeri  
E. tarda  
57,663,000 
 Ornamental:  salt water  
V. anguillarum  
  
1,193,000 
 
Carp  
A. salmonicida  (typical) 
IPNV A. salmonicida  (atypical) 
Y. ruckeri  
3,814 
Source:  First submission of Canada, Table 7, p.82.  
4.187 In regard to the same di seases which might be present in other products, Australia argued that 
due to scientific knowledge about the presence of e xotic diseases in salmonids and the research which 
had been undertaken on entry and establishment of  the diseases, salmon represented the only finfish 
on which a species-specific level of protection had been established.  As concluded in the Final 
Report, Australia had determined that there was an unacceptable level of risk associated with the entry 
of uncooked salmon from Canada and the United States. 
4.188 Australia further noted that a Task Force150 had been established to examine and report on 
issues relating to the importation of fish and fish products into Australia, including fish health, industry implications and environmental aspects.  The Task Force had been concerned about the 
potential risks inherent in some existing aquatic animal imports.  Australia had reaffirmed its 
commitment to undertake open, transparent, scientif ically-based import risk analysis of these imports 
in order to clearly identify the risks and take appropr iate action to ensure the consistent application of 
quarantine policy in line with Australia's interna tional obligations.  Following recommendations by 
this Task Force, Australia had attached quara ntine conditions to imports of uncooked freshwater 
crayfish products and prawns not fit for human consumption.   
4.189 If Article 5.5 were to be interpreted in a way which required Australia to impose the same 
restrictions on other fish which might host other diseases, Australia would then run the risk of breaching its obligations in regard to the measur es on those other products, including Article 5.1 
obligations.  It was Australia's view that risks as sociated with other aquatic animals could not be 
compared in the absence of a risk analysis.  This was supported by the experts advising the Panel.  
The same measure, applied in different circumstances,  might not achieve the same level of protection.  
Consistent with a Member's rights under Article 5. 7 of the SPS Agreement, it could not be excluded 
that, depending on the circumstances, quarantine restri ctions be considered on the importation of other 
aquatic animals and their products prior to the co mpletion of an import risk analysis if it were 
believed that there was sufficient justification.  In fact, there were Australian experts who were of the 
view that quarantine measures applie d to some other fish species might not be appropriately 
                                                      
150 Paragraph 4.62.    WT/DS18/R 
   Page 71  
 
restrictive.151  Nevertheless, in the absence of strong jus tification, Australia intended to await the 
completion of an import risk analysis process before  revising its import conditions for aquatic animals 
and their products. 
4.190  Import risk analyses were schedul ed for the following aquatic products: 
- processed aquatic animal feeds; 
- table fish; 
- other aquatic animals for human consumption (some crustacean species and 
miscellaneous invertebrates); 
- uncanned heat-treated salmon; - registered premises - standards and guide lines, including the use of live animals for 
research; 
- biologicals, vaccines, fish hormone preparations; - aquatic microorganisms; - fomites, fishing gear, wastes, packaging materials; - processed aquatic animal products and extracts; - brine shrimp; 
- transhipment of live aquatic animal species; 
- live aquatic animals for human consumption; - live aquatic animals for aquaculture, breeding purposes; - live aquatic animals for ornamental purposes (not fin fish); - molluscs and bait and feed fish;  and 
- prawns and freshwater crayfish (commenced). 
Australia stated that an import risk analysis process had commenced in 1997 for the importation of 
ornamental fish, which had been identified as a high-pr iority area.  Australia em phasised that, in a real 
world, it was not possible  to undertake numerous and complex risk assessments in parallel.  They had 
to be programmed and prioritised in the light of re sources, including specialist scientific expertise.  
This was the situation in practice in most countries.   In terms of aquatic issues, Australia was more 
advanced  than any other country, including Canada, in regard to working towards the achievement of 
the objectives of Article 5.5.    
4.191 Australia noted its rights under Article 5.7 to take provisional measures and had not excluded 
that it might be necessary to do so in resp ect of the products and diseases which were under 
examination, but Australia was also conscious of the objective of minimizing negative effects on trade 
in non-salmonids as well as salmonids. 
4.192 Quarantine measures for aquatic animals were being developed to reflect the same level of 
protection as for terrestrial animals.  Although some factors might be different, and the interaction between host, pathogen and environment more complex,  the same principles applied to the spread of 
disease for aquatic animals as for terrestrial animals.   The main differences between terrestrial and 
aquatic animals was the longer history of observa tion, the intensity of the observation, and the 
different state of knowledge of diseases and disease agents. 
4.193 The Final Report identified the import requi rements for aquatic animals and their products 
other than salmonids: 
"All goods entering Australia are subject to quarantine.  They may be inspected on 
arrival and may be sampled and tested at the importer's expense regardless of whether 
or not prior permission to import is required and granted. 
                                                      
151 Final Report, pp. 334-335. WT/DS18/R 
Page 72  
 
"The specific policies applying to the im portation of aquatic animals (other than 
salmonids), their products and rela ted materials, are as follows: 
- Live, freshwater, ornamental fish  may be imported with prior written 
approval.  Approval is restricted to fish on Schedule 6 of the Wildlife 
Protection (Regulation of Exports an d Imports) Act 1982 and there are pre-
entry and post-entry requirements including a minimum period of 14 days in post-arrival quarantine premises. 
- Live, marine, ornamental fish  may be imported subject to examination on 
arrival for species identification, clinical health and presence of other 
materials of quarantine concern.  Approval is restricted to fish on Schedule 6 of the Wildlife Protection (Regulati on of Exports and Imports) Act 1982. 
- Animals imported for scientific or display purposes  must be held in premises 
approved for the purpose under the Quarantine Act 1908.  Permission must also be obtained from DEST, under the Wildlife Protection (Regulation of 
Exports and Imports) Act 1982 for the impor tation of fish species other than 
those on Schedule 6 of that Act. 
- Brine-shrimp eggs  may be imported with prior written permission subject to 
suitable processing, including surface ch emical sterilisa tion and drying. 
- Other live aquatic animals  may be imported subject to risk assessment and 
approval on a case by case basis.  Permission must also be obtained from 
DEST under the Wildlife Protection (Regul ation of Exports and Imports) Act 
1982 
- Meals derived from aquatic animals , for example fish and prawn meal, 
require prior written permission for importation subject to suitable processing of the product and inspection on arrival. 
- Manufactured aquatic animal feeds  require prior written permission for 
importation subject to quarantine acceptance that ingredients meet quarantine requirements and have been appropriate ly treated either before export or 
before release from quarantine in Australia. 
- Oysters in the full or half shell  are prohibited from all sources, except oysters 
in the half shell from New Zealand (prior  permission is not required).  Other 
oysters in the full or half shell may be imported for scientific purposes with prior written permission.  The goods must  be held in premises approved for 
that purpose under the Quarantine Act 1908. 
- Uncooked, freshwater crayfish product , subject to risk assessment and 
approval on a case by case basis, requires prior written permission for 
importation. 
- Uncooked prawns (shrimp) not fit for human consumption , subject to risk 
assessment and approval on a case by case basis, requires prior written permission for importation. 
- Other non-viable aquatic animal products , for example mussels, are allowed 
entry subject to inspection and conf irmation of non-viability and freedom 
from visible contamination.    WT/DS18/R 
   Page 73  
 
- Clothes, footwear and used fishing gear  that have had contact with fish or 
fish farms overseas are subject to inspection on arrival and treatment if required."
152  (emphasis added, emphasi s in original removed) 
4.194 Australia recalled its due process concerns in  respect of heat-treated product (paragraph ).  
Australia noted that heat-treated product had not been addressed in the risk  assessment for the reason 
that Canada had not sought a risk assessment on that product, which the experts advising the Panel 
had stated to be a different product than that consid ered by the Final Report.  An import risk analysis 
was scheduled as part of the aquatic quarantine review .  In Australia's view, Canada's claim in respect 
of heat-treated product was an entirely different legal claim from allegations of differences between 
live and bait/feed fish and salmon.  It also raised  significantly different scientific issues.  Canada 
could not claim that the factors pertaining  to heat -treated salmon were the same as those pertaining to 
live and bait fish, which formed the basis of Canada's legal claims. 
4.195 Canada  observed that in the case of EC - Hormones , the fact that the European Communities 
had not done a risk assessment for either the hor mones at issue or for the veterinary drugs carbadox 
and olaquindox did not prevent the Panel or the Appellate Body from comparing them and finding 
evidence of an arbitrary or unjustifiable distinction in levels of protection in  different situations.  
Canada suggested that if Australia's position were accepted, Article 5.5 would be critically weakened 
as it would mean that unless and until Australia did risk assessments for the other pathogen-hosting 
products identified by Canada, no comparisons would be possible.  The scenario would arise whereby 
a Member might impose a highly trade restrictive measu re in one situation in respect of one product 
but no measure whatsoever in respect of another co mparable product, and the Member would be able 
to do so with impunity. 
4.196 Australia  noted that Canada's characterisation of th e legal issues in regard to the Appellate 
Body report on EC - Hormones differed markedly from the language used by the Appellate Body.   
4.197 Canada argued that there were circumstances where it was valid to compare the risk posed by 
other aquatic animals or products hosting any or a ll of the same disease agents with those posed by 
uncooked salmon, even in the absence  of a risk assessment for those other aquatic animals or 
products.  This was so in respect of assessing the probability of exposure, transmission and 
consequences of a given disease post-entry within a c ountry or region; and, it was also relevant in 
respect of identifying inconsistencies in acceptable le vel of risk.  Canada claimed that its argument 
that for any given disease agent, the consequences of an introduction would be the same, regardless of 
the imported product responsible was supported by Dr s. Wooldridge, Burmaster and Rodgers.  In 
particular, Dr. Wooldridge noted that: 
"Briefly, in my opinion, the risks fr om salmonids and non-salmonids can be 
compared by comparing available data pre- entry plus potential exposure pathways.  
The decision on whether risk [sic] are acceptable or not depends on many factors but 
if the risks are assessed as being (or are otherwise believed to be) at a similar level 
then in my opinion they must be either  equally acceptable or equally unacceptable 
regardless of the source."  (paragraph 6.104) 
4.198 Canada conceded that if different products we re imported into different regions of a country, 
the consequences could be different due to vari ability in the presence of susceptible hosts in the 
regions.  However, this qualification was not a function of different consequences arising from the 
same disease agent in different products.  It was a function of different re gional environments.  The 
same variation in consequences would exist if the same disease agent were imported into different 
regions in the same  product.  Canada noted that there was no evidence that Australia had prohibited 
into any particular region any of the non-salmonid pr oducts that Australia imported or allowed to be 
                                                      
152 Ibid., pp.5-6. WT/DS18/R 
Page 74  
 
imported that were known to host many of the disease  agents which Australia had cited as a basis for 
excluding salmonid imports.  Canada noted Dr. Wooldridge's statement to this effect: 
"Once a given disease is established country-wide in an importing country, then in 
my opinion the consequences from that point on will be the same whatever the 
original imported source or manner of  establishment."  (paragraph 6.81) 
4.199 Australia  refuted Canada's claim that the conse quences of the disease being established in an 
importing country would be the same, regardless of th e original imported source.  Australia noted that 
Dr. Wooldridge agreed with this proposition on ly insofar as a disease became established.  
Nevertheless, Dr. Wooldridge had pointed out that regional variations might affect consequences in 
the short to the medium term.  In addition, Dr. R odgers had noted that there were degrees of severity 
for some disease agents, and consequences could vary  depending on the nature of the pathogen and 
the genetic basis of the indigenous species.  The fi nal destination of a particular consignment could 
have an impact on potential disease establishment. 
Arbitrary or unjustifiable differences in levels of protection  
4.200 Canada  noted that Australia had claimed that its appropriate level of protection was 
conservative for certain pathogens of quarantine c oncern when these pathogens had not been found in 
salmon.  As a result it excluded uncooked salmon pr oduct, on the basis that it was possible that its 
importation could lead to the establishment or spread  of such pathogens.  However, when Australia 
had been faced with the knowledge that many of th e same pathogens were found in a wide array of 
other aquatic animal products, Australia  had abandoned its conservative approach. 
4.201 Canada identified the following four difference s in levels of protection, which it considered to 
be arbitrary or unjustifiable: 
 (i) Canada noted that in the Final Report, Australia stated that: " A. salmonicida  has a 
wide range of hosts and would present one of the most serious threats to Australian fish".153  
Canada claimed that despite the fact that confirmed hosts of atypical Aeromonas salmonicida 
included Pacific herring, haddock, cod, plaice and Japanese eel, Australia did not ban the 
importation of fresh and frozen products of these species.  However, uncooked Canadian 
adult, wild, ocean-caught Pacific salmon, which was not know to host Aeromonas 
salmonicida , was not allowed entry on the grounds that it was a potential (possible) host of, 
inter alia , Aeromonas salmonicida .  In addition, in the Final Report, Australia had conceded 
that viral haemorrhagic septicaemia virus (VHS V), had not been identified in adult, wild 
ocean-caught Pacific salmon.154  Similarly, in regard to Inf ectious pancreatic necrosis virus 
(IPNV), the Final Report stated that "[e]xtensive sampling of wild adult Pacific salmon in British Columbia and Alaska failed to detect the presence of IPNV." 
155  Yet despite the fact 
that these two diseases had not been identified in  adult, wild, ocean-caught Pacific salmon, 
Australia banned the importation of uncooked sal mon, ostensibly to protect against both 
VHSV and IPNV.  On the other hand, Australia allowed imports of fresh, chilled and frozen Pacific cod and herring (both of which the Fi nal Report admitted were natural hosts for 
VHSV in North America
156, as well as fresh, chilled and frozen Atlantic cod, haddock and 
European eel (which Canada contended were also included in the host range of VHSV).  
Furthermore, Australia did not ban the importa tion of fresh, chilled and frozen products of the 
species Atlantic herring, European eel, Japanese  eel, Dover sole, or Cod, although IPNV had 
been identified in these species.  Canada dr ew attention to other disease agents, and 
corresponding Australian imports, identified in Table 7. 
                                                      
153 Ibid., pp.38, 138-139.   
154 Ibid., p.45. 
155 Ibid., p.44. 
156 Ibid., p.45.    WT/DS18/R 
   Page 75  
 
 (ii) Canada further noted that  Australia imported herring in whole, frozen form, for use as 
bait fish in Australian waters.  These were im ported uneviscerated and deposited directly into 
the aquatic environment.157  It was logical that the likelihood of disease establishment arising 
from imports of bait fish would be greater th an for uncooked salmonids because the events 
sequence (see paragraph 4.138) that had to be  completed for disease establishment to occur 
through bait fish was greatly compressed.  Whol e bait fish was by definition not eviscerated.  
Canada claimed that herring was known to host Aeromonas salmonicida (atypical strain), 
erythrocytic necrosis virus, infectious ha ematopoietic necrosis virus (IHNV) and viral 
haemorrhagic septicaemia virus (VHSV).158  
(iii) Canada argued that under the quarantin e regime regulating the importation of live 
finfish,  including ornamental freshwater and marine finfish, the Director of Quarantine had permitted the importation into Australia of close to 59 million ornamental finfish between the 
period 1988 through 1997.  Ornamental fish  (fresh and saltwater) were known to host the 
disease agents Aeromonas salmonicida  (atypical), Yersinia ruckeri , Edwardsiella tarda , 
Infectious pancreatic necrosis virus (IPNV) and Vibrio anguillarum .  In addition, Canada 
stressed that, unlike dead, evi scerated product, live ornamental finfish were known to have 
introduced exotic diseases.
159  Referring to the 1995 Humphrey Report, Canada noted that the 
disease risk in respect of introducing exotic  disease for live fish or invertebrates was 
particularly high.160  Yet uncooked, Canadian adult, wild, ocean-caught Pacific salmon, not 
known to host any of the above diseases, was not allowed for importation.  
 (iv) Finally, Canada noted that EHNV was found in Victoria where salmonid populations 
 of rainbow trout and Atlantic salmon were substantial, but ha d not been reported in Western 
Australia where rainbow trout was commercially cultured and provided important sport 
fishery.  Yet the Final Report had made it  clear that Australian State and Territory 
governments had not placed any controls on th e movement of salmonid products from areas 
where EHNV was found to areas where EHNV was e xotic.  Given the potential for Australian 
salmonids to introduce EHNV into aquacultured salmon, Australia had failed to explain the 
differences in levels of protection it had estab lished in respect of those products and uncooked 
Canadian salmon. 
4.202 In respect of both live fish and bait fish, Ca nada pointed out that Dr. Rodgers had noted that 
the risks posed by live fish and bait fish imports we re probably at least as high or higher than for 
uncooked salmon from Canada: 
"The importation of several other groups would pose a potential risk of disease 
introduction that would probably be at least as high, if not higher, than that posed by the importation of uncooked salmon from Canada.  These groups would include any 
live ornamental fish, bait fish and trash fish for feeding aquaculture species ...." 
(paragraph 6.97) 
and, "It is probably true to say that for a given disease agent, the likelihood of disease 
establishment is higher for imports of whole, non-eviscerated bait fish and for live fish than it is from imports of unc ooked salmon for human consumption."  
(paragraph 6.100) 
                                                      
157 Report of the National Task Force, Table 3.8 : "Impor t usage within the commercial bait sector", p.24. 
158 Final Report, p.45 (for VHSV). 
159 J.S. Langdon, "Diseases of Introduced Australian Fish",  Fish diseases: refresher course for 
veterinarians , May 1988, p. 231. 
160 Humphrey Report, p.87. WT/DS18/R 
Page 76  
 
Dr. Winton had stated that there was a hierarchy of product risk, with live fish posing the greatest 
risks, bait fish in the second place and dead, eviscera ted fish, ranked last of the three.  Dr. Winton had 
noted that it was quite clear that herring, imported as bait, was a major reservoir of VHS, yet Australia 
imported large quantities of herring as bait. 
4.203 In summary, Canada alleged in the first instance that as Australia had not banned the 
importation of both dead non-salmonid finfish and live  ornamental finfish, despite scientific evidence 
that several of the 24 disease agents of concern to Australia occurred in these products, Australia had 
chosen distinct levels of protecti on in different situations.  In the second instance, Canada argued that 
it was not possible to justify these distinction in the levels of protection that Australia had adopted in 
different situations.  This view was supported by Au stralia's own experts, in particular in the 1995 
Humphrey Report, the 1995 BRS Report and Technical Paper No.3 (1992).161  This latter paper 
characterized the distinction whereby the Director  of Quarantine prohibited the importation of fresh, 
chilled and frozen salmonids but permitted the entry of live ornamental finfish, as an "arbitrary" 
separation of aquacultural and recreational species (i ncluding ornamental species), which had "little, if 
any, scientific basis."162  Hence, these distinctions were arbitrary and unjustifiable.   
4.204 In respect of Canada's claim that Australia's  alleged distinctions in  the level of protection 
adopted in different situations were arbitrary and unjustifiable, Australia  argued that Canada had not, 
in the first place, demonstrated that there were distin ctions in the levels of protection considered to be 
appropriate in different situations.  Australia st ressed that there could not be any presumption of 
distinctions in the levels of protection solely on  the basis of evidence of a difference in measures 
applied to the same animal species or according to origin of a product.  Nor could there be a 
presumption of different levels of protection in circ umstances of a product hosting one or more of the 
diseases in question.  A comparison of measures applying to different fish, some of which might have a disease in common, was not sufficient to demons trate that there existed identical or similar 
conditions or arbitrary or unjustifiabl e distinctions in the levels of pr otection in different situations in 
the sense of Articles 2.3 and 5.5.   
4.205 Without prejudice to the above, Australia argued that if the Panel were to find to the contrary, 
Canada had not put forward relevant evidence that  such distinctions amounted to arbitrary or 
unjustifiable discrimination.  The burden of proof could not be satisfied by a mere assertion of a 
claim, it had to be shown that the distinction wa s arbitrary and unjustifiable.  This had been the 
conclusion of the Appellate Body Report United States - Measures Affecting Import of Woven Wool 
Shirts and Blouses from India .
163  The arguments were, furtherm ore, supported by the Appellate 
Body's ruling in EC - Hormones .164  Nor could the evidentiary standard be met by inferences of 
motive or intent.  In accordance w ith the Appellate Body Report on EC - Hormones , the  measure 
needed to be examined in the c ontext of the architecture and structure of the measure.  Australia 
further noted that, in the context of the comments by the experts advising the Panel on a hierarchy of 
risks, the experts had stated (paragraph 287 of the tr anscript) that risk assessments would be needed in 
each case.  
4.206 Australia claimed that several of the reports cited by Canada to substantiate its claim that the 
measure was arbitrary and unjustifiable were cited out of context and in some cases were out of date.  
In this regard, Canada had not  taken into account the status of the reports it had cited.165  None of the 
reports cited had the status of an import risk asse ssment.  The Humphrey Report explicitly noted the 
privileged position of Australia in regard to " freedom from many serious salmonid pathogens or 
strains thereof" and identified salmonids as a higher risk species.  The Humphrey Report 
                                                      
161 Humphrey Report, p.120 (A-22);  Nunn Report, p. 34 (A-21);  Technical Paper no.3, p.2 (A-19). 
162 Technical Paper No. 3, p.2 (Present measures). 
163 Op. cit., paragraph 4.24. 
164 Op. cit., paras. 239 and 240. 
165 Paragraphs 4.56-4.60    WT/DS18/R 
   Page 77  
 
recommended minimum restrictions and that the im portation of all fish be permitted only on a case-
by-case basis.166  The BRS Report had argued along the same lines that a higher level of "surety from 
exotic pathogens" was justified in regard to non-living salmonid product for human consumption in 
"view of Australia's relative freedom from exotic disease".  The BRS Report had recommended that 
quarantine restrictions in excess of evisceration were  justified and that quarantine restrictions on both 
salmonid and non-salmonid aquatic animals had to be reviewed and bro ught into consistency.167  
Australia noted that the separation between recr eational and aquaculture species from other species, 
including ornamental fish, had been made on environmental grounds and used in connection with 
assessments made under the Wildlife Protection (Regul ation of Exports and Imports) Act with regard 
to the inclusion of fish on Schedule 6.168  The rationale had been that aquaculture and recreational 
species would be attractive for release into the wild because of their aquaculture and recreational 
attributes and could potentially form feral popula tions leading to environmental damage.  This 
approach was no longer practised and the new assess ment procedure could be found in Appendix D of 
the Report of the National Task Force (December 1996).  
4.207   Furthermore, Australia observed that not all live ornamental fish imported into Australia 
were capable or recognized as harbouring the disease agents that were the subject of the current 
dispute.  All live ornamental fish entering Australia were inspected on arrival to (i) ensure that they 
were healthy, (ii) confirm the identification of th e species and (iii) ensure that no other materials or 
issues of quarantine concern were present.169  Even if a species of ornamental fish could carry a 
disease agent, one could not automatically conclude that Australia's appropriate level of protection 
had not been met.  Further import risk analysis fo r the  importation of bait and feed fish, and for the 
importation of molluscs were planned for April 1998. 
4.208 In terms of Canada's claims concerning EHNV,  Australia noted that these had been addressed 
in respect of Article 2.3 (see paragraphs 4.97, 4.99 and 4.102).  Australia argued that the evidence 
submitted by Canada did not relate to similar conditions or that the measure represented arbitrary or 
unjustifiable discrimination.  Canada's claims rested on the OIE status of EHNV as a notifiable disease.  As noted elsewhere, the classification and listing of diseases by the OIE was not evidence of the severity of disease or of the comparability of  risk of occurrence or consequences.   
Disguised restriction on international trade  
4.209 Canada  argued that there were seven factors which demonstrated that the arbitrary or 
unjustifiable distinctions in Australia 's levels of protection did in fact result in a disguised restriction 
on international trade: 
(i) Australia's failure to simply prohibit the importation of other products known to host 
the same disease agents.   In Canada's view this was not re flective merely of the magnitude of 
the difference of the levels of protection or the fact that the measure in respect of salmon was 
significantly more trade restrictive, rather, it we nt directly at Australia's purported basis for 
the measure.  While Australia was concerned about the potential presence of certain exotic 
disease agents in Canadian salmon and therefor e required a ban on the product, Australia was 
willing to permit the entry of exactly the same disease agents in other products, and even in 
Canadian salmon that had been heat treated pursuant to the 1988 Conditions.  Australia took 
this position despite its admission in respect of non-salmonids that "the 'known' presence of 
                                                      
166 Humphrey Report, p.89, p.120. 
167 BRS Report, pp.34-35. 
168 Schedule 6, Wildlife Protection (Regulation of Exports & Imports) Act 1982, "Live animals and live 
plants the import of which is not prohibited by paragraph 22 (b) and in relation to which section 9 apples", updated 7 May 1996. 
169 Final Report, pp.5-6. WT/DS18/R 
Page 78  
 
an agent with a particular host by itself is not  an accurate indicator of the likelihood of disease 
introduction, establishment or spread".  
(ii) The circumstances surrounding the abrupt ch ange in conclusions from the May 1995 
Draft Report to the Final Report .   Following the release of the May 1995 Draft Report, 
Tasmanian salmon producers lobbied against it in an effort to reverse the conclusion that 
uncooked Canadian salmon should be  permitted entry, and those conclusions had in fact been 
reversed.  The conclusion for the May 1995 Draft Report had been that for imports of head-
off, eviscerated salmon the risk of disease intr oduction was negligible.  This was deemed to 
be "acceptably low, having regard to the pot entially serious consequences of such an 
event".170  Yet the Final Report concluded that not only would this not satisfy Australia's 
appropriate level of protection, but that no im ports of uncooked salmon would satisfy it.  Only 
heat treatment would.  This conclusion had b een reached without an assessment of the risks 
entailed by heat-treated product, in a docum ent which all three risk assessment experts 
advising the Panel regarded as opaque and inadeq uate.  Hence, the only reasonable inference 
was that Australia was hiding the real reason fo r reversing its conclusions - to protect its 
domestic salmon not from disease, but from import competition. 
(iii) Australia excluded from the Final Report rel evant information that was considered in 
the May 1995 Report.  Australia had argued, contrary to the conclusions of Drs. Wooldridge 
and Rodgers, that the information excluded was not relevant to the decision-making 
process.171  Australia had also stated that the water and waste disposal statistics from Sydney 
and Melbourne did not address waste disposal in other regions of potentially higher risk such 
as Tasmania.  Yet, in fact, the May 1995 Draft Risk analysis had provided waste water statistics for Hobart, Tasmania.  In add ition, Australia offered no explanation why 
conclusions regarding pathogen dilution rates based on the information in the May 1995 Draft 
Report were not applicable to other potentia lly "higher risk" areas.  The only convincing 
explanation for why Australia excluded relevant da ta in the Final Report was that the data led 
inexorably to the conclusion that it did not want to reach - the conclusion that had been reached qualitatively in the May 1995 Draft Report - that the likelihood of disease establishment by the pathways identified by Aust ralia were negligible.  This conclusion was 
supported by the quantitative assessment Dr. Vo se had undertaken, using the same data which 
had been available to Australia.
172  
(iv) Absence of scientific basis for the measure (Canada's arguments in this regard are 
contained in paragraphs 4.65-4.72 below). 
(v) Australia's failure, despite professed c oncerns about the health of its salmonid 
populations, to control the internal movement of EHNV hosts.  
(vi) Australia's failure to specify the pathogens addressed by its measure.   As Australia 
had failed to assess the risks posed by pathogens  identified in the hazard identification stage 
of its risk assessment, Australia had no credib le basis for asserting that its measure addressed 
the risks posed by particular pathogens. 
(vii) Australia's inability to explain consisten tly or at all the appropriate level of 
protection, that its measure aimed to achieve.    This inferred that rather than its measure 
being applied to achieve its appropriate le vel of protection, Australia was using its 
"appropriate level of protection" as a shield for a trade-restrictive measure. 
                                                      
170 May 1995 Draft Report, p.223. 
171 Paragraph 4.154. 
172 "Quantitative analysis of the risk of establishment of Aeromonas salmonicida  and Renibacterium  
salmoniarum   in Australia as a result of importing Canadian ocean-caught salmon", David Vose, Canada's Submission 
of 18 December 1997 ("Vose Report").    WT/DS18/R 
   Page 79  
 
4.210 Canada further argued that the reasoni ng of the Appellate Body in the dispute United States  -
Standards for Reformulated and Conventional Gasoline , on the relationship between arbitrary or 
unjustifiable distinctions in levels of protec tion and the resulting disguised restrictions on 
international trade was equally applicab le to Article 5.5 of the SPS Agreement.173  Hence, the 
distinction in Australia's levels of protecti on for uncooked salmonids and non-salmonids, and for 
uncooked salmonids and live ornamental fish was, in Canada's view, arbitrary and unjustifiable.  The 
resulting import ban on uncooked salmon was a restriction on international trade in the guise of a sanitary measure. 
4.211 Australia drew attention to its due process concer ns regarding Canada's claim that the 
measure resulted in a disguised restriction on international trade (paragraph 4.12).  Moreover, in addition to the measures previously forming th e basis of Canada's legal claims, Canada had 
introduced a new legal claim of inconsistency in regard to the purported differences between heat- 
treated and other salmon (paragraph 4.16).  Australia  also argued that the evidentiary standard could 
not be satisfied by a comparison of measures applyi ng to different fish.  Nor could the evidentiary 
standard be met by ascribing motive to actions.  As stated by the Appellate Body in EC - Hormones , it 
was the architecture and structure of a measure which needed to be addressed.
174  
4.212 In regard to Canada's assertions under (ii) above, Australia noted, in reference to Canada's 
arguments regarding the Appellate Body ruling in United States - Standards for Reformulated and 
Conventional Gasoline , that the Appellate Body findings related to Article XX of GATT 1994 and 
that the incidence of obligations in that regard ma y be somewhat different, given that Article XX of 
GATT 1994 deals with conditions attached to an ex ceptional right, as compared to Articles 2.3 and 
5.5 of the SPS Agreement, which deal with the cond itions to be attached to the grant of a basic WTO 
right.  In EC - Hormones , the Appellate Body had rejected the interpretation of Article 5 put forward 
by Canada on the basis of the Appellate Body fi ndings in the reformulated gasoline case.  Moreover, 
it had stated that the three elements under Article  5.5 - (i) the adoption of appropriate level of 
protection in different situations, (ii) arbitrary or un justifiable differences in these different situations 
which (iii) resulted in discrimination or a disguise d restriction on international trade - were of a 
cumulative nature;  all had to be demonstrated and in particular both the second and the third element 
had to be found, the second element alone would not suffice.175  In this regard, Australia claimed that 
Canada, in its submissions to the Panel, had equa ted the element of "discrimination or a disguised 
restriction on international trade" with "arbitrar y and unjustifiable distinction".  Canada had 
furthermore incorrectly assumed that the Appellate Body interpretations of Article XX of GATT 1994 
had a direct application to Article 5.5 of the SPS Agreement. 
4.213 Furthermore, Australia argue d that Canada had not demonstrated that the draft import risk 
analysis met Australia's appropriate level of protect ion.  The Final Report did not conclude that heat 
treatment was satisfactory, it stated: 
"... it is recommended that uncooked salm on products should not be permitted entry 
from Canada and the United States at the present time.  Other issues related to salmon, such as current policies for im porting heat-treated salmon, should be 
                                                      
173 WT/DS2/AB/R adopted on 29 April 1996, p.25.  "We cons ider that "disguised restriction", whatever else 
it covers, may properly be read as embracing restrictions amounting to arbitrary or unjustifiable discrimination in international trade taken under the guise of a measure formally within the terms of an exception listed in Article XX.  Put in a somewhat different manner, the kinds of considerations pertinent in deciding whether the application of a particular measure amounts to "arbitrary or unjustifiable discrimination", may also be taken into account in determining the presence of a "disguised restriction" on international trade.  The fundamental theme is to be found in the purpose and object of avoiding abuse or illegitimate use of the exceptions to substantive rules available in Article XX."  
174 Op. cit., para. 246. 
175 Op. cit., paras. 214-215. WT/DS18/R 
Page 80  
 
considered in the light of priorities recommended by the National Task Force on 
Imported Fish and Fish Products."176  
Australia explained that, in regard to salmon, the measures pre-dated the entry into force of the SPS 
Agreement.  Australia had undertaken a risk assess ment on Pacific salmon and on the basis of that 
risk assessment had decided to maintain quarantine restrictions on imported salmon.  No Member had 
the capacity to undertake concurrent risk assessments on all salmonids, let alone all aquatic products.  
Australia was undertaking a structured program of  risk assessments on a range of aquatic animal 
products.  This was relevant to the architecture and structure of Australia's measures.  
4.214 Australia contended that Canada had misr epresented a number of statements made by 
Australia.  The seven points listed by Canada were not facts, but assertions and had previously been 
addressed by Australia.  In particular, Australia argued that: 
(i) Canada's claims reiterated the same claims in regard to different levels of protection 
and arbitrary and unjustifiable differences.  Au stralia's arguments in regard to these matters 
expressed in paragraphs 4.185- 4.189 and paragra phs 4.204-4.207 we re valid here. 
(ii) Canada's arguments did not go beyond an  ascription of motive which was not relevant 
to the architecture and structure of the Article  5.5 obligation.  Furthermore, the assertion was 
not borne out by the empirical evidence submitte d by Australia in rebuttal, including in 
relation to the status of the draft risk analysis. 
(iii) Australia had already explained the reasons  for the differences in content between the 
draft report and the Final Report, as well as the relationship between th e reports, which could 
not be viewed as separate and distinct exercises.  Canada's assertion was an attempt to ascribe motive. Australia had not claimed that th e difference between the draft and final 
recommendations was because of new scientific information. The Final Report had reappraised scientific information and the measur es that would be required to meet Australia's 
appropriate level of protection, as well as factoring in new information. 
(iv) In regard to the scientific basis for th e measure, the Final Report fully evaluated all 
scientific data and the measure was based on the Fi nal  Report.  Canada's  arguments relate to 
scientific views (not all shared) about acceptable levels of protection.  Australia explained 
that it did not require conclusive scientific eviden ce that an event  would not occur, but that 
there was sufficient scientific evidence on whic h to base its judgment of the likelihood of 
occurrence.  Canada had not disputed  Australia's scientific evidence. 
(v) In regard to EHNV, Canada's argum ents had no legal basis and were a 
misrepresentation of Australia's evidence in re gard to EHNV (addressed in paragraphs 4.97, 
4.99 and 4.102).  Evidence of the existence of  a non-exotic disease in domestic salmonids did 
not constitute evidence of a situation identical or similar to evidence of a large number of 
exotic diseases in imported salmonids;  evidence of a different measure did not constitute 
evidence of arbitrary or unjustifiable distincti ons and there was no evidence of a disguised 
restriction on international trade.   
(vi) As was clear in the Final Report, Au stralia had specified the pathogens addressed. 
(vii) Australia had consistently explained its a ppropriate level of prot ection.  Canada could 
not provide evidence to the contrary.   
                                                      
176 Final Report, p.xi.    WT/DS18/R 
   Page 81  
 
4.215 Australia argued that Canada's claims rested on a premise that the test of legal consistency 
was one of changes between the draft and Final Reports .  In particular, most of the seven factors cited 
by Canada were simply attempts to infer motives.   There was a fundamental difference between an 
attempt to demonstrate a disguised restriction on international trade through inferring motive and a 
presentation of evidence based on an analysis of the ar chitecture and structure of Australia's measures.  
Canada had failed to do this, but w as requesting the Panel to undertake a de novo review.  As such, 
Canada ignored due deference and the standard of re view referred to in the Appellate Body Report on 
EC - Hormones .177  
4.216 Australia also argued that Canada had not met its burden of proof and had not produced any 
evidence that Australia's measures resulted in a disgui sed restriction on international trade.  Australia 
was a significant importer of aquatic animal products, including smoked and canned salmon from 
Canada.  Many of these products competed directly  with domestic products in the Australian market 
place.  Australia was, in fact, a net importer of fish products.  Australia was also a significant 
producer and exporter of non-salmonid aquatic products . On the basis of Canada's interpretation of 
Article 5.5 obligations, consistenc y could only be assured by removal of the restrictions on salmon, 
whatever the basis for such measu re, or by introducing trade-rest rictive measures on other aquatic 
animal products, whatever the b asis for sanitary protection in the case of those products.  The latter 
approach would risk inconsistenc y with other provisions of the SPS Agreement, while the former 
would deny Australia the right to protect its salmonid populations against an assessed risk. 
  (l) Article 5.6  
Without prejudice to paragraph 2 of Article 3, when establishing or maintaining sanitary or phytosanitary measures to achieve t he appropriate 
level of sanitary or phytosanitary protection, Members shall ensure that such measures are not more trade-restrictive than requ ired to achieve 
their appropriate level of sanitary or phytosanitary protection, taking into account technical and economic feasibility.3 
Footnote 3: 
For purposes of paragraph 6 of Article 5, a measure is not more trade-restrictive than required unless there is another measure , reasonably 
available taking into account technical and economic feasibility, that achieves the appropriate level of sanitary or phytosanit ary protection and 
is significantly less restrictive to trade. 
SPS Agreement, Article 5.6 and footnote
4.217 Canada argued that even if the Panel were to c onclude that Australia had determined the 
appropriate level of sanitary protection to be achieve d by its measure and that the distinction in the 
levels of sanitary protection considered to be approp riate in different situations was not arbitrary or 
unjustified, Australia's measure was nevertheless mo re trade-restrictive than required to achieve its 
appropriate level of protection.  The footnote to Ar ticle 5.6 made it clear that a determination of a 
measure's consistency with Article 5.6 entailed the assessment of that measure in relation to other 
potential measures which would also achieve the sa me appropriate level of protection that the 
Member could reasonably adopt.  Since Austra lia prohibited the importation of uncooked salmon 
while permitting the importation of uncooked non-salmonids, includi ng fish for human consumption 
and whole uneviscerated bait fish, Australia's sanita ry measures for non-salmonids were significantly 
less trade restrictive.  Yet, according to Austra lia, they achieved the same appropriate level of 
protection.  Additionally, Australia permitted the en try of live ornamental fish which, according to 
Australia's own experts, posed the highest risk of causing the establishment of serious aquatic animal 
diseases.  Thus, in the case of both non-salmonids a nd live fish, the measures maintained by Australia 
against the risk of the establishment of exotic diseas es were significantly less trade restrictive than the 
prohibition on the importation of uncooked salmon. 
4.218 Canada noted that it was necessary to know wh at Australia's level of protection was in order 
to identify alternatives that would meet it.  As a matter of principle and logic, a Member could not 
evade its obligations under Article 5.6 (or any ot her provision of the SPS Agreement) simply by 
                                                      
177 Op. cit., paras. 244-245. WT/DS18/R 
Page 82  
 
failing to determine or disclose its appropriate le vel of protection.  If it could be inferred that 
Australia's appropriate level of protection was " zero risk", there might be no measure less trade 
restrictive than the current measure which achieved th at level.  Australia had argued that there was no 
scientific evidence that evisceration would eliminate the risk of entry, establishment or spread of 
disease.  But, as Canada had shown, there was no scientific evidence that heat treatment would 
eliminate this risk either.  Thus, if the Panel we re to find that Australi a's appropriate level of 
protection were zero risk, Canada submitted that the Panel would have to consider whether the 
measure currently imposed by Australia actually  met its appropriate level of protection. 
4.219 Should, on the other hand, Australia's appr opriate level of protec tion be inferred to be 
something other than zero risk, Canada argued that a complete prohibition on uncooked salmon 
imports was the most trade restrictive measure avai lable to Australia.  The conclusions in the Final 
Report demonstrated that Australia had maintained  this prohibition despite having been unable to 
distinguish the level of risk presented by other less trade restrictive options.178  The fact that Australia 
had not been able to distinguish among the levels of  risk in the import options, including the measure 
which it had chosen in order to achieve its acceptable level of risk, logically meant that each of the 
measures achieved Australia's acceptable level of risk .  Australia had noted that the Final Report had 
referred to a number of options as "lower risk op tions" of which only Option 3 had been identified.179  
Thus, according to Canada, there were several options for fresh, chilled or frozen salmon that 
represented the bottom of the import risk spectrum and therefore, by definition, had to be capable of 
achieving Australia's acceptable level of protection. 
4.220 Although Australia insisted that it was "readily  apparent" that there w as a difference in the 
level of risk between the importation of eviscerated  fish and that of maintaining restrictions on 
uncooked salmon, Canada argued that for many of the pathogens there was no evidence of the effectiveness of heat treatment at the lower te mperature ranges allowed under Australia's current 
restrictions.  To the contrary, by providing the conditions for certain of the pathogens at issue to 
flourish, heat treatment might actually increase the ri sk for certain of the pathogens identified as being 
of concern.  Although Australia claimed to have assessed the risks entailed by the four less trade 
restrictive options, Australia had acknowledged that  the Final Report did not cover heat-treated 
product.  Therefore, it could not possibly have compared the risk of the four less trade-restrictive options with the risk entailed in  its current measure, and it could not claim that the current measure 
achieved its appropriate level of protection.  Hence, it was not "readily apparent" that there was a 
difference in the level of risk between the current restrictions and evisceration. There was no basis in 
the Final Report for drawing such a conclusion.  As  Australia had decided that one option achieved its 
appropriate level of protection, it necessarily follo wed that the other options would also achieve 
Australia's appropriate level of protection.  All of the four other options identified in the Final 
Report
180 were significantly less trade restrictive th an the heat treatment requirement and were 
economically and technically achievable.  Aust ralia had therefore violated Article 5.6. 
4.221 Australia  argued that Article 5.6 obligations could not  be determined on the basis of views of 
appropriate methodology for risk assessments.  No r could the obligations be determined by an 
examination of different measures in force between  aquatic products.  Austra lia referred to its due 
process concerns in regard to Canada's claims about heat-treated product (see paragraph 4.8).  
Australia had not taken the most trade restrictive measure possible for the pr otection of salmonid life 
and health, as evidenced by ongoing significant impor ts of salmon products.  Measures in respect of 
heat-treated product (which the experts advising the Panel had characterised as a product different 
from uncooked salmon) were significantly less trade r estrictive than a total ban on salmon imports.   
As documented in the Final Report, Australia had evaluated other potential measures which might be 
                                                      
178 Final Report, p.62. pp.69-70. 
179 Ibid., p.ix-x (last two paragraphs on page ix).  Australia noted in its first submission that on page ix of the 
Final Report "lowest" was an editorial error, and should read "lower". 
180 Ibid., p.69.    WT/DS18/R 
   Page 83  
 
less trade restrictive, but had determined as pa rt of a risk assessment that there was no other 
significantly less trade restrictive measure reasonabl y available to it that achieved the appropriate 
level of protection for salmonids.  Australia also  noted that heat-treated  product was traded in 
eviscerated form, hence disease risk factors could be different.    
4.222 Australia noted that the provision in Article 5.6 was an elaboration of the provisions of the 
basic rights in Article 2.1 that "Members have the right to take sanitary ... measures necessary for the 
protection of ... animal or plant life or health ... " a nd the basic obligation in Article 2.2 in regard to 
"only to the extent necessary ...".  The meaning of the term "necessary" could not be fully interpreted 
with regard to Article XX of GATT 1994, nor with re gard to the jurisprudence of Article XX, as that 
article covered exceptional rights, not basic rights.  The term used in the footnote to Article 5.6 
"significantly less restrictive to trade" was not the same as "least trade restrictive".  Australia argued 
that through the risk assessment process, it had been established that there was no other measure 
reasonably available to Australia in regard to th e risk and consequences of entry, establishment or 
spread of the disease agents of concern in Pacific salmon products subject to the Final Report, taking 
into account technical and economic feasibility, that would achieve the appropriate level of protection 
and which would be significantly less restrictive to tr ade.  In other words, th e measure was necessary.  
In this context, Australia referred to its  arguments in regard to Article 2.2. 
4.223 Australia argued that Canada had not come forward with any evidence that would 
demonstrate that there were significantly less tr ade restrictive measures available on uncooked salmon 
which would achieve the appropriate level of protec tion.  Canada's assertion that different measures 
were applied between live fish and dead uncooked fi sh did not constitute evid ence that there was an 
alternative and significantly less trade restrictiv e measure available which was feasible in both 
technical and economic terms and which was capable of achieving the appropriate level of protection. 
A generalization that uneviscerated bait fish or live fi sh posed a greater threat than eviscerated fish of 
a different species could not be substantiated withou t reference to a risk analysis including detailed 
scientific risk assessment, as stated by the experts advising the Panel.   It had to be demonstrated that 
there were comparable situations in a scientific, econom ic and biological sense in regard to the risk of 
entry, establishment or spread of the totality of diseases at issue, together with comparable 
consequences, and that the same measure would be  feasible in an economic and technical sense.  
Canada's claim that Australia's requirements on heat -treated product were not sufficiently restrictive 
to achieve Australia's level of protection did not  represent evidence that a significantly less trade 
restrictive measure was available to achieve Australi a's appropriate level of protection in relation to 
uncooked salmon.  Canada had not put forward documented evidence that the other options identified 
in the Final Report could achieve Australia's level of protection. Australia drew attention to the 
detailed evaluation of options in the Final Report (see paragraphs 4.164-4.165). 
4.224 In regard to other aquatic products, Austra lia observed that it would have to conduct a risk 
assessment in order to estab lish what measures to adopt vis-à-vis these other products.  The need for 
this had been confirmed by the experts advising the Panel.  Risk assessments for other aquatic 
products were scheduled or underway in order to de termine the appropriate measure for the particular 
circumstances, including ornamental fish.  Following the risk assessments, the measures to be applied 
might be more or less trade restrictive than tho se applying to uncooked salmon, however, that did not 
mean that they were significantly more or less trad e restrictive within the meaning and intent of the 
SPS Agreement, including Article 5.6.  Pendi ng quarantine reviews on other aquatic products, 
Australia was not in the position to determine whet her the measures that applied to uncooked salmon 
would or would not achieve the appr opriate level of protection in rela tion to animal health and life 
risks.181  
4.225 In regard to the options identified in the Final Report, Australia noted that for each option 
there was a distinct level of protection and it ha d been established that only the option chosen would 
                                                      
181 Ibid., pp. 334-335. WT/DS18/R 
Page 84  
 
achieve the appropriate level of pr otection.  Although the Final Report stated that " [t]he difference in 
level of risk between each option is  incremental and cannot be quantified"182, it had clearly stated that 
Option 1 represented the lowest level of risk (high est degree of security) of any option considered.183  
Options 2, 3 and 4 were not ranked other than that these fell between Option 1 (lowest risk) and 
Option 5 (highest risk).184  
4.226 Australia maintained that it had applied th e only measure available to it that was consistent 
with its appropriate level of protection - it was not  the most trade restric tive measure as was evident 
from imports of heat-treated salmonids.  Australia argued that even if the measures on salmon were 
the most trade restrictive possible, Canada would need to demonstrate that there was a significantly 
less trade restrictive measure reasonably available wh ich would protect animal life and health within 
Australia in accordance with the level of protection deemed to be appropriate.  Moreover, even the 
most trade-restrictive measure available did not consti tute evidence of inconsistency with Article 5.6.  
Canada had not met its burden of proof in regard to its claims that the measure was more trade 
restrictive than required in the meaning of Article 5.6. 
 4. Articles XI and XX of GATT 1994  
4.227 Canada  argued that Australia's measure was a quantitative restriction in the meaning of 
paragraph 1 of Article XI of GATT 1994, which provided that: 
"No prohibitions or restrictions other than duties, taxes or other charges, whether 
made effective through quotas, import or export licences or other measures, shall be 
instituted or maintained by any contracting party on the importation of any product of 
the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party."
185  
In Canada's view the measure was a restriction on the importation into Australia of fresh, chilled or 
frozen salmon from Canada and could not be characte rized as a "duty, tax or other charges" which 
would exempt it from paragraph 1 of Article XI.  Fu rthermore, the measure did not qualify for any of 
the exemptions within the meaning of paragraph 2 of Article XI.  The burden of proof that one or 
more of the exceptions applied was Australia's. 
4.228 If the Panel were to find that the measure at issue was the 1996 Decision, Canada argued that 
measure would be limited to wild, ocean-caught Paci fic salmonids.  However, Australia had admitted 
that its prohibition extended to all uncooked salmon as it had stated in the Final Report that 
"commercial quantities of fresh, frozen and chille d salmon product are not permitted entry into 
Australia".186  If the measure were the December 1996 Deci sion, then Australia would be maintaining 
a prohibition on farmed Pacific and Atlantic salmon without a measure.  As the prohibition in respect 
of farmed salmon would be maintained without th e benefit of a measure, the SPS Agreement, which 
applies only to "sanitary or phytosanitary measures" , would not apply.  Thus, with respect to these 
products, the prohibition was a violation of Artic le XI:1 of GATT 1994 to which none of the 
exceptions in Article XI:2 applied. 
4.229 In respect of Article XI, Australia  contended that the measure  cited by Canada did not 
constitute an import prohibition within the meaning of paragraph 1 of Article XI.  Australia argued 
that QP86A did not prohibit the importation of uncooked salmon from Canada;  it allowed imports 
                                                      
182 Ibid., p.62. 
183 Ibid., pp. 62 and 69. 
184 Australia noted in its first submission that on page ix of the Final Report "lowest" was an editorial error, 
and should read "lower". 
185 GATT 1994, Article XI paragraph 1. 
186 Final Report, p.4.    WT/DS18/R 
   Page 85  
 
subject to permit, provided by the Director of Qu arantine within the scope of the delegated legal 
authority accorded under QP86A.   
4.230 Nonetheless, with respect to both Article XI and Article XX(b) of GATT 1994, Australia 
argued that in accordance with Article 2.4 of  the SPS Agreement, a sanitary measure which 
conformed to the relevant provisions of the SPS Agreement was presumed to be in accordance with obligations under GATT 1994 which related to the u se of sanitary measures.  Furthermore, Canada 
had not contested that the measure was within the scope of the SPS Agreement.  As Canada had not 
established inconsistency with Articles 2, 3 or 5 of  the SPS Agreement, there had to be a presumption 
that the measure was in conformity with Austra lia's obligations under Articles XI and XX(b) of 
GATT 1994.  Canada therefore bore the burden of proof to rebut the presumption of conformity. 
4.231 Canada  stated that Australia's measure could not  be justified under any of the exceptions 
under Article XX and that Australia bore the burden of justifying under Article XX its violation of 
Article XI.  Canada recalled that GATT practice di ctated that the party invoking Article XX bore the 
burden of proving it.  Furthermore, GATT and WTO Panels had made it clear that a measure could be 
considered necessary "only if there were no alte rnative measure consistent with the General 
Agreement, or less inconsistent with it, which [t he member] could reasonably be expected to employ 
to achieve its ... policy objectives".
187  Since Canada had already demonstrated that Australia had 
adopted alternative measures (heat treatment) with  respect to the importation of pathogens occurring 
in salmon and had nevertheless been able to achieve  its policy objective of protecting animal life and 
health, Australia's measure had no justification in th e "necessity test", set out in Article XX(b).  As 
Australia had failed to meet this "necessity test ", it was not necessary to examine the chapeau of 
Article XX which proscribed the application of measures which "in a manner which would constitute 
a means of arbitrary or unjustifiable restriction on international trade". 
 5. Article XXIII of GATT 1994  
4.232 Canada  maintained that the inconsistency of Australia's measure with GATT 1994 and the 
SPS Agreement established a prima facie case of nullification or impairment pursuant to GATT 
Article XXIII:1(a) and Article 3.8 of the DSU.  If th e Panel were to find that Australia's measure was 
not inconsistent with the cited Agreements, Canada requested the Panel to find that the measure 
otherwise nullified or impaired benefits accruing to Canada under Article XXIII:1 (b).   Canada noted 
that in its request for consultations in 1994 unde r GATT, the Request for Consultations under the 
WTO, and the Request for the Establishment of a Panel188, Canada had raised non-violation claims 
under Article XXIII:1(b) of GATT 1994.  Moreover,  Article XXIII:1(b) applied to both GATT 1994 
and the SPS Agreement189, and Canada had made it clear in its  requests for consultations and for the 
establishment of a panel that it considered that be nefits accruing to it pursuant to the WTO Agreement 
were being nullified or impaired as a result of Austra lia's application of its measure.   Canada noted 
that Article 26.1 of the DSU made it clear that complaints concerning non-violation nullification or 
impairment could be made within th e framework of the WTO Agreement. 
4.233 Canada argued that the benefits that it reasonably could have expected to accrue as a 
consequence of Australia's tariff concessions had been  nullified or impaired in that:  (i) fresh, chilled 
and frozen salmon were subject to tariff concessions originally made by Australia in 1947, before the 
introduction of Australia's measure;  (ii) as a con sequence of Australia's measure, Canada's uncooked 
salmon had been denied access to Australia's market;  and, (iii) the tariff concessions had been carried 
forward in successive tariff negotiations, such that  Canada was entitled to rely on the reasonable 
                                                      
187 Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes , 7 November 1990, BISD 
37S/200, para. 75;  United States - Restrictions on Imports of Tuna , circulated 3 September 1991, BISD 39S/155, 
para. 5.28;  United States - Standards for Reformulated and Conventional Gasoline , Panel Report, adopted 20 May 
1996, WT/DS2/9, paras. 6.25-6.28.  
188 GATT Doc. DS48/1, WT/DS18/1 and WT/DS18/2, respectively. 
189 Article 11.1 of the SPS Agreement. WT/DS18/R 
Page 86  
 
expectations it had in 1947 at the time of negotia tion of the original tariff concessions.  Canadian 
salmon exporters could reasonably have expected to  export significant quantities of fresh and frozen 
salmon to Australia, commensurate with Canada's increased export potential for this product and with 
growing demand in Australia.  Moreover, while the measure had denied Canadian exporters access to 
Australia's growing market for fresh, chilled and fr ozen salmon, it had at the same time enabled 
domestic producers to benefit from higher domestic prices.   
4.234 Australia  argued that Canada's claims in  regard  to nullification and impairment were not 
within the Panel's terms of reference as a claim of non-violation had not been raised in consultations 
and was not cited in Canada's request for a Panel.  Canada's request for the establishment of a Panel 
identified GATT 1994 and SPS Articles on which it was se eking findings by the Panel, although it did 
not specify provisions of those articles.  Canada did not identify Article XXIII:1(b) of GATT 1994 as 
a basis for its legal claims. Nor did it identify Article 26 of the DSU.  No reference was made to Article II of GATT 1994 as a relevant provision.  Australia further contended that the 1994 
consultations, which were held unde r the GATT dispute settlement rules, were not relevant to the 
terms of reference of the Panel constituted unde r Article 6 of the DSU.  The relevant WTO 
consultations were those which took place in 1995.  Canada's request for a panel did not cite the 1994 
GATT consultation and did not incorp orate matters discussed at those c onsultations.  The basis for the 
current panel was Canada's request set out in WT/DS18/2.  Australia noted that in India - Patent 
Protection for Pharamceutical and Agricultural Chemical Products , the Appellate Body had 
reaffirmed that a complainant had to identify the meas ures and legal basis of its claims in a request for 
a Panel, in accordance with Article 6.2 of the DSU.  The Panel, under the terms of Article 7.2 of the 
DSU, was only required to address the relevant pr ovisions in any covered agreement or agreements 
cited by the parties to the dispute.  Canada had not previously cited non-violation claims.  Nor had 
Canada fulfilled the requirement set out in Article 6.2 of the DSU to identify the specific measure at 
issue and to provide a brief summary of  the legal basis of the complaint. 
4.235 Australia noted that Canada's claims of  the application of the doctrine of "reasonable 
expectations" were limited to the citation of GATT jurisprudence in  footnotes in its submissions.  
Australia noted that it was clear that claims of "r easonable expectations" were valid in the context of 
non-violation claims relating to the introduction of subsidies subsequent to the negotiation of a GATT 
bound tariff concession.  However, Canada had not co me forward with any evid ence in the context of 
the application of a sanitary measure, including in th e context of the application of a sanitary measure 
as a basic right under the SPS Agreement.  Canada's cl aims, if accepted, could  become an obstacle to 
the protection of life and health and might effectively prevent Members from exercising a basic WTO right conferred under the SPS Agreement.  Any su ch construction would upset the balance of rights 
and obligations as practised by Members and woul d undermine the attainment of WTO objectives 
expressed in the preamble to the Marrakesh Agreem ent Establishing the WTO, including in regard to 
the objective of protecting and preserving the environment.   
4.236 Without prejudice to the above, Australia main tained that if the Panel were to find that 
Canada's complaint in this regard fell within th e scope of its terms of reference, Canada had 
nonetheless not satisfied its legal and evidentiary burden  of proof in regard to claims of non-violation 
nullification and impairment in accordance with Article 26.1(a) of the DSU.  Australia stated that, as a 
matter of fact, at the time of negotiation of the original tariff concession, the Quarantine Act of 1908 
was in place.  The Act made it clear that entry into Australia would be subject to quarantine 
conditions.  The relevant legislative provisions rema ined unchanged.    Hence, it was a measure that 
could have been reasonably anticipated by Canada  at the time of the initial tariff bindings.  
Furthermore, in regard to the rights accorded under the SPS Agreement in 1995, it was within 
Canada's reasonable expectations that the identifi cation of a number of disease agents exotic to 
Australia could affect access to Australia and that Australia would have recourse to sanitary measures 
in the exercise of its basic WTO rights which might  have affected international trade within the 
meaning of Article 1 of the SPS Agreement.    WT/DS18/R 
   Page 87  
 
