WORLD TRADE
ORGANIZATIONWT/DS18/9
23 February 1999
(99-0670)
AUSTRALIA - MEASURES AFFECTING IMPORTATION
OF SALMON
Arbitration
under Article 21.3(c) of the
Understanding on Rules and Procedures
Governing the Settlement of Disputes
Award of the Arbitrator
Said El-NaggarWT/DS18/9
Page 1
I. Introduction
1. On 6 November 1998, the Dispute Settlement B ody (the "DSB") adop ted the Appellate Body
Report1 and the Panel Report2, as modified by the Appellate Body Report, in  Australia – Measures
Affecting Importation of Salmon .  On 25 November 1998, Australia informed the DSB, pursuant to
Article 21.3 of the  Understanding on Rules and Procedures Governing the Settlement of Disputes
(the "DSU"), that it would implem ent the recommendations and rulings of the DSB in this dispute and
that, in doing so, it would be "mindful" of the pr ovisions of Article 3.5 of the DSU.  Australia
indicated that it would require a reasonable period of time to complete the implementation process.
2. By letter of 27 November 1998, Australia sought Canada's agreement to a 15-month period as
the "reasonable period of time" for implementation.  In a letter of 14 December 1998, Canada advisedAustralia that it could not agree to this proposal.  Pursuant to Article 21.3 of the DSU, consultationsbetween the parties were held on 30 November, and on 18 and 21 December 1998, but these did notproduce agreement on a reasonable period of time for the implementation process.
3. By communication of 24 December 1998, Canada requested that the reasonable period of
time be determined by binding arbitration, pursuant to Article 21.3(c) of the DSU.  By joint letter of
11 January 1999, the parties informed the Director-General of the World Trade Organization (the"WTO") that they had agreed that I should act as Arbitrator.  The parties were informed, by letter of13 January 1999, that the Director-General had conveyed their wishes to me and that I had acceptedthe appointment.  Thereafter, by letter of 14 January 1999, the parties intimated to me that they hadagreed to extend the time-period for the arbitration process, fixed at 90 days by Article 21.3(c) of theDSU, by a further 19 days, that is until 23 February 1999.  Notwithstanding this extension of the time-period for the arbitration process, the parties stated that my award would be deemed to be an awardmade under Article 21.3(c) of the DSU.
4. Written submissions were received from Australia and Canada on 22 January 1999 and an
oral hearing was held on 2 February 1999.
                                                     
1Australia - Measures Affecting Importation of Salmon , WT/DS18/AB/R, adopted 6 November 1998.
2Australia - Measures Affecting Importation of Salmon , WT/DS18/R, adopted 6 November 1998WT/DS18/9
Page 2
II. Arguments of the Parties
A. Australia
5. Australia argues that it is impracticable to comply immediately with the relevant
recommendations and rulings of the DSB, as decisions on implementation require the fulfilment ofcertain processes in accordance with Australia's legal system.  In accordance with those processes,Australia estimates that 15 months from the date of adoption of the Appellate Body and Panel reports
represent the shortest period possible for implementation under Australia's legal system.
3
6. Australia rejects Canada's suggestion that the DSB's recommendations and rulings can be
implemented either by repealing or amending the measure concerned or by granting an import permitunder the Quarantine Proclamation 1998 ("QP 1998"), which is the successor to QuarantineProclamation 86A ("QP86A").  Australia considers that the measure can be brought into conformity
with the Agreement on the Application of Sanitary and Phytosanitary Measures  (the
"SPS Agreement ") without repeal or amendment since it does not contain an absolute ban.  Rather, it
allows the Director of Quarantine to permit entry of otherwise prohibited products on the basis of a
risk assessment.
7. As regards Canada's suggestion that a permit be granted to allow imports of Canadian salmon,
Australia emphasizes that such a permit must be based on a risk assessment conducted in accordancewith procedures determined by Government.  Failure to respect those procedures may providegrounds for review under the  Administrative Decisions (Judicial Review) Act 1977  (the " Judicial
Review Act 1977 ").
