WT/DS495/AB/R  
 
11 April 2019  
(19-2373) Page: 1/77 
  Original: English  
 
KOREA – IMPORT BANS,  AND TESTING AND CER TIFICATION REQUIREME NTS FOR 
RADIONUCLIDES  
AB-2018-1 
Report of the Appellate  Body WT/DS495/AB/R  
 
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  Table of Contents  
 
1   INTRODUCTION  ................................ ................................ ................................ ...........  9 
2   ARGUMENTS OF THE PA RTICIPANTS  ................................ ................................ ..........  12 
3   ARGUMENTS OF THE TH IRD PARTICIPANTS  ................................ ...............................  12 
4   ISSUES RAISED IN TH IS APPEAL  ................................ ................................ ...............  12 
5   ANALYSIS OF THE APP ELLATE  BODY  ................................ ................................ ..........  13 
5.1   Article  5.6 of the SPS  Agreement  ................................ ................................ .................. 14 
5.1.1    Introduction  ................................ ................................ ................................ ............ 14 
5.1.2    The Panel's findings  ................................ ................................ ................................ .14 
5.1.3    Whether the Panel erred under Article  5.6 of the SPS  Agreement in finding that the 
alternative measure proposed by Japan would achieve Korea's appropriate level of 
protection  ................................ ................................ ................................ ......................... 18 
5.1.4    Conclusion  ................................ ................................ ................................ .............. 24 
5.2   Article  2.3 of the SPS  Agreement  ................................ ................................ .................. 24 
5.2.1    Introduction  ................................ ................................ ................................ ............ 24 
5.2.2    The Panel's findings  ................................ ................................ ................................ .25 
5.2.3    Whether the Panel erred under Article  2.3 of the SPS  Agreement in finding that 
"similar conditions prevail" in Japan and other Members  ................................ ......................... 28 
5.2.4    Conclusion  ................................ ................................ ................................ .............. 38 
5.3   Article  5.7 of the SPS  Agreement  ................................ ................................ .................. 39 
5.3.1    Introduction  ................................ ................................ ................................ ............ 39 
5.3.2    The Panel' s findings  ................................ ................................ ................................ .40 
5.3.3    Whether the Panel erred under Articles 6.2, 7, and 11 of the DSU in making findings 
under Article  5.7 of the SPS  Agreement  ................................ ................................ ................ 41 
5.3.4    Whether the Panel erred in its interpretation and application of Article  5.7 of the 
SPS Agreement and under Article  11 of the DSU in finding that Korea's measures do not 
meet the requirements of Article  5.7 of the SPS  Agreement  ................................ .................... 46 
5.3.5    Conclusion  ................................ ................................ ................................ .............. 46 
5.4   The Panel's treatment of evidence  ................................ ................................ ................ 46 
5.5   The Panel's expert selection  ................................ ................................ ......................... 47 
5.6   Article  7 and Annex B to the SPS Agreement  ................................ ................................ ..48 
5.6.1    Annex  B(1) to the SPS  Agreement  ................................ ................................ ............. 48 
5.6.1.1    Introduction  ................................ ................................ ................................ ......... 48 
5.6.1.2    The Panel's findings  ................................ ................................ ............................... 49 
5.6.1.3    Annex B(1) to the SPS  Agreement: "in such a manner as to enable interested 
Members to become acquainted with them"  ................................ ................................ .......... 51 
5.6.1.4    Whether the Panel erred in its interpretation of Annex B(1) to the SPS  Agreement  ........ 52 
5.6.1.5    Whether the Panel erred in its application of Annex B(1) to the SPS  Agreement 
and acted inconsistently with Article  11 of the DSU  ................................ ................................ 54 
 Application of Annex B(1) to the SPS  Agreement  ................................ .................... 55 
 Article  11 of the DSU  ................................ ................................ .......................... 58 
5.6.1.6    Conclusion  ................................ ................................ ................................ ........... 61 WT/DS495/AB/R  
 