V. SUMMARY OF THIRD PARTY SUBMISSIONS  
European Communities  
Burden of proof - Articles 3.3 and 5  
5.1 The European Communities argue d Article 3.3 was not an "exception" to Article 3.1.  The 
SPS Agreement was based on the recognition that Me mbers had the right to choose their appropriate 
level of protection.  Although Article 3.3 laid dow n specific conditions governing the exercise of that 
right in cases where an international standard existe d, this did not change the nature of Members’ 
rights to choose their own level of protection into an "exceptional" right.  Three possible options were 
available to Members when international standards ex isted.  Those were to take measures which were 
(i) based on  the relevant standard (Article 3.1);  (ii) which conformed to the standard (Article 3.2);  or, 
(iii) which resulted in a higher level of protectio n (Article 3.3).  The SPS Agreement encouraged 
Members to adopt measures which "conformed" to ex isting international standards by providing that 
such measures would be "deemed" to be "necessar y" (in the sense of Article 2.2 of the SPS 
Agreement) and "presumed to be consistent w ith" the remainder of the SPS Agreement and with 
GATT.  But even this presumption could not be re butted by a complaining Member.  From this, it 
could not be inferred that a reverse presumption (o r negative inference) applied in those cases where a 
Member chose to depart from the in ternational standard in order to set a higher level of protection.  
The three options were of equal standing and no one could be qualified as an exception to the others.  
The SPS Agreement clearly distinguished between measures which were based on  international 
standards (Articles 3.1 and 3.3) and those which conformed  to such standards (Articles 2.4 and 3.2).  
The complaining party had to bear the burden of showing that the measure of another Member was 
not based on the international standards, was not based on scientific principles and was maintained 
without sufficient scientific evidence (Article 2.2). 
5.2 The European Communities emphasized that th e right to choose a higher level of sanitary 
protection was explicitly provided for in the SPS Agreement (6th preambular paragraph, Annex A 
paragraph 5, and Articles 2, 3 and 4.1).  A sovere ign right could not be undermined by technical and 
procedural requirements, like the burden of proof , especially in cases where there was scientific 
uncertainty.  Issues of health were so fundamental  to the democratic system of government, that 
sanitary measures had to be given the benefit of  conformity with the SPS Agreement until the 
complaining Member had succeeded in establishing beyond doubt and on the basis of the latest 
scientific information available that a sanitary measure was not based at all on scientific principles, in 
the sense of Article 2.2. 
5.3 In the view of the European  Communities, "burden of proof" was an ambiguous term.  It was 
essential to distinguish between the following concep ts:  (i) standard of proof;  (ii) burden of 
persuasion;  (iii) minimally suffi cient evidence;  and, (iv) burd en of producing evidence.  These 
concepts applied to very different aspects of fact-f inding and responded to ve ry different policies.  
Initially, a complaining party had to "present evidence and argument sufficient to establish a 
presumption" that a Member had acted incons istently with its obligations under the SPS 
Agreement.190  Evidence had to be produced (i) that wa s minimally sufficient to support its requested 
finding and (ii) that would be sufficient to persuade  the panel that what was claimed was true if no 
counter-evidence were to be produced.  A prima facie  case had, therefore, to be of sufficient weight to 
persuade the panel and of suffici ent quality to pass appellate review for reasonableness.  Once a 
complaining party had produced such compelling ev idence, the Member against whom the complaint 
was being brought faced the practical reality that e ither it had to produce convincing rebuttal evidence 
or it would be likely to suffer adverse findings.  It was misleading, however, to speak of any "shift" in 
the "burden of proof" in such a case.  The burde ns of production and persuasion on any issue essential 
                                                      
190 Appellate Body Report on United States - Measures Affecting Imports of Woven Wool Shirts and Blouses 
from India , WT/DS33/AB/R, p.13. WT/DS18/R 
Page 88  
 
to proving a violation had to be borne throughout the process by the complaining party.  The fact that 
in the dynamics of the proof process there might come a point when the defending party had to 
produce convincing evidence or lose did not amount to an additional rule of law that "shifted" those 
burdens.  The European Communities noted that the argument on burden of proof they proposed 
found clear support also in the almost identical pr ovisions of the NAFTA Agreement on sanitary and 
phytosanitary measures. 
The Panel’s role in reviewing the scientific judgements made by Members  
5.4 The European Communities argued that the Panel had to decide whether the Australian 
measure was based on a risk assessment as appropriate to the circumstances (Article 5.1).  The Panel 
had also to judge whether the Australian measu re was based on scientific principles and was 
maintained with sufficient scientif ic evidence (Article 2.2),  as well as whether there was scientific 
justification for departing from existing in ternational standards (Article 3.3).   
5.5 The Panel could not conduct its own risk asse ssment, nor could the Panel substitute its own 
scientific judgement or that of individual scientists or experts chosen by it for that of the Member 
applying an SPS measure.  Panels had no authority no r competence to evaluate the weight of scientific 
evidence used by the government of a Member ap plying an SPS measure.  A panel’s mandate, in 
considering the evidence invoked by a Member main taining an SPS measure, was not to determine 
whether it agreed that such evidence constituted best evidence  available but merely to determine 
whether that evidence had the mi nimum external attributes of scientific inquiry and provided a 
sufficient basis for the Member’s own determinations about the risk. 
5.6 It followed that if in a particular case the "w eight" of available evidence indicated that there 
was no risk of spread of a certain disease, but anot her part of available scientific evidence indicated 
that there was such a risk, the gove rnment of the Member concerned would still be entitled, under the 
SPS Agreement, to take a precautionary or preventive  approach and base its measure on the latter part 
of the available scientific evidence.  
5.7 The European Communities disagreed with Ca nada's claim that a "risk assessment" could not 
satisfy the obligation imposed by Article 5.1 of the SPS Agreement,  unless it estimated the 
"probability" of a risk rather than its mere "possi bility".  This implied that Members were required to 
make a quantitative assessment of the risk, but the u se of the term "likelihood" in the definition of 
"risk assessment" could not be taken to mean that  a risk assessment had necessarily to include a 
quantitative estimate of the risk level.  The SPS Agreement qualified the obligation to conduct a risk 
assessment with the phrase "as appropriate to the circ umstances" in Article 5.1.  This was an express 
recognition that what was an appropriate risk ass essment might differ from case to case.  In many 
cases, a quantitative assessment of the risk might not  be appropriate or indeed feasible at all. 
5.8 The European Communities noted that a Member was free under the SPS Agreement to 
refuse to take any risk, no matter how small its possi bility of occurrence might be and irrespective of 
whether it was considered to be acceptable to othe r Members.  With its submission Canada did not 
appear to argue that there was no risk at all, but  simply that its probability of occurrence was very 
very small.  However, a Member was free under th e SPS Agreement to refuse to take any risk, no 
matter how small its possibility of occurrence ma y be and irrespective of whether it had been 
considered to be acceptable to other WTO Members or to international organizations such as the OIE.  
Canada appeared also to forget that, in basing their measures on a risk assessment, Members could 
take into account a wide range of reports, studies , publications and individual scientific advice.  
Because the "information-base" for the analysis of the risk was necessarily very wide and constantly 
being updated as science progressed, it was not surprisi ng to find sometimes contradictory scientific 
statements.  However, this could not prevent a Member from choosing to base its evaluation of the 
possibility of the harm arising on the part of availa ble scientific evidence which in its view appeared 
to be more reasonable.    WT/DS18/R 
   Page 89  
 
Article 5.5  
5.9 The European Communities agreed  with Australia that the text of Article 5.5 did not impose 
an obligation lending itself to immediate implemen tation.  Article 5.5 required a comparison of the 
levels  of protection applied by a Member in  different situations and not of the measures adopted to 
enforce those levels of protection.  Instead, Canada  had compared the measure applied by Australia to 
different types of fish and then mistakenly assu med that to different measures must necessarily 
correspond  different levels of protection.  In or der to achieve a given level of protection it was 
necessary to apply different measures depending on the circumstances of each situation.  More 
restrictive measures were not necessarily equivalent to a higher level of protection and, conversely, 
less restrictive measures were not necessarily indicativ e of a lower level of protection.  Because there 
could often be a wide range of sanitary measures ava ilable to achieve the same level of protection, the 
measures employed by Members could differ significan tly even where they were designed to achieve 
the same level of protection.  Th is was, in the EC view, not to be dealt with under Article 5.5 as 
Canada had done, but rather, under the provisions of equivalency of the SPS Agreement (Article 4). 
5.10 The European Communities further argued that  a distinction in the levels of protection 
applied in different "situations" c ould not be deemed to be "arbitrar y" or "unjustified" nor lead to 
"discrimination" or to a "disguised restriction of international trade" unless those situations were 
clearly comparable.  The mere fact that a disease ag ent was found in two different species of fish was 
not sufficient to render "comparable" for the purpo ses of Article 5.5 the level of protection and the 
sanitary measure applied by Australia to those sp ecies, because there might be other factors which 
could make the two situations not comparable.  For instance, the sever ity of the effects of a disease 
agent might vary from one type of fish to another, thus justifying both a different level of protection 
and different sanitary measures.  Consistency coul d not be seen as a static concept, but rather a 
process that would take years to achieve.  The guidelines, which Article 5.5 required before the 
objective became operational, had been foreseen prec isely for that purpose.  Canada’s interpretation 
of Article 5.5 was not only unreasonable and unfounde d but could also lead to regulatory chaos for 
Members of WTO. 
Arbitrary, unjustifiable or disguised restriction on international trade:  proportionality of the 
Australian measure  
5.11 The European Communities noted that in accordance with Articles 2.3 and 5.6 of the SPS 
Agreement, Canada bore the burden of showing that  Australia's measure was arbitrary, unjustifiable 
or constituted a disguised restriction on international trade.  In particular, Canada had to show that 
there was another reasonably available measure, wh ich was less trade restrictive and which could 
achieve the level of protection chosen by Australia.  Canada did not appear to have established this, 
because the salmon it was endeavouring to export did not come from regions or zones that had been 
declared free from certain diseases of concern.  The European Communities, on the other hand, 
claimed to have shown Australia that the Atlantic  salmon caught or farmed in Ireland and the United 
Kingdom was free of the specific salmon diseases menti oned by Australia.  EC salmon, therefore, 
came from regions or zones free of those diseases and to that extent the Australian measures were not, in the view of the European Communities, in conformity with Articles 2.3 and 5.6 of the SPS Agreement. 
India  
5.12 India agreed that each Member had the right to take such measures which it might feel were 
necessary for protection of human, animal or plant h ealth or life.  It was, however, important for 
Members to ensure that these measu res were applied in an equita ble manner, did not constitute a 
disguised restriction of international trade.  In  this perspective, even though India recognized 
Australia's desire to prevent the transmission of some of the diseases of concern to its own fish 
population, it was important that the measures were  not only necessary for attaining these objectives WT/DS18/R 
Page 90  
 
but were also consistent with the WTO obliga tions.  The sanitary measure had to be applied only to 
the extent necessary to protect human, animal or plant health or life, and had to be based on scientific 
principles and not maintained without sufficient sci entific evidence.  As  salmon constituted an 
important ingredient in international trade, it w as essential that any measure which was found to be 
inconsistent with  Members' obligations, or whic h in any way negated the benefits accruing to any 
country under the WTO Agreement, was removed expeditiously. 
Norway  
5.13 Norway did not contest Australia's stated policy objective to protect salmonid life or health 
from the spread of exotic diseases, and accepted that Australia had the right to establish its appropriate 
level of sanitary or phytosanitary protection, i.e.,  its acceptable level of risk.  Norway did, however, 
submit that Australia's measure was not necessary to  achieve this purpose.  Furthermore, a risk 
assessment as appropriate to the circumstances had not been performed. 
5.14 Norway stated that the Australian measure at  issue amounted to an effective ban on imports of 
fresh and frozen salmonid products, in contraven tion to GATT Article XI.  The ban could not be 
justified either under the general exceptions in GATT Article XX or the SPS Agreement, the latter 
being an elaboration of relevant provisions of GATT 1994, in particular the provisions of 
Article XX(b).  As Australia had submitted that its  measure was being maintained for the purposes of 
protection of animal life and health from the risks arising from the entry, establishment or spread of 
diseases, disease-carrying organisms or disease-causing organisms -  measures that came within the 
scope of Article 1 of the SPS Agreement as detailed in  paragraph 1(a) of Annex A of that Agreement -
 Norway considered that the Au stralian measure had to be first examined against the rights and 
obligations of the SPS Agreement.  If the measure violated the SPS Agreement, there would be no 
need to discuss Article XX of GATT 1994 separately. 
5.15 Norway noted that the Australian measure  applied to all salmonid product of whatever 
subspecies or origin.  However, the Australian re ports that related to risk assessment only assessed 
disease risks in connection with potential imports of fresh and frozen adult, wild, caught Pacific 
salmon from the United States and Canada (the species belonging to the genus Oncorhynchus ).  
Imports of farmed salmon and wild caught salmon from other countries would require separate risk 
analyses.  It thus seemed that no risk analysis ex isted that would cover all the products and origins 
covered by QP86A (the species belonging to the genus Salmo  and Salvelinus , common to 
aquaculture).  This in itself casts serious doubt s as to the conformity of QP86A with the SPS 
Agreement.   
5.16 Norway noted that a distinction had to be made between measures depending on the extent to 
which they were based on an international standa rd, guideline or regulation.  Of the 24 diseases 
discussed in the Australian reports, and thus pr esumably the diseases the m easure was supposed to 
protect against, two diseases had been identif ied by the OIE as requiring special attention 
(i.e.  notifiable Diseases).  For these two diseases, fi sh had to be eviscerated before sold.  Three 
diseases were labelled Other Diseases (OIE reco mmended that the importing country require an 
international aquatic animal health certificate).  The other 19 diseases were not subject to any specific 
recommendation.  Only three of these had been co nsidered by the OIE Fish Diseases Commission, 
which had not considered any specific recomme ndation necessary for these three diseases.  The 
Australian measure (the import ban) thus did not c onform to any international standard, guideline or 
recommendation. 
5.17 Where an international standard, guidelin e or recommendation existed a measure which did 
not conform to that standard, was subject to two sets of requirements in Article 3.3, i.e., that it 
resulted in a higher  level of sanitary and phytosanitary protection than would be achieved by 
measures based on the relevant international standards; and that there was either  scientific 
justification for the deviation from th e relevant international standard or the measure was a    WT/DS18/R 
   Page 91  
 
consequence of the level of sanitary or phytosan itary protection a Member determined to be 
appropriate in accordance with the relevant provisions  of paragraphs 1 through 8 of Article 5.  Where 
no international standard, guideline or recommendati on existed, there was no obligation to harmonize 
with other countries' standards, but the measure ha d to be developed and applied in accordance with 
inter alia , Articles 2 and 5 of the SPS Agreement. 
5.18 The Australian measure, as it related to t hose diseases covered by OIE recommendations,  did 
not comply with the first requirement in Article 3.3, i.e., it did not result in a  higher  level of sanitary 
and phytosanitary protection than would have  been achieved by measures based on the OIE 
recommendation.  Australia's May 1995 Draft Report lis ted a number of events that had to take place 
before an exotic disease could become established in Australia, and had concluded that this outcome 
was so unlikely that it did not merit the stringent measures in effect.  Later Australian reports and submissions had not provided reasons to  disprove this conclusion.    
5.19 Even if one had assumed that a higher level of protection could be achieved by Australia's 
measure, the measure did not comply with the second set  of requirements in Article 3.3.  Footnote 2 to 
Article 3.3 stated that "there is scientific justifi cation if, on the basis of an examination and evaluation 
of available scientific information in conformity w ith the relevant provisions of this [SPS] Agreement, 
a Member determines that the relevant internati onal standards, guidelines or recommendations are not 
sufficient to achieve its appropriate level of sanitary  or phytosanitary protection".  Norway contended 
that there were no international scientific studi es that supported the contention that headless, 
eviscerated salmon for human consumption had spread diseases to living salmon.   
5.20 Alternatively, if one accepted that Australia's  measure could achieve a higher level of sanitary 
or phytosanitary protection, Australia's right to de termine such a higher level of protection - and the 
measure to implement this decision - had to comply w ith the relevant provisions of Article 5, as well 
as Article 2.  This meant that the risks from th e introduction of diseases had to be related to the 
importation in question.   
5.21 Articles 5.1 and 5.2 required that an a ppropriate risk assessment be made.  Annex A, 
paragraph 4, explained this  as an "... evaluation of the likelihood of  entry, establishment or spread of a 
pest or disease within the territory of an importing Member according to the sanitary or phytosanitary 
measures which might be applied, ...;  or the ev aluation of the potential for adverse effects on human 
or animal health arising from the presence of ... disease-causing organisms in food, beverages or 
feedstuffs."  Article 5.2 furthermore required that Members had to take into account, inter alia  
scientific evidence, production methods, inspection methods, prevalence of disease and existence of 
disease free areas.  Taken together, this required Au stralia to perform a thorough evaluation of the 
different measures which might be applied to achieve  its appropriate level of protection.  Norway 
accepted that Australia might come to a different resu lt than the OIE, if its evaluation of the risks and 
measures, performed in conformity with the el ements detailed above, c ould justify a different 
approach.  The Australian arguments as to why the OIE measures were not sufficient to achieve this 
level of protection, when other countries applied th e OIE measures to achieve, successfully, the same 
level of protection, were, however, not based on the elements mentioned above.  Furthermore, there 
had been no quantification of likelihood of disease introduction for different measures were discussed. 
5.22  Annex A, paragraph 4, defi ned risk assessment as relating to a pest or disease.  The 
requirement to perform separate risk assessment and management decisions for each disease was also 
inherent in Article 5.2 with respect to disease-free areas.  In establishing its measure, Australia had not evaluated the likelihood of en try for each disease.  When the OIE had established its two lists of 
diseases, it had been because some diseases were thought to require more stringent measures than 
others.  Yet Australia's broad measur e made no distinctions, thus denying inter alia , other Members 
the right, according to Article 6.2, to demonstrate th at its area was free of any or all of the diseases, 
something which was particularly important with respect to the 5 diseases covered by the OIE recommendations as opposed to the 19 diseases not so covered. WT/DS18/R 
Page 92  
 
5.23 Norway noted that Australia's right to de termine its appropriate level of protection was 
circumscribed by the obligation to avoid arbitrar y or unjustifiable distinctions in the level it 
considered appropriate in different  situations, if such distinctions resulted in discrimination or a 
disguised restriction on international trade.  Th is Article established a general objective of 
consistency, unrelated to the level of protection c hosen.  Consistency was, however, an objective, and 
did not impose an absolute obligation in all resp ects.  The SPS Committee had so far not developed 
guidelines for the application of this paragraph.  Co nsidering the numerous regulations that currently 
existed, the differences that might exist between  substances and diseases, and the many regulations 
that were in force before the SPS Agreement came in to force, it seemed to Norway that only quite 
similar circumstances coupled with unjustifiable levels  of protection might be considered a violation.  
This requirement had to be applied with caution, and the limits to unwarranted comparisons would 
probably have to be decided from case to case.  In the present case, the treatment of the same diseases 
when present in other fish species, and perhaps also  the treatment of other exotic diseases in fish, 
would seem to be relevant. 
5.24 Australia did not prohibit importation of fresh  or frozen fish of other species which might 
carry the same diseases, and where the introduc tion of disease would follow the same pattern.  
Australia, furthermore, allowed the importation of live ornamental finfish which might be host to 
various exotic diseases.  Norway argued that this i ndicated different levels of protection.  Australia, 
furthermore, had provided no expl anation or justification for these differences, which previous 
Australian reports had admitted were arbitrary and unj ustifiable.  As such, they had clearly to be 
considered a disguised restriction on internationa l trade, and, in this case, contrary not only to 
Article 5.5, but also to the requirement in the last sentence of Article 2.3.   
5.25 Irrespective of what might be considered as  Australia's "appropriate level of protection" - 
which Australia had never defined or quantified - against the spread of the diseases in question, it was 
evident that Australia applied different measures to different fish species.  Australia had not presented 
evidence that would substantiate that different fish species with the same disease represented different 
risks.  It thus seemed that some of the measu res were either unwarranted or ineffective. 
5.26 The OIE recommended measures to protect im porting countries against various diseases.  
Australia's measure with respect to salmonids was mo re trade restrictive than another measure, readily 
available to Australia and which r esulted in the same level of protection, while at the same time its 
necessity over other measures was unsubstantiated.  In  this respect, Norway therefore contended that 
Australia had violated Article 5.6 and Article 2.2 of the SPS Agreement.   
United States  
5.27 The United States noted that it had a long hi story of unsuccessfully tr ying to work with the 
Government of Australia to permit the importation of wild, ocean-caught salmon.  For over 20 years, 
Australia had prevented the importation of any uncooked salmon by claiming potential fish disease 
transmission.  The industry pr otected by Australia's ban, the Tasmanian salmon industry, had 
originated at least in part from the importati on of live salmon eggs from the United States. 
5.28 The United States noted that Australia's import ban applied to  all uncooked salmon, no 
matter whether any salmon products in a shipment  carried the disease and no matter whether the stock 
from which the salmon was harvested was free of disease.  Australia's broad arguments in support of 
its ban disguised the lack of scientific justifica tion.  Under the terms of the SPS Agreement, the 
United States argued that the analysis had to be whether the measure at issue was based on legitimate 
sanitary concerns for each specific disease on which Au stralia had based its ban.  Instead of analysing 
each disease, Australia referred generally to a broa d number of fish disease agents that it considered 
could "potentially" be present in Canadian salmon.  Yet Australia had declined to address the issues 
involving each of these disease agents.  As Australi a had not specified on which disease risk it had 
based its ban, it was impossible to conduct the n ecessary analysis.  The United States noted that    WT/DS18/R 
   Page 93  
 
varying references in the Australian first submissi on in respect of the disease agents of concern had 
led to confusion in regard to the actual number of diseases at issue.   
5.29 The United States claimed that Australia's an alysis did not address some of the basic issues 
surrounding its claims in support of its ban.  First,  Australia's claims turn ed on the assertion that for 
each of the disease agents there wa s a risk that the agent might be present in eviscerated, wild, 
northeast Pacific ocean-caught salmon (the "salmon at issue").  Yet in many cases Australia had 
presented no scientific evidence of the agent ever ha ving been found in the salmon at issue, let alone 
in any products from such salmon.  Furthermore, Australia had not conducted its own tests to look for 
the disease agents.  Much of the analysis was mere speculation that, because the agent had been found 
in salmon in freshwater, there might be a chance that the agent would occur in wild, ocean-going 
salmon.  Most of the disease agents which had b een listed by Australia had been isolated from 
stressed Pacific salmon in freshwater, but had never been isolated or detected in wild, ocean-caught 
Pacific salmon.  Pacific salmon returned to freshwater as adults to spawn and then they died.  As they 
returned to freshwater, they became highly stressed , their immune response was compromised, their 
flesh quality would begin to deteriorate, and they mi ght contract a number of opportunistic infectious 
diseases which were not found in ocean-caught fish.  Thus, Australia's list of 20 or so disease agents 
would have to be reduced by removing those for which there was no scientific evidence of the agent 
being present in the salmon at issue. 
5.30 Second, according to Australia's own Final Re port, an essential link in the chain of events 
necessary for imported salmon to introduce a disease was that "the pathogens must be present in 
biologically significant numbers to initiate infection in the host".  In other words, Australia claimed 
that, for each remaining disease, the level of any di sease agent that would be present in the salmon at 
issue was large enough to be an infective dose.  Ag ain, there was no scientific evidence to support this 
claim with respect to each of these disease agents and, in many instances, there was scientific 
evidence that this claim was not valid.  Australia had not provided scientific evidence that all of the 
disease agents of concern even o ccurred in the edible muscle, or other tissues which would be 
imported, at a level which would constitute a risk of infection. 
5.31 Third, Australia's claims were based on th e assertion that each of the disease agents was 
exotic to Australia.  Australia ha d not conducted an adequate survey of its waters or domestic stocks 
of salmonids and native fishes to determine if th ese diseases were present.  Instead, it relied on the 
fact that the disease had not been reported and that it would turn up in routine testing.  However, this 
approach stood in stark contrast to the approach us ed to determine if the disease was present in the 
salmon at issue.  For instance, in the United States, the states of Alaska, Oregon and Washington 
examined salmon submitted to their fisheries laborat ories by commercial fishers and processors.  The 
testing by these states was much more  extensive than that done by Australia.  In fact, only a few of the 
disease agents listed by Australia had ever been r ecorded in wild, ocean-caught Pacific salmon in any 
life stage or in any tissue and might well have not  been found had the United States used Australia's 
testing system.  According to Australia's approach , none of the other disease agents existed in the 
salmon at issue.   
5.32 As a result, in the view of the United St ates, Australia's appro ach to the evidence was 
inconsistent.  Australia had to either accept that the evidence was sufficien t to establish that these 
other diseases were not present in the salmon at issue (in which case there was no reason to ban their 
importation in fresh or frozen from) or else that the evidence was no sufficien t to establish that these 
diseases were exotic to Australia. 
5.33 The United States noted that many of the di sease agents about which Au stralia claimed to be 
concerned also occurred in other finfish, and Au stralia imported large quantities of other marine 
finfish in a fresh or frozen condition, and imported liv e ornamental fish, without any sanitary controls.  
Although Australia claimed that it had commenced , and would commence, risk assessments on some 
of these other fish, it was doubtful that Australia wa s really concerned about the introduction of these WT/DS18/R 
Page 94  
 
diseases or that the risk of disease was the true b asis for its ban.  For over 20 years Australia banned 
the importation of salmon without taking any steps to assess risks from, or protect against the introduction of disease from, these other finfish. 
5.34 Australia had stated that its appropriate level of protection was that "fish have been subject to 
such treatment as in the opinion of the Director of Quarantine is likely to prevent the introduction of 
any infectious or contagious disease."  "Likely to pr event" would mean that it was likely that the fish 
would not introduce an exotic disease.  Australia's  own characterization of the risks from the salmon 
at issue made it clear that it was likely that the salmon would not introduce the disease.  Accordingly, 
it was not clear why Australia's ban was necessary.  Instead, Australia's ban appeared to be designed 
to ensure that there was no likelihood of any disease agent being found in imported salmon.  "No 
likelihood of disease" was a different test altogether from "likely to prevent disease," and "no likelihood" was a much higher level of protection than "likely to prevent."  The United States did not see how Australia could reconcile its ban with its stated level of protection. 
5.35 Finally, the United States noted that it could not endorse all of the arguments put forward by 
Canada.  In particular, the United States did not agree that the SPS Agreement required a 
"quantitative" risk assessment.  Nothing in that agr eement specified that the risk assessment had to be 
quantitative.  The term "likelihood" in the defi nition of "risk assessment" in Annex A to the SPS 
Agreement did not mean a numerical value of probab ility.  This simply recognized the constraints of 
scientific knowledge.  Ideally the objective of a risk assessment would be to establish, through 
scientific evidence, a quantitative level of risk whenev er this was possible.  However, in many if not 
most cases, this would not be possible due to a lack of evidence that could link an activity 
quantitatively to any effect on the population covered. 
VI. PANEL'S CONSULTATION WITH SCIENTIFIC EXPERTS  
Panel procedures with regard to scientific expertise  
6.1 The Panel recalled that paragraph 2 of Article 11 of the SPS Agreement provided that: 
"In a dispute under this Agreement involving scientific or technical issues, a panel 
should seek advice from experts chosen by th e panel in consultation with the parties 
to the dispute.  To this end, the panel may, when it deems it appropriate, establish an 
advisory technical experts group, or consu lt the relevant international organizations, 
at the request of either party to the dispute or on its own initiative." 
Noting that this dispute involved scientific or tec hnical issues, the Panel consulted with the parties 
regarding the need for expert advice.  Neither part y requested the Panel to seek such advice, however 
both parties indicated that they had no objection to the Panel seeking advice.  The Panel decided to seek scientific and technical advice as foreseen in para graphs 1 and 2, first sen tence, of Article 13 of 
the DSU, and pursuant to paragraph 2, first sentence, of Article 11 of the SPS Agreement. 
6.2 The parties were invited to submit names of indi viduals expert in the subject matter before the 
Panel.  At the same time, names of individuals were also sought from the Office international des 
epizooties (OIE).  Brief curricula vitae were solicit ed from all experts who were prepared to assist the 
Panel. 
6.3 The parties were provided the opportunity to  comment on these potential experts on the basis 
of the curricula vitae, and in particular to state any compelling objections they might have with regard 
to any individual.  The Panel than selected four  individuals from the list taking into account the 
comments of the parties and the need for expertise in a number of areas (eg., risk assessment,    WT/DS18/R 
   Page 95  
 
transmission of diseases of fish, and the procedures of the OIE).  These experts were requested to 
serve, in their personal capacities, as i ndividual advisers to the Panel.   
6.4 The Panel, in consultation with the parties,  prepared specific questions which it submitted to 
each expert individually.  The experts were requested  to provide their responses, in writing, to those 
questions they felt qualified to address.  The parties agreed that their written submissions to the Panel, 
including the written versions of their oral statemen ts, be provided to each of the selected experts.  
The written responses of the experts were provided to  the parties, and the parties were given the 
opportunity to comment on these. 
6.5 The experts were invited to meet with th e Panel and the parties to discuss their written 
responses to the questions and to provide further information.  A summary of the written responses 
provided by the experts is presented below.191 
6.6 The experts selected to advise the Panel were: 
Dr. David E. Burmaster, Alceon Corporation, United States Dr. Christopher J. Rodgers, fish disease consultant, Spain Dr. James Winton, National Fisheries and Research Center, US Fish and Wildlife Service, 
United States 
Dr. Marion Wooldridge, Department of Risk  Research, Central Veterinary Laboratory, 
United Kingdom 
Questions to the experts - Compiled Responses  
6.7 By way of general introductory comments, Dr. Wooldridge  noted that a number of different 
terminology systems were still in use even within th e veterinary and animal health sphere (including 
fish).  In the terminology system now gene rally advised for use within this field,  risk analysis  and 
risk assessment  had different, distinct meanings although in the past they were often used 
interchangeably. The term risk analysis as now ge nerally used comprised four components:  hazard 
identification, risk assessment, risk management and risk communication.  This terminology was 
taught in the WTO/OIE sponsored Risk Analysis Training Workshops.  
6.8 In the SPS Agreement definitions, hazards were  defined as additives, c ontaminants, toxins or 
disease-causing organisms which may poten tially have an adverse effect.  A particular risk analysis 
might look only at a particular range of hazards, for example disease-causing organisms;  and within the scope of that particular risk analysis, hazard identification (HI) was then the process of identifying 
all potential hazards in the commodity being considered.  
6.9 Risk assessment was the process of estimating th e risk presented, by the identified hazard or 
hazards, for the outcomes of interest.  The relevant  outcomes of interest for import risk assessments 
were specified in the SPS Agreemen t.  In theory, the assessment coul d be done either qualitatively or 
quantitatively. In a qualitative assessment one estimat ed the risk (that is, the  probability) of a 
particular outcome in words; thus the probability of  a particular outcome might be estimated as, for 
example, high, or low, or negligible.  In a qua ntitative risk assessment th e probability was assessed 
numerically and the resultant probability (P) was given a numerical value;  thus, for example, P= 0.99, 
or P=1x10
-6, or "there is a 95 per cent probability that P<0.1".  In practice a quantitative assessment 
could only be undertaken where quantitative data allowed. 
                                                      
191 A transcript of the meeting with the experts is attached as Annex 2 of this document. WT/DS18/R 
Page 96  
 
6.10 Risk management was the process of decidi ng whether a particular risk estimated under the 
pertinent circumstances was acceptable (which was a matter of  judgment dependent upon various 
factors including the results of a risk assessment) and, if not, selecting and implementing measures 
that could be applied to reduce the level of risk .  Risk communication included all the communication 
relevant to the risk analysis, including communi cating results of risk assessments and obtaining 
information, opinions, and feedback from all in terested parties on any relevant factor including 
scientific data and method, and acceptable risk levels.  
6.11 A risk assessment was therefore only part of a risk analysis, but in answering the Panel's 
questions on risk assessment, it might be necessary to consider the other elements of the risk analysis 
within the Australian document.  In addition, the two Australian documents did not use the two terms 
in exactly this way.  They appeared to call both th e whole process, and the risk assessment itself risk 
analysis, therefore those parts of the document relati ng specifically to the risk assessment have to be 
identified by the reader.  Also, the qualitative assessment of risk often leads very directly into a risk 
management recommendation, making separation more difficult.  
6.12 Dr. Wooldridge further noted that her main  area of competence in this matter was on risk 
analysis and risk assessment.  
Risk assessment procedures  
Question 1.  When comparing Australia's Draft 1995 ri sk assessment with the 1996 Final Report, 
what are the main differences between the two risk assessments?  Would you characterize one or the 
other of these risk assessments as technically or scientifically more sound than the other?  If so, on 
what basis?  What, in your view, are the mi nimum requirements of a risk assessment?  Would 
requirements vary depending on the product and/or  diseases addressed?  With regard to both the 
1995 Draft Report and the 1996 Final Report, do these re ports, from a technical/scientific point of 
view, meet the minimum requirements of a risk asse ssment generally accepted in  the specific area of 
aquatic animal health?  
6.13 Dr. Burmaster  replied that the two reports used sim ilar methods but came to opposite policy 
conclusions.  He did not consider that one or th e other of these risk assessments was technically or 
scientifically more sound than the other, but that th e two reports had similar strengths and limitations.  
In terms of the minimum requirements for such a ri sk assessment, Dr. Burmaster indicated that, with 
some exceptions in some situations (but not in the case of this dispute), a risk assessment must use 
quantitative methods to estimate the probability and the magnitude of desired and adverse 
consequences.  Neither the draft risk assessment (May 1995) nor the final risk assessment (December 
1996) used quantitative methods, so neither met the minimum requirements for this situation.  Dr. 
Burmaster noted that the requirements might possi bly vary depending on the product and/or diseases 
addressed.  For example, the minimum requirements for a risk assessment concerning insect pests in 
fruit orchards might differ in some ways from t hose for a risk assessment concerning bacterial 
diseases in fish.  However, he believed that each  such risk assessment must, at a minimum, use 
probabilistic methods to distinguish and to quantify the variability  and the uncertainty  inherent in the 
problem.  [References to the current thinking in the risk assessment community about distinguishing 
and quantifying variability  and uncertainty  could be found in (i) Burmaster & Thompson, 1997;  and 
(ii) Burmaster & Wilson, 1996, via th e Internet from http://www.Alceon.com.] 
6.14 Dr. Rodgers  observed that the 1996 Final Report had b een restructured and divided into 4 
main sections, which were linked by an overall summary, reflecting the two previous draft reports.  
The 1995 Draft Report was designed as a draft import risk analysis (IRA) for public comment, which 
was a valuable additional step for this type of exer cise.  Unfortunately, this led to the subsequent 1996 
reports being less specific, although the sections  on disease considerations presented the background 
information in a more clearly structured format by using recommended risk assessment factor 
groupings (e.g. country, commodity, agent, etc.).  The 1996 Draft Report adopted a more cautious    WT/DS18/R 
   Page 97  
 
approach, since the conclusion used expressions such as "... if the importation of product were to be 
permitted ...", rather than statements such as " ... AQIS recommends that importation be permitted 
under the draft conditions described ...", as occurred in the 1995 Draft Report. On the other hand, the 
1996 Final Report went one step further and categor ically stated that "... it is recommended that 
uncooked salmon products should not be permitted entry ...". This could only be as a result of the 
public consultation exercise and the uncertainty arisin g from missing or difficult to interpret data. This 
approach gave the impression that the 1996 Draf t Report considered the available options as a 
technical review but fell short of commitment.  The 1996 Final Report fully committed itself.  
6.15 In contrast, the 1995 Draft Report, although ap pearing as a straightforward literature review 
in some sections, appeared to use the available in formation to attempt a qualitative risk assessment, 
which lead to subjective assumptions about the va rious possibilities for disease introduction. As such, 
the 1995 Draft Report was a more useful document, in the sense of an inte rnal risk assessment 
exercise, since it evaluated the data to conclude that a negligible risk existed,  while at the same time 
recognising that the overall risk of disease intr oduction could not be quantified.  The 1996 Final 
Report gave more weight to the unknown elements of the assessment and as such was more cautious, 
which resulted in an outcome closer to the "unaccep table" rather than the "negligible but acceptable" 
end of the scale.  Dr. Rodgers indicated that th e lack of actual data and disagreement between 
scientists on likely outcomes probably led to this an omaly, since subjective opinion is usually argued 
as unrepresentative of the true situation. Unfort unately, qualitative risk assessment contains an 
element of assumption which is a necessity as a substitute  for gaps in the scientific data base.  In fact, 
a range of "scientific expert opinion" could actuall y be very useful in these circumstances and might 
even be adapted to create probability distributions for a more accurate quan titative risk assessment.  
This would be equally true for both the disease ag ent factors and the unique factors related to 
Australia, such as the susceptibility of Australian sp ecies to exotic salmonid diseases.  Only the 1995 
Draft Report made an attempt in this direction. 
6.16 Dr. Rodgers noted that the reports had been  compiled from an Australian perspective and in 
this respect met the methodology requirements laid down by the OIE, which stated that countries may 
design their own process.  The reports were supporte d by references to the scientific literature and 
other sources, as required.  The question of the potential volume of trade was addressed in the 1995 
Draft Report by listing the Canadian export stat istics for salmon to other countries and simply 
estimating that about 3000 tons would be imported annually.  The 1996 Final Report only referred to 
"commercial quantities of product", even though th e number of aquatic animal units being imported 
significantly influences the risk assessment.  The ot her basic factors required for a risk assessment, 
namely country factors, commodity factors, exposur e factors and reduction factors, were considered 
on a disease-by-disease basis from a textual technical/scientific point of view.  The potential adverse 
consequences of disease introduction were  also outlined in the same way. 
6.17 One of the more important necessities for a risk assessment, particularly a quantitative risk 
assessment, was good scientific data concerning the re ported prevalence of infection in the exporting 
country.  For fish or shellfish (and other animals) th is generally occurred in one of three ways:  data 
from the OIE annual returns, scientific reports and published peer-reviewed scientific literature.  In 
practice, each of these varied in detail from basic in formation (OIE returns) to detailed data (scientific 
literature).  However, even the most detailed data  varied widely, in both content and usefulness.  
6.18 Prior to a consideration of the factors involved in a risk assessment exercise it was necessary 
to address the basic question that the analysis woul d be designed to answer.  The question needed to 
be as specific as necessary in order to provide useful information in support of a subsequent decision 
concerning the importation of a batch of fish or their products.  A question usually specified the 
disease, or diseases, of concern, the fish species to be imported and possibly the time-frame of 
interest.   However, the basic question might need  refining and could be divided into more precise 
questions.  Sometimes it was not clear, until the prob lem was considered in detail, exactly which risks 
needed to be estimated.  As a result, the origin al question might need to be re-framed.  Once the WT/DS18/R 
Page 98  
 
hazard had been identified, all the events likely to  occur during importation needed to be listed in 
order to represent the expected pathway which w ould prevent the unwanted event from occurring.  
6.19 The potential risk factors could be generally divided into prioritized categories, such as:  
- the diseases of concern and their prevalen ce in the species for export and any closely 
related species in the exporting country and surrounding areas; 
- the epizootiology of the diseases of concern; - the effectiveness of the dis ease surveillance and monitoring systems in the exporting 
zone/country and the powers of the government administration over the movement of 
fish and fish diseases; 
- the sensitivity and specificity of diagnostic tests for detection and identification of the 
pathogens of concern. 
The identified risk factors could also be furthe r broken down into more specific topics as follows: 
(a) Country factors concerned with the diseases present in bo th the exporting and 
importing country or region and would include factors such as disease prevalence, disease 
characteristics (methods of spread, clinical si gns, carrier state and reservoir species) and the 
prevalence of residual infection;  the estab lishment/facility factor (the presence of known 
vectors, presence of anadromous fish to wate r supplies, means of processing);  assessment of 
monitoring services (import/export policies and legi slation) and transportation.  Destination 
factors were also a consideration but would n eed to include host susceptibility and the end use 
of the import.  These factors would be considered for each disease of concern. 
(b) Commodity factors, mainly applicable to  the diseases present in the fish or products 
rather than live animals.  These were genera lly concerns related to whether any infected 
material was removed after slaughter, the pathoge n survival rate after processing (storage and 
transit temperatures, processing plant waste and disposal practices, elimination during storage) and the volume of any permitted trade (disease introduction is directly proportional 
to amount imported).  Specific exposure factors re lated to the use of the product could also be 
considered in this category, or form a separa te topic dealing specifically with the probability 
of a susceptible species being infected and transmission of a disease.  
(c) Risk reduction factors could be considered  to include options available to reduce the 
probability of introducing a disease agent.  These mi ght include factors such as the origin of 
the product, selective destination establis hments and specified product processing or 
treatments.  
6.20 The risks were identified by drawing up a list of potential diseases of concern that would be 
associated with the importation of the fish product,  followed by an examination of the consequences 
of their entry and establishment.  In addition, it was  prudent to identify management options to 
further reduce the likelihood of disease entry and to  consider the socio-economic and environmental 
impact of disease establishment. 
6.21 Dr. Rodgers indicated that actual histor ical data was required for a quantitative risk 
assessment, since it was necessary to define th e distribution of the probability of a disease 
introduction.  For disease prevalence, this informat ion would come from surveillance and monitoring 
programmes.  In the absence of reliable data, a qualita tive risk assessment might need to be performed 
particularly for factors related to the poten tial pathogens themselves, such as pathology, 
epizootiology, control, survival and inactivation.   A certain amount of assumption might also be    WT/DS18/R 
   Page 99  
 
necessary in these cases, although a worst case scenario could be adopted, even if expert opinion had 
been included as a short term subs titute for actual documented data. 
6.22 Dr. Rodgers noted that the current OIE gui delines for undertaking risk assessment were being 
completely rewritten and a draft should be available shortly. Whilst not specifically referring to fish, 
the principles would be applicable to aquatic anim als and their products in general terms, as in the 
current version.  Consequently, this would pr obably entail a change in the OIE guidelines for 
importation of aquatic animals and their products, as detailed in th e International Aquatic Animal 
Health Code. 
6.23 Dr. Wooldridge  identified the following minimum requirements of a risk assessment, 
providing an explanation for each. 
Requirement 
A. A risk assessment must be transparent, 
that is it must be clearly set out, and 
fully referenced in the risk assessment 
report produced.  Explanation 
B. The risk which the risk assessment 
evaluates must be defined and clearly 
set out.  For an import risk assessment this 
includes the definition of the 
commodities to be included in the 
assessment and the definition or description of the outcomes of interest.  For an import risk assessment these 
outcomes will usually be the various 
identified unwanted consequences . 
C. The hazard or hazards to be 
addressed must be defined and 
clearly set out.  If a particular hazard 
has not been specified in the request for a risk assessment, this will require a hazard identificatio n of appropriate 
breadth.   A decision must be made as to which 
are the hazards of interest.  If the 
decision is that all disease-causing 
organisms are of interest, then a  hazard identification to identify all disease-causing organisms potentially 
in the commodities of interest must be 
undertaken.  
D. The potential pathways from the 
hazards of interest to the outcomes of interest  (that is the sequence of 
events necessary) must be elucidated, 
and clearly set out.  Details of any processes incorporated in this pathway (for example testing for 
infection) must be  fully referenced 
where appropriate.  
  These pathways will be based upon the 
(mainly biological) requirements necessary to arrive at the defined 
outcomes and are most clearly 
illustrated as a series of steps in a diagram.  Full referencing allows for transparency.  For most import risk 
assessments, there will  be (either 
implicitly or explicitly) a risk release assessment stage, an exposure assessment stage, and a consequences 
assessment stage, and outcomes will 
generally be consequences.  WT/DS18/R 
Page 100  
 
E. For each identified step in the 
pathway, information (data) must be gathered to evaluate the probability 
of that step occurring.  This may vary 
from hazard to hazard, and therefore must be hazard specific where necessary.  This information must be 
clearly set out, and the source of this 
information should be fully referenced.  The information (data) will be either 
qualitative or quantitative, depending upon availability and the type of 
assessment being undertaken.  The 
assessors should undertake a search which is as thorough as is practicable to find the most appropriate 
information for the assessment in 
hand.  Full referencing allows for transparency. 
 
F. The overall probability of the 
pathway of events from hazard to 
defined outcome actually occurring  is evaluated either qualitatively or quantitatively for each defined hazard 
and outcome, using the information 
obtained.  A  quantitative assessment also uses appropriate mathematical manipulations.  Reasoning, 
mathematical manipulations (where 
used) and conclusions must be fully set out.  A quantitative assessment must include a time-frame.   
This will be a probability given in 
either qualitative terms (for example 
high, low, negligible risk), or quantitative terms.  A time-frame may be actual time (e.g. risk per year) or 
quantity based (e.g. risk per batch). 
Dr. Wooldridge indicated that these basic requirements did not vary with the product or disease 
addressed.  The specific variations which would occu r in each stage of the table, depending upon the 
assessment required, were allowed for within the defined minimum requirements.  
6.24 With regard to the 1995 Draft Report, Dr. Wooldr idge observed that the major part of this risk 
analysis document comprised a very clearly set  out and transparent qualitative risk assessment. 
Included within the document were: 
- A short, clear executive summary wh ich  summarized all major points. 
- An introduction (Section 1) which included a definition of the risk analysis, and thus 
the risk assessment, being undertaken.  
- A background  (Section 2) which include d a brief overview outline of the risk 
assessment methodology, including the se quence of events n ecessary for unwanted 
consequences to occur (Section 2.2) and an  assessment of the current disease status of 
Australian salmonids, necessary for consequence assessment given a disease incursion by import (Section 2.9).  
- A section on risk factors (Section 3) which described the potential pathways from 
hazard to risk in detail and illustrated di agrammatically with an assessment, where 
appropriate, of the effect of each of these stages on the probability of viable 
disease-causing organisms successfully  passing through that step.  
- A section on diseases (Section 4) which in itially gave the results of the hazard 
identification, which  comprises a list of the defined hazards, or diseases, being 
considered in this assessment.  This w as followed by a fully referenced section on    WT/DS18/R 
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each disease hazard including, for each, a consideration of the factors involved in the 
evaluation of the probability of a di sease outbreak due to that hazard.  
- A discussion section (Section 5) whose risk  assessment part included summaries of 
the disease considerations, product conclusi ons, environmental concerns (including 
the current recorded Australian disease situa tion and the regulations  applied to other 
imported fish species) and consequence c onsiderations.  Also considered was 
evidence from the experience of fish importa tion into other countries, and that of 
Australia before the current regulations we re put into force.  The discussion initially 
considered each potential disease hazard and then, taking into account all the relevant 
factors, qualitatively evaluated the probability of an unwanted outcome from import of the commodities under consideration.  
In addition, risk management issues were  discussed, including  considerations in 
setting the level of risk.  Dr. Wooldridge specifically noted the following points made on page 217;  that the mere possibility of an imported product containing exotic 
pathogens was not sufficient to prohibit impor tation;  that Australia had rejected the 
impractical ‘zero-risk’ approach;  and that  quarantine decisions must be made based 
on the best information available and the most likely outcomes given that information.  There was therefore emphasis throughout on attempting to estimate probability rather than merely possibility.  In conclusion, in this analysis risk 
management recommendations were given resultant upon the probabilities estimated 
in the qualitative risk assessment. 
The 1995 Draft Report also included a glossary and appendices on draft import conditions, translating 
the findings into a recommended policy given in Appendix 6. 
6.25 Dr. Wooldridge summarized that the 1995 Draft Report was technically and scientifically a 
clearly and well executed qualitative risk assess ment with all essential requirements present, 
particularly with respect to the clarity of the rationa le for the conclusions reac hed.  She noted that she 
was not competent to comment upon the validity of the fish-related information given.  
6.26 With regard to the 1996 final risk analysis report, Dr. Wooldridge noted that this document 
resulted from the process of risk communication en tered into after the publication of the draft 
document.  It was divided into an executive su mmary and four sections.  The first section was 
described as a risk analysis, the second section cont ained the data used for the diseases identified as 
hazards.  The first two sections therefore included the final risk assessment for the risk of disease 
introduction, as well as the risk management conclusions and decisions.  These sections had 
counterparts within the draft document.  She expressed  the opinion that, for clarity of comparison, the 
risk assessment layout within related documents shoul d be broadly similar but, noted that here this 
was not the case. 
6.27 The third section of the 1996 Final Report was an economic assessment of the effect of the 
introduction of two of the diseases, and the final se ction contained the bulk of the responses to the 
draft risk assessment; that is, the results of the risk communication process.  These sections had no 
counterparts in the draft document.  
6.28 A risk communication process served two ma jor functions; it might identify inaccuracies in 
the risk assessment process;  and it would provide information regarding the acceptable level of risk 
amongst interested sections of the community.  These were two separate ty pes of feedback, with 
different implications.  In Dr. Wooldridge's view, each point in the documentation of such a 
consultation process should refer specifically, by cro ss-reference to the place in the initial risk 
analysis and risk assessment to clearly demonstrate whether, how and exactly where and why the WT/DS18/R 
Page 102  
 
communication process had modified and altered th e initial assessment, conclusions and resultant 
policy recommendations. 
6.29 New or altered ‘factual’ evidence or methodol ogy incorporated into the hazard identification 
or risk assessment itself should be clearly indicated, and it should also be immediately possible to see 
how this related to any altere d conclusions reached in the assessment.  This allowed the risk 
assessment, that is the estimation of the risk invol ved, to be agreed as an issue separate from any 
considerations of acceptable risk.  Any changes in recommended risk management policy due solely 
to the differing conclusions of the modified risk assessment should also be made clear.  
6.30 Any changes in the level of risk considered to be an acceptable risk by the risk manager after 
consultation during the communication process should be separately discussed and described and any 
resultant effect on risk management policy should be  clearly differentiated from the effects of an 
altered risk assessment. 
6.31 Dr. Wooldridge noted that this was not the case with this document as, although the risk 
communication responses were documented in the fina l section, the format of the risk analysis and 
risk assessment were very different from the draft.   This made it more difficult than it otherwise 
would be to identify differences, particularly of de tail, between the two risk assessments and exactly 
how they came about.  Nevertheless some highly significant differences were present. 
6.32 In comparing the 1995 Draft Report and the 1996 Final Report, Dr. Wooldridge noted that 
there were differences in format, clarity and tran sparency.  The first majo r difference was that the 
processes involved and conclusions reac hed in the actual risk assessme nt were much less clearly set 
out than in the draft.  The order had been altere d and the initial contents page (v) was particularly 
unhelpful in tracing the information sought;  data was often difficult to find. 
6.33 Partly due to the methodology employed and pa rtly due to the layout, it was more difficult (if 
not impossible) to disentangle the sections relevant  to the assessment of the risk from the sections 
relevant to a consideration of risk management issu es, in particular that of acceptable risk;  in her 
opinion this was a serious flaw.  In a risk analysis  care should always be ta ken to distinguish between 
assessed risk and acceptable risk.  
6.34 She further observed that the order of presen tation was confusing.  The major part of the 
information on the diseases themselves (Section 2) now came after the assessment in which that 
information was used (Section 1), as did an outline of "risk analysis" methodology (Appendix 1.7.7).  
The potential risk pathways considered were much less clearly laid out and less detailed than in the 
draft.  In particular Sections 1.3.2 (Risk An alysis: Considerations) and 1.4 (Risk Analysis 
Considerations) were, in her opini on, poorly set out (and in addition the headings were confusing).  
This made the reaching of relevant ass essment conclusions more difficult.  
6.35 The responses from the consultation process,  on which the changes in both risk assessment 
and risk acceptance were based, were documented in  the final two sections (Sections 3 and 4), and 
were not easily related to the changes made in th e final risk assessment as compared with the draft 
version.  A clear separation of the responses by cat egory (in particular whether concerning fact, or 
conclusion, or policy recommendations) and a system of cross-referencing these with their effect on 
the initial risk assessment data, risk estimate conc lusions and risk management issues would enhance 
clarity and comparison of the risk analysis. 
6.36 There was no obvious explanation as to why the finalised report should be less clear than the 
draft report.  In her opinion it was far less transparent. 
6.37 Dr. Wooldridge indicated that the next major difference was that the underlying basic 
methodology of the risk assessment had been altered.   Both draft and final document were qualitative    WT/DS18/R 
   Page 103  
 
assessments.  In the final document there was a di scussion of the impossibility, given information 
available, of undertaking any quantitative risk as sessment (page 24) and specifically, on page 25, the 
final document stated that "This paper discusses pot ential routes of entry to the aquatic environment 
but does not calculate the likelihood that exposure w ill occur.".  However, not only did the final 
document explicitly rule out the possibility of  a quantitative assessment, but the qualitative 
assessment then proceeded implicitly  on the basis that without quantification, the assessment could 
only be concerned with the possibility of agent entr y, rather than making any attempt to qualitatively 
ascribe probabilities based on the information available.  
6.38 This resulted in conclusions such as the following:  "There will be an unknown chance - with 
some degree of uncertainty about the confidence th at can be had in any estimation - that imported 
product will be infected." (page 50).  But we can work  this out before we undertake a risk assessment.  
6.39 In Dr. Wooldridge's opinion, looking only at the possibility  of particular consequences, rather 
than the probability , was neither an appropriate technical method nor adequate scientific outcome 
from a risk assessment.  This was the most important  difference between the draft and the final report. 
6.40 Dr. Wooldridge further observed that there we re differences in data used in the assessment.  A 
number of specific additional risk factors were cons idered in the final document, and this was an 
appropriate result of the communication process.  Those identified included, for example, biofilms on processing equipment (page 25), potential additional diseases (page 26) and a potentially incorrect assumption about the amount of salmon which would be cooked (page 30).  
6.41 Some data was present in th e initial risk assessment that did not appear to be present in the 
final assessment.  Examples included the tables of data  given in the section on risk factors in the draft 
document (e.g. page 17), although with the very di fferent format, it was difficult to be completely 
certain that it had not been included elsewhere.  She could find no explanation for the data having 
been left out.  
6.42 In summary, Dr. Wooldridge stated that in her opinion the risk assessment methodology in 
the 1995 Draft Report was superior to the 1996 Final Report, and technically acceptable, whereas that 
in the 1996 Final Report was not.  For the reasons given above, she did not consider that the 1996 Final Report met the explicit minimum methodological requirements of a risk assessment.  She noted that she was not competent to comment upon the specific information regarding the fish diseases 
identified, nor the completeness of the hazard iden tification, nor on the technical information on the 
processes which the fish undergo.  The accuracy a nd completeness of this information would of 
course affect the final conclusions from either assessment.   
Question 2.  The Panel notes that the government of New Zealand conducted a risk assessment 
with regard to the importation of Canadian Pacific  salmon in 1994 (submitted by both parties).  In 
what manner and to what extent do you consider th e risk assessment undertaken by New Zealand to 
be technically/scientifically relevant to the disput e at hand?  What is the relevance of the scientific 
evidence considered in the New Zealand risk as sessment to the Australian Final Report?  
6.43 Dr. Burmaster replied that the report completed by New Zealand in 1994 met the minimum 
requirements for quantification in a risk assessment of this nature.  In terms of the relevance of the 
scientific evidence, he noted that based on conversa tions with a biologist familiar with New Zealand 
and Australia, he believed that there were many  similarities between the conditions in the two 
countries.  From his perspective as a probabilistic risk assessor (but not as a fisheries biologist), he 
thought that New Zealand's Report resolved many - and perhaps all - of the issues between Australia 
and Canada.  If Australia did not agree that the Ne w Zealand's Report resolved all the issues between 
Australia and Canada, he thought Australia need ed to prepare a new risk assessment using 
probabilistic methods to quantify the risk s associated with different policies.  WT/DS18/R 
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6.44 Dr. Rodgers  indicated that the 1994 New Zealand government risk assessment, referring to 
the risk of introducing exotic diseases of fish through the importation of ocean-caught Pacific salmon from Canada, contained some factual information which was relevant to the dispute at hand.  As such 
it was useful background information.  Data limitati ons at the time of the report led to a combination 
of both qualitative and quantitative risk assessment s being carried out, although the latter was only 
concerned with one disease (furunculosis).  The assessm ent analyzed the available data in a competent 
scientific way and used the opinion of experts, where necessary, to supplement published information 
and provide a substitute for gaps in the data base.  Unfortunately, the l ack of data in certain important 
areas meant that assumed outcomes were qualitative a nd therefore some were not relevant to the 
current dispute, since non-validated opinion can be  open to different conclusions.  In addition, the 
conditions applicable to New Zealand might not be of equal importance to another country and 
additional risk factors might need to be consid ered in another assessment.  For instance, the 
environment, the fish species being farmed a nd the presence of susceptible host species would all 
have to be reassessed.  Consequently, a similar ri sk assessment undertaken by Australia, using the 
same information in support of additional risk f actors, might not arrive at the same conclusions. 
6.45 Of equal, if not more relevance, Dr . Rodgers indicated, was the recently published 
(October 1997) report by the New Zealand governm ent entitled "Import health risk analysis:  
salmonids for human consumption".  This was eff ectively a more comprehensive update to the earlier 
1994 Report, since it contained additional factual information on pathogen survival, inactivation and 
likely tissue levels.  In addition, the quantitativ e risk assessment model had been modified and 
improved by using alternative distributions for th e probabilities arising from expert opinion and the 
possible number of infected fish imported per tonne of product.  It was also a more global report 
because it considered farmed Atlantic salmon fro m Norway, wild Pacific salmon from the Pacific 
North West of America and farmed rainbow trout from Denmark.  As a result, two additional inputs were included, namely those of prevalence of infec tion of harvested fish and fish weight.  Taking 
furunculosis as an example again, one of the conc lusions had been that, whereas a qualitative risk 
assessment indicated that the risk of the introduction of Aeromonas salmonicida  (the bacterial causal 
agent of furunculosis) through importations of the commodity (products) was low, quantification of 
the risk further demonstrated that such an event w as unlikely to occur, particularly given the relatively 
low annual volumes which were likely to be imported. 
6.46 Dr. Wooldridge  replied that the New Zealand risk assessment addressed the question of 
import of the same commodity, ocean caught Pacifi c salmon from Canada, into New Zealand.  As 
with Australia, it also took into account the effect of evisceration and head removal.  It included a 
qualitative analysis, including an assessment plus management recommendations on the full range of 
hazards identified, and a quantitative assessment on one particular hazard, Aeromonas salmonicida.  
6.47 In terms of the qualitative analysis and assess ment, the potential pathway from hazard to 
unwanted outcome (the introduction of fish disease) was outlined on page 3.  This included steps 
involved in release (i.e. import of infected material ) and steps involved in exposure and transmission 
in New Zealand.  The main assessment consider ed 23 diseases as hazards.  These were all diseases 
included in the Australian risk assessment;  the one  considered in the Australian assessment but not 
included in the New Zealand assessment was Whirling Disease (Myxobolus cerebralis),  but it was 
stated earlier in the document that Whirling Disease was already present in New Zealand (page 10).  
6.48 Thus the same commodity was being assessed , and it was passing through the same processes 
in Canada before export.  The export or release ri sks for each disease associated with the export of the 
same grade, quality and processing of salmon at the point of export would therefore be the same regardless of their intended destination.  Up to th is point therefore, this assessment was completely 
relevant both scientifically and technically to the dispute and the Australian Final Report.  One would 
expect broadly the same data to be used, and the conclusions regarding the assessed risk of ‘release’ 
to be the same.  Any discrepancy would be a cause for further investigation.      WT/DS18/R 
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6.49 Differences in transit conditions, processi ng in the destination country, local exposure 
pathways, and susceptibility of local fish might be different, and data, assessment results and 
conclusions would not necessarily be the same for exposure and likely conseq uences.  However, the 
basic methodology should be similar, and was therefor e technically relevant.  In actual fact, despite 
the possibility of differing exposures etc., the Ne w Zealand qualitative assessment was for the most 
part similar in content, method and conclusions  to that in the draft Australian assessment.  
6.50 The New Zealand assessment also gave, for each  disease, a very clear summary of the reasons 
for the conclusion reached, and this was a very useful feature of the assessment.  From this it was 
possible to see which diseases were considered of ne gligible risk due to their release assessment 
results, and of the 23 considered, 15 were classified as  of negligible risk on this assessment alone.  Of 
the remaining 8, four were consider ed to be of negligible risk pa rtly because they require specific 
intermediate hosts not considered present locally, an d four partly because they were already present in 
New Zealand, although in all cases re lease assessment results  also played a prominent part in reaching 
the conclusions.  Nevertheless, the exposure pattern s and local disease situation (that is, the data used) 
could, for these eight, be compared directly with Australia if required, as could that for Whirling 
disease.  
6.51 Dr. Wooldridge also commented on the quan titative assessment as used  in the New Zealand 
Report.  In both countries assessments, furunculosis caused by Aeromonas salmonicida , was 
considered to be the most likely disease to be introduced.  The New Zealand assessment reached the 
conclusion, based on the release assessment result, that "Wild, oc ean-caught Pacific salmon from the 
west coast of North Ameri ca are unlikely to introduce A. salmonicida  when imported as headless, 
eviscerated fish" (page 35). It went on to say "How ever, because A. salmonicida is the one pathogen 
of salmon likely to be present in a high concentrati on in the muscles of diseased fish, it is the subject 
of a separate quantitative ri sk assessment" (page 36).  
6.52 The method used in this quantitative assess ment was based on Monte Carlo (stochastic) 
simulation, which allows real life uncertainty an d variability to be used in the distributions 
incorporated into the model.  Outputs, rather than being single point values, are also given as 
distributions, which can be illustrated graphically a nd analyzed statistically.  They therefore give 
much more information than a single point determ inistic model, and are in general the preferred 
method for such quantitative assessments. 
6.53 The assessment evaluated the risk of four  possible product presentations (page 56) but most 
importantly, the release assessment was explicitly  separated from the exposure assessment (e.g. 
page 58).  As with the qualitative assessment, this  release assessment was both scientifically and 
technically applicable to Australia as well as New Zealand.  Similarly, although specific import data 
(in particular estimated import tonnage per annum) and exposure r outes and susceptibilities might be 
different, requiring an exposure model different in detail, the technical methods employed in this 
quantitative assessment were fully a pplicable to any other import d estination including Australia. 
6.54 Dr. Wooldridge noted that a quantitative assessment required also the availability of 
appropriate data, and the Australian Final Report argued that such data was not available. However, it 
was clear from the New Zealand assessment that sources of data for the release assessment part, for this disease at least, did exist and in her opinion no convincing argument was made as to why such 
data could not also have been utilised by Australia .  She observed that there was generally much more 
data in existence for almost any quantitative risk assessment than at first sight seemed likely to be 
available.  However the source and type of such data was not always immediately apparent until a 
model was under development, when specific data  requirements could be fully considered.  
6.55 In summary, Dr. Wooldridge considered that all of the technical methodology and a large 
proportion of the scientific data used in the New Zealand risk assessment was relevant to both the 
dispute and the Australian Final Report.  She reca lled that she was not competent to comment upon WT/DS18/R 
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the accuracy of the fish-based data, but specifically  for that used in the release assessments and given 
the conditions specified, if it was correct for New Ze aland, then it was also correct for Australia.  
Question 3.  Canada argues that for a risk assessment to be appropriate it is not enough to 
claim/prove the possibility of risk.  According to Canada, one has to evaluate and give a certain 
probability of risk.  What is your view on this poi nt from a scientific/technical perspective?  To what 
extent, from a scientific/technical point of view, does one have to quantify, or use expressions which 
qualify, a risk in a risk assessment for the risk assessmen t to be deemed satisfactory?  To what extent 
can you establish the probability of occurrence of the risk involved when dealing with more than one 
disease agent?  
6.56 Dr. Burmaster  indicated that he agreed with Canada on this point.  He thought that a 
quantitative risk assessment using pr obabilistic techniques was the most appropriate tool for resolving 
this dispute between the two countries.  Although he  could not specify sharp boundaries as to what 
extent it was necessary to quantify, or use expressi ons which quantify, a risk for a satisfactory risk 
assessment, he considered that the current disput e certainly fell within the region where a fully 
quantitative risk assessment was nece ssary.  With regard to the est ablishment of the probability of 
occurrence of risk when dealing with more than one disease agent, he referred to his response to 
Question 4.  
6.57 Dr. Rodgers  replied that the difference between the possibility of risk and the probability of 
risk was largely based on the availability of relia ble data.  When there was insufficient data for a 
quantitative risk assessment it was n ecessary to undertake a qualitative an alysis instead.  Alternatively 
both types of analysis could be used to complime nt each other.  However, the more mathematical 
concept of quantitative risk assessment, which used probability distributions in a predictive way gave 
an indication of the probability of an event occurri ng.  On the other hand the same probability could 
not be generated from a subjective qualitative analysis , since only the possible outcome of an event, 
or series of events, could be generated using this  methodology.  In other words, quantitative risk 
analysis attached numerical equivalents to qualitative estimates and assumptions.  The quantitative 
approach was more accurate and ideally should be  used (data permitting) to provide a more valid 
answer to a potentially complex chain of interac tions.  However, this would mean that all the 
variables associated with an importation would need to be known with some accuracy in order that the 
risks could be established mathematically. 
6.58 The possibility and the probability of an  event occurring both embodied elements of 
likelihood and risk.  However, Dr. Rodgers was not aware of any pre-requisite to use the quantitative 
method, particularly in view of the lack of data in certain key areas of aquatic animal health.  This 
applied equally when dealing with more than one  disease agent, since, although many risk factors 
were common between different diseases, each dise ase might have unique factors to consider and 
each of these would have a variable quantity and quality of usable data. 
6.59 Dr. Wooldridge  indicated with regard to the question of probability versus possibility, that in 
her opinion, the requirement of a risk assessment was to evaluate the  probability  o f  r i s k .   S h e  
identified this as one of the minimum requirements (see response to Question 1).  Given the existence 
of a particular disease agent, one could always  construct a possible  infection transmission scenario, 
however improbable, and therefore demonstration of the possibility of successful transmission and 
disease was not adequate.  
6.60 However, the probability di d not have to be expressed quan titatively, and frequently it could 
not be. In qualitative assessment there was therefore the difficulty of what was meant by the terms 
used, for example high, medium or low risk, and s ubjectivity was a potential problem.  If there were 
several hazards being evaluated, it was often possibl e to distinguish between them and thus class them 
as high or low within the group being considered.  However, in import qualitative risk assessment and 
when dealing with a disease of serious consequen ces, one usually looked for something which could    WT/DS18/R 
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be described or classified as a "neg ligible" risk with respect to th e consequence of causing a disease 
outbreak.  That is, given all the data available,  the conclusion reached by most people with 
appropriate expert knowle dge would be that the likelihood of the organism passing through every 
necessary stage in the pathway fr om potential hazard to unwanted out come was highly unlikely. It 
was accepted that there was still a degree of subjectiv ity even in this classifi cation, and that was why 
the assessment must be fully transparent.   
6.61 Dr. Wooldridge further noted that regard ing initial qualitative classification, whatever the 
initial (unknown) risk, it was often possible to qua ntify the amount by which that risk could be 
reduced if certain safeguards are put in place.  Thus, given qualitative evidence that a "low" risk 
initially existed, it might be possible to deduce that a "negligible" risk existed after application of the 
safeguards and a quantitative assessment of the difference .  
6.62 With more than one disease agent, if a quantitative assessment could be undertaken for each 
disease, then it was possible to quantify the total ri sk.  However, individu al quantitative assessments 
were time consuming and might not be possible.   In any event, qualitative a ssessments were the type 
generally done initially.  
6.63 Whichever method was used, if any one of the diseases being assessed individually was 
considered by itself to present a risk, at a level ag reed by all concerned to be unacceptable to the 
importing country, then that commodity would not  be imported.  Given this, it was therefore 
necessary always to first assess each disease risk sep arately.  A problem only arose when each disease 
taken individually was assessed as representing a very low level of risk, and when those assessments 
were qualitative.  
6.64 In this situation, if each  individual risk had been classed as "negligible" it might be argued 
with some justification that the overall risk was th erefore negligible.  However, given some way of 
further ordering the risks within this "negligible" cat egory, it might still be possible to decide on that 
disease with the maximum risk.  In the approach ta ken by New Zealand in this situation, the disease 
with the highest assessed qua litative risk was quantitatively assessed.  Although not done by New 
Zealand, the maximum total risk could then quan titatively be assessed by assuming that each of the 
other diseases had the same level of risk.  This  would overestimate the maximum total risk.  
Variations on this method to more closely model the differences between the diseases might also be 
possible depending upon data available.  
6.65 Dr. Wooldridge additionally noted that it may be (for example due to 
immunocompromisation) that one disease pre-disposed to another.  The effect of this might be difficult to determine, as whilst this might increase th e risk of infection with a given disease, it might 
also increase the total detection rate of disease at inspection.  Where there were negligible disease 
levels for both, this might be assessed  as of little relevance either way. 
6.66 It was accepted that where a group of di seases were qualitatively class ed as other than very 
low risk, with no additional data, estimating the tota l risk would be difficult.  But the initial proviso 
above suggests the commodity would in that case be re jected in any event.  Further, where a disease 
was not low risk, then it was often likely to be because it was more prevalent and therefore more was 
often known about it; if this was the case, there may well data available to quantify that risk. 
6.67 Dr. Wooldridge summarized that, although it might not always be possible to fully estimate 
the total risk when dealing with multiple diseases, it was likely to be possible to come to usable 
conclusions about the probability of  the overall level of risk.   
Question 4.  In the event a sanitary measure deals w ith several diseases, in terms of risk 
assessment technique, does one need to assess th e likelihood of entry and establishment of each 
disease agent separately, all in combination, or bot h?  To what extent is it necessary to account for WT/DS18/R 
Page 108  
 
different characteristics of the hosts and disease agents;   of the use and disposal characteristics of the 
products?  Should the risk assessment also incl ude an assessment of the likelihood of entry, 
establishment and spread of the disease agent from imports of products of other species known to 
carry the same disease(s)?  From a scientific/technical point of view, is it valid to undertake a risk 
assessment either on a disease-by-disease basis or on a product-by-product ba sis, or could either 
approach be adopted?  What factors should be  considered when making such a decision?  
6.68 Dr. Burmaster  presented the following notation in his response: 
Nsa = number of fish species of concern in Australia 
Nsc = number of fish species of concern from Canada 
Nd = number of fish diseases of concern 
Np = number of pathways of exposure  
Ne = number of events to complete one pathway 
Nw = number of different weather conditions of concern 
No = number of other factors to include 
Ntot = total number of variables/distributions to assess 
Australia might say that it could not undertake a ri sk assessment for which it must develop probability 
distributions for Ntot variables: 
Ntot = Nsa • Nsc • Nd • Np • Ne • Nw • No 
Dr. Burmaster disagreed with such a position.  In  his opinion, New Zealand had shown how to reduce 
the "dimensionality" of the problem to a manageable  size by analyzing only certain combinations of 
Nsa, Nsc, Nd, Np, Ne, Nw, and No that were selected as the "most important" or "dominant" 
combinations.  
6.69 He also believed that New Zealand had dem onstrated how to reduce the dimensionality of the 
problem of different characteristics of the hosts  and disease agent, or of the use and disposal 
characteristics of the products, to a manageable size.  Dr. Burmaster indicated that the risk assessment 
should possibly also include an assessment of the li kelihood of entry, establishment and spread of the 
disease agent from imports of products of other species know to carry the same disease(s).  As a hypothetical example, fish disease D could arrive in Australia via the importation of frozen, eviscerated, and beheaded salmon from Canada with probability P
c.  The same fish disease could 
arrive in Australia via the importation of live, ornamental goldfish from Malaysia with probability 
P m.  If a risk assessment were to show that P c < P m, it would not make sense for Australia to ban the 
importation of the salmon from Canada and not ban the importation of the goldfish from Malaysia. 
6.70 When preparing the scope for a quantitative ri sk assessment, Dr. Burmaster  considered that it 
was essential for the risk assessor to cons ider both a disease-by-disease basis and a 
product-by-product basis.  He further observed that New Zealand had shown how to reduce the 
dimensionality of the problem to a manageable size by focusing on certain key combinations of fish 
species, pathways, events, etc.  Along the way, th e risk assessor(s) should use expert judgment to rank 
the importance of different combinations of species, diseases, pathways, etc. as a way to determine which combinations to quantify first.  This was always an iterative process.  As the risk assessment 
developed, new insights would deve lop that would allow the risk assessors to understand and place 
suitable emphasis on the most important combina tions of species, diseases, pathways, etc.  
6.71 With regard to the risk assessment technique, Dr. Wooldridge  replied that, as detailed in the 
previous question, one needed first to assess the likelihood of the unwanted outcome (here the    WT/DS18/R 
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establishment of disease) separately for each disease.  The outcome of this would determine the next 
step in the assessment, as detailed previously. 
6.72 Hazard identification would automatically  involve the initial host characteristics.  As 
indicated in her answer to question 1, it was nec essary to outline the steps in the pathway from hazard 
identification to unwanted outcome.  This would include  such things as inspection, processing etc.  If 
different disease agents had different  probabilities of being detected, inactivated, surviving in waste 
water, surviving whilst clinging to wrapping paper et c., then these characteristics must be taken into 
account.  For some of these aspects (for example dise ase detection) the specific host being considered 
might also be relevant.  For some of these characteristics (for example use of wrapping paper), use 
and disposal characteristics of the product might be relevant.  Whenever relevant, such factors must 
be considered.  In addition the susceptibility and di sease status of the potential hosts in the importing 
country were relevant.  
6.73 With regard to imports of other products  of other species known to carry the same disease, 
information on the existence of such products was im portant in two respects.  First, a comparison with 
other products might provide data necessary to asse ss the probability of exposure, transmission and 
consequences of a given disease post-entry within a country or region.  Secondly, the information on 
the existence of such products was an important part of the overall risk analysis (as opposed to the risk assessment) and should be sought as part of that analysis.  If such products were known to exist, it 
was relevant to the setting of acceptable levels of risk  and therefore to the risk management part of the 
whole risk analysis.  
6.74 Dr. Wooldridge considered that whether a co mplete risk assessment of any other particular 
product was required depended on the precise situatio n;  in certain circumstances it might be enough 
to demonstrate that a particular product containing a given disease agent, and subject to similar use 
and disposal pathways, had b een imported regularly for many years with no detected disease 
consequences.  
6.75 The approach to a risk assessment depended upon the initial risk for which an assessment was 
required.  If the question asked was "What is the ri sk of an exotic disease being introduced with 
product X?", then the hazard identification require d that all exotic diseases potentially present in 
product X were identified, and the risk for each a ssessed.  If the initial ques tion asked was "What is 
the risk of introducing exotic disease Y into co untry Z?" then the hazar d was disease Y and the 
potential pathways for import which would need to be  considered included the initial identification of 
all products which could potentially contain disease agent Y and were (or might be) imported into 
country Z.  Thus the crucial factor in the initial ap proach was the question asked  (i.e. the risk to be 
assessed).  Either approach was perfectly valid de pendent upon the risk to be assessed.  The exact 
question asked depended on the underlying reasons fo r the risk assessment being undertaken and was 
likely to be a risk management decision, although input from the risk assessor was frequently sought.   
Question 5.  Australia contends that one cannot compa re the risk posed by other aquatic animals 
or products hosting any or all of the same disease agents with those posed by uncooked salmon in the 
absence of a risk assessment for those other aquatic animals or products.  What is your view?  
6.76 Dr. Burmaster  referred to his answers to Question 4, above. 
6.77 Dr. Wooldridge  recalled her answer to question 4, i ndicating that there were circumstances 
where it was valid to compare the ri sk posed by other aquatic animals or products hosting any or all of 
the same disease agents with those posed by uncooked salmon, even in the absence of a risk 
assessment for those other aquatic animals or products .  In any risk assessment, the more information 
available the less uncertainty in th e final result.  A full risk assessment for these other products might 
well markedly reduce uncertainty in the risk assess ment under consideration;  less than a full risk 
assessment was likely to re duce uncertainty by a lesser amount.  Nevertheless such information as WT/DS18/R 
Page 110  
 
was available might be adequate to reduce uncertainty  to negligible levels for a given situation under 
consideration;  much depended upon the level of sim ilarity.  Such information should not be ignored.  
Question 6.  Canada contends that for any given disea se agent, the consequences of the disease 
becoming established in an importing country would be  the same regardless of the original imported 
source.  In your view, is this st atement technically/scientifically correct?  
6.78 Dr. Burmaster  responded that the statement was correct;  he could not think of a 
counter-example to this principle. 
6.79 Dr. Rodgers  replied that this statement was proba bly generally correct, although there were 
degrees of severity for some disease agents and th e consequences of disease establishment could vary 
depending on the nature of the pathogen and th e genetic basis of the indigenous species.  The 
consequences might be limited de pending on the efficiency of the responsible monitoring service and 
subsequent early detection.  The presence or ab sence of a susceptible host species and unfavourable 
local conditions might also limit the spread, since th e death of only a few fish could go unnoticed.  
The costs of control or eradication would vary too for the same reasons.  The nature of the original 
import would have a bearing on the possible con sequences because the risk s for dead (processed) 
product would be different compared to that from live fish imports.  The economic consequences 
might also be different, since there would be a poten tial negative effect on the local industry following 
the introduction of highly competitive cheaper fish product from a guaranteed aquaculture source.  On 
the other hand, a finite resource, such as wild ocean-caught fish, might have less impact because it 
might not be able to compete as aggressively in te rms of cost or quality.  This of course might occur 
the other way round depending on the overheads atta ched to bringing each commodity to the market. 
6.80 It was also relevant to consider that f actors other than the presence of a pathogen were 
important in the consequences of disease entry, b ecause some diseases were more serious in certain 
areas than in others (e.g. infectious haematopoietic necrosis (IHN), V. ordalii  and Piscirickettsia 
salmonis ).  On the other hand, certain diseases only o ccurred in a limited area, such as infectious 
salmon anaemia (ISA) in Norway, Oncorhynchus masou  virus in Japan, epizootic haematopoietic 
necrosis (EHN) virus in Australia and Ceratomyxa shasta  on the Pacific northwest coast.  It might be 
that these diseases could not establish themselves in  other regions because the necessary combination 
of environmental factors, susceptible species and husbandry practices did not exist elsewhere. The 
opposite might also be true in that they could b ecome very successful at establishing themselves in a 
new environment and be extremely virulent.  The reason for their current "containment" might rely 
partly on efficient monitoring and subsequent m ovement controls and partly on the fact that 
development of aquaculture with the exact cond itions necessary for their establishment had not yet 
occurred in other areas or countries.  
6.81 Dr. Wooldridge  replied that once a given disease was established country-wide in an 
importing country, the consequences from that point on would be the same whatever the original 
imported source or manner of establishment.  However, any regional variation in disease 
establishment might conceivably affect the conseque nces, in particular the short to medium term 
consequences, and regional variation in disease estab lishment might be source-related.  Long-term 
consequences would converge if the disease then became established country-wide.  
6.82 This could be illustrated by assuming that Product A, containing agent K was imported into 
region W of country Z, but the product had no furt her widespread distribution in that country.  
Region W contained no susceptible animals of ec onomic importance, although it did contain 
susceptible animals of no economic importance.  One possible consequence was that disease K 
became established locally in Region W of importing country Z.  In this scenario there were short-
term biological consequences but no short-term ec onomic consequences.  Given these circumstances 
it might also be an undetected consequence.    WT/DS18/R 
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6.83 To continue the example, one could assume  that Product B, a different source but also 
containing disease agent K, was imported only into Re gion X of country Z, a region where there were 
susceptible animals of economic importance.  Lo cal establishment of disease K would then most 
probably result in both short-term biological and eco nomic consequences.  That is, given a different 
product source with a different import distribution, some of the short-term consequences of disease establishment would be different because the manner of initial establishment was different.  Whether, 
given time, the disease would then spread from either region to become established country-wide would depend upon many country specific factors incl uding, for example, animal migration patterns, 
agent virulence, climate, geographical barriers, hu man working patterns and so on.  Therefore, when 
using information derived from the importation of ot her products or products from other sources in a 
current risk assessment, information on the ubiquity  and history of that comparison import was of 
particular relevance.  
The distribution and transmission of fish diseases  
Question 7.  Which disease agents (or strains of disea se agent) have been identified as present in 
Canadian  (i) adult, wild, ocean-caught Pacific sa lmon;  (ii) adult wild freshwater-caught Pacific 
salmon;  (iii) adult Pacific Salmon cultured in seawa ter on the Pacific coast;  (iv) adult Atlantic 
salmon cultured in seawater on the Pacific coast;  (v) adult Atlantic salmon cultured in seawater on 
the Atlantic coast?  Please comment on the respon ses provided by Australia and Canada in this 
regard and in particular, the discrepancies in the answ ers provided by parties (7 October submissions 
"Responses to Questions", Question 2).  In your vi ew, what degree of scientific confidence is there of 
detecting the occurrence of diseases or disease agents given existing met hods of monitoring and 
surveillance?  
6.84 Dr. Rodgers  responded that some diseases reported to  occur in the above categories include: 
(i) adult wild ocean-caught Pacific salmon:  bacterial kidney disease (BKD), Kudoa  
thyrsites , Parvicapsula  sp., plasmacytoid leukaemia (marine anaemia); 
(ii) adult wild freshwater-caught Pacific salmon:  BKD, Ceratomyxa shasta  , enteric 
redmouth disease (ERM), flexibacteriosis, furunculosis, infectious haematopoietic 
necrosis (IHN), Loma  salmonae , plasmacytoid leukaemia (marine anaemia), 
proliferative kidney disease (PKD); 
(iii) adult Pacific salmon cultured in seawater on the Pacific coast:  BKD, Parvicapsula  
sp., piscirikettsiosis; 
(iv) adult Atlantic salmon cultured in seawa ter on the Pacific coast:  IHN, pancreas 
disease (PD), piscirikettsiosis, viral haemorrhagic septicaemia (VHS): 
(v) adult Atlantic salmon cultured in seawater on the Atlantic coast:  BKD, ERM, 
furunculosis, infectious salmon anaemia (ISA), Vibrio salmonicida . 
Dr. Rodgers noted that he had not been able to undertake a complete literature survey for each disease 
in each of the above categories due to the time ava ilable to respond to the questions.  Neither had it 
been possible, for the same reason, to solicit a dditional information, in the form of personal 
communication, directly from other sources.  Consequently, the above list of diseases was not exhaustive and it had not always been possible to id entify which maturity state any particular disease 
had been isolated from (i.e. juvenile or adult).  In  addition, the identification of a particular disease 
agent did not imply that it occurred regularly, si nce only an occasional occurrence may have been 
reported in the literature.  Other diseases, such as some parasitic (e.g. protozoal, etc.) or bacterial (e.g. 
vibriosis) conditions, occurred on a more global scale and would be expected to be ubiquitous. WT/DS18/R 
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6.85 There were discrepancies in the responses from both countries in regard to the question 
concerning the presence of certain disease agents in Canadian salmon.  The answer from Canada was 
more detailed in the sense that it further subdivided the categories of salmon into the above five 
groups.  As a result, this was more accurate, useful  information and conseque ntly had probably led to 
the majority of differences betwee n the two responses.  For instance, the presence of furunculosis in 
wild-caught Pacific salmon was acknowledged by both  countries but Canada qualified the answer by 
stating that it did not, however, occur in ocean ca ught fish, only in freshwater caught fish and cultured 
stocks.  The same was true for enteric redmouth disease, which Canada contended did not occur in 
ocean caught Pacific salmon, nor in farmed salmon (A tlantic and Pacific species) on the Pacific coast.   
6.86 In other responses Australia indicated un known or uncertain presence, due to lack of 
definitive scientific work or difficulty in detection, by the use of a question mark (i.e. Yes? or No?).  
In all these cases, Canada supplied a definitive "yes" or "no".  The main discrepancies related to 
conflicting responses concern the presence of vibriosis ( V. anguillarum  and V. ordalii ) in wild-caught 
Pacific salmon, Pacific salmon anaemia virus (E IBS) in Pacific salmon, viral haemorrhagic 
septicaemia (VHS) in farmed Atlantic salmon, proliferative kidney disease (PKD) in wild-caught 
Pacific salmon and infectious salmon anaemia (ISA) in farmed Atlantic salmon on the east coast.  Canada specifically stated that EIBS and PKD were not known to occur in any of the five categories 
of salmon.  Although there were a few reports in the scientific literature of these two diseases occurring in Pacific salmon in Canada, it was most pr obable that they referred to juvenile fish rather 
than adults and consequently the statement that they  did not occur in adult fish would be true.  As 
regards vibriosis in wild-caught Pacific salmon, the condition was likely to be widespread in the 
marine environment but in this particular case it was not clear which specific references had been used to prove or disprove this point.  The occurre nce of VHS in Canadian Atlantic salmon, which was 
not mentioned in the Australian response, represen ted 1995 published information which presumably 
the Australian case was not aware of  at the time.  The presumptive diagnosis of ISA in Canadian 
farmed Atlantic salmon was verbally reported in an  international conference of fish pathologists in 
September 1997, but the current status of ISA was not  listed by Canada in its responses to questions.  
However, this was perhaps not surprising since it was an addition to the Australian Final Report (in 
place of Kudoa  thyrsites ) and appeared for the first time in the responses to panel questions.  
Therefore, it was most likely that Canada was unaware that it had to comment on the current status of 
this disease. 
6.87 Dr. Rodgers observed that there was mu ch reliance in both submissions on personal 
communications with respected fish pathologists and these should be accepted at face value, since it 
was not possible to corroborate all this information within the current time frame.  However, such 
information was usually based on more recent da ta and was usually unpubl ished, although it could 
contain an element of subjective opinion and assu mption.  The Canadian information was broken 
down into more relevant groups, since they had greater access to data from research projects, veterinary reports and monitoring and surveilla nce programmes, which were not always readily 
available to the general scientific community.  Co nsequently, this should represent the most accurate 
up-to-date picture for the diseases of concern, sin ce information in the published scientific literature 
could be quickly out of date and many histor ical published reports were not followed up by 
subsequent more recent studies. 
6.88 The degree of scientific confidence in diseas e detection with existing methods of monitoring 
relied on the lowest limits of detection for each sp ecific test or series of identification methods.  
Currently, there were some difficulties with the isola tion of some fish viruses (e.g. PD, ISA, etc.) or 
bacterial strains (e.g. the lengthy incubation time for Renibacterium salmoninarum  , the causal agent 
of BKD).  In addition, there was a cut-off sensitivity  point for most diagnostic methods which leads to 
the carrier state being very difficult to detect, ex cept with the most sensitive of tests (e.g. PCR).  
However, even these tests had limits of sensitivity,  which were albeit very low, and they did not 
always rely on culture as a prerequisite for iden tification.  Nevertheless, these deficiencies in 
sensitivity for existing methods were generally accep ted in terms of both their supportive science    WT/DS18/R 
   Page 113  
 
(pending improvements) and the legislative policies th at stipulated their use in regular surveillance 
programmes.  
6.89 Regardless of the reason for carrying out a disease examination there was a need for some 
form of standardized sampling methodology whic h would allow a reasonably accurate assessment of 
the health status of a particular stock to be made.  While local conditions in respect of the cultured or 
wild species and the presence of specific diseases might  vary considerably, th e principles of such a 
sampling methodology tended to re main constant.  For a correct disease diagnosis it was often 
necessary to demonstrate the presence of the pa thogen by culture, followed by some form of 
confirmatory serological test.  However, there we re certain measures that could be employed to 
increase the chances of detecting the presence of a pa thogen.  For clinical outbreaks it was usually 
prudent to sample moribund fish exhibiting clinical signs  but at the same time selecting certain target 
tissues.  Testing fish with the minimum or abse nce of symptoms (e.g. the "asymptomatic carrier" 
state) would normally be biased towards any fish w ith possible clinical signs, selecting the correct age 
of fish (e.g. at least one-month old fry in the case of  infectious pancreatic necrosis (IPN) or screening 
five-month old fish for whirling disease) and sampling during periods when the disease was most 
likely to be detected (e.g. February-April in Europe  for BKD).  Examination of fish with no suspicion 
of disease for screening purposes would also consider  these factors but in addition would sample a 
sufficient number of fish for effective sampling.  This number was usually based on the work of 
Ossiander and Wedemeyer (1973), as stipulated in  the OIE Diagnostic Manual for Aquatic Animal 
Diseases.  This study indicates the minimum sample size for each lot of fish that provides a 95 per 
cent confidence of including infected specimens in  the fish sampled, assuming a minimum prevalence 
of infection equal to or greater than 2 per cent, 5 per cent or 10 per cent.  For instance, 150 out of 100,000+ fish need to be sampled at the 2 per cent leve l.  This is reduced to 30 out of 100,000+ fish at 
the 10 per cent level.  Testing for statutory pur poses was generally conducted at the 95 per cent level 
of confidence with an assumed incidence of disease  of 2 per cent.  Occasionally, there might be 
justification for increasing the level of confidence fro m 95 per cent to 99 per cent (i.e. 225 fish at the 
2 per cent level) for a particular examination.  Ho wever, any subsequent increase in sample size gives 
a negligible increase in the statistical pr obability of finding an infected specimen. 
6.90 Despite attempts by various  international organisations, such as EIFAC, FAO and OIE, to 
discuss the possibility of producing a uniform system of monitoring, none really existed on a world-
wide scale.  Individual countries (e.g. Australia, Canada and the United States) or whole trading 
blocks, such as the European Union, had develope d their own baseline rules relating to importations 
and these were well formed for those countries which had a heavy involvement in aquaculture or had 
an important sport fishery.  In this context the receiving country or trading block tended to set the 
conditions of importation.  
6.91 Dr. Rodgers noted that one other aspect to c onsider was that regularly tested stocks were 
normally considered as a lesser risk than occasionally, or untested stocks or products, since regular monitoring provided a background database of info rmation over time.  For instance, it would be 
considered that ova from wild salmonids would pr esent a greater disease risk than ova from farmed 
stocks since the latter could be tested regularly thro ughout their lifetime.  Esti mates of prevalence data 
were usually based on surveillance information obt ained from fish health authorities in potential 
exporting countries but such data were generally limited to those countries that had statutory 
monitoring in place.  This type of data, however, was actually designed to overestimate the prevalence 
of infection in commercially harvested fish, sin ce the monitoring programme targeted fish from which 
an infectious agent was most likely to be isolated , such as spawning fish, fry or fingerlings and fish 
exhibiting signs of infectious disease, as mentioned above.  Unfortunately, this was rarely the case for 
wild populations of fish because regular monito ring programmes did not normally exist, unless 
diagnosis was related to the occurrence of large, noticeable mortalities.  However, sampling returning 
anadromous salmonids in their freshwater phase w as occasionally the exception.  Post-harvesting 
testing for disease in fish destined for huma n consumption was very  rarely undertaken. WT/DS18/R 
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Question 8.  What aquatic animals, other than salmonids,  are known to be carriers of any, several 
or all of the disease agents subject to this dis pute?  Please comment on the responses provided by 
Australia and Canada in this regard (7 October s ubmissions "Responses to Questions", Question 3).  
Would the epidemiological factors relevant to  disease transmission be the same in all cases?  
6.92 Dr. Rodgers  replied that it had not been possible to undertake a comprehensive literature 
search to determine which aquatic animals, other th an salmonids, were known to be carriers of any, 
several or all of the disease agents subject to this  dispute.  However, an examination of the lists 
provided by both Australia and Canada indicated th at they were comprehensive and authoritative.  
The list from Australia tended to be more general in content and used phrases such as salmonids, 
cyprinids or a wide range of salmonids, whereas th e list from Canada was more detailed since it listed 
the relevant species separately.  However, the Ca nadian list was incomplete because it did not deal 
with all the diseases, although the original ques tion concerned "... any, several or all of the 
diseases ..." and there did not seem to have been a sp ecific requirement to detail all species for all the 
diseases.  Nevertheless, since the Canadian list did not include Piscirickettsia salmonis , 
Renibacterium salmoninarum  (BKD), Vibrio ordalii , herpesvirus salmonis type 1, Pacific salmon 
anaemia virus, salmon leukaemia virus, salmon pancreas disease virus (PD), Enterocytozoon 
salmonis , Loma salmonae , Ceratomyxa shasta , Henneguya salminicola , Myxobolus cerebralis , 
Parvicapsula   spp., proliferative kidney disease (PKD), rosette agent and infectious salmon anaemia 
(ISA), the Australian list was more useful in this respect.  Neither list included  Kudoa thyrsites , 
which to all intents and purposes was wide ly distributed and ha d a broad host range. 
6.93 Disease transmission combined many biological, behavioural and environmental factors that 
were interrelated.  The epizootiological factors relevant to disease transmission would not necessarily 
be the same for each disease, since they were complex and numerous, although the general aspects 
were common.  Fish diseases manifested themselves as a result of a variety of circumstances, such as 
genetic background, nutrition, stress, injury or  cohabitation.  The relationship between disease 
epizootics among fish and fish stocking densities was important, since overcrowding of fish was often 
followed by infections of opportunist bacteria, fungi or parasites.  Non-infectious disease that 
occurred as a result of fish culture mis-management could also be prevalent in these circumstances.  
Some fish pathogens were a cons tant and natural part of the environment, usually without causing 
disease problems and mortality (e.g. certain parasites) .  There was a unique relationship between fish, 
their pathogens and their environment which meant that a balance normally existed between the three 
factors, with the fishÿs immune system playing an active role in maintaining this balance.  However, 
if there was an alteration in one or more of the environmental characteristics then there might be a shift in the balance to the benefit or detriment of either the fish or the pathogen.  Another relevant 
disease-causing factor was the introduction of a potential pathogen into an already stable 
environment.  The introduction of different types,  strains or novel pathogens  could upset the natural 
balance of a fish population.  Indigenous fish deve loped a degree of immunity to relevant pathogens 
in their environment but they may never have encountered new strains.  
6.94 The reasons for a disease outbreak were va ried, representing complex interactions between 
the host and the disease-causing situation.  In the cases of host-pathogen interactions, the onset of 
disease represented a decrease in the resistance of the host such as during reproductive stages or due 
to environmental stress, poor husba ndry conditions, in conj unction with an increase in numbers and/or 
virulence of the pathogen.  However, it was not clear what was the maximum number of cells which 
constituted a genuine infection, since there was a bi g difference in the number of cells required to 
establish clinical disease in aquatic animals.  Th is might range from 1 (e.g. crayfish plague) to 100 
(e.g. furunculosis) or more (e.g. BKD). 
6.95 Dr. Rodgers stated that it was generally accep ted that four major groups of disease might be 
identified in terms of epizootiology.  These include d sporadic diseases, which occurred sporadically in 
comparatively few numbers of a population; epizootics, which were large-scale outbreaks of communicable animal disease occurring temporarily within limited geographical areas; panzootics,    WT/DS18/R 
   Page 115  
 
which occurred over large areas; and enzootics, wh ich persisted or re-occurred as low level outbreaks 
in certain areas. 
6.96 It had been suggested that dense populations of fish would maintain a given level of diseased 
individuals, regardless of whether the populations we re shoals in the sea or aquacultured stocks.  
However, there was a generally accepted lack of in formation about the occurrence of disease in wild 
fish.  Most studies related to the potential effect s of pollution on free-living marine fish and the 
incidence of disease in returning anadromous sal monids.  Much less information was available on 
disease transmission between wild and aquacultured fish and vice versa . 
Question 9.  The 1996 Final Report (as well as its earlie r drafts) only deals with wild ocean-
caught adult Pacific salmon.  In your scientific/technical opinion, do any imports of aquatic animals 
or aquatic animal products, other than salmonids, in to Australia entail the same (or even higher) 
risks with respect to the introduc tion of the identified diseases as those that would arise from the 
import of uncooked salmon from Canada (either on a disease-by-disease basis or in an overall 
manner)?  Please explain the basis for your opinion.  
6.97 Dr. Rodgers  replied that the importation of several other groups would pose a potential risk 
of disease introduction that would probably be at least as high, if not higher, than that posed by the 
importation of uncooked salmon from Canada.  These groups would include any live ornamental fish, 
bait fish and trash fish for feeding aquacultured species.  It was not possible to predict though, without an import risk analysis study, which of these represented the highest risk.  However, importation of 
live fish for stocking of open waters containing indi genous fish, and the feeding of trash fish or bait 
fish directly to aquacultured species as a feed s upplement or substitute would probably be the most 
important in terms of risk.  Escapees from a closed system into an open waterway could also be a problem.  The arrival of furunculosis into Australia  via imported goldfish or into Norway via salmon 
smolts and the first reported outbreaks of VHS in  turbot from Scotland and Ireland helped to support 
the hypotheses of live fish importation and feeding respectively. 
6.98 A recent risk analysis report (October 1997), by the Western Australian Fishing Industry 
Council on the practice of importing frozen fish as bait, considered the possible introduction of 
viruses that could have an impact on the rock lobste r industry.  The resulting analysis was not able to 
distinguish between a very low risk of introduction and no risk at all.  The report stated that the analysis could not conclude that there was no risk of  introducing an exotic disease only that the risk of 
introducing an exotic disease that was capable of pr oducing a large scale fish kill was either very low 
or did not exist at all.  In conjunction with this  conclusion the report identified a series of risk 
reduction measures that could be implemented for frozen bait. 
Question 10.  Canada contends that for a given disease agent, the likelihood of disease 
establishment is higher for imports of whole, un eviscerated bait fish and for live fish known to host 
that disease agent than it is from imports of unc ooked salmon for human consumption. In your view, 
are these contentions corroborated by scientific/techni cal evidence?  If not, what factors would be 
needed to substantiate those views?  
6.99 Dr. Burmaster  responded that this seemed highly likely  to him, but he had no independent 
information to support or refute such an opinion.  
6.100 Dr. Rodgers  replied that it was probably true to say that for a given disease agent, the 
likelihood of disease establishment was higher for imports of whole, non-eviscerated bait fish and for 
live fish than it was from imports of uncooked salmo n for human consumption.  However, the actual 
level of risk would be important and the opinion e xpressed in Question 9 was also relevant here.  It 
was also a fact that there were  complex processes that lead to di sease establishment (see his response 
to Question 8).  In addition, the final destination of  a particular consignment would have an impact on 
potential disease establishment.  For instance, a lic ensed, carefully controlled import of a live fish WT/DS18/R 
Page 116  
 
species destined to be confined fo r research purposes would entail a very much lower risk than open 
water stocking.  The same considerations would apply to processing establishments, since 
uncontrolled waste discharges could be a factor in po ssible disease transmission (e.g. ISA in Norway).  
It was also worth noting that comprehensive contro ls that prohibited the importation of certain species 
and products or failed to differentia te adequately between an ornament al species and a wild fish with 
the same taxonomic name might promote an illegal, difficult to control, underground trade.  This had 
probably been a factor, for instance, in the introducti on and spread of spring viraemia of carp in the 
United Kingdom in recent years, although the elevat ed value of certain cyprinid species for sport 
fishing might also be important in such cases. 
Question 11.  In their 7 October "Responses to Questions ", Question 3, both Canada and Australia 
identify, for diseases subject to the dispute, non-sa lmonids which may also be carriers of these 
diseases.  However, Australia seems to contend that a separate risk analysis may be necessary for 
these non-salmonids.  In your view, can the risks represented by these non-salmonids be compared to 
those which arise from salmonids?  If one p resumes that the risks posed by salmonids are 
unacceptable, are there any scientific or technical rea sons for not making the same presumption with 
respect to risks of the same disea ses from non-salmonids?  What factors should be taken into account 
in comparing the risks of entry, establishment or spread of a disease for one or several disease agents 
know to be carried by salmonids as well as non- salmonids?  Can the data and findings contained in 
the Australian Final Report dealing with wild oce an-caught adult Pacific salm on be validly used in a 
risk assessment for the four other categories of salmon from Canada (see Question 7)?  
6.101 Dr. Burmaster  recalled his answers to Question 4.  He believed that the risks represented by 
non-salmonids could be compared to those which ar ose from salmonids.  With regard to making the 
same presumption of the acceptability of the risks posed by salmonids and non-salmonids for the same disease, he indicated that it all depended on the particular evidence.  As discussed in his answer 
to Question 17, below, a risk assessor could answ er this question by developing and combining 
probability distributions for the variables flowing from the seven conceptual steps identified by New 
Zealand.  To identify what factors should be take n into account in comparing the risks of entry, 
establishment or spread of a disease for one or se veral disease agents known to be carried by 
salmonids as well as non-salmonids, a risk assessor must develop and combine probability distributions for the two (or more) scenarios.  Dr. Burmaster did not believe that the data and findings 
contained in the Australian Final Report dealing with  wild ocean-caught adult Pacific salmon could be 
validly used in a risk assessment for the four  other categories of salmon from Canada because the 
1996 Final Report did not meet the minimum standa rds for a risk assessment.  New Zealand's final 
risk assessment did meet the minimum standards for a risk assessment and, as such, might contain an 
answer acceptable to the parties in this dispute.  If the parties could not agree on the findings in New 
Zealand's Final Report, he did not think that the current dispute could be resolved without a new 
quantitative risk assessment using probabilistic methods.  
6.102 Dr. Rodgers  indicated that the basic underlying risk assessment would be the same but a 
good risk assessment model would be modular and ther efore flexible enough to take account of any 
additional or different risks posed by non-salmonids.  Although the risks might be compared, any additional risks, or those considered for salmonids  that would be inappropriate for non-salmonids, 
would mean that a separate risk assessment would be necessary for each category of import.  In 
addition, some of the diseases of concern are salmonid diseases and as such it would be inappropriate to transfer the data to a risk assessment of non-salmonids.  Howeve r, non-salmonids could be carriers 
of some of the diseases of concern and therefore act  as agents of dissemination.  Essentially, although 
some data could be used to assess the risk factors,  the outcome of an assessment might be different.  
This would apply to both qualitative and quantitative risk  analysis.  He noted that the points he made 
in response to Question 1 concerning the minimum requirements of a risk assessment were also valid here.    WT/DS18/R 
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6.103 The same would be true for the four othe r categories of salmon fro m Canada, although these 
were closer in taxonomic concept and other considerations.  Some of  the data and findings contained 
in the Australian Final Report dealing with wild ocean-caught adult Pacific salmon could be validly 
used in a risk assessment for the four other cate gories of salmon.  However, there were additional 
factors to consider for aquacultured species and wild freshwater-caught species, as opposed to wild 
ocean-caught fish.  These would include the presence  of known vectors (and alternative host species), 
the access of anadromous fish to water supplies, protected water sources, purchase of ova/fry/other 
fish/fish products, sharing equipment with other fa rms (vaccination, grading machines, etc.), sharing 
staff with other farms, density of farms locally, density of infected farms locally 
(introduction/reintroduction of fish), distance to sea, number of salmonid rivers locally, age of 
farm/hatchery, annual production, type of feed (cold processing, supplementation with trash/wild 
fish), the prevalence of residual infection in the area and the type of management practices 
undertaken. 
6.104 Dr. Wooldridge  observed that she had answered the major ity of points in this question within 
her answers to other questions.  Much of it con cerned risk assessment technique.  The risks from 
salmonids and non-salmonids could be compared by comparing available data pre-entry data plus 
potential exposure pathways.  The decision on whethe r risk were acceptable or not depended on many 
factors but if the risks were assessed as being (or are otherwise believed to be) at a similar level then 
she believed they must be either equally acceptabl e or equally unacceptable regardless of the source.  
The comparison should take into account all availabl e information.  Any data used in one risk 
assessment which was valid in another assessment coul d be used in that assessment also.  This would 
in such circumstances most probably include data  from post-entry exposure onwards, and possibly 
pre-entry processing and inspection.  
Question 12.  Is evisceration an effective means of reducing the risk to a negligible level of each of 
the identified diseases? (See summary table provided by Australia in its 7 October "Responses to 
Questions", Question 13.)  Would the effects of evisceration in terms of reducing the risk of disease 
transmission be similar in all circumstances?  Wh ich of the disease agents can be found in flesh 
(muscle), remnant kidney tissue, bone, skin, gills, head, or blood? Do you know of specific cases 
where diseases have been transmitted from one area to another by imported eviscerated fish?  From 
imported eviscerated salmonids?  Plea se identify and describe these cases.  
6.105 Dr. Burmaster  doubted that evisceration alone reduced  the risk to a "negligible" one, but 
New Zealand's Report showed that evisceration in co mbination with other factors reduced the risks to 
acceptable levels.  
6.106 Dr. Rodgers  responded that evisceration was probably an effective means of reducing the 
risk to an acceptable level in certa in of the identified diseases.  The level of reduction would largely 
depend on the tissue location of the disease causing agent and the effectiveness of the evisceration 
process.  Many of the disease agents of concern had the potential to remain at some level after 
evisceration, particularly those that might be concentr ated in the head, brain, gills, musculature, heart, 
kidney remains and skin or external surfaces.  Di fferent pathogens could target different organs, 
although since viruses were intracellular they were pa rticularly difficult to remove.  Certain of the 
bacterial disease agents could also remain, especially those that caused lesions in the musculature (e.g. 
Aeromonas salmonicida ) or were harboured in the kidney (e.g. Renibacterium salmoninarum ).  
Evisceration would not remove all the parasites either , particularly those that appeared in the blood, 
on external surfaces or as cysts (e.g. Loma salmonae , Henneguya salminicola  and Kudoa thyrsites ).  
In addition, infected host individuals might serve  as “carriers” or “reservoirs” of a disease agent 
without being demonstrably affected  themselves and they therefore acted  simply as vehicles of agent 
transmission. At such low levels they were very  difficult to detect and therefore to know which 
particular tissues are affected. WT/DS18/R 
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6.107 Dr. Rodgers added that he did not know of any specific cases where fish diseases had been 
transmitted from one area to another by imported ev iscerated salmonids or other eviscerated fish.  
6.108 Dr. Winton  stated that the FDC was unanimous in its belief that evisceration was an effective 
method to greatly reduce the risk of transmission of  the notifiable fish disea ses regardless of their 
source (hatchery or wild).  Certainly for very stab le pathogens (e.g. those with spore stages), there 
might be some residual infectivity in the flesh or heads of highly infected animals (typically this 
would be more likely to happen in fish harvest ed from hatcheries where a disease outbreak with 
attendant mortality was occurring), but the level of in fectivity in the eviscerated animal could usually 
be expected to be considerably less than that presen t in viscera.  The FDC considered that the risk of 
transmission of fish diseases by movement of evis cerated fish products was probably lower than the 
risk from certain other activities (movement of aquarium  fish, ballast water in ships, etc.) and thus did 
not justify trade restrictions.  Recently, the US government changed its regulations to exempt 
eviscerated fish from requirements for certificati on under US Title 50 based upon this same concept.  
Several other countries (e.g. the European Union a nd New Zealand) had also adopted this approach 
and reduced or eliminated disease control require ments for aquatic animals destined for human 
consumption. 
6.109 Dr. Winton indicated that he knew of no case ( salmonids or otherwise) where eviscerated fish 
had been shown to result in the importation and establishment of an infectious disease in fish;  
however, Australia was correct in that it might be di fficult to find such cases if they occurred in wild 
fish.  Nevertheless, where expansions of the geogr aphic range of a fish disease had been documented, 
they were most often associated with increased su rveillance efforts or the application of more 
sensitive diagnostic methods.  There were also several documented cases where a fish disease had 
been introduced into an area previously known to  be free of the disease through importation of live 
fish or eggs for rearing in hatcheries (infectious  hematopoietic necrosis virus was a good example) 
and even a few diseases that were introduced by importation of unevi scerated fish for use as food for 
fish reared in net-pens (viral hemorrhagic sep ticemia virus in turbot in the United Kingdom).  
6.110 Conversely, there were also examples where fish that potentially contained high levels of an 
infectious agent had not resulted in transmission of disease if eviscerated.  For example, approximately 80 per cent of all rainbow trout produ ced in the United States came from the Hagerman 
Valley of Idaho where fish in virtually 100 per ce nt of the farms had been exposed to, or were 
infected with, infectious hematopoietic necrosis vi rus (IHNV).  While there were perhaps more than a 
dozen documented cases of IHNV being spread by moveme nt of infected fish or contaminated eggs, 
there was not a single case where transmission of IH NV was associated with fresh eviscerated fish for 
human consumption in spite of the fact that la rge numbers of these were sold in supermarkets 
throughout the United States within 24-48 hours of slaughter.  Similarly,  Piscirickettsia salmonis  was 
present in many farmed salmon in Chile and infec tious salmon anaemia was present in several salmon 
farms in Norway.  No case of transmission of either agent to fish in any other part of the world had 
been documented in spite of the fact that thousands of metric tons of such products were shipped fresh 
throughout the world each year in the form of iced, eviscerated product.  
6.111 While there were few actual studies on effici ency of transmission of a fish disease by various 
types of products, an unpublished study was conduc ted in Dr. Winton's laboratory in collaboration 
with the Clear Springs Trout Company in Idaho wher e nearly all fish were infected with IHNV at 
some level during various stages of rearing.  Fresh fish were removed directly from the processing area and sampled for virus.  They found no evidence of  virus in the flesh of processed fish by either 
cell culture or by the polymerase chain reaction a ssay.  Some of his colleagues had also conducted 
tests looking for IPN virus in Atlantic salmon im ported fresh into the United States. These studies 
remained unpublished as no virus was found.  In a few limited surveys of ocean-caught salmon, both 
the incidence and intensity of infection of a give n disease was typically lower than found among fish 
reared at hatcheries where the disease was enzootic.    WT/DS18/R 
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Question 13.  With respect to the diseases at issue, what is the difference in effectiveness, with 
regard to reducing the risk of disease transmission, of  evisceration as compared to heat treatment of 
the product?  as opposed to full cooking of the flesh of the product?  
6.112 Dr. Burmaster  observed that no method was risk fr ee.  Cooking reduced the risk as a 
function of time, temperature, and pressure.  L ong ago, food technologists  prepared and published 
tables showing the logarithmic efficiencies of differe nt heat treatments (such as blanching, parboiling, 
or canning).  He was unaware of any "hard" data to  compare the effectiveness of evisceration to the 
effectiveness of cooking or canning.  New Zeala nd's risk assessment concluded that a regulatory 
program that included evisceration as one step reduced risks to de minimis  values.  
6.113 Dr. Rodgers  responded that he could not provide a co mplete answer to this question because 
comparative data for evisceration, heat treatment and full cooking were scarce.  However, a published 
study (Whipple and Rohovec, 1994) on the effect of heat and low pH on selected viral and bacterial 
fish pathogens had been undertaken. The study concluded that A. salmonicida , Mycobacterium 
cheloni  and the IHN virus were sensitive to a heat treatment of 65ºC for 15 minutes and 82ºC for 
5 minutes.  They were also sensitive to the fish s ilage process which used a pH of 4.  In addition, 
although more heat resistant, the IPN virus and R. salmoninarum  would also be killed when 
incorporated into fish silage and heated to 82ºC for 5 minutes after a 15 minute period at 65ºC.  The study was carried out in order to test the efficacy  of procedures used for processing fish viscera to be 
incorporated into fish diets.  Full cooking shou ld, of course, completely eliminate such pathogens 
providing the process was properly carried out.  The only possible exception would possibly be a 
spore-forming organism, such as Myxobolus cerebralis , the causal agent of whirling disease, although 
there was some suggestion from the literature that th is would not survive at a temperature of 100ºC 
for 10 minutes.  Most of the other studies related to inactivation by heat were largely concerned with 
incubation and cultivation temperatur es in artificial media, not to reduction of pathogen levels in 
tissue. 
Question 14.  Which of the disease(s) or disease agents of concern, if carried by live fish, can be 
detected by organoleptic examination?  Which of th e disease(s) of concern, if carried by uncooked 
salmon, can be detected by organoleptic examination?  
6.114 Dr. Rodgers  replied that in many cases the success of determining the presence of a 
particular disease agent and subsequent diagnosis relied on an interpretation of all the available 
information, including historical data, visual examination and tissue sampling.  Unfortunately, no 
single sign was indicative of a specific individual disease condition.  Similarly, not all reported clinical signs were present in every case of the disease. 
6.115 Disease conditions were diverse and might elic it very varied response patterns in fish.  The 
pathology and outcome of individual infections we re the result of several factors including the 
physiological and immunological status of the host, species, age, stage of sexual development and 
nutritional status.  Other properties included the water temperature, salinity, pH, pathogen numbers 
and their location within the host.  Under certain ci rcumstances fish might act as symptomatic carriers 
and pass the infective agent to su sceptible animals.  Unfortunately, the symptoms and gross pathology 
of many fish diseases were similar, and it could be difficult for even experienced fish pathologists to 
distinguish between the different pathological cond itions, notably when two or more diseases might 
be present.  Common visual signs of disease among salmonids included dark skin colour, excess 
mucus production (skin or gills), exophthalmia, distended abdomen, skin ulcers and petechial 
haemorrhages at the base of fins, skin, gills or  muscle.  These might be encountered to varying 
degrees in several disease conditions.  In addition, spoilage organisms such as Alteromonas  spp. and 
Pseudomonas
 spp. (and others) produced distinctive odours following contamination during storage 
and filleting operations.  For these reasons, diagnosi s should not be made solely on the basis of 
disease signs. WT/DS18/R 
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6.116 By way of example, Dr. Rodgers observed th at the following disease signs could be indicative 
of several possible causal agents: 
(a) Exophthalmia  (many viral diseases such as IPN and IHN;  bacterial diseases such as 
BKD, ERM; parasitic diseases such as PKD;  nutritional deficiency such as lack of 
certain vitamins); 
(b) Dark skin colour  (viral diseases such as VHS;  bacterial diseases such as ERM, 
furunculosis;  nutritional deficiency such as lack of certain vitamins;  stress due to 
poor water quality);  
(c) Excess mucus production  (skin or gills:  parasitic infections in general;  
environmental irritant);  
(d) Distended abdomen  (virus diseases in general;  several bacterial conditions;  fungal 
infection;  kidney malfunction;  intes tinal cestodes;  nutritional imbalance);  
(e) Skin ulcers  (many different disease conditions);  
(f) Petechial haemorrhages  (skin or muscle:  viral diseases such as VHS;  bacterial 
diseases in general;  protozoan or crustacean parasites).  
It was possible to isolate specific fish pathogens fro m apparently healthy fish without evidence of any 
clinical disease.  There were also many faculta tive fish pathogenic bacteria and viruses whose 
pathogenicity depended directly on environmen tal quality and which in cases of decreasing quality 
could lead to similar septicaemi as to those caused by specific fish pathogenic agents.  Therefore the 
identification of the pathogen was important, w ith disease diagnosis being a step-wise procedure 
divided into a consideration of archival informa tion, general examination, collection of samples and 
subsequent analysis for pathogen identification.  Organoleptic tests might be a part of the general 
examination but could not be relied on solely for di sease identification, althou gh a visual examination 
for grading purposes would identify unsightly looking fish (e.g. superficial damage, ulcers and possibly extensive haemorrhaging).  Such fish might not then enter the supply chain as a quality 
product. 
Question 15.  Are you aware of any evidence of major disease spread with a significant impact on 
salmon production (wild or cultured, including recreational fisheries)?  In regard to new 
introductions, to what extent is it feasible to identify the means/pat hway of the introduction of the 
disease?  
6.117 Dr. Rodgers  replied that there had been several  occurrences of disease spread with a 
significant impact on salmon production.  The most  notable documented incidences concerned the 
introduction of furunculosis in  Atlantic salmon smolts and Gyrodactylus salaris  on smolts into 
Norway, from Scotland and Sweden, respectively.  
6.118 A recent graphic example of possible disease  spread in non-salmonids concerned the large 
mortalities experienced in wild pilchards along the co ast of South Australia and New Zealand.  Frozen 
pilchards imported from California, Chile, Peru an d Japan were fed to sea cage tuna in Australia, 
resulting in an epizootic among pilchards that even tually spread along 6,000 km of coastline.  A 
herpesvirus was thought to be the cause of the mortalities, although this had not been proved 
definitively.  The involvement of imported baitf ish had also been suggested as a cause of disease 
introduction of enteric redmouth in France from mi nnows.  The isolated cases of VHS in turbot 
recorded in Scotland and Ireland, linked to the feed ing of marine fish as a feed supplement, should 
also be noted.  Although these incidences referred  to non-salmonids they served to indicate the 
potential for disease spread in certain circumstances.   The importation of ova had also been blamed    WT/DS18/R 
   Page 121  
 
for the spread or introduction of diseases such as furunculosis, IHN, BKD and IPN into countries as 
diverse as Sweden, Japan, China,  Chile, Germany and Taiwan. 
6.119 Scientific "detective work" was often the only solution available to  identify the means or 
pathway of introduction for a disease.  Howeve r, the main problem was normally that the 
manifestation of a new disease condition occurred afte r the initial causal event.  This meant that there 
was no source material to work with and an e ducated assumption, based on corroborative evidence or 
circumstantial detail, was often necessary.  Nevert heless, such conclusions were decided only after 
collecting all the necessary data and eliminating unlik ely scenarios.  This type of investigation would 
normally be carried out by experienced teams and would be very time consuming.  The proportions 
and causes of the problem would have  to be determined in order to  discover whether there were any 
external influences that could be assigned to any pa rticular introduction.  The identification of the 
pathway of an introduction might be a complex di agnostic problem that would involve collecting 
information on environmental conditions, clinical signs, aetiological factors, possible transmission 
routes, identification of any potential pathogen,  authorised movement records and the possible 
existence of illegal imports. 
6.120 Dr. Wooldridge  noted that risk assessments were originally developed precisely for the 
assessment of potential risks which had not yet o ccurred and for which the potential pathways from 
hazard to outcome had not been observed;  for exam ple, the risk of radiation release from new designs 
of nuclear power station and, on the biological side , the risks of new pathogenic bacteria returning to 
earth from space travel.  In such  cases identification of potential pathways from hazard to outcome 
was thus an integral part of the assessment.  Ther efore, with regard to new disease introductions, it 
was perfectly feasible, and an integral part of th e risk assessment, to identif y potential pathways for 
the introduction of disease.  And in the assessment bei ng undertaken here, this part was likely to have 
access to more relevant available information than in the "exotic" examples just quoted.  
Question 16.  Australia (in its 7 October response to Qu estion 10) has stated that there are no 
reports on introduction of unwanted exotic diseases  of fish through imports  of product for human 
consumption.  Australia has suggested, inter alia, t hat this can be explained because of the difficulty 
of recognizing -or establishing - any such occurrence, because many or all of the diseases of concern 
occur endemically and because of lack of research.  What is your view on these points?  To what 
extent, if any, are examples of disease transmission in terrestrial animals relevant to this case?  
6.121 Dr. Burmaster  agreed that there were no reports of introductions via imports of fish products 
for human consumption.  While it was usually not possible to "prove the negative" from the "condition of no reports", the "condition of no repor ts" did allow one to put statistical bounds on the 
probability of the unwanted event.  In other wo rds, the "condition of no reports" did contain 
information that a risk assessor could use to put bounds on the probability.  He thus disagreed with 
Australia's implicit argument that a "condition of no reports" supplied no evidence to a risk 
assessment. 
Question 17.  What chain of events must be met for unc ooked salmon products to cause the entry, 
establishment and spread of the id entified diseases into Australia?  
6.122 Dr. Burmaster  broadly agreed with the seven concep tual steps identified in the Summary 
(page 1) and again in the Introduction (page 3) of New Zealand's 1994 risk assessment report: 
 - the disease must be present in the waters of origin; 
 - the disease must be present in the partic ular fish caught (or the flesh mush have 
become contaminated during processing); 
 - the pathogen must be present in the imported tissues; WT/DS18/R 
Page 122  
 
 - the diseased fish must pass inspection and grading procedures; 
 - the pathogen in the flesh must survive storage and processing and be present in an 
infectious dose; 
 - the pathogen must be able to establish infection by the oral route or by the host being 
bathed in it; 
 - scraps of the flesh product must find th eir way into a susceptible fish host in 
New Zealand or an infectious dose of pathogen must find its way into contact with a susceptible fish host by some other means. 
6.123 Dr. Rodgers  observed that for uncooked salmon products to cause the entry, establishment 
and spread of the identified diseases into Australia  the following criteria would have to be met: 
 - infection occurring in source stock; 
 - the presence of significant numbers of pathogens;  - no detection of disease on routine sampling of source stock;  - survival of the pathogen in processed fi sh (e.g. after evisceration and/or heat 
treatment); 
 - survival of the pathogen in tr ansit (presumably chilled or frozen); 
 - processing plant with drain to wate r source (in the destination country); 
 - susceptible host fish at destination;  - interaction with susceptible host fish; 
 - pathogen to overcome host defences, possibly in a stressed host; 
 - subsequent pathogen reproduction (possi ble necessity for intermediate vector); 
 - favourable environmental conditions;   - local and national dissemination of disease. 
Essentially, the disease agent must be present in th e particular fish caught for processing, although 
contamination during processing was also a possible but unlikely factor, and the pathogen must be 
present in the imported tissues or products.  In addi tion, the diseased fish/flesh must pass grading, 
inspection and testing procedures.  After harvesting,  the pathogen in the flesh must survive the death 
of the host, subsequent storage and processing, then still be present in an infectious dose.  Finally, 
sufficient infected flesh must find its way into the local environment or a susceptible fish host and the 
pathogen must be able to establish an infection by the oral route or by contact.  
6.124 Dr. Wooldridge  noted that this question defined three potential outcomes;  the entry of the 
identified diseases into Australia;  their subsequent  establishment;  and their spread.  The question 
(and therefore the answer given here) addressed only possibility , not probability .  
Entry into Australia 
6.125 For each of the diseases identified as a hazard, in order for it to enter Australia in uncooked 
salmon products, either the disease agent must origin ate from the fish harvest or it must be introduced 
as a contaminant at some point in the preparation and processing.  If contamination occurred at any point before processing which would render the pr obable total amount of agent non-viable, then it 
need not be considered separately at the next stage.  
6.126 Therefore, for entry to Australia, either:  (a) the fish must contain the diseas e agent at the point of harvest;  and 
 (b) the disease agent must then remain present within the tissues selected for the 
imported product, at the point of import.  If only part of the fish were selected for    WT/DS18/R 
   Page 123  
 
import (e.g. headless, eviscerated) then the ag ent must be present in that part selected.  
If any examination of the fish were undertaken , either visual or otherwise, any agent 
present must escape detection (detection assumed to lead to rejection).  
or 
 (c) the fish must become contaminated during the processing so far.  
Then:  
 (d) the agent must remain viable within th e tissues selected for the imported product, at 
the point of import.  Therefore any processing (e.g., freezing, thawing, chemical 
application) must fail to render the agent non-viable.  
or 
 (e) the product must become contaminated  with the disease agent after any final 
processing before import.  
Dr. Wooldridge noted that assessment of the pr obability of this occurri ng comprised a release 
assessment, of which the elucidation of the chain of necessary events was an  essential component.  
Establishment 
6.127 For each of the diseases identified as a hazard,  in order for it to become established in 
Australia from the import of uncooked sal mon products the agent must first enter  Australia in 
imported uncooked salmon products.  That is, it must be present and viable at the point of import of 
the product.  However this was not in  itself enough to enable establishment.  
6.128 Given entry, then the chain of events n ecessary for establishment of the disease in Australia 
required: 
(a) the presence of susceptible animals (including fish);  and (b) the existence of possible exposure pathways from the product at the point of entry to 
agent contact with a suscep tible species.  There might be many potential exposure 
pathways;  and 
(c) for at least one of the potential pathways the disease agent must remain present and 
viable all the way through that potential expos ure pathway.  Therefore for at least one 
pathway all the following conditions must be met: 
(i) any processing in the pathway (e.g., fr eezing, thawing, chemical application, 
cooking) must fail to render the agent non-viable;  and 
(ii) any regulatory activity in the pathway designed to reduce the potential for 
exposure (e.g. disposal method, siting of processing plant) must fail to render the agent non-viable;  and 
(iii) any natural occurrence in the pathwa y which by its nature would tend to 
reduce the potential for exposure (e.g. dilu tion, exposure to sunlight, lack of 
necessary intermediate host) must fail to render the agent non-viable;  and WT/DS18/R 
Page 124  
 
(d) At the point of exposur e, conditions must be appropriate to enable successful 
transmission of agent in an infectious form  into the susceptible species.  This would 
be agent- and host-dependent;  and 
(e) At the point of exposure there must not only be viable agent present, but it must be in 
a sufficient quantity to result in infection.  This would be agent- and host- dependent.  
Spread 
6.129 For each of the diseases identified as a hazard, in  order for it to spread within local fauna, it 
first had to become established locally.  However, this was not, in itself, enough to enable spread.  
Spread might mean spread to other species than t hose initially infected or other geographical areas or 
both. 
6.130 Given local establishment, the chain of even ts necessary for the spread of disease required: 
 (a) that the initial establishment of disease did not only occur within a dead-end-host 
species (i.e. that transmission was possible from those initially infected at exposure). 
For spread across species, requirements were:  
 (b) other susceptible species in Australia;  and 
 (c) the existence of possible exposure path ways from the initially infected species to 
others.  These exposure pathways were subject  to the same kinds of considerations as 
in the previous section, though they would be different in detail;  and 
 (d) at the point of exposure, conditions must be appropriate to enable successful 
transmission of agent from the initially infect ed to another susceptible species.  This 
would be agent- and species-dependent;  and 
 (e) at the point of exposure viable agent must be in a sufficient quantity to result in 
infection of the host second species. This w ould be agent- and species- dependent.  A 
particularly susceptible initially infected species might allow for agent multiplication 
thus allowing infection of a second, less susceptible species.  
For geographical spread, requirements were:  
 (f) the presence of susceptible animals to be  more than just locally present;  and 
 (g) the presence of exposure pathways from lo cally infected animals to those in other 
areas, with all the usual considerations plus , for waterway spread, the lack of natural 
geographical barriers;  and 
 (h) the ability of the agent to survive in the environment encountered in other 
geographical conditions (e.g. climate, pr esence of intermediate hosts, etc.).  
Question 18.  In the period between May 1995 and D ecember 1996, were there any advances in 
scientific knowledge that would justify  a change in the conclusions fr om the 1995 Draft Report to the 
1996 Final Report?  
6.131 Dr. Burmaster  replied that he did not think so. 
Question 19. Canada contends (First Submission of  Canada, para. 175, Oral Argument of Canada, 9 
September 1997, para. 92) that in the 1996 Final Re port, Australia omitted significant information for    WT/DS18/R 
   Page 125  
 
the estimation of risk that was in its 1995 Draft Report, including data on which to base estimates of 
volumes of fish, prevalence of disease agents, quantiti es of waste and concentrations of waste.  What 
is your view on this point?  
6.132 Dr. Rodgers  responded that in parts the 1996 Fina l Report was less detailed than the 1995 
Draft Report and to a certain extent the specific sect ion on qualitative risk analysis appeared to have 
been largely replaced by a straightforward textual su mmary.  There also seemed to be more detail in 
the 1995 Draft Report in areas such as disease agent viability and infectious dose, although conversely 
it lacked some information contained in the 19 96 Final Report (e.g. import country presence of 
infection data).  In addition, the 1995 Draft Re port presented some data in the form of a simple 
literature review for sections such as histopathology and diagnosis.  On balance the best features of 
both draft reports should possibly have been combin ed to create a final analysis dealing with the 
aspects of a qualitative risk analysis, leading to an estimation of the possibility of each risk factor 
occurring.  The 1996 Final Report put most emphasi s on the unknown, or poorly understood, factors 
and the unique position of Australia, rather than  accepting a low risk in conjunction with risk 
management (reduction) factors.  Accurate data on prevalence of infection, fish weight and waste 
statistics, leading to an estimation of the disease ri sk per tonne of imported product, used particularly 
in combination with actual historical data that showed no disease introduction for similar importations 
elsewhere, was mainly valuable for a quantitative risk  assessment.  The more subjective approach of a 
qualitative risk assessment did not necessarily make full use of such detail.  Nevertheless, the 
availability of such information, whether detaile d or not, should warrant its inclusion in either 
scenario. 
6.133 Dr. Wooldridge  replied that it was precisely to facilita te the comparison of the information 
used that in her opinion the layout of the risk assessment should have been similar in both the draft 
and final document, and any change of data specifically indicated with  the reason for the change.  The 
change in format and order made  comparison much more difficult a nd time consuming.  Nevertheless, 
it was possible to identify data given in the 1995 Draft Report (for example the tables on pages 17, 24, 
27, 29 giving data on fish, municipal waste water,  etc.) which she was unable to find in the final 
assessment, and which was potentially relevant to the conclusions from the qualitative assessment and 
of potential use in a quantitative assessment.  
OIE procedures and recommendations  
Question 20.  How are members of the FDC selected?  Is  membership of the FDC limited?  How 
many, and which, OIE members are represented on the FDC?  Is a quorum needed for FDC 
recommendations?  How are memb ers views taken into account?  
6.134 Dr. Winton  indicated that Members of the OIE Fish Diseases Commission were elected by 
formal vote of the delegates of OIE Member Countries at the annual General Session.  They served 3-
year terms and could be reelected.  Candidates were nominated solely on the basis of their scientific 
expertise and were expected to be completely free from the influence of either national or commercial 
interests.  There were currently 5 (formerly 3)  elected members, listed below.  Each was an 
internationally recognized authority in diseases of a quatic animals and all of them worked at national 
laboratories where they were either a senior resear cher or program director.  In addition, the FDC 
typically invited from 1-3 other participants.  For example at the last FDC meeting in October 1997, 
Dr. R. Subasinghe, Director of the International Fi sh Health Programs for the FAO in Rome attended 
by formal agreement between FAO and OIE, and Dr. F. Berthe, research scientist from the national 
shellfish laboratory in Tremblade, France (IFREMER) , attended by invitation of the FDC in order to 
provide added expertise in shellf ish pathology.  There were no formal procedures for voting or for 
establishment of a quorum.  In the years he had be en a member, all elected members attended every 
meeting.  Decisions were reached by consensus of the members after examination of scientific 
evidence.  The list of Members of the OIE Fish Diseases Commission at the 29 September-1 October 
1997 meeting was the following: WT/DS18/R 
Page 126  
 
Prof. T. Hästein (President) 
Superintending Veterinary Officer in Fish Diseases Central Veterinary Laboratory 
Norway 
Dr. C. Michel (Vice President) 
Laboratoire de Virologie et d'Immunologie moléculaires Centre de Recherches de Jouy-en-Josas France 
Prof. B.J. Hill (Secretary General) 
Centre for Environment, Fisheries and Aquaculture Science (CEFAS) United Kingdom 
Dr. J.R. Winton 
Research Team Leader Western Fisheries Research Center 
United States 
Dr. K. Nakajima 
Director of Pathogen Division Fish Pathology Department National Research Institute of Agriculture - Fisheries Agency 
Japan 
Question 21.  Australia states that detailed minutes are not  kept of meetings of the FDC where the 
categorization of measures to be applied for a particular disease are discussed.  Does the FDC 
produce summary reports of these meetings?  A re the FDC recommendations on disease guidelines 
based on scientific evaluations or assessments?   What is the scientific content of FDC 
reports/records?  What processes are under way in re gard to the categorization or classification of 
fish diseases?  
6.135 Dr. Winton  replied that while detailed minutes regarding each decision were not kept, 
summary minutes of each meeting were prepared and distributed to the delegates from each OIE 
Member Country by mail.  A synopsis of the activ ities of the FDC was also presented orally by the 
President of the FDC to delegates at the OIE General Session for approval.  Due to a lack of any 
formal method for evaluation of disease risk, disease assessments were based on knowledge of the 
peer-reviewed literature or experience of the member s of the FDC (which was quite extensive due to 
the large network of colleagues and the frequent contacts needed to prepare the OIE FDC annual 
report on the epidemiological situation for aquatic animal diseases worldwide).  The scientific content 
of the FDC epidemiological report was high because information was gleaned from the peer-reviewed 
literature or from direct reports provided by fish  disease experts and reference laboratories around the 
world who submitted information on the aquatic anim al disease situation in their area.  The annual 
epidemiological report and report of the meeting of the Fish Diseases Commission were occasionally 
cited.   
6.136 There was no formal process for categorization of fish diseases and, in fact, there were no 
formal mechanisms for categorization of other animal diseases and only limited examples existed for 
human diseases.  Development of such methods wa s a task for one of the Specialist Commissions of 
the OIE which produced an early draft that apparen tly failed to gain approval from the delegates of 
Member Countries.  If approved for other animals, the FDC would attempt to adapt it to diseases of aquatic animals, but to date, effo rts to construct a method that work ed well in all cases had remained 
elusive.  Recently, Australia provided a draft of  a proposed mechanism for categorization of fish 
diseases.  It was discussed at the most recent m eeting of the FDC.  While it seemed to perform    WT/DS18/R 
   Page 127  
 
reasonably well for some of the notifiable diseases, other diseases of aquatic animals either lacked 
sufficient information or differed too greatly in thei r worldwide distribution, host range, or severity to 
allow a single method to be applied globally. 
Question 22.  Which of the 24 disease agents listed in the 1996 Final Report have been considered 
by the OIE and what were the conclusions for each?  Which of the 24 diseases were considered but had no recommendation?  (For a list of the 24 diseases of concern, see Au stralia's response to 
Question 1 of 7 October.)  Is this documented in FDC/OIE records?  When no recommendation is 
made, does it mean that after consideration the disease was found not to be of serious epidemiological 
or economic concern?  
6.137 Dr. Winton stated that virtually all the 24 listed di seases and several others had, at one time 
or another, been considered by the FDC.  In general, those diseases having worldwide distribution, 
limited impact, or which were readily controllabl e by drugs, vaccines or management strategies had 
received less emphasis.  Typically, the FDC placed the greatest emphasis on uncontrollable diseases of proven etiology having a limited geographic di stribution and for which robust diagnostic methods 
were available.  This information was gleaned fro m the scientific literature and personal knowledge of 
the FDC members.  Detailed record s of the factors involved in each decision were not available.  A 
lack of listing as notifiable did not mean the FDC c onsidered the disease to be of low priority.  It 
might be, for example, that a new and very severe disease lacked standard diagnostic methods and could not be listed as no adequate inspection methods existed.  
Question 23.  To what extent does the FDC factor take into consideration whether a disease is 
widespread in concluding whether diseases shoul d be reported or whether guidelines should be 
established?  Does the FDC consider the impact on trade  when categorizing diseases or in developing 
guidelines.  
6.138 Dr. Winton  responded that distribution of diseases was very important in determining 
categorization as indicated above.  The impact on tr ade was not, per se, a separate factor, but was 
included in the concept of the level of damage that  could be expected if the disease were introduced.  
If a disease was uncontrollable, whether in wild fish or  commercial fish, the FDC tended to rate it as 
having more effect.  
Question 24.  Does an OIE recommendation stating that de ad fish be eviscerated before transit 
mean that OIE considers that the eviscerated product is sufficiently "safe" in terms of the specific fish 
disease under consideration?  Do the OIE  recommenda tions for the "Other Significant Diseases" of 
concern in this dispute, which only deal with uneviscerated fish, imply that the OIE considered 
eviscerated fish sufficiently "safe"  in terms of the specific fish disease under consideration?  Are such 
recommendations based on scientific principles?  Plea se clarify what you mean by the term "safe" in 
your response.  
6.139 Dr. Burmaster  recommend that the WTO and the parti es avoid the word "safe" because most 
people understand the word to imply a condition of " zero risk".  He believed that conditions of "zero 
risk" never occurred in the world.  Every plan or proposal, including the "do nothing" alternative, had 
(i) non-zero probabilities of adverse consequences (broad ly called the "risks" of the plan or proposal) 
and, simultaneously, (ii) non-zero probabilities of favourable consequences (broadly called the 
"benefits" of the plan or proposal).  Each possible plan or proposal had both risks and benefits.  No 
single plan or proposal had just risks; no single plan or proposal had just benefits. 
6.140 In some situations, there were only two po ssible plans or proposals, which could be called 
"Plan Yes" and "Plan No".  Each of these choices had risks and benefits.  In  other situations, there 
might be more than two competing plans or proposals,  perhaps called Plan A, Plan B, ... , and the "Do 
Nothing" Plan.  Each of these choices had risks and benefits.  The risks and be nefits of the competing, WT/DS18/R 
Page 128  
 
alternative plans or proposals might be measured in a variety of units, including economic or 
monetary units.  
6.141 In a first step sometimes called "risk assessme nt", scientists, engineers, statisticians, and other 
professionals estimated the risks and benefits associat ed with each of the competing, alternative plans 
or proposals.  
6.142 In a second step sometimes called "risk co mmunication", the risk assessors conveyed their 
findings, complete with descriptions of the variab ilities and the uncertainties in their findings, to the 
risk managers.  
6.143 Then, in a third step sometimes called "ris k management", government officials (including, 
possibly, judges and juries) and/or other groups of citizens chose the option from among the competing, alternative plans and proposals that had the most attractive combination of risks and 
benefits.  Since all of the options had both ri sks and benefits, none could be called "safe".  
6.144 Dr. Winton  replied that the FDC had considered th is point carefully and was unanimous in 
the opinion that evisceration of fin fish (e.g. salm onids in this case) provided a very high level of 
safety against transmission of disease and that none of the notifiable or other significant diseases were 
likely to be transported with such products.  Thus , the FDC had judged that eviscerated products fell 
outside the concern of the FDC.  In fact, a paragr aph in the first edition of the Aquatic Animal Code 
(Article 1.5.5.2, paragraph 3) was specifically de leted in the current edition to clarify this point 
because the former language provided an option for countries to require inspections of any fish 
products (even eviscerated fish) that were, in the opinion of the importing country capable of 
introducing a disease of concern.  Members of the FD C had reviewed the scientific evidence and were 
not aware of a known expansion of range for a fish pa thogen due to the movement of eviscerated fish;  
conversely, there were many cases of disease transmi ssion associated with shipment of infected live 
fish, live eggs, or even uneviscerated  fish used to feed other aquatic animals that were documented in 
the scientific literature. 
Question 25.  To what extent do the OIE recommendations  take into account the differing health 
situations or potential vulnerabilities of importing member governments?  
6.145 Dr. Winton  observed that the differing health conditions in various member countries (both 
exporting and importing) were a concern;  how ever, it was impractical to have different 
recommendations for each country.  This was why th e FDC had tried to set minimum standards that 
could be applied worldwide, but encouraged countri es to engage in bilateral negotiations where there 
were differences of opinion regarding quality of fi sh health services, presence of other pathogens of 
concern, etc.  This flexibility, however, extende d only to live fish, live gametes, and uneviscerated 
fish.  As stated above, the FDC currently regarded ev iscerated fish to represent a minimal risk that did 
not warrant restriction of trade. 
Question 26.  Could application of OIE guidelines by an importing country be considered to 
provide some sense of "safety" with regard to the particular fish disease addressed in the guideline 
(please clarify what you mean by the term "safe" in your response)?  What is the "level of risk" 
implicit in OIE recommendations?  Is this a quant ifiable risk level (i.e., one in a million chance 
that ...) or can it be described in other terms (i.e ., "negligible", "unmeasurable", "highly unlikely", 
etc.)?  Is this (implicit) level of risk the sa me for all OIE recommendations regarding fish diseases?  
6.146 Dr. Burmaster  stated that he did not know the OIE's or FDC's policies and procedures with 
regard to this question, but terms such as "negligib le", "unmeasurable", "highly unlikely", etc. often 
caused great confusion in risk assessment, risk communication, and risk management.  These words had no common meaning;  different people using the same word could and did have entirely different 
meanings in mind when using such terms.    WT/DS18/R 
   Page 129  
 
6.147 For example, he noted that Professor M. Granger Morgan recently reported his findings from 
an expert elicitation of senior scientists serving on the Science Advisory Board (SAB) of the US 
Environmental Protection Agency (Morgan, 1997 ; see also: Morgan & Henrion, 1990; and Cooke, 
1991).  In this paper, Morgan worked with 14 memb ers of one of the US EPA's SAB panels - mostly 
full professors of science or engineering at major universities - to quantify each individual's definition 
of three phrases:  "likely", "something between likely and not likely", and "not likely".  Morgan found 
that:  
- some of the 14 SAB members use the word  "likely" to mean the probability range 
from 80 per cent to 100 per cent, while othe r SAB members use the same word to 
mean the probability range from 0.1 per cen t to 100 per cent chance of occurring;  
and 
- some of the 14 SAB members use the words "not likely" to mean the probability 
range from 0 per cent to 10 per cent, while other SAB members use the same phrase to mean the probability range from 0 per cen t to 0.001 per cent chance of occurring;  
and 
- all of the 14 SAB members identified a probability range to describe "something 
between likely and not likely".  For one of the SAB members, this intermediate 
condition had a wide range, 0.0003 < proba bility < 0.8, showing that the terms 
"likely" and "not likely" are not logical complements of each other as one might 
expect.  
Professor Morgan concluded, and Dr. Burmaster agre ed, that these words had such large differences 
in meanings - even among senior scientists - that the words created more misunderstanding than they 
did enlightenment.  When a lay person heard th ese words spoken by a full professor from a major 
university, what conclusion should he or she draw? 
6.148 Dr. Winton  believed the OIE guidelines, if properly applied by competent personnel, 
represented a very significant level of safety against importation of the listed diseases.  He knew of no 
procedures that would offer improvements in safety su fficient to justify the added expense or effort.  
He was not aware of any examples of importation of  disease in groups of live fish or eggs nor in 
uneviscerated fish when imported in accordance with  these or similar (US, Canadian, EU) procedures, 
while there were many cases wher e fish diseases had been imported through movement of both live 
and uneviscerated fish in the absence of these methods. 
Question 27.  What are the criteria used by OIE to decide whether or not a particular 
disease/disease agent should be included in the Code?  Are OIE member governments permitted or 
expected to request consideration by the OIE of fish diseases which they have identified as being of 
concern?  
6.149 Dr. Winton  responded that the criteria are stated in the Aquatic Animal Health Code.  These 
were: proven etiology, limited geographic distributi on, untreatable, and of severe impact.  Member 
countries were encouraged and expected to review  the Code and Manual and to propose the addition 
or deletion of aquatic animal disea ses or to suggest modifications in  wording, diagnostic methods, etc. 
based upon scientific evidence.  In fact, several co untries (including both Canada and Australia) had 
been rather diligent in doing so  on a regular basis.  The FDC had both added and deleted diseases 
based upon scientifically-constructed arguments from several member countries.  In some cases, the 
FDC had received conflicting opinions from count ries (some wanting to add diseases and others 
wishing to delete the same diseases).  In thes e cases, the scientific evidence and opinions of the 
members of the FDC were used. WT/DS18/R 
Page 130  
 
Question 28.  Are OIE guidelines primarily directed at eliminating or reducing disease 
transmission?  Do they also address the spread or  management of diseases?  Are some diseases 
considered sufficiently capable of be ing managed so as not to warrant  controls on transmission in all 
circumstances?  
6.150 Dr. Winton  indicated that ultimately, the OIE gui delines sought to prevent international 
shipment of disease agents.  Because there could be  no absolute guarantee that transmission would not 
occur unless no trade were allowed, the guidelines were, in fact, designed to reduce the risk to 
sufficiently low levels that international trade c ould proceed in a safe manner.  It was up to the 
member countries to control or restrict the distribu tion of diseases within their country and to maintain 
information about this status for the OIE.  Seve ral diseases of aquatic animals could be adequately 
managed and were thus not included on the OIE list .  These diseases could be subjects for bilateral 
negotiations if they could be show n to be of legitimate concern to the importing country and trade 
were anticipated in live or uneviscerated fish.  
Question 29.  Have, from a technical/scientific point of view, the risk assessment techniques and 
guidelines contained in Section 1.4 of the OIE Code been taken into account in Australia's 1996 Final 
Report?  Do these OIE techniques and guidelines impose a separate risk assessment for each 
individual disease of concern to the country impos ing the sanitary measure and for each sanitary 
measure that country decides to consider?  A lternatively, do these OIE techniques and guidelines 
impose the necessity to assess within a risk assessment, the likelihood of establishment and 
consequences of each disease as well as the e ffects of each sanitary measure on the likelihood and 
consequences of disease establishment?  When a country finally chooses one of these options, do the 
OIE techniques and guidelines on risk assessment require that country to justify or explain why that 
particular option has been preferred, i.e. does that country need to establish a causal link between the 
option chosen and the reduction of risks allegedly identified in its risk a ssessment?  Do the OIE 
techniques and guidelines require a country to quantify  (i.e. to state the probability of), or use 
expressions which qualify, the risk which a llegedly justifies its sanitary measure?  
6.151 Dr. Wooldridge  replied that Section 1.4 of the OIE Code was at present undergoing a 
re-writing process in order to upda te, expand upon, and clarify the gui delines in the code.  The basic 
premise was that the guidelines for import risk an alysis and assessment should reflect the best 
methodology available.  
6.152 The version currently in use stated in the In troduction that: "Import risk analysis is preferable 
to a zero-risk approach because it provides a more objective decision" and the section entitled 
"Guidelines for Risk Assessment" focused on th e probability of disease agent entry and exposure 
rather than just the relevant possibilities.  In a ddition it advised that "Because of the multiplicity of 
disease agents it may be necessary to carry out multip le risk estimates for any commodity considered 
for importation", and "If information on the probabilit y of the presence or survival of a particular 
agent following application of a risk reduction optio n is not available, documented experience could 
be an alternative source of information".  All of these basic guidelines were still valid.  The OIE Code 
did require an evaluation of probability (either qualitatively or quantitatively) rather than merely 
possibility of a given outcome or consequence even if, given current knowledge levels, the confidence 
limits on that probability are wide.  
6.153 The failure to consider the probability of the various outcomes in the 1996 Final Report rather 
than just their possibility meant that, in her opini on, the guidelines given in Section 1.4 of the OIE 
Code had not been properly taken into account.  
6.154 Whether one considered that a separate ri sk assessment was undertak en for each disease, or 
whether within a single risk assessment each  disease was considered separately was, in 
Dr. Wooldridge's view, merely a case of semantics;  the OIE guidelines did not impose  either of the 
suggested alternatives.  The fact was that, in c onsidering any particular product for import, and in    WT/DS18/R 
   Page 131  
 
undertaking a risk assessment for that product, each potential disease hazard identified had to be 
separately assessed.  The potential consequences might be  different for each disease. The effect of any 
particular sanitary measure would affect the path way from hazard to outcome for each disease, and 
might affect it differently for different diseases.   Thus the initial assessments, and any re-assessments 
considering the application of any risk reducti on measures would need to consider each disease 
separately.  Performance of the necessary numbe r of individual assessment procedures for any 
particular product was part of the full risk an alysis process and depended upon the commodity.  
6.155 Dr. Wooldridge stated that, in her opinion, once a particular set of sanitary measures had been 
chosen by a particular country, transparency in  the rationale for that choice was required to 
demonstrate that there was a reasonable basis in the case in question for expecting that the risk 
reduction measure would have the desired effect.  
6.156 Dr. Winton  noted that the risk assessment guidelines of Australia or New Zealand had been 
read with interest by members of the FDC, but ha d not been formally taken into account.  He believed 
the FDC would support the concept of individual ri sk assessment for each li sted disease because 
important epidemiological features (presence of susceptible hosts, temperatures, etc.) would vary with 
each country.  That was why the notifiable di sease list was relatively short.  Those diseases 
considered notifiable were ones that almost everyo ne could agree upon would be very harmful to the 
importing country if it were presently free of them.  Other aquatic animal diseases could be added by bilateral agreement if the importing country coul d make a good case based upon its unique situation.  
The FDC did not anticipate this would be done for ev iscerated or processed fish products destined for 
human consumption unless a hum an pathogen was involved. 
Question 30.  Australia seems to contend that a separat e risk analysis may be necessary for each 
aquatic animal or animal product.  What are the reasons behind the OIE's adoption of recommendations on a disease-by-disease bas is (not on a product-by-product basis)?  
6.157 Dr. Winton  replied that the notifiable diseases in the OIE Code probably did not need a case-
by-case analysis as this list represented the most si gnificant diseases of aquatic animals and virtually 
all cases of movement of infected live aquatic an imals or uneviscerated fish were judged to present 
risk.  In the case of other diseases of concern, bilateral agreements between countries regarding live fish, live eggs, or uneviscerated fish should take in to account the volume of tr ade, anticipated use of 
the product, presence of different strains of the pa thogen, etc. that might require a product-by-product 
or case-by-case analysis. 
VII. INTERIM REVIEW  
192 
7.1 On 7 April 1997, Canada and Australia requ ested the Panel to review, in accordance with 
Article 15.2 of the DSU, precise aspects of the interi m report that had been issued to the parties on 
26 March 1997.  Australia also requ ested the Panel to hold a further meeting with the parties.  We met 
with the parties on 21 April 1998. 
7.2 Following comments by Canada and Australia on the descriptive part of our report, we 
modified paragraphs 2.8, 2.27, 2.28, 4.4, 4.22, 4.26, 4.51, 4.56-4.64, 4.66, 4.71 and 4.175.  We 
considered that several of the additions sought by  Australia were already addressed, particularly in 
paragraphs 4.29, 4.30 and 4.35. 
                                                      
192 According to Article 15.3 of the DSU, "the findings of the final report shall include a discussion of the 
arguments made at the interim review stage".  The following section entitled "Interim Review " is therefore part of the 
findings of our report. WT/DS18/R 
Page 132  
 
7.3 Australia requested a "whole of report review" of  the interim report.  In so doing, it referred to 
Article 11 of the DSU setting out the function of a panel and requiring that it "should make an 
objective assessment of the matter before it, including an objective assessment of the facts of the case 
and the applicability of and conformity with the rele vant covered agreements".   Australia argued that 
a large part of the legal reasoning of the interim report was not based on an objective assessment of 
the matter before the Panel and submitted that th e interim report contained a number of factual 
inaccuracies and assertions not supported by eviden ce before the Panel.  At the interim review 
meeting, Canada objected to Australia's request for "a whole of report review ".  Canada referred to 
Article 15.2 of the DSU which provides an opportunity  for parties to request the panel to "review 
precise aspects of the interim report".  According to Canada, it is not open to the Panel to consider 
anything other than comments dealing with "precise aspects" of the interim report.  We agree with 
Canada and have therefore only reviewed our inte rim report in light of the comments made by the 
parties which relate to "precise aspects" of the interim report. 
7.4 Australia submitted a series of comments on th e definition of the measure at issue and the 
product coverage of the dispute as set out in the interim report.  Australia argued that the 1988 
Conditions  - which, according to Australia, are only guidelines and not comprehensive - only apply 
to products imported in heat-treated form and have no application to fresh, ch illed and frozen product; 
that substantial quantities of commercially canned sal mon are imported into Australia and that these 
imports are not covered by the 1988 Conditions; that the Panel re-interpreted its terms of reference 
and was inconsistent in its definition of the measure at issue; and that heat-treated and fresh, chilled or 
frozen salmon are not the same products.  We adopted some of Australia's argum ents and clarified our 
rejection of others.  We accordi ngly redefined and specified both the Australian measures and the 
salmon products at issue and ensured a consistent a pproach to the measure and products in dispute.  
These modifications are reflected in paragraphs 8.7- 8.21, 8.24, 8.29, 8.95-8.101, 8.167-8.169, 8.173-
8.179 and 8.182 and in the deletion of pa ragraph 8.23 in the interim report.  
7.5 Australia provided factual clarifications as to the status of several reports and studies we 
referred to in our report.  In response, we made mo difications to paragraphs 8.130, 8.132 and 8.136.  
We recall, in particular, that for purposes of our examination, the scientific and technical content of these reports and studies is relevant, not their admini strative status (i.e., whether they are official 
government reports or not). 
7.6 Following Australia's more detailed objecti ons to take into account evidence submitted by 
Canada after the 7 October 1997 deadline we im posed, we modified paragraph 8. and added 
paragraph 8.5. 
7.7 Canada requested us to review our finding in  paragraph 8. that steelhead/rainbow trout falls 
outside our terms of reference because, Canada submitted, the measure subject to the terms of 
reference applies to all salmonids, not only to salm on.  Canada further indicated that some debate 
exists as to whether steelhead/rainbow trout is a sal mon or only a salmonid and that practice in North 
America considers it to be a salmon.  We recall that in paragraph 8. we stated that "steelhead/rainbow 
trout ... is - according to the experts advising the Pa nel on this issue - not a "salmon" species but only 
part of the wider "salmonid" family".  We also st ated that "the Panel request, which defines our terms 
of reference, only refers to "salmon", not to the wider category of "salmonid" " and thus found that 
"steelhead/rainbow trout falls outside our terms of reference".  In our view Canada did not bring 
forward evidence which overrides the general validity  of the scientific opinions we received from the 
experts advising the Panel.  Nor do we consider that  the measure at issue in this dispute - which is, 
according to the Panel request, only before us in so far as it applies to a specific category of "salmon" 
- should be broadened in product c overage to all "salmonids" because the measure referred to in the 
Panel request in principle applies to all salmonids.  In the Panel request Canada not only limited the 
scope of this dispute to a specific measure, but also  to specific products (a category of "salmon").  We    WT/DS18/R 
   Page 133  
 
therefore did not incorporate Canada's suggested cha nge to paragraph 8.20.  In response to a comment 
by Australia that the genus Oncorhynchus is but one genus in the family Salmonidae, we rephrased 
paragraph 8.20. 
7.8  Australia claimed that paragraph 8.22 is an  inaccurate rendition of the situation.  Australia 
submits that it should have been given the opport unity to rebut the "fundamental changes" introduced 
by Canada through a formal written submission, not through a written comment limited to certain 
matters.  We confirm that paragr aph 8.22 is an accurate reflec tion of what happened and what 
Australia agreed upon.  Whether the additional oppor tunity we granted to the parties to submit 
arguments resulted in a formal written submission or a written comment is in our view irrelevant.     
7.9 Both Canada and Australia provided comment s on paragraphs 8.34 to 8.37 of our findings 
relating to the question of which definition of "san itary measure" (as provided in paragraphs 1(a) and 
(b) of Annex A to the SPS Agreement) applies to the measure at issue in this dispute.  We redrafted 
these paragraphs to accommodate most of the parties'  concerns.  However, with respect to Canada's 
argument that the definition in paragraph 1(b) of Annex A does not apply to this dispute, we recall 
that we stated that "both definitions of a "sanitary  measure" invoked by Australia might be applicable 
to the measure in dispute", without deciding whether they are.  We only found that (1) the definition 
in paragraph 1(a) covers the measure at issue and (2 ) even in the event the definition in paragraph 1(b) 
would also cover to the measure at issue, "the obj ectives for which that measure is being applied are 
more appropriately covered by the definition in paragraph 1(a)".  Th e four elements referred to in 
paragraphs 8.35 and 8.36 indicate the validity of the last statement.  They are not, as submitted by 
Canada, "reasons ... as to why paragraph 1(b) does not apply in this case".  On that basis, we maintain 
our finding that "in the specific circumstances of this case we need to ex amine this measure as a 
[sanitary] measure ... in the sense of paragraph 1(a)".   
7.10  With respect to paragraph 8.46, Australia stated that the OIE Code does not set adequate 
international guidelines since it is under substantia l revision, not representative of global conditions, 
not grounded on a scientific basis and the result of nontransparent decision-making.  Canada 
responded that the OIE Code is a "finalised document" adopted in 1995 and that the fact that it has 
been revised in 1997 does not make the guidelines it c ontains any less legitimate, but to the contrary 
ensures that these guidelines reflect advances in sc ientific knowledge.  According to Canada, it is 
disingenious for Australia as an active participant in  the OIE to suggest that the OIE process ignores 
southern hemisphere concerns or lacks transparency.  To the extent we refer to the OIE Code in our 
report, we recall that the SPS Agreement (paragraph 3( b) of Annex A) explicitly directs us to the OIE 
and the standards, guidelines and recommendations it de velops.  Article 5.1 also  refers us to "risk 
assessment techniques developed by the relevant inte rnational organizations".  The fact that the OIE 
Code is subject to revision or the way it has been adopted in our view does not change its validity for 
our purposes. 
7.11  On several occasions Australia referred to Article 5.3, which it invoked for the first time at 
the interim review stage.  It submitted that the Pa nel "ignored the right of WTO Members to take into 
account the factors referred to in Article 5.3".  Wh en addressing this provision in paragraph 8.50 we 
noted the following: "Canada does not challenge th e measure at issue under Article 5.3 (elaborating 
on the "relevant economic factors" to be taken into  account in a risk assessment) nor do we see any 
reason to further examine this provision".  I ndeed, Article 5.3 is a provision imposing an obligation  
on Australia to take into account certain economic factors in assessing risk.  It is, therefore, a 
provision  - we would expect - to be invoked by Ca nada.  However, by not addressing this provision 
we do by no means ignore the right  of Australia to take into account these factors.  The definition of 
risk assessment we applied, for example, refers to "economic consequences"  and we have addressed 
such consequences consistently in, e.g., paragr aphs 8.72 and following and 8.121 and following. 
7.12 With respect to paragraph 8.60, Canada s ubmitted that the Panel should not have limited its 
findings under Articles 5.5 and 5.6 of the SPS Agreement to adult, wild, ocean-caught Pacific salmon.  WT/DS18/R 
Page 134  
 
Canada argued that we thus make a distinction "not among claims  but among categories of products  
covered by the same claims".  For Canada, the Appellate Body Report on United States - Measures 
Affecting Imports of Woven Wool Shirts and Blouses  - to which we refer in support of the principle of 
judicial economy - only allows Panels to dispense with addressing only particular claims .  We 
changed paragraphs 8.60, 8.102 a nd 8.104 to clarify some of the concerns raised by Canada but 
maintained our position in applying the principle of judicial economy with respect to the salmon 
products at issue other than those from adult, w ild, ocean-caught Pacific salmon for our examination 
under Articles 5.5 and 5.6.  We recall that we f ound an inconsistency with Article 5.1 of the SPS 
Agreement with respect to all salmon products at is sue (including those other than from adult, wild, 
ocean-caught Pacific salmon).  In principle we might thus have stopped our examination there.  However, we considered it appropriate to also addres s in the alternative (i.e., in case we were to have 
found that the measure at issue is consistent with  Article 5.1) Articles 5.5 and 5.6 but limited our 
examination under these provisions to the salmon pr oducts at issue specifically addressed by the 
Australian risk assessment, i.e., those from adult,  wild, ocean-caught Pacific salmon.  Whether one 
considers this limitation to imply a distinction betw een claims or a distinction between categories of 
products covered by one and the same claim does not  in our view preclude us from adhering to the 
prudential dictates of judicial economy as we did in this dispute. 
7.13  Australia referred to, inter alia , paragraphs 8.68 and following and argued that they do not 
address differences between additives, contaminants or toxins on the one hand (for which only the 
definition in paragraph 1(b) of Annex A to the SPS Agreement a pplies) and naturally occurring 
diseases on the other hand (for which several definiti ons in paragraph 1 of Annex A might apply).  
We consider that this issue is sufficiently covered in pa ragraphs 8.34 and following and 
paragraphs 8.68 and following.    
7.14  With respect to paragraph 8.96, Australia su bmitted - for the first time during our proceedings  
- that the heat treatment requirements it currently  imposes are based on a risk assessment, reflecting 
the scientific knowledge of the 1980s, in accordance with assessments and practices that predate the 
entry into force of the SPS Agreement.  Howeve r, Australia never provided us any such risk 
assessment.  We therefore decided not to change that part of our report. 
7.15 With respect to paragraph 8.107, Canada - for the first time in this dispute - invoked 
paragraph 3(c) of Annex B to the SPS Agreement (re ferred to in Article 7 of that Agreement) in 
support of its claim under Article 5.5 that there rest s an obligation on Australia to identify or quantify 
its appropriate level of protection.  We note that claims under Article 7 - which is not mentioned in 
the Panel request setting out our terms of reference - fall outside our mandate.  Moreover, even in so 
far as paragraph 3(c) of Annex B is part of the c ontext in which the wording of Article 5.5 should be 
read, we do not consider that it imposes a substa ntive obligation on Members to identify or quantify 
their appropriate level of protec tion.  In our view, paragraph 3( c) of Annex B imposes a mainly 
procedural obligation to provide "a nswers to all reasonable questions from all interested Members" as 
well as "relevant documents" regarding "the determ ination of the appropriate level of sanitary 
protection". We therefore kept our position in para graph 8.107 unchanged.  We did rephrase part of 
that paragraph to avoid some further misunderstandings hinted at by Canada. 
7.16 Canada further commented on paragraphs 8.127 and 8.128.  We took this comment into 
account and accordingly made some changes in paragr aphs 8.120, 8.127 and footnote 335  to clarify 
that Canada not only forwarded the four comparisons  we further examined under Article 5.5 but also 
referred to others. 
7.17 We incorporated changes suggested by Ca nada in paragraph 8.144 specifying that the 
arguments contained in that paragraph predate the circulation of the Appellate Body Report on EC - 
Hormones .    WT/DS18/R 
   Page 135  
 
7.18  In the context of paragraph 8.154, Austra lia submitted that our lega l reasoning and reference 
to the difference in conclusions reached by the 1995 Draft Report and the 1996 Final Report will 
discourage Members from issuing draft reports for domestic public comment and for comments from 
other Members.  We recall, however, that in our vi ew risk communication is an important aspect of a 
risk analysis.  Nowhere should our report be inte rpreted as discouraging risk communication.  All we 
refer to in this respect is (as stated in paragra ph 8.154) that Australia did not explain why the risk 
communication exercise - conducted between the tw o reports - brought about the change in 
recommendations between the 1995 Draft Report and th e 1996 Final Report.  We accept, of course, 
that changes are made between draft reports sent out  for public comment and final reports.  However, 
one may reasonably expect that s ubstantial changes in the recommenda tions contained in these reports 
can be explained and justified in terms of Me mbers' commitments under the WTO agreements.  
7.19 With respect to paragraph 8.185, Canada re quested the Panel to also find a violation of 
Article XI of GATT 1994 since we "already made the findings necessary to support" such finding.  
Even if this were the case, in our view a finding th at the measure at issue also violates Article XI of 
GATT 1994 would not contribute to the resolution of the matter at issue in this dispute nor, in terms 
of Article 11 of the DSU "assist the DSB in ma king the recommendations or in giving the rulings 
provided for in the covered agreements".  Indeed, if  we were to find that Article XI of GATT 1994 is 
violated, we would not be able to stop our examination there.  The issue would then arise whether such violation could not be justif ied under Article XX of GATT 1994 wh ich, in turn, would lead us to 
the SPS Agreement under which we already found inc onsistencies.  We therefore maintained our 
position of applying the principle of judicial economy in this respect.  
7.20 The comments made by Canada on paragra phs 8.73, 8.74, 8.75, 8.80, 8.105 and 8.107 are 
explicitly addressed or have been incorporated in  these paragraphs.  Canada also provided some 
technical corrections - to which Australia did not object - which we took into account in finalizing our 
report.  These dealt in particular with the technical  distinction to be made between a "disease" and a 
"disease agent", a distinction to which, in this re port, no substantial legal consequence is attached. 
7.21  The comments made by Australia on paragraphs  8.30, 8.53, 8.54, 8.55, 8.57, 8.58, 8.67, 8.81, 
8.83, 8.90, 8.98, 8.106, 8.118, 8.128, 8.129, 8.140, 8.145, 8.147, 8.148 and 8.163 are explicitly addressed or have been incorporated in these paragr aphs.  We also modified  paragraphs 8.72, 8.93, 
8.107, 8.121, 8.126, 8.137, 8.139, 8.149-8.156, 8. 171 and 8.180; added para graphs 8.40 and 8.135; 
and deleted paragraphs 8.98, 8.117 and 8.152 in the interim report, to accommodate or respond to 
some of Australia's concerns. 
VIII.  FINDINGS  
A. CLAIMS OF THE PARTIES  
8.1 Canada claims that certain Australian quaran tine measures which, it alleges, effectively ban 
the importation of fresh, chilled and frozen salmon, are inconsistent with Article XI of GATT 1994 
and Articles 2, 3 and 5 of the SPS Agreement.  In th e alternative, Canada claims that the Australian 
measures nullify or impair benefits accruing to it under the WTO Agreement within the meaning of 
Article XXIII:1(b) of GATT 1994.  Australia reje cts these claims and submits that its measures 
applying to fresh, chilled and frozen salmon are fully c onsistent with Australia's rights and obligations 
under both the SPS Agre ement and GATT 1994. 
B. ORGANIZATIONAL ISSUES  
8.2 At our first substantive meeting we decide d to seek advice from individual scientific experts 
in accordance with Article 13 of the DSU and Arti cle 11.2 of the SPS Agreement.  The procedures we 
adopted for our consultation with the experts advising the Panel are set out in paragraphs 6.1-6.6.  We WT/DS18/R 
Page 136  
 
first solicited advice from the experts advising th e Panel on a series of scientific and technical 
questions.  An overview of the experts' written answers to these questions can be found in paragraphs 6.7-6.157.  The parties commented extens ively on the experts' answers.  We then held a 
meeting with the parties and the scientific experts advising the Panel to allow the experts to express 
their views orally and to enable both the Panel and the parties to ask a dditional questions.  The 
verbatim transcript of this meeting is attached to our report as Annex 2 (and hereafter referred to as 
"transcript").  The meeting with experts advisi ng the Panel took place the day before our second 
substantive meeting in order to allow the parties to  incorporate - in their rebuttal statements - the 
comments and conclusions they might draw from the scientific evidence gathered  by the Panel.  On 
request by the parties, we delayed our second subs tantive meeting - and the meeting with experts 
advising the Panel - to 4 and 5 February 1998 to enab le the parties to make their rebuttal statements in 
light of the Appellate Body Report on European Communities - Measures Concerning Meat and Meat 
Products (Hormones)  (hereafter referred to as " EC - Hormones "). 
8.3 To allow the experts advising the Panel to ta ke into account all material evidence before the 
Panel when answering our questions, we requested th e parties - at the end of our first substantive 
meeting - to submit any additional evidence they mi ght have together with their rebuttal submission 
which was due on 7 October 1997.  However, we also made clear that the parties would still be given 
the opportunity to comment on the experts' answ ers, both in writing until 18 December 1997 and at 
the meeting with the experts advising the Panel.  
8.4 At our second substantive meeting, Australia  requested us to excl ude Annex K submitted by 
Canada as part of its comments on the experts' writ ten answers, hereafter referred to as the "Vose 
Report"
193, as well as Exhibit C-14 annexed by Canada to the oral statement it made at the second 
substantive meeting held after the me eting with experts advising the Panel.194  Australia argues that 
for due process reasons documentary evidence needs to  be provided at the earliest stage of the panel 
process and that both documents have been submitt ed after the 7 October 1997 deadline.  Both the 
Vose Report and Exhibit C-14 were submitted after the 7 October 1997 deadline we imposed.  Even 
though Canada transmitted the Vose Re port before our meeting with th e experts advising the Panel as 
an annex to its comments on the experts' written answ ers, it is unclear to us whether the Vose Report  
- given its complexity and length (it allegedly constitutes a complete alternative risk assessment 
commissioned by Canada) - can be qualified as a "c omment" on the specific answers provided by the 
scientific experts advising the Panel which parti es were allowed to make after the 7 October 1997 
deadline.  We recall, however, that  - as is outlined in paragraph 8.22 - we granted Australia the one 
additional week it requested to respond, inter alia , to the Vose Report in a third written submission.  
Against this background and since, in our view, th e Vose Report is in any event not crucial to our 
report, we shall not further consider it in our examin ation.  With respect to Exhibit C-14, submitted by 
Canada at our second substantive meeting and thus after  the meeting with the experts advising the 
Panel, we agree with Australia that the 7 October 1997 deadline applies and th at it should, therefore, 
be rejected.  The experts advising the Panel never re ceived this document.  The experts could thus not 
comment on it. We therefore exclude Exhibit C-14 from our examination.   
8.5  Finally, at the interim review meeting Aust ralia also pointed out that the risk assessment 
conducted by New Zealand in 1997 which Canada attached to its comments on the experts' written 
responses,  hereafter "1997 New Zealand Risk Analysis".195  should be excluded since it was 
submitted after the 7 October 1997 deadline.  In one of  our questions to the e xperts advising the Panel 
we inquired whether the risk assessment conducted by New Zealand in 1994 - and which had been 
submitted to us by Canada as an exhibit to its firs t submission - was scientifically relevant to this 
dispute.  In response, one of the experts advising  the Panel referred to and discussed the more recent 
                                                      
193 David Vose, "Quantitative analysis of the risk of establishment of Aeromonas salmonicida  and 
Renibacterium salmoninarum  in Australia as a result of importing Canadian ocean-caught salmon". 
194 Lester and Sewell, "Checklist of Parasite s from Heron Island, Great Barrier Reef". 
195 Stone, MacDiarmid and Pharo, "Import Health Risk Analysis: Salmonids for Human Consumption, New 
Zealand, Ministry of Agriculture Regulatory Authority", 1997.    WT/DS18/R 
   Page 137  
 
1997 risk assessment carried out by New Zealand.  In its comments to this answer, Canada submitted 
this risk assessment.  On this ground, we cons ider that we can take into account the 1997 
New Zealand Risk Analysis in our further examination. 
C. GENERAL INTERPRETATIVE ISSUES  
 1. Scope of the Australian measures in dispute  
8.6 Our terms of reference direct us to examine "i n light of the relevant provisions of the covered 
agreements cited by Canada in doc ument WT/DS18/2 [the request for establishment of this Panel], the 
matter referred to the DSB by Canada in that document".196  
8.7 In the Panel request Canada specifi ed the contested measures as follows: 
"The Australian Government's measures pr ohibiting the importation of fresh, chilled 
or frozen salmon ... include Quarantine Pr oclamation 86A, dated 19 February 1975, 
and any amendments or modifications to it.  The measures adversely affect the 
importation of Canadian salmon".197  
In its first submission to the Panel, Canada sp ecifies that the Australian measures at issue are 
"Quarantine Proclamation 86A ("QP86A") and pub lished requirements pursuant to QP86A that 
together require salmonid product to be heat treated  for certain prescribed durations and temperatures, 
prior to importation into Australia".198  Canada sums up the following Australian measures as 
published requirements pursuant to QP86A: (1) "Guidelines for the Importation of Smoked Salmon 
and Trout into Australia", issued in July 1983 by the Australian Department of Primary Industries and 
Energy ("1983 Guidelines";  these Guidelines are no longer in effect and we shall thus not further 
address them); (2) "Conditions for the Importation of Salmonid Meat and Roe into Australia", issued 
on 1 June 1988 by the same department a nd replacing earlier guidelines, including the 1983 
Guidelines ("1988 Conditions"); (3) "Requirements for the importation of individual consignments of 
smoked salmon meat", issued by the Australia n Quarantine and Inspection Service ("AQIS") on 
24 January 1996 ("1996 Requirements"); and (4) the Decision of the Director of Quarantine, dated 
13 December 1996, that a permit will not be issued for the importation into Australia of "uncooked, 
adult, wild, ocean-caught Pacific salmonid product from the Pacific rim of North America" ("1996 Decision").
199  
8.8 Australia submits that the measure at issue is  the 1996 Decision.  For Australia, QP86A is not  
at issue since it does not constitute an import pr ohibition but only provides the legal basis for 
conditions of entry of salmon.  Australia submits th at the fact that imports of appropriately heat-
treated and canned salmon have been permitted, is evidence that QP86A does not constitute an import 
prohibition.  If Australia is correct, the scope of th is dispute would be limited to the specific category 
of salmon covered by the 1996 Decision.  At the inte rim review stage, Australia further alleged that 
the 1988 Conditions only apply to products imported in  heat-treated form and are not comprehensive 
since other products may enter Australia provided th e decision-maker is satisfied that the risk is 
acceptable.  Such other products which are allo wed for importation are commercially canned salmon 
(according to Australia, not subject to formal gui delines) and material for scientific and research 
purposes.   
8.9 Canada counters that it does not argue that QP86A is an import prohibition, but rather, that it 
has been applied  as an import prohibition, by means of the published guidelines and conditions on 
                                                      
196 WT/DS18/3, 3 June 1997. 
197 WT/DS18/2, 10 March 1997, p.1. 
198 Canada, First Submission, para. 4. 
199 The first three measures were referred to by Canada in  its first submission, footnote 2, p.1.  Later in the 
proceedings Canada also referred to the 1996 Decision. WT/DS18/R 
Page 138  
 
heat treatment.  For Canada, it is a fact that Canadian fresh, chilled and frozen salmon cannot enter 
Australia and that, therefore, the measures in ques tion operate as an import pr ohibition.  Furthermore, 
Canada notes that if the measure at issue would only be the 1996 decision by the Director of 
Quarantine, the scope of the measure would be limit ed to uncooked, adult, wild, ocean-caught Pacific 
salmon from Canada and the United States.  However,  according to Canada, the terms of reference of 
the Panel extend to all fresh, chilled and frozen salmon from Canada. 
8.10 QP86A provides in relevant part: 
"NOW THEREFORE I, ..., the Governo r-General of Australia, ..., hereby, 
...  
 (d) prohibit the importation into Australia of dead fish of the sub-order 
Salmonidae, or any parts (other than semen or ova) of fish of that sub-order, 
in any form unless 
 (i) prior to importation into Australia the fish or parts of fish have been 
subject to such treatment as in the opinion of the Director of 
Quarantine is likely to prevent the introduction of any infectious or 
contagious disease, or disease or pest affecting persons, animals or 
plants; (underlining added) and  
 (ii) the Director of Quarantine or a person authorized by him has, by 
instrument in writing, consented to the importation and the instrument 
is produced to a Collector ... or to a quarantine officer".200  
8.11 The 1988 Conditions, which replaced earlie r guidelines (including the 1983 Guidelines) 
which we do not need to address, provide as follows: 
"CONDITIONS FOR THE IMPORTATION OF SALMONID MEAT AND ROE 
INTO AUSTRALIA 
1. All uncanned salmon and trout meat and salmon roe will require a quarantine 
permit to enter Australia. 
... 
3. On current information approved te mperature time relationships are as 
follows: 
35° for 7 hours   ) 
40° for 5 1/2 hours  ) 
50° for 3 hours   ) oven temperatures 60° for 1 hour   ) 70° for 0.25 hour  ) 120° for 0.2 hour  ) 
... 
5. The Australian Quarantine and Insp ection Service is willing to consider 
variations to the current requirements which could take into account the effects of the 
auxiliary processing such as "flash-baking" , "par boiling", "gamma irradiation", 
                                                      
200 Commonwealth of Australia Special Gazette No. S 33, 21 February 1975.    WT/DS18/R 
   Page 139  
 
"brining" or "freezing" where the effec tiveness of this process in inactivating 
organisms can be demonstrated ... 
... 
12. These conditions valid at 1 June 198 8, are subject to alteration at the 
discretion of the Director of Animal and Plant Quarantine (Australia) or if the fish disease status of any exporting country changes".
201  (underlining added) 
8.12 The 1996 Requirements specify new requirements for the importation of individual 
consignments of smoked salmonid meat (under 5 kg  in weight) accompanied by passengers.  These 
consignments are: 
"exempt from the certification requirement of Condition Code 5055 in Volume 5 of 
the Quarantine Manual.  However, treatme nt to the prescribed processing is still 
required".202  
8.13 The 1996 Decision of the Director of Quarantine reads in relevant part: 
"The [Chief Veterinary Officer] recomme nds "that the status quo for quarantine 
policies for uncooked salmon products continue" 
 - i.e., that the requests from Canada and US for access for uncooked, 
adult, wild, ocean caught Pacific salmonid product no t be approved. 
... On the basis of these considerations I have decided that, having regard to Australian 
Government policy on quarantine and after taking account of Australia's international 
obligations, importation of uncooked, adult, wild, ocean-caught Pacific salmonid 
product from the Pacific rim of North Amer ica should not be permitted on quarantine 
grounds".
203  
8.14 In addressing the argument raised by Australia  - that QP86A is not an "import prohibition" 
and that the only "import prohibition" at issue is the 1996 Decision - we note that the argument relates 
primarily (and for the purpose of our present examina tion, exclusively) to the interpretation of our 
terms of reference (in particul ar, the terms "measures prohibiting the importation" in the Panel 
request).  We, therefore, recall the Appellate Body's statement in its report on Brazil - Measures 
Affecting Desiccated Coconut :  
"A panel's terms of reference are important for two reasons.  First, terms of reference 
fulfil an important due process objective - they give the parties and third parties 
sufficient information concerning the claims at  issue in the dispute in order to allow 
them an opportunity to respond to the comp lainant's case.  Second, they establish the 
jurisdiction of the panel by defining the precise claims at issue in the dispute".204  
                                                      
201 Department of Primary Industries and Ener gy ("DPIE"), Document T88/90, 1 June 1988. 
202 AQIS, Quarantine Operational Notice 1996/022, 24 January 1996, p.2. 
203 AQIS, Policy Decision, 13 December 1996, Australian Exhibit 33 to its First Submission. 
204 Adopted 20 March 1997, WT/DS22/AB/R, p.22.  See also Appellate Body Reports on EC - Regime for 
the Importation, Sale and Distribution of Bananas,  adopted 25 September 1997, WT/DS27/AB/R, para. 142, and 
India - Patent Protection for Pharmaceutical and Agricultural Chemical Products , adopted 16 January 1998, 
WT/DS50/AB/R, paras. 87-88. WT/DS18/R 
Page 140  
 
We note, however, that in this dispute Australia does not argue that either QP86A or any of the 
guidelines, conditions or requirements mentioned by Ca nada fall outside our terms of reference due to 
lack of specificity of the Panel request, in the sense of Article 6.2 of the DSU.205 In line with this, 
Australia does not submit that the request for cons ultations or the Panel request did not give it 
adequate notice that Canada would also cont est measures implementing QP86A.  Australia only 
argues that none of the measures challenged by Canada, other than the 1996 Decision, can be 
considered as an "import prohibition", i.e., the kind of measure mentioned in the Panel request. 
8.15 Considering, first, whether QP86A falls within  our terms of reference, we note that our terms 
of reference are defined in the Panel request and th at in this case the Panel request explicitly identifies 
QP86A.  We find, therefore, that QP86A, irrespective of how Canada characterizes it ( in casu , 
Canada considers it to be a measu re "prohibiting the importation of fresh, chilled or frozen salmon"), 
falls within our terms of reference.  In this respect, we note, moreover, that in 1975 a Chief 
Quarantine Officers (Animals) Conference decided that under QP86A "all fresh or frozen salmonid 
flesh is prohibited".206  The 1996 Final Report as well stated unambiguously that under QP86A 
"commercial quantities of fresh, frozen and chille d salmon product are not permitted entry into 
Australia".207  
8.16 We next examine whether the published re quirements pursuant to QP86A referred to by 
Canada (i.e., the 1988 Conditions, the 1996 Requir ements and the 1996 Decision) fall within our 
terms of reference.  We note that none of these requirements are explicitly mentioned in the Panel 
request.  We recall, however, that the Panel request does refer to "measures prohibiting the 
importation of fresh, chilled or frozen salmon" a nd explicitly mentions QP86A as being one such 
measure.   
8.17  The 1996 Decision is a decision taken by the Director of Quarantine on the basis of the 
authority delegated to him by QP86A.  Following a recommendation of the Chief Veterinary Officer 
"that the status quo for quarantine policies for uncooked  salmon products continue",  it explicitly states 
that the "importation of uncooked, adult, wild, ocean-caught Pacific salmonid product from the 
Pacific rim of North America should not be permitte d on quarantine grounds".  It thus confirms the 
general prohibition in principle imposed by QP 86A on the importation of all salmonid products 
(unless special authorization is granted) for a limited category of salmonid products.  It confirms, more particularly, the decision taken by the Chief Quarantine Officers (Animals) Conference, referred 
to in paragraph 8., that "all fresh or frozen salmonid flesh is prohibited".  We consider, therefore, that 
the 1996 Decision is a measure "prohibiting the importation of fresh, chilled or frozen salmon" as referred to in the Panel request and this even though it only prohibits importation of a specific 
category of "fresh, chilled or frozen salmon" (namel y, "uncooked, adult, wild, ocean-caught Pacific 
salmonid product").  In our view, the 1996 Decision is , moreover, subsidiary and so closely related to 
QP86A that it can be said to be part of the application of QP86A.
208 On these grounds, we find that 
the 1996 Decision falls within our terms of reference.   
8.18  In our view, the same reasoning applies to the 1988 Conditions.  They impose - as the title of 
the 1988 Conditions reads - "conditions for the importa tion of salmonid meat and roe into Australia".  
They authorize - by decision of the Director of Qu arantine who was granted the authority to do so in 
                                                      
205 Article 6.2 of the DSU provides in relevant part: "The request for the establishment of a panel shall be 
made in writing.  It shall indicate whether consultations were held, identify the specific measures at issue and provide a brief summary of the legal basis of the compla int sufficient to present the problem clearly". 
206 Chief Quarantine Officers (Animals) Conference s 1975, (Canberra) 23-24 September, (Melbourne) 17 
November,  p.20. 
207 1996 Final Report, p.4. 
208 Panel Report on Japan - Measures Affecting Consumer Photographic Film and Paper, adopted on 
22 April 1998, WT/DS44/R, para.  10.6-10.11, especially at pa ra. 10.10:  "In our view, "measures" that are subsidiary 
or closely related to specified "measures" can be found to be "adequately identified" as that concept was applied in the Bananas III case".    WT/DS18/R 
   Page 141  
 
QP86A - the importation of salmonid meat and roe into Australia subject to heat treatment in 
accordance with certain approved temperature-time rela tionships.  In that sense, they are - as the 1996 
Decision is - subsidiary and so closely related to QP 86A that they can also be said to be part of the 
application of QP86A.209 Contrary to what Australia alleges, nothing in the 1988 Conditions implies 
that the 1988 Conditions only apply to heat-treated product.  Only the actual requirement  for 
importation imposed in the 1988 Conditions (not the sc ope of application of th ese conditions) refers to 
heat treatment.  According to Australia, only two other categories of salmonid product (for which no formal guidelines exist) may enter Australia:  canned salmon
210 (which, however, according to 
Australia will a fortiori  meet the heat treatment requiremen ts contained in the 1988 Conditions) and 
frozen, uncooked salmon tissue to be used for scientific purposes or for taxidermy.211  Therefore, to 
the extent that the 1988 Conditions require salmon pr oduct to be heat-treated before they can enter 
Australia and given the fact that, according to Australia, only some minuscule quantities of salmon 
product not so heat-treated can enter Australia (namely, frozen, uncooked salmon tissue used for 
scientific purposes or taxidermy), we consider that th e 1988 Conditions, read in that context, in effect 
deny the importation of commercial quantities of salmon product not heat-treated as prescribed.212 
The 1988 Conditions can, in that sense, also be  said to constitute a me asure "prohibiting the 
importation of fresh, chilled or frozen salmon"  as referred to in the Panel request.213 For the above 
reasons, we consider that also the 1988 Conditions fa ll within our terms of reference.  Finally, with 
respect to the 1996 Requirements - which deal w ith the importation of individual consignments of 
salmonid meat and confirm that the heat treatme nt requirements imposed in the 1988 Conditions 
apply for such imports - we consider that the same reasoning as that developed above for the 1988 
Conditions applies.  We thus cons ider that the 1996 Requirements fall within our terms of reference. 
8.19 For the above reasons, we consider that, accord ing to our terms of reference, the measure we 
need to examine in this dispute is QP86A as implemented or confirmed by the 1988 Conditions, the 1996 Requirements and the 1996 Decision and this in so far as it prohibits the importation into 
Australia of fresh, chilled or frozen salmon. 
8.20 In its first submission, Canada specifies certa in limits on the scope of the dispute.  Australia 
does not object to this and we see no reason to do so e ither.  First, Canada limits its challenge to the 
treatment of Canadian salmon.  Se cond, Canada further specifies th at only salmon products for human 
consumption are at issue.  Third, Canada also cl arifies the notion of "fresh, chilled or frozen" salmon, 
the only category of salmon mentioned in the Pane l request (also referred to by Canada as "uncooked 
salmon") to mean salmon which has not been heat  treated as required by Australia prior to 
importation. Fourth, Canada identifies the Canadian  salmon for which it seeks access to the Australian 
market to consist of the following seven species:  
(1) pink salmon; 
(2) chum salmon;  
(3) coho salmon; (4) sockeye salmon;  (5) chinook or king salmon; (6) steelhead/rainbow trout;  and  (7) Atlantic salmon.   
                                                      
209 Ibid. 
210 1996 Final Report, p.4:  "commercially canned salmon products in hermetically sealed containers not 
requiring refrigeration may be imported". 
211 Ibid., p.4:  "small amounts [of fresh, frozen and chilled salmon product] have been permitted entry into 
approved premises for scientific purposes". 
212 1996 Final Report, p.4:  "commercial quantities of fresh, frozen and chilled salmon product are not 
permitted entry into Australia" and Chief Quarantine Officers (Animals) Conferences 1975, (Canberra) 23-24 September, (Melbourne) 17 November,  p.20:  "all  fresh or frozen salmonid flesh is prohibited". 
213 At our interim review meeting, Australia stated that it was reviewing its heat treatment requirements but 
that in the interim the 1988 Conditions are applied. WT/DS18/R 
Page 142  
 
The first five species are all P acific salmon. The sixth species, st eelhead/rainbow trout, differs from 
the other species referred to by Canada in that it is - according to the experts advising the Panel on 
this issue214  - not a "salmon" species but only part of the wider "salmonid" family (including, 
inter alia , the genus Oncorhynchus ).  Since the Panel request, which defines our terms of reference, 
only refers to "salmon", not to the wider category of "salmonid", we find that steelhead/rainbow trout 
falls outside our terms of reference. 
8.21 Considering our terms of reference as inte rpreted above and taking into account the further 
refinements provided in Canada's first submission,  we shall, therefore, only examine Australian 
QP86A as implemented or confirmed by the 198 8 Conditions, the 1996 Requirements and the 1996 
Decision and this only in so far as it prohibits the importation of salmon products (i.e., dead salmon or 
any part thereof) (1) imported from Canada, (2) for human consumption, (3) which are "fresh, chilled 
or frozen" (i.e., which have not been heat-treated as required by Australia prior to importation) and 
(4) which originate from any of the species of salmon identified by Canada other than 
steelhead/rainbow trout.  Hereafter we refer to this measure as "the measure in dispute" or "the 
measure at issue" and to the specific category of  salmon products fulfilling all four above-mentioned 
conditions as "the salmon products in disput e" or "the salmon products at issue".215  
 2. The "fundamental changes" introduced by Canada in its oral statement at the 
second substantive meeting  
8.22 At our second substantive meeting, Australia raised a procedural claim related to Canada's 
oral statement made at that meeting.  Accordi ng to Australia, Canada's oral statement introduced 
fundamental changes in the nature of its specific legal claims which are of  such significance that 
Australia should be allowed to rebut them through  a formal written rebuttal submission.  On this 
ground, Australia requested the Panel to give it mo re time - suggesting one extra week - to submit a 
third written rebuttal submission.  The "fundamental ch anges" referred to by Au stralia are outlined in 
paragraphs 4.8-4.17.  We consider that some of th ese changes - most of them inspired by the expert 
advice gathered by the Panel at the experts meeting and by the Appellate Body's Report on 
EC - Hormones  - are, indeed, substantial and for reasons of due process warrant an additional rebuttal 
period for Australia.  We thus granted Australia's request to submit a third written submission within 
one week after our second substantive meeting.  We gave the same opport unity to Canada and 
specified that both third submissions had to be li mited to the "fundamental changes" introduced by 
Canada as they were identified in an oral stat ement made by Australia at the second substantive 
meeting.  On 13 February 1998, we received such third submission from both parties.   
8.23 In its third submission Australia argues that  some of these "fundamental changes" are "new 
claims".  However, Australia does not submit that th ey are "new claims" in the sense that they fall 
outside our terms of reference.  The document wh ich defines our terms of reference is Canada's 
request for this Panel.  In relevant part Article 6.2 of the DSU requires that "[t]he request for the 
establishment of a panel shall ... identify the specifi c measures at issue and provide a brief summary 
of the legal basis of the complaint sufficient to present the problem clearly".  Moreover, as noted by 
the Appellate Body in European Communities - Regime for the Importation, Sale and Distribution of 
Bananas:  
"There is no requirement in the DSU or in  GATT practice for arguments on all claims 
relating to the matter referred to the DSB to be set out in a complaining party's first 
written submission to the panel.  It is th e panel's terms of reference, governed by 
                                                      
214 Rodgers, Transcript, para. 23 a nd Winton, Transcript, para. 46. 
215 We note that we need not address in this disput e the importation of live salmon or salmon used as 
feedstuff or bait.    WT/DS18/R 
   Page 143  
 
Article 7 of the DSU, which set out the claims of the complaining parties relating to 
the matter referred to the DSB".216  
8.24 Canada's request for this Panel su fficiently identifies the measures at issue 217 and specifies, 
inter alia , that these measures "are inconsistent with (i)  the Agreement on the Application of Sanitary 
and Phytosanitary Measures, and in particular Artic le 2, 3 and 5 thereof".  We next address whether 
the, according to Australia, "new claims" made by Canada at our second substantive meeting fall 
within our mandate.  First, Australia argues that  Canada extended its claim under Article 5.1 to 
include claims in respect of h eat-treated salmon and salmon not c overed by the 1996 Final Report.  
This "new claim" remains a claim under Article 5.1, which falls within our terms of reference.  The 
product coverage of this dispute, set out in the Pa nel request and specified by Canada in its first 
submission, has been determined in paragraph 8.18.  It does not only include salmon products covered 
by the 1996 Final Report.  It does exclude heat-treated  product.  Second, Austra lia alleges that Canada 
introduced a new specific claim under Articles 5.1, 5. 2 and 2.2, on the basis that there was no rational 
relationship between the measure and the scientific evid ence.  We consider this "new claim" to be a 
new argument (put forward in support of claims under Articles 2 and 5 which do fall within our terms 
of reference), inspired by the Appellate Body Report on EC - Hormones , not a new claim.  Third,  in 
respect of Article 5.5, Australia submits that Cana da had not previously made a legal claim that the 
measure resulted in a disguised restriction on intern ational trade.  We consider this "new claim" 
(which refers to one of the requirements under Article  5.5 and has been raised by Canada in its first 
submission) to be a claim under Article 5.5, which do es fall within our terms of reference.  Fourth, in 
regard to Article 3.3, Australia argues that Canada  had not previously requested the Panel to make a 
finding of violation in respect of Article 3.3.  Cl aims under Article 3, including Article 3.3 to which 
Article 3.1 explicitly refers, fall within our terms of  reference.  Moreover, in its first submission, 
Canada already submitted that Australia does not fulfil the conditions in Article 3.3.  Fifth, in regard 
to Article 5.6, Australia argues that Canada introdu ced a new legal claim in respect of heat-treated 
product.  As we found in paragraph 8.18, heat-tr eated product falls outside the product coverage of 
this dispute.  However, as set out in paragr aph 8.18, the 1988 Conditions - which impose specific 
heat-treatment requirements before importation is allowed - do fall within our terms of reference. 
8.25 We thus consider that all of the "new cl aims" introduced by Canada at our second substantive 
meeting fall within our terms of reference and can be taken into ac count in our examination of this 
dispute. 
 3. Canada's claim under Article XXIII:1(b) of GATT 1994  
8.26 Australia argues that Canada's claim under Article XXIII:1(b) of GATT 1994, i.e., its claim of 
non-violation nullification and impairment, falls out side our terms of reference since it was not 
identified in Canada's Panel request.  Canada disagre es and submits that this claim was raised in its 
requests for consultations under GATT and the WTO a nd in its request for the establishment of this 
Panel. 
8.27 Article 6.2 of the DSU provides in relevant part: 
"The request for the establishment of a pa nel shall ... identify the specific measures at 
issue and provide a brief summary of the le gal basis of the complaint sufficient to 
present the problem clearly". 
The Appellate Body Report on European Communities - Regime for the Importation, Sale and 
Distribution of Bananas  noted the following: 
                                                      
216 Op. cit., para. 145. 
217 Paras. 8.6 ff. WT/DS18/R 
Page 144  
 
"Article 6.2 of the DSU requires that the clai ms ... must all be specified sufficiently in 
the request for the establishment of a panel in order to allow the defending party and 
any third parties to know the legal basis of the complaint.  If a claim  is not specified 
in the request for the establishment of a panel, then a faulty request cannot be 
subsequently "cured" by a complaining party's argumentation in its first written submission to the panel or in any other su bmission or statement made later in the 
panel proceeding".
218  
In its Report on India - Patent Protection for Pharmaceu tical and Agricultural Chemical Products , 
the Appellate Body found: 
"In this case ... there is a failure to identify  a specific provision of an agreement that is 
alleged to have been violated.  This falls  below the "minimum standards" [established 
by Article 6.2 of the DSU] that we were willing to accept in European Communities -
 Bananas ".219  
8.28 Since in this dispute, Article XXIII of GA TT 1994 is not mentioned by Canada in its request 
for this Panel as a legal basis for its complaint ( only as a legal ground to obtain the establishment of 
the Panel) and the Panel request does not refer at  all to the more specific and quite different non-
violation provision of Article XXIII:1(b) (the Pane l request only refers to the idea of "nullification 
and impairment" in the context of measures "inconsis tent" with WTO rules in the sense referred to in 
Article XXIII:1(a)), we find that  Canada's claim under Article XXIII: 1(b) falls outside our terms of 
reference. 
 4. Application of GATT 1994 and the SPS Agreement  
8.29 Canada first claims that the measure in dispute violates GATT 1994.  We note that this 
dispute relates to trade in goods ( in casu , imports of certain fresh, ch illed or frozen salmon products) 
and that on its face GATT 1994 applies. 
8.30 Canada next invokes the SPS Agreement.  Bo th parties agree that the SPS Agreement applies 
to the measure in dispute.  Article 1.1 of the SPS Agreement provides that it applies to  
"all sanitary and phytosanitary measures whic h may, directly or indirectly, affect 
international trade.  Such measures shall be developed and applied in accordance with 
the provisions of this Agreement".  
Neither of the parties to this dispute contests that th e measure at issue affects international trade.  We 
agree that it does so. 
8.31 With respect to the question whether the measure in dispute is a "sanitary measure", 
paragraph 1 of Annex A to the SPS Agreement defines what is considered to be a "sanitary measure" 
for purposes of the SPS Agreement.  Australia clai ms that the measure in dispute falls under the 
following two definitions of a "sanitary measure": 
"[a]ny measure applied:  
 (a) to protect animal ... life or health within the territory of the Member from 
risks arising from the entry, establishmen t or spread of pests, diseases ... or 
disease-causing organisms;  
                                                      
218 Op. cit., para. 143, emphasis in original. 
219 Adopted 16 January 1998, WT/DS50/AB/R, para. 91.    WT/DS18/R 
   Page 145  
 
 (b) to protect ... animal life or health within the territory of the Member from 
risks arising from ... disease-causing organisms in foods ...".220  
8.32 According to Australia, the measure at issue is  applied to protect the life and health of animals 
in Australia, more particularly salmonids and other aquatic animals.  The protection of human life or 
health is not at issue in this dispute.  With r espect to the definition of a "sanitary measure" in 
paragraph 1(a), Australia argues that the measure at issue is intended to protect Australian salmonids 
and other aquatic animals against 24 disease agents ("diseases ... or disease-causing organisms") of concern to it.
221 To justify that its measure also falls unde r the definition of a "sanitary measure" in 
paragraph 1(b), Australia notes that, if allowed in to Australia, Canadian salmon would be used as food 
(for human consumption).  According to Australia , this food could incidentally enter Australian 
waterways, (e.g., through waste disposal) where it might be consumed (as feedstuff) by salmon or other fish and thus adversely affect animal h ealth with any of the 24 diseases of concern. 
8.33 Canada argues that the measure in disput e only falls under the definition of a "sanitary 
measure" contained in paragraph 1( a) of Annex A.  Canada refers to the first introductory paragraph 
of the "Salmon Import Risk Analysis, Final Report" of December 1996, put forward by Australia as 
the risk assessment on which its measure is based ("1996 Final Report").  That paragraph, entitled 
"Purpose of paper", states that the main issues discussed are, inter alia , "the likelihood of disease 
entry and establishment" and "the consequences that may arise from that disease entry and 
establishment".
222  Canada submits that there is no mention of assessing risks to salmon from disease-
causing organisms in food and that one would not expect such an assessme nt when the product in 
question is intended for human consumption. 
8.34 In the circumstances at hand, we consider that the definition of a "sanitary measure" in 
paragraph 1(a) encompasses the c overage sought by Australia under th e definition in paragraph 1(b).  
The definition in paragraph 1(a) deals with risks ar ising from "the entry, establishment or spread of 
pests, diseases ... or disease-causing organisms" in general.  In the context of disease-causing 
organisms, the definition in paragraph 1(b) is li mited in the sense that it only addresses risks arising 
from "disease-causing organisms in foods, beverages or feedstuffs" (hereafter also referred to as food-
borne risks).  We are of the view that, even thou gh both definitions of a "sanitary measure" invoked 
by Australia might be applicable to the measure in  dispute, the objectives for which that measure is 
being applied are more appropriate ly covered by the definition in paragraph 1(a).  These objectives 
have been clearly expressed by Australia on several occasions.   
8.35  First, QP86A itself provides that the import of  salmon products is prohibited unless they have 
been "subject to such treatment as in the opini on of the Director of Quarantine is likely to prevent the 
introduction of any infectious or c ontagious disease, or diseases or pest affecting persons, animals or 
plants ".223  Second, in the 1996 Decision as well, the risk  against which protection is required is stated 
to be "the probability of establishment of ... diseases" .  None of the Australian measures submitted to 
the Panel are limited to, or even explicitly menti on, food-borne risks.  Third, also the 1996 Final 
Report, submitted by Australia as the risk assessment  on which its measure is based, assesses the risks 
related to "disease entry and establishment" and "t he consequences that may arise from that disease 
entry and establishment".224  Even though the Report is base d on the premise that the imported 
product is food intended for human c onsumption, it does not only address risk to fish life or health 
arising from this "food" infected with diseases in th e event this "food" were to end up in Australian 
waterways and be eaten by individual fish.  The scope of the 1996 Final Report is, indeed, much 
wider in that it assesses risk related to the entry, establishment and further spread of these diseases  in 
Australia more generally. 
                                                      
220 Paragraph 1(a) and (b) of Annex A. 
221 The 24 diseases of concern to Australia are summed up in Table 3 of the descriptive part. 
222 DPIE, Salmon Import Risk Analysis, Final Report, December 1996, p.3. 
223 QP86A, p.2, emphasis added, see para. 8.10. 
224 1996 Final Report, p.3. WT/DS18/R 
Page 146  
 
8.36 In this respect we also note that all Aust ralian measures submitted to the Panel, as well as the 
1996 Final Report, are explicitly presented by Australia  as "quarantine" measures or documents, (e.g., 
Quarantine  Proclamation 86A, the 1988 Conditions issued by the Director of Quarantine , the 1996 
Final Report is subtitled "An assessmen t by the Australian Government of quarantine  controls 
on ...").  Without defining the word "quarantine" as it is used in the SPS Agreement, we consider that 
the concept of "quarantine" more generally is co mmonly understood to relate to avoiding the spread 
of pests or diseases (in the sense of the definition of  a "sanitary measure" in paragraph 1(a)). It is not 
limited to protecting the life or health of individua l human beings or animals against food-borne risks 
(in the sense of the definition in paragraph 1(b)).225  
8.37 On these grounds, we find that, even though both definitions of a "sanitary measure" invoked 
by Australia might be applicable to the measure in dispute, in the specific circumstances of this case 
we need to examine this measure as a measure app lied "to protect animal ... life or health within 
[Australia] from risks arising from the entry, est ablishment or spread of pests, diseases ... or disease-
causing organisms" in the sense of paragraph 1(a)  of Annex A to the SPS Agreement.  Given our 
earlier considerations in paragraph 8., we thus fi nd that the SPS Agreement applies to the measure in 
dispute.  
 5. Relationship between the SPS Agreement and GATT 1994  
8.38 We found that both GATT 1994 and the SPS Agreem ent apply to the measure in dispute.  The 
question now arises which of these we should examine first. 
8.39 Canada recognizes that the SPS Agreement provides for obligations additional to those 
contained in GATT 1994, but, nevertheless, first a ddresses its claim under Article XI of GATT 1994.  
Australia invokes Article 2.4 of the SPS Agreemen t, which presumes GATT c onsistency for measures 
found to be in conformity with the SPS Agreement226, to first address the SPS Agreement.  We note, 
moreover, that (1) the SPS Agreement specifically addresses the type of measure in dispute, and 
(2) we will in any case need to examine the SPS Agreement, whether or not we find a GATT violation 
(since GATT consistency is nowhere presumed to c onstitute consistency with the SPS Agreement).  
In order to conduct our consideration of this dispute in the most efficient manne r, we shall, therefore, 
first address the claims made by Canada unde r the SPS Agreement before addressing those put 
forward under GATT 1994.227  
D. THE SPS AGREEMENT  
 1. Burden of proof  
8.40 Turning first to the question of burden of proof under the SPS Agreement, we note the 
following statement of the Appellate Body in its Report on EC - Hormones : 
"The initial burden lies on the complaining party, which must establish a prima facie  
case of inconsistency with a particular provision of the SPS Agreement  on the part of 
                                                      
225 The New Shorter Oxford English Dictionary defines "qua rantine" as "[a] period of isolation, orig. of forty 
days, imposed on a person, animal, or thing that might otherwise spread a contagious disease " (Clarendon Press, 
Oxford, Vol. 2, p.2440, emphasis added).  Webster's New Encyclopedic Dictionary (Könermann, Cologne, 1994, 
p.828) defines "quarantine" as "2:  a restraint upon the activ ities or movements of persons or the transport of goods 
designed to prevent the spread of disease or pests " (emphasis added). 
226 SPS Article 2.4 provides as follows: "Sanitary or phyt osanitary measures which conform to the relevant 
provisions of this Agreement shall be presumed to be in accordance with the obligations of the Members under the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article XX(b)". 
227 In this respect, we follow the approach taken in the Panel Reports on EC - Hormones , complaints by the 
United States and Canada, adopted 13 February 1998 (modified on appeal on other grounds), WT/DS26/R/USA and WT/DS48/R/CAN, para. 8.42, and para. 8.45, respectively.    WT/DS18/R 
   Page 147  
 
the defending party, or more precisely, of its SPS measure or measures complained 
about.  When that prima facie  case is made, the burden of proof moves to the 
defending party, which must in turn counte r or refute the claimed inconsistency".228  
In this dispute it is thus for Canada to establish a prima facie case of inconsistency of the Australian 
measure at issue with each of the provisions of the SPS Agreement Canada invokes.  Once this is 
done, it is for Australia to counter or refute the cl aimed inconsistency.  In other words, if Canada 
"adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts 
to [Australia], who will fail unless it adduces su fficient evidence to rebut the presumption".229  
8.41  In this respect - and especially following co mments made by Australia at the interim review 
stage that our legal reasoning and findings do not re flect an objective assessment of the matter before 
us, undertake a de novo  risk assessment and are based on motives or intent - we stress that in 
examining this case we did not attempt (nor are we , in our view, allowed) to conduct our own risk 
assessment or to impose any scientific opinion on Australia.  We only examined and evaluated the 
evidence - including the information we received fro m the experts advising the Panel - and arguments 
put before us in light of the relevant WTO provisi ons and, following the rules on burden of proof set 
out above, based our findings on th is evidence and these arguments. 
 2. Sequence of claims to be addressed  
8.42 Canada claims, in the following order, violati ons of Articles 3.1 and 3.3, Articles 5.1, 5.2, 5.5 
and 5.6 and Articles 2.2 and 2.3 of the SPS Agreement.   Australia addresses these claims in a different 
order, first presenting arguments under Article 2 of the SPS Agreement and further following a 
numerical order. 
8.43 The question thus arises which of these provisions of the SPS Agreement we should address 
first in this particular dispute.  
8.44 We note that Article 3,  the first Article  invoked by Canada, provides in relevant part: 
"1. To harmonize sanitary and phytosanitary measures on as wide a basis as 
possible, Members shall base their san itary or phytosanitary measures on 
international standards, guidelines or reco mmendations, where they exist, except as 
otherwise provided for in this Agreement,  and in particular in paragraph 3. 
2. Sanitary or phytosanitary measures whic h conform to international standards, 
guidelines or recommendations shall be deemed to be necessary to protect human, 
animal or plant life or health, and presume d to be consistent with the relevant 
provisions of this Agreement and of GATT 1994. 
3. Members may introduce or maintain  sanitary or phytosanitary measures 
which result in a higher level of sanitary or phytosanitary protection than would be achieved by measures based on the relevant  international standards, guidelines or 
recommendations, if there is a scientific justification, or as a consequence of the level 
of sanitary or phytosanitary protection a Me mber determines to be appropriate in 
accordance with the relevant provisions of paragraphs 1 through 8 of Article 5.  
Notwithstanding the above, all measures whic h result in a level of sanitary or 
phytosanitary protection different from that  which would be achieved by measures 
                                                      
228 Adopted 13 February 1998, WT/DS26/AB/R, para. 98.  See also the Panel Reports on EC - Hormones , 
op. cit., respectively, at paras 8.51 and 8.54. 
229 Appellate Body Report on United States - Measure Affecting Imports of Woven Wool Shirts and Blouses 
from India , adopted 23 May 1997, WT/DS33/AB/R, p.14. WT/DS18/R 
Page 148  
 
based on international standards, guide lines or recommendations shall not be 
inconsistent with any other provision of this Agreement".   
According to Article 3.2, if the measure in disput e conforms to international guidelines, it shall be 
presumed to be consistent with both the SPS Agreemen t and GATT 1994.  In that event, there would, 
at first sight, be no further need to address the SPS provisions at issue other than Article 3 ( in casu , 
Articles 2 and 5).  This could be a reason to first address Article 3.230 However, in the particular 
circumstances of this case, several considerations  lead us to not first examine Article 3.   
8.45 First, Australia - in this case the WT O Member imposing the sanitary measure - does not 
claim that its measure conforms to inte rnational guidelines.  Australia submits,  inter alia , that there 
are no international guidelines for some of the diseases of concern and that the measure at issue validly aims at a higher level of protection than th at reflected in the international guidelines referred 
to.  Therefore, the reason to address Article 3 fi rst, because it could lead to a presumption of 
consistency with all other SPS provision s, does not apply in this case.   
8.46 Second, the dispute before us concerns the importation of salmon  products, which according 
to Australia could carry up to 24 diseases .  Paragraph 3(b) of Annex A to the SPS Agreement 
indicates that the international standards, guidelines or recommendations referred to in Article 3  for 
animal health  (the concern at issue in this dispute) are those developed under the auspices of the 
International Office of Epizooties ("OIE").  Both parties agree that the International Aquatic Animal 
Health Code adopted by the OIE in 1995 ("OIE Code") provides international guidelines on a disease-
by-disease basis.  However, they al so agree that as of today no relevant OIE guideline exists which 
deals with salmon on a product specific basis.  More over, both parties also agree that OIE guidelines 
do not exist for all of the 24 diseases of concern to Au stralia.  Therefore, even if we were to examine 
first, if and how many relevant internationa l guidelines exist and second address the question of 
whether Australia deviates from these guidelines, we  would thereafter still need to examine either 
(1) in the event Australia does de viate from any such guidelines contrary to Article 3, whether the 
measure in dispute could not be based on Australia's  concern for any of the other diseases for which 
no international guideline exists ( in casu , under Articles 2 and 5);  or (2) in the event Australia's 
measure is based on and/or conforms to any such guidelines, whether that part of the measure for 
which no guidelines exist, is consistent with the pr ovisions of the SPS Agreement other than Article 3 
(in casu , Articles 2 and 5).  In this respect, we are of th e view, however, that the fact that in this case 
no international guidelines exist for all 24 diseases of concern does not mean that an international 
guideline which applies to only one of these diseases cannot be relevant (or, according to the language 
of Article 3.1, does not "exist") for the measure at issue. 
8.47 For the reasons mentioned above, even if we were to start our examination of this dispute 
under Article 3, we would in any event be referred to  and thus still need to address Articles 2 and 5.  
To conduct our examination of this case in the most ef ficient manner, we shall, therefore, first address 
Articles 2 and 5.   
8.48 Article 2, entitled "Basic Rights and Obligations", elaborates on the basic rights and 
obligations of WTO Members under the SPS Agreemen t.  Article 5, under the heading "Assessment 
of Risk and Determination of the Appropriate Le vel of Sanitary or Phytosanitary Protection", 
provides, inter alia , more detailed obligations with resp ect to risk assessment, establishes the 
objectives of minimizing negative trade effects and of  achieving consistency in levels of protection 
and specifies that sanitary measures should not be more  trade-restrictive than required.  The Appellate 
Body Report on EC - Hormones  on several occasions stressed the close relationship between 
Articles 2 and 5 (in particular between Articles 2.2 a nd 5.1 and Articles 2.3 and 5.5, all of which are at 
                                                      
230 We note that the Panels in EC - Hormones started their examination under Article 3 (op. cit., US 
complaint, paras. 8.45 and 8.56 ff.; Canadi an complaint, paras. 8.48 and 8.59 ff.).    WT/DS18/R 
   Page 149  
 
issue in this dispute).231  The Appellate Body repeatedly noted that the more general Article 2 imparts 
meaning to and is part of the context of the mo re specific Article 5 and that both Articles should 
constantly be read together.232 However, even if we read Articles 2 and 5 together during our 
examination of this case, in practice we still have to  decide which set of Canadian claims (those under 
Article 2 or those under Article 5) to address first.  Si nce in this particular case, (1) Canada itself first 
presents its claims under Article 5, before addressi ng those under Article 2, and (2) the provisions 
invoked by Canada under Article 5 (i.e., Articles 5.1, 5.2, 5.5 and 5.6) all provide for more specific 
and detailed rights and obligations than the "Basic Rights and Obligations" set out in rather broad 
wording in the provisions invoked by Canada under Article 2 (i.e., Articles 2.2 and 2.3)233, we 
consider it more appropriate in the circumstances of this dispute to first deal with Canada's claims 
under Article 5.234  
 3. Canada's claims under Articles 5.1 and 5.2:   Sanitary measures are to be based 
on a risk assessment  
8.49 Canada submits that the measure in dispute is  inconsistent with Articles 5.1 and 5.2, which  
provide as follows: 
"1. Members shall ensure that their sanita ry or phytosanitary measures are based 
on an assessment, as appropriate to the circ umstances, of the risks to human, animal 
or plant life or health, taking into account  risk assessment techniques developed by 
the relevant international organizations. 
2. In the assessment of risks, Member s shall take into account available 
scientific evidence;  relevant processes a nd production methods;  relevant inspection, 
sampling and testing methods;  prevalence of  specific diseases or pests; existence of 
pest- or disease-free areas; relevant ecological and environmental conditions; and quarantine or other treatment". 
Both parties agree that the OIE Code, in partic ular its Section 1.4 on "Import risk analysis"
235 which, 
inter alia , provides "Guidelines for Risk Assessment ", contains "risk assessment techniques 
developed by the relevant intern ational organizations" to be take n into account by Australia under 
Article 5.1.   
8.50 Canada does not challenge the measure at i ssue under Article 5.3 (elaborating on the "relevant 
economic factors" to be taken into account in a ri sk assessment) nor do we see any reason to further 
examine this provision. 
8.51 We recall that Articles 5.1 and 5.2 may be vi ewed as one of the specific applications of the 
basic obligations contained in Article 2.2236, which provides as follows: 
"Members shall ensure that any sanitary or  phytosanitary measure is applied only to 
the extent necessary to protect human, animal  or plant life or health, is based on 
                                                      
231 Op. cit., paras. 180, 212, 238 and 250. 
232 Ibid. 
233 In this respect we note, however, that not only Article 5, but also most other provisions of the SPS 
Agreement provide for more details on the basic rights and obligations set out in Article 2. 
234 In this respect we refer to the Appellate Body Report on EC - Regime for the Importation, Sale and 
Distribution of Bananas , adopted 25 September 1997, WT/DS27/AB/R, para. 204, which in a different context 
applied a similar reasoning: "Although Article X: 3(a) of the GATT 1994 and Article 1.3 of the Licensing Agreement  
both apply, the Panel, in our view, should have applied the Licensing Agreement  first, since this agreement deals 
specifically, and in detail, with the administration of import licensing procedures.  If the Panel had done so, then there would have been no need for it to address the alleged inconsistency with Article X:3(a) of the GATT 1994". 
235 OIE Code, pp.29-37. 
236 Para. 8.48 and Appellate Body Report on EC Hormones , op. cit., para. 180. WT/DS18/R 
Page 150  
 
scientific principles and is not maintained  without sufficient scientific evidence, 
except as provided for in paragraph 7 of  Article 5".  (underlining added) 
As stated by the Appellate Body in EC - Hormones :  
"... Articles 2.2 and 5.1 should constantly be read together.  Article 2.2 informs 
Article 5.1:  the elements that define the basic obligation set out in Article 2.2 impart meaning to Article 5.1".
237  
8.52 For these reasons, we consider, more particular ly, that Articles 5.1 and 5.2 - in the words of 
the Appellate Body in EC - Hormones  when dealing with the relationship between Articles 2.3 
and 5.5 - "may be seen to be marking out and ela borating a particular route leading to the same 
destination set out in" Article 2.2.  Indeed, in th e event a sanitary measure is not based on a risk 
assessment as required in Articles 5.1 and 5.2, this  measure can be presumed, more generally, not to 
be based on scientific principles or to be mainta ined without sufficient scientific evidence.  We 
conclude, therefore, that if we find a violation of the more specific Article 5.1 or 5.2 such finding can 
be presumed to imply a violation of the more genera l provisions of Article 2.2.  We do recognize, at 
the same time, that given the more general character of Article 2.2 not all violations of Article 2.2 are 
covered by Articles 5.1 and 5.2.  
  (a) The salmon products in dispute other than those from adult, wild, 
ocean-caught Pacific salmon238  
8.53 Canada claims that Australia maintains th e measure at issue with respect to the salmon 
products in dispute other than those from adult, w ild, ocean-caught Pacific salmon, without any form 
of risk assessment.  Australia acknowledges that the salmon products at issue in this dispute are not 
limited to adult, wild, ocean-caught Pacific salmon.  Australia argues that it had initially set in train a 
risk assessment of all salmonid product of Canadian or US origin, but that it acceded to the request 
from Canada and the United States in late 1994 that priority be accorded to a risk assessment on adult 
wild, ocean-caught Pacific salmon, which would redu ce the complexity of the process in regard to a 
product of higher commercial significance for Canada and the United States.  Australia submits that 
since, thereafter, Canada never requested to extend the product coverage of Aust ralia's risk assessment 
to all Canadian salmon, Australia cannot be reasonably expected to ha ve a formal risk assessment for 
all salmon products at issue.  In this respect, Aust ralia refers to Article 5.1 which requires a risk 
assessment "as appropriate to the circumstances".   
8.54 We recall that the scope of the measure in  dispute covers salmon products (1) imported from 
Canada, (2) for human consumption, (3) which ar e fresh, chilled or frozen and (4) which originate 
from any of six species of salmon identified by Canada (pink salmon, chum salmon, coho salmon, 
sockeye salmon, chinook or king salmon, all five  being Pacific salmon; and Atlantic salmon).239 
Within this broad category of salmon products at issu e five subdivisions can be made:  (1) adult, wild, 
ocean-caught Pacific salmon; (2) adult, wild, fre shwater-caught Pacific salmon; (3) adult Pacific 
salmon cultured in seawater on the Pacific coast; (4) adult Atlantic salmon cultured in seawater on the 
Pacific coast; and (5) adult Atlantic salmon cultured in seawater on the Atlantic coast.240 Of the 
salmon products at issue, Australia only claims to  have a risk assessment for the first of these five 
categories, namely those from adult, wild, ocean-cau ght Pacific salmon.  This category represents the 
                                                      
237 Op. cit., para. 180. 
238 The salmon products addressed in this section are the salmon products in dispute from (1) adult, wild, 
freshwater-caught Pacific salmon; (2) adult Pacific salmon cultured in seawater on the Pacific coast; (3) adult Atlantic salmon cultured in seawater on the Pacific coast; and (4) adult Atlantic salmon cultured in seawater on the Atlantic coast. 
239 Para. 8.21. 
240 In its answer to original Panel Question 2, Canada stated that it only harvests adult salmon for export and 
that it does not harvest wild Atlantic  salmon for export.    WT/DS18/R 
   Page 151  
 
majority of Canadian e xports of uncooked salmon.241 With respect to this category of salmon products 
Australia submits that the measure in dispute is  based on the "Salmon Import Risk Analysis, Final 
Report" published by the Department of Primary Industries and Energy in December 1996 (hereafter 
referred to as the "1996 Final Report").  With resp ect to the other four categories of salmon products 
in dispute, Australia concedes that it has not conduc ted or relied upon a risk assessment in the sense of 
Article 5.  In its Rebuttal Submis sion Australia states the following: 
"The risk has been assessed in relation to  diseases or disease agents in adult, wild, 
ocean caught uncooked salmon of Canadian and US origin.  The Final Report of 
December 1996 is an assessment of the risk.  There is no other risk assessment.  No 
formal assessment has been undertaken on all uncooked salmon of Canadian origin.  
It was the intention to undertake such a risk assessment, but the product coverage was 
subsequently limited to the Pacific salmon at the request of Canada and the USA".242  
(underlining added) 
The 1996 Final Report itself explai ns its limited scope as follows: 
"Canada and the United States have requested access for salmon products without 
reference to the species.  However Australia , after consulting with the United States 
and Canada, has so far addressed the import of wild, ocean-caught Pacific salmon 
only.  This allows more focused debate on the disease issues associated with Pacific 
salmon.  Other classes of product, including  aquaculture product and product derived 
from other species and/or locations, are exp ected to be characterised by different 
disease factors".243  (underlining added) 
To this Australia adds in its first submission that "to the extent that a disease agent is common to the 
wild Pacific and other Canadian salmon products, the conclusions [reached in the 1996 Final Report] 
are equally valid for all fresh, chilled and frozen salmon of Canadian origin".244  
8.55 Canada counters that it only suggested to Australia to proceed first with an assessment of 
adult, wild, ocean-caught Pacific salmon, on the understanding that an assessment of other salmon 
products would soon follow.  Canada further submits  that given that Australia has prohibited the 
importation of all uncooked salmon, and not only adult, wild, ocean-caught Pacific salmon, it is 
obliged by the SPS Agreement to asse ss risk with respect to all uncooked salmon;  Australia is not 
entitled to limit its assessment to adult,  wild, ocean-caught Pacific salmon.   
8.56 In addressing this issue, we note that Ar ticle 5.1 does not qualify - either in terms of 
application in time or product coverage - the s ubstantive obligation imposed on all WTO Members to 
base their sanitary measures on a risk assessment.  As far as the application in time of the SPS 
Agreement is concerned, we refer to the Appellate Body Report on EC - Hormones , which confirmed 
that the SPS Agreement applies to sanitary measures enacted before , but maintained after , the entry 
into force of the SPS Agreement.245 In particular Article 2.2 - in light of which Article 5.1 has to be 
read - confirms this reading.  It provi des that sanitary measures have to be " based  on scientific 
principles" and "not maintained  without sufficient scientific evidence". (emphasis added) 
                                                      
241 According to figures submitted by Canada (not contested by Australia), adult, wild, ocean-caught Pacific 
salmon represents  seven-year average (1990-1996) of 58 % of all Canadian uncooked salmon for export (see Table 1 
in the descriptive part). 
242 Australia, Rebuttal Submission, para. 84.  See also Australia's answer to Panel Question 2, Australia 
answers, p.4: "Australia has not done a risk analysis on farmed Pacific salmon or on commercially produced Atlantic 
salmon (which, in Canada, all originates from farms)". 
243 1996 Final Report, p.25. 
244 Australia, First Submission, para. 137. 
245 Op. cit., paras. 126-130. WT/DS18/R 
Page 152  
 
8.57 As to the product coverage of Article 5.1, the reference contained in Article 5.1 to base 
sanitary measures on an assessment "as appropriate to the circumstances" cannot, in our view, annul 
or supersede the substantive obligation resting on Australia to base the sanitary measure in dispute 
(irrespective of the products that measure may cove r) on a risk assessment.  We consider that the 
reference "as appropriate to the circumstances" re lates, rather, to the way in which such risk 
assessment has to be carried out.246  Only Article 5.7 allows for an exception to the obligation to base 
sanitary measures on a risk assessment, namely "in cases where relevant scientific evidence is insufficient".  In such event "a Member may prov isionally adopt sanitary or phytosanitary measures 
on the basis of available pertinent information" .  Article 5.7 adds, however, that "[i]n such 
circumstances, Members shall seek to obtain the additional information necessary for a more 
objective assessment of risk and review the sanitary  or phytosanitary measure accordingly within a 
reasonable period of time".  In this dispute Australia has not invoked Article 5.7.  Nor do we consider 
that this provision applies to the measure in dis pute, given the fact that it was imposed more than 
20 years ago and can thus hardly be seen as a measu re "provisionally" adopted.  Articles 5.2 and 5.3, 
in turn, only qualify the way in which a risk assessment has to be carried out, not the substantive 
obligation to base a sanitary measure on a risk assessment.   
8.58 Furthermore, we do not consider that Cana da's request or agreement to initially limit the 
scope of Australia's risk assessment  to adult, wild, ocean-caught P acific salmon overrides Australia's 
substantive obligation to base the sanitary measure in dispute on a risk assessment for all salmon 
products covered by that measure.  We recall, in this respect, that to the extent Canada brought a 
complaint under QP86A the scope of this dispute is  wider than adult, wild, ocean-caught Pacific 
salmon.  As to the second argument forwarded by Australia on this issue
247, we do not consider - nor 
has Australia claimed - that the 1996 Final Report (w hich is explicitly limited to adult, wild, ocean-
caught Pacific salmon) constitutes a risk assessment , in the sense of Article 5.1, for the other 
categories of salmon products covered by the measure in dispute.  We do, however, agree with 
Australia that some of the evid ence, assessments and conclusions contained in the 1996 Final Report 
might be relevant for the risk ass essment to be carried out (or relie d upon) for the other categories of 
salmon products and that, therefore, a completely ne w risk assessment for th ese other categories of 
salmon products might not be necessary.  In support  of this, we note the opinion of the following 
scientific experts advising the Panel248:   
Burmaster (Transcript, para. 14): 
"... here we have, in this situation, mu ltiple fish diseases, potentially multiple fish 
diseases and potentially multiple target species  of fish.  The question has arisen if 
there are ten diseases of fish - ten different diseases - and five different fish species, to make up a hypothetical argument, do we have to multiply those and do fifty, ten 
times five, different risk assessments?  I thi nk, as a practical matte r one need not have 
to do fifty different risk assessments.  I thi nk that there are ways to sort through that, 
it may be that you would have to do one or two or smaller number of risk assessments 
not a full number of fifty". 
Rodgers (Answer to Panel Questi on 11, Rodgers answers, page 15
249:   
"Some of the data and findings contained in the Australian Final Report dealing with 
wild ocean-caught adult Pacific salmon could be validly used in a risk assessment for 
the four other categories of salmon [adu lt wild freshwater-ca ught Pacific salmon, 
adult Pacific salmon cultured in seawater on the Pacific coast, adult Atlantic salmon 
                                                      
246 See further in para. 8.70. 
247 Para. 8.54 in fine . 
248 We only refer to three of the four experts advisi ng the Panel since only these three have expressed an 
opinion on this issue. 
249 See also Rodgers, Transcript, para. 28.    WT/DS18/R 
   Page 153  
 
cultured in seawater on the Pacific coast and adult Atlantic salmon cultured in 
seawater on the Atlantic coast].  However, th ere are additional factors to consider for 
aquacultured species and wild freshwater- caught species, as opposed to wild ocean-
caught fish.  These would include the presence  of known vectors (and alternative host 
species), the access of anadromous fish to wa ter supplies, protected water sources ...".  
Wooldridge  (Answer to Panel Questi on 4, Wooldridge answers, page 10): 
"With regard to imports of other product s of other species known to carry the same 
diseases, information on the existence of such products is important in two respects.  
First, a comparison with other products may provide data necessary to assess the 
probability of exposure, transmission and consequences of a given disease post-entry 
within a country or region.  Secondly, the information on the existence of such 
products is an important part of the overa ll risk analysis (as opposed to the risk 
assessment) and should be sought as part of that analysis ... 
Whether a complete risk assessment of any other particular product is required 
depends on the precise situation; in certain circumstances it may be enough to 
demonstrate that a particular product containing a given disease agent, and subject to similar use and disposal pathways, has been imported regularly for many years with no detected disease consequences".  
8.59 Recalling the relatively wide range of sa lmon products covered by the sanitary measure in 
dispute and noting the relatively limited scope of salmon products dealt with in the 1996 Final Report 
- the only risk assessment submitted by Australia - we consider, therefore, that Canada has raised a 
presumption (i.e., made a prima facie  case) that the measure in dispute in so far as it relates to salmon 
products at issue other than those covered by the 1 996 Final Report (i.e., other than adult, wild, ocean-
caught Pacific salmon) is not based on a risk asse ssment in accordance with Article 5.1 and that 
Australia, in turn, has not provided evidence to rebut that presumption.  To that extent we thus find 
that Australia, by maintaining the measure at issue,  acts inconsistently with Article 5.1.  Given our 
earlier finding  -that a violation of the more specific  Article 5.1 can be presumed to imply a violation 
of the more general provisions of Article 2.2
250 - we find that Australia, to that extent, also acts 
inconsistently with Article 2.2. 
8.60 Given the fact that (1) most of the studies and reports before us, a nd in particular the 1996 
Final Report (Australia's only formal risk assessm ent) specifically address and discuss adult, wild, 
ocean-caught Pacific salmon (even though the data they contain may relate to or be relevant for other 
salmon) and (2) Canada itself also focused on adult, wild, ocean-caught Pacific salmon during our proceedings, we, in turn, concentrated our attenti on and questions (to both the parties and the experts 
advising the Panel) on adult, wild, ocean-caught P acific salmon.  For these reasons, the evidence and 
arguments before us which are relevant to Artic les 5.5 and 5.6 are centred on adult, wild, ocean-
caught Pacific salmon.  We do not therefore consider  it appropriate or necessary "in order to resolve 
the matter in issue in the dispute"
251 to further address the salmon products in dispute other than those 
from adult, wild, ocean-caught Pacific salmon.  Any subsequent findings we thus make are limited to 
those salmon products at issue from adult, wild, ocean -caught Pacific salmon.  Hereafter, we refer to 
this more limited category of salmon products at issue as "the salmon products further examined". 
                                                      
250 Para. 8.52. 
251 Appellate Body Report on US - Measure Affecting Imports of Woven Wool Shirts and Blouses from India , 
adopted 23 May 1997, WT/DS33/AB/R, pp.17-20, addressing the issue of judicial economy, at p.19 ("A panel need 
only address those claims which must be addressed in order to resolve the matter at issue in the dispute"). WT/DS18/R 
Page 154  
 
  (b) Salmon products in dispute from adult, wild, ocean-caught Pacific 
salmon (i.e., the "salmon products further examined")  
  (i) Arguments of the parties  
8.61 Canada argues that the 1996 Final Report - invoked by Australia as the risk assessment on 
which its measure as it applies to the salmon products further examined is based - is not a "proper" 
risk assessment in the sense of Articles 5.1.  For Canada, a "proper" risk assessment has to:  
(1) evaluate the likelihood (i.e., determine the probability ) of the establishment of the diseases of 
concern on the basis of an examination of the differe nt possible scenarios and the different sub-events 
required for such establishment to take place (not si mply posit, as - according to Canada - Australia 
did, the possibility  of disease establishment, however remote);   (2) make such evaluation for each 
disease of concern (not just assess, as - according to Ca nada - Australia did, the totality of risk linked 
to 24 different diseases);  and (3) make such evaluation for each SPS measure which might be applied (i.e., for all five quarantine policy options mentione d in the 1996 Final Report).  For Canada these 
three requirements can be deduced from the first pa rt of the definition of "risk assessment" provided 
in paragraph 4 of Annex A to the SPS Agreement: 
"Risk assessment - The evaluation of the likelihood of entry, establishment or spread 
of a pest or disease within the territory of an importing Member according to the 
sanitary or phytosanitary measures which mi ght be applied, and of the associated 
potential biological and economic consequences or the evaluation of the potential for 
adverse effects on human or animal health  arising from the presence of additives, 
contaminants, toxins or disease-causing organi sms in food, beverages or feedstuffs". 
(underlining added by Canada) 
In support of its claim that these three requirements ex ist, Canada further refers to the definitions of 
risk and risk assessment, as well as the "Guidelines for Risk Assessment", provided in the OIE Code 
which, according to Canada, have to be taken into account as "risk assessment techniques" in 
accordance with Article 5.1.   
8.62 According to Canada the second part of th e definition of "risk assessment" in paragraph 4 
does not apply in this case.  Canada submits that the two parts of the definition are mutually exclusive.  In support of this Canada puts forw ard the same arguments as those it developed under 
paragraph 1 of Annex A which provides th e definitions of a "sanitary measure".
252  
8.63 Canada also argues that the SPS measure at issu e - which is in Canada's view heat treatment  - 
is not "based on" a risk assessment in the sense required by the Appellate Body in EC - Hormones .  
For Canada, there is no rational relationship between the heat-treatment conditions set out in 
Australia's measure and the availa ble scientific evidence contained in the 1996 Final Report.  Canada 
further submits that Australia, therefore, also violat es Article 5.2 in that it does not "take into account 
available scientific evidence" in assessing risk. 
8.64 Australia points out that the definition of  "risk assessment" as set out in paragraph 4 of 
Annex A contains two parts joined by the word "or".  For Australia, this clearly indicates that there is 
no requirement for a risk assessment to meet all the terms in paragraph 4.  According to Australia, 
compliance with either of the two parts of the defi nition is sufficient and Canada does not contest that 
the 1996 Final Report complies with the second part. 
8.65 Australia argues that Canada's assertion that  a risk assessment need s to make probabilistic 
estimates has been rejected by the Appellate Body in EC - Hormones  where the requirement for a risk 
                                                      
252 Para. 8.33.    WT/DS18/R 
   Page 155  
 
assessment "to establish a minimum magnitude of risk"253 was rejected.  For Australia, a risk 
assessment in accordance with Article 5 need not be  a quantitative risk assessment, but may also be - 
especially where scientific data is not complete - qualitative and need not separately evaluate risk of 
occurrence for each disease and for each measure whic h might be applied.  Australia submits that 
Canada reads requirements in the definition of "risk assessment" provided in the SPS Agreement for 
which there is no textual basis.  For Australia, the important words in the definition of risk assessment 
are "evaluation of likelihood".  According to Australia , there is no limitation as to the form that this 
evaluation should take except that it should cons ider the possible management measures and the 
consequences.  Australia concludes that the 1996 Fi nal Report achieves this and makes an evaluation 
that the risk is unacceptable.  Australia submits th at there are many different methodologies for risk 
assessment and that views of risk assessment techniques vary between experts, over time and on a case by case basis, as explicitly recognized by the re quirement in Article 5.1 that a risk assessment 
should be "as appropriate to the circumstances". 
8.66  With respect to the OI E risk assessment techniques relie d upon by Canada, Australia argues 
that they have been fully "taken into account" in  the 1996 Final Report as required in Article 5.1.  
Australia also refers to Article 1.4.1.3 of the OIE Code on "Methodology": 
"Risk analysis must be able to deal with the complexities of real life situations and no 
single method is applicable in all cases.  Fo r this reason, countries wanting to conduct 
import risk analyses may find it necessary to  design their own  process for carrying 
out the exercise.  Several countries have already developed processes".
254  
8.67 With respect to Canada's claim that the measure at issue is not "based on" the 1996 Final 
Report, Australia submits that Article 5.1 requires that the results of a risk assessment must sufficiently warrant or reasonably support the SPS measu re at stake, but that this does not require the 
risk assessment to embody only the view of the ma jority of the scientific community.  Australia 
argues that heat-treated product was not addressed in the 1996 Final Report because Canada's request 
for access was limited to fresh, chilled and frozen product. 
   (ii) The applicable definition of "risk assessment"  
8.68 We first address the problem of which of th e two definitions of "ris k assessment", provided in 
paragraph 4 of Annex A to the SPS Agreement, apply to this dispute.  We recall our finding that in 
this case we need to examine the measure in dis pute as a sanitary measure applied "to protect animal 
... life or health within [Australia] from risks arising from the entry, establishment or spread of pests, 
diseases ... or disease-causing organisms" in the sense of paragraph 1(a) of Annex A (rather than a 
"sanitary measure" in the sense of paragraph 1(b) of  that Annex).  We consider, moreover, that there 
is a close link between the defnition of a "sanitary me asure" in paragraph 1(a) and the first definition 
of "risk assessment" in paragraph 4, as well as be tween the definition of a "sanitary measure" in 
paragraph 1(b) and the second defi nition of "risk assessment" in paragraph 4.  The first set of 
definitions deals with risks arising from the entry, es tablishment or spread of pests or diseases.  The 
second addresses risks arising from specific substances in  food, beverages or feedstuffs.  We note that 
this link has been confirmed in the panel and Appellate  Body Reports on EC - Hormones  where the 
measure at issue was found to be a sanitary meas ure in the sense of paragraph 1(b) and the risk 
assessment had to be in accordance with the second definition in paragraph 4.
255  
8.69 In this case, we find, therefore, that since th e measure in dispute is a "sanitary measure" in the 
sense of paragraph 1(a), it has to be based on a "ris k assessment" in the sense of  the first definition of 
paragraph 4, i.e., on an 
                                                      
253 Appellate Body Report, op. cit., para. 186. 
254 OIE Code, Chapter 1.4.1, p. 30. 
255 Op. cit., para. 182, and Panel Reports, op. cit., paras. 8.21, and  8.98, (US complaint) and paras. 8.24, and 
 8.101, (complaint by Canada). WT/DS18/R 
Page 156  
 
"evaluation of the likelihood of entry, est ablishment or spread of a pest or disease 
within the territory of an importing Member according to the sanitary or 
phytosanitary measures which might be a pplied, and of the associated potential 
biological and economic consequences ...". 
  (iii) Is the 1996 Final Report a risk assessment in accordance with 
Articles 5.1 and 5.2 ?  
8.70 To answer the question whether the 1996 Final Report constitutes a risk assessment as 
required under the SPS Agreement, we need to examine and apply Articles 5.1 and 5.2256 as well as 
the definition of risk assessment applicable in th is case and this, in our view, in light of both 
Article 2.2 and the "risk assessment techniques deve loped by relevant inte rnational organizations" 
(in casu , those of the OIE) which WTO Members, in acco rdance with Article 5.1, have to "take into 
account".   
8.71 Following Article 5.1, a risk assessment need s to be "appropriate to the circumstances".  
Answering a Panel question in this respect, Canada is of the view that the circumstances thus referred 
to are the source of the risk (e.g., an animal pat hogen or a chemical contaminant) and the subject of 
the risk (i.e., whether it is to human, animal or plant life or health).  For Australia, the phrase "as 
appropriate to the circumstances" confers a right and obligation on WTO Members to assess the risk, 
on a case by case basis, in terms of product, origin and destination, including, in particular, country 
specific situations.  We agree that both interpretati ons may be covered by the term "as appropriate to 
the circumstances".  In our view, also the OIE ri sk assessment techniques as well as the scientific 
opinions we gathered, may shed light on what is a risk assessment "appropriate to the circumstances".  
8.72 Examining the definition of risk assessment applicable to the measure at issue, i.e., the 
"evaluation of the likelihood of entr y, establishment or spread of a pest or disease within the territory 
of an importing Member according to the sanitary or  phytosanitary measures which might be applied, 
and of the associated potential biological and economic  consequences", we consider, first of all, that 
the risk thus to be assessed includes (1) the risk of "entry, establishment or spread" of a disease and 
(2) the risk of the "associated potential biologi cal and economic consequences".  When we refer 
hereafter to the risk related to a disease, this risk  thus includes the risk of entry, establishment or 
spread of that disease as well as the biological a nd economic consequences associated therewith.  We 
further note that, in our view, three elements are contained in this definition of risk assessment:  
(1) the definition of risk assessment im plies that the Member imposing the 
sanitary measure first has to identify  the disease(s) whose "entry, establishment or 
spread" within its territory it wants to prevent as well as  the "associated potential 
biological and economic consequences";   
(2) the definition then requires an " evaluation of the likelihood " of entry, 
establishment or spread of these diseases and of the associated potential biological 
and economic consequences";  and  
(3) the definition further requires that the evaluation of the likelihood of entry, 
establishment or spread of these diseases be conducted " according to the sanitary ... 
measures which might be applied ".   
We next examine whether the 1996 Final Re port fulfils these three requirements.   
                                                      
256 We recall that in this dispute Canada does not contest that the 1996 Final Report meets the requirements 
contained in Article 5.3 (see para. 8.50).    WT/DS18/R 
   Page 157  
 
Identification of the disease(s) whose "entry, est ablishment or spread" Australia wants to prevent 
and of the "associated potential bi ological and economic consequences"  
8.73 The 1996 Final Report identifies 24 diseases who se "entry, establishment or spread" Australia 
wants to prevent257 as well as the "potential biological and economic consequences" associated to the 
entry, establishment or spread of these 24 diseases.258 We thus find that the 1996 Final Report meets 
the first requirement of a risk assessment in accord ance with Article 5.1.  In reply to a Canadian 
comment made at the interim review stage, we note that our finding that Australia thus identified 24 
diseases of concern to Australia does not mean that  the measure at issue also actually addresses these 
diseases in the sense that this measure actually affe cts the likelihood of the entry, establishment or 
spread of these diseases into Australia.  The latter element is addressed in the section of our report 
where we examine whether the measure at issue is "based on" a risk assessment.259  
An "evaluation of the likelihood" of entry, establis hment or spread of the disease(s) of concern and 
of the associated biological and economic consequences  
8.74 We agree with Canada that, given the definiti on of risk assessment applicable in this case (the 
"evaluation of the likelihood of entry, establishment or spread of a ... disease ", in the singular form), a 
risk assessment for the measure at issu e in this dispute at least has to identify  risk on a disease specific 
basis, i.e., it has to identify the risk for any given disease of concern separately, not simply address the 
overall risk related to the combination of all diseases of concern.  (The issue of how the risk thus 
identified should be evaluated  is addressed in paragraphs 8.76 and following.)  The experts advising 
the Panel on this issue confirmed this.260  In the EC - Hormones  case as well, both the panels and the 
Appellate Body required some degree of specificity for a risk assessment - or a study or report allegedly part thereof - to be in accordance with the requirements imposed in Article 5.1.
261 We 
recognize, however, that some of the elements of an  assessment of risk related to one disease might be 
used as part of the assessment for another disease and that, in that sense, disease-by-disease 
assessments may overlap.262  We also acknowledge that as soon as there is a disease specific 
assessment for one disease of concern on which the sanitary measure as a whole can be based, there 
might be no more need to assess risk related to the other diseases of concern.   
                                                      
257 1996 Final Report, pp.18-19.  Australia slightly change d this list in its submissions before the Panel (see 
Table 3 in the descriptive part). 
258 1996 Final Report, Section 3 (Impact of salmonid disease introduction into Australia). 
259 Paras. 8.93 ff. 
260 Rodgers, Transcript, para. 28:  "If you are concerned about several diseases, effectively the risks are 
identified by drawing up a list of the potential diseases of concern that would be associated with the importation of a 
particular fish product, followed by an examination of th e consequences of their entry and establishment.  Now, 
although many risk factors are common between different dis eases, each disease may have unique factors to consider 
and each of these will have a variable quality and quantitative of available data that will need to be dealt with separately, which does make it necessary to assess risks on a disease-by-disease basis " (emphasis added); Winton, 
Answer to Panel Question 29, Winton answers, p.4: "I believe the FDC ["Fish Diseases Commission" of the OIE] 
would support the concept of individual risk assessment for each listed disease because important epidemiological 
features (presence of susceptible hosts, temperatures etc.) will vary with each country"; Wooldridge, Answer to Panel 
Question 29, Wooldridge answers, p.14:  "... in consider ing any particular product for import, and in undertaking a 
risk assessment for that product, each potential disease hazard identified has to be separately assessed"; see also Wooldridge, Answer to Panel Questions 3 and 4, Wooldri dge answers, p.9 and Wooldridge, Transcript, para. 242.  
Burmaster did not express his view on this specific issue. 
261 This, not in the sense of requiring a disease specific assessment, but by requiring a separate assessment 
for each of the six hormones at issue, when used for growth promotion purposes and requiring the evaluation of risks arising specifically from hormones in meat or meat produc ts (Appellate Body Report, op. cit., paras. 199-200, also 
confirmed in para. 141 and Panel Reports, op. cit., paras.  8.129 and 8.257 (US complaint), and paras. 8.132 and 8.260 
(complaint by Canada). 
262 Para. 8.58. WT/DS18/R 
Page 158  
 
8.75 We note, however, that, according to the experts advising the Panel on this issue 263, the 1996 
Final Report does identify  the risk of disease "entry, establis hment or spread" on a disease specific 
basis.  Section 1.4 of the Report examines "Ris k analysis factors" on a disease-by-disease basis and 
provides specific "Disease agent conclusions".264  Section 2 provides a detailed "Technical Review of 
Data for 24 Salmonid Diseases", doing so disease-by-disease.265  We, therefore, reject Canada's claim 
to the extent it implies that the 1996 Final Report does not identify risk on a disease-by-disease basis.  
In response to a Canadian comment made at the in terim review stage, we note that our finding that 
Australia thus identified  risk on a disease specific basis, do es not mean that Australia also evaluated  
or assessed  this risk as required in the definition of  risk assessment.  The requirement of an 
"evaluation of the likelihood" of risk is addr essed in the following paragraphs of our report.  
8.76 Canada also puts forward the requirement - al legedly contained in Artic le 5.1 - to determine 
the probability  of the adverse effects occurring, as opposed to only addressing possibility . In its 
answer to Panel Question 19, Canada agreed, however, that this requirement can be fulfilled by either 
a quantitative or qualitative risk assessment.  For Canada, probability could be expressed qualitatively 
by saying, for example, that the probability of a ri sk event is "extremely low" or is "negligible". 
8.77 We recall, first, that the definition of risk  assessment applicable in this dispute requires the 
"evaluation of the likelihood  of entry, establishment or spread of a pest or disease ... and of the 
associated potential biological and economic conse quences". We further note the following statement 
by the Appellate Body in EC - Hormones  with respect to the meaning of "potential" or "possibility" as 
opposed to "probability": 
"The ordinary meaning of "potential" relates to "possibility" and is different from the 
ordinary meaning of "probability".  "Pr obability" implies a higher degree or a 
threshold of potentiality or possibility".266  (underlining added)   
A footnote to this sentence reads as follows: 
"The dictionary meaning of "potential" is "that which is possible as opposed to actual;  
a possibility";  L. Brown (ed.), The New Shorter Oxford English Dictionary on 
Historical Principles , Vol. 2, page 2310 (Clarendon Press, 1993).  In contrast, 
"probability" refers to "degrees of likelihood;   the appearance of truth, or likelihood 
of being realized", and "a thing judged likely to be true, to exist, or to happen";  Id., 
page 2362".  (underlining added) 
The Appellate Body, referring to the ordinary meani ng of "probability", thus related "likelihood" (the 
word used in the definition of risk  assessment applicable in this case) to "probability".  The dictionary 
meaning of "likelihood" refers, indeed, to  "a thing that is likely, a probability".267  
8.78 We further note that the requirement to evalua te "likelihood" or "probability" is also reflected 
in the OIE definition of risk and risk assessm ent, as well as in the OIE "Guidelines on Risk 
Assessment": 
                                                      
263 Rodgers' Answer to Panel Question 1, Rodgers answ ers, p.3, when assessing both the 1995 Draft Report 
and the 1996 Final Report: "The other basic factors required for a risk assessment, namely country factors, commodity factors, exposure factors and reduction factors, are considered on a diseas es by disease basis from a textual 
technical/scientific point of view.  The potential adverse consequences of disease introduction are also outlined in the same way" (see also Rodgers, Transcript, para. 26) and Wooldridge, Transcript, para. 59: "Section 2 of the 1996 Final Report describes, with references, the diseases it considers relevant on a disease-by-disease basis, with a summary of 
the information given".  Burmaster and Winton did not express their view on this specific issue. 
264 1996 Final Report, pp.37-56. 
265 Ibid., pp.132-270. 
266 Op. cit., para. 184. 
267 L. Brown (ed.), The New Shorter Oxford English Dictionary on Historical Principles , Vol. 2, p.1588, 
Clarendon Press, 1993.    WT/DS18/R 
   Page 159  
 
"Risk - means the probability of an adverse event of aquatic animal health, public 
health or economic importance, such as a disease outbreak, and the magnitude of that 
event. 
Risk assessment - means the processes of identifying and estimating the risks 
associated with the importation of a comm odity and evaluating the consequences of 
taking those risks".268  (underlining added) 
"Guidelines for Risk Assessment 
Article 1.4.2.1 
Estimation of the probab ility of an adverse event  
In the risk assessment of an importation, th e risk associated with one or more disease 
agents may have to be considered.  The importing country should elaborate the 
scenarios that could be involved in the in troduction of a disease agent in an imported 
commodity and its subsequent exposure a nd transmission to aquatic animals and 
humans.   
In constructing a scenario by which a diseas e agent might be introduced into the 
importing country, some or all of the following factors (and other factors) need to be considered: 
(1) the probability of the disease agent being present in aquatic animal 
populations in the water of origin; 
(2) the probability of the disease agent be ing present in the particular aquatic 
organism; 
(3) he risk of flesh becoming contaminated during processing; (4) the probability of the disease agent be ing present in the particular tissues 
imported;  
(5) the probability of infected or cont aminated aquatic animals, gametes, 
embryos or product passing diagnostic screening, inspection or grading 
procedures;  
(6) the probability of the disease agent su rviving at an infectious dose during 
processing, transport or storage of the aquatic animals, gametes, embryos or 
products under consideration;  
(7) the probability of the disease agent comi ng into contact with susceptible hosts 
in the importing country at a suitable dose and by a suitable route to cause 
infection;  
(8) the risk of disease spreading from the index case and establishing in host 
populations in the importing country;  
(9) risk mitigation by optimising detec tion of pathogens and minimising their 
likelihood of survival (see Risk reduction factors).  
Each scenario would comprise a set of f actors that should be identified for the 
estimation of the likelihood of some risk.  In these guidelines, the factors are loosely 
grouped into four categories, namely country factors, commodity factors, exposure 
factors and risk reduction factors.  Depending on the commodity and disease agent, 
any number of these factors may be used to  estimate the probability of an adverse 
event for the importing country.  Point estimates or probability distributions are 
                                                      
268 OIE Code, Section 1.1, Definitions, p.13. WT/DS18/R 
Page 160  
 
employed to represent the values associated with each factor ...".269 (underlining 
added) 
8.79 In this respect we also note the following opinions from experts advising the Panel: 
Burmaster (Answer to Panel Question 1, Burmaster answers, page 1): 
"With some exceptions in some situations (o f which this dispute is not one), I think 
that a risk assessment must use quantitativ e methods to estimate the probability and 
the magnitude of desired and adverse consequences".270  (underlining added) 
Rodgers (Written version of Rodgers' statemen t at the meeting with experts, page 3): 
"This concept [determination of probability based on the information available] is 
though embodied in the OIE guidelines, which i ndicate that the risk factors should be 
used to estimate the probability of an adve rse event occurring with point estimates or 
probability distributions then  employed to represent the values associated with each 
factor.  Effectively, risk assessment should estimate, either quantitatively or 
qualitatively, the probability of an adverse effect occurring"271.  (underlining added) 
Winton (Transcript, para. 47): 
"... the idea at least that you can begin to assess probability estimates, I think is 
important and I think that all of us will be looking towards that approach in the 
future". (underlining added) 
Wooldridge (Answer to Panel Question 3, Wooldrid ge answers, page 8, emphasis in original):  
"In my opinion, the requirement of a risk assessment is to evaluate the probability  of 
risk.  This is one of my minimum requireme nts ...  Given the existence of a particular 
disease agent, one can always  construct a possible  infection transmission scenario, 
however improbable, and therefore demonstration of the possibility of successful transmission and disease is not adequate. 
However, the probability does not have to be expressed quantitatively, and frequently 
it cannot be.  In qualitative assessment there is therefore the difficulty of what is 
meant by the terms used, for example high, medium or low risk, and subjectivity is a potential problem".
272  
The experts advising the Panel thus agree that  an evaluation and expression of probability or 
likelihood, either quantitati ve or qualitative, is crucia l to a risk assessment.  
8.80 For the above reasons, we find that for the measu re at issue in this dispute, a risk assessment  
- in accordance with Article 5.1 and paragraph 4 of Annex A and taking into account the risk 
assessment techniques developed by the OIE - not only has to state that there is a possibility  of the 
diseases of concern being introduced into Austra lia when imports of the salmon products further 
examined would be allowed, but also needs to provide some evaluation or estimation of the likelihood 
or probability, expressed either qualitatively or quant itatively, of these diseases thus being introduced 
and of the associated biological and economic cons equences then occurring.  In our view, the SPS 
                                                      
269 OIE Code, Chapter 1.4.2, pp. 33-34 
270 See also Burmaster, Transcript, para. 13. 
271 See also Rodgers, Transcript, para. 13. 
272 See also Wooldridge's answer to Panel Question 1,  Wooldridge answers, p.3 and p.6 and Wooldridge, 
Transcript, paras. 51, 52 and 55 and (with respect to associated consequences) paras. 127-128.    WT/DS18/R 
   Page 161  
 
Agreement does not require that such evaluation ne eds to be done quantitatively.  Moreover, we 
consider that this requirement on how a risk assessment should evaluate  risk does not at all imply that 
a risk assessment in accordance with Article 5. 1 needs to demonstrate a certain magnitude or 
threshold level  or degree  of risk (expressed either quantitatively or qualitatively).273  
8.81 In this respect, we consider that a risk assessment, on which to base an import prohibition in 
accordance with Article 5.1, cannot be premised on the concept of "zero risk".  Otherwise,  all import 
prohibitions would be based on a risk assessment since there is a risk (i.e., a possibility  of an adverse 
event occurring), however remote, associated with most (if not all) imports.274 In this respect, we refer 
to the Appellate Body's Report on EC - Hormones : 
"In one part of its Reports, the Panel opposes a requirement of an "identifiable risk" 
to the uncertainty that theoretically alwa ys remains since science can never provide 
absolute certainty that a given substance will not ever have adverse health effects.275 
We agree with the Panel that this theoretical  uncertainty is not the kind of risk which, 
under Article 5.1, is to be assessed".276  
8.82 We next examine whether the requirement set  out above is met in the 1996 Final Report.  We 
note that the 1996 Final Report uses the words probability, possibility and likelihood on different occasions and evaluates elements of probab ility for some of the diseases of concern.
277  For example, 
in the Executive Summary: 
"Clearly there is a possibility that up to 20 disease agents exotic to Australia may be 
present in Pacific salmon products.  It is acknowledged that  the probability of 
establishment of disease would be low ...".278 (underlining added) 
with respect to Aeromonas salmonicida : 
"Infection with A. salmonicida  may be unusual in adult, wild, marine Pacific salmon 
and, if it exists, the concentration of bact eria present in fish may be low and the 
likelihood of transmission of infection to Au stralian fish would be consequently low.  
                                                      
273 Appellate Body Report on EC - Hormones , op. cit., para. 186:  "In another part of its Reports, however, 
the Panel appeared to be using the term "scientifically identified risk" to prescribe implicitly that a certain magnitude or threshold level of risk be demonstrated in a risk asse ssment if an SPS measure based thereon is to be regarded as 
consistent with Article 5.1.  To the extent that the Pane l purported to require a risk assessment to establish a minimum 
magnitude of risk, we must note that imposition of such a quantitative requirement finds no basis in the SPS Agreement " (footnote omitted). 
274 Australia, First Submission, para. 19: "Australia does not have a no risk policy with respect to imports of 
salmon products - imports of heat-treated salmon are permi tted.  Stopping the import of a particular product does not 
mean that there is a no risk policy, only that the risk is too high and that the product cannot be treated to reduce the risk to an acceptable level".  See also Australia, Rebuttals, para. 16; Australian Quarantine - Looking to the Future: a 
Government policy statement, circulated by Senator the Hon. Peter Cook, Minister for Resources, December 1988, 
p.12 ("The Government accepts the strongly expressed view of  the Quarantine Review Committee that a policy of 'no 
risk' would be impossible to implement.  Such a policy would mean for example a ban on most products"); the 1995 Draft Report, p.217 and Nairn, M.E., et. al ., Australian Quarantine: a shared responsibility, DPIE, 1996, pp.21-22 and 
83-84.  See also Burmaster, Transcript, para. 177, Winton, Transcript, para. 43 and Wooldridge, Transcript, para. 52. 
275 The Appellate Body refers to the Panel Reports, op. cit., paras. 8.152-8.153 (US complaint) and 
paras. .155-8.156 (complaint by Canada). 
276 Op. cit., para. 186, underlining in original. 
277 At the meeting with experts advising the Panel Australia stated that "we contend we have conducted a 
probability risk assessment" and implied that assessing risk as low or small is a statement of probability (Transcript, 
para. 155). 
278 1996 Final Report, p.XI. WT/DS18/R 
Page 162  
 
The more significant scenario may be one in which untreated waste products are 
continually discharged into water over time ...".279  (underlining added) 
with respect to Parvicapsula sp.  
"Since Parvicapsula  is a myxosporean parasite, it need s an alternate host to complete 
its life cycle.  Parvicapsula disease has not  spread from the Pacific rim of North 
America, despite the substantial trade in  uncooked salmon product from the region.  
The possibility that the disease could beco me established in Australia cannot be 
completely discounted; however, the likeli hood is considered to be very low".280  
(underlining added) 
disease agent conclusions: 
"Some general observations can be made about the likelihood of the disease agents 
under consideration being present in produc t imported into Australia.  The risk 
reduction procedures raised for each disease agent would be expected to have an 
impact on the risk - both by removing tissu es that potentially could contain the agent 
and by removing tissues that would have a hi gher propensity for being disposed of in 
Australia.   
However, the critical gaps in the inform ation base for each of the disease agents 
makes it difficult to estimate with any conf idence the likelihood that product entering 
Australia would be infected.  There will be  an unknown chance - with some degree of 
uncertainty about the confidence that can be had in any estimation - that imported 
product will be infected.  Limitations on th e source of product and its preparation will 
reduce that chance to low, but uncertain, levels".281  (underlining added) 
"It is clear that all the questions arising in relation to the likelihood that animal 
products intended for human consumption may, in one form or another, ultimately be 
consumed by, or come into direct contact with susceptible animals, cannot be 
resolved.  This risk factor is difficult to quantify; the chance, although  present, is 
likely to be small.  However, because of the potential consequences this chance 
cannot be ignored".282  (underlining added) 
8.83 Considering the evidence before us, we  note that the 1996 Final Report addresses some 
elements of both probabilit y and possibility.  We shall, therefore, assume - without making a finding 
on this issue - that it meets the requirement set out above.283  We do note, however, that the 1996 Final 
Report (as stated by several of the experts advising the Panel284) lends more weight to the unknown 
and uncertain elements of the assessment than th e 1995 Draft Report (on which the 1996 Final Report 
is based).  This, on occasions, results in general a nd vague statements of me re possibility of adverse 
                                                      
279 Ibid., p.39. 
280 Ibid., p.48. 
281 Ibid., p.50. 
282 Ibid., p.56.  See also on pp.66-68 (Conclusions), e.g., at p.66: "The potential  for pathogenic exotic 
organisms to enter Australia via imports of salmon from Canada and the United States is a risk and for some of the disease agents under consideration it is probable  that if commercial quantities of product were imported some of the 
exotic agents would be introduced with the product" (emphasis added). 
283 Para. 8.80. 
284 Wooldridge answers, p.6, quoted in para. 8. and Rodgers answers, p.1 ("As such, the 1995 report is a 
more useful document, in the sense of an internal risk assess ment exercise, since it 'evaluates' the data to conclude that 
a negligible risk exists, while at the same time recognising that the overall risk of disease introduction cannot be quantified.  The final report seems to lend more weight to the unknown elements of the assessment and as such is more cautious, which results in an outcome closer to the 'unacceptable' rather than the 'negligible but acceptable' end 
of the scale").    WT/DS18/R 
   Page 163  
 
effects occurring; statements which constitute neither a quantitative nor a qualitative assessment of 
probability.285 We consider that this methodology is surprising in this case where Australia has 
already carried out a risk assessment which (according to two of the three scientists advising the Panel 
on this issue286 fully examined probability (i.e., the 1995 Draft Report).287  
An evaluation of the likelihood of the entry, es tablishment or spread of the diseases of concern 
"according to the sanitary ... measures which might be applied"  
8.84 In this respect, Canada submits the require ment - allegedly contained in Article 5.1 - to 
evaluate risks for each of the SPS measures or options which might be applied.   
8.85 We recall, first, the definition of risk assessment applicable in this case, namely the 
"evaluation of the likelihood of entry, establishment or spread of a pest or disease ... according to the 
sanitary or phytosanitary measures which might be applied"  (emphasis added).  We also note that 
according to Article 5.2, "[i]n the assessment of ri sks, Members shall take into account ... relevant 
processes and production methods; relevant insp ection, sampling and testing methods ... and 
quarantine or other treatment". 
8.86 We further refer to the OIE "Gui delines on Risk Assessment", quoted above 288, which list a 
series of factors to be considered in a risk assessment.  One important category of factors to be assessed covers the so-called risk reduction factors: 
"Risk reduction factors  
For many aquatic organisms there is a dearth  of information relating to the prevalence 
of disease in the source population and availa ble diagnostic tests may be of limited 
use.  In such cases, the analysis must pay particular attention to factors that reduce 
risks.  Risk reduction factors are parameters specific to measures that are applied to 
reduce the probability that a disease agen t will be introduced into the importing 
country, exposed to and/or transmitted to an aquatic or human population. 
Options that exist to reduce risk associat ed with a particular importation include: 
- choice of the origin of the commodity 
- restricting the destination - pre- and post-shipment quarantine 
                                                      
285 This led the experts advising the Panel on this issue to the conclusion that the 1996 Final Report does not 
appropriately assess probability as is re quired in their view.  See Burmaster's answer to Panel Question 1, Burmaster 
answers, p.1; Rodgers, Transcript, para. 26 ("[The 1996 Final Report] assesses risks on a di sease-by-disease basis but 
in a textural form and does not assign any probabilities that would be needed to reach a conclusion.  In this respect, therefore, I think, it possibly does fall short of determining any probability based on the information available") and Wooldridge, Transcript, para. 55 ("... since [the 1996 Final Report] looks only at the possibility of the unwanted 
outcomes of infection and disease importation, rather than the probability, in my opinion, it does not in any event fulfil the essential requirements of a risk assessment"). 
286 Rodgers answers, pp.2-3 and Transcript, para. 24; W ooldridge answers, p.6 and Transcript, para. 54.  
Contra : Burmaster answers, p.1, who goes further and consider s that a risk assessment needs to be quantitative. 
287 In this respect, see Wooldridge, Transcript, para. 57, addressing a risk assessment carried out by New 
Zealand  ("Anyway, where it is not the case that everybody has actually agreed on a decision that there are negligible 
risks, or where further demonstration of a low level of probabi lity is required, as I say, a quantitative assessment is in 
my opinion the next obvious process to attempt.  This is what New Zealand has done, and I cannot actually see any reason Australia did not attempt to undertake the same kind of assessment - selecting the disease which, qualitatively they assessed as the most risky in their Draft Report.  In my  opinion, as I have stated in my written evidence, the basic 
New Zealand method and much of the data is equally applicable").  The New Zealand risk assessments (one dates from 1994, another from 1997) seem to imply that an assessment with more quantitative elements than the 1996 Final Report may be technically and scientifically feasible. 
288 Para. 8.78. WT/DS18/R 
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- diagnostic testing 
- vaccination - processing, maturation and storage for a specified time and temperature 
- treatments, e.g., heat treatment for a specified time and temperature, use of 
antibiotics and chemotherapeutics, disinfection procedures, manipulation of salinity or pH,  etc. 
- limiting the size and the frequency of importation. 
When a series of risk-reducing measures is applied to an importation, it may be 
possible to demonstrate that the extent to which risk is reduced is sufficiently great 
that an accurate estimate of the in itial unrestricted risk is unnecessary. 
Specific risk reduction methods for particul ar diseases are described in each chapter 
of the Code.  If information on the proba bility of the presence or survival of a 
particular disease agent following applica tion of a risk reduction option is not 
available, documented experience is an acceptable source of information".
289  
(underlining added) 
8.87 In this respect we further note the following opinions from experts advising the Panel: 290  
Burmaster (Answer to Panel Question 24, Burmaster answers, page 9): 
"In some situations, there are only two po ssible plans or proposals, perhaps called 
Plan Yes and Plan No.  Each of these choices has risks and benefits.  In other 
situations, there may be more than two co mpeting plans or proposals, perhaps called 
Plan A, Plan B, .. and the 'Do Nothing' plan.  Each of these choices has risks and 
benefits.  The risks and benefits of the co mpeting, alternative plans or proposals may 
be measured in a variety of units, including economic or monetary units. 
In a first step sometimes called 'risk assessmen t', scientists, engineers, statisticians, 
and other professionals estimate the risks and benefits associated with each of the 
competing, alternative plans or proposals".  (underlining added) 
Rodgers (Answer to Panel Ques tion 1, Rodgers answers, page 4), when dealing with 
the "risk factors" involved in a risk assessment: 
"Risk reduction factors can be considered to  include options available to reduce the 
probability of introducing a disease agent.  These may include factors such as the 
origin of the product, selective destina tion establishments and specified product 
processing or treatments". 
Rodgers (Transcript, para. 36291):   
"What I would say though is that additional fears about the acceptability of such a 
low level of risk should be allayed by cons idering a series of risk reduction factors, 
that is quite acceptable.  But those risk  reduction factors should be accepted by both 
parties.  In this way, the application of  such a series of measures may demonstrate 
that the extent to which risk is reduced  is sufficiently great that an accurate 
assessment of the initial unrest ricted risk is unnecessary".  
                                                      
289 OIE Code, Chapter 1.4.2, Ar ticle 1.4.2.2, pp. 36-37. 
290 We only refer to three of the four experts advising the Panel since only three of them have expressed an 
opinion on this issue. 
291 See also Rodgers, Transcript, para. 123.    WT/DS18/R 
   Page 165  
 
Wooldridge (Transcript, para. 64): 
"Risk management options generally involve  the putting in place of risk reduction 
measures, otherwise called safeguards. ... In an import risk analysis, if the assessed 
baseline risk, or the risk with current re gulatory or 'usual' safeguards in place was 
considered acceptable to the importing country, there would be no requirement or need to assess any further scenario.  Only if this baseline or initial risk is 
unacceptable would one need to go further.  If, in such a case, there are additional 
safeguards identified which are considered pr acticable to employ, then in my opinion, 
it would be necessary for the importing count ry to assess the risks with the most 
stringent practicable combination of these in place, and demonstrate that the risks were still unacceptable, in order to refuse imports.  Whether it is necessary to assess 
intermediate combinations of safeguards separately depends on the precise problem being addressed".  
8.88 For the above reasons, we find that for the measu re at issue in this dispute a risk assessment in 
accordance with Articles 5.1 and 5.2 and paragraph 4 of Annex A and taking into account the risk 
assessment techniques developed by the OIE - has to evaluate the likelihood of entry, establishment or 
spread of the diseases of concern according to  and taking into account the sanitary measures or 
options - considered to reduce the alle ged risk - which might be applied.  
8.89 We next examine whether the 1996 Final Repor t meets this requirement.  We note that the 
1996 Final Report examines risk reduction factors on a disease-by-disease  basis.  It does so under 
heading seven ("Risk Reduction Factors") for each of  the 24 diseases examined  in Section 2.  For 
Aeromonas salmonicida , for example, under the heading "Risk Reduction Factors" the following 
elements are addressed: restricting zone of origin , species of origin, life cycle stage; pre and post 
shipping quarantine; product testing with tests having high sensitivity; processing, maturation and 
storage for specified time and temperature; treatments, (e.g., heating, disinfection); restricting the 
destination; vaccination;  and certification.
292 A similar examination is  undertaken for all other 
23 diseases of concern.  For most of these risk reduc tion factors, the 1996 Fi nal Report provides some 
evaluation of the extent to which these factors c ould reduce risk.  A summarized version of this 
disease-by-disease examination, repeating some of the risk reduction factors addressed in Section 2, is 
outlined in Section 1 under the heading "Risk Analysis Factors".293  
8.90 With respect to the quarantin e options considered to reduce the total risk associated to all  
diseases of concern, the 1996 Final Report is less exp licit.  In Section 1, the 1996 Final Report sums 
up a series of "Risk Management Measures" which would "contribute to a lessening of likelihood  that 
imported product would contain pathogen ic organisms" as well as "reduce the likelihood  that this 
product would cause disease if accidentally or delib erately fed to Australian fish" (emphasis added) 
and provides definitions for most of these measures.294 In Section 1.5.4, the 1996 Final Report 
identifies  five potential quarantine policy options - put fo rward to reduce the total disease risk related 
to the imports it examined  - which incorporate and develop some of the risk reduction factors 
addressed earlier.295  However, we note that the 1996 Final Report does not substantively evaluate  the 
relative risks associated wi th these different options.296 Even though the definition of risk assessment 
requires an "evaluation ... according to the sanita ry ... measures which might be applied", the 1996 
Final Report identifies such measures but does not, in  any substantial way, evaluate or assess their 
relative effectiveness in reducing the overall disease risk.   
                                                      
292 1996 Final Report, pp.139-140. 
293 Ibid., pp.37-49. 
294 Ibid., pp.56-58. 
295 Quoted in para. 8.97. 
296 Paras. 8.174 ff. WT/DS18/R 
Page 166  
 
8.91 Considering the evidence before us, we recall that the 1996 Final Report addresses and to 
some extent evaluates a series of risk reduction fact ors, in particular, on a disease-by-disease basis.  
We shall, therefore, assume - without making a finding on this issue - that the 1996 Final Report - to 
the extent that we earlier assumed that it "evalu ates the likelihood of the entry, establishment or 
spread" of the diseases of concern297 - does make such evaluation acco rding to and taking into account 
the sanitary measures or options - considered to re duce the alleged risk - which might be applied. 
Summary  
8.92 Referring to our findings in paragraphs 8.73, 8.75, 8.80 and 8.88 and to our assumptions in 
paragraphs 8.83 and 8.91, we recall that the 1996 Final Report identifies the diseases of concern as 
well as the associated biological and economic co nsequences.  It does so on a disease-by-disease 
basis.  To some extent it also addresses elements of probability of occurrence of the identified risk.  It 
analyzes risk reduction factors on a disease-by-disease basis and identifies five quarantine options to 
reduce the total disease risk.  For the purpose of our further examination we shall, therefore, assume - 
without making a finding on this issue - that the 1996 Final Report meets the requirements of a risk 
assessment set out in Articles 5.1 and 5.2.  
  (iv) Is the sanitary measure at issue "based on" a risk assessment as 
required in Article 5.1 ?  
8.93 We assume that the 1996 Final Report meets the requirements of a risk assessment.  However, 
Article 5.1 prescribes that "Members shall ensure that their sanitary ... measures are based on  an 
assessment ... of the risks" (emphasis added).  The next question arising under Article 5.1 is, 
therefore,  whether the measure at issue, in so  far as it applies to the salmon products further 
examined, is "based on" a risk assessment.  
8.94 We note that the Appellate Body in EC - Hormones  stated the following regarding the 
requirement in Article 5.1 that sanitary me asures are to be "based on" a risk assessment: 
"We believe that Article 5.1, when contex tually read as it should be, in conjunction 
with and as informed by Article 2.2 of the SPS Agreement , requires that the results of 
the risk assessment must sufficiently warrant - that is to say, reasonably support -- the 
SPS measure at stake.  The requirement that an SPS measure be "based on" a risk 
assessment is a substantive requirement that  there be a rational relationship between 
the measure and the risk assessment".298  (underlining added) 
Applying this test to the measure at issue in EC - Hormones , the Appellate Body concluded: 
"The absence of such a risk assessment, when considered in conjunction with the 
conclusion actually reached by most, if not all, of the scientific studies relating to the other aspects of risk noted earlier, leads us  to the conclusion that no risk assessment 
that reasonably supports or warrants th e import prohibition embodied in the EC 
Directives was furnished to the Panel".299  (underlining added) 
8.95   We recall that the measure at issue is Australia's QP86A as implemented or confirmed by the 
1988 Conditions, the 1996 Requirements and the 1996 D ecision and this in so far as it prohibits the 
importation of fresh, chilled or frozen salmon products (for present purposes we only address the salmon products further examined).
300  The measure at issue, as it stands today, in effect prohibits the 
                                                      
297 Para. 8.83. 
298 Op. cit., para. 193. 
299 Ibid., para. 208. 
300 Para. 8.21.    WT/DS18/R 
   Page 167  
 
importation into Australia of fresh, chilled and frozen salmon.301  Except for minuscule quantities of 
frozen, uncooked salmon allowed for import for scien tific purposes, it only allows the importation of 
salmon if it has been heat-treated as prescribed in  the 1988 Conditions.  It also allows imports of 
canned salmon but such imports a fortiori  meet the 1988 Conditions.  From a trade perspective 
(focusing on what product cannot enter the Austra lian market) the measure at issue in effect 
constitutes an import prohibition on, inter alia , fresh, chilled and frozen salmon. However, if we 
approach the measure at issue to determine its san itary aspects (focusing on what is required for the 
product to be allowed  for importation) - an approach we need  to conduct in the context of the SPS 
Agreement - we find that it, in effect, imposes heat  treatment as a sanitary so lution to the risk posed 
by the importation of salmon.  These two perspectiv es are two sides of a single coin:  a consequence 
of Australia's sanitary requirement that salmon be heat-treated befo re it can be imported, is that 
imports of fresh, chilled and frozen salmon are prohibited.302 As Canada puts it, to contend that the 
heat treatment requirements have nothing to do w ith importation of fresh, chilled or frozen salmon is 
like saying that a "no smoking" regulation has nothing to do with smoking or that a requirement to 
offer proof of legal drinking age when entering a bar has nothing to do with prohibiting consumption 
of alcohol by minors.  Australia's decision (the 19 96 Decision) to continue to prohibit fresh, chilled 
and frozen salmon did not alter th e heat treatment requirements im posed in the 1988 Conditions nor 
the fact that only heat-treated product can enter Au stralia.  In that sense the 1996 Decision confirms 
the 1988 Conditions.  
8.96  Following this approach, we need to examine wh ether the measure at issue, to the extent it  
prohibits the importation of commercial quantities of  fresh, chilled and frozen salmon and - in effect 
and from a sanitary perspective - imposes certain h eat treatment requirements, is "based on" a risk 
assessment.   The only risk assessment put forward by Australia in support of this measure is the 1996 
Final Report.  Australia argues that the heat treat ment requirements currently in place (which are, 
according to Australia, in the interim, the 1988 Co nditions and this until further risk assessments are 
carried out) are based on the scientific evidence which was available in the 1980s.  However, 
Australia never came forward with any such eviden ce.  We thus need to address whether the measure 
at issue is "based on" the 1996 Final Report. 
8.97 We recall that the 1996 Final Report (Secti on 1.5.4) first identifies two quarantine options, 
namely (1) the removal of all quarantine restric tions and (2) banning the importation of all salmon 
products.  However, it considered that "neither of  these two options can reasonably be considered as 
appropriate, having regard to associated quarantine risk".303  On that ground, these two options were 
not further discussed.  The 1996 Final Report then id entifies five potential quarantine policy options 
which it did further address: 
"The quarantine policy options, in no par ticular order of merit, are as follows: 
                                                      
301 Para. 8.17. 
302 To further illustrate the relationship between what is prohibited and what is permitted, it may help to 
consider the original product and the various processes to which it may be submitted in order to allegedly ensure that 
the product will not pose an unacceptable risk of entry, estab lishment or spread of certain diseases.  In all cases, the 
original product is, of course, the live salmon, but upon its captu re and death, the initial product is fresh salmon.  This 
fresh salmon may be "processed" by, for example, requiring it s evisceration or the removal of the head and gills, etc.  
To facilitate its storage and transportation, the fish may be chilled or frozen.  However, in Australia imports of salmon 
in its fresh, chilled or frozen form are not permitted (except for minuscule quantities for scientific or taxidermy purposes).  This occurs on the grounds that the disease ri sks linked to such salmon are unacceptably high.  To be 
permitted, the same initial product, fresh salmon, must be subject to further processing, i.e., to heat treatment according to the 1988 Conditions, or to commercial canning.  Canada is not seeking access for heat-treated or canned salmon.  What Canada is challenging before this Panel is Australia's justification for the measures that prohibit access for fresh, chilled or frozen salmon - or, in other words, whic h permit access for salmon only if it has been heat-treated 
in accordance with the 1988 Conditions or commercially canned. 
303 1996 Final Report, p.62. WT/DS18/R 
Page 168  
 
1. Permit the importation of product effec tively heat treated for pathogens of 
concern 
 - product might be heat treated prior to export, or 
 - heat treated on arrival prior to general distribution 
2. Implement the recommendations of the BRS report “Aquatic Animal 
Quarantine in Australia:  Report of th e Scientific Working Party on Aquatic 
Animal Quarantine” in part or in full. 
3. Permit the importation of retail-ready fillets, for distribution in raw form 
under specified conditions. 
4. Implement the recommendations of AQIS’s draft IRA, that is, permit the 
importation of headless, gilled, eviscerated product under specified conditions. 
5. Permit importation of product that complies with current international 
standards for trade in salmon product for human consumption, that is, OIE 
recommends that product be eviscerated  and that no other risk reduction 
measures need be taken".
304  
We note that by doing so the 1996 Final Report itsel f - which only deals with fresh, chilled and frozen 
product - regards heat treatment as one of the polic y options to be imposed on fresh, chilled or frozen 
product and thereby confirms the link we discerned above305 between the prohibition, in effect, 
imposed by Australia on fresh, chilled and frozen pr oduct, on the one hand, and the heat treatment 
requirements currently prescribed in Australia, on the other.  We note, moreover, that at the interim 
review meeting Australia stated that its quarantine measure currently in place is not the same as any of 
the seven options identified in the 1996 Final Report.   However, Australia c onfirmed that its current 
measure most closely resembles the first of the fi ve options further addressed in the 1996 Final Report 
("[p]ermit the importation of product effectively heat treated for pathogens of concern").  
8.98 We note, however, that the 1996 Final Report makes no substantive assessment of the risk or 
the risk reduction related to the heat treatment requi rements in effect imposed by the measure at issue 
(and more generally referred to in  the first option outlined above 306).  On the contrary, the 1996 Final 
Report itself states that there is insufficient data on whether or not heat treatment inactivates the 
disease agents in dispute: 
"For many of the disease agents, data on thermal resistance are not available as the 
necessary investigations have not been unde rtaken.  Most fish pathogens would be 
expected to be readily inactivated by heat , but there are notable exceptions such as 
IPNV ... There are insufficient data to be conf ident that all of the agents that may be 
present would be inactivated, but it could be expected there would be a significant 
reduction in titre of the agents th at may survive the heat treatment".307  
In Section 1.4.2 of the 1996 Final Report, addressing "risk analysis factors" on a disease-by-disease 
basis, heating as a risk reduction factor is not even addressed.308 In Section 2, a technical review of 
                                                      
304 Ibid., p.62. 
305 Para. 8.95. 
306 At the interim review stage, Australia made clear that the first option set out in the 1996 Final Report 
("[p]ermit the importation of product effectively heat treated for pathogens of concern") is not the same as the heat 
treatment requirements Australia currently imposes (in the 1988 Conditions).  See para. 8.175. 
307 1996 Final Report, pp.57-58.  In this respect, see also the answers by experts advising the Panel 
(Burmaster and Rodgers) to Panel Ques tion 13, e.g., Rodgers stating : "... co mparative data for evisceration, heat 
treatment and full cooking are scarce [he then refers to one 1994 study by Whipple and Rohovec and concludes]... Most of the other studies related to inactivation by heat are largely concerned with incubation and cultivation temperatures in artificial media, not to reduction of pathogen levels in tissue". 
308 1996 Final Report, pp.37-49.    WT/DS18/R 
   Page 169  
 
data for 24 salmonid diseases, the 1996 Final Report mentions heat treatment as a potential risk 
reducing factor, but then makes the following st atement for 13 out of the 24 diseases it examined: 
"Treatments, (e.g., heating, disinfection) 
We are unaware of any published informa tion on such treatments which might reduce 
the risk".309  
In its submissions to this Panel, Au stralia reiterated this view as follows: 
"The susceptibility of microorganisms to inactivation by heat treatment can be 
characterised by particular parameters (D and Z values), which are specific for each 
organism or strain of organisms.  For mo st fish pathogens, these parameters have not 
been determined".310  (underlining added) 
With respect to the disease IPNV, the 1996 Final Repor t even concludes that it is resistant to heat 
treatment.311 For other diseases the 1996 Final Report me ntions that both freezing and heating may 
have risk reduction effects.312  This was addressed in more gene ral terms by the 1995 BRS Report: 
"Imported flesh heated to low temperatures [as allowed under the 1988 Conditions313] 
presents essentially the same ri sks as fresh or frozen flesh".314  
Indeed, according to evidence referred to by Canada315, some disease pathogens not only survive but 
even grow when heat-treated at the lower temperature range allowed under the 1988 Conditions.316 In 
conclusion, the 1995 BRS Report explicitly questioned the rational basis of requiring heat treatment 
before importation:   
"The current process of heating salmonid finfish to inactivate potential exotic 
pathogens does not have a rational basis in view of the thermal stability of a number 
                                                      
309 Ibid., p.148 ( Edwardsiella tarda ), p.167 ( Vibrio anguillarum  and V. ordalii ), p.171 ( Vibrio salmonicida ), 
p.178 ( Yersinia ruckeri ), p.207 (Pacific salmon anaemia virus), p.229 ( Enterocytozoon salmonis ), p.234 ( Loma 
salmonae ), p.239 ( Ceratomyxa shasta ), p.245 ( Henneguya salminicola ), p.249 ( Kudoa thyrsites ), p.258 ( Parvicapsula 
spp.), p.263 (PKX),  p.268 (Rosette Agent).  For other di seases, according to the 1996 Final Report, only some 
evidence is available that heat treatment is "likely" to reduce risk, (e.g., p.152 for Piscirickettsia salmonis , p.160 for 
Renibacterium salmoninarum , p.183 for ENV, p.187 for Herpesvirus  salmonis Type 1, p.212 for salmon leukaemia 
virus).  The 1996 Final Report concludes for only 4 disease agents that heat treatment will have a significant effect on or inactivate the disease agent (p.194 for IHNV, p.216-217 for salmon pancreas disease virus, p.223 for VHSV and p.253 for Myxobolus cerebralis ). 
310 Australia's comment to Panel Question 13 to  the experts, Australian comments, p.12. 
311 1996 Final Report, p.53:  "IPNV is a very stable virus.  It can withstand heating and cooling and is 
expected to persist in the environment for long periods". 
312 For example, with respect to the disease agent Piscirickettsia salmonis : "Piscirickettsia salmonis  does not 
survive well in freshwater, but can survive for weeks in sea water.  It is adversely affected by both high (>20°C) and 
low temperatures (freezing)" (1996 Final Report, p.53); see al so, to a more limited extent, with respect to, e.g., 
Aeromonas salmonicida  (at pp.140-141:  "Freezing and thawing will significantly reduce levels of culturable 
organisms.  The effect of these factors on non-culturable  forms of the pathogen in the product is not known") and 
ENV (pp.182-183:  "Little is known of the liability to freezing of ENV at -20 C, however MacMillan and Mulcahy 
(1979) succeeded in inducing VEN with blood that had been frozen at -70 C"). 
313 Para. 8.11. 
314 1995 BRS Report, p.37 (confirming the 1995 Humphrey Report, Section 9.5.5). 
315 Evidence referred to by Canada in its oral statement at the second substantive meeting, not submitted to 
the Panel, but not contested by Australia. 
316 See also comment in the 1996 Final Report (at pp.343-344) on how protein can act as a protectant of 
organisms during heat treatment and survival of spores. WT/DS18/R 
Page 170  
 
of pathogens of high quarantine importance, especially at the lower temperature 
ranges".317  
8.99 We thus consider that Canada has raised a presumption (i.e., made a prima facie  case) that 
there is no "rational relationship between the measure and the risk assessment"318 in that nowhere in 
the 1996 Final Report - the only risk assessment fo rwarded by Australia - can a rational basis be 
found to support the sanitary measure maintained by Australia, i.e., the heat treatment requirements in 
effect imposed by the measure at issue.  Canada h as, therefore, raised a presumption that there is no 
risk assessment that "reasonably supports or warrants"319 the measure at issue.  We also consider that 
Australia, in turn, has not provided evidence to rebut that presumption.  We thus find that the measure 
at issue - in so far as it applies to the salmon pr oducts further examined - is not "based on" a risk 
assessment in accordance with Article 5.1.  To that extent we find that Australia, by maintaining the 
measure at issue, acts inconsistently with Article 5. 1.  Given our earlier finding - that a violation of 
the more specific Article 5.1 can be presumed to im ply a violation of the more general provisions of 
Article 2.2320 - we find that Australia, to that extent, al so acts inconsistently with Article 2.2.   
8.100 We note Australia's statement that its po licy of allowing imports of salmon products heat-
treated in accordance with the 1988 Conditions will be  reviewed and that for these purposes an import 
risk analysis is scheduled.  It is possible that this  risk analysis provides a rational basis for the measure 
at issue.  However, as of today and on the basis of the risk assessment before us, we do not detect 
such basis. 
  (c) Summary  
8.101 We have found above that the measure in  dispute is not based on a risk assessment in 
accordance with Article 5.1: 
(1) in so far as the measure at issue a pplies to those salmon products in dispute 
other than from adult, wild, ocean-caught Pacific salmon (i.e., other than those covered by the 1996 Final Report) in that for these products no risk 
assessment in accordance with Ar ticle 5.1 has been submitted
321;  and  
(2) in so far as the measure at issue a pplies to those salmon products in dispute 
from adult, wild, ocean-caught Pacific salmon (which we have defined as "the salmon products further examined"), to the extent it in effect and from a sanitary perspective imposes certain heat treatment requirements, is not 
reasonably supported or warranted by a risk assessment.
322  
Because of these inconsistencies with Article 5.1, we  also found that - to the same extent - Australia, 
by maintaining the measure at issue, acts inconsistently with Article 2.2. 
8.102 We note that if we were to have found that the measure in dispute is based on a risk 
assessment in accordance with Artic le 5.1 and if, for that reason, Australia could have adopted a 
measure to achieve its appropriate level of protec tion against these risks, we would then be called 
upon to examine in this case whether the determinati on and application of this  level of protection is 
consistent with Articles 5.5 and 5.6.  In the alte rnative, therefore, we shall next examine these 
provisions.  
                                                      
317 1995 BRS Report, p.37 (confirming the 1995 Humphrey Report, Section 9.5.5). 
318 Appellate Body Report on EC - Hormones , op. cit., para. 193, p.78. 
319 Ibid., para. 208. 
320 Para. 8.52. 
321 Para. 8.56. 
322 Para. 8.99.    WT/DS18/R 
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 4. Canada's claims under Article 5.5  
8.103 Article 5.5 provides: 
"With the objective of achieving consistenc y in the application of the concept of 
appropriate level of sanitary or phytosanitary  protection against risks to human life or 
health, or to animal and plant life or h ealth, each Member shall avoid arbitrary or 
unjustifiable distinctions in the levels it considers to be appr opriate in different 
situations, if such distinctions result in discrimination or a disguised restriction on international trade.  Members shall coopera te in the Committee, in accordance with 
paragraphs 1, 2 and 3 of Article 12, to develop guidelines to further the practical 
implementation of this provision.  In developing the guidelines, the Committee shall 
take into account all relevant factors, including the exceptional character of human health risks to which people  voluntarily expose themselves". 
Article 5.5 must be read in context.  An im portant part of that context is Article 2.3 
323, which 
provides as follows: 
"Members shall ensure that their san itary and phytosanitary measures do not 
arbitrarily or unjustifiably discriminate between Members where identical or similar conditions prevail, including between their ow n territory and that of other Members.  
Sanitary and phytosanitary measures shall not be applied in a manner which would 
constitute a disguised restriction on international trade". 
8.104 We recall that both Australia (especially in  the 1996 Final Report and the drafts preceding 
that report) and Canada (during our proceedings), focused on adult, wild, ocean-caught Pacific salmon 
and that we, in turn, did the same.  For these reas ons, the evidence and arguments before us which are 
relevant to our examination under Articles 5.5 and 2.3 are centred on adult, wild, ocean-caught Pacific 
salmon.  On that basis we decided in paragraph 8. 60 to confine our examination of this dispute under 
Articles 5.5 and 2.3 to those salmon products at issue from adult, wild, ocean-caught Pacific salmon, 
which we have defined as "the salm on products further examined".   
  (a) Determination of the appropriate level of sanitary protection  
8.105 Canada claims that Australia has not de termined its "appropriate level of sanitary ... 
protection" with respect to the importation of dead  salmon and that this, as such, already violates 
Article 5.5.  According to Canada, Australia provi ded different and contradi ctory expressions of its 
appropriate level of protecti on, defining this level, inter alia , as "no significant risk", "very low risk" 
or "possibility of risk".  According to Canada, "possi bility of risk" is equivalent to "zero-risk", a level 
which is, as recognized by Australia itself, unattainable. 
8.106 Australia submits that the SPS Agreemen t does not require Australia to quantify its 
appropriate level of protection fo r salmonids.  For Australia, the determination of the level of 
protection deemed appropriate is a sovereign deci sion to which no minimum or maximum thresholds 
are attached.  According to Australia, the appropria te level of protection with respect to salmonids 
was determined in regard to risks of both introduction of the diseases of concern and the 
consequences associated with th ese diseases.  Even though in this case the likelihood of occurrence 
might be small, the consequences of introduction ar e, for Australia, of an unacceptable magnitude.  
Australia further notes that the most descriptive expr ession of its appropriate level of protection in the 
area of quarantine is contained implicitly in previo us quarantine decisions and the risk management 
measures applied.  In the light of Australia being an island state free of many pests and diseases, Australia submits that it has consistently adopted a high, conservative approach with respect to the 
                                                      
323 Appellate Body Report on EC - Hormones , op. cit., para. 212. WT/DS18/R 
Page 172  
 
appropriate level of protection.  Australia adds that its economy is highly dependent on agricultural 
production and exports (80 per cent of Australia's agri cultural production is exported) and that this, as 
well as economic and non-economic factors in the domes tic context, is factored into its quarantine 
decision-making. 
8.107 We note that paragraph 5 of Anne x A provides the following definition: 
"Appropriate level of sanitary or phytosanitary protection  - The level of protection 
deemed appropriate by the Member establishing a sanitary or phytosanitary measure to protect human, animal or plant life or health within its territory.   
 NOTE:  Many Members otherwise refer to this concept as the 'acceptable level of risk' ". 
We further note that several provisions of the SPS  Agreement other than Article 5.5 mention the 
concept of an "appropriate level of sanitary or phytosanitary protection".
324  However, nowhere does 
the SPS Agreement explicitly impose an obligation  on WTO Members to identify or quantify such 
level.  We consider, rather, that any sanitary measu re applied to a given situation inherently reflects 
and achieves a certain level of protection with respect to that situation and that this level of protection 
- implied in the sanitary measure selected by a Memb er - can be presumed to be at least as high as the 
level of protection considered to be appropriate by that Member.325 In this case, the measure at issue 
implies and reflects a certain level of sanitary prot ection achieved by Australia with respect to the 
salmon products at issue, including those further ex amined.  Given that no evidence to the contrary 
was provided by Australia, we assume that this level of protection is the level of protection considered 
to be appropriate by Australia.  In other words, we  assume that this level is Australia's "appropriate 
level of sanitary protection".  We see no need to clearly define or quantify that level for present 
purposes.  We only note that Australia, inter alia , submitted that it is a high or "very conservative"326 
level of sanitary protection aimed at reducing risk to "very low levels" 327, "while not based on a zero 
risk approach".328  We also note that Australia's primary reason to impose such conservative level of 
protection is the magnitude of the biological, environmental and economic consequences of the 
introduction of the diseases at issue, while it acknow ledges, on the other hand, the "small" likelihood 
of such introduction.329  
(b) Arbitrary or unjustifiable distinctions in levels of sanitary 
protection which result in discrimination or a disguised restriction on trade  
8.108 The relevant part of Article 5.5 im posing an obligation on WTO Members reads: 
"... each Member shall avoid arbitrary or unju stifiable distinctions in the levels it 
considers to be appropriate in different s ituations, if such distinctions result in 
discrimination or a disguised restriction on international trade". 
                                                      
324 Sixth preamble to the SPS Agreement, Articles 3.3, 4.1,  5.3, 5.4, 5.6, 9.1, 10.2,  12.4 and paragraph 3(c) of 
Annex B. 
325 In this respect, see the Panel Reports on EC - Hormones , op. cit., respectively at para. 8.74, and para. 
8.77:  "However, the fact that an ADI [i.e., a quantified 'Acceptable Daily Intake' of a substance] or MRL [i.e., a 
quantified 'Maximum Residue Level' of a substance] can reflect  a level of protection (without stricto sensu  itself being 
a level of protection), does not exclude, as the European Co mmunities has argued, that an ADI or MRL can also be a 
sanitary measure  in the sense of the SPS Agreement" (emphasis in original). 
326 Australia, First Submission, para. 351. 
327 Ibid. 
328 Australia, Rebuttals, para. 16. 
329 Australia, Rebuttals, para. 216.  See also Australia's st atement at the experts meeting: "Australia is willing 
to accept only a low likelihood of the entry, establishmen t or spread of diseases of  quarantine concern, if the 
consequences from the entry of a pest or disease are expected to be significant" (Transcript, para. 81).    WT/DS18/R 
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In this respect, the Appellate Body in EC - Hormones  stated the following: 
"Close inspection of Article 5.5 indicates that a complaint of violation of this Article 
must show the presence of three distinct el ements.  The first element is that the 
Member imposing the measure complained of has adopted its own appropriate levels 
of sanitary protection against risks to human life or health in several different situations.  The second element to be shown is that those levels of protection  exhibit 
arbitrary or unjustifiable differences ("distin ctions" in the language of Article 5.5) in 
their treatment of different situations.  The last element requires that the arbitrary or 
unjustifiable differences result in discrimination or a disguised restriction of 
international trade.  We understand the l ast element to be referring to the measure 
embodying or implementing a particular le vel of protection as resulting, in its 
application, in discrimination or a disguised restriction on international trade". 
330  
The Appellate Body then added: 
"We consider the above three elements of Ar ticle 5.5 to be cumulative in nature;  all 
of them must be demonstrated to be presen t if violation of Article 5.5 is to be 
found".331  
We thus consider that three elements are required in order for a Member to act inconsistently with 
Article 5.5: 
- the Member concerned adopts different appr opriate levels of sanitary protection in 
several "different situations"; 
- those levels of protection exhibit differen ces which are "arbitrary or unjustifiable"; 
and 
- the measure embodying those differences resu lts in "discrimination or a disguised 
restriction on international trade". 
8.109 We recall that Article 5.5 needs to be read in the light of Article 2.3.332  A s  n o t e d  b y  t h e  
Appellate Body in EC - Hormones : 
"When read together with Article 2.3, Artic le 5.5 may be seen to be marking out and 
elaborating a particular route leading to the same destination set out in Article 2.3".333  
Indeed, even though Article 5.5 deals with arbitrary or unjustifiable distinctions in levels of protection  
imposed by one WTO Member for different situa tions and Article 2.3 addresses, rather, sanitary 
measures which (1) arbitrary or unjustifiably discriminate between  WTO Members or (2) are applied 
in a manner which would constitute a disguised restriction  on trade; the third element under 
Article 5.5 also requires that the measure  in dispute results in discrimination or a disguised restriction 
on trade.  We conclude, therefore, that if we were to find that all three elements under Article 5.5 - including, in particular, the third element - are fulfilled and that, therefore, the more specific 
Article 5.5 is violated, such finding can be presumed to imply a violation of the more general Article 
2.3.  We do recognize, at the same time, that, given the more general character of Article 2.3, not all 
violations of Article 2.3 are covered by Article 5.5. 
8.110 We recall, moreover, that the Committee on Sanitary and Phytosanitary Measures has been 
given a mandate by Article 5.5, second sentence, to "develop guidelines to further the practical implementation of this provision", but that no such  guidelines have to date been developed.   
                                                      
330 Op. cit., para. 214, emphasis in original. 
331 Ibid., para. 215. 
332 Para. 8.103. 
333 Op. cit., para. 212. WT/DS18/R 
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8.111 Canada claims that the measure in disput e meets each of the three elements contained in 
Article 5.5 and therefore violates Article 5.5.  Australia disagrees and submits that its measure is fully consistent with Article 5.5.  We next examin e each of the three elements under Article 5.5. 
  (i) Distinctions in levels of protection for "different situations"  
Arguments of the parties  
8.112 For Canada the "different situations" to be  compared under Article 5.5 are, at a minimum, 
those that involve at least some of  the same 24 disease agents at issue.  Canada submits that many of 
these disease agents also occu r in non-salmonids whose entry into Australia is not prohibited.  To 
avoid a distinction in levels of protection in these different situations, Canada argues, Australia would 
have to impose similar sanitary measures for the im portation of all products k nown to be capable of 
hosting any of the 24 diseases of concern.   
8.113 Canada argues, for example
334, that Australia makes the following distinctions in levels of 
sanitary protection (also outlined in Annex 1 of our report):335  
(1) an import ban on uncooked salmon for human consumption to protect against 
risk of introduction of, inter alia , the disease agent Aeromonas salmonicida  (atypical 
strain), according to the 1996 Final Report "one of the most serious threats to 
Australian fish" 336, as opposed to allowing imports of, inter alia , uncooked Pacific 
herring, cod, haddock, Japanese eel and plai ce for human consumption, all of which 
are known to host the same disease (as well as ot her diseases of concern to Australia);  
(2) an import ban on uncooked salmon for human consumption to protect against 
risk of introduction of, inter alia, the disease agents VHSV and IPNV 337 which 
according to the 1996 Final Report itself have not even been detected in the salmon products further examined
338, as opposed to allowing imports of, inter alia , uncooked 
Pacific herring, Atlantic and Pacific c od, haddock and European eel for human 
consumption, all of which are known to host VHSV (as well as other disease agents 
of concern to Australia), and uncooked cod, European and Japanese eel and Dover 
sole for human consumption, all of which are known to host IPNV (as well as other disease agents of concern to Australia);  
(3) an import ban on uncooked salmon for human consumption to protect against 
risk of introduction of, inter alia , four specific disease agents ( Aeromonas 
salmonicida  (atypical strain), Erythrocytic necr osis virus, Infectious haematopoietic 
necrosis virus and VHSV), as opposed to a llowing imports of herring in whole, 
frozen form for use as bait which ar e known to host the same diseases
339;   
                                                      
334 In its submissions, Canada also referred to other ex amples but particularly addressed four comparisons.  
We shall therefore, in turn, concentrate on these four comparisons.    
335 The descriptive part of our report (at para. 4.201) al so sets out four comparisons put forward by Canada 
under Article 5.5.  However, in the findings section we only ad dress the first three of these comparisons.  The first two 
comparisons set out in our findings are brought together in the descriptive part - on request by Canada - as one 
comparison.  However, for purposes of our findings we cons ider it more appropriate to set out these two comparisons 
separately since they deal with different fish products, different diseases and different arguments as to disease 
occurrence. 
336 1996 Final Report, p.38. 
337 Respectively "Viral Haemorrhagic Septicaemia Virus" and "Infectious Pancreatic Necrosis Virus". 
338 1996 Final Report, respectively at p.45 and p.44. 
339 According to Canada, Pacific herring is host to all four disease agents, whereas Atlantic herring only to 
one of them (Erythrocytic necrosis virus).    WT/DS18/R 
   Page 175  
 
(4) an import ban on uncooked salmon for human consumption to protect against 
risk of introduction of, inter alia , five specific disease agents ( Aeromonas 
salmonicida  (atypical strain), Yersinia ruckeri , Edwardsiella tarda , IPNV and Vibrio 
anguillarum ), as opposed to allowing imports of live ornamental finfish which are 
known to host the same diseases.340  
Canada argues that it does not matter that no risk assess ment has so far been ma de by Australia for the 
other products compared under Article 5.5.  Fo r Canada, the point is that for uncooked salmon 
Australia takes an extremely cautious approach wh ereas for non-salmonids Australia is, in Canada's 
words, "gambling". 
8.114 Australia argues that the "different situations " envisaged in Article 5.5 may occur in regard to 
(1) the same product and the same diseases where there might be iden tical or similar adverse health 
effects and consequences or (2) different produc ts with the same adve rse health effects and 
consequences.  With respect to  the distinction made between importation of salmonids and non-
salmonids, Australia acknowledges that non-salmonid product or live fish imported into Australia 
could represent a risk of entry of diseases of concern.  It argues, however, that it is currently 
undertaking import risk analyses and reviewing its m easures related to non-salmonids.  An import risk 
analysis on the importation of bait and feed fish is scheduled to commence in April 1998.  The import risk analysis for ornamental fish was started in 1997.  Australia also argues that to restrict the 
importation of non-salmonids before having completed these risk analyses would run counter to other 
provisions of the SPS Agreement, in particular the obligation to base sanitary measures on a risk 
assessment.  Australia submits that the imposition of  similar measures to different products may in 
fact result in different levels of protection in r espect of the same disease ag ent since the likelihood of 
disease entry is likely to be different for various co mmodities.  Australia also argues that it imposes 
the measure in dispute because of the range of di sease agents that potentially could be present in the 
salmon products further examined, not because of any one particular disease agent.    
"Different situations"  
8.115 In defining the scope of "different situ ations" under Article 5.5, we note the following 
statement in the Panel Reports on EC - Hormones : 
"We note that both parties in dispute agree that the scope of "different situations" 
contained in Article 5.5 includes situations which deal with the same substance as 
well as situations which involve the same adverse health effect .  For this reason, 
considering the lack of guidelines by th e Committee on Sanitary and Phytosanitary 
Measures and without further defining or limiting the scope of "different situations", we find that, for the purposes of this disput e, we can compare situations where the 
same substance or the same adverse health e ffect is involved as "different situations" 
in the sense of Article 5.5".
341  
The EC - Hormones  panels then found that they could compare natural hormones with synthetic 
hormones under Article 5.5 as "different situations ", even though these are different substances, 
because "the situations thus co mpared involve at least the same adverse health effect , namely 
carcinogenicity".342  The same conclusion was reached with respect to a comparison between five of 
                                                      
340 According to Canada, freshwater ornamental finfish host Aeromonas salmonicida  (atypical strain), 
Yersinia ruckeri , Edwardsiella tarda  and IPNV, whereas marine ornamental finfish host Vibrio anguillarum .  
341 Panel Reports, op. cit., para. 8.176 (US complaint) and para. 8.179 (complaint by Canada), emphasis in 
original. 
342 Ibid., paras. 8.208-9 at para. 8.208 (US complaint)  and paras. 8.211-2 at para. 8.211 (complaint by 
Canada), emphasis in original. WT/DS18/R 
Page 176  
 
the six hormones at issue and the antimicrobial growth promoters carbadox and olaquindox.343  
Dealing with this very issue on appeal, the Appellate Body stated the following: 
"Clearly, comparison of several  levels of sanitary protecti on deemed appropriate by a 
Member is necessary if a panel's inquiry under Article 5.5 is to proceed at all.  The 
situations exhibiting differing levels of protection cannot, of course, be compared unless 
they are comparable, that is, unless they present some common element or elements 
sufficient to render them comparable.  If the situations proposed to be examined are 
totally  different from one another, they woul d not be rationally comparable and the 
differences in levels of protection cannot be examined for arbitrariness".344  
8.116 In the EC - Hormones  cases the measure at issue intended to protect human health against 
risks arising from contaminants in foods.  It thus  fell under the definition of a sanitary measure in 
paragraph 1(b) of Annex A and had to be based  on a risk assessment in the sense of the second 
definition of paragraph 4 of Annex A.  Such san itary measure and risk assessment should, according 
to  paragraph 4, address "the potential for adver se effects" on health; not the non-health related 
consequences.  Other situations with "the same a dverse health effect" were, therefore, found to be 
comparable under Article 5.5.  In this dispute, the measure at issue is intended to protect animal health 
as a sanitary measure defined in para graph 1(a) of Annex A and is to be based on a risk assessment in 
the sense of the first definition in paragraph 4 of Annex A.  According to this first definition in 
paragraph 4, such risk assessment has to take in to account risks arising not only from the "entry, 
establishment or spread of a pest or disease", but  also from the "associated biological and economic 
consequences".   
8.117 On these grounds - and in particular referri ng to the interpretation given by the Appellate 
Body to the concept of "different situations" in Article 5.5, requiring that such situations should 
"present some common element or elements sufficient to render them comparable"345 - we find that in 
the circumstances of this dispute, we can compare situations under Article 5.5 if these situations 
involve either a risk of "entry, establishment or spre ad" of the same or a similar disease or of the same 
or similar "associated biological and economic con sequences" and this irrespective of whether they 
arise from the same product or other products.  In othe r words, we are of the view that the treatment 
provided by Australia to the salmon products furt her examined can be compared under Article 5.5 
with the treatment it provides to other salmon pr oducts or non-salmonids which represent a risk of 
entry, establishment or spread of the same or a si milar disease or a risk of the same or similar 
associated biological and economic consequences.   
8.118  At the interim review stage, Australia argued that for "different situations" to be comparable 
under Article 5.5 both the disease and the consequences need to be the same.  Australia thereby 
referred to the definition of risk assessment where these two factors are linked by the word "and", not 
"or".  We note, however, that at this stage of our examination we only address the question whether 
two situations can be compared under Article 5.5.  We do not examine nor decide at this point 
whether the risk (both in the sense of risk of en try, establishment or spread of the disease and the 
associated consequences) linked to these two situ ations is the same or has been addressed 
inconsistently.  This issue needs to be ex amined under the second element of Article 5.5. 
8.119 To have "different situa tions" under Article 5.5, we do not consider that the other products 
compared to the salmon products further ex amined need to be potential hosts to all disease agents of 
concern for these salmon products.  To the extent th at both the other products and the salmon products 
further examined are known to be hosts to one of these disease agents or - for the salmon products  - 
give rise to an alleged concern for that disease agen t, they can be associated with the same kind of 
                                                      
343 Ibid., paras. 8.220-1 (US complaint, where only carba dox was at issue) and paras. 8.223-4 (complaint by 
Canada, where both carbadox and olaquindox were discussed). 
344 Op. cit., para. 217, emphasis in original. 
345 Op. cit., para. 217.    WT/DS18/R 
   Page 177  
 
risk, namely a risk of entry, establishment or spread of that disease.  Indeed, if we were to find that 
only products which are known to be host to all 24 disease agents of concern to Australia can be 
compared to the salmon products further examined,  it would then be sufficient for a WTO Member 
imposing a sanitary measure - in order to avoid the application of Article 5.5 - to list a series of 
disease agents allegedly of concern to it, the tota lity of which is not known to occur in any other 
product.346  In our view, even if the salmon products furt her examined were to be host to more disease 
agents than the other products they are compared  to, does not affect the comparability of these 
products as "different situations" under Article 5.5.  This factor may, however, be a reason to justify a 
distinction in levels of protection imposed for these different situations under the second element of 
Article 5.5 (i.e., arguments that such distin ction is not "arbitrary or unjustifiable").  
8.120 We next have to determine whether the f our comparisons we outlin ed in paragraph 8.113 
compare situations for which a risk arises of entry,  establishment or spread of the same or a similar 
disease or of the same or similar associated biological and economic consequences.  We recall that our examination of this dispute under Article 5.5 is  limited in scope to those salmon products at issue 
from adult, wild, ocean-caught Pacific salmon, which we defined as the salmon products further 
examined.  We shall, therefore, only compare thos e salmon products to the other products set out in 
the four comparisons. 
8.121 We note, first, that Australia expressed a concern  for each of the specific disease agents, put 
forward under each of the four comparisons, with respect to the salmon products further examined.
347  
We recall, second, that neither the parties to the dispute nor the experts advising the Panel348 contest 
the fact that with respect to all four comparis ons these specific disease agents have actually been 
detected (i.e., are known to occur ) in the products compared to the salmon products further examined.  
Third, according to the experts advising the Panel,  the biological and economic consequences of a 
disease introduction (i.e., the consequences of a di sease once established in a country) will generally 
be the same or similar in a given country, irrespective of the product introducing the disease.  
Therefore, as soon as two situations have a diseas e agent or a concern for a disease agent in common, 
also the associated potential biological and econom ic consequences can be presumed to be the same 
or at least to be similar.349  Nothing in the 1996 Final Report (in particular its Section 3 which 
addresses the economic and other impacts of salm onid disease introduction into Australia) indicates 
differently.  Since (1) the two situa tions in each of the four comparisons have, therefore, at least one 
disease agent in common - or, as far as the salmon products are concerned, represent at least an 
alleged concern for that disease agent - and (2) also the consequences associated with these diseases 
can, according to the experts advising the Panel, be pr esumed to be at least similar, we consider that 
                                                      
346 In response to an Australian comment at the interim review stage, this does not, of course, exclude that a 
Member may, in some cases, have good reasons to be concerned about a series of disease agents which may occur in a given product but which do not occur in any other product. 
347 All the diseases put forward by Canada under Article 5.5 figure in the list of 24 diseases of concern to 
Australia with respect to salmon products.  This list was provided in Australia's answer to Panel Question 2 and is reproduced in Table 3 in the descriptive part. 
348 Answers by the experts advising the Panel to Panel Question 8. 
349 Answers by the experts advising the Panel to Panel Question 6 ("Canada contends that for any given 
disease agent, the consequences  of the disease becoming established in an importing country would be the same 
regardless of the original imported source.  In your view , is this statement technically/scientifically correct?"): 
Burmaster answers, p.4 ("Yes; I cannot think of a counter-e xample to this principle", expanded in Transcript, para. 
259); Rodgers answers, p.7 ("This statement is probably gene rally correct ..."; Rodgers then goes on to say that the 
nature of the original import may have a bearing on the possible consequences.  However, the consequences he addresses do not relate to those arising after the introduction of  the disease but rather to the risk of such introduction 
occurring, the consequences of allowing imports of these different products irrespective of whether they introduce diseases or regional differences in the importing country);  Wooldridge answers,  pp. 10-11.  ("Once a given disease is established country-wide in an importing country, then in my opinion the consequences from that point on will be the same whatever the original imported source or manner of establishment"; Wooldridge notes, however, that a difference in import distribution may lead to a difference in short term consequences of disease establishment due to regional differences in susceptibility to the disease in the importing country); Winton did not answer Question 6. WT/DS18/R 
Page 178  
 
for each of these comparisons the two situations can be compared under Article 5.5 as "different 
situations".   
8.122 The four comparisons examined under Artic le 5.5 and the respec tive diseases under each of 
these comparisons, with a reference to where the occurrence of these diseases in the other products 
has been confirmed350, are outlined in Annex 1 to our report.   
Difference in levels of protection  
8.123 We next examine whether there is, for each of these "different situations"351, a distinction in 
levels of sanitary protection.  As noted earlier352, the appropriate level of sanitary protection will 
normally be reflected in the sanitary measures im posed for a specific situation.  We consider, 
moreover, that the level of protection achieved by a specific sanitary measure will also depend on the 
degree of risk against which that measure is inte nded to protect.  In that sense, we agree with 
Australia that imposing the same sanitary measure for different situations does not necessarily result 
in the same level of protection.  Indeed, in many situations (e.g., situatio ns representing different 
risks) the same sanitary measure might result in di fferent levels of protection.  On the other hand, 
different sanitary measures for different situations mi ght ensure the same level of protection.  Indeed, 
one given situation might only represent a small risk for which a lenient sanitary measure will achieve 
a high level of protection, whereas another situation might pose very high risks requiring a very strict and different sanitary measure in order to me et that same high level of protection.   
8.124 To determine whether Australia makes a distin ction in the levels of protection it considers to 
be appropriate for the situations compared, we thus  need to examine the sanitary measures Australia 
currently imposes for these different situations.  Since we have found that these situations are 
comparable as "different situations" under Article 5.5 (because they have at least one disease agent in 
common and, presumably, also represent the same or similar biological and economic consequences
353) and since we will consider the potential di fference in the degree of risk posed by 
these different situations under the second element of  Article 5.5, we will for present purposes assume 
that if there is a difference in the sanitary measures  imposed for the different situations we compare 
under Article 5.5, this differenc e does reflect a distinction in levels of protection  achieved in - and 
considered to be appropriate by - Australia.  
8.125 For the above reasons354, we consider that even though Au stralia has not yet conducted import 
risk analyses for the other products compared under Ar ticle 5.5, Australia does, nevertheless, have a 
level of protection it considers to be appropriate for these other products.  Australia currently has a 
sanitary regime, imposing specific sanitary measur es or refraining from such regulation, for these 
other products.  This sanitary regi me (whether or not specific measur es are enacted) reflects a level of 
protection.  To have a specific level of protection, ther e is no need to first complete a risk assessment.   
8.126   The arguments submitted by Australia - th at imposing similar measures for both the salmon 
products and the other products compared, without first completing a risk analysis for these other 
products, would run counter to the obligation to b ase sanitary measures on a risk assessment; and that 
situations can only be compared under Article 5. 5 if for both an appropriate risk assessment is 
                                                      
350 When addressing "disease occurrence" in Annex 1, we focus on whether or not the specific disease agent 
has been detected in the product concerned.  We realize th at doing so we simplify the comparison and that a better 
comparison could be made if more data was available.  However, according to our mandate, we have to make an 
objective assessment of the evidence put before us (Article 11 of the DSU).  Our approach should, therefore, not be 
read to imply that risk assessments should be limited to disease agents that have actually been detected nor that they cannot take into account evidence related to scientific research.  
351 Para. 8.113 and Annex 1 to our report. 
352 Para. 8.107. 
353 Para. 8.121. 
354 Paras. 8.123 and 8.124.    WT/DS18/R 
   Page 179  
 
available  - are unconvincing.  First, as we just noted, for any given situation a level of protection 
applies.  Article 5.5 directs us to compare for diffe rent situations the relate d levels of protection as 
they are currently considered to be appropriate by  Australia and this whether or not the sanitary 
measures enacted to achieve that level are based on a risk assessment.  Of course, such comparison 
would be easier and more accurate if for both situatio ns an appropriate risk assessment were available.  
However, according to Article 5.5 and our mandate set out in Article 11 of the DSU (to make an 
"objective assessment of the matter before [us], includi ng an objective assessment of the facts of the 
case"), we are called upon in this case to make this  comparison and to do so on the basis of the 
evidence before us.  We cannot conduct our own risk assessment.  Nor do we attempt to do so in this 
report.  The fact that one of the experts advising th e Panel stated that "if you are trying to say which 
[of two products] is the most risky, then you need to know something about and possibly do a full assessment for [the other] product"
355 and that "it would be sensible to assess that which you have 
prioritized initially to have the highest risk firs t, but until you have done the risk assessment, you 
actually cannot be sure you have got that right"356, does not change our position.  Nor do we disagree 
with these statements.  Indeed, fo r a scientist to say with scientif ic certainty that one product 
represents a higher risk than the other, there may be a need to have two, more or less, complete sets of 
data, including two risk assessments.  And even on th at basis a scientist would probably not be able to 
state with absolute certainty that one product is risk ier than the other.  Our mandate is different.  We 
are not asked to make a scientific risk comparison  nor to state with scientific certainty that one 
product is riskier than the other.  We can only weig h the evidence put before us and, on the basis of 
the rules of burden of proof we adopted357, including the use of factual presumptions, decide whether 
sufficient evidence is before us - evidence which has not  been rebutted - in order to state that it can be 
presumed that one product is riskier than the other.   Second, the obligations contained in Article 5.1 
(risk assessment) and Article 5.5 are complementary, not  mutually exclusive.  We consider, therefore, 
that a WTO Member cannot justify the inconsiste ncy with one Article on the ground that such 
inconsistency avoids an additional inconsistency w ith another Article.  Third, in order to impose 
sanitary measures for the other products compared  to the salmon products further examined, a 
complete risk assessment is not always required.  Article 5.7 allows for the provisional adoption of 
sanitary measures in cases where relevant  scientific evidence is insufficient.358  Finally, we note that 
the Appellate Body in EC - Hormones  when addressing Article 5.5 also compared one situation (the 
treatment provided by the Europ ean Communities for five of the six hormones at issue) to another 
situation (the treatment provided by the Europ ean Communities to carbadox and olaquindox) even 
though the European Communities had not submitte d a risk assessment for the latter situation.359  
8.127 Assessing now the sanitary regimes imposed for the products compared, we recall, first, that 
for the salmon products further examined (the first situation in all four comparisons we outlined in 
paragraph 8.113), Australia currently imposes an import prohibition.360  Considering this sanitary 
measure, we assume that the level of protection de termined to be appropriate by Australia for these 
                                                      
355 Wooldridge, Transcript, para. 278. 
356 Ibid., para. 291. 
357 Paras. 8.40 ff. 
358 Article 5.7 provides: "In cases where relevant sc ientific evidence is insufficient, a Member may 
provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that 
from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members.  In such circumstances, Members shall seek to  obtain the additional information necessary for a more 
objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period 
of time".  
359 Op. cit., para. 218 and para. 226 ff.  It would, of course, be easier and provide a more accurate 
comparison if for both the situations compared a full risk assessment is available (see Transcript, paras. 271 ff.).  
However, in our view, the absence of a full risk assessment for either situation does not, in particular for straightforward comparisons, prevent scientists, and on that basis panels, to state in more general terms what is most likely to represent a higher level of risk (see, e.g., Wint on, Transcript, paras. 280-283 and the quotes in paras. 8.136 
ff.).  
360 Paras. 8.19 and 8.95. WT/DS18/R 
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salmon products is very high.361  We next examine the sanitary regime for the other products 
compared to these salmon products. 
8.128 In the first comparison362, the salmon products further examined are compared to uncooked 
Pacific herring, cod, haddock, Japanese eel and plaice for human consumption.  The second 
comparison363, assesses these salmon products as opposed to  uncooked Pacific herring, Atlantic and 
Pacific cod, haddock and European eel for human cons umption.  In the third and fourth comparison, 
respectively, the import of herring in whole, frozen form for use as bait and the import of live ornamental finfish is addressed.
364  Answering Panel Question 4, Australia states that the sanitary 
measures currently applied to the importation of the aquatic animals and relate d products other than 
salmonids addressed in these four comparisons are listed in the 1996 Final Report: 
"Import requirements for aquatic animals and their products other than salmonids: 
All goods entering Australia are subject to quarantine.  They may be inspected on 
arrival and may be sampled and tested at the importer's expense regardless of whether 
or not prior permission to import is required and granted. 
The specific policies applying to the importation of aquatic animals (other than 
salmonids), their products and rela ted materials, are as follows: 
- Live, freshwater, ornamental fish may be imported with prior written 
approval.  Approval is restricted to fish on Schedule 6 of the Wildlife 
Protection (Regulation of Exports and Imports) Act 1982 and there are pre-
entry and post-entry requirements including a minimum period of 14 days in 
post-arrival quarantine premises. 
- Live, marine, ornamental fish may be imported subject to examination on 
arrival for species identification, clinical health and presence of other materials of quarantine concern.  Approva l is restricted to fish on Schedule 6 
of the Wildlife Protection (Regulation of Exports and Imports) Act 1982.  
- Animals imported for scientific or disp lay purposes must be held in premises 
approved for the purpose under the Quarantine Act 1908 .  Permission must 
also be obtained from DEST, under the Wildlife Protection (Regulation of 
Exports and Imports) Act 1982  for the importation of fish species other than 
those on Schedule 6 of that Act. 
 ... 
- Other live aquatic animals may be imported subject to risk assessment and 
approval on a case by case basis.  Permission must also be obtained from DEST under the Wildlife Protection (Regulatio n of Exports and Imports) Act 
1982.  
- Meals derived from aquatic animals, for example fish and prawn meal, 
require prior written permission for importation subject to suitable processing of the product and inspection on arrival. 
... - Other non-viable aquatic animal products, for example mussels, are allowed 
entry subject to inspection and confirmation of non-viability and freedom 
from visible contamination. 
                                                      
361 Paras. 8.123 and 8.124. 
362 Para. 8.113 and Annex 1 to our report. 
363 Ibid. 
364 Ibid.    WT/DS18/R 
   Page 181  
 
- Clothes, footwear and used fishing gear that have had contact with fish or 
fish farms overseas are subject to inspection on arrival and treatment if required".
365  
In its answer to Panel Question 4, Australia adds that its quarantine measures for aquatic animals are 
under active review and that it expects that chang es to import policies may occur when current and 
proposed studies have been completed.  Australia further submits that other SPS measures related to 
internal quarantine restrictions, human health a nd residue matters and SPS measures related to non-
fish vertebrates were not canvassed in its answer to our  question.  It also notes that ornamental fish are 
the main type of live aquatic animals imported.  Appr oval of imports of ornamental fish is restricted 
to fish on Schedule 6 of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 .  They 
are inspected on arrival to ensure th at they are healthy, to confirm the identification of the species and 
to ensure that there are no other materials or i ssues of quarantine concern present.  Freshwater 
ornamental fish have a compulsory quarantine dete ntion period of either 14 or 28 days in approved 
quarantine premises.  However, with respect to  the uncooked non-salmonid products compared under 
the first two comparisons outlined above and fish used  as bait, at issue in the third comparison, neither 
the 1996 Final Report nor Australia in its submis sions before us, mention any specific sanitary 
measures. 
8.129 On the basis of the information thus provided,  we note that in any event the aquatic animals 
and products compared to the salmon products furt her examined under any of the four comparisons, 
are allowed for importation into Australia.  On the other hand, the salmon products further examined 
cannot be imported.  We further recall that in the circumstances of this dispute and for the purposes of 
our examination under the first element of Article 5.5, we would assume that a difference in the 
sanitary measures imposed for the different situat ions compared, does reflect a distinction in 
appropriate levels of protection.366  We thus assume in this case that the rather substantial difference 
in sanitary measures imposed by Australia for the salmon products further examined (an import 
prohibition) as opposed to those imposed for the othe r four situations (where imports are allowed, 
often without control; ornamental finfish only after control), does reflect a difference in the levels of 
protection considered to be appropriate by Australia  for each of the four comparisons in the sense of 
the first element of Article 5.5. 
   (ii) "Arbitrary or unjustifiable" differences in levels of protection  
8.130 For Canada, no possible justification can be o ffered for the distinctions in the foregoing levels 
of protection.  Canada argues that expert review s commissioned by Australia, in particular the 1995 
                                                      
365 1996 Final Report, pp.5-6, italics in original. 
366 Paras. 8.123 and 8.124. WT/DS18/R 
Page 182  
 
Humphrey Report367, the 1995 BRS Report368 and Technical Paper No. 3 (1992)369 confirm that these 
distinctions are arbitrary and unjustifiable. 
8.131 With respect to the distinctions made be tween the salmon products further examined, on the 
one hand, and whole, frozen herring for use as bait (t hird comparison) and live ornamental finfish 
(fourth comparison), on the other hand, Canada adds that the likelihood of disease establishment 
arising from the latter imports will be greater th an that arising from uncooked salmonids for human 
consumption.  This because, according to Canada , the sequence of events required for disease 
establishment to occur through bait fish or ornamental finfish is greatly compressed.  As far as bait 
fish is concerned, Canada argues that it will unde rgo much less rigorous inspection than fish for 
human consumption; that bait fish is not cooked su bsequent to entry into Australia as most salmon 
products for human consumption would be; and that  - unlike salmon products for human consumption 
which would only be found in the aquatic environment as a result of unlikely chance events - bait fish 
are imported for the specific purpose of being introdu ced into the aquatic environment.  With respect 
to ornamental finfish, Canada submits that sev eral critical risk-reduction steps, including product 
preparation (evisceration etc.), internal inspection and physical/chemical treatment such as freezing 
and cooking are absent.  For Canada, the greater risk posed by live ornamental finfish is also confirmed by empirical evidence:  unlike dead, eviscerated product, for which there are no 
documented cases of disease transmission anywhere in the world, live ornamental finfish imports are 
known to have introduced exotic diseases, including into Australia.
370  
8.132 Australia contends that the reports cited by Canada are only draf t documents or reports 
written by independent consultants, used fo r public discussion purposes, which do not represent 
Australian government policy.  For Australia, these re ports are part of a review process of existing 
quarantine policies with the objective to determine appropriate and consistent  quarantine measures for 
aquatic animals and their products.  They are part  of the practices and processes of government in 
Australia and were undertaken at a stage of policy formulation.  Australia further submits that the 
quotations referred to by Canada ha ve been taken out of context.  With respect to the 1995 Humphrey 
Report, Australia argues that it went on to say that given Australia's disease status, restrictions on the 
importation of salmonids are reas onable and that a risk assessme nt process may be required.  
According to Australia, it did not say that the measures on salmon are unwarranted: it saw salmonids as a higher risk species, recommended minimum restrictions and stated that all fish should be the 
                                                      
367 Humphrey, J.D., Australian Quarantine Policies and Practices for Aquatic Animals and their Products: a 
review for the Scientific Working Party on Aquatic Animal Quarantine, Bureau of Resource Sciences, 1995, Canadian Ex. A-22: "Major inconsistencies exist under existing quarantine regulations, whereby all fish are permitted entry, except for fresh or frozen salmon" (at p.88); "All non-living finfish animals or products derived therefrom destined for 
human consumption should be considered for importation.  The arbitrary distinction between salmonid and non-salmonid fish should be repudiated" (at pp.119-120). 
368 Nunn, M.J., Aquatic Animal Quarantine in Australia: Report of the Scientific Working Party on Animal 
Quarantine, Bureau of Resource Scienc es (BRS), 1995, Canadian Ex. A-21, p.34: "... there is currently a major 
inconsistency whereby fresh or frozen products derived from finfish other than salmonids may be imported without specific quarantine restrictions, whereas salmonid flesh is pr ohibited unless treated in a manner to inactivate potential 
pathogens"; "in view of the absence of documented examples of exotic disease incursions resulting from imports of 
products of aquatic animals for human consumption, and the international acceptance of evisceration as a means of 
substantially reducing the risk of disease transfer in finf ish for human consumption, the present restrictions on the 
importation of salmonid flesh for human consumption cannot be justified and should be revised"; "all non-living finfish or products derived therefrom destined for human consumption should be considered for importation" and "the arbitrary distinction between salmonid and non-salmonid fish should be repudiated". 
369 Quarantine, Health and Movement, Technical Paper No. 3, in Draft National Strategy on Aquaculture: 
Technical Papers for Discussion, Australian and New Z ealand Fisheries and Aquaculture Council, December 1992, 
Canadian Ex. A-19, p.2: "The arbitrary separation of aquaculture/recreational species from others (especially 
ornamental species) has little, if any, scientific basis ...". 
370 Canada refers to the 1995 Humphrey Report, p.88 a nd a study by Langdon, J.S., of the Fish Health 
Reference Laboratory, entitled:  "Diseases of Introduced Au stralian Fish in Fish diseases: refreshers course for 
veterinarians", May 23-27, 1988, Ca nadian Ex. B-32, p.225 at p.231.    WT/DS18/R 
   Page 183  
 
subject of a case-by-case study.371  Australia submits that such case-by-case process has commenced.  
With respect to the 1995 BRS Report, Australia cont ends that it made the same recommendations as 
the 1995 Humphrey Report:  the quarantine restrictions , in excess of eviscerati on, are justified, but 
quarantine restrictions on both salmonids and non-sa lmonid aquatic animals s hould be reviewed and 
brought into consistency.372  
8.133 In examining the second element under Article 5.5, we recall, first of all, that each of the four 
comparisons have at least one disease agent in common - or at least, for the salmon products further examined, an alleged concern for that disease ag ent - and that, therefore, for each of these 
comparisons the two situations compared can be assumed to represent the same or a similar disease 
risk as well as the same or similar associated bi ological and economic consequences.  However, we 
further recall that Australia effectively bans the import of the salmon products further examined, but 
allows the import of the other four categories of fish or fish products.  It might, therefore, be expected 
that some justification for this distinction in san itary measures and corresponding levels of protection 
exists, such as a higher  risk related to imports of the salmon products further examined.  If not, these 
distinctions could be cons idered to be "arbitrary or unjustifiabl e" in the sense of the second element of 
Article 5.5. 
8.134 Since we have more evidence before us which relates to the third and fourth comparison, we 
start our examination with these two comparisons.  That is:  a ban on the salmon products further 
examined compared to, respectively, allowing imports of herring in whole, frozen form for use as bait 
and allowing imports of live ornamental finfish.  We note, however, that the arguments, reports, 
studies and expert opinions submitted to  us in this respect - rather than pointing in the direction of a 
higher  risk related to the salmon products further exam ined, in order to justify the stricter sanitary 
measures imposed for these products - all provide evidence that the two categories of non-salmonids, 
for which more lenient sanitary measures apply, can be presumed to represent at least as high a risk  - if not a higher risk - than the risk associated  with the salmon products further examined.   
8.135  We recall that the experts advising the Panel stated that the biological and economic 
consequences of a disease introduction (i.e., th e consequences of a disease once established in a 
country) will generally be the same or simila r in a given country, irrespective of the product 
introducing the disease.
373  With respect to the products we decided to compare under Article 5.5, no 
evidence to the contrary is before us.  In particular, nothing in the 1996 Final Report (especially its 
Section 3 which addresses the ec onomic and other impacts of salmonid disease introduction into 
Australia) represents evidence to the contrary.  We shall thus assume that the consequences of disease 
introduction in Australia are the same or similar irrespective of whether th e disease is introduced by 
imports of the salmon products further examined or by imports of herring used as bait or live ornamental finfish.  
8.136 First, we note the following excerpts from re levant reports and studies submitted to us which 
address the relative risk related to salmon products (including, or for some studies even specifically 
addressing, the salmon products further examined) as oppo sed to bait fish or live ornamental fish.  We 
note that these reports do not form part of Australia 's formal risk assessment nor represent Australia's 
official government policy.  However, to the exte nt they constitute relevant available scientific 
information which was submitted to the Panel, we c onsider it our task to take this evidence into 
account.  We consider that, for purposes of our exam ination, the scientific and technical content of 
these reports and studies is relevant, not their admini strative status (i.e., whether they are official 
government reports or not).
374  As to Australia's comment made at  the interim review stage that we 
                                                      
371 Australia refers to the 1995 Humphrey Report, pp.89 and 120. 
372 Australia refers to the 1995 BRS Report, p.35. 
373 Para. 8.121. 
374 Para. 7.5. WT/DS18/R 
Page 184  
 
seem to accord a lesser evidentiary status to the 19 96 Final Report, we recall that this report does not 
address the relative risk related to the diff erent products we compare under Article 5.5. 
 Technical Paper No. 3 (1992):   
"The existing range of controls encomp asses the whole spectrum of possibilities from 
a complete ban on live fish and raw products from salmonids, to virtually no restrictions on the basis of health for mari ne aquarium fish.  The arbitrary separation 
of aquaculture/recreational species from others (especially ornamental species) has 
little, if any, scientific basis and has led to the present anomalous situation cited 
above.  
... 
Non-salmonid freshwater finfish  - ... These requirements [imposed by Australia on 
this category of fish, see para. 128  above] are patently inadequate to exclude many serious diseases, especially those which may remain latent or become pathogenic when transferred to another species ...  Undoubtedly, the conditions for the 
importation of freshwater aquarium fish  are in urgent need of upgrading".
375  
(underlining added) 
1995 BRS Report:   
"The Working Party noted the consultant's  conclusion (Section 9.1.2) on the disease 
risk of different imports.  It agreed that live aquatic animals pose the highest risk of 
introducing exotic disease.  It noted in particular that live ornamental finfish are a 
special case because they are known or potential vectors of diseases of high 
quarantine importance, are traded widely internationally, and are imported in large 
numbers into Australia each year  
... The Working Party noted the consultant's conclusion (Section 9.1.2.3) that the use of 
live finfish for bait or for food for carni vorous finfish constitutes a major risk of 
disease transmission, and of introducing exotic disease if the bait fish or feed fish is 
imported. 
... The Working Party noted the consultant's conclusions (Section 9.1.2.5) on 
inconsistencies in current policy on the im portation of non-living aquatic animals for 
human consumption.  It acknowledged that processing can significantly reduce the risk of entry of exotic pathogens in such products.  It also acknowledged that detailed 
epidemiological information may be needed from the exporting authority to assess the risk of importing such products".
376  (underlining added)  
"The Working Party agreed with the consu ltant's conclusions (Section 9.2.3.2) on the 
potential of ornamental finfish to be vect ors of diseases ...  The Working Party agreed 
with the consultant's conclusion (Section 9.2.3.3) that there are two broad risk 
categories with regard to ornamental finf ish imports [a higher risk category and a 
lower risk category] ...  The Working Party noted that goldfish Carassius auratus , 
guppies Poecilia reticulata  and gouramis Trichogaster trichopterus  present special 
                                                      
375 Technical Paper No. 3 (1992), pp.2-3. 
376 1995 BRS Report, pp.4-5.  See also the 1995 Humphrey Report, pp.87-91.    WT/DS18/R 
   Page 185  
 
cases for immediate inclusion in the higher risk category of liv ing finfish imports 
because: 
- they are recognised vectors of exotic diseases of high quarantine importance; 
- they are farmed, or likely to be farmed in open systems or management, with 
direct access to natural waters; and 
- large numbers are currently imported into Australia. 
The Working Party noted with concern the consultant's conclusion that there is a 
major inconsistency whereby certain hi gher risk species nominally imported for 
ornamental purposes are subject to minimal quarantine, but other species of equal or 
lesser risk require much higher standards of quarantine".377  (underlining added) 
"The Working Party noted that finfish and aquatic invertebrates are imported for bait 
and fish feed, and that the volume of such imports is increasing.  The Working Party noted that some major diseases of aquatic an imals have spread internationally through 
the practice of importing bait fish.  From first principles, it agreed with the 
consultant's conclusion (Section 9.8.1) that  this activity constitutes a high risk of 
introducing exotic pathogens".378  (underlining added) 
1995 Draft Report:   
[addressing salmon "disposed of as fish bait or burley" as a risk factor]  "This practice 
[disposal of salmon as fish bait or burley] is thought to present the greatest risk of 
disease introduction ... Fish remains, used as  bait, would present as much risk as 
burley containing uncooked fish product.  So me of the bait would be taken by caught 
fish but some may be lost in the water or eaten by fish that are not landed".379  
(underlining added) 
[providing "product conclusions"]  "It has been concluded that the more processing 
the product receives the lower risk that the product presents.  In general, value added 
products present less risk because processing removes tissues that are more likely to 
harbour pathogens and to be discarded prior to cooking".380  (underlining added) 
We note, moreover, that, according to statistics provi ded by Canada (and not contested by Australia), 
during the period between 1988 and 1995 57,663,000 fr eshwater live ornamental fish and 1,193,000 
salt water live ornamental fish have been imported into Australia.381  With respect to imports of bait, a 
Report of the National Task Force on Imported Fish a nd Fish Products stated the following:  "[b]ait 
users, both commercial and recreational, import fi sh and fish products.  According to the import 
survey, commercial bait users are extremely dependent upon the import of bait .  This dependence 
varies between different industries".382  (emphasis added) 
8.137 The evidence ou tlined above points in the direction of a higher  risk of disease introduction 
associated with imports of bait fish and live ornamental fish than the risk posed by imports of salmon 
products for human consumption.  Nevertheless, Au stralia imposes far stricter sanitary measures for 
the latter category than it does for the former.  Wh ether or not this evidence is part of official 
Australian government policy does not, in our mind, cha nge the scientific weight to be given to it.  
                                                      
377 Ibid., pp.17-19.  See also the 1995 Humphrey Report, pp.101 ff. 
378 Ibid., p.40.  See also the 1995 Humphrey Report, p.123. 
379 1995 Draft Report, p.33. 
380 Ibid., p.214. 
381 Annex A-H to Canada's first submission. 
382 Report of The National Task Force on Imported Fish and Fish Products, A report into the implications 
arising from aquatic animal imports, DPIE, Dece mber 1996, p.23, see also at pp.24-26 and 30. WT/DS18/R 
Page 186  
 
We consider, therefore, that Canada, as party ch allenging the measure at issue under Article 5.5, has 
raised a presumption (i.e., made a prima facie  case) that the distinctions in levels of protection 
imposed by Australia for, on the one hand, the salm on products further examined and, on the other 
hand, herring in whole, frozen form for use as bait and live ornamental finfish, are "arbitrary or 
unjustifiable" in the sense of the second element in Article 5.5. 
8.138 Second, we note the following opinions of  experts advising the Panel which confirm this 
prima facie  case of "arbitrary or unjus tifiable" distinctions:383  
Burmaster: 
[answering Panel Question 10 and commenting on Canada's claim that "the likelihood 
of disease establishment is higher for imports  of whole, uneviscerated bait fish and 
for live fish known to host that disease agent than it is for imports of uncooked 
salmon for human consumption"]  "This see ms highly likely to me, but I have no 
independent information to support or refute such an opinion".384  (underlining added) 
Rodgers: 
[answering Panel Question 9]  "The importa tion of several other groups [the Panel 
Question refers to "imports of aquatic anim als or aquatic animal products, other than 
salmonids"] would pose a potential risk of disease introduction that would probably 
be at least as high, if not higher, than  that posed by the importation of uncooked 
salmon from Canada.  These groups would include any live ornamental fish, bait fish 
and trash fish for feeding aquacultured species.   It is not possible to predict though, 
without an import risk analysis study, which of these represents the highest risk.  However, importation of live fish for st ocking of open waters containing indigenous 
fish, the feeding of trash fish or bait fish  directly to aquacultured species as a feed 
supplement or substitute woul d probably be the most important in terms of risk.  
Escapees from a closed system into an open waterway could also be a problem.  The 
arrival of furunculosis into Australia via imported goldfish or into Norway via salmon 
smolts and the first reported outbreaks of VHS in turbot from Scotland and Ireland help to support the hypotheses of live fish  importations and feeding respectively".
385  
(underlining added) 
[answering Panel Question 10]  "It is proba bly true to say that for a given disease 
agent, the likelihood of disease establishment is higher for imports of whole, non-
eviscerated bait fish and for live fish than it is for imports of uncooked salmon for 
human consumption".386  (underlining added)    
Winton: 
"... the subsets of pathogens in these di fferent species [salmon products for human 
consumption, bait fish and live ornamental fi sh] will be different.  Ornamental fish 
will have their own subset of pathogens.  But in a general sense, live fish that are 
                                                      
383 We only refer to three of the four experts advising the Panel since only three of them have expressed an 
opinion on this issue. 
384 Burmaster answers, p.5.  See also Burmaster, Transcript, para. 279. 
385 Rodgers answers, p.13. 
386 Rodgers answers, p.14.  Rodgers then goes on to address what he calls the "actual level of risk", looking 
at risk reduction factors which might be present (e.g., import of live fish for scientific purposes only) or be taken (e.g., control measures) with respect to live fish or bait.  Howeve r, these factors do not affect the risk comparison made here 
since Australia has no risk reduction factors in place for bait fish nor any stringent control measures for live ornamental finfish, see para. 8.128.    WT/DS18/R 
   Page 187  
 
introduced carry probably, in my view, the highest risk of any category.  We have 
documented examples of ornamental fish carrying both Notifiable Diseases of the 
OIE and non-notifiable other fish diseases in in ternational trade.  Second level, might 
well be those fish used as bait.  Again Dr . Rodgers' point is good, we may not have 
ever sampled them adequately to know, but  in an example from the North American 
coast, for example, number of years ago, everyone assumed that herring were sent around as safe products up and down the coast and used as bait.  We now know that Pacific herring, and in fact Atlantic herring in the Baltic and North Sea are probably 
the major reservoir for viral haemorrhagic septicaemia  virus, and probably constitute 
a much higher risk than a certified population dead salmonids or eviscerated 
salmonids.  So I would put them in the sec ond most risky category.  The most safe of 
the three groups would be uncertified un controlled open-ocean salmonids such as I 
have talked about here".387  (underlining added) 
[answering Panel Question 24] "Members of the FDC [Fish Diseases Commission] 
have reviewed the scientific  evidence and are not aware of a known expansion of 
range for a fish pathogen due to the moveme nt of eviscerated fish; conversely, there 
are many cases of disease transmission associat ed with shipment of infected live fish, 
live eggs, or even uneviscerated fish used  to feed other aquatic animals that are 
documented in the scientific literature".388  (underlining added) 
[remarks on Panel Question 12] "The FDC cons iders that the risk of transmission of 
fish diseases by movement of eviscerated fish  products is probably lower than the risk 
from certain other activities (movement of aquarium fish, ballast water in ships, etc.) 
and thus does not justify trade restrictions".389  (underlining added) 
8.139 We note, moreover, that Australia has not  submitted any evidence which contradicts the 
above-mentioned reports a nd opinions referred to by Canada which constitute evidence that the 
salmon products further ex amined effectively pose less risk than whole, frozen herring used as bait or 
live ornamental finfish.  Nor has Australia, in its turn, put forward positive  evidence of a possible 
justification for the distinctions in levels of protection it currently imposes.390  On the contrary, at our 
meeting with the experts advising the Panel Austra lia seemed to agree that in general terms (and 
without prejudice to Australia's position that risk ass essments must be undertaken before risks can be 
compared) live fish can be expected to pose the hi ghest risk, thereafter bait fish and only after that 
salmon products for human consumption.391  
                                                      
387 Transcript, para. 267.  See also Winton, Transcript, para. 179:   "there is such a large body of scientific 
evidence associating movements of live fish and eggs with diseases, and the absence  of scientific data associating any 
other products for human consumption that the preponderance of data seem to be that the risk is quite low".  At the experts meeting, Winton provided further explanation as to why bait fish and live fish ornamental fish pose higher risks:  "One, the fish that go directly in the water course bypass some of the exposure methods that might be imagined, some of which are not so likely that would accompany human consumption products, and, secondly, because some of these fish are known to be carriers of diseases and if they are particularly uncertified or unexamined, could be carrying 
that disease at a level as high or higher than that of an eviscerated product" (Winton, Transcript, para. 281).  See also 
Winton, Transcript, paras. 42 and 203. 
388 Winton answers, p.3. 
389 Winton answers, p.5. 
390 When asked to justify this difference in treatment, Australia limited its answer to a statement that risk 
analyses are scheduled or taking place for bait fish and live  ornamental fish (Australia's answer to additional Panel 
Question 9 of 23 January 1998). 
391 At the meeting with experts advising the Panel Australia noted the following:  "As a sweeping 
generalization, everyone agrees with these kind of three levels of risk. What Australia is saying is that you have got to do more than that.  You have got to do more than sweeping generalizations if you are looking at product which may have a different intended purpose. So therefore, Australia cont ends that whether ornamental fish, or whether bait fish 
we need to do a risk assessment ... So in short, we agree wi th generalizations, but the specifics are really what we are WT/DS18/R 
Page 188  
 
8.140 As to Australia's argument that imports of  salmon products pose higher risks than imports of 
bait fish or live ornamental finfish because salm on products may carry a series of other, additional 
diseases appearing on the list of 24 diseases of conc ern, we recall that the salmon products further 
examined are only those in dispute ( inter alia , only Canadian salmon) from adult, wild, ocean-caught 
Pacific salmon.  According to Canada392, the disease agents known to occur393 in this category of 
Canadian salmon are limited to four:  Renibacterium salmoninarum , IHNV, salmon leukaemia virus 
and Henneguya salminicola .  Australia has not contested this.  The expert advising the Panel on this 
issue stated that also the follo wing two disease agents are reported to  occur in adult, wild, ocean-
caught Pacific salmon:  Kudoa thyrsites  and Parvicapsula sp .394  However, only one of these two 
additional diseases ( Parvicapsula sp .) appears on Australia's list of 24 diseases of concern to it.  In 
total only five of the 24 diseases of concern to Au stralia have thus been detected in the salmon 
products further examined.395  Moreover, none of the four disease agents referred to by Canada under 
the third comparison and known to occur  in herring for use as bait ( Aeromonas salmonicida (atypical 
strain), Erythrocytic necrosis virus, Infectious haematopoietic necrosis virus and VHSV), are - on the 
basis of the evidence before us - reported to occur in the salmon products further examined.396  The 
same is true for the five  disease agents addressed under the fourth comparison ( Aeromonas 
salmonicida (atypical strain), Yersinia ruckeri , Edwardsiella tarda , IPNV and Vibrio anguillarum ): 
all of them are known to occur  in live ornamental finfish, but none of them has been reported in the 
salmon products further examined.397  Since, moreover, both herring used as bait and live ornamental 
finfish are known to be host to one of the di sease agents of greatest concern to Australia ( Aeromonas 
                                                                                                                                                                     
dealing with" (Transcript, para. 285).  See also Australia's st atement in Transcript, para. 181  ("On relative terms, as 
Dr. Winton said, well, gametes and all the rest pose greater risk, but nevertheless, it can happen"). 
392 According to Rodgers, one of the experts advising the Panel, one should, indeed, give particular 
importance to Canada's views on disease prevalence.  At our meeting with experts advising the Panel, Rodgers noted that "the most accurate up to date information concerning disease prevalence in an exporting country is usually held by that exporting country themselves, providing that country is of course recognised as a competent authority.  In this case of course, Canada is a well respected, has a well respected monitoring system in place for this type of situation" 
(Transcript, para. 19). 
393 We focus on those diseases "known to occur" (i.e., for which there is evidence that they may occur in the 
specific product), not those more generally "of concern" to Au stralia.  In this respect Wooldridge, when addressing  
the question of which diseases are appropriate to include in  a risk assessment, stated the following:  "those diseases 
which one may legitimately look at are any that one has evidence could be in the product , and that might not simply 
be the information notified to the OIE, but it might be  from a literature research or personal reports of 
communications" (Transcript, para. 107, emphasis added).  See also Rodgers, Transcript, para. 193 ("I think most 
monitoring programmes and most national legislation is based on the understanding that to take action you must actually isolate the organism itself").  However, we agree wi th Australia in the sense that the fact that we focus on 
those diseases which have been detected in the salmon products further examined, does not mean that there is absolute 
certainty that other diseases do not occur in these products  (see Transcript, paras. 244-253 and 327).  See also footnote 
1 to Annex 1 of our report. 
394 Rodgers' answer to Panel Question 7, Rodgers answer s, p.8.  At the meeting with experts advising the 
Panel, Rodgers limited his answer from four to only three additional diseases, confirming that the fourth one has only been detected in juveniles, not adult fish (Transcript, para . 230).  In our report we only mention two of the three since 
at the interim review stage, Australia pointed out that the third additional disease referred to by Rodgers, namely 
"marine anaemia", is also known as "salmon leukaemia virus", a disease which is listed in the 1996 Final Report and which is one of the four diseases of which Canada acknowledges that it occurs in salmon products further examined.  This disease is therefore not an "additional disease". 
395 In this respect it is interesting to note that according to Winton and Rodgers, wild ocean-caught Pacific 
salmon during their ocean phase would probably, in a general sense, represent less of a disease risk than fresh water fish or cultured fish in an uncontrolled water supply (Transcript, paras. 261-263).  
396 This is reflected in the chart attached in Annex 1.  We note, in particular, Winton's reply to the question 
whether bait fish represent higher risk than the salmon products further examined:  "I could make that statement with a high level of certainty for Pacific herring in North America.  As bait fish those fish contain a significantly and quantifiably higher incidence and prevalence of infecti on than do Pacific salmon" (Transcript, para. 283).   
397 See chart in Annex 1.    WT/DS18/R 
   Page 189  
 
salmonicida )398, a disease which has not been reported in the salmon products further examined, we 
consider that - on the basis of the evidence before us  - Australia has not been able to substantiate its 
argument that the salmon products further examined represent a higher risk than herring used as bait 
or live ornamental finfish.   
8.141 We thus consider that Australia has not been able to rebut the prima facie  case of "arbitrary or 
unjustifiable" distinctions established by Canada.  We find, therefore, that, as of today and on the 
basis of the evidence provided to us, the distinctions in levels of  sanitary protection reflected in 
Australia's treatment of, on the one hand, the sal mon products further examined and, on the other 
hand, herring in whole, frozen form for use as bait and live ornamental finfish, are "arbitrary or 
unjustifiable" in the sense of the second element of Article 5.5.  
8.142 In paragraph 8.126 we have dealt with Au stralia's argument that risk assessments must be 
undertaken for all situations examined under Article 5.5 before the risk arising from these situations 
can be compared.  Moreover, our finding that the fo regoing distinctions in le vels of protection are 
"arbitrary or unjustifiable" does not imply any judgm ent as to whether the current Australian measures 
imposed on the salmon products further examined - or the appropriate level of sanitary protection 
these measures reflect - are warranted.   Our finding only relates to the distinctions  made by Australia 
in the levels of protection it applies to different s ituations.  It does not give any value judgment on any 
of these levels of protection taken separately. 
8.143 Since we already found that the third a nd fourth comparison put forward by Canada under 
Article 5.5 involve distinctions in  levels of protection which are "a rbitrary or unjustifiable", we see no 
need to further examine the justifia bility of the distinctions made by Australia in the first and second 
comparison.  We shall not, therefore, make furthe r findings with respect to these comparisons.  
   ( iii) Distinctions in levels of protection which result in 
"discrimination or a disguised restriction on international 
trade"  
8.144 Canada submits that Australia's arbitrary and un justifiable distinctions in its appropriate levels 
of protection result in a disguised restriction on in ternational trade.  In its interpretation of "a 
disguised restriction on international trade" in the sense of the third element of Article 5.5, Canada 
referred, prior to the Appellate Body Report on EC - Hormones , to the following statement of the 
Appellate Body in its Report on US - Standards for Reformulated and Conventional Gasoline     
("US  Gasoline "): 
"... "disguised restriction", whatever else it covers, may properly be read as 
embracing restrictions amounting to arbitr ary or unjustifiable discrimination in 
international trade taken under the guise of a measure formally within the terms of an 
exception listed in Article XX.  Put in a somewhat different manner, the kinds of 
considerations pertinent in deciding whethe r the application of a particular measure 
amounts to "arbitrary or unjustifiable discrim ination", may also be taken into account 
in determining the presence of a 'disguised r estriction' on international trade.  The 
                                                      
398 1995 Draft Report, p.i:  "The IR A considers 24 diseases and judges Aeromonas salmonicida to pose the 
greatest risk of introduction" and 1996 Final Report, p.38:  " A. salmonicida has a wide range of hosts and would 
present one of the most serious threats to Australian fish".   The quotes do not distinguish typical from atypical strains 
of Aeromonas salmonicida .  However, at the interim review stage, Australia submitted that only the typical strain of 
Aeromonas salmonicida  (not the atypical strains, which have been detected in herring for (continued) use as bait and 
live ornamental finfish) is of the greatest concern to it and that the we confused the two different strains in our interim report.  In reply, Canada stated that any so-called "c onfusion" is created by Australia's own 1996 Final Report and 
referred to the following statement at pp.140-141:  "Atypical is olates are of larger concern and cause heavier losses 
than typical ones in some salmon-culturing areas, for example Atlantic Canada.  Similar scenarios must be expected if a virulent-typical or atypical-strain were established into Australian waters". WT/DS18/R 
Page 190  
 
fundamental theme is to be found in the purpose and object of avoiding abuse or 
illegitimate use of the exceptions to subs tantive rules available in Article XX".399  
For Canada, this reasoning of the Appellate Body  with respect to Article XX of GATT 1994 was 
equally applicable to Article 5.5 a nd the relationship between arbitrary or unjustifiable distinctions in 
levels of protection and the resulting disguised rest rictions on international trade.  Canada submitted 
that the distinctions made by Australia in its levels of protection for the salmon products further 
examined and for, inter alia , whole, frozen herring for use as ba it and live ornamental finfish were 
arbitrary and unjustifiable and resulted in an impor t ban on these salmon products, i.e., a restriction on 
international trade in the guise of a sanitary measure. 
8.145 Prior to the Appellate Body Report on EC - Hormones , Australia submitted that it did not 
disagree with Canada's legal interpretation of "a di sguised restriction on international trade" contained 
in Article 5.5.  Later, Australia argues that the dir ect application of Appellate Body findings in regard 
to interpretations of Article XX of GATT 1994 to Ar ticle 5.5 has been rejected by the Appellate Body 
in EC - Hormones .  Australia further argues that Canada's  assertion of a "disguised restriction on 
international trade" does not contain any evidence th at the measure at issue results in a disguised 
restriction on international trade.   
8.146 With respect to the interpretation of the thir d element under Article 5.5, i.e., the need for the 
distinction in levels of protection to result in "di scrimination or a disguised restriction on international 
trade", we recall the Appellate Body's findings in EC - Hormones : 
"214. ... The last element requires that th e arbitrary or unjustifiable differences 
result in discrimination or a disguised restriction of international trade. We understand the last element to be referring to the measure embodying or 
implementing a particular level of protec tion as resulting, in its application, in 
discrimination or a disguised restriction on international trade. 
215. We consider the above three elements  of Article 5.5 to be cumulative in 
nature;  all of them must be demonstrated to  be present if violation of Article 5.5 is to 
be found.  In particular, both the second and third elements must be found.  The second element alone would not suffice.  The third element must also be demonstrably present:  the implementing meas ure must be shown to be applied in 
such a manner as to result in discrimination or  a disguised restriction on international 
trade.  The presence of the second element - th e arbitrary or unjustifiable character of 
differences in levels of protection  considered by a Member as appropriate in differing 
situations - may in practical effect operate as a "warning" signal that the 
implementing measure  in its application might be  a discriminatory measure or might 
be a restriction on international trade dis guised as an SPS measure for the protection 
of human life or health.  Nevertheless, th e measure itself needs to be examined and 
appraised and, in the context of the differi ng levels of protection, shown to result in 
discrimination or a disguised restriction on international trade".400  (italics in original, 
underlining added) 
With respect to the reference made by Canada in this case to the Appellate Body's findings in US - 
Gasoline , the Appellate Body in EC - Hormones  stated the following: 
"... in view of the structural diffe rences between the standards of the chapeau  of 
Article XX of the GATT 1994 and the elements of Article 5.5 of the SPS Agreement , 
                                                      