8. According to Australia, implementation of th e obligation contained in Article 5.5 of the
SPS Agreement  could also not be achieved by the introduction of measures on certain other aquatic
products, comparable to those currently applied on salmon, without risk assessments on those otherproducts.
9. Australia states that decisions on implementation will be taken on the basis of generic risk
assessments that have already commenced.  These assessments cover:  non-viable salmonids, liveornamental finfish and non-viable marine finfish.  The measures adopted will be reflective ofAustralia's obligations under Article 3.5 of the DSU and they may incorporate measures differentiatedby country of origin where that is justified by the risk assessments, provided that such measures
                                                     
3Australia's written submission, para. 3.WT/DS18/9
Page 3
achieve Australia's appropriate level of protection.  It has been estimated that it will be possible to
take decisions on the basis of these risk assessment procedures by February 2000.
10. Australia emphasizes that, although it is required to bring its measure into conformity, it is not
necessarily required to introduce less trade-restrictive measures.  Members are afforded a measure ofdiscretion in the means chosen to implement, pr ovided that the means are consistent with the
recommendations and rulings of the DSB, with the covered Agreements, and with the provisions of
Article 3.5 of the DSU.  Australia's obligation is to ensure that its measures are based on proper risk
assessments and that measures applicable to salmon and other relevant aquatic products do not result
in discrimination or a disguised restriction on trade.
11. The mandate of the arbitrator is solely to determine the "reasonable period of time" for
implementation.  It does not entitle him to suggest or determine ways or means of implementation.The guideline for the arbitrator in determining that period is 15 months from the date of adoption bythe DSB of the Appellate Body and Panel Reports.  However, this period may be shorter or longerthan 15 months, according to the "particular circ umstances" of the case.  Australia considers that
Canada has the burden of proof insofar as it seeks to prove that there are "particular circumstances"justifying a period of time shorter than 15 months.  As Australia has not proposed a period longer than
15 months, it is not required to prove "particular circumstances" justifying a 15
-month period.
12. It has been the practice of arbitrators to interpret the reasonable period of time as the shortest
period possible, within the legal system of the Member concerned, to effect implementation.4  B u t
arbitrators are not required to consider the shortest period of time within which the measure can bewithdrawn or modified, rather they should consid er the shortest period of time for implementation
according to the means chosen.  In this case, impl ementation can be effected  in a WTO-consistent
manner without legislative amendment.  Within the framework of Australia's legal system, this meansof implementation will require a period of 15 months.
13. In that respect, Australia states that quarantine decisions are adopted on the basis of delegated
legal authority, in accordance with Government decisions on the procedures applicable to the conduct
of a risk assessment process.  The  Quarantine Act 1908  constitutes the basic framework for the
exercise of quarantine authority.  The Act provides for the Governor-General to prohibit, byProclamation, the importation into Australia of, inter alia , animals or other articles likely to introduce
                                                     
4Award of the Arbitrator under Article 21.3(c) of the DSU, EC Measures Concerning Meat and Meat
Products (Hormones)  ("European Communities – Hormones "), WT/DS26/15, WT/DS48/13,  29 May 1998,
para. 26 and  Award of the Arbitrator under Article 21.3(c) of the DSU,  Indonesia - Certain Measures Affecting
the Automobile Industry  ("Indonesia – Autos "), WT/DS54/15, WT/DS55/14, WT/DS59/13, WT/DS64/12,
7 December 1998, para. 22.WT/DS18/9
Page 4
disease.  The Governor-General may also empower the Director of Quarantine to permit the import of
otherwise prohibited "things".  Proclamations by the Governor-General are subordinate legislation.QP 1998, promulgated by the Governor-General, provides the legal basis for the exercise of theDirector of Quarantine's powers to authorize the import of,  inter alia , the fresh, chilled or frozen
salmon from Canada (the "salmon product at issue").  As noted, his decisions are subject to judicialreview under the  Judicial Review Act 1977  and must, therefore, be based on the procedures
determined by the Government for the conduct of risk assessments.
14. These procedures are set down in The AQIS Import Risk Analysis Process Handbook  (the
"AQIS Handbook").
5  This Handbook details a series of steps to be taken in the course of an "Import
Risk Analysis" procedure.  Some of the steps are allocated a specific time-period for completion, butothers are not.  Those with a specified time-period are generally concerned with public consultationperiods and with appeals.  A total of 315 days is required for the completion of those steps.  Clearly,the remaining steps also require an appropriate time-period for completion.  This is estimated on acase-by-case basis by AQIS and the Risk Analysis Panel concerned.
15. Since the three risk assessment procedures that are relevant to this dispute will be completed
by February 2000, Australia requests that the reasonable period of time for implementation be
15 months.  Australia is not seeking a 15-month period because that period of time is required to
undertake risk assessments, but because risk assessments are a necessary part of the overall decision-making process and that process cannot be completed in less than 15 months.  This period does notexceed the "guideline" set down in Article 21.3(c) of the DSU and Canada has the burden of proof indemonstrating that there are "particular circumstances" justifying a shorter period.
B. Canada
16. At the core of this arbitration is Australia’s contention that the "reasonable period of time"
should include the time to conduct new risk assessments.  Australia’s contention must be rejected,
both because it runs directly contrary to the ruling of the arbitrator in  European Communities –
Hormones  and because it is manifestly unreasonable for the effective functioning of both the
SPS Agreement  and the dispute settlement system.
17. Like the present case, the measure at issue in   European Communities – Hormones  was found
to be inconsistent with Article 5.1 of the  SPS Agreement  because it was not based on a risk
assessment.  The European Communities sought to have the time needed to conduct a risk assessment
                                                     
5Australia's written submission, Exhibit A.  AQIS is an acronym for Australian Quarantine and
Inspection Service.WT/DS18/9
Page 5
included in the reasonable period of time for implementation.  The arbitrator stated that the time
needed to conduct scientific studies or to consult with experts had no relevance in determining theappropriate duration of the reasonable period of time.
6  Thus, according to Canada, Australia is
seeking allowances for considerations that have been found to be irrelevant to the task confronting theArbitrator.
18. Canada considers that Australia wishes to carry out the new risk assessments in order to
provide the scientific evidence necessary to demonstrate the consistency of a measure already judged
to be inconsistent with the  SPS Agreement .  This approach was rejected by the arbitrator in  European
Communities – Hormones .
7  Canada emphasizes that although the measure at issue was adopted 24
years ago and should have been consistent with the  SPS Agreement  as from 1 January 1995, Australia
has never been able to provide credible evidence to support it.  Indeed, there are several riskassessment studies that conclude that fresh, chilled or frozen salmon from Canada can be importedwith negligible risk.
8
19. In Canada's view, by seeking to include in the reasonable period the time required to conduct
a further risk assessment on salmonids, Australia is, in effect, claiming the benefit of Article 5.7 of theSPS Agreement  through the guise of implementing the DSB’s recommendations and rulings.  In
addition, by seeking to include the time to do risk assessments on non-salmonid species, Australia is
attempting to win through the implementation process that which it was denied by the Panel: a delayin removing or modifying the measure's inconsistency with Article 5.5.
20. To take account of the time needed to do new risk assessments would invite abuse of
Articles 5.1 and 5.5 of the  SPS Agreement .  Findings of inconsistency with either provision would
have little or no consequence.  A Member could adopt a measure inconsistent with those provisionssecure in the knowledge that, even if the measure were found to be inconsistent with theSPS Agreement , the Member would then be granted time to conduct risk assessments.  Furthermore,
the Member might then claim that such risk assessments demonstrated the consistency of the original
measure.  Such an approach would deprive Articles 5.1 and 5.5 of the  SPS Agreement  of virtually all
their effect.
                                                     
6European Communities – Hormones , supra,  footnote 4, para. 39.
7Ibid.
8New Zealand, The Risk of Introducing Exotic Diseases of Fish into New Zealand Through the
Importation of Ocean-Caught Pacific Salmon from Canada , prepared by Stuart C. MacDiarmid
(September 1994); and M. Stone, S. MacDiarmid and H. Pharo, Import Health Risk Analysis: Salmonids for Human
Consumption  (New Zealand: Ministry of Agriculture Regulatory Authority, 1997); D. 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.WT/DS18/9
Page 6
21. Canada, therefore, submits that it would be manifestly unreasonable to allow Australia to
include in the reasonable period of time the time needed to do new risk assessments.
22. In seeking a 15-month period for implementation, Australia appears to concede that, however
else implementation might be accomplished, it can be achieved in 15 months by a decision of theDirector of Quarantine.  As this 15-month period includes the time to conduct new risk assessments,
which in Canada’s view are not related to implemen tation, Australia is implicitly conceding that the
Director of Quarantine could make the nece ssary determinations well within 15 months.
23. Canada recalls that, in  European Communities – Hormones , the arbitrator found that:
Read in context, it is clear that the reasonable period of time, as
determined under Article 21.3(c), should be the shortest period
possible within the legal system of the Member to implement the
recommendations and rulings of the DSB.
9
24. Furthermore, the arbitrator in  European Communities – Hormones  also stated that where
implementation could be accomplished by "administrative means, the reasonable period of time
should be considerably shorter than 15 months." 10  In Canada's opinion, the process involved
in bringing the impugned measure into confor mity with Australia's obligations under the
SPS Agreement  is an administrative, not legislative, process.  It can, therefore, be effected in much
less than 15 months.
25. To the best of Canada's knowledge, Australian law provides no time limits for administrative
determinations by the Director of Quarantine since the procedures set out in the AQIS Handbook aremerely policy guidelines and are not legally binding.  Canada maintains that AQIS's choice of policyshould not adversely affect Canada in terms of what constitutes a reasonable period of time forimplementation.
26. Canada believes that, on the basis of the ample evidence already before Australia and in view
of the absence of scientific justification for the measure, there is no reason why Australia should notbring its measure into compliance expeditiously, through the most direct means available: anadministrative decision by the Director of Quarantine allowing the importation of fresh, chilled orfrozen Canadian salmon.
                                                     
9Supra , footnote 4, para. 26, cited with approval by the Arbitrator in Indonesia – Autos , supra ,
footnote 4, para. 22.
10Supra , footnote 4, para. 25.WT/DS18/9
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III. The Reasonable Period of Time
27. My mandate in this arbitration is governed by Article 21.3(c) of the DSU.  It provides that
when the "reasonable period of time" is determined through arbitration:
… a guideline for the arbitrator should be that the reasonable period of
time to implement panel or Appellate Body recommendations shouldnot exceed 15 months from the date of adoption of a panel or
Appellate Body report.  However, that time may be shorter or longer,
depending upon the particular circumstances.
28. The precise meaning of this provision becomes clear when it is read in its context.
Paragraph 1 of Article 21 provides:
Prompt compliance with recommendations or rulings of the DSB is
essential in order to ensure effective resolution of disputes to the
benefit of all Members.
29. It should also be noted that the second sentence of paragraph 3 of Article 21 stipulates that the
Member concerned shall have a reasonable period of time "[i]f it is impracticable to complyimmediately with the recommendations and rulings"  of the DSB.  Article 3.7 of the DSU explains
what is meant by immediate compliance:
A solution mutually acceptable to the parties to a dispute and
consistent with the covered agreements is clearly to be preferred.  In
the absence of a mutually agreed solution, the first objective of the
dispute settlement mechanism is usually to secure the withdrawal of
the measures concerned if these are found to be inconsistent with theprovisions of any of the covered agreements .  The provision of
compensation should be resorted to only if the immediate withdrawal
of the measure is impracticable and as a temporary measure pending
the withdrawal of the measure which is inconsistent with a covered
agreement.  (emphasis added)
30. Taken together, these provisions clearly define the rights and obligations of the Member
concerned with respect to the implementation of the recommendations and rulings of the DSB.  In the
absence of a mutually agreed solution, the first objective is usually the  immediate withdrawal  of the
measure judged to be inconsistent with any of the covered agreements.  Only if it is impracticable todo so, is the Member concerned entitled to a reasonable period of time for implementation.  When thereasonable period of time is determined through arbitration, the guideline for the arbitrator is that itshould not exceed 15 months from the date of adoption of the panel and/or Appellate Body reports.This does not mean, however, that the arbitrator is obliged to grant 15 months in all cases.  Thereasonable period of time may be shorter or longer, depending upon the particular circumstances.WT/DS18/9
Page 8
31. A certain difficulty arises in this case because of the divergent views of the parties as to what
constitutes implementation.  According to Austra lia, implementation of the recommendations and
rulings of the DSB in casu  involves conducting risk assessments, not only with respect to the salmon
product at issue, but also with respect to non-salmonid products.  In Australia's opinion, the"reasonable period of time" should be such as to enable it to conduct those risk assessments since theywill form the basis of the decisions on implementation.  Australia argued, both in its writtensubmission and in its oral statement, that the outcome of the risk assessments currently being
conducted cannot be prejudged.  Implementation could well result in the continuation of the import
prohibition on the salmon product at issue or in the admission, with or without conditions, of thatproduct into the Australian market.  It all depends,  in the view of Australia, upon the outcome of the
risk assessments.
32. Canada does not share Australia's view on the meaning of implementation of the
recommendations and rulings of the DSB.  According to Canada, whether or not Australia wishes tocarry out studies or risk assessments, the conduct of such studies does not constitute implementationof the recommendations and rulings of the DSB and cannot be included in the calculation of thereasonable period of time.  There is no reason, Canada argues, why Australia should not bring its
measure into compliance expeditiously through the most direct means available, i.e., an administrative
decision by the Director of Quarantine allowing the importation of fresh, chilled or frozen Canadiansalmon.
33. Clearly, what constitutes a "reasonable period of time" depends upon the action which
Australia takes under its legal system to implement the recommendations and rulings of the DSB.  Ifimplementation is effected by means of an administrative decision to repeal or modify the measure atissue or by means of a permit granted by the Director of Quarantine, the length of time needed tocarry out such a process would be different from what it would be if Australia were to conduct a seriesof risk assessments.
34. I believe it is necessary to recall the findings and conclusions of the Appellate Body
11 and of
the Panel12, as modified by the Appellate Body, which are the subject of the recommendations and
                                                     
11Supra , footnote 1.
12Supra , footnote 2.WT/DS18/9
Page 9
rulings of the DSB.  The relevant aspects may be summarized as follows:
(a) the SPS measure at issue in this dispute is the import prohibition on fresh, chilled or
frozen salmon set forth in QP 86A (now  QP 1998), as confirmed by the 1996
Decision;
(b) by maintaining without a proper risk assessment, or without risk assessment, an
import prohibition on fresh, chilled or frozen salmon from Canada, Australia hasacted inconsistently with Article 5.1 and, by implication, Article 2.2 of the
SPS Agreement ;
(c) by maintaining the measure at issue, Australia has acted inconsistently with its
obligations under Article 5.5 and, by implication, Article 2.3 of the  SPS Agreement .
35. I am mindful of the limits of my mandate in this arbitration.  I am particularly aware that
suggesting ways and means of implementation is not part of my mandate and that my task is confinedto the determination of the "reasonable period of time".  Choosing the means of implementation is,and should be, the prerogative of the implementing Member.  In the words of the arbitrator inEuropean Communities - Hormones :
… An implementing Member … has a measure of discretion in
choosing the means  of implementation, as long as the means chosen
are consistent with the recommendations and rulings of the DSB and
with the covered agreements.
13  (emphasis in original)
However, he also said:
… It would not be in keeping with the requirement of prompt
compliance to include in the reasonable period of time, time toconduct studies or to consult experts to demonstrate the consistency  of
a measure already judged to be inconsistent .  That cannot be
considered as "particular circumstances" justifying a longer period
than the guideline suggested in Article 21.3(c).  This is not to say that
the commissioning of scientific studies or consultations with expertscannot  form part of a domestic implementation process in a particular
case.  However, such considerations are not pertinent to the
determination of the reasonable period of time.
14  (emphasis in
original)
                                                     
13Supra , footnote 4, para. 38.
14Ibid., para. 39.WT/DS18/9
Page 10
36. The Appellate Body was unequivocal in its conclusion that the measure in dispute is the
import prohibition on Canadian fresh, chilled or frozen salmon, contained in QP 86A and confirmedby the 1996 Decision.  It was equally unequivocal in its findings that such an import prohibition isinconsistent with Articles 5.1, 2.2, 5.5 and 2.3 of the  SPS Agreement .  Given these findings and
conclusions, it is difficult, indeed, to accept the view that, in the determination of the reasonableperiod of time, account should be taken of the time needed to conduct risk assessments to demonstratethe consistency of the import prohibition already found to be inconsistent with the provisions of the
SPS Agreement .
37. I turn now to the issue of the "reasonable period of time" in the case at hand.  As mentioned
before, Australia considers 15 months to be the minimum period for implementation in accordancewith Australian law.  Canada, on the other hand, holds the view that Australia can implement the
recommendations and rulings of the DSB in much less than 15 months.  Australia maintains that theburden of proof falls on Canada to demonstrate that there are "particular circumstances" justifying ashorter period than the guideline of 15 months.  Australia also maintains that, as it has not proposed aperiod longer than 15 months, it is not required to prove "particular circumstances" justifying a15
-month period.
38. It has been pointed out that the arbitrator is not obliged to grant 15 months as the reasonable
period for implementation in all cases.  "Particular circumstances" justifying a longer or shorter periodmust be taken into account on a case-by-case basis.  In the present case, there are certainconsiderations which persuade me that the reasonable period of time should be significantly less than15 months.  In the first place, Australia's request for 15 months was based on the assumption that agood part, if not most, of that pe riod would be used to conduct a number of risk assessments.  In its
written submission, Australia points out that the AQIS Handbook details a series of steps to be takenin the course of an Import Risk Analysis procedure under Australian law.  Some of the steps areallocated a specific time-period, but others are not.  A total of 315 days, i.e., 10½ months, is required
for the completion of the time-bound steps for scientific studies under the procedures of the
AQIS Handbook.
15  Since I have concluded that conducting risk assessments is not pertinent to the
determination of the reasonable period of time, it follows that the reasonable period in this case shouldbe considerably less than 15 months.  In the second place, both parties agree with the arbitrator inEuropean Communities - Hormones  that the reasonable period of time, as determined under
Article 21.3(c), should be the shortest period possible within the legal system of the Member toimplement the recommendations and rulings of the DSB.
16  Both parties also agree that the process
                                                     
15Australia's written submission, para. 51.
16European Communities - Hormones , supra , footnote 4, para. 26.WT/DS18/9
Page 11
involved in bringing the measure in dispute into conformity with Australia's obligations under the
 SPS Agreement  is an administrative, not a legislative, process.  As pointed out by the arbitrator in
 European Communities - Hormones , when implementation can be effected by administrative means,
the reasonable period of time should be "considerably shorter than 15 months."17
IV. The Award
39. In light of the above considerations, I determine that the reasonable period of time for
Australia to implement the recommendations and rulings of the DSB in this case is  eight months  from
the date of adoption of the Appellate Body and Pa nel Reports by the DSB, i.e. eight months from
6 November 1998.
                                                     
17European Communities - Hormones , supra , footnote 4, para. 25.WT/DS18/9
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Signed in the original at Geneva this 11th day of February 1999 by:
_______________________
Said El-Naggar