WT/DS495/AB/R/Add.1  
 
11 April 2019  
(19-2374) Page: 1/40 
  Original: English  
 
KOREA – IMPORT BANS,  AND TESTING AND  CERTIFICATION REQUIR EMENTS  
FOR RADIONUCLIDES   
AB-2018-1 
Report of the Appellate Body  
Addendum  
This Addendum  contains Annexes A to C to the Report of the Appellate Body  circulated as  document  
WT/DS495/AB/R . 
 
The Notices of Appeal and Other Appeal  and the executive summaries of written submissions 
contained in this Addendum are attached as they were received from the participants and 
third participants. The content has not been revised or edited  by the Appellate Body, except that 
paragraph and footnote numbers that did not start at one in the original may have been re -numbered 
to do so, and the text may have been formatted in order to adhere to WTO style. The executive 
summaries do not serve as s ubstitutes for the submissions of the participants and third participants 
in the Appellate Body's examination of the appeal.  
 
 
_______________  
 
 WT/DS495/AB/R/Add.1  
 
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LIST OF ANNEXES  
ANNEX  A 
NOTIC ES OF APPEAL  AND OTHER APPEAL  
Contents  Page  
Annex  A-1 Korea 's Notice of Appeal  4 
Annex  A-2 Japan 's Notice of Other Appeal  8 
ANNEX B  
ARGUMENTS OF THE PARTICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Korea's  appellant's submission  10 
Annex  B-2 Executive summary of Japan 's other appellant's submission  17 
Annex  B-3 Executive summary of Japan 's appellee's submission  22 
Annex  B-4 Executive summary of Korea 's appellee's submission  33 
ANNEX  C 
ARGUMENTS OF THE THI RD PA RTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of Brazil 's third participant's submission  36 
Annex  C-2 Executive summary of the European Union's  third participant's submission  37 
Annex  C-3 Executive summary of the United States'  third participant's submission  39 
 
 
 WT/DS495/AB/R/Add.1  
 
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  ANNEX  A 
NOTICE S OF APPEAL  AND OTHER APPEAL  
Contents  Page  
Annex  A-1 Korea 's Notice of Appeal  4 
Annex  A-2 Japan 's Notice of Other Appeal  8 
 
 WT/DS495/AB/R/Add.1  
 
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  ANNEX  A-1 
KOREA 'S NOTICE OF APPEAL 
1. Pursuant to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review 
(WT/AB/WP/6, 16 August 2010) ("Working Procedures"), Korea hereby notifies the 
Dispute  Settlement Body ("DSB") of its decision to appeal certain issues of law and legal 
interpretations in the Panel Report in Korea – Import Bans, and Testing and Certification 
Requirements for Radionuclides (WT/DS495/R) ("Panel Report").  
2. Pursuant to Rules 21 of the Working Procedures, Korea files this Notice of Appeal together 
with its Appellant Submission with the Appellate Body Secretariat.  
3. Pursuant to Rule 20(2)(d)(iii)  of the Working Procedures, this Notice of Appeal includes an 
indica tive list of the paragraphs of the Panel Report containing the alleged errors, without prejudice 
to Korea 's ability to rely on other paragraphs of the Panel Report in its appeal.  
4. Korea seeks review by the Appellate Body of the Panel 's expert selection. In particular, the 
Panel acted inconsistently with Article 11 of the DSU in selecting experts that had a conflict of interest 
in the matter.1 Korea requests the Appellate Body to find that in consulting such experts, the Panel 
acted inconsistently with Korea 's due process rights under Article 11 of the DSU. Since the 
Panel  relied on its consultations with such experts in its assessment under Articles 5.7, 5.6, and 2.3 
of the SPS Agreement2, Korea requests that the Appellate Body reverse the Panel 's findings un der 
these provisions, including in paragraphs 7.96, 7.108 -7.109, 7.111, 7.251 -7.256, 7.321 -7.322, 
7.349 -7.350, 7.355, 7.359 -7.360, 8.1, 8.2 b -e, and 8.3 a -b. 
5. Korea seeks review by the Appellate Body of the Panel 's findings under Article 5.7 of the 
SPS Agreement. The Panel erred in making findings under Article 5.7 even though the provision was 
not within its terms of reference.3 Korea requests the Appellate Body to find that, in proceeding in 
this manner, the Panel acted inconsistently with Articles 6.2, 7,  and 11 of the DSU.  
6. Korea also seeks review by the Appellate Body of the Panel 's interpretation and application of 
Article 5.7. In particular, the Panel erred in finding that:  
• Korea had the burden proof under Article 5.7.4 
• There was not insufficient scientific evidence to conduct a risk assessment with respect 
to the product specific import bans, the blanket import ban, and the extension of the 
additional testing requirements to fishery and livestock products in 2013.5 
• The 2013 blanket im port ban and the 2013 additional testing requirements were not 
based on pertinent available information.6 
• Korea did not review the measures within a reasonable period of time.7 
7. Korea also seeks review by the Appellate Body of the Panel 's analysis of whethe r the measures 
were based on pertinent available information  in light of Article 11 of the DSU . The Panel 's failure to 
                                                
 This document, dated 9 April 2018, was circulated to Members as document WT/DS495/8.  
 
1 See, for example, Panel Report, paras. 1.26, 1.27. and 1.28. 
2 See, for example, Panel Report, paras. 7.92, 7.93, 7.167 7.190, 7.195(e), 7.197, 7.199, 7.203, 7.205, 
7.206, 7.208, 7.209, 7.210, 7.216, 7.223, 7.230, 7.236, 7.238, 7.239, 7.243, and 7.315.  
3 See, for example, Panel Report, paras. 7.75, 7.93, 7.96, 7.107, 7.108, 7.109, 7.111 and 8.1.  
4 See, for example, Panel Report, para. 7.75.  
5 See, for example, Panel Report, paras. 7.93, 7.96, 7.108, and 7.111.  
6 See, for example, Panel Report, paras. 7.109 and 7.111.  
7 See, for example, Panel Report, paras . 7.107, 7.110, and 7.111.  WT/DS495/AB/R/Add.1  
 
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  make an objective assessment of the matter under Article 11 of the DSU includes the Panel 's 
internally contradictory reasoning in relatio n to the product -specific bans and the import ban.8 
8. Accordingly, Korea requests that the Appellate Body reverse the Panel 's findings, in 
paragraphs 7.75, 7.93, 7.96, 7.100, 7.106 -7.112, and 8.1. The Panel 's errors in interpretation and 
application under Ar ticle 5.7 also invalidated the Panel 's findings under Articles 2.3 and 5.6. As a 
consequence, Korea requests that the Appellate Body reverse the Panel 's findings under Article  2.3, 
in paragraphs 7.321 -7.322, 7.349 -7.350, 7.355, 7.359 -7.360, and 8.3 a -b, and under Article  5.6, 
in paragraphs 7.251 -7.256 and 8.2 b -e. 
9. Korea seeks review by the Appellate Body of the Panel 's interpretation and application of 
Article 5.6 of the SPS Agreement. Korea requests the Appellate Body to find that the Panel erred in 
the in terpretation and application of Article 5.6.9 The Panel 's errors under Article 5.6 include the 
findings that:  
• Japan had established that the suggested alternative measure achieves Korea's ALOP 
with regard to the adoption of the 2013 additional testing requ irements and import bans 
on the 28 fishery products, with the exception of Pacific cod from Fukushima and 
Ibaraki.10 
• Japan had established that its alternative measure would achieve Korea's ALOP with 
regard to the maintenance of all the measures.11 
10. According ly, Korea requests that the Appellate Body reverse the Panel 's findings, in 
paragraphs 7.251 -7.256, and 8.2 b -e, that Korea 's measures were more trade -restrictive than 
required to achieve their appropriate level of sanitary or phytosanitary protection with in the meaning 
of Article 5.6.  
11. Korea also seeks review of the Panel 's findings under Article 5.6 because the Panel applied an 
incorrect standard of review and therefore failed to make an objective assessment of the matter 
under  Article 11 of the DSU . The Panel 's failure to make an objective assessment of the matter 
included its consideration of evidence that was not available to the Korean authorities at the time of 
the adoption of the measures and consideration of data that did not exist at the time the P anel was 
established.12 
12. Accordingly, Korea requests that the Appellate Body reverse the Panel 's findings concerning 
the use of such evidence and data, in particular in paragraphs 7.5, 7.8, 7.134, 7.142, 7.207, 7.219, 
7.226, 7.236, and 7.245.  Since the Panel  relied on such evidence and data in its assessment under 
Article 5.6,  Korea further requests that the Appellate Body reverse the Panel 's findings that 
Korea ' SPS measures are inconsistent with Article 5.6 of the SPS Agreement, including in paragraphs 
7.251-7.256, and 8.2(b) -(e).13 
13. Korea seeks review by the Appellate Body of the Panel 's interpretation and application of 
Article 2.3 of the SPS Agreement. The Panel erred, inter alia , in finding that:  
• Similar conditions existed in Japan and in other Members with regard to the adoption of 
the 2013 additional testing requirements and of the blanket im port ban with respect to 
the 27  fishery products covered by Japan's claim and for Pacific cod originating from 
Aomori, Chiba, Gunma, Iwate, Miyagi, and Toc higi prefectures, and similar conditions 
existed in Japan and in other Members for all food products, including the 28 fishery 
products, with regard to the maintenance of Korea's measures.14  
                                                
8 See, for example, Panel Report, paras. 7.98, 7.100, 7.109 and 7.111.  
9 See, for example, Panel Report, paras. 7.172 -7.173.  
10 See, for example, Panel Report, paras. 7.251 and 7.253.  
11 See, for example, Panel Report, paras. 7.252 and 7.253.  
12 See, for example, Panel Report, paras. 7.4 -7.6, 7.129, 7.142, and 7.199 -7.200.  
13 See, for example, Panel Report, paras. 7.199, 7.200, 7.207, 7.219, 7.222 -7.223, 7.225 -7.226, 
and 7.235, 7.251 -7.256, and 8.2(b) -(e). 
14 See, for example, Pan el Report, paras. 7.321 and 7.322.  WT/DS495/AB/R/Add.1  
 
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  • The import ban and the additional testing requirements arbitraril y or unjustifiably 
discriminate.15  
• The 2013 additional testing requirements and the blanket im port ban with respect to the 
27 fishery products subject to Japan's claim from the 8 prefectures and  Pacific cod from 
6 prefectures, i.e. excluding Pacific cod fr om Fukushima and Ibaraki, were inconsistent 
with Article 2.3, first sentence of the SPS Agreement when Korea adopted them, and that 
by maintaining the product -specific and blanket import bans on the 28 fishery products 
from the 8 prefectures and the 2011 a nd 2013 additional testing requirements on 
Japanese products, Korea acted inconsistently with Article  2.3, first sentence of the 
SPS Agreement.16 
• Korea 's measures constitute disguised restrictions on international trade and thereby 
violate the second senten ce of Article 2.3 of the SPS Agreement.17 
14. Korea additionally requests that the Appellate Body find that the Panel failed to make an 
objective assessment of the matter and acted inconsistently with Article 11 of the DSU in considering 
evidence and data that was not available to the Korean regulator when the measures were adopted 
and evidence and data that post -dated the establishment of the Panel. As the Panel 's finding that 
similar conditions existed was based on such evidence and data, Korea requests the Ap pellate Body 
to reverse the Panel 's findings concerning the use of such evidence and data, in particular in 
paragraphs 7.5, 7.8, 7.134, 7.142, 7.307 -7.308, 7.311, 7.315, 7.319, as well as the ultimate 
findings of inconsistency with Article 2.3, in paragrap hs 7.321 -7.322, 7.355, 7.360, and 8.3 (a) 
and (b).18 
15. Accordingly, Korea requests that the Appellate Body reverse the Panel 's findings, in 
paragraphs 7.276, 7,283, 7.321 -7.322, 7.349 -7.350, 7.355, 7.359, 7.360, and 8.3 a -b, that 
Korea 's measures are inconsist ent with Article 2.3.  
16. Korea seeks review by the Appellate Body of the Panel 's interpretation and application of 
Article 7 and Annex B(1) and B(3) of the SPS Agreement. The Panel erred, inter alia , in finding that:  
• Annex B(1) requires that the content of t he regulation be published and that such 
publication must make the publication contain sufficient content that the importing 
Member will know the conditions, including specific principles and methods, that apply to 
its goods.19 
• Korea had not published the f ull content of the blanket import ban and the additional 
testing requirements.20 
• The 2011 and 2013 press releases announcing the additional testing requirements did 
not include content that is sufficient to enable an interested Member to know the 
conditions  that would be applied to its goods.21  
• Korea did not publish the measures in a manner so as to enable Japan to become 
acquainted with the challenged measures.22 
• Korea acted inconsistently with Annex B(1), as a conseq uence with Article 7 of the 
SPS Agreement, with respect to the publication of all of the challenged measures.23 
                                                
15 See, for example, Panel Report, paras. 7.349 -7.350, 7.355, 7.360, and 8.3 (a) and (b).  
16 See, for example, Panel Report, paras. 7.360 and 8.3(a) and (b).  
17 See, for example, Panel Report, paras. 7.359, 7.360, and 8.3(a)  and (b).  
18 See, for example, Panel Report, paras. 7.5, 7.8, 7.134, 7.142, 7.307 -7.308, 7.311, 7.315, 7.319, 
7.321 -7.322, 7.360, and 8.3(a) and (b).  
19 See, for example, Panel Report, paras. 7.461 and 7.464.  
20 See, for example, Panel Report, paras. 7.483, 7 .487, 7.492, and 7.496.  
21 See, for example, Panel Report, paras. 7.500 -7.501.  
22 See, for example, Panel Report, paras. 7.474, 7.476, 7.485, 7.487, 7.497, 7.500, and 7.501.  
23 See, for example, Panel Report, paras. 7.474, 7.476, 7.487, 7.499 -7.502, and 8.5(a ). WT/DS495/AB/R/Add.1  
 
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  • Korea 's SPS Enquiry Point 's failure to respond to Japan 's follow -up query in conjunction 
with its earlier failure to relate the answers and documents provided to their relevance  
for the questions Japan had posed, is sufficient to establish that Korea acted 
inconsistently with Annex B(3) and as a consequence Article 7 of the SPS Agreement.24 
17. Furthermore, Korea requests that the Appellate Body find that the Panel failed to make an 
objective assessment of the matter under Article 11 of the DSU, and thereby acted inconsistently 
with Article 11, in faulting Korea for not having provided archived links of web -pages.25 Accordingly, 
Korea requests the Appellate Body to reverse the Panel 's findings in paragraphs  7.474 -7.476, 7.485 -
7.487, 7.497 -7.502, and 8.5(a).  
18. Accordingly, Korea requests that the Appellate Body reverse the Panel 's findings, in 
paragraphs  7.464, 7.474 -7.476, 7.483, 7.485 -7.487, 7.492, 7.496 -7.502, 7.509, 7.518 -7.519, 
and 8.5 that Korea failed to publish the measures consistently with Article 7 and Annex B(1), and 
that Korea did not comply with Article 7 and Annex B(3).  
 
 
 
                                                
24 See, for example, Panel Report, paras. 7.518, 7.519 and 8.5(b).  
25 See, for example, Panel Report, paras. 7.474, 7.485, and 7.497.  WT/DS495/AB/R/Add.1  
 
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  ANNEX A -2 
JAPAN 'S NOTICE OF OTHER APPE AL 
Pursuant to Articles 16.4 and 17.1 of the DSU, Japan hereby notifies to the Dispute Settlement Body 
its decision to appeal to the Appellate Body certain issues of law covered in the Panel Report and 
certain legal interpretat ions developed by the Panel in the dispute Korea — Import Bans, and Testing 
and Certification Requirements for Radionuclides  (WT/DS495). Pursuant to Rule 23(1) of the 
Working Procedures for Appellate Review, Japan simultaneously files this Notice of Other Appeal with 
the Appellate Body Secretariat.  
Pursuant to Rule 23(2)(c)(ii)(C) of the Working Procedures for Appellate Review, this Notice of 
Appeal includes an indicative list of the paragraphs of the Panel Report containing the alleged errors, 
without prej udice to Japan's ability to refer to other paragraphs of the Panel Report in the context 
of its appeal.  
For the reasons to be further elaborated in its submissions to the Appellate Body, Japan appeals, 
and requests the Appellate Body to reverse, modify or  declare moot and of no legal effect, the 
findings, conclusions and recommendations of the Panel, with respect to the following errors of law 
and legal interpretations contained in the Panel Report:  
1. The Panel erred in the interpretation and application of  Articles 3.3, 3.4, 3.7 and 11 of the 
DSU, by disregarding timely -submitted evidence relating to the situation after the date of 
establishment of the Panel, when assessing whether Japan had made a prima facie  case that 
Korea's  additional testing requiremen ts and import bans were being maintained inconsistently with 
Articles 2.3 and 5.6 of the SPS Agreement.1  
2. The Panel erred in the application of Articles 2.3 and 5.6 of the SPS Agreement, by 
disregarding timely -submitted evidence relating to the situation a fter the date of establishment of 
the Panel, when assessing whether Japan had made a prima facie  case that Korea's additional testing 
requirements and import bans were being maintained inconsistently with Articles 2.3 and  5.6 of the 
SPS Agreement.2 
3. Should the Appellate Body, as a result of its consideration of the grounds for appeal addressed 
in paragraphs 1 and 2, consider that the Panel's errors in defining the temporal scope of its 
assessment of Japan's prima facie  case vitiate the Panel's ultimate findings under Articles 2.3 and  5.6 
of the SPS Agreement, Japan requests that the Appellate Body complete the analysis, and find that, 
in light of all timely -submitted evidence, including relating to the situation after t he date of 
establishment of the Panel, Korea's additional testing requirements and import bans are maintained 
inconsistently with Articles 2.3 and 5.6 of the SPS Agreement.3  
4. The Panel erred in the interpretation and application of Annex C(1)(a) of the SPS  Agreement, 
when it articulated the conditions under which domestic and imported products may be presumed 
to be "like" under Annex C(1)(a);4 when it found that likeness could not be presumed for purposes 
of Japan's claim under Annex C(1)(a);5 and when it f ound, therefore, that Japan had failed to 
establish that Korea acted inconsistently with Annex C(1)(a) and, as a consequence, with Article 8 
of the SPS Agreement .6 
_______________  
                                                
 This document, dated 16 April 2018, was circulated to Members as document WT/DS495/9.  
 
1 Panel Report, paras. 7.134 -7.143. 
2 Panel Report, paras. 7.134 -7.143.  
3 Panel Report, paras. 7.113 -7.256, 7.257 -7.360, 8.2(b), (c) and (e), and 8.3(b).  
4 Panel Report, paras. 7.394 -7.403.  
5 Panel Report, paras. 7.394 -7.403.  
6 Panel Report, paras. 7.409, 7.447, and 8.4.  WT/DS495/AB/R/Add.1  
 
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  ANNEX  B 
ARGUMENTS OF THE PAR TICIPANTS  
Contents  Page  
Annex  B-1 Executive summary of Korea 's appellant's submission  10 
Annex  B-2 Executive summary of Japan 's other appellant's submission  17 
Annex  B-3 Executive summary of Japan 's appellee's submission  22 
Annex  B-4 Executive summary of Korea 's appellee's submission  33 
 
 
 
 
 WT/DS4 95/AB/R/Add.1  
 
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  ANNEX  B-1 
EXECUTIVE SUMMARY OF  KOREA 'S APPELLANT'S SUBMISSI ON 
1. Korea appeals the Panel Report in Korea – Import Bans, and Testing and Certification 
Requirements for Radionuclides .1 The Panel made serious errors of law and legal interpretation, and 
failed to make an objective assessment of the matter, in finding that Korea 's measures are 
inconsistent with the Agreement on Sanitary and Phytosanitary Measures ( "SPS Agreement "). 
A. THE PANEL'S EXPERT SELECTION WAS INCONSISTENT WITH KOREA'S DUE PROCESS 
RIGHTS  
2. Korea first appeals the Panel 's expert selection.  Korea questioned the impartiality and 
independence of two of the experts that the Panel consulted.  Despite Korea raising such concerns, 
the Panel consulted these experts during the proceedings, and thus acted in violation of Korea 's due 
process rights.  
3. Dr. Patsy Thompson had written articles in which she had provided her own assessment of 
the risk posed by the Fukushima Dai -ichi Nuclear Power Plant ( "FDNPP ") accident.  This raised serious 
concerns as to whether she  would be able to provide fair and impartial advice to the panel.  
Dr. Thompson 's statements indicated her inherent bias and inclination to "pre-judge " the positions 
of the parties in the dispute.2 Dr. Lynn Anspaugh participated in the preparation of the Un ited Nations 
Scientific Committee on the Effects of Atomic Radiation ( "UNSCEAR ") report on the FDNPP  accident , 
which was specifically cited by Japan in support of its contention that there was no insufficiency in 
the scientific evidence that would justify discrimination against Japanese food products or that would 
render necessary the trade restrictions imposed on these products.3 Dr. Anspaugh was in effect 
called to review his own work and to compare his assessment with Korea 's assessment.  
Dr. Anspaugh als o assisted in preparing reports funded by the Japanese government regarding 
concerns about radiation effects.  
4. The standard set forth in Section VI.2 of the Rules of Conduct is strict.  Based on the concerns 
raised by Korea, the Panel should have concluded t hat Dr. Thompson and Dr. Anspaugh were not 
"independent and impartial ", and that they had "direct or indirect conflicts of interest " By consulting 
these experts, the Panel seriously undermined Korea 's due process rights.  Therefore, Korea requests 
the Appellate Body to find that, in consulting these experts, the Panel acted inconsistently with 
Article 11 of the DSU.  Since the Panel relied on its consultations with these experts in its assessment 
under Articles 5.7, 5.6, and  2.3 of the SPS Agreement, Korea requests that the Appellate Body 
reverse the Panel 's findings under these provisions.  
B. THE PANEL'S ERRORS IN RELATION TO ARTICLE 5.7 OF THE SPS AGREEMENT  
5. The Panel erred under Article 5.7 in several respects.  First, the P anel erred by making findings 
under Article 5.7 when Article 5.7 was not within the Panel 's terms of reference.  Japan did not raise 
a claim under 5.7.  The Panel nevertheless proceeded to make findings on whether Korea 's measures 
satisfy each of the require ments of Article 5.7.4 By making findings on claims that were not within 
its terms of reference, the Panel acted inconsistently with Articles 6.2, 7, and 11 of the DSU, and 
therefore these findings should be overturned by the Appellate Body.5  
6. Second, the Panel erred in finding that Korea bore the burden of proof under Article 5.7.6 
Article 5.7 establishes an autonomous right, and therefore it was for Japan to make an initial 
prima  facie case of inconsistency with that provision.7 The Panel reached its conc lusion based on an 
                                                
1 Panel Report, Korea – Radionuclides (Japan)  ("Panel Report "). 
2 Korea 's letter to the Panel, 13 June 2016.  
3 Panel Report, para. 7.82.  
4 Panel Report, paras. 7.111 -7.112, and 8.1.  
5 See Appellate Body Report, Chile – Price Band System , para. 173.  
6 Panel R eport, para. 7.75.  
7 See EC – Approval and Marketing of Biotech Products , paras. 7.3000 -7.3002.  WT/DS495/AB/R/Add.1  
 
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  erroneous reading of previous cases under Article 2.2 which explicitly allows the respondent to 
invoke Article 5.7 as an exception.  Korea did not invoke Article 5.7 as an exception to Article 2.2 
and never argued that its measures were e xcluded from Articles 2.3 or 5.6 by the operation of 
Article  5.7. The Panel 's approach also lacked even -handedness, since the Panel was mainly 
concerned about any impact on the complaining party and inappropriately assumed that the 
respondent party is not proceeding in good faith.  The Panel further erred in characterizing the legal 
question of whether there was insufficient scientific evidence to conduct an objective assessment of 
the risk as a "factual premise ".8 Since the Panel 's findings under Article 5. 7 were based on an 
incorrect allocation of the burden of proof, the Panel 's findings should be reversed.  The Panel 's 
approach, if accepted, would turn Article 5.7 into an exception.  
7. Third, the Panel erred in finding that there was not insufficient scientif ic evidence to conduct 
a risk assessment with respect to the measures imposed in 2013.9 Before the Panel, Korea identified 
several factors for which scientific evidence was insufficient.10 The Panel findings confirm that there 
were substantial deficiencies in the information with respect to these factors.11 Moreover, the Panel 
record confirms that the environmental and ecological conditions to which Korea referred were 
relevant to the Korean regulator 's ability to conduct a risk assessment.12  
8. Article 5.1 refe rs to an assessment of risk "as appropriate to the circumstances ". Article 5.2 
lists "relevant ecological and environmental conditions " as a factor to be considered in the 
assessment of risks.  The Panel, by failing to properly account for the deficiencies relating to 
ecological and environmental factors, took an overly narrow approach to a risk assessment, in 
contradiction to the Appellate Body 's guidance.13 Furthermore, in dismissing the significance of the 
continuing and potential leaks, the P anel effectively negated the possibility of Members to take 
preventive measures.14 For these reasons, as well as due to the Panel 's internally contradictory 
assessment of certain factual issues15, and its failure to take into account the limitations in the 
information about the status of the FDNPP16, Korea requests that the Appellate Body reverse the 
Panel 's findings that there was not insufficient scientific evidence to conduct a risk assessment with 
respect to the measures adopted in 2013.  
9. Fourth, the Panel incorrectly interpreted and applied the requirement for provisional 
SPS measures to be taken "on the basis of available pertinent information ". Article 5.7 requires "a 
rational and objective relationship between the information concerning a certain risk an d a Member 's 
provisional SPS measure ".17 The Panel adopted an incorrect standard that required the "available 
pertinent information " to be expressly mentioned in the challenged SPS measure.18 This overly 
narrow standard is inconsistent with the plain text of  Article 5.7 and with the Appellate Body 's 
understanding of this provision.  There is no requirement in the text of Article 5.7 that the "available 
pertinent information " be expressly identified in the SPS measure taken by the regulating Member 
or that the inquiry of a rational and objective relationship be limited to information about certain 
risks expressly mentioned in the SPS measure itself.  As the Panel reached its finding on the basis of 
this incorrect standard, Korea respectfully requests that the App ellate Body reverse the Panel 's 
finding that Korea has not demonstrated that the 2013 blanket import ban or the 2013 testing 
requirements were adopted on the basis of available pertinent information.  
10. Furthermore, the Panel erred by oversimplifying the req uirements under the CODEX 
STAN  193-1995, and essentially imposing an obligation on Members to base their SPS measures on 
the relevant international standard.19 If the Panel 's approach were accepted, Members would be 
precluded from adopting temporary import bans in emergency situations where an international 
standard exists.  The Panel also failed to make an objective assessment of the matter under Article  11 
                                                
8 Panel Report, para. 7.75.  
9 Panel Report, para. 7.96.  
10 Panel Report, para. 7.80.  
11 For example, Panel Report, paras. 2.46, 2.47, 2.52, 2.57, 2.59, and 2.62.  
12 Expert Meeting Transcript, paras. 1.5, 3.34, and 4.135.  
13 See Appellate Body Reports, US / Canada – Continued Suspension , para. 527.  
14 Panel Report, para. 7.95.  
15 Panel Report, paras. 2.63, 2.64, and 7.90 -7.91. 
16 Panel Report, para. 7.95.  
17 Appellate Body Reports, US / Canada – Continued Suspension , para. 678.  
18 Panel Report, para. 7.100.  
19 Panel Report, paras. 7.98 and 7.100.  WT/DS4 95/AB/R/Add.1  
 
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  of the DSU  because of internally contradictory reasoning in relation to the product -specific bans and 
the import ban.20 
11. Lastly, the Panel applied an incorrect test and erred in finding that Korea 's SPS measures were 
not reviewed within a reasonable period of time.21 The Panel ignored the standard set out by the 
Appellate Body that the "reasonable period of time " has to be established on a case -by-case basis, 
and depends on the specific circumstances of each case, including the difficulty of obtaining the 
additional inf ormation necessary for the review and the characteristics of the provisional 
SPS measure.22 Instead, the Panel relied on an incorrect interpretation developed by a previous 
panel23, according to which "a reasonable period of time would mean as quickly as leg ally possible 
while accepting legitimate reasons for delay ".24 The Panel gave no explanation as to why it was 
entitled to disregard the test articulated by the Appellate Body.  Consequently, the Panel did not 
properly assess the specific circumstances of the  case, and thus erred in its analysis.  For these 
reasons, Korea respectfully requests that the Appellate Body reverse the Panel 's finding that Korea 
did not review the measures within a reasonable period of time.25 
12. For these reasons, Korea requests the Appe llate Body to find that Article 5.7 was not within 
the Panel 's terms of reference.  Korea also requests the Appellate Body to reverse all the Panel 's 
findings under Article 5.7.  
C. THE PANEL ERRED IN FINDING THAT KOREA'S MEASURES WERE MORE TRADE -
RESTRICTIVE  THAN REQUIRED UNDER ARTICLE 5.6  
13. The Panel erred in finding under Article 5.6 that Korea 's measures are more trade -restrictive 
than required.  The Panel applied an incorrect ALOP in its assessment, and as a result erred in finding 
that Japan 's proposed alte rnative measure would meet Korea 's ALOP.   
14. The Panel initially correctly identified Korea 's ALOP as consisting of: (1) maintenance of 
radioactivity levels at levels that exist in the ordinary environment; (2) maintenance of levels of 
radioactive contaminati on in food "as low as reasonably achievable "; and (3) maintenance of levels 
of radioactive contamination in food as low as reasonably achievable below the 1 mSv/year radiation 
dose limit.26 The Panel also initially correctly concluded that Korea 's ALOP is n ot quantified at 
1 mSv per year.27 In its assessment, however, the Panel erroneously applied a quantitative standard 
of 1 mSv/year.28 The Panel considered that "if Japan can demonstrate that its proposed alternative 
measure can achieve an ALOP that is below 1 mSv/year it will have met its burden under the second 
element of Article 5.6 ".29 The Panel 's assessment was fundamentally flawed, as an examination into 
whether a measure fulfills a 1 mSv/year threshold is not an examination into whether that measure 
fulfills Korea 's ALOP.  
15. There is no requirement for Members to adopt a quantitative ALOP.30 Nevertheless, the Panel 
incorrectly found that "if a Member is applying a particular measure with an express quantitative 
limit for contaminants, that is an indicator that products containing levels of contaminants below 
that limit will satisfy its ALOP ".31 The Panel 's statement shows that it was incapab le of applying a 
qualitative ALOP.  If the Panel needed a practical indicator on the basis of which to make its 
determination, it could have relied on the ALARA approach adopted by CODEX STAN 193 -1995 which 
Korea had presented.32 The Panel, however, complete ly disregarded this approach, and instead 
relied on an incorrect quantitative approach.  As the Panel 's analysis is based on an incorrect 
standard, the Panel 's conclusion that Japan 's proposed alternative measure achieves Korea 's ALOP  is 
                                                
20 See, for example, Panel Report, paras. 7.98, 7.100, 7.109, and 7.111.  
21 Panel Report, para. 7.107.  
22 Appellate Body  Report, Japan – Agricultural Products II , para. 93.  
23 Panel Report, para. 7.102.  
24 Panel Report, para. 7.102 (referring to Panel Report, US – Animals , para. 7.301).  
25 Panel Report, paras. 7.107, 7.110 -7.111, and 8.1.  
26 Panel Report, paras. 7.171 -7.172.  
27 Panel Report, para. 7.247.  
28 See Panel Report, para. 7.173.  
29 Panel Report, para. 7.173.  
30 Panel Report, India – Agricultural Products , para. 7.562.  
31 Panel Report, para. 7.172.  
32 See Korea 's opening statement at the second substantive meeting of the Panel, paras. 76 -80. WT/DS495/AB/R/Add.1  
 
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  also incorrect.  Accordingly, Korea requests that the Appellate Body reverse the Panel 's findings that 
Korea 's measures were more trade -restrictive than required within the meaning of Article 5.6.   
16. Additionally, the Panel acted inconsistently with Article 11 of the DSU by app lying an incorrect 
standard of review.  The Panel took into consideration evidence presented by Japan that was not 
available to the Korean authorities at the time the measures were adopted.  The Panel also took into 
consideration data that did not exist at t he time the panel was established.  
17. A panel must not consider evidence which did not exist at the time a regulator makes its 
determination because a regulator cannot be faulted for not having taken into account what it could 
not have known when making its determination.33 Furthermore, once such measurements and 
analyses are available, the regulator must have an opportunity to consider and evaluate such 
analysis.34  
18. Accordingly,  the Panel should not have considered evidence that was not available to the 
Korean  authorities at the time the measures were adopted.  In addition, the Panel had to assess 
whether Japan had established that a violation existed on the date of Panel establishment.  The 
measurements taken after that day, and any analyses relying on those mea surements, are incapable 
of demonstrating that the breach of Article 5.6 had materialized at the time the Panel was 
established.35 At the very least, the Panel should have limited the scope of its assessment to evidence 
that related to the time period befor e its establishment.  The Panel should also not have considered 
conclusions made based on information that both post - and pre -dated its establishment.36 
19. The Panel, however, erroneously considered that it was free to accept any evidence.37 
Consequently, it took into consideration evidence that did not exist when the measures were 
adopted.38 By taking the evidence into consideration, the Panel conducted a de novo  review and 
exceeded its mandate under Article 11 of the DSU.  What is more, the Panel ended up conside ring 
evidence containing post -establishment data in its assessment .39 Korea requests that the 
Appellate  Body find that the Panel acted inconsistently with Article 11 in considering such evidence 
and data.  Since the Panel relied on such evidence and data in its assessment under Article 5.6, Korea 
further requests that the Appellate Body reverse the Panel 's findings that Korea ' SPS measures are 
inconsistent with Article 5.6 of the SPS Agreement.  
D. THE PANEL ERRED IN FINDING THAT KOREA 'S MEASURES ARBITRARIL Y OR 
UNJUSTIFIABLY DISCRIMINATE BETWEEN MEMBERS WHERE SIMILAR CONDITIONS 
PREVAIL UNDER ARTICLE 2.3  
20. The Panel erred in its interpretation and application under Article 2.3.  First, the Panel erred in 
its interpretation and application of "relevant conditions " under Article 2.3.  The text and context of 
Article 2.3 indicate that the term "conditions " must be understood to include any condition that may 
be "relevant " in the light of the nature of the measure at issue and the particular circumstances of 
the case,  as well as the policy objectives of the measure.  The relevant conditions in this case include 
the environmental and ecological conditions in Japan and the status of the FDNPP.  The ecological 
conditions and the status of the FDNPP were part of the particul ar circumstances of the case and 
thus properly inform the relevant conditions.40 The insufficiencies of the information about the 
ecological conditions in Japan, as well as about the status of the FDNPP, similarly were part of the 
relevant conditions.  
21. The Panel, however, applied an overly narrow test and only focused on the risk present in 
products as the relevant conditions.41 Even if the level of contamination of the products may be 
relevant in light of the regulatory objective, the Panel failed to explain  why it should be the defining 
standard and why all other circumstances or factors are irrelevant to defining the relevant conditions 
                                                
33 Appellate Body Report, US – Cotton Yarn , para. 78.  
34 See Panel Report, Russia – Pigs (EU) , para. 7.705; and Appellate Body Report, Russia – Pigs (EU) , 
para. 5.80.  
35 Panel Report, para. 7.130.  
36 Panel Report, US – Animals , para. 7.447.  
37 Panel Report, para. 7.5.  
38 Appellate Body Report, US – Cotton Yarn , para. 78.  
39 Panel Report, paras. 7.129 and 7.199 -7.200.  
40 Appellate Body Report, EC – Seal Products , para. 5.299.  
41 Panel Report, para. 7.276.  WT/DS4 95/AB/R/Add.1  
 
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  in this dispute.  Other than providing estimates of the release of some of the radionuclides, the Panel 
did not make an eff ort at assessing the levels of these radionuclides that were released from the 
FDNPP during the accident and after the accident.  Other than making an overly general statement 
that there would have been some dispersion42, the Panel did not engage in an asses sment of the 
dispersion of the radionuclides released during the FDNPP accident and after the accident.  The Panel 
failed to assess the different ways in which radionuclides released to the environment can 
contaminate agricultural and livestock products and  fish and other marine species in the context of 
the FDNPP.  Importantly, the Panel 's assessment did not take account of the continuing release of 
radionuclide contamination from the FDNPP, which constituted part of the relevant conditions in 
Japan.43 Theref ore, the Panel failed to take into account the character of the measures and the 
particular circumstances of the case by focusing almost exclusively on the product test data.  Because 
the Panel erred in the interpretation and application of "similar conditi ons" in Article 2.3, the 
Appellate Body must reverse all the Panel 's findings under Article 2.3.  
22. Second, the Panel erred in finding that Korea 's measures discriminate arbitrarily or 
unjustifiably under the first sentence of Article 2.3.  The record demonstr ates that Korea 's measures 
are properly calibrated to the differences in the relevant risks existing inside and outside Japan 's 
territory.  While Korea and the rest of the world are exposed to pre -existing contamination, the 
Japanese territory and surroundi ng sea was directly exposed to the contamination from the FDNPP 
in addition to the pre -existing contamination.44 The Panel itself found that certain differences in 
absolute concentration levels of caesium between Japanese and non -Japanese food products might 
justify some level of discrimination.45  
23. The Panel made a fundamental error in in its treatment of background contamination, and in 
dismissing the relevance of the Appellate Body report in EC – Hormones .46 Even the CODEX 
STAN  193-1995 relied o n by the Panel in its erroneous finding recognizes the distinction between 
the additional radionuclides and the pre -existing radionuclide contamination, and allows for 
regulatory intervention on the basis of this distinction.47 This confirms that any distin ctions that 
Korea draws between food contaminated with the additional radionuclides released from the FDNPP 
and food contaminated with pre -existing radionuclides does not constitute arbitrary or unjustifiable 
discrimination.  
24. The Panel should have analyzed the cause or the rationale of the discrimination to determine 
whether the reasons for the discrimination bore no  rational connection to the objective of the 
measure or when the reasons go against the objective.48 The Panel how ever applied an incorrect 
standard and required that the measure be exclusively concerned with its regulatory objective.49 
The Panel failed to recognize that there may be a rational connection between the reasons for the 
discrimination and the measure 's objective even where a measure pursues multiple objectives.  The 
Panel also erred in dismissing certain evidence provided by Korea relating to forging of origin 
certificates in Japan on the basis that Korea had not demonstrated a systemic failure in 
Japanese  monitoring and certification of food products.50 The Panel 's findings that the import ban 
and the additional testing requirements arbitrarily or unjustifiably discriminate are thus based on an 
erroneous interpretation and application of Article 2.3.  Accordin gly, Korea requests that the 
Appellate Body reverse the Panel 's findings that Korea 's measures discriminate arbitrarily or 
unjustifiably.  
25. The Panel further erred by relying on its erroneous findings under Articles 5.6 and 5.7 in 
concluding that Korea 's mea sures arbitrarily or unjustifiable discriminate under Article 2.3.51 As a 
consequence, reversal of the Panel 's findings under Articles 5.6 and 5.7 must also result in reversal 
of the Panel 's findings under Article 2.3.  
                                                
42 Panel Report, para. 7.291.  
43 Panel  Report, paras. 7.87 and 7.320.  
44 Korea 's first written submission, para. 190.  
45 Panel Report, para. 7.351.  
46 Panel Report, para. 7.335.  
47 Exhibit JPN -32. 
48 Appellate Body Report, Brazil – Retreaded Tyres , para. 227.  
49 Panel Report, paras. 7.344, 7.353, an d 7.354.  
50 Panel Report, para. 7.346.  
51 Panel Report, paras. 7.341, 7.343, 7.352, and 7.354.  WT/DS495/AB/R/Add.1  
 
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  26. Third, the Panel erred in finding that  Korea 's measures constitute disguised restrictions on 
international trade.  The Panel 's finding of disguised restriction is based exclusively on the Panel 's 
earlier finding that Korea 's measures are inconsistent with the first sentence of Article 2.3.52 
However, the first and second sentences of Article 2.3 of the SPS Agreement establish separate and 
distinct obligations.  The Appellate Body has suggested that similar factors could be considered in 
assessing whether a measure was applied in a manner that c onstituted a disguised restriction.53 
However, the Panel failed to assess to what extent this guidance by the Appellate Body under 
Article  XX of the GATT 1994 was applicable to Article 2.3 of the SPS Agreement.  Furthermore, 
contrary to the Panel 's erroneous  reading of the report54, the Appellate Body 's finding does not 
suggest that a panel may entirely dispense with the assessment of whether a measure constitutes 
a disguised restriction.55 A finding under the first sentence is insufficient, without more, to su stain a 
finding of violation of the second sentence.  Consequently, Korea requests that the Appellate Body 
reverse the Panel 's findings that Korea 's measures constitute disguised restrictions on international 
trade.  
27. The Panel also applied an incorrect stand ard of review and acted inconsistently with Article 11 
of the DSU by considering evidence that was not available to the Korean regulator at the time the 
measures were adopted, and by considering post -establishment data.  The Panel 's errors are similar 
to its errors explained above under Article 5.6.  Thus, Korea requests that the Appellate Body find 
that the Panel failed to make an objective assessment of the matter and acted inconsistently with 
Article 11 of the DSU.  As the Panel 's finding that similar condi tions existed was based on such 
evidence and data, Korea requests the Appellate Body to reverse this finding, as well as the ultimate 
findings of inconsistency with Article 2.3.  
E. The PANEL ERRED IN ITS INTERPRETATION AND APPLICATION UNDER ARTICLE 7 
AND A NNEX B  
28. Korea appeals the Panel 's finding that Korea acted inconsistently with Annex B(1) and Article  7 
with respect to the publication of the challenged measures.56  
29. The Panel erred in its interpretation by finding that Annex B(1) requires that the content of 
the regulation be published57, and that such publication must make the measures generally known 
or available through an appropriate medium and contain sufficient content that the importing 
Member will know the conditions, including specific principles an d methods, that apply to its goods.58 
Annex B(1) requires Members to publish promptly all sanitary and phytosanitary regulations "in such 
a manner as to enable interested Members to become acquainted with them ". It does not refer to 
any "conditions ", "specific principles ", or "methods " that must be published.  The Panel 's 
interpretation expanded the scope of the provision by effectively converting the language "to become 
acquainted with " into "to comply with ". Thus, the Panel interpreted Article 7 and Annex B(1) 
incorrectly by imposing additional obligations not included in the provision.  
30. The Panel also erred in finding that Korea did not publish the content of the blanket import 
ban.59 The information set out in the published press release included the origin of the products to 
which it applied, the nature of the measure (a ban on all imports), and the scope of the measure 
(fishery products), and thus provided all the necessary information for interested Members to 
become acquainted with the measures.  Contrary to the Panel 's finding, a reference to "all fishery 
products " is not vague, but rather clear in its scope.  The requirement to publish measures in such a 
manner as to enable interested Members to become acquainted with them does not require the 
publication of each and every HS code, as long as the product scope is defined.  
31. Furthermore, the Panel erred by finding that the 2011 and 2013 press releases announcing 
the additional testing requirements did not include sufficient content60 because they did not  refer to 
the levels of caesium or iodine that would trigger the additional testing, which specific radionuclides 
                                                
52 Panel Report, para. 7.359.  
53 Appellate Body Report, US – Gasoline , p. 25, DSR 1996:I, p. 3 at 23.  
54 Panel Report, para. 7.356.  
55 Appellate Body Report, US – Gasoline , p. 25, DSR 1996:I, p. 3 at 23.  
56 Panel Report, para. 8.5.  
57 Panel Report, para. 7.461.  
58 Panel Report, para. 7.464.  
59 Panel Report, paras. 7.483 and 7.487.  
60 Panel Report, paras. 7.500 -7.501.  WT/DS4 95/AB/R/Add.1  
 
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  will be tested, the maximum levels for those radionuclides61, or the procedure and location of the 
testing required for the additional radionuc lides.62 The press releases allowed interested Members 
"to become acquainted with " the measures and their requirements, consistently with Annex B(1).  
Furthermore, it was undisputed that Japan was acquainted with the measures, as Japan had 
expressly acknowle dged that it was aware of the measures63, had been complying with the 
measures, and had properly issued the certificate of origin of production for the food products from 
Japan.64  
32. In addition, the Panel erred in faulting Korea65 for not providing any evidenc e to demonstrate 
that at the time of adoption of the measures, interested Members would have known to look to the 
specific website for information66, and for not providing archived versions of the web links.67 In 
reaching its findings, the Panel set a standa rd of certainty, which is not called for in Annex B(1).  
Moreover, J apan had expressly acknowledged that it was aware of the measures.68 Based on the 
facts of the case, there was no doubt that Japan was acquainted with Korea 's measures.69 The Panel 
again appl ied a standard that does not stem from Annex B(1).  
33. Furthermore, the Panel acted inconsistently with Article 11 of the DSU by faulting Korea for 
not having provided archived versions of the webpages from the date of the publications.  Japan did 
not contest the date of publication.  
34. Finally, the Panel erred in its interpretation and application of Article 7 and Annex B(3) by 
finding that, because Korea 's SPS Enquiry Point did not respond to a request from Japan made on 
13 November 2014, it did not comply with  the obligation in Annex B(3).70 The obligation in Annex 
B(3) is for each Member to "ensure that one enquiry point exists ". Annex B(3) does not impose a 
strict liability standard.  It imposes an obligation to ensure that a Member 's respective enquiry point 
is given the responsibilities described therein, but is silent on the manner in which they function.  
Even if the manner in which an enquiry point functions or performs would be relevant under Annex 
B(3), at most a violation could be found if there existed a persistent failure to respond to requests 
so that the enquiry point was found not to be "responsibl e" for its functions.  The Panel erred in 
finding that a single omission to respond to a query amounts to a violation of Annex B(3).71 
35. For these reasons, Korea requests the Appellate Body to reverse the Panel 's findings under 
Article 7 and Annex B.72 
 
 
                                                
61 Panel Report, paras. 7.492 and 7.494.  
62 Panel Report, para. 7.494.  
63 Panel Report, paras. 7.475, 7.486, and 7.498.  
64 Korea 's first written submission, para. 388.  
65 Panel Report, paras. 7.474, 7.476, 7.485, and 7.497.  
66 Panel Report, paras. 7.474, 7.485, and 7.497.  
67 Panel Report, paras. 7.474, 7.485, and 7.497.  
68 Panel Report, paras. 7.475, 7.486, and 7.498.  
69 Panel Report, paras. 7.475, 7.486, and 7.498.  
70 Panel Report, para. 7.518.  
71 Panel Report, para. 7.518.  
72 Panel Report, para. 8.5.  WT/DS495/AB/R/Add.1  
 
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  ANNEX B -2 
EXECUTIVE SUMMARY OF  JAPAN 'S OTHER APPELLANT'S SU BMISSION 
I. THE PANEL ERRED IN E XCLUDING EVIDENCE SP EAKING TO THE POST -
ESTABLISHMENT FACTUA L SITUATION FROM ITS  ASSESSMENT OF JAPAN 'S PRIMA 
FACIE  CASE  
1. This appeal concerns a "cut -off" date adopted by the Panel for its assessment of Japan's prima 
facie case that the ma intenance of Korea's import bans and additional testing requirements are 
inconsistent with the continuing obligations in Articles 2.3 and 5.6 of the SPS Agreement . 
Specifically, Japan appeals the Panel's exclusion from its assessment of that prima facie case 
evidence speaking to the factual situation after the date of the Panel's establishment.1  
2. At the same time, the Panel found that it was entitled to consider evidence speaking to the 
post-establishment facts if such evidence (i) rebutted  the complainant's prima facie  case, or 
(ii) confirmed  the Panel's findings based on evidence speaking to the situation that existed at the 
time of establishment.2 
3. The Panel's findings on the temporal scope of its assessment of Japan's prima facie  case ent ail 
legal error in: (i) the interpretation and application of Articles 3.3, 3.4, 3.7 and 11 of the DSU, read 
in light of Articles 2.3 and 5.6 of the SPS Agreement ; and (ii) the application of Articles  2.3 and 5.6 
of the SPS Agreement .3 
4. While the dispute se ttlement provisions of the SPS Agreement  do not set forth any rules 
pertinent to the temporal scope of a panel's assessment of evidence, Articles 3.3, 3.4, 3.7 and 11 
of the DSU require a panel, when faced with a claim that the maintenance  of a measure is 
inconsistent with continuing obligations , to consider timely -submitted evidence relating to the factual 
situation after panel establishment.  
5. Under Article 11 of the DSU, the features of the temporal scope of a panel's assessment of 
the facts must take int o account the temporal scope of the obligations at issue .4 In this sense, the 
temporal scope of a panel's assessment of the facts is similar to a panel's standard of review under 
Article 11 of the DSU. The Appellate Body has long recognized that the nature  and intensity 
("standard") of a panel's review of the facts, including of the measure, depends on the particular 
WTO obligation at issue .5 In the words of the Appellate Body:  
…an "objective assessment" under Article 11 of the DSU must be 
understood in the  light of the obligations of the particular covered 
agreement at issue  in order to derive the more specific contours of the 
appropriate standard of review.6 
6. Thus, no single standard of review applies uniformly in each and every dispute. Instead, the 
"speci fic contours" of a panel's standard of review, under Article 11 of the DSU, are sensitive to the 
features of the particular matter: the objective assessment is "tailor made", and not "one size fits 
all". 
7. The same is true with respect to the temporal scope of a panel's assessment of the facts. In 
determining which facts are properly subject to assessment, a panel must take account of the 
features of the particular matter. In particular, the relevant obligation may apply at a particular point 
in time  (e.g. at the time of adoption of a measure); or it may impose obligations that continue over 
                                                
 Total word count: 2979  
1 Panel Report, Korea – Radionuclides (Japan)  ("Panel Report") , para. 7.141.  
2 Panel Report, para. 7.142.  
3 The Panel's interpretation is set out in Panel Report, paras. 7.136 – 7.143.  
4 The Panel appears to have agreed, having note d that "Japan is correct that any temporal limitations on 
the scope of the Panel's analysis must be based on the nature of the claims". Panel Report, para. 7.141.  
5 Appellate Body Report, US – DRAMs , para. 184. See also  Appellate Body Reports , US – Lamb , 
para. 105 and US – Cotton Yarn , paras. 74 -76. 
6 Appellate Body Report, US – DRAMs , para. 184.  WT/DS495/AB/R/Add.1  
 
- 18 - 
 
  time (e.g. throughout the lifetime of a measure).7 The "specific contours" of the temporal scope of 
a panel's assessment of the facts, under Article 11 of the DSU, must be  sensitive to these features 
of the matter.  
8. In the case of WTO obligations that apply at a particular moment in time , the evidence must 
relate to the consistency of the challenged measure at that point in time . For example, Article 5.7 
of the SPS Agreement  imposes certain obligations that apply at the time a measure is adopted. In 
addressing Article 5.7, the temporal scope of a panel's assessment of the facts must take account 
of this feature of the relevant ob ligation and assess the facts speaking to the situation at the time 
of the measure's adoption.  
9. In contrast, there are many WTO obligations that apply continuously over time . For example, 
Article III:4 of the GATT 1994 imposes a continuing obligation whereb y laws and regulations must 
not afford less favorable treatment to imported goods. A similar continuing obligation applies in 
Article 2.1 of the TBT Agreement . Article X:3(a) of the GATT 1994 imposes continuing obligations 
on ongoing administration.8 Article X:3(b) of the GATT 1994 imposes continuing obligations on the 
prompt review and correction of administrative action relating to customs matters. Article XI of the 
GATT 1994 imposes continuing obligations regarding quantitative restrictions. Article 2.2 of the 
TBT Agreement  imposes continuing obligations whereby regulations must not be more trade -
restrictive than necessary. Article 5 of the SCM Agreement  imposes continuing obligation whereby 
subsidies cannot cause adverse effects.  
10. Each of these continuing  obligations applies throughout the lifetime of a measure, from its 
adoption, to its withdrawal. A measure subject to one or more of these continuing obligations must 
be consistent with the obligation throughout its life. As a result, a complainant can sho w that the 
maintenance of a measure violates a continuing obligation based on current circumstances, 
irrespective of whether the measure violated the obligation earlier in its life.  
11. When a claim is made that the maintenance  of a measure violates a continui ng obligation, a 
panel cannot  be constrained to assess the facts as they stood at a particular point in time, such as 
at the adoption of the measure. The factual situation at adoption does not speak to whether the 
maintenance of the measure – until such ti me as it is withdrawn or modified – violates the continuing 
obligation. In examining whether the maintenance of a measure violates a continuing obligation, 
panels must assess all of the timely -submitted evidence that speaks to whether the maintenance of 
the measure, on an ongoing basis, violates the continuing obligation.  
12. Japan's interpretive approach is supported by a long line of cases. As Japan shows in its other 
appellant's submission, in many disputes, under a wide range of covered agreements, panels a nd 
the Appellate Body have endorsed assessment of post-establishment facts  in examining whether the 
maintenance of a measure violates a continuing obligation. To give one example here, the panel in 
US – Upland Cotton  noted that " [o]ur duty to make an objec tive assessment of the matter before 
us under Article 11 of the DSU actually requires us to examine recent data, including that which 
relates to the period after the date of establishment of the panel ".9  
13. The claims at issue in this dispute are made under Articles 2.3 and 5.6 of the SPS  Agreement. 
These two provisions establish obligations that apply on a continuing  basis to the maintenance  of an 
SPS measure throughout its lifetime.10 Accordingly, under Arti cle 11 of the DSU, when assessing 
whether the maintenance  of a challenged measure is inconsistent with these continuing  obligations , 
a panel must include in its assessment all timely -submitted evidence speaking to the continuing 
inconsistency.  
14. A panel can not a priori exclude from its assessment evidence, submitted in due time, that 
speaks to the most recent, post -establishment, factual situation. Excluding this entire category of 
evidence from assessment is inconsistent with the essential function of a pan el, which is to make an 
objective assessment of the "matter" by considering all of "the facts of the case", pursuant to 
Article  11 of the DSU.  
15. In this dispute, the Panel compounded its errors under Article 11 of the DSU in establishing 
the temporal scope of its assessment of the facts, because the Panel's assessment was one -sided. 
                                                
7 See Japan's Opening Statement at the Second Substantive Meeting, para. 13. Similarly, in Russia – 
Pigs, the panel noted that the temporal scope of the evidence s ubject to assessment varies depending on the 
substantive obligation at issue. Panel Report, Russia – Pigs, para. 7.178.  
8 See, e.g. Appellate Body Report, EC – Selected Customs Matters , para. 188.  
9 Panel Report, US – Upland Cotton , para. 7.193  (emphasis a dded) . 
10 Panel Report, para. 7.135.  WT/DS495/AB/R/Add.1  
 
- 19 - 
 
  Although the Panel decided to disregard Japan's evidence of post establishment facts in assessing 
Japan's prima facie  case, the Panel did assess Korea's evidence of post establis hment facts when 
provided to rebut Japan's prima facie  case. This shocking asymmetry in the temporal scope of the 
Panel's assessment is not "objective".   
16. Moreover, the exclusion by the Panel of evidence speaking to the most recent factual situation 
is inconsistent with the requirement to promote the "prompt", "satisfactory" and "positive" resolution 
of disputes, as set forth in Article 3 of the DSU. Article  3 emphasizes that the aim of dispute 
settlement is to provide a "prompt", "satisfactory" and "positive" resolution to a dispute, because 
this is "essential to the effective functioning of the WTO and the maintenance of a proper balance 
between the rights and obligations of Members".11  
17. The requirement to ensure "prompt", "satisfactory" and " positive " dispute resolution means 
that, in assessing claims regarding the maintenance of a measure with continuing obligations, a 
panel cannot exclude post -establishmen t facts pertinent to the maintenance of the measure. This is 
all the more so when the parties' disagreement – as in this dispute – relates to the measure's 
maintenance in the post -establishment period. In that case, if a panel fails to conduct its assessme nt 
of the facts, and of the measure's continuing inconsistency, in the light of the most recent disputed 
factual situation, the WTO dispute settlement system fails to deliver on the DSU's  commitment to 
the "prompt", "satisfactory" and "positive" resolution  of disputes.  
18. Japan, therefore, requests that the Appellate Body reverse the Panel's erroneous decision to 
disregard evidence relating to post -establishment facts when assessing whether Japan had 
established a prima facie  case that the maintenance of Kore a's measures is inconsistent with 
Articles  2.3 and 5.6 of the SPS Agreement.  
19. Despite excluding from its assessment of Japan's prima facie  case any evidence speaking to 
the factual situation after the time of establishment, the Panel ultimately found that t he maintenance 
of Korea's import bans and additional testing requirements is inconsistent with the continuing 
obligations in Articles 2.3 and 5.6 of the SPS Agreement.12  
20. The Panel's errors in establishing an incorrect cut -off date for its assessment of Jap an's prima 
facie case do not vitiate the Panel's ultimate findings under those provisions. In its findings under 
Articles 2.3 and 5.6, the Panel found that the evidence relating to pre-establishment  facts was 
sufficient to make Japan's prima facie  case. In  making its findings on that prima facie  case, the Panel 
also considered evidence relating to post -establishment facts, either because it confirmed 
Japan's  prima facie  case, or because it supported Korea's rebuttal.  
21. Thus, the Panel's ultimate findings unde r Articles 2.3 and 5.6 of the SPS Agreement were 
made in light of all of this timely -submitted evidence. Accordingly, the Panel did not err in making 
its ultimate findings under Articles 2.3 and 5.6 of the SPS Agreement.  
22. Should the Appellate Body nonethel ess decide that the Panel erroneous "cut -off" date for its 
assessment of Japan's prima facie  case vitiates the Panel's ultimate findings under Articles 2.3 
and 5.6, Japan requests that the Appellate Body complete the analysis, and find that the 
maintenance  of Korea's import bans and additional testing requirements violates the continuing 
obligations in Articles 2.3 and 5.6 of the SPS Agreement . 
23. In so doing, the Appellate Body should rely on all of the relevant factual findings of the Panel, 
regardless of wh ether they related to: (1) pre -establishment facts that supported Japan's prima facie  
case; (2) pre - and post -establishment facts that supported Korea's rebuttal; or (3)  post-
establishment facts that confirmed Japan's prima facie  case.  
24. Finally, Japan wish es to emphasize that its appeal regarding the temporal scope of the Panel's 
assessment relates to the findings that Korea's measures are maintained  contrary to Articles 2.3 
and 5.6 of the SPS Agreement . Japan's appeal does not relate to the Panel's finding s under those 
provisions regarding adoption of the challenged measures.13 
II. THE PANEL ERRED IN T HE ARTICULATION AND APPLICATION OF THE P RESUMPTION 
OF LIKENESS UNDER AR TICLE 8 AND ANNEX C( 1)(A) OF THE SPS AGREEMENT  
25. This appeal relates to the conditions under w hich a panel may presume that domestic and 
imported products are "like" under Annex C(1)(a) of the SPS Agreement , on the basis that a 
                                                
11 DSU, Article 3.3.  
12 Panel Report, paras. 8.2(b), (c) and (e), and 8.3(b).  
13 See Panel Report, paras. 8.2( a), 8.2(c), 8.2(d), and 8.3(a).  WT/DS495/AB/R/Add.1  
 
- 20 - 
 
  respondent's measure distinguishes between the products using origin as the sole criterion of 
distinction.  
26. Under Article 8  and Annex C(1)(a), Japan challenged Korea's pre -market additional testing 
requirements  ("additional testing requirements").14 Pursuant to this measure, Japanese food 
products that contain between 0.5 and 100 Bq /kg of caesium are subject to burdensome additional 
testing, but Korean food products containing between 0.5 and 100 Bq/kg of caesium are not subject 
to such testing.   
27. According to long -standing case law, a presumption of likeness arises if a measure, by i ts 
terms, distinguishes between products using origin as the sole expressed criterion of distinction.15 
Given that the additional testing requirements  use origin as the sole criterion to distinguish between 
identical Korean and Japanese products, Japan argu ed that likeness may be presumed.  
28. The Panel agreed that "the challenged measures only apply to Japanese products ".16 The Panel 
did not find that the measure uses any criterion, other than origin, to distinguish between products.  
29. Nonetheless, the Panel wrong ly declined to presume the likeness of Korean and Japanese 
products that are identical in all respects, except origin.17 The Panel declined to presume likeness 
because Korea asserted that its justification or "rationale for adopting the measure"  included he alth 
concerns.18 The Panel referred to " concerns other than origin [that] underpin Korea's measures ".19 
The Panel "accept[ed] Korea's explanation that origin was not the sole ground considered [by the 
regulator] when the distinction was drawn ".20  
30. The Panel t hereby strayed beyond consideration of whether Korea's measure , by its terms, 
expressed origin as the sole criterion for distinguishing between domestic and imported products. 
Instead, the Panel held that the legal standard required that it consider the Ko rean regulator's 
motivations and concerns – "grounds" and "rationale" – "underpin[ning]" its decision to adopt the 
measure. If the underlying "rationale" for an origin distinction includes factors other than origin, the 
Panel found that the presumption of likeness does not apply.  
31. Thus, even though the challenged measure, by its terms, expressed origin as the sole criterion 
of distinction, the Panel refused to apply the presumption of likeness, because the "rationale for 
adopting the measure" included non -origin factors.  
32. In so doing, the Panel erred in its interpretation and application of the term "like", and, in 
particular, the legal standard for presuming likeness. The pertinent considerations for deciding 
whether to apply the presumption of likeness are t he terms of the measure itself , and whether the 
measure expresses origin as the sole criterion for distinguishing between domestic and imported 
products. If a measure – such as Korea's additional testing requirements – expresses origin as the 
sole criterio n of distinction, likeness may be prima facie  presumed.  
33. When the motivations and concerns "considered" by a regulator in adopting a measure are 
not expressed in a criterion of distinction used in the measure, they do not prevent a presumption 
of likeness f rom arising on a prima facie  basis. Rather, such motivations and concerns may be 
pertinent to other parts of the legal standard under the second clause of Annex C(1)(a). For example, 
at a subsequent step of the analysis, a regulator's health concerns may j ustify differential treatment 
arising from the measure's use of origin as the sole criterion for distinguishing between identical 
domestic and imported products.  
34. Further, although the Panel entertained Korea's "explanation" that the Korean regulator 
consid ered the "health risks"21 posed by Japanese products when it made its decision to distinguish 
them from Korean products, the Panel wrongly refused to address Japan's counter -argument that 
the products did not differ in terms of "health risks".  The Panel had  already found that Japanese 
products did not differ in terms of "health risks" under Articles 2.3 and 5.6. Under Article 2.3 of the 
SPS Agreement , the Panel found that "health risks" did not support  the distinction drawn between 
                                                
14 Panel Report, Table 9, p. 92, ("If caesium or iodine is more than 0.5 Bq/kg, additional testing for at 
least strontium and plutonium").  
15 Panel Report, para. 7.394.  
16 Panel Report, para. 7.397  (emphasis added) . 
17 Panel Report, para. 7.397.  
18 Panel Report, para. 7.401  (emphasis added) . 
19 Panel Report, para. 7.399, first sente nce (emphasis added) . 
20 Panel Report, para. 7.402  (emphasis added) . 
21 See, e.g. Korea's second written submission, para. 385.  WT/DS495/AB/R/Add.1  
 
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  Japanese and Korean food p roducts, and that this distinction amounted to arbitrary and unjustifiable 
discrimination and a disguised restriction on international trade.22 
35. Yet, in declining to find that Korean and Japanese products were "like" under Annex C(1)(a), 
the Panel uncritical ly accepted Korea's assertion that health concerns motivated the distinction 
drawn between the products, without accounting for Japan's response.23 
36. Accordingly, Japan requests the Appellate Body to: find that the Panel erred in interpreting 
and applying Ann ex C(1)(a) of the SPS Agreement ; reverse the Panel's finding that Japan has failed 
to establish that Korea acted inconsistently with Annex C(1)(a); and reverse the Panel's 
consequential finding that Japan failed to establish that Korea acted inconsistently  with Article 8 of 
the SPS Agreement . 
 
 
 
 
                                                
22 Panel Report, paras. 7.351 -355. 
23 Panel Report, paras. 7.399 and 7.402.  WT/DS495/AB/R/Add.1  
 
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  ANNEX B -3 
EXECUTIVE SUMMARY OF  JAPAN 'S APPELLEE'S SUBMISSIO N 
I. INTRODUCTION  
1. This dispute concerns a series of highly trade -restrictive and discriminatory import bans and 
testing requirements that Korea applies uniquely to Japanese food products. Korea took these 
measures ostensibly to address the health risks purportedly arising from the contamination of these 
products by radionuclides. The Panel found that these measures violate Articles 2.3 (discrimination), 
5.6 (unnecessarily trade -restriction), and 7 (transparency) of the SPS Agreement, as well as 
Annex  B(1) (publication) and B(3) (SPS enquiry point) of that Agreement . 
2. In a sweeping appeal, Korea contests each of the Panel's adverse findings. Indeed, the only 
Panel findings that are exempt from Korea's appeal are those under Annex C of the SPS  Agreement, 
which were favourable to Korea.  
3. In essence, through this i ndiscriminate appellate strategy, Korea seeks to reargue the case, 
largely recycling the unsuccessful legal and factual arguments made to the Panel. In advancing these 
arguments, Korea consistently mischaracterizes Panel findings that were reached followin g a careful 
examination of all the issues.  
4. Korea asserts that the Panel made errors in the interpretation and application of the law, and 
in its assessment of the facts. Here, again, Korea has been indiscriminate, often failing to make clear 
which arguments pertain, respectively, to interpretation,  application, and assessment.  
5. Indeed, a reader of Korea's appeal often struggles to discern whether a particular argument 
relates to the interpretation or application of the law, or to the assessment of the facts. In many 
instances, where Korea makes a cl aim of error in the application of the law, it presents arguments 
regarding the assessment of the facts, even using the language of an appeal under Article 11 of the 
DSU. An appellant chooses for itself how to categorize its claims on appeal. Those choices  have 
consequences. Korea cannot evade the legal standard under Article 11 of the DSU by presenting a 
claim regarding the Panel's factual assessment as an error in the application of the law.  
6. Korea's main grievance with the Panel's findings – which recurs throughout its appeals under 
Articles 2.3, 5.6, and 5.7 of the SPS Agreement – concerns the weight that the Panel attached to 
environmental conditions relating to Japan's territory. For Korea, its measures are justified because 
Japan suffered a major nucle ar accident and, allegedly, there remain uncertainties relating to 
environmental contamination on Japan's territory, in particular near the FDNPP site.  
7. Korea presents a string of uncertainties, regarding: the radionuclides that remain in the FDNPP 
reactors ; the level of contamination in storage tanks, sea water and sea sediment near the FDNPP 
site; and, past, present, and future leaks of contaminated water from these storage tanks to the 
sea. Korea argues that the Panel erred as a matter of both law and fac t, and in its factual assessment, 
because it did not attach more importance – indeed, decisive weight – to these environmental 
factors.  
8. The reader of Korea's Appellant's Submission might form the mistaken impression that the 
Panel did not address these env ironmental factors. In fact, the Panel considered all of these factors, 
and many others.  
9. Unlike Korea, the Panel did not do so on a haphazard basis. Instead, it did so in a principled 
manner, in light of the particular obligations at stake, as well as Kore a's objectives and the SPS risks 
that its measures address. As Korea acknowledged, the objective of Korea's measures is to protect 
                                                
 Total word count: 6571  WT/DS495/AB/R/Add.1  
 
- 23 - 
 
  its consumers from the health risks arising from the consumption of food contaminated with man -
made radionuclides . 
10. The fact t hat the SPS risk relates to food has consequences for the relevance of environmental 
conditions. The latter are not relevant in and of themselves. Take, for example, the radionuclide 
content of the nuclear reactors at the FDNPP site, or of sea sediment or sea water at the FDNPP  port. 
In itself, evidence on these issues does not address the SPS risks facing Korean consumers of 
Japanese food. Japan does not, for example, export canned sea sediment or bottled sea water from 
the FDNPP port.  
11. As a matter of both law and fact, the Panel correctly appreciated that the weight ascribed to 
environmental conditions in an exporting country depends on the extent to which they have a 
bearing on the importing country's particular SPS objectives.1 In some cases, they ma y have more 
relevance and in others less. Further, whenever territorial conditions are examined, it is because 
they are relevant to "addressing risks of products  in international trade ".2 
12. To that end, the Panel explored the weight to be ascribed to a varie ty of factors. The Panel 
emphasized that it would "assess the totality of the evidence  provided to the Panel, without any 
single element being dispositive ".3 Across the Panel's reasoning, it assessed a range of factors 
relating to both the environment and food, and the relation between the two.  
13. Although Korea wishes that the Panel had ascribed preponderant weight to environmental 
conditions in Japan, it has failed to identify any errors in the Panel's interpretation and application 
of the law, or in its fac tual assessment. Against this background, Japan now turns to summarize its 
arguments on Korea's specific claims of error.  
II. THE PANEL DID NO T ERR UNDER ARTICLE 11 OF THE DSU IN SEL ECTING EXPERT  
14. Pursuant to Article 11.2 of the SPS Agreement, the Panel app ointed five experts to provide 
advice on scientific issues. Of these five experts, Korea raises objections with regard to two, namely: 
Prof. Lynn Anspaugh and Dr. Patsy Thompson. Korea asserts that the Panel violated Korea's due 
process rights, under Artic le 11 of the DSU, by appointing these two experts, who were not, it says, 
"independent" and "impartial".4 
15. Korea objected ten of the fifteen potential experts that the Panel proposed, including 
Prof. Anspaugh and Dr. Thompson. Further , although Korea reques ted that the Panel appoint experts 
in "radionuclides in marine environments",5 it objected to every  expert proposed in this field, 
including both Prof. Anspaugh and Dr. Thompson .6 
16. Korea objected to the appointment of Prof. Anspaugh  because he "participated  in the 
preparation of the UNSCEAR report on the accident at Fukushima Dai -ichi".7 Korea alleged that 
Dr. Thompson  had "written articles in which she ha [d] provided her own assessment of the risk 
posed by the FDNPP".8  
17. While the Panel accommodated Korea's desire to exclude a number of the proposed experts, 
it refused to exclude Prof. Anspaugh and Dr. Thompson.  
18. Korea contends that the Panel erred. In its appeal, Korea recalls that it had " questioned the 
impartiality and independence  of two of the experts that the Panel consulted".9 It continues:  
                                                
1 See e.g. Panel Report, paras. 7.89 and 7.93.  
2 Panel Report, para. 7.270 . (emphasis and underlining added)  
3 Panel Report, para. 7.289 . (emphasis added)  
4 Korea's Appellant's Submission, Section III.  
5 Korea's Letter to the Panel dated 2 May 2016, p. 2.  
6 Panel Co mmunication to the Parties dated 15 July 2016, p. 2 . (emphasis added)  
7 Korea's Letter to the Panel dated 13 June 2016, p.5.  
8 Korea's Letter to the Panel dated 13 June 2016, p. 3.  
9 Korea's Appellant's Submission, para. 34 . (emphasis added)  WT/DS495/AB/R/Add.1  
 
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  Despite Korea raising such concerns , the Panel consulted these experts 
during the proceedings, and thus acted in  violation of Korea's due process 
rights .10 
19. A panel does not, however, violate a respondent's due process rights simply by selecting an 
expert, "[d]espite" the respondent's objections. A panel cannot totally defer to a respondent's 
objections.11 Indeed, such  deference would allow a respondent to frustrate a panel's ability to 
appoint experts. Instead, a  panel must reject an expert solely when there is an "objective basis" to 
entertain "justifiable doubts" as to the expert's independence or impartiality.12 
20. The Appellate Body has held that a panel cannot select an expert who has previously authored 
an assessment of the SPS risk at issue in the dispute.13 As regards Prof. Anspaugh, the Panel found 
that the 2013 UNSCEAR report "was not an assessment of the risks ari sing from human consumption 
of radionuclides in food products ".14 With respect to Dr. Thompson, Korea alleged that she had 
authored articles providing "her own assessment of the risk posed by the FDNPP".15 However, Korea 
failed to " provide citations to such articles ".16 As regards two identified articles, the Panel found that 
neither assessed the SPS risks arising from consumption of Japanese food products. Korea has not 
explained why the Panel erred in making these findings.  
III. THE PANEL DID N OT ERR IN MAKING ITS FINDINGS UNDER ARTICLE 5.6 OF  THE 
SPS AGREEMENT  
21. Japan claimed under Article 5.6 that Korea's measures were more trade -restrictive than 
necessary to achieve  Korea's "appropriate level of [SPS] protection" ("ALOP"). The Panel agreed.  
22. Korea appeals  the Panel's findings on the ALOP. It asserts that, although the Panel correctly 
formulated the ALOP, it misapplied the ALOP in finding that Japan's alternative measure achieves 
Korea's chosen level of protection. Korea argues that, "although the Panel ini tially accepted Korea's 
ALOP, it effectively substituted in its analysis Korea's ALOP with an incorrect quantitative standard 
of 1 mS/year".17  
23. The Panel accepted and quoted Korea's own formulation of its ALOP:  
to maintain radioactivity levels in food consumed by Korean consumers at 
levels that exist in the ordinary environment – in the absence of radiation 
from a major nuclear accident – and thus  maintain levels of radioactive 
contamination in food that are "as low as reasonably achievable" (ALARA), 
below the 1 mSv/year radiation dose limit .18 
24. Korea's formulation recognizes that its ALOP comprises three inter -related prongs : (1) the 
levels that exi st in the ordinary environment; (2) the ALARA principle; and (3) the quantitative dose 
exposure threshold of 1 mSv/year.  
25. In ascertaining Korea's ALOP, the Panel had to clarify the relationship between the three 
prongs, which Korea had not explained. In do ing so, the Panel assessed the relevant evidence. On 
appeal, Korea contends that, in assessing the three prongs, the Panel misunderstood the role of the 
                                                
10 Korea's Appe llant's Submission, para. 34 . (emphasis added)  
11 See Appellate Body Report, EC – Hormones , para. 117. See also Appellate Body Report, US/Canada – 
Continued Suspension , paras. 439 -446. 
12 Appellate Body Reports, US/Canada – Continued Suspension , para. 454 . (emphasis added)  
13 Appellate Body Reports, US/Canada – Continued Suspension , para. 479. 
14 Panel Report, para. 1.26 (emphasis and underlining added).  
15 Panel Communication to the Parties dated 15 July 2016, pp. 2 -3. (emphasis added) See also Panel 
Report, para. 1.27.  
16 Panel Communication to the Parties dated 15 July 2016, pp. 2 -3. (emphasis added) See also Panel 
Report, para. 1.27.  
17 Korea's Appellant's Submission, para. 184.  
18 Panel Report, para. 7.172, quoting Korea's opening statement at the second panel meeting, para. 66 . 
(underlining original)  WT/DS495/AB/R/Add.1  
 
- 25 - 
 
  ordinary environment and ALARA, and "focus[ed] solely on a quantitative threshold" of 1 mSv/year.19 
Korea errs.  
26. The Panel found that the role of the first two prongs (ordinary environment/ALARA) was to 
inform Korea's determination of the third prong (dose exposure limit).  
27. As regards the first prong , the dose exposure limit of 1 mSv/year was set in light of  its 
relationship to levels of radiation in the "ordinary environment". The Panel found that 1 mSv/year 
constituted a "minor addition"20 to levels of radiation in the "ordinary environment".  
28. As to the second prong , the Panel found that ALARA is merely a "p rocess" tool, and not an 
"end point". The Panel concluded that Korea had "used" ALARA as part of a "process" that led to the 
establishment of its dose exposure limit of 1 mSv/year.21 Indeed, as a "process", ALARA was not apt 
to serve as an ALOP because it d id not define a particular " level of protection".  
29. Concerning the third prong , the Panel recorded that Korea "acknowledges" its adoption of a 1 
mSv/year dose exposure limit for man -made radionuclides in food, and that the limit serves to 
"quantify" the expo sure Korea "is willing to accept" "for the general public".22 
30. The Panel also assessed the ALOP " actually being applied " in Korea's measures.23 The Panel 
found that Korea "has established" a dose exposure limit of 1 mSv/year, which it used in its own 
measures . Logically, as the Panel held, this indicates that an alternative measure meets the ALOP if 
it also ensures that dose exposure from food remains below that same limit.24 
31. Although Korea asserts that the Panel placed too much weight on Korea's 1 mSv/year dose 
exposure limit, and not enough on the "ordinary environment" and ALARA, it has failed to offer any 
explanation how the Panel erred in examining  the relationship between  these three prongs of the 
ALOP. Japan can see no error in the Panel's examination.  
IV. THE PANEL DID NO T ERR IN MAKING ITS FINDINGS UNDER ARTIC LE 2.3 OF THE 
SPS AGREEMENT  
32. Japan claimed under Article 2.3 that Korea's measures involved arbitrary or unjustif iable 
discrimination and a disguised restriction  on international trade. The Panel agreed.  
33. Korea appeals the Panel's findings that: (1) "similar conditions" prevailed in respect of food 
products from Japan and elsewhere; (2) the discrimination  against Japa nese products is arbitrary 
and unjustifiable, and involves a disguised restriction on international trade.  
A. The Panel did not err in finding that "similar conditions" prevail  
34. As an interpretive matter, the Panel found that the relevant "conditions" under  Article 2.3 
must be identified in light of the respondent's regulatory objectives  in the challenged measure and 
the SPS risks it addresses . 
35. Korea does not seem to object. Indeed, it agrees that "the relevant conditions should be 
informed by the regulatory  objective of the challenged measures".25 
36. However, Korea alleges that the Panel erred by failing to interpret the word "conditions" to 
include all "potentially relevant" "factors facing a country".26 This argument does not withstand 
scrutiny. The Panel's int erpretation recognizes that any "conditions" may be relevant, depending on 
the measure's objectives and the SPS risk it addresses. No "conditions" are excluded.  
                                                
19 Korea's Appellant's Submission, para. 191.  
20 Panel Report, para. 7.170.  
21 See Panel Report, para. 7.166.  
22 Panel Report, paras. 7.161 and 7.165.  
23 Panel Report, para. 7.158 . (emphasis added)  
24 Panel Report, para. 7.17 2. 
25 Korea's Appellant's Submission, para. 268.  
26 Korea's Appellant's Submission, paras. 249 and 250.  WT/DS495/AB/R/Add.1  
 
- 26 - 
 
  37. Korea's grievance is that the Panel did not attach preponderant weight to conditions relating 
to Japan's "territory". The Panel noted that this word in Article 2.3 is qualified by the word 
"including", which indicates that the "territory" is merely " one example  of conditions that could be 
compared, but it does not preclude that other conditions coul d be compared as well ".27 The role of 
territorial conditions will vary, depending on "circumstances", in particular, the SPS risk "addressed 
by the challenged measures".28 
38. Korea also takes issue with the Panel's reliance on Articles I:1, III:4, and XX of the  GATT 1994 
as context. Korea ignores that, in relying on this context, the Panel followed the Appellate Body.29 
Further, the Panel used this context to support the unremarkable proposition that the SPS 
Agreement and the GATT 1994 "focus" on "trade in goods" . 
39. Korea contends that the Panel allows "circumvention" of Article 4.1 of the SPS Agreement. 
Article 2.3 cannot, however, circumvent Article 4.1 because, as the Panel found, they address 
"different" issues. The former addresses the way in which an importing  Member applies its own 
SPS measures , whereas the latter addresses whether an exporting Member's SPS measures are 
"equivalent" to those of the importing Member .  
40. In applying the legal standard, the Panel found that the relevant "conditions" are "whether 
products from Japan and the rest of the world have a similar potential to be contaminated with the 
20 Codex radionuclides" and whether these levels would be below Korea's respective threshold 
levels.30 It then determined that similar conditions pre vailed.31 
41. Korea alleges that the Panel erred in application because, in identifying the relevant 
"conditions", it "focused exclusively on 'the risk present in the products'",32 and treated 
environmental and ecological conditions as "irrelevant".33 Korea is in correct.  
42. The Panel emphasized that it would "assess the totality of the evidence  provided to the Panel, 
without any single element being dispositive ."34 The Panel found that food products from Japan and 
the rest of the world have the same risk  of containing  the relevant radionuclides at levels above 
Korea's thresholds. In so doing, the Panel explored a wide range of evidence in detail, considering 
it in light of the measure's objective of protecting consumers against risks from food contaminated 
with radionu clides. This evidence included factors relating to the environment, ecology, and food.35  
43. The Panel did not, therefore, "focus[] exclusively on 'the risk present in the products'",36 or 
treat environmental and ecological conditions as "irrelevant", as Korea says.37 Korea may wish that 
the Panel had ascribed more weight to evidence relating these two conditions but it has not presented 
an appeal to that effect.  
B. The Panel did not err in finding "arbitrary or unjustifiable discrimination" and a 
"disguised restriction on international trade"  
1. Arbitrary or unjustifiable discrimination  
44. The Panel found that Korea's measures entail "arbitrary or unjustifiable" discrimination against 
Japane se products, because the discrimination was not rationally connected to the measure's 
SPS objective.38 Korea claims that the Panel erred both in interpreting and applying Article 2.3.  
                                                
27 Panel Report, para. 7.267 (emphasis added).  
28 Panel Report, para. 7.270.  
29 Appellate Body Report, Australia – Salmon , para. 251.  
30 Panel Report, para. 7.283.  
31 Panel Report, para. 7.322.  
32 Korea's Appellant's Submission, para. 268.  
33 Korea's Appellant's Submission, para. 269.  
34 Panel Report, para. 7.289 . (emphasis added)  
35 See e.g. Panel Report, paras. 2.1 -2.11, 7.183 -7.190, 7.196 -7.199, 7.205 -7.209, 7.220 -7.237, and 
7.290 -7.315.  
36 Korea's Appellant's Submission, para. 268.  
37 Korea's Appellant's Submission, para. 269.  
38 Panel Report, para. 7.355.  WT/DS495/AB/R/Add.1  
 
- 27 - 
 
  45. In one argument, Korea objects to the Panel's "rational connection" stan dard. Korea seems to 
believe that arbitrary and unjustifiable discrimination arises solely if there is " no rational connection". 
If there is some  rational connection, discrimination is not, it says, arbitrary and unjustifiable.39 Korea 
appears to believe th at, if " some  level of discrimination" might be justified, the particular  level of 
discrimination in the measures at issue  is necessarily  justified.40 
46. Korea errs. The particular level of discrimination under the measure at issue must be 
"calibrated "41 or "tai lored"42 to the measure's objective. Thus, the mere fact that "some" 
discrimination might be justified does not mean that a Member can engage in any kind of 
discrimination. Rather, as the Panel found, the particular  level of discrimination under the measure  
at issue must be rationally connected – calibrated or tailored – to the measure's objective.  
47. The Panel also properly applied the rational connection test. For example, the Panel recalled 
the "very low levels" of radionuclides "detected in Japanese food".43 Korea's import bans are "rigid 
and unbending" and take no account of "the risk profile of imported food".44 Korea did not apply its 
measures to food from other sources with "a similar potential" for contamination,45 or when 
"expected to be highly contaminat ed".46 The application of the measures also relies on criteria that 
have nothing to do with the risk of contamination (e.g. fishing vessel flag; place of processing; or 
the 0.5 Bq/kg trigger condition for additional testing).47 
48. Korea argues, though, that its measures are calibrated to the "risks existing inside and outside 
Japan's  territory ". Korea's argument, again, focuses incorrectly on " Japan's territory ". The Panel 
found that Korea's objective concerned SPS risks arising fro m food.48 Korea has not appealed the 
Panel's finding on the objective.  
49. In another point, Korea contends that the Panel misunderstood EC –Hormones . In that case, 
the Appellate Body accepted that the EU could distinguish between: (1) the natural occurrence  of 
growth hormones in meat; and, (2) the intentional addition  by producers of growth hormones to 
meat. As the Panel found, the facts here are different.49  
50. Unlike EC – Hormones , there are no man -made radionuclides that are intentionally added by 
producers to  food. Rather, these man -made radionuclides are present in all food, from all over the 
world, as a part of the natural growth process . Further, there is no objective distinction that can be 
drawn between particular man -made radionuclides, such as caesium, depending on the release 
event. The health risks of a particular radionuclide do not vary depending on where and how  it was 
released. Thus, the Panel correctly concluded that, unlike EC – Hormones , this dispute does not 
compare " a man -made phenomenon to a naturally occurring one ", but involves "the same man -
made radionuclides released at different times from different events ".50 
2. Disguised restriction on international trade  
51. The Panel found that, because Korea's measures involve arbitrary or  unjustifiable 
discrimination, they also involve a disguised restriction. Korea argues that the Panel was incorrect 
in finding that "'arbitrary or unjustifiable discrimination'" is a form of "disguised restriction on 
international trade".51 However, as Kore a itself argued before the Panel,52 the Appellate Body has 
found that the term "disguised restriction on international trade" "embrac[es]" within it the concept 
                                                
39 Korea's Appellant's Submission, pa ra. 302.  
40 Korea's Appellant's Submission, para. 301, citing Panel Report, para. 7.351 . (emphasis added)  
41 Appellate Body Report, US – Tuna (Article 21.5) , para. 7.330 . (emphasis added)  
42 Panel Report, para. 7.345.  
43 Panel Report, para. 7.343.  
44 Panel Repo rt, para. 7.343.  
45 Panel Report, para. 7.351.  
46 Panel Report, para. 7.343.  
47 Panel Report, paras. 7.344 and 7.345.  
48 Panel Report, para. 7.283.  
49 Panel Report, para. 7.339.  
50 Panel Report, para. 7.339 . (emphasis added)  
51 Korea's Appellant's Submission, para. 332.  
52 Korea's first written submission, para. 105.  WT/DS495/AB/R/Add.1  
 
- 28 - 
 
  of "arbitrary or unjustifiable discrimination".53 Thus, because the Panel found that Korea's meas ures 
entail the latter, they also entail the former.   
V. THE PANEL DID NOT  ERR IN THE TEMPORAL  SCOPE OF ITS ASSESS MENT UNDER 
ARTICLE 11 OF THE DS U IN FINDING THAT KO REA'S MEASURES VIOLA TE ARTICLES 
2.3 AND 5.6 OF THE S PS AGREEMENT  
52. Throughout the Panel proce edings, there was profound disagreement between the parties as 
to whether the factual  situation continuing after the date of Panel establishment justified the 
maintenance of Korea's SPS measures.  
53. Japan asserted that Korea's SPS measures are inconsistent w ith Articles 2.3 and 5.6 of the 
SPS Agreement, at the time the measures were adopted, and to the present. It was a crucial tenet 
of Korea's position that the measures were justified in light of the "ongoing", "present" situation, 
which "continue[d]", "toda y",54 and this remains a feature of its appeal.55 Nonetheless, Korea 
asserted  that the Panel was required to disregard evidence submitted by Japan that was either not 
"available to the Korean authorities when the measures were adopted"56 ("post -adoption evide nce") 
or, at a minimum, that speaks to the factual situation after the Panel's establishment ("post -
establishment facts").  
54. The Panel agreed that Articles 2.3 and 5.6 impose obligations "not only when the measures 
are adopted, but throughout the time they remain in force", i.e. "continuing obligations".57 As 
regards  Japan's claims regarding the consistency of Korea's measures wi th Articles 2.3 and 5.6 
at the time of adoption , the Panel found that it was required to assess the factual situation  existing 
up to the time of adoption .58  
55. As regards Japan's claims regarding the continuing obligation on Korea to maintain its 
measures  consistently with in Articles 2.3 and 5.6, the Panel considered that it was required to 
assess the factual  situation between the time Korea's measures were adopted, until the date of 
establishment . Thus, t he Panel decided that it would end its assessment of t he facts supporting 
Japan's prima facie  case that the measures were maintained inconsistently with Articles 2.3 and 5.6 
at the date of Panel establishment.59 
56. The Panel held that this cut -off date applied exclusively  to evidence that Japan, as the 
complainant, relied on to establish its prima facie  case. In contrast, the Panel found that: (i) Korea, 
as the respondent, could rely on evidence regarding post -establishment facts to rebut  Japan's prima 
facie case; and (ii)  the Panel could assess evidence of post -establishment facts to confirm its findings 
relating to the situation up to panel establishment.60 
57. Like Japan, Korea appeals  several elements of the Panel's approach to the temporal scope of 
its assessment  as an erro r under Article 11 of the DSU.  
A. Reliance on evidence of post-establishment  facts when assessing the maintenance  
of the challenged measures  
58. First, Korea argues that the Panel erred by relying on evidence of post -establishment facts 
when assessing whether  Japan had demonstrated that the challenged measures were maintained 
inconsistently  with the continuing obligations in Articles 2.3 and 5.6.  
59. Korea argues that, under the guise of "confirming" of its findings, the Panel relied on evidence 
of post -establishm ent facts in assessing Japan's prima facie  case. Korea argues that, in so doing, 
the Panel failed to undertake an objective assessment of the matter, under Article 11 of the DSU. 
                                                
53 Appellate Body Report, US – Gasoline , p. 25.  
54 See e.g. Korea's Second Written Submission, paras. 6, 9, 23, 28, 34, 35, 38, 40, 47, 50, 51, 68, etc.; 
and headings II.D, II.D.1, II.D.2,  and II.F.  
55 Korea's Appellant's Submission, paras. 8, 12, 14, 15, 17, 18, 24, 25, and 285.  
56 Korea's Appellant's Submission, paras. 200 and 335.  
57 Panel Report, paras. 7.135 and 7.136.  
58 See e.g. Panel Report, paras. 7.253 -7.256.  
59 Panel Report, para. 7.1 41. 
60 Panel Report, para. 7.142.  WT/DS495/AB/R/Add.1  
 
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  Korea also asserts that, by considering post -establishment facts, the Panel t urned the case against 
Korea into a "moving target".  
60. In its own appeal , Japan  has demonstrated that the Panel erred in disregarding evidence of 
post-establishment facts in assessing whether Japan had established a prima facie  case that Korea's 
measures are maintained inconsistently with Articles 2.3 and 5.6. Therefore, the crucial premise of 
Korea's appeal is wrong.  
61. Should the Appellate Body reject Japan's other appeal, Japan demonstrates below that the 
Panel did not err in assessing evidence of post -establishment facts to confirm Japan's prima facie  
case in light of the most recent factual situation. Had the Panel decl ined entirely to consider timely -
submitted evidence of post -establishment facts, it would have failed to give a resolve the parties' 
profound disagreement as to whether the measures were justified in the most recent factual 
situation. Moreover, it would be  inconsistent with the due process requirements of Article  11 for the 
Appellate Body to reverse the Panel's reliance on evidence of post -establishment facts to confirm 
Japan's prima facie case, while at the same time upholding the Panel's reliance on such evidence 
when submitted by Korea in support of its rebuttal.  
62. Moreover, Korea  has failed to substantiate its allegations that the Panel failed to assess the 
facts objectively under Article 11. The Appellate Body has emphasized that it will not "interfe re 
lightly" with a panel's fact -finding authority, and that, to do so, it "must be satisfied that the panel 
has exceeded its authority as the trier of facts".61 As the Appellate Body noted, a party asserting 
that a panel has failed to make an objective asse ssment "bears the onus of explaining why the 
alleged error meets the standard of review under Article  11".62 Korea fails, in its Appellant's  
Submission, to "explain[] why the alleged error meets the standard of review under Article 11".  
63. Specifically, Korea does not assert, much less demonstrate, that the evidence of pre -
establishment facts relied upon by the Panel provided an insufficient basis for the Panel's finding 
that Japan had successfully made a prima facie  of inconsistency with Articles 2.3 and 5.6.63 Nor does 
Korea assert, much less demonstrate, that the evidence of pre -establishment facts on which the 
Panel relied is undermined by , and cannot be reconciled with , the evidence of post -establishment 
facts on which Korea considers the Panel also relied.64  
64. As a result, Korea has also failed to establish that the post -establishment evidence is so 
material to the Panel's findings  that its alleged failure to disregard that evidence "has a bearing on 
the objectivity  of the [P]anel's factual assessment".65  
65. In support of its position, Korea lists a number of instances in which it asserts that the Panel 
failed to distinguish  between, or parse, the relative roles played by pre - and post -establishment 
evidence in its assessment of Japan prima facie case. However, in  merely listing these instances, 
Korea fails to "explain[] why the alleged error meets the standard of review under Article 11".66 
66. For the sake of completeness, Japan nonetheless addresses each of the pieces of evidence 
addressed by Korea, and shows that Ko rea has failed to demonstrate that the Panel's approach to 
the evidence of pre - and post -establishment facts constitutes an error under Article 11.  
67. Additionally, Korea also alleges that, by considering evidence of post -establishment facts, the 
Panel turned  the case against Korea into a "moving target", and compromised Korea's due process 
rights. The Appellate Body has placed limits on the timing of the introduction of the evidence to 
ensure due process.  In drawing the limits in any given case, panels must b alance various interests, 
including the right of each party  to be afforded a meaningful opportunity to comment on the 
                                                
61 Appellate Body Report, EC – Seal Products , para. 5.150;  Appellate Body Report, US – Wheat Gluten , 
para. 151. 
62 Appellate Body Report, EC – Seal Products , para. 5.150;  Appellate Body Report, EC – Fasteners 
(China) , para. 4 42. 
63 See Appellate Body Report, US – Carbon Steel , para. 142; Appellate Body Report, Brazil – Retreaded 
Tyres , para. 185; Appellate Body Report, EC – Large Civil Aircraft , para. 1317.  
64 See Appellate Body Report, US – Upland Cotton (Article 21.5) , para. 292.  
65 Appellate Body Report, EC – Fasteners , para. 442.  
66 Appellate Body Report, EC – Seal Products , para. 5.150;  Appellate Body Report, EC – Fasteners 
(China) , para. 442.  WT/DS495/AB/R/Add.1  
 
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  arguments and evidence adduced by the other party.67 In this case, neither Korea nor the Panel 
suggested that any of the evidence offered by Japan was not timely introduced, or that the Panel 
deprived it of the right to comment on any of the evidence ultimately considered by the Panel.  
B. Reliance on post-adoption  evidence when assessing the maintenance  of the 
challe nged measures  
68. Second , Korea argues that the Panel was required to assess whether the challenged measures 
were maintained inconsistently with Articles 2.3 and 5.6 of the SPS Agreement solely on the basis 
of evidence that was "available to the Korean authori ties when the measures were adopted".68 
69. According to Korea, this limitation flows from the Appellate Body Report in US – Cotton Yarn .69 
In that case, the panel had erred by reviewing a transitional safeguard measure on the basis of 
evidence that did not exis t when the determination was made. US – Cotton Yarn , however, was a 
dispute about a trade remedy determination. The evidence was, therefore, limited to that which 
existed at the time the determination was made.  
70. Determining which facts are properly subject  to assessment under Article 11 of the DSU 
requires a panel to take into account the features of the particular matter at hand. In particular, the 
relevant obligation may apply at a particular point in time ( e.g. at the time of adoption of a measure); 
or it may impose obligations that continue over time ( e.g. throughout the lifetime of a measure).  
71. The obligations imposed on trade remedy determinations are a subset of the obligations that 
apply at a particular moment in time. Specifically, they apply to a particular act  at a particular point 
in time : they apply to a determination when it is made.  
72. In contrast, the obligation to maintain  SPS measures in a manner consistent with Articles 2.3 
and 5.6 of the SPS Agreement belongs to another category of WTO obliga tion – namely, obligations 
that apply continuously over time.  
73. There are many continuing obligations in WTO law, and a measure subject to one or more of 
these continuing obligations must be consistent with the obligation throughout the life of the 
measure.  As a result, a complainant can show that the maintenance of a measure violates a 
continuing obligation based on current circumstances, an approach taken by panels and the 
Appellate Body in many disputes under a wide range of covered agreements.  
C. Reliance on post-adoption  evidence when assessing the adoption  of the challenged 
measures  
74. Third, Korea argues that the Panel was required to limit its assessment of whether the 
challenged measures were adopted  inconsistently with Articles 2.3 and 5.6 of th e SPS Agreement to 
evidence that was "available to the Korean authorities when the measures were adopted".70 Korea 
asserts that to do otherwise would give rise to an inconsistency with Article 11 of the DSU.  
75. However, the Panel consistently heeded the tempor al scope of the evidence in its assessment 
of Japan's Articles 2.3 and 5.6 claims regarding the consistency of the challenged measures at the 
time of adoption , and as maintained . 
76. The Panel reached separate conclusions for the measures: at the time they wer e adopted; in 
different years; and as maintained.71 The Panel did so on the basis of evidence matching precisely 
the temporal scope of its analysis, i.e. at the time the measures were adopted; in different years; 
or as the measures were maintained.  
77. Therefo re, Korea's allegation  of error under Article 11 is groundless.  
                                                
67 Appellate Body Report, Thailand – Cigarettes , para. 150.  
68 Korea's Appellan t's Submission, paras. 200 and 335.  
69 Appellate Body Report, US – Cotton Yarn , para. 78.  
70 Korea's Appellant's Submission, paras. 200 and 335.  
71 Panel Report, paras. 7.253 -7.256, and 8.2.  WT/DS495/AB/R/Add.1  
 
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  VI. THE PANEL DID NO T ERR IN MAKING ITS FINDINGS UNDER ARTIC LE 5.7 OF THE SPS 
AGREEMENT  
78. Japan made no claim under Article 5.7 of the SPS Agreement. However, Korea sought to make 
Article 5.7 relevant  to its defense, through a chain of presumptions that led from Article 5.7 to 
Articles 2.3 and 5.6:  
• First, Korea asserted that the import bans and additional testing requirements were 
adopted pursuant to Article 5.7.72  
• Second , Korea argued that, because Japan had not pursued a claim under Article 5.7, 
the Panel must presume that Korea's measures were consistent with that provision, 
including the factual propositions underlying Article 5.7.73 In particular, the Panel must 
assume – without assessment  – that the scientific evidence was insufficient  to conduct 
an assessment of the risks from Japanese food.74 
• Third, Korea sought to leverage this presumption in its defense under Articles 2.3 and 
5.6. In short, under these two provisions, Korea asserted tha t the Panel must also 
presume that, because of uncertainties regarding Japan's territory, the scientific 
evidence was insufficient to assess the risk. This presumed insufficiency of uncertain 
scientific evidence was then a key argument in justifying the di scrimination and trade -
restrictions against Japanese food.  
79. Although the Panel entertained Korea's arguments that its "measures fall within the scope of 
Article 5.7" ( i.e. step 1 in the chain just described), it was not willing to do so using a presumption  
(i.e. step 2 in the chain  just described). Instead, following the usual rules on burden of proof, Korea 
bore the burden as the party making assertions regarding the factual conditions under Article 5.7.75 
The Panel found that Korea had not demonstrated that  its measures fell within the scope of 
Article  5.7. 
80. On appeal, Korea asserts, first, that the Panel failed to respect its terms of reference by making 
findings under Article 5.7. However, even though a respondent's claims and arguments never feature  
in a p anel request, a panel cannot make an "objective assessment of the matter", including of the 
"conformity" of the measures, without fully assessing them.  
81. Second , Korea  claims that the Panel applied an erroneous burden of proof under Article 5.7. 
Japan disagr ees. The Panel expressly noted that Korea  "has asserted several factual premises 
underlying its arguments  – most importantly that there was insufficient scientific evidence to conduct 
an objective assessment of the risk".76 The Panel found that " the party asserting something bears 
the burden of proving it ", and that nothing in Article 5.7 "supersedes" this basic rule.77 
82. Third, Korea makes numerous allegations of error regarding the Panel's findings as to the 
sufficiency of the evidence, the available p ertinent information, and Korea's failure to review the 
measures. Korea does not clearly distinguish between errors of interpretation, application, and 
assessment. It also frequently mischaracterizes the Panel's findings in order to create strawmen it 
can then knock -down.  
83. One argument merits mention. As outlined above, a recurring theme in Korea's appeal is the 
Panel's supposed failure to account for alleged uncertainties in the scientific evidence regarding the 
situation at the FDNPP site. Following past c ases, the Panel correctly found that the nature of the 
SPS risk at stake determines which scientific evidence is "relevant" under Article 5.7. Here, that risk 
relates to food. Hence, the Panel found that the alleged uncertainties did not prevent an assessm ent 
                                                
72 See e.g. Korea's First Written Submission, para. 83; Korea's Secon d Written Submission, para. 298; 
Korea's Responses to Questions from the Panel after the First Substantive Meeting (Panel Question 
No. 106(a)), para. 173.  
73 See e.g. Korea's Opening Statement at the First Substantive Meeting, paras 42 -43. 
74 See e.g. Korea' s Responses to Questions from the Panel after the First Substantive Meeting (Panel 
Question No. 106(a)), para. 170.  
75 Panel Report, para. 7.75. See also  para. 7.74.  
76 Panel Report, para. 7.75 . (emphasis added)  
77 Panel Report, para. 7.75 . (emphasis added)  WT/DS495/AB/R/Add.1  
 
- 32 - 
 
  of the risks arising from food. Korea may now disagree with the weight ascribed to environmental 
conditions but it has failed to show how the Panel committed  any errors, as a matter of law or fact.  
VII. THE PANEL DID N OT ERR UNDER ANNEX B (1) AND B(3) O F THE SPS AGREEMENT  
84. The Panel found  that for each of the challenged measures, Korea had failed to comply with 
Annex B(1) and B(3). Korea appeals both findings.  
85. Annex B(1 ) requires Members to publish SPS regulations such that interested Members can 
"become  acquainted with" them. For Korea, the Panel erred in finding that publication must allow 
other Members to know the "conditions (including specific principles and methods) that apply to its 
goods".78 Korea argues that the publication need not provide intere sted Members with the 
information they need to "comply with" a measure.79 
86. Korea errs. As the panel in EC – IT Products  held, publication must communicate "more or 
less complete" information on a measure's content, so that traders and governments " know what 
conditions would apply to their goods  when imported into a Member's territory".80 This is confirmed 
by Annex B(2), which grants producers time, in light of the publication under Annex B(1), to "adapt 
their products and methods of production to the requireme nts of the importing Member". This is, of 
course, only possible if producers know, through publication, the "conditions" that constitute the 
relevant "requirements".  
87. As regards application,  Korea disagrees that the term "all fisheries products" is too "vague" to 
communicate the measure's product coverage.81 The Panel found that this term was not based 
"commonly used sources for defining terms in international trade in fishery and other aquatic 
products", such as the Harmonized System definitions.82 Common  definitions of such products are 
more precise, e.g. addressing products such as algae. Although insisting that its term is not vague, 
Korea advances no arguments to explain why the Panel erred.  
88. Annex B(3 ) requires the establishment of an enquiry point to  respond to questions and provide 
documents. In one part of its appeal, Korea contests the Panel's finding that an enquiry point is 
obliged to answer reasonable questions.83 However, in another part, it accepts that an enquiry point 
must answer questions.84  
89. Korea's real grievance is that the Panel expected too much from an enquiry point, imposing a 
"strict liability" standard for any individual failure to respond.85 Korea ignores that the Panel said 
that enquiry points are not held to a "standard of perfectio n".86 
90. Korea asserts that, on the facts, "the Panel found a single failure to respond to a request to 
amount to a violation of Annex B(3)".87 However, the Panel based its finding on a series of failures 
on the part of the Korean enquiry point.88 
 
 
 
 
                                                
78 Korea's Appellant's Submission, para. 357, citing Panel Report, para. 7.464.  
79 Korea's Appellant's Submission, para. 358.  
80 Panel Report, EC – IT Products , para. 7.1085 . (emphasis added)  
81 Korea's Appellant's Submission, para. 366.  
82 Panel Report, para. 7.481.  
83 Korea's Appellant's Submission, para. 383.  
84 Korea's Appellant's Submission, para. 384.  
85 Korea's Appellant's Submission, para. 383.  
86 Panel Report, para. 7.507.  
87 Korea's Appellant's Submission, para. 385.  
88 Panel Report, para . 7.520.  WT/DS495/AB/R/Add.1  
 
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  ANNEX B -4 
EXECUTIVE SUMMARY OF  KOREA 'S APPELLEE'S SUBMISSIO N 
1. Korea responds to Japan's claims in its other appellant's submission that the Panel erred in 
exclud ing post -establishment evidence and analysis from consideration of Japan's prima facie case  
under Articles 2.3 and 5.6 of the SPS Agreement, and that the Panel erred in its assessment of 
"likeness" under Article 8/Annex C(1)(a).  
A. THE PANEL WAS PRECLU DED FROM CONSIDERING PO ST-ESTABLISHMENT 
EVIDENCE IN ITS ASSE SSMENT UNDER ARTICLE S 2.3 AND 5.6   
2. The Panel was required to determine whether the challenged measures were in breach of the 
SPS Agreement at the time the Panel was established, i.e. on 28 September 2015 or earlier. The 
Panel was precluded from relying on post -establishment analyses and data to determine whether 
Japan had succeeded in establishing a violation of the SPS Agreement.  
3. First, the dispute settlement provisions of the SPS Agreement are not s ilent on the temporal 
scope. Article 11.1 of the SPS Agreement refers to Articles XXII and XXIII of the GATT 1994, and to 
the DSU. Article XXIII indicates that the nullification or impairment must already be occurring when 
the representations are made. Acc ording to Article 7 of the DSU, the focus of a panel's inquiry is the 
"matter referred to the DSB" by the complaining party in its panel request. The "matter" must be a 
situation that is in existence prior to its referral to the DSB.   
4. Second, the requireme nt to make "an objective assessment of the matter" precluded the Panel 
from considering post -establishment evidence. A panel reviewing an SPS measure must not make a 
de novo  review and "must not substitute its own scientific judgment" for that of the domes tic 
regulator.1 Therefore, in assessing an SPS measure, the panel must consider only the information 
that was available to the domestic regulator. When a panel is established, a regulator could at most 
have available to it measurements taken up to that dat e. The same applies with respect to analyses 
based on those measurements. Assessing the consistency of an SPS measure against data not yet 
in existence at the time the panel is established would be to effectively impose a requirement on 
regulators to divin e how the data will look in the future. If a panel were to consider this information, 
it would be substituting its own judgment for that of the domestic regulator, and thus engaging in 
de novo  review.  
5. Contrary to Japan's argument, a panel that considers th e situation existing up to panel 
establishment is considering the "matter" in its entirety consistently with Articles 7 and 11 of the 
DSU. The fact that a complaining party raises claims relating to the maintenance of the SPS  measure 
does not change this c onclusion.  
6. Third, the DSU's objectives to provide a prompt, satisfactory and positive resolution to the 
dispute under Articles 3.3, 3.4, and 3.7 do not mean that the Panel was required to consider post -
establishment evidence. Prompt, satisfactory, and pos itive solution do not mean settlement in favor 
of the complaining party, as Japan seems to contend. In fact, allowing a complaining party to initiate 
litigation before a breach has actually materialized is precisely the type of litigious behavior that 
Article 3.10 seeks to discourage. In addition, an equally important objective of the WTO  dispute 
settlement mechanism is to provide security and predictability. Japan's approach in which the 
materialization of the violation becomes a "moving target" that can o ccur at any time during the 
panel proceedings undermines security and predictability.  
7. Fourth, Japan correctly draws a distinction between this case and cases involving the timing 
of the introduction of evidence. Korea agrees that the issue here is not the timing of the introduction 
of evidence, but that the evidence must demonstrate that th e violation had materialized at the time 
                                                
 Total word count: 1277  
1 Appellate Body Reports, US / Canada – Continued Suspension , para. 590 and Australia – Apples , 
para. 213. WT/DS495/AB/R/Add.1  
 
- 34 - 
 
  the Panel was established. The evidence that Japan advances to support its claims reflect 
circumstances that post -date the Panel's establishment, and therefore, cannot be considered.   
8. Lastly, the case law does not s upport Japan's position. The fact that prior panels took a 
different approach than the one preferred by Japan does not make it incorrect.  
9. While Japan contests the Panel's decision not to consider post -establishment evidence, Japan 
claims that these errors do not vitiate the Panel's ultimate findings under Articles 2.3 and 5.6, and 
requests that the Appellate Body complete the analysis. However, the Appellate Body should reverse 
the Panel's determinations because, while it claimed to preclude post -establishm ent evidence, the 
Panel failed to properly distinguish between pre - and post -establishment evidence in its assessment 
under Articles 2.3 and 5.6. Furthermore, the Appellate Body should not complete the legal analysis 
as there are insufficient factual findi ngs by the Panel and insufficient undisputed facts on the panel 
record to complete the analysis.  
B. THE PANEL PROPERLY D ECIDED NOT TO APPLY A PRESUMPTION OF LIK ENESS 
UNDER ARTICLE 8 AND ANNEX C(1)(A)  
10. The Panel's findings that Japan failed to establish tha t the imported products can be presumed 
to be "like" the Korean products do not constitute legal error.  
11. First, the Panel was not under an obligation to apply a presumption of likeness, but was 
permitted to conduct a likeness analysis using the traditional  criteria.2 While previous panels and 
the Appellate Body have permitted  the application of a presumption in certain circumstances, there 
is no requirement that a panel is obligated  to apply a presumption of likeness.  
12. A presumption by nature is not absolute, and can be rebutted.3 A presumption cannot stand 
in the face of evidence relating to the four traditional likeness criteria that have an impact on the 
competitive relationship between products. Thus, regardless of whether or not the Panel should have 
applied a presumption, the Panel was entitled to consider evidence on the traditional likeness factors.  
13. Second, the Panel appropriately considered Korea's health concerns as a factor in its analysis 
of likeness. Japan provides no basis for its claim that a panel is permitted to examine only the terms 
of a measure when determining whether a measure makes a distinction solely based on origin. The 
determination of whether a distinction is based exclusively on origin will depend on the "nature, 
configurat ion, and operation of the measure at issue".4 These factors do not limit the Panel's 
examination to the terms of a measure.  
14. In addition, the application of a measure only to Japanese products cannot in itself 
demonstrate that origin was the sole distincti on, if the basis for distinguishing Japanese products 
was also based on a factor other than the origin of the product. An SPS measure by nature makes 
a distinction based on health and safety risks associated with the product's origin, and thus public 
health concerns, as those demonstrated in the evidence submitted by Korea, are the most relevant 
factor in determining whether the measure makes a distinction solely based on the origin of the 
product.   
15. Third, the Panel correctly found that Korea successfully r ebutted Japan's presumption of 
likeness. Korea established the impact of the public health concerns in the marketplace and 
explained that consumers have continued to distinguish between Japanese and Korean food products 
and shown concern about the health r isks that result from radionuclide contamination of Japanese 
food products, because of the accident and ongoing radiation from the nuclear plant.  
16. For the foregoing reasons, Korea respectfully requests that the Appellate Body dismiss Japan's 
other appeal.  
_______________  
 
                                                
2 Report by the Working Party on Border Tax Adjustments, L/3464, para. 18.  
3 See Appellate Body Report, Argentina – Financial Services , para. 6.45.  
4 Japan's other appellant 's submission, para. 421.  WT/DS495/AB/R/Add.1  
 
- 35 - 
 
  ANNEX  C 
ARGUMENTS OF THE THI RD PARTICIPANTS  
Contents  Page  
Annex  C-1 Executive summary of Brazil 's third participant's submission  36 
Annex  C-2 Executive summary of the European Union 's third participant's submission  37 
Annex  C-3 Executive summary of the United States'  third participant's submission  39 
 
 
 WT/DS495/AB/R/Add.1  
 
- 36 - 
 
  ANNEX  C-1 
EXECUTIVE SUMMARY OF  BRAZIL 'S THIRD PARTICIPANT'S SUBMISSION  
1. In its Third Participant Submission before the Appellate Body, Brazil provides comments on 
three issues: (i) the terms of reference of the Panel; (ii) the burden of proof under Article  5.7 of the 
SPS Agreement; and (iii) Member's transparency obligations under Annex  B(1) of the 
SPS Agreement.  
2. Concerning the terms of reference of the Panel, Brazil notes that Korea cited Article 5.7 in its 
First Written Submission. Therefore, the provisions of Article 7.2 of the DSU should apply. Brazil 
understands, therefore, that Article 5.7 was within the term s of reference of the Panel.  
3. In regard to the burden of proof under Article 5.7 of the SPS Agreement, Korea claims not to 
have based its defense on the "qualified right" or "qualified exemption" of Article 5.7, and that it 
only mentioned said Article as a "context" related to the insufficiency of relevant scientific evidence 
when Korea's SPS measures were adopted. Brazil submits that the general rule concerning the 
burden of proof – that it rests upon the party that presents a claim – should be followed in the 
present case.  
4. Lastly, Brazil maintains that the proper interpretation of the Annex B(1) of the SPS  Agreement 
should find that said provision establishes an obligation to make SPS measures public in a way that 
it is sufficiently thorough, in order to al low other Members to understand the means by which they 
can comply with them. Such assessment should be made on a case -by-case basis.  
 
 WT/DS495/AB/R/Add.1  
 
- 37 - 
 
  ANNEX C -2 
EXECUTIVE SUMMARY OF  THE EUROPEAN UNION 'S THIRD PARTICIPANT'S SUBMISSION 
1   KOREA'S AND JAPAN'S APPEALS RELATED TO T HE PANEL'S USE OF PO ST-
ESTABLISHMENT FACTS  
1. Regarding the first part of Korea's Article 11 appeals, the EU does not see how the Panel could 
have addressed claims dealing with maintenance  if it restricted its findings to pre -adoption facts. 
Furthermore, the EU points out that the post -establishment facts in this dispute seem to be simply 
confirming the Panel's conclusion based on pre -establishme nt facts. Thus, the Panel's concern that 
complainants could challenge WTO -consistent measures in the hope that future facts might make 
them inconsistent did not arise here. The Panel's due process concerns could also be addressed by 
other means, such as te mporal limits for the submission of evidence.  
2. In principle, the EU agrees that the prompt, satisfactory and positive solution of disputes under 
Article 3 of the DSU is best served when panels make findings and recommendations on the basis 
of the most recent available facts, subject to due process cons traints. The extent to which post -
establishment facts are relevant varies depending on the relevant obligation. In the context of the 
SPS Agreement, the underlying facts may change significantly over time, and it seems artificial for 
a Panel to close its e yes completely to such evidence. It should, however, be kept in mind that 
regulators cannot be expected to react instantaneously to new factual developments.  
3. On the other hand, the European Union does not consider that a Panel necessarily  errs by 
adopting a "cut -off date" for its assessment, depending on the relevant obligations, the facts of the 
dispute, what the parties assert and what the evidence demonstrates.  
2   KOREA'S APPEALS IN R ELATION TO ARTICLE 5 .7 OF THE SPS AGREEM ENT  
4. Regarding the alleged violat ions of the Panel's terms of reference, the EU notes that this 
question may depend, inter alia , on whether, and in what capacity, Korea validly invoked Article  5.7 
and on the relationship between Article 5.7 and Articles 2.3 and 5.6. In the latter respect,  the 
EU recalls its position that Articles 2.3 and 5.6 remain applicable also with respect to a provisional 
measure under Article 5.7 but that the respective obligations would have to be applied and 
interpreted also in light of Article 5.7 if the measure f alls within its scope. For this purpose, a panel 
can consider whether a measure falls within the scope of Article 5.7 even if Article 5.7 is not cited in 
the panel request. However, a panel should not make findings of inconsistency with Article  5.7 (and 
particularly the conditions contained therein) absent a claim in the panel request.  
5. Regarding the important systemic issue of which party bears the burden of proof under 
Article  5.7, the EU notes the jurisprudence by the Appellate Body in the Continued Susp ension cases 
that the burden of proof for Article 5.7 falls on the complaining party. Therefore, in principle, it is 
for the complainant to demonstrate that the relevant scientific evidence is sufficient to conduct a 
risk assessment that supports the propo sition that the product is safe. That said, a respondent 
seeking to shelter under Article 5.7 must ensure not only that the circumstances justify the 
applicability of that provision, but also that it has complied with the conditions set out therein. There 
must be some basis for a legitimate concern. The EU notes that the circumstances in which the 
parties invoked (or did not invoke) Article 5.7 are rather peculiar in the present case.  
6. With respect to Korea's claim that there was not insufficient evidence, the EU takes the 
position that not every factor listed in Article 5.2 is equally relevant for a given risk assessment. 
While the EU does not opine on the facts of the present case, it considers that it is not excluded that 
in a case where food -related risk s are at issue, the more general ecological and environmental 
conditions in a Member's territory may be of more limited or, potentially, even of no relevance.  
                                                
 Total word count: 1222  WT/DS495/AB/R/Add.1  
 
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  3   KOREA'S APPEAL UNDER  ARTICLE 5.6 OF THE SPS AGREEMENT: KOREA 'S ALOP  
7. It is for each WTO Member to  set its own ALOP. Since the ALOP is the starting point of a 
panel's analysis under Article 5.6, a panel errs if it sets the alternative measure against an ALOP 
that does not fully correspond to what it initially found the regulating Member's ALOP to be.  
8. The EU agrees with Korea that, for all practical purposes, the Panel determined that the ALOP 
was "1 mSv/year". The key issue in this respect is the relationship between that benchmark and the 
qualitative elements of the ALOP: are the latter made operative by the quantitative benchmark, or 
are they additional to it? It was for Korea, as the regulating Member, to clarify this relationship in a 
way that enables a meaningful assessment under Article 5.6.  
4   KOREA'S APPEALS UNDE R ARTICLE 2.3 OF THE  SPS AGREEMENT   
9. The EU takes the view, in line with previous case law, that the regulatory objective of a 
measure should inform the Panel's determination of the relevant conditions to be compared and that 
determining the relevant conditions in a particular dispute will b e case -specific. The EU does not 
opine on the facts of the case but considers that the term "similar conditions" Article 2.3 does not 
exclude a comparison that would be product -focused and that the ecological and environmental 
conditions in a Member's terr itory must not necessarily be assessed in every case.  
10. The EU agrees with Korea that under US – Gasoline , discrimination under the first sentence 
should only "be taken into account" under the second sentence.   
5   KOREA'S APPEALS UND ER ARTICLE 7 AND ANN EX B O F THE SPS AGREEMENT   
11. The EU agrees that in certain circumstances a published SPS measure may not be understood 
without reference to other documents in which case the publication obligation under Annex B(1) 
may extend to such other documents (e.g. methods).  The EU considers that the obligation to publish 
is an objective one and the fact that a responding Member somehow became acquainted with an 
SPS measure through other means would not eliminate the inconsistency regarding a measure that 
is not adequately pu blished. The EU takes the view that individual instances of not replying to a 
question by an enquiry point will only lead to inconsistency with Annex B(3) in exceptional 
circumstances.  
6   JAPAN'S APPEALS UND ER ARTICLE 8 AND ANN EX C(1)(A) OF THE SP S AGREEMEN T 
12. The central non -discrimination provision in the SPS context, which should inform the likeness 
test, is Article 2.3 of the SPS Agreement. Annex C(1)(a) should be interpreted in the light of Article 
2.3. It should not be read as introducing an additional a nd distinct non -discrimination discipline on 
SPS measures, even when such measures contain procedural elements.  
13. The health risks that underlie the testing and control procedures at issue should be taken into 
account under Annex C(1)(a), for example as "fac tors or circumstances unrelated to the foreign 
origin of the product" that would explain why they are less favourable for the products of the 
importing Member, or as issues relevant in assessing whether  the distinction made between 
domestic and like produc ts is based exclusively on origin. This should not, however, amount to an 
analysis of the regulator's subjective motivation for adopting the Annex C measure.  
 
 
 
 WT/DS495/AB/R/Add.1  
 
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  ANNEX C -3 
EXECUTIVE SUMMARY OF  THE UNITED STATES ' THIRD PARTICIPANT'S SUBMISSION  
Introduction1 
1. The United States presents its views on certain issues raised on appeal by Korea and Japan. 
In this submission, the United States will address certain issues o f legal interpretation concerning 
the Agreement on Sanitary and Phytosanitary Measures  (the "SPS Agreement") and the 
Understanding on Rules and Procedures Governing the Settlement of Disputes  ("DSU").  
2. In Section II, the United States explains why Korea's c laims under Articles 6.2, 7.1, and 11 of 
the DSU that the Panel committed legal error in making findings under Article 5.7 must fail.  
3. While the Panel's terms of reference under Articles 6.2 and 7.1 limit the scope of the "matter" 
before it, Article 7.2 re quires panels to address all relevant provisions "cited by the parties to the 
dispute." The matter at issue, as identified in Japan's panel request, included claims under 
Articles  2.3, 5.5, and 5.6 of the SPS Agreement. Given Korea's reference to Article 5 .7 in its written 
submissions, the Panel was within its authority to examine the applicability of Article 5.7.  
4. Korea's claim under DSU Article 11 must fail because Articles 6.2 and 7.1 set out a panel's 
terms of reference and Article 11 does not provide an  additional legal basis for the review of a panel's 
authority.  
5. In Section III, the United States explains that the Panel acted consistently with its obligations 
under the DSU in limiting its reliance on post -panel establishment evidence to assess the consi stency 
of Korea's measures with the relevant obligations at the time of the Panel's establishment.  
6. Under the DSU, it is the challenged measures, as they existed at the time of the panel's 
establishment, when the "matter" was referred to the Panel, that ar e properly within the Panel's 
terms of reference. The post -establishment evidence offered by Japan is therefore relevant to the 
extent that it relates to the legal situation that existed on that date.  
7. Any later -in-time measures a Member may impose – wheth er they are imposed after the 
adoption of panel and Appellate Body reports, or simply after the establishment of a panel – would 
be addressed by the panel's recommendation under Article 19.1 of the DSU, which is prospective in 
nature in the sense that it h as an effect on, or consequences for, a WTO Member's implementation 
obligations.  
8. In Section IV, the United States explains that the Panel's elaboration of the "essential 
elements" to be included in the publication of a measure would appear to go further than the text of 
paragraph 1, Annex B warrants.  
9.  Based on its text, paragraph 1 re quires publication of SPS regulations , including "laws, 
decrees or ordinances which are applicable generally." The SPS measure must be published 
"promptly" and "in such a manner as to enable interested Members to become acquainted with 
them." Thus, Members  must be able to become acquainted with the relevant SPS regulation itself. 
The Panel's interpretation reads into the publication requirement additional requirements not set out 
in the text of paragraph 1.  
                                                
1 Pursuant to the Guidelines in Respect of Executive Summaries of Written Submissions , WT/AB/23 
(March 11, 2015), the United States indicates that this executive summary contains a total of 580 words, and 
this U.S. third participant submission (not including the text of the executive summary) contains 5,859 words 
(including footnotes).  WT/DS495/AB/R/Add.1  
 
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  10. Finally, in Section V, the United States shows tha t paragraph 3 of Annex B creates a procedural 
obligation to ensure that an enquiry point "exists" and that this enquiry point "is responsible for" 
providing certain information. It does not impose a substantive obligation to provide information or 
explain the reasons behind its measures, nor does it specify the nature of the enquiry point's 
response. Members' substantive obligations with respect to transparency and the provision of 
information regarding SPS measures are created by other provisions of the SP S Agreement.  
 
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