399 Appellate Body Report, adopted 29 April 1996, WT/DS2/AB/R, p.25. 
400 Op. cit., paras. 214-215.    WT/DS18/R 
   Page 191  
 
the reasoning in our Report in United States - Gasoline , quoted by Panel, cannot be 
casually imported into a case involving Article 5.5 of the SPS Agreement ".401  
Specifically addressing the question of whether the measure at issue in EC - Hormones "results in 
discrimination or a disguised restriction on inte rnational trade", the Appellate Body stated the 
following: 
"In our view, the degree of difference, or the extent of the discrepancy, in the levels of 
protection, is only one kind of factor which, along with others, may cumulatively lead to 
the conclusion that discrimination or a disguised  restriction on international trade in fact 
results from the application of a measure or measures embodying one or more of those 
different levels of protection.  ...  It is well to bear in mind that, after all, the difference in 
levels of protection that is characterizable as arbitrary or unjustifiable is only an element 
of (indirect) proof that a Member may actually  be applying an SPS measure in a manner 
that discriminates between Members or constitut es a disguised restriction on international 
trade, prohibited by the basic obligations set out in Article 2.3 of the SPS Agreement .  
Evidently, the answer to the question whethe r arbitrary or unjustifiable differences or 
distinctions in levels of protection estab lished by a Member do in fact result in 
discrimination or a disguised restriction on international trade must be sought in the circumstances of each individual case".
402  (underlining added) 
After examination of this i ssue, the Appellate Body in EC - Hormones  concluded as follows: 
"Our conclusion, therefore, is that th e Panel's finding that the "arbitrary or 
unjustifiable" difference in the EC levels of protection in respect of the hormones at issue on the one hand and in respect of carbadox and olaquindox on the other hand, 
"result in discrimination or a disguised r estriction on international trade", is not 
supported either by the architecture and struct ure of the EC Directives here at stake or 
of the subsequent Directive on carbadox and olaquindox, or by the evidence 
submitted by the United States and Canada to the Panel. ...".403  (underlining added) 
8.147 At our second substantive meeting, Canada added the following factors which it claims prove 
that the measure at issue, implementing the level of protection imposed by Australia for the salmon 
products further examined, results in a disguised r estriction on trade.  First, Canada refers to 
Australia's unwillingness to tolerate even a potential  presence of disease agents in salmonids 
(resulting in a ban on uncooked product) whereas it does accept imports of non-salmonids where the 
presence of the same agents has been confirmed .  Second, Canada asserts that there was an abrupt 
change in conclusions from the 1995 Draft Report, suggesting that imports of the salmon products 
further examined should be allowed, to the 1996 Fi nal Report, which advocates that the ban should be 
maintained.  Third, Canada argues that the 1996 Final Report excluded relevant information which 
was considered in the 1995 Draft Report.  Fourth, Canada highlights what it considers to be the 
absence of any scientific basis for the measure at issu e.  Fifth, Canada notes Australia's failure to 
specify the pathogens addressed by its measure.  Sixth, Canada argues that despite Australia's 
professed concerns for the health of its salmonid populations, Australia does not control the internal 
movement of fish (including salmon), hosts to the disease EHN.404  Seventh, Canada submits that the 
measure at issue is not being applie d to achieve an appropriate level of  protection, but that Australia is 
using "appropriate level of protection" as a shield for a trade-restrictive measure.    
8.148 Australia responds that Canada equates the second with the third element under Article 5.5, 
an interpretation rejected by the Appellate Body in EC - Hormones .  Australia submits that it has 
                                                      
401 Ibid., para. 239. 
402 Ibid., para. 240. 
403 Ibid., para. 246. 
404 "Epizootic Haematopoietic Necrosis", also referred to as EHNV, i.e., EHN Virus. WT/DS18/R 
Page 192  
 
undertaken a risk assessment on Pacific salmon and on that basis decided to maintain quarantine 
restrictions.  On a range of other aquatic animal  products, it is undertaking a structured program of 
risk assessments.  Australia furthe r argues that it is a significant importer of aquatic animal products, 
including smoked and canned salmon from Canada; that many of these imports compete directly 
against domestic products in the Australian market; and that Australia is also a significant producer 
and exporter of non-salmonid aquatic products.  For Au stralia, these are the pa rticular circumstances 
pertaining to Australia's quarantine measures on diff erent aquatic products.  According to Australia, 
most of the factors referred to by Canada are a ttempts to infer motives from Australia's decisions.  
Australia argues that inferences of motive or intent  are not borne out by the facts and do not constitute 
evidence of trade discrimination or a disguised restriction.  Recalling that the 1995 Draft Report did not recommend that fresh, chilled or frozen salmon should be imported free of quarantine conditions, 
Australia submits that the difference between  the 1995 Draft Report and the 1996 Final Report 
represents a small degree of difference between two highly conservative options.  As to the change in 
recommendations made by these two reports, Australia re fers to a reappraisal of scientific and other 
data in the context of Australia's appropriate level of protection. 
8.149 We recall, first, the arbitrary distinctions in levels of protection  imposed by Australia for 
comparable situations
405 (namely, for the salmon products furt her examined as opposed to that for 
herring used as bait and live ornamental finfish).  The evidence before us showed that imports of 
herring for use as bait and live ornamental finfish - rather than posing less risk and thus warranting 
less stringent sanitary measures - can be presumed to represent a higher  risk than that related to 
imports of the salmon pr oducts further examined.406  This evidence led us to find that the difference in 
levels of protection is "arbitrary or unjustifiable".407  In this respect, we note that the Appellate Body 
in EC - Hormones  stated the following:   
"the arbitrary or unjustifiable character of differences in levels of protection  
considered by a Member as a ppropriate in differing situations  - may in practical effect 
operate as a "warning" signal that the implementing measure  in its application might  
be a discriminatory measure or might  be a restriction on international trade disguised 
as an SPS measure for the protection of human life or health". (emphasis in 
original)408  
In this dispute, we do consider that the arbitrary char acter of the differences in levels of protection is a 
"warning signal" that the measure at issue results in "a disguised restriction on international trade".   
8.150 Second, we recall that the arbitrary differe nce in levels of protection thus imposed by 
Australia for comparable situations is a rather substantial difference , namely an import prohibition for 
the salmon products further examined as opposed to tolerance of imports of herring for use as bait 
without control and of live ornamental finfish after control.409  In this respect, we note the Appellate 
Body's statement in EC - Hormones  that  
"the degree of difference, or the extent of the discrepancy, in the levels of protection, 
is only one kind  of factor which, along with others, may cumulatively lead to the 
conclusion that discrimination or a disguised restriction on international trade in fact 
results from the application of a measure". (emphasis added)410  
                                                      
405 I.e., "different situations" in the sense of the first element of Article 5.5, see paras. 8.115 ff. 
406 Paras. 8.136 ff. 
407 Para. 8.141. 
408 Appellate Body Report, op. cit., para. 215. 
409 Para. 8.129. 
410 Appellate Body Report, op. cit., para. 240.    WT/DS18/R 
   Page 193  
 
In this dispute, we do consider that the rather substa ntial difference in levels of protection is one of the 
factors we should take into account in deciding whet her the measure at issue results in "a disguised 
restriction on international trade", as argued by Canada.   
8.151 We consider that an additional "warning signa l" is present in this dispute which is similar in 
nature to the two outlined above in the sense that it is not conclusive in its own right.  We recall our 
finding that the sanitary measure in dispute, to the extent it in effect and from a sanitary perspective 
imposes certain heat treatment requirements, is not reasonably supported or warranted by a risk 
assessment and, therefore, not "based on" a ri sk assessment in accordance with Article 5.1.411  On that 
ground, we also found that the measure at issue, to that extent, violates the Article 2.2 requirement 
that sanitary measures be based on scientific prin ciples and not be maintained without sufficient 
scientific evidence.412  We consider that these two findings of inconsistency (with both Articles 5.1 
and 2.2) constitute another "warning signal" which ma y, together with other factors, lead to the 
conclusion that the measure at issue results in a "dis guised restriction on international trade".  Indeed, 
considering these violations of Articles 5.1 and 2.2 it would seem that the m easure at issue constitutes 
an import prohibition, i.e., a restriction on interna tional trade, "disguised" as a sanitary measure.  We 
do stress, however, that this additional "warning signa l" as such cannot be sufficient to conclude that 
the measure results in a "disguised r estriction on international trade".   
8.152 In our view, the three "warning signals" outlined above are supported by three other factors 
more substantial in nature.  These factors are derived from the architecture and structure of the 
measures which embody the different levels of protection we examined under the first and second 
element of Article 5.5.  All three suggest that th e measure implementing the level of protection for the 
salmon products further examined (i.e., the measure at issue), in its application and in the context of 
the implementing measures imposed by Australia for the other products compared under Article 5.5, 
results in "a disguised restriction on international trade". 
8.153 First, in this particular case, the arb itrary and rather substantial distinctions in levels of 
sanitary protection imposed by Australia (and referred to in  the first two "warning signals" set out 
above) are expressed in two substa ntially different implementing measures , namely, (1) an import 
prohibition for the salmon products further examined, as opposed to (2) tolerance of imports of 
herring for use as bait without control and of live ornamental finfish after control.413  Nevertheless, 
under the first element of Article 5.5, we considered  the products to which these measures apply to be 
comparable (as "different situations" under Article 5.5).414  More importantly, under the second 
element of Article 5.5 we also found that the ri sk arising from these products can be presumed to be 
the same (and that the risk related to imports of  herring for use as bait and live ornamental finfish 
might even be greater than that arising from the salmon products further examined).415  The fact that 
Australia, therefore, applies substantially differe nt implementing measures to products which can be 
presumed to represent the same risk, s uggests that Australia is effectively discriminating  between, on 
the one hand, the salmon products further examined (imports of which are prohibited) and, on the 
other hand, herring used as bait and live ornament al finfish (imports of which are allowed).416  Since, 
in our view, the concept of "disguised restriction on international trade" in Article 5.5 includes, among 
other things, restrictions constituting an arbitrar y or unjustifiable discrimination between certain 
products - in particular in the event this discrim ination results from measures imposed on or in 
                                                      
411 Para. 8.99. 
412 Ibid. 
413 Para. 8.129. 
414 Para. 8.121. 
415 Para. 8.137. 
416 According to the Report of The National Task Force on Imported Fish and Fish Products, DPIE, 
December 1996, at p.24, Table 3.8, whole frozen herring for use as bait is mainly imported into Australia from New Zealand, USA and Holland.  At our interim review meeting Australia noted that Canada is also a significant producer 
and exporter of herring and that it has the same access to the Australian market as any other supplier.  Australia further submitted that Canada also exports live orname ntal fish to several destinations, including Australia. WT/DS18/R 
Page 194  
 
connection with the importation of these products ( in casu , an import prohibition versus  allowing 
imports), we consider that this factor can also be  taken into account in our decision as to whether the 
measure at issue results in "a disguised restriction on international trade".  
8.154 The second additional factor we consider to  be relevant suggests elements of domestic 
protection.417  In our view, the 1995 Draft Report and th e 1996 Final Report constitute an important 
part of the "architecture" of the measure in dispute.418  The measure at issue has been maintained as a 
direct result of the 1996 Final Report's conclusions .  The 1996 Final Report, in turn, is based on 
earlier drafts, including, in particular, the 1995 Draft Report.  The 1995 Draft Report reached the 
following conclusion:  "It is the conclusion of th is draft IRA [Import Risk Analysis] that the 
importation of eviscerated, headless, wild, ocean-caught Pacific salmon from Canada and the USA should be permitted, unde r specified conditions".
419  The 1995 Draft Report then added:  "The results 
of this analysis should be reviewed in the light of any significant advances in knowledge on scientific 
and technical matters relevant to quarantine issues".420  However, the 1996 Final Report reached a 
different conclusion from that reached in the 1995  draft:  "... it is recommended that the present 
quarantine policies for uncooked salmon products remain in place".421  This recommendation, in 
effect, meant that the import prohibition on salmon products further examined should be maintained.  
The change in recommendations between the 1995 Draft Report and the 1996 Final Report was, 
therefore, one from allowing fresh, chilled or frozen  product under specified conditions to prohibiting 
its importation or requiring heat treatment, hence its  transformation into a different product.  Even 
though we requested Australia on several occasions to clarify this rather substantial change in 
conclusions, we consider that Australia has not provid ed us with information as to what happened or 
what evidence was obtained in the period between th e issuance of the two reports - in particular 
during the risk communication phase which took place subsequent to the circulation of the 1995 Draft 
Report - that can sufficiently explain the change in recommendations (less than two years after the 1995 Draft Report) put forward in the 1996 Final Report.
422  Australia itself confirmed that the 
reversal is not due to a change in  its appropriate level of protection.423  For Australia, the reversal was 
made because of new scientific information (e.g., on spread of prawn viruses), a re-appraisal of existing scientific information and the attendant uncer tainties associated with the estimates and a re-
assessment of the consequences of disease introducti on, in particular the potential environmental 
impact and the socio-economic impact on recreationa l fisheries in Australia. However, the experts 
advising the Panel all stated that in between th e 1995 Draft Report and the 1996 Final Report no new 
                                                      
417 In this regard we also note that in Australia's subm issions before this Panel, Australia noted that when 
QP86A was imposed "[i]n Australia there was a desire to protect recreational fisheries based on salmonids and to 
protect the potential development of a salmonid aquaculture industry". Moreover, according to an Industry Commission Research Project on Australian Atlantic Sa lmon: Effects of Import Competition, 20 December 1996, at 
p.5:  "Atlantic salmon farming began in Australia in 1985, with considerable encouragement from the Tasmanian Government ... Tasmanian production has grown from an  initial harvest of 20 tonnes in 1986-87 to around 7000 
tonnes in 1995-96".  
418 As noted by Australia in its answer to original Panel Question 16:  "The May 1995 draft import risk 
analysis must be seen as part of a process which would lead to a final report to be put to the Director of Quarantine for decision.  The May 1995 draft put forward a proposal as a basis for comment and further discussion". 
419 1995 Draft Report, p.iii. 
420 Ibid. 
421 1996 Final Report, p.70. 
422 Para. 7.18. 
423 At the meeting with experts advising the Panel, Austra lia stated the following: "... the experts themselves 
have underlined at the point that the science and the methodology are dynamic and evolving, a point which of course we have made in our submissions.  I would note however, that the one thing that is not changing, is Australia's 
appropriate level of protection .  Australia has adopted a structured approach to the development of quarantine 
policies, including the assessment and management of  risk" (Transcript, para. 79, emphasis added).    WT/DS18/R 
   Page 195  
 
scientific evidence relevant to the problem at hand has been produced.424  In the words of the 1995 
Draft Report there were therefore, according to the experts advising the Panel, a priori  no "significant 
advances in knowledge on scientific and technical ma tters relevant to quarantine issues" which could 
warrant this rather substantial change in the 199 5 Draft Report's conclusions.  With respect to the 
other factors invoked by Australia, we note that none of them are clearly referred to in the 1996 Final 
Report or, even less, mentioned by the 1996 Final Re port to be the reason for the reversal of the 1995 
conclusions.  Without making any conclusive stat ement in this respect, we nonetheless consider, 
however, that on the basis of the evidence before us the decisive reason for reversing the 1995 Draft 
Report's conclusion - that the salmon products furt her examined should be allowed into Australia 
under specified conditions - might well have been inspired by domestic pressures to protect the 
Australian salmon industry against import competition.425  We acknowledge that this element, in 
itself, does not constitute sufficient pr oof that the measure results in "a disguised restriction" on trade, 
but consider that it can, nonetheless, be taken into  account cumulatively with the other factors we 
address.    
8.155 Third, we recall that Australia bans th e import of the salmon products further examined 
because of a "low" potential  of introduction of 24 diseases, only five of which have been detected in 
these salmon products.426  When it comes to imports Australia thus imposes very strict sanitary 
measures in order to uphold an allegedly very conser vative level of protection for its fish population.  
However, some elements before us make us doubt wh ether Australia applies similarly strict standards 
when it comes to the internal movement of salmon products within Australia or Australia's internal 
monitoring and prevention mechanism for fish diseases more generally.   
8.156 Canada refers, for example, to the disease Epizootic haematopoietic necrosis (EHN).  This 
fish disease is one of the five "Diseases Notifiabl e to the OIE" which means that, according to the 
OIE, it is "considered to be of socio-economic a nd/or public health importance within countries" and 
is "significant in the international trade of  aquatic animals and a quatic animal products".427  EHN is 
reported to occur in salmon populations in Victoria, but not in other parts of Australia such as 
Tasmania, Western Australia, Queensland and the Northern Territory.428  Australia agrees with this.  
Nevertheless, Australia does not impose any restricti ons on the internal movement of fish products.  
We acknowledge Australia's argument that EHN is not a serious disease of salmonids, that an OIE listing of a disease agent has, according to Australia , no scientific relevance as to evaluations of the 
severity of that disease agent and that the biological  consequences related to the introduction of EHN 
                                                      
424 Transcript, paras. 298-303.  See also, in this resp ect, Rodgers, Transcript, paras. 33-34 ("Now for me, I 
take it to mean that all these reports actually reach a simi lar scientific conclusion ... The problem for me seems to be 
the change in emphasis and conclusion in the 1996 Final Report, which seems to consider the scientific advice but then reaches a political decision, following public consulta tion") and Wooldridge, Transcri pt, para. 55 ("... the Final 
Report does not make clear where any factual errors in the Draft may have occurred which may have altered the assessed risks.  And since it came to the opposite conclusion to  that in the Draft, this clarity for any factual changes is 
essential.  It is very difficult to see from this whether different conclusions to an adequate assessment would be valid"). 
425 Canada argues, for example, that "[f]ollowing the release of the May 1995 Report, Tasmanian salmon 
producers lobbied furiously against it.  Th ey even hired a lobbying firm ... to re verse the conclusion ..." (Canadian oral 
statement, second substantive meeting, p.33).  In response,  Australia argues that lobbying activities by the full range 
of stakeholders (including overseas governments and other interests) reflect the open and transparent arrangements pertaining in democratic systems of government and are neithe r implicitly or explicitly proscribed nor discouraged by 
WTO provisions.  In such circumstances Australia submits that  there is no justification for inferences of motives that 
lobbying by one particular group influenced or affected the processes leading to the recommendations of the 1996 
Final Report. 
426 Para. 8.140. 
427 OIE Code, Section 1.1, Definitions, p.7, emphasis on defined terms omitted.  Part 3 of the OIE Code 
dealing with "Other Significant Diseases", further states that "the list of notifiable diseases of aquatic animals includes 
only major diseases of proven aetiology and limited geographic range", p. 109. 
428 EHN has not been reported to occur in Canadian salmon either.  Australia pointed out, at the interim 
review stage, that EHN is not considered to be exotic in New South Wales and South Australia. WT/DS18/R 
Page 196  
 
are not comparable to those arising from the in troduction of exotic disease agents such as IHNV.429  
Yet, we see no benefit in trying to compare the ri sk arising from EHN as opposed to that arising from 
the diseases of concern to Australia with respect to  the salmon products further examined, nor to 
compare the different measures imposed by Australia to  deal with these risks.  We note, however, that 
the other reasons provided by Australia to justify the absence of any internal restrictions on the 
movement of salmon products, in particular from Vict oria to other parts of Australia (no significant 
trade of fresh salmon into Tasmania from mainland Au stralia and minimal conse quences related to the 
introduction of salmon diseases in Western Australia where little salmon culture is conducted, 
Queensland where only a small salmon population exis ts in isolated mountain areas or the Northern 
Territory where no salmon is present) would seem to be equally valid in support of allowing imports  
of salmon products into specific parts of Australia.430  
8.157 Moreover, when we asked Australia, more generally, whether it has sanitary measures to 
prevent the spread of, or detect and monitor, fish diseases within  Australian borders which are equally 
stringent as those imposed to protect Australian fish populations against imports , Australia recognized 
that "aquatic animal disease control within Australia is in its infancy compared to its terrestrial 
counterpart, as in other countries", but that it had b een "identified as a major national priority as 
demonstrated by the recent [1997] Government resp onse to the National Task Force on Imported Fish 
and Fish Products Report".431  However, the stringent restrictions on imports of salmon products were 
first imposed more than 20 years ago.   
8.158 We consider that the elements outlined unde r this third additional factor, though probably  not 
conclusive as such, can also be taken into account, cumulatively with other factors, in our decision on 
whether the measure at issue results in "a disguised restriction on international trade". 
8.159 On the basis of all "warning signals" and f actors outlined above, considered cumulatively, we 
consider that Canada has raised a presumption (i.e., established a  prima facie  case) that the 
distinctions in levels of protection imposed by Australia for, on the one hand, the salmon products 
further examined and, on the other hand, herring in whole, frozen form for use as bait and live 
ornamental finfish, in its application - i.e., by means of the measure at issue which implements the 
level of protection for the salmon products further ex amined - results in "a disguised restriction on 
international trade", in the sense of the third element of Article 5.5.  We consider that Australia, in 
turn, has not provided sufficient evid ence to rebut that presumption.  We thus find that, to that extent, 
the third element under Article 5.5 is fulfilled. 
   (iv) Summary  
8.160 We have found above: 
(1) that Australia imposes different appr opriate levels of sanitary protection in 
several "different situations", namely wi th respect to all four comparisons  set 
                                                      
429 See, however, Winton, Transcript, paras. 208-211, on EHN,  stating (at para. 209) that it is part of a "pool 
of strains of very closely related viruses which can have devastating effects for which there is a limited geographic 
distribution but a fairly wide species distribution".  EHN does not occur on the list of 24 diseases of concern to 
Australia with respect to salmon products, according to Australia, because it is not exotic and it does not occur in North America. 
430 We note that in this respect Article 6 of the SPS Agreement provides:  "Members shall ensure that their 
sanitary ... measures are adapted to the sanitary  ... characteristics of the area - whether all of a country, part of a 
country , or all or parts of several countries - ... to which the product is destined.  In assessing the sanitary or 
phytosanitary characteristics of a region, Members shall take into account, inter alia , the level of prevalence of 
specific diseases  or pests, the existence of eradication or contro l programmes, and appropriate criteria or guidelines 
which may be developed by the relevant international organizations".   
431 Australia's answer to additional Panel Question 12 of 8 December 1997, answers, p.10, referring to:  
Australian Quarantine - A Shared Responsibility, The G overnment Response, Minister for Primary Industries and 
Energy, August, 1997.    WT/DS18/R 
   Page 197  
 
out in paragraph 8.113 (the salmon produc ts at issue from adult, wild, ocean-
caught Pacific salmon compared to other products); 
(2) that these levels of protection exhibit differences which are "arbitrary or 
unjustifiable" in so far as they relate  to, on the one hand, the salmon products 
at issue from adult, wild, ocean-caught Pacific salmon and, on the other hand, herring in whole, frozen form for use as bait and live ornamental finfish;  and 
(3) that these differences between the tr eatment provided to, on the one hand, the 
salmon products at issue from adult, wild, ocean-caught Pacific salmon and, 
on the other hand, herring in whole, frozen form for use as bait and live 
ornamental finfish result, by means of the measure at issue, in "discrimination or a disguised restriction on international trade". 
Since all three elements of Article 5.5 are present in  this case, we find that Australia, by maintaining 
the measure at issue, acts inconsistently with its  obligations under Article 5.5.  Given our earlier 
finding  - that a violation of the more specific Article 5.5 can be presumed to imply a violation of the 
more general Article 2.3
432 - we find that Australia, to that extent, also acts inconsistently with 
Article 2.3.    
 5. Canada's claims under Article 5.6:  Me asures not more trade restrictive than 
required to achieve the appropriate level of protection  
8.161 In the alternative, Canada submits that -- in the event we were to find that no distinctions are 
made by Australia in its levels of protection or that any such distinctions are not arbitrary or 
unjustified  - the measure at issue is nevertheless more trade restrictive than required to achieve 
Australia's appropriate level of protection with respect to the salmon products further examined, 
contrary to Article 5.6. 
8.162 Canada argues that Australia has breached its  obligations under Article 5.6 in two respects.  
First, Canada submits that Aust ralia's sanitary measures for non-sal monids (in particular the four 
categories of fish or fish pr oducts examined under Article 5.5433 are significantly less trade restrictive 
than those imposed for the salmon products further examined and this even though the risks posed by 
these non-salmonids are equal to or greater than  those presented by the salmon products further 
examined.  For Canada, there is no technical or  economic reason why similar measures to those 
currently imposed for these non-salmonids could not  reasonably be extended to the salmon products 
further examined.  Second, Canada argues that, ev en if there were a plausible explanation for 
Australia maintaining far more trade restrictive me asures in respect of salmon than in respect of non-
salmonids, the current measure imposed for the salm on products further examined  (an import ban) is 
the most trade restrictive measure available to Aust ralia.  Canada further submits that, as Australia's 
own risk assessment (the 1996 Final Report) concedes that the levels of risk presented by the five 
options it considered (including the option fina lly selected, namely heat treatment) cannot be 
distinguished, each of these options must, therefore, logically achieve Australia's appropriate level of 
protection, i.e., the level of protection currently ac hieved by the measure in dispute.  For Canada, 
there is, for example, no difference in the level of risk between the current restriction (imposing heat 
treatment without having assessed its  effectiveness) and evisceration, the standard suggested by the 
OIE.  Since all four alternative options are far less  trade restrictive than the sanitary measure currently 
imposed (an import ban), Canada concludes that Aust ralia breaches its obligations under Article 5.6.  
8.163 According to Australia, the measure at issue has been dete rmined, through a risk assessment, 
to be necessary to achieve its appropriate level of  protection.  Australia submits that the risk 
                                                      
432 Para. 8.109. 
433 Para. 8.113 and Annex 1. WT/DS18/R 
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assessment established that there was no other measu re reasonably available to Australia, considering 
the risks posed by the salmon products further examined and taking into account technical and 
economic feasibility, that would achieve the appr opriate level of protec tion and which would be 
significantly less restrictive to trade.  Australia submits that Canada has not come forward with 
directly relevant scientific evidence that might wa rrant an alternative conclusion.  Australia argues 
that the different options set out in the 1996 Final Report provide a continuum of risk and that each of 
these options would achieve a distinct level of prot ection.  Australia submits that it has documented 
the different options considered and reached the co nclusion that while different options might reduce 
risk, they would not reduce the risk to a level suffi cient to achieve Australia 's appropriate level of 
protection.  According to Australia, Canada's claim that the current heat-treatment requirements have 
not been sufficiently assessed or that Australia opted for the most trade-restrictive measure available, 
does not constitute evidence that a significantly less tr ade restrictive measure is available that would 
achieve Australia's level of protection.  Australia  argues, moreover, that it has not taken the most 
trade-restrictive measure possible for salmon sin ce significant quantities of heat-treated salmon can 
enter Australia.  According to Australia, Canada has not addressed issues associated with economic or 
technical feasibility of different options.  With  respect to its measures imposed on non-salmonids, 
Australia argues that the fact that  some of these other situations involve a disease agent which is the 
same as one of the 24 disease agents potentially pr esent in the salmon products further examined, does 
not make these other situations comparable to th at of these salmon products.  Australia further 
submits that if conformity with Article 5.6 require d Australia to adopt the same sanitary measures for 
non-salmonids as it imposes for the salmon products further examined, Australia would then arbitrarily restrict trade - and risk breaching its  obligations under the SPS Agreement - since no risk 
assessments for these other products have as yet be en conducted.  Australia argues that, because no 
such risk assessments have been made, it is not  in a position to determine whether the measure 
currently applied to the salmon products further ex amined would achieve the appropriate level of 
protection for these other non-salmonid products. 
8.164 Article 5.6 reads as follows: 
"Without prejudice to paragraph 2 of Article 3, when establishing or maintaining sanitary 
or phytosanitary measures to achieve the appr opriate level of sanitary or phytosanitary 
protection, Members shall ensure that such me asures are not more trade-restrictive than 
required to achieve their appropriate level of  sanitary or phytosanitary protection, taking 
into account technical and economic feasibility". 
A footnote to Article 5.6 states the following: 
"For purposes of paragraph 6 of Article 5, a measure is not more trade-restrictive than 
required unless there is another measure, reasonably available taking into account 
technical and economic feasibility, that achieve s the appropriate level of sanitary or 
phytosanitary protection and is signi ficantly less restrictive to trade". 
8.165 Article 5.6 must be read in context.  As noted earlier
434, an important part of the context of 
Article 5 is Article 2.  We consider that Article 5. 6 should, in particular, be r ead in light of Article 2.2, 
which provides in relevant part: 
"Members shall ensure that any sanitary ... measure is applied only to the extent 
necessary to protect ... animal ... life or health". (underlining added) 
                                                      
434 Para. 8.103.    WT/DS18/R 
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Given that we already found earlier that the measur e in dispute is inconsistent with Article 2.2435, we 
shall not further address the legal rela tionship between Articles 5.6 and 2.2. 
8.166 We recall that our examination of this disput e under Article 5.6 is limited in scope to those 
salmon products at issue from adult, wild, ocean- caught Pacific salmon which we have defined as the 
salmon products further examined.436  
8.167 In this dispute, Article 5.6 requires that the measure at issue ( in casu , QP86A as implemented 
or confirmed by the 1988 Conditions, the 1996 Requir ements and the 1996 Decision and this in so far 
as it prohibits the importation into Australia of fresh , chilled or frozen salmon, in particular to the 
extent it  - in effect and from a sanitary persp ective - imposes certain heat treatment requirements437 is 
"not more trade-restrictive than required to achie ve [Australia's] appropriate level of sanitary ... 
protection, taking into account technical and econom ic feasibility".  According to the footnote to 
Article 5.6, the measure at issue shall be considered  to be "more trade-restrictive than required" if 
there is another sanitary measure which: 
 (1) is "reasonably available taking into account technical and economic feasibility"; 
 (2) "achieves [Australia's] appropriate  level of sanitary ... protection"; and 
 (3) is "significantly less restrictive to tr ade" than the sanitary measure contested.   
We consider that these three elements are cumulati ve in nature.  Only when Canada has raised a 
presumption (i.e., established a prima facie  case), not sufficiently rebutted by Australia, that all three 
elements are present, can the measure at issue be found to be inconsistent with Article 5.6.   
8.168 In examining the three elements under Ar ticle 5.6, we recall that the 1996 Final Report 
(Section 1.5.4) identifies five potential quarantine policy options: 
"The quarantine policy options, in no par ticular order of merit, are as follows: 
1. Permit the importation of product effec tively heat treated for pathogens of 
concern 
 - product might be heat treated prior to export, or 
 - heat treated on arrival prior to general distribution 
2. Implement the recommendations of the BRS report “Aquatic Animal 
Quarantine in Australia:  Report of th e Scientific Working Party on Aquatic 
Animal Quarantine” in part or in full [allowing imports of salmon but, inter alia, with certain certification and inspection requirements and only as 
eviscerated, filleted flesh] . 
 3. Permit the importation of retail-read y fillets, for distribution in raw form 
under specified conditions. 
 4. Implement the recommendations of AQIS’s draft IRA, that is, permit the 
importation of headless, gilled, eviscerated product under specified 
conditions. 
 5. Permit importation of product that  complies with current international 
standards for trade in salmon product for human consumption, that is, OIE recommends that product be eviscerated  and that no other risk reduction 
measures need be taken".
438  
                                                      
435 Para. 8.99. 
436 Para. 8.60. 
437 Paras. 8.19 and 8.95 ff. 
438 1996 Final Report, p.62.  These options are set out in more detail in pp.63-65 of the 1996 Final Report. WT/DS18/R 
Page 200  
 
The 1996 Final Report then concludes that an unaccep table risk persists for imports of the salmon 
products it examined.  However, in order to reduc e this risk to an acceptable level the conclusion it 
then reaches is that the measur e in place should be maintained: 
"On the basis of the large number of disease agents in question;  the many unknowns 
about them;  the impossibility of detecting cove rtly infected animals at inspection;  the 
multiple, complex pathways through whic h imported product could enter Australian 
waterways;  the presence of potential host species in Australian waterways;  the possibility of diseases establishing in Australia;  the substantial economic impacts that 
could result to the salmonid aquaculture industry from disease establishment;  the 
potential loss of amenity and economic impa ct on recreational fishing and associated 
business;  the potential environmental im pacts on listed endangered and vulnerable 
species;  and the ineradicability of disease, it is recommended that the present quarantine 
policies for uncooked salmon products remain in place".439  (underlining added) 
By recommending that the measure in place for uncooked products be ma intained, the 1996 Final 
Report, in effect, confirmed the measure at issu e to the extent it imposes certain heat treatment 
requirements.440  
8.169  Canada refers to the four  other options provided in the 1996 Fi nal Report as valid alternatives 
under Article 5.6.  It advocates, in particular, evisceration (i.e., the fifth option outlined in the 1996 Final Report). 
8.170 We next examine whether any of these altern atives meets each of the three elements required 
under Article 5.6. 
(a) an alternative measure "reasonably available taking into account 
technical and economic feasibility"  
8.171 The first element of Article 5.6 requires that  the alternative measure be "reasonably available 
taking into account technical and economic feasibility ".  We note that all four alternative options 
outlined above were presented in the 1996 Final Report itself as options which merit consideration 
and this in contrast to two other options - rem oval of all quarantine restrictions and banning the 
importation of all salmon products - which were t hought of as options which could not "reasonably be 
considered as appropriate, having regard to associ ated quarantine risks" and were therefore "not 
discussed further".
441  In our view, this implies that the 1996 Final Report put forward the four 
alternatives we examine as technically and economi cally feasible policy options.  Nothing in the 1996 
Final Report - nor any other evidence before us - im plies that any of these four alternatives would be 
technically or economically unfeasible.  We thus c onsider that Canada has raised a presumption that 
the four alternative options outlined in the 1996 Final Report are "reasonabl y available taking into 
account technical and economic feasibility".  Australia has not come forward with any argument or 
evidence to rebut that presumption.  We find, theref ore, that in the present dispute the first element 
under Article 5.6 is fulfilled.   
(b) an alternative measure which "achiev es [Australia's] appropriate level of 
sanitary ... protection"  
8.172 We next address the second element of Article 5.6.  The alternative me asure needs to achieve 
Australia's appropriate level of sanitary protectio n.  We fully agree with Australia that the 
determination of its level  of sanitary protection is a decision to be made by Australia, not by any other 
                                                      
439 Ibid., p.70. 
440 At the interim review meeting, Australia confirmed that the heat treatment requirements currently 
imposed are - in the interim and until further risk assessments are carried out - those contained in the 1988 Conditions. 
441 1996 Final Report, p.62.    WT/DS18/R 
   Page 201  
 
WTO Member or international organization.  The SPS Agreement (in paragraph 5 of Annex A) 
defines this level as the level of protection " deemed appropriate by the Member establishing a 
sanitary ... measure", in casu , the level deemed appropriate by Au stralia.  However, this decision on 
what level of protection is appropriate has to co mply with the SPS Agreement (e.g., Articles 5.4 and 
5.5).  The same applies to Austra lia's decision as to which sanitary measure  will achieve Australia's 
level of  protection.  It is for Australia to decide on this, but, again, in so doing it has to act consistently 
with the SPS Agreement, in particular Articles 2, 5.1 to 5.3 and 5.6.  Our examination under 
Article 5.6 is not aimed at a de novo  review of what sanitary measure Australia should have chosen to 
achieve its appropriate level of protection.  On the other hand, we cannot completely defer this 
decision to Australia and thus not give effect to Article 5.6.  Our mandate under Article 11 of the DSU 
requires us to "make an objective assessment of the matter before [us], including an objective 
assessment of the facts of the case".442  
8.173 In order to decide whether any of the alte rnative measures meet Australia's appropriate level 
of protection for the salmon products further examin ed, we first have to examine more closely what 
that level of protection is.443  In this respect, we recall our earlier consideration that the level of  
protection implied or reflected in a sanitary measure or regime imposed by a WTO Member can be 
presumed to be at least as high as the level of protection considered to be appropriate  by that 
Member.  In this dispute, the level of protection im plied in the measure currently imposed - in effect 
and from a sanitary perspective certain heat treatm ent requirements - can thus be presumed to be at 
least as high as Australia's appropriate level of pr otection for the salmon products further examined.444  
To determine whether any of the alternative measures meet Australia's appropriate level of protection, 
we should thus examine whether these alternatives m eet the level of protection currently achieved by 
the measure at issue.  
8.174 After summing up the five available options, the 1996 Final Report states the following: 
"These options and derived variations represen t a continuum of the estimated levels of 
quarantine risk.  Option 5 represents the higher end and option 1 the lo wer end of the risk 
continuum; the other options lie between.  Th e difference in level of risk between each 
option is incremental and cannot be quantified".445  (underlining added) 
In the conclusion to Section 1 of the 1996 Final Re port (Section 1.6), the five options are repeated and 
a similar general assessment is made: 
"These options provide for varying levels of risk which cannot be quantified.  Heat  
treatment (Option 1) provides the highest leve l of security; the international standard of 
evisceration only (Option 5) provides for the lowest level of security".446  (underlining 
added) 
"The risk of disease entry and establishment that  would follow adoption of Options 1 to 4 
appears to be small based on the known epid emiology of the disease agents and past 
experience.  However, there is a degree of un certainty attached to this judgement of the 
level of risk because of gaps in and inhe rent shortcomings of the available data. 
                                                      
442 Appellate Body Report on EC - Hormones , op. cit., paras. 110-119, in particular para. 117. 
443 We noted earlier that we saw no need to clearly defi ne or quantify this level (para. 8.107).  We recall, 
however, Australia's statement that its level of protection with respect to the salmon products further examined is high or "very conservative" and aimed at reducing risk to "ver y low levels", "while not based on a zero risk approach" 
(Ibid.).  We also recall that QP86A itself provides that salmon products may enter Australia only if they have been subject to "such treatment as in the opinion of the Director of Quarantine is likely to prevent the introduction of any 
infectious or contagious disease" (emphasis added, para. 8.10). 
444 Para. 8.107. 
445 1996 Final Report, pp.62-65, at p.62. 
446 Ibid., p.69. WT/DS18/R 
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It is extremely difficult to distinguish a nd describe the level of risk that each option 
presents from the continuum of risk that are c overed by these options.  For Options 1, 2, 3 
and 4, this is particularly so and it is hard to determine if any of the suggested quarantine 
requirements, which are additional to tho se identified in Option 4, would have a 
substantial impact on the overall risk".447  (underlining added) 
8.175  The measure currently in place imposes, in e ffect, certain heat-treatment requirements defined 
in the 1988 Conditions.  Heat treatment is referred to more generally in Option 1.  At the interim 
review stage, Australia submitted that Option 1 is not the same as the 1988 Conditions in that the level 
of protection in Option 1 is higher than that ach ieved by the 1988 Conditio ns because Option 1 calls 
for inactivation of the disease agents, a result not required in the 1988 Conditions.448  Since Option 1 
was never formally recommended by the 1996 Final Re port and, therefore, not further defined, we 
have no evidence on which to decide whether Option 1 is the same as the 1988 Conditions.  We recall, 
however, that to determine whether any of the alte rnative measures meet Australia's appropriate level 
of protection, we should examine whether these alte rnatives meet the level of protection currently 
achieved by the measure in place (in effect, the h eat treatment requirements in the 1988 Conditions) 
and - in the event Option 1 is different from the measure in place - not that reflected in Option 1.449  
Since, according to Australia, the level of protection achieved by the measure in place is lower  than 
that reflected in Option 1, if we were to find ev idence that alternative options can be presumed to 
meet the level of protection reflected  in Option 1, these alternatives can a fortiori  be presumed to 
achieve the lower level of protection curre ntly achieved by the measure in place.  
8.176  According to the 1996 Final Report, Op tion 2 (adopting the 1995 BRS Report's conclusions) 
is likely to represent the option with a degree of risk most similar to that achieved under Option 1.450  
We shall, therefore, focus our attention on Option 2 and examine, in particular, whether that option 
would also achieve the level of protection currently achieved by the measure at issue.  Four factors 
lead us to conclude that there are alternatives to the measure currently in place which would meet 
Australia's appropriate level of protection, i.e., meet the level of protection achieved today by the 
measure in dispute. 
8.177 First, Australia itself, in the 1996 Final Repor t, acknowledges that "[t]he risk of disease entry 
and establishment that would follow adoption of Options 1 to 4 appears to be small".451  The 1996 
Final Report goes even further and states that "it is hard to determine if any of the suggested 
quarantine requirements, which are additional to tho se identified in Option 4, would have a substantial 
impact on the overall risk".  According to Australia it self there is, therefore, only a minimal, if any, 
difference in the level of sanitary protection linked to  the alternative Options 2 to 4 and that reflected 
in Option 1  - and thus a fortiori452 than that achieved by the measure at issue. 
8.178 Second, on several occasions the 1996 Final Re port states that "[h]eat- treatment (Option 1) 
provides the highest level of security".453  However, as we found earlier454, neither the 1996 Final 
Report, nor any other study before us, establishes that heat treatment actually reduces risk to the 
greatest extent.  The 1996 Final Report does not even address heat treatment as a risk reduction factor 
for 13 of the 24 diseases of concern.  According to  the 1996 Final Report and other studies and expert 
                                                      
447 Ibid., p.70.  For similar statements see Section 4 of the 1996 Final Report ("A Response to Key Issues 
Raised in Submissions to the Revised Draf t Import Risk Analysis"), pp.325, 327 and 385. 
448 However, answering a question from the Panel at the interim review meeting, Australia stated that of the 
options set out in the 1996 Final Report, Option 1 comes closest to the measure currently in place. 
449 Para. 8.173. 
450 1996 Final Report, at p.62:  "Option 5 represents the higher end and option 1 the lower end of the risk 
continuum; the other options lie between". 
451 Ibid., p.70. 
452 Para. 8.175 in fine .  
453 Ibid., p.69, also pp.62 and 70.  
454 Para. 8.99.    WT/DS18/R 
   Page 203  
 
opinions we received, some disease agents are known to survive heat treatment or even grow when 
heat treatment is limited to th e lower temperatures currently allowed under the 1988 Conditions;  and 
for some disease agents freezing seems to re duce risk to the same extent as heating.455  Australia's 
main reason in the 1996 Final Report to not accept the "small" risk related to Options 2 to 4456, 
namely that "there is a degree of uncertainty attached  to this judgement of the level of risk because of 
gaps in and inherent shortcomings  of the available data", seems, therefore, to apply more to heat 
treatment (Option 1) than to any of the other opti ons.  Indeed, all risk reduction factors proposed by, 
for example, the 1995 BRS Report (Option 2) have been examined; not only in the 1995 BRS Report 
itself, but most of them, if not all, also in the 1995 Draft Report (Option 4).  Both the 1995 BRS 
Report and the 1995 Draft Report, on the basis of an  extensive examination of data, conclude that 
imports of the salmon products further examined un der specified conditions represent negligible risk 
and should be allowed.  Both reports also questi on the rational basis of th e current heat-treatment 
requirements.457  In our view, the above elements suggest (1) that the level of protection currently 
achieved by the heat-treatment requirement (which  has, as we found earlier, not been "based on" a 
risk assessment458 is unclear and possibly not as high or conservative as Australia submits and (2) that, 
therefore, the level of protection which would be  met, in particular, by Option 2 (the 1995 BRS 
Report recommendations), according to the 1996 Final Re port posing risk most similar to the measure 
currently imposed, and Option 4 (the 1995 Draf t Report recommendations), both Options having 
based their recommendations on a thorough scientific an alysis, would also achieve Australia's current 
level of protection (reached by the heat-treatment requirement imposed) and might even exceed it. 
8.179 Third, we recall that Australia confirmed th at its level of protection for the salmon products 
further examined remained unchanged between the 1995 Draft Report (recommending that imports of 
these salmon products be allowed) and the 1996 Final Report (suggesting maintenance of the 
prohibition).  We further recall that Australia has not convinced us of the reasons why this rather 
substantial change in conclusions reached by these reports occurred.459  We recall, in particular, that 
the experts advising the Panel unanimously stated that no relevant new scientific evidence occurred 
between the two reports which could explain the reversal.460  If this is true, there would seem to be no 
reason (i.e., no new scientific evidence) why the recommendations of the 1995 Draft Report (Option 4) would no longer meet Australia's (unchange d) level of protection.  On this ground, there 
would, a fortiori, be no reason w hy Option 2, according to Australia the most stringent alternative, 
would not achieve Australia's level of protection. 
8.180 Fourth, with respect to what Australia id entifies as the most liberal option, i.e., Option 5 
which would "[p]ermit importation of product that complies with cu rrent international standards", 
namely evisceration, the OIE expert advising the Panel stated the following: 
"The FDC [Fish Diseases Commission of the OIE] considered this point carefully and is 
unanimous in the opinion that evisceration of fin fish (e.g. salmonids in this case) 
provides a very high level of safety against transmission of disease and that none of the 
notifiable or other significant diseases are likely to be transported with such products. 
                                                      
455 Para. 8.98. 
456 1996 Final Report, p.70. 
457 Para. 8.98. 
458 Para. 8.99. 
459 Para. 8.154. 
460 Transcript, paras. 298-303. WT/DS18/R 
Page 204  
 
Thus the FDC has judged that eviscerated products fall outside the concern of the 
FDC".461  (underlining added)  
"The differing health conditions in vari ous member countries (both exporting and 
importing) are a concern; however, it is impractical to have different recommendations 
for each country.  This is why the FDC has tr ied to set minimum standards that can be 
applied worldwide but encouraged countries to  engage in bilatera l negotiations where 
there are differences of opinion regarding quality of fish health services, presence of other pathogens of concern, etc.  This flex ibility, however, extends only to live fish, live 
gametes, and uneviscerated fish.  As stated above, the FDC currently regards eviscerated 
fish to represent a minimal risk that does not warrant restriction of trade".462  
Given the repeated reference made in the SPS Agreem ent to the relevant inte rnational organizations, 
in this dispute the OIE, and the recommendations they produce (e.g., Articles 3.1 and 5.1) 463, as well 
as to the more general objective of harmonization (e.g., Articles 3.4 and the sixth preamble), we 
consider that appropriate weight shou ld be given to this opinion on Option 5.464  However, in so doing 
we do not endorse evisceration as a measure which woul d meet Australia's level of protection nor do 
we disregard the evidence before us in regard to the relative effectiveness of evisceration, depending 
on the disease concerned and the tissues in which it can be found.465  Since Option 2 is, according to 
Australia, still more risk-reducing than Option 5, this opinion a fortiori applies to support the 
contention that Option 2 could, indeed, be said to meet the level of protection actually met by the 
measure in force.     
8.181 On the basis of all four factors outlined a bove, considered cumulatively, we consider that 
Canada has raised a presumption that there are other measures available, in particular Option 2 set out 
in the 1996 Final Report, which would "achieve [Australia's] appropriate  level of sanitary ... 
protection" in the sense of the second element under Article 5.6 and that Australia has not provided 
sufficient evidence to rebut that presumption.  We find, therefore, that in the present dispute the 
second element under Article 5.6 is fulfilled.  We  make this finding on the basis of the evidence 
before us which, in our view, constitutes a presump tion - which has not been rebutted - that there are 
alternative measures available which would meet Au stralia's appropriate level of protection.  Our 
finding does, therefore, not endorse any of the alternat ive options we examined.  It does not imply that 
Option 2 would actually achieve Australia's appropr iate level of protection nor does it imply that 
Option 2 would be the only option which could achieve that level. 
                                                      
461 Winton's answer to Panel Question 24, Winton, answer s, p.3.  See also Winton, Transcript, paras. 100-
101, 305, 326 and 43 ("The OIE Fish Diseases Commission has not considered eviscerated fish to represent a significant risk.  But I agree with Dr. Rodgers that probably there is no trade that has zero risk ...  in our view, as a 
series of experts and based on our evaluation of the scientific  literature, we do not find scientific evidence that such 
eviscerated products have constituted a risk in the past.  S hould such scientific data be forthcoming, we would perhaps 
modify the types of products or the types of diseases and it  is a very dynamic process, and we probably will never get 
it completely right"). 
462 Winton's answer to Panel Ques tion 25, Winton, answers, p.3. 
463 Paras. 8.44 ff. and 8.49. 
464 Another expert advising the Panel expressed a similar opinion on the effectiveness of evisceration:  
Rodgers, Transcript, para. 21:  "The question of evisceration is also relevant here obviously.  I think that we are all in agreement generally that it is an effective means of reducing the level of risk although the level of reduction would largely depend on tissue location of the disease-causing ag ent and the effectiveness of the evisceration process.  
Nevertheless, we do not know of any specific cases where fish diseases have been transmitted from one area to 
another by imported eviscerated salmonids, or in fact other eviscerated fish, any other species of eviscerated fish".  See also Rodgers, Transcript, para. 307. 
465 In this respect, we refer to the general agreement among parties and experts advising the Panel on this 
issue that some eviscerated product might still contain some of  the disease agents of concer n, e.g., in muscle, remnant 
kidney tissue, bone, skin or blood (see, e.g., Tran script, paras. 21, 90, 99-101, 203-204, 234 and 305-307).    WT/DS18/R 
   Page 205  
 
(c) an alternative measure which is "significantly less restrictive to trade" 
than the sanitary measure contested  
8.182 We finally address the third element under Artic le 5.6:  the alternative measure needs to be 
"significantly less restrictive to trade" than the measure contested.  Canada argues that all four 
alternative options set out in the 1996 Final Report are significantly less trade restrictive.  In its 
request for access to the Australian market, Canada examined in particular headless, eviscerated 
product and advocated that these pr oducts could be safely imported.466  We recall that the measure 
imposed by Australia (in effect, certain heat treatment requirements) prohibits  the importation into 
Australia of fresh, chilled or frozen salmon, including the salmon products further examined.467  All 
four alternative options outlined above would allow  imports of the salmon products further examined, 
albeit under specific conditions (e.g., the salmon pr oducts would have to be  retail-ready fillets, 
eviscerated, headless or gilled, etc...).  We consider  that even imposing the most stringent of these 
specific conditions would still be significantly less restri ctive to trade than an ou tright prohibition.  As 
opposed to any of the other conditions, heat treatment  actually changes the nature of the product and 
limits its use.  Heat-treated salmon can obviously no longer be consumed as fresh salmon.  
Eviscerated, headless or filleted salmon, on the othe r hand, can either be consumed as fresh salmon or 
cooked salmon.468  We consider, therefore, that Canada has raised a presumption that all four 
alternatives outlined in the 1996 Final Report are "si gnificantly less restrictive to trade" than the 
measure in dispute and that Australia has not rebut ted this presumption.  We thus find that in the 
present dispute the third element under Article 5.6 is fulfilled. 
(d) Summary  
8.183 We have found above that a ll three elements required in Article  5.6 in order to find a violation 
of Article 5.6 are present in this dispute.  We t hus find that Australia by maintaining the measure at 
issue acts inconsistently with Article 5.6.   
 6. Canada's claims under Articles 2 and 3:   "Basic Rights and Obligations" and 
"Harmonization"  
8.184 Since we have found that the measure in di spute is inconsistent with the requirements of 
Articles 5.1, 5.5 and 5.6 and is, on that ground, also  inconsistent with the requirements of Articles 2.2 
and 2.3, we see no need to further examine Canada's  other claims under Article 2 nor its claims under 
Article 3. 
E. ARTICLE XI OF GATT 1994  
8.185 Since we have found that the measure in disp ute is inconsistent with the requirements of the 
SPS Agreement, we see no need to fu rther examine whether it is also in consistent with Article XI of 
GATT 1994.   
                                                      
466 1996 Final Report, p.7. 
467 Para. 8.19. 
468 Out of a total of 66,234 tonnes of Canadian salmon exports in 1996, 50,838 tonnes were fresh and frozen 
salmon; the rest was canned salmon.  As opposed to canned or  heat-treated salmon, Canada submits that "recent trends 
indicate consumer preference for fresh and frozen salmon" (Canada, First Submission, para. 31).  Australia seems to 
recognize this when it states that: "For [Australian] farmed Atlantic salmon [the main salmon species commercialized in Australia] supply to both the domestic and export market is predominantly of whole fresh fish" (Australia, Second Submission, para. 58). WT/DS18/R 
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IX. CONCLUSIONS  
9.1 In light of the findings above,  we reach the following conclusions: 
(i) Australia, by maintaining a sanitary measur e which is not based on a risk assessment, 
has acted (both in so far as the measure appli es to salmon products at issue from adult, wild, 
ocean-caught Pacific salmon and the other cate gories of salmon products in dispute),  
inconsistently with the requirements contai ned in Article 5.1 of the Agreement on the 
Application of Sanitary and Phytosanitary Measures and, on that ground, has also acted 
inconsistently with the requ irements contained in Article 2.2 of that Agreement; 
(ii) Australia, by adopting arbitrar y or unjustifiable distinctions  in the levels of sanitary 
protection it considers to be appropriate in di fferent situations (on the one hand, the salmon 
products at issue from adult, wild, ocean-caught Pacific salmon and, on the other hand, whole, frozen herring for use as bait and live ornamental finfish), which result in discrimination or a disguised restriction on international trade, has acted inconsistently with the requirements 
contained in Article 5.5 of the Agreement on the Application of Sanitary and Phytosanitary 
Measures and, on that ground, has also acted in consistently with the requirements contained 
in Article 2.3 of that Agreement; 
(iii) Australia, by maintaining a sanitary me asure (with respect to  those salmon products 
at issue from adult, wild, ocean-caught Pacific salmon) which is more trade-restrictive than 
required to achieve its appropriate  level of sanitary protection, has acted inconsistently with 
the requirements contained in Article 5.6 of th e Agreement on the Application of Sanitary and 
Phytosanitary Measures. 
Since Article 3.8 of the DSU provides that "[i] n cases where there is an infringement of the 
obligations assumed under a covered agre ement, the action is considered prima facie to constitute a 
case of nullification or impairment", we conclude that  to the extent Australia has acted inconsistently 
with the SPS Agreement it has nullified or impair ed the benefits accruing to Canada under the SPS 
Agreement. 
9.2 We recommend  that the Dispute Settlement Body requ est Australia to bring its measure in 
dispute into conformity with its obligations unde r the Agreement on the Application of Sanitary and 
Phytosanitary Measures.    WT/DS18/R 
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ANNEX 1  
The Four Comparisons Under Article 5.5 
 
COMPARISON 1 Disease of concern 
 Disease occurence469 Treatment of imports 
Canadian adult, wild, 
ocean-caught Pacific 
salmon, for human 
consumption  
 This disease agent has not 
been detected in Canadian 
adult, wild, ocean-caught 
Pacific salmon470 banned 
Pacific herring, Cod, 
Haddock, Japanese eel, 
Plaice, for human 
consumption Aeromonas salmonicida 
(atypical strain) This disease agent has been 
detected in uncooked:471 
Pacific herring Cod Haddock Japanese eel Plaice  
 
 
allowed access allowed access allowed access allowed access allowed access 
 
                                                      
469 When addressing "disease occurrence" in this Annex, we focus on whether or not the specific disease 
agent has been detected in the product concerned.  We realize that doing so we simplify the comparison and that a better comparison could be made if more data was available.    However, according to our mandate, we have to make 
an objective assessment of the evidence put before us (Article  11 of the DSU).  Our approach should, therefore, not be 
read to imply that risk assessments should be limited to diseases that have actually been detected nor that they cannot take into account evidence related to scientific research.  
470 Final Report, p.136; Canadian answer to original Panel Question 2, p.4. 
471 Final Report, p.138 (wide statement); Australian answ er to original Panel Question 3, p.6 (for eel); 
Australian answer to additional Panel Question 3 of 8 December 1997, p.6 (for all fish products compared). WT/DS18/R 
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ANNEX 1 (cont'd) 
The Four Comparisons Under Article 5.5  
 
 
COMPARISON 2 Diseases of concern  
 Disease occurrence Treatment of imports 
Canadian adult, wild, 
ocean-caught Pacific 
salmon, for human consumption  
 
 These disease agents have not 
been detected in Canadian 
adult, wild, ocean-caught 
Pacific salmon472 banned 
Pacific herring, 
Atlantic and Pacific cod, Haddock, 
European and Japanese 
eel and Dover sole, for human consumption Viral haemorrhagic 
septicaemia virus (VHSV) 
Infectious pancreatic necrosis 
virus (IPNV) VHSV has been detected in 
uncooked:473 
Pacific herring 
Atlantic cod  
Pacific cod Haddock  European eel  
 
allowed access 
allowed access 
allowed access allowed access allowed access 
  IPNV has been detected in 
uncooked: 474 
Cod 
European and Japanese eel Dover sole  
 
allowed access 
allowed access allowed access  
                                                      
472 For VHSV, Final Report, p.45; for IPNV, Final Report,  pp.44 and 197; Australia agrees with this in its 
answer to original Panel Question 2, pp.4-5. 
473 For Pacific herring:  Winton, Transcript, para. 236; For Pacific cod and Pacific herring: Final Report, 
pp.45 and 222;  For Pacific cod and herring in general: Australian answer to original Panel question 3, p.7; For Atlantic cod and Haddock: Australian answer to Panel Question 20 put forward at the meeting with experts advising the Panel;  For eel: Australian answer to additional Panel question 3 of 8 December 1997, p.6. 
474 For cod, sole and eel: Australian answer to additional Panel Question 3 of 8 December 1997, p.6.    WT/DS18/R 
   Page 209  
 
ANNEX 1 (cont'd) 
The Four Comparisons Under Article 5.5  
 
COMPARISON 3  
 Diseases of concern Disease occurrence Treatment of imports 
Canadian adult, wild, 
ocean-caught Pacific 
salmon for human 
consumption  
Aeromonas salmonicid a 
(atypical strain) 
 
Erythorcytic necrosis virus Only IHNV has been detected 
in Canadian adult, wild, 
ocean-caught Pacific 
salmon475 banned 
Whole, frozen herring 
for use as bait Infectious haematopoietic necrosis virus (IHNV)     Viral haemorrhagic 
septicaemia virus (VHSV) Pacific herring
476: 
 All four disease agents have 
been detected477 
 
Atlantic herring:   only Erythorcytic necrosis 
virus has been detected478 
 allowed access 
 
 
COMPARISON 4  
 Diseases of concern Disease occurrence Treatment of imports 
Canadian adult, wild, 
ocean-caught Pacific salmon, for human 
consumption 
 Aeromonas salmonicida  
(atypical strain) Yersinia ruckeri  
 Edwardsiella tarda   
 None of these disease agents 
has been detected in Canadian 
adult, wild, ocean-caught Pacific salmon banned 
Live ornamental finfish 
 Infectious pancreatic  
necrosis virus (IPNV)  Vibrio anguillarum  All five disease agents have 
been detected in 
Live ornamental finfish479 
 allowed access 
 
 
                                                      
475 According to Canada, IHNV is known to occur in these salmon products (Canadian answer to original 
Panel Question 2, p.4).  However, according to the 1996 Fi nal Report, at p.43, IHNV has only been recovered once 
and this was regarded as "an unusual event". 
476 See, in general terms, Winton, Transcript, para. 283, answering the question whether one can say without 
having done a full risk assessment that bait fish represent higher risk than salmon products:  "I could make that 
statement with a high level of certainty for Pacific herring in North America.  As bait fish those fish contain a significantly and quantifiably higher incidence and prevalence of infection than do Pacific salmon". 
477 For Aeromonas salmonicida : see Comparison 1, footnote 2; for Erythorcytic necrosis virus: see 1996 
Final Report, p.43 and p.182 and Australian answer to orig inal Panel Question 2, p.6; for IHNV: see Australian 
answer to Panel Question 20 put forward at the meeting with experts advising the Panel; for VHSV: Australian answer to original Panel Question 2, p.7, Winton, Transcript, paras. 236 and 267. 
478 Table 6 in Canada's First Submission, pp.79-80.  According to Winton, Atlantic herring in the Baltic and 
North Sea are probably also a major reservoir for VHSV (Transcript, para. 267). 
479 Table 7 in Canada's First submission, p.82 and Australian answer to Panel Question 20 put forward at the 
meeting with experts advising the Panel. See also Winton, Transcript, para. 267.