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  5.6.2    Annex  B(3) to the SPS  Agreement  ................................ ................................ ............. 63 
5.6.2.1    Introduction  ................................ ................................ ................................ ......... 63 
5.6.2.2    The Panel's findings  ................................ ................................ ............................... 63 
5.6.2.3    Whether the Panel erred in finding that Korea acted inconsistently with 
Annex  B(3) to the SPS  Agreement  ................................ ................................ ....................... 64 
5.6.2.4    Conclusion  ................................ ................................ ................................ ........... 66 
5.7   Article  8 and Annex C(1)(a) to the SPS  Agreement  ................................ ......................... 67 
5.7.1    Introduction  ................................ ................................ ................................ ............ 67 
5.7.2    The Panel's findings  ................................ ................................ ................................ .67 
5.7.3    Whether the Panel erred under Annex C(1)(a) to the SPS  Agreement in declining to 
presume likeness  ................................ ................................ ................................ ............... 69 
5.7.4    Conclusion  ................................ ................................ ................................ .............. 72 
6   FINDINGS AND CON CLUSIONS  ................................ ................................ ...................  72 
6.1   Article  5.6 of the SPS  Agreement  ................................ ................................ .................. 73 
6.2   Article  2.3 of the SPS  Agreement  ................................ ................................ .................. 73 
6.3   Article  5.7 of the SPS  Agreement  ................................ ................................ .................. 74 
6.4   The Panel's treatment of evidence  ................................ ................................ ................ 74 
6.5   The Panel's expert selection  ................................ ................................ ......................... 74 
6.6   Article  7 and Annex  B(1) to the SPS  Agreement  ................................ ............................. 74 
6.7   Article  7 and Annex  B(3) to the SPS  Agreement  ................................ ............................. 76 
6.8   Article  8 and Annex  C(1)(a) to the SPS  Agreement  ................................ ......................... 77 
6.9   Recommendation  ................................ ................................ ................................ ........ 77 
 
 
 
  WT/DS495/AB/R  
 
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  ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
ALARA  as low as reasonably achievable  
ALOP appropriate level of protection  
Bq becquerel  
Codex  Codex Alimentarius Commission  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
FDNPP  Fukushima Dai -ichi Nuclear Power Plant  
GATS  General Agreement on Trade in Services  
GATT  1994 General Agreement on Tariffs and Trade 1994  
HS Harmonized System  
ICRP International Commission on Radiological Protection  
KFDA  Korea Food and Drug Administration  
Kg kilogram  
LNT linear -no-threshold  
MFDS  Ministry of Food and Drug Safety  
MIFAFF  Ministry for Food, Agriculture, Forestry and Fisheries of Korea (original name); 
Ministry of Agriculture, Food and Rural Affairs of Korea (since 2013)  
mSv millisievert  
OIE Office International des Epizooties (original name); World Organisation for 
Animal Health  (since 2003)  
Panel Report  Korea – Import Bans, and Testing and Certification Requirements for 
Radionuclides  
SPS Agreement  Agreement on the Application of Sanitary and Phytosanitary Measures  
Working Procedures  Working Procedures for Appellate Review  
WTO World Trade Organization  
 
  WT/DS495/AB/R  
 
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  PANEL EXHIBITS CITED  IN THIS REPORT  
Exhibit Number  Short Title  Description  
Panel Exhibit JPN -3.b PMO blanket import ban and 
additional testing requirements 
press release  Korea Prime Minister's Office, Press 
Release, "Government Bans Import of All 
Fishery Products from 8 ken near 
Fukushima" (6  September 2013)  
Panel Exhibit JPN -4.b  Korea Office for Government Policy 
Coordination, Ministry of Food and Drug 
Safety, Ministry  of Oceans and Fisheries, 
and Nuclear Safety and Security 
Commission, "Q&A on Radioactivity 
Safety Management of Fishery Products 
Imported from Japan" (September 2013)  
Panel Exhibits JPN -55.b 
(revised) and KOR -72 
(revised)  KFDA 14  April 2011 press 
release   Korea Food and Drug Administration, 
Press Release, "Status of KFDA's 
Response and Management Measures 
Regarding the Japanese Nuclear 
Crisis  (5)" / "KFDA's Response to the 
Fukushima Nuclear Power Plant Accident 
and Management Status" (14  April 2011 )  
Panel Exhibit JPN -75.b MFDS 2013 blanket import ban 
and additional testing 
requirements notice  Korea Ministry of Food and Drug Safety,  
"Notice of Temporary Special Measure for 
Safety for Food Imported from Japan" 
(6 September 2013)  
Panel Exhibit JPN -76.b  Korea Ministry of Food, Agriculture, 
Forestry and Fisheries, Press Release, 
"Temporary Import Suspension on Cod 
from Miyagi -ken and Iwate -ken, Japan" 
(3 May 2012)  
Panel Exhibit JPN -77.b  Korea Ministry of Food, Agriculture, 
Forestry and Fisheries, Press Release, 
"Temporary Import Suspension on 35 
Fishery Products, including Yellowfish 
from Fukushima -ken, Japan" (26  June 
2012)  
Panel Exhibit JPN -78.b  Korea Ministry of Food, Agriculture, 
Forestry and Fisheries, Press Release, 
"Temporary Import Suspension on Cod 
from Aomori -ken, Japan" (29  August 
2012)  
Panel Exhibit KOR -140  European ALARA Network, Newsletter 31: 
"Development and dissemination of 
ALARA culture" (11  July 2016)  
 
 
  WT/DS495/AB/R  
 
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  CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Financial 
Services  Appellate Body Report, Argentina – Measures Relating to Trade in Goods and 
Services , WT/DS453/AB/R  and Add.1,  adopted 9  May 2016, DSR 2016:II, 
p. 431 
Argentina – Import Measures  Appellate Body Reports, Argentina – Measures Affecting the Importation of 
Goods , WT/DS438/AB/R  / WT/DS444/AB/R  / WT/DS445/AB/R , adopted 
26 January  2015, DSR 2015:II, p. 579  
Argentina – Import Measures  Panel Reports, Argentina – Measures Affecting the Importation of Goods , 
WT/DS438/R  and Add.1 / WT/DS444/R  and Add.1 / WT/DS445/R  and Add.1, 
adopted 26 January 2015, as modified (WT/DS438/R) and upheld 
(WT/DS444/R / WT/DS445/R) by Appellate Body Reports WT/DS438/AB/R / 
WT/DS444/AB/R / WT/DS445/AB/R, DSR 2015:II, p. 783   
Australia – Apples  Appellate Body Report, Australia – Measures  Affecting the Importation of 
Apples from New Zealand , WT/DS367/AB/R , adopted 17  December  2010, 
DSR 2010:V, p. 2175  
Australia – Salmon  Appellate Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R , adopted 6  November  1998, DSR 1998:VIII, p. 3327  
Brazil – Retreaded Tyres  Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded 
Tyres , WT/DS332/AB/R , adopted 17  December  2007, DSR 2007:IV, p. 1527  
Brazil – Taxation  Panel Reports, Brazil – Certain Measures Concerning Taxation and Charges , 
WT/DS472/R , Add.1 and Corr.1 / WT/DS497/R , Add.1 and Corr.1, adopted 
11 January  2019, as modified by Appellate Body Reports WT/DS472/AB/R / 
WT/DS497/AB/R  
Canada – Continued 
Suspension  Appellate Body Report, Canada – Contin ued Suspension of Obligations in the 
EC – Hormones Dispute , WT/DS321/AB/R , adopted 14  November  2008, 
DSR 2008:XIV, p. 5373  
Chile – Price Band System  Appellate Body Report, Chile – Price Band System and Safeguard Measures 
Relating to Certain Agricultural Products , WT/DS207/AB/R , adopted 
23 October  2002, DSR 2002:VIII, p. 3045 (Corr.1, DSR 2006:XII, p. 5473)  
China – Publications and 
Audiovisual Products  Panel Report, China – Measures Affecting Trading Rights and Distribution 
Services for Cert ain Publications and Audiovisual Entertainment Products , 
WT/DS363/R  and Corr.1, adopted 19  January  2010, as modified by 
Appellate  Body Report WT/DS363/AB/R, DSR 2010:II, p. 261  
China – Raw Materials  Appellate Body Reports, China – Measures Related to the Exportation of 
Various Raw Materials , WT/DS394/AB/R  / WT/DS395/AB/R  / WT/DS398/AB/R , 
adopted 22  February  2012, DSR 2012:VII, p. 3295  
EC – Approval and Marketing 
of Biotech Products  Panel Reports, European Communities – Measures Affecting the Approval and 
Marketing of Biotech Products , WT/DS291/R , Add.1 to Add.9 and Corr.1 / 
WT/DS292/R , Add.1 to Add.9 and Corr.1 / WT/DS293/R , Add.1 to Add.9 and 
Corr.1, adopted 21  November  2006, DSR 2006:III, p. 847  
EC – Asbestos  Appellate Body Report, European Communit ies – Measures Affecting Asbestos 
and Asbestos -Containing Products , WT/DS135/AB/R , adopted 5  April 2001, 
DSR 2001:VII, p. 3243  
EC – Bed Linen (Article  21.5 
– India)   Appellate Body Report, European Communities – Anti-Dumping Duties on 
Imports of Cotton -Type Bed Linen from India – Recourse to Article  21.5 of the 
DSU by India , WT/DS141/AB/RW , adopted 24  April 2003, DSR 2003:III, 
p. 965 
EC – Hormones  Appellate Body Report, European Communities – Measures Concerning Meat 
and Meat Products (Hormones) , WT/DS26/AB/R , WT/DS48/AB/R , adopted 
13 February 1998, DSR 1998:I, p. 135  
EC – Sardines  Appellate Body Report, European Communities – Trade Description of 
Sardines , WT/DS231/AB/R , adopted 23  October  2002, DSR 2002:VIII, p. 3359  
EC – Seal Produ cts Appellate Body Reports, European Communities – Measures Prohibiting the 
Importation and Marketing of Seal Products , WT/DS400/AB/R  / 
WT/DS401/AB/R , adopted 18  June 2014, DSR 2014:I, p. 7  WT/DS495/AB/R  
 
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  Short Title  Full Case Title and Citation  
EC ‒ Selected  Customs 
Matters  Appellate Body Report, European Com munities – Selected Customs Matters , 
WT/DS315/AB/R , adopted 11  December  2006, DSR 2006:IX, p. 3791  
EC – Tube or Pipe Fittings  Appellate Body Report, European Communities – Anti-Dumping Duties on 
Malleable Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/AB/R , 
adopted 18  August  2003, DSR 2003:VI, p. 2613  
EC and certain member 
States – Large Civil Aircraft  Appellate Body Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R , adopted 
1 June 2011, DSR 2011:I, p. 7  
Guatemala – Cement I  Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding 
Portland Cement from Mexico , WT/DS60/AB/R , adopted 25  November  1998, 
DSR 1998:IX, p. 3767  
India – Agricultur al Products  Appellate Body Report, India – Measures Concerning the Importation of 
Certain Agricultural Products , WT/DS430/AB/R , adopted 19  June 2015, 
DSR 2015:V, p. 2459  
Indonesia – Autos  Panel Report, Indonesia – Certain Measures Affecting the Automobile  Industry , 
WT/DS54/R , WT/DS55/R , WT/DS59/R , WT/DS64/R , Corr.1 and Corr.2, 
adopted 23  July 1998, and Corr.3 and Corr.4, DSR 1998:VI, p. 2201  
Indonesia – Import Licensing 
Regimes  Appellate Body Report, Indonesia – Importation of Horticultural Products, 
Animals and Animal Products , WT/DS477/AB/R , WT/DS478/AB/R , and Add.1, 
adopted 22  November  2017, DSR 2017:VII, p. 3037  
Japan – Agricultural Products 
II Appellate Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R , adopted  19 March  1999, DSR 1999:I, p. 277  
Japan – Alcoholic Beverages 
II Appellate Body Report, Japan – Taxes on Alcoholic Beverages , WT/DS8/AB/R , 
WT/DS10/AB/R , WT/DS11/AB/R , adopted 1  November  1996, DSR 1996:I, 
p. 97 
Japan – Apples  Appellate Body Report, Japan – Measures Affecting the Importation of Apples , 
WT/DS245/AB/R , adopted 10  December  2003, DSR 2003:IX, p. 4391  
Korea  – Alcoholic Beverages  Appellate Body Report, Korea – Taxes on Alcoholic Beverages , WT/DS75/AB/R , 
WT/DS84/AB/R , adopted 17  February  1999, DSR 1999:I, p. 3  
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R , adopted 12  January  2000, 
DSR 2000:I, p. 3  
Korea – Radionuclides  Panel Report,  Korea – Import Bans, and Testing and Certification 
Requirements for Radionuclides , WT/DS495/R and Add.1, circulated to WTO 
Members 22  February  2018 
Mexico – Corn Syrup 
(Article  21.5 – US) Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose 
Corn Syrup (HFCS) from the United  States – Recourse to Article  21.5 of the 
DSU by the United  States , WT/DS132/AB/RW , adopted 21  November  2001, 
DSR 2001:XIII, p. 6675  
Russia – Pigs (EU)  Panel Report, Russian Federation – Measures on the Importation of Live Pigs, 
Pork and Other Pig Products from the European  Union , WT/DS475/R  and 
Add.1, adopted 21  March  2017, as modified by Appellate Body Report 
WT/DS475/AB/R, DSR 2017:II, p. 361  
US – Animals  Panel Report, United  States – Measures Affecting the Importation of Animals, 
Meat and Other Animal Products from Argentina , WT/DS447/R  and Add.1, 
adopted 31  August  2015, DSR 2015:VIII, p. 4085  
US – Carbon Steel  Appellate Body Report, United  States – Countervailing Duties on Certain 
Corrosion -Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/AB/R  and Corr.1, adopted 19  December  2002, DSR 2002:IX, 
p. 3779 
US – Continued Suspension  Appellate Body Report, United  States – Continued Suspension of  Obligations in 
the EC – Hormones Dispute , WT/DS320/AB/R , adopted 14  November  2008, 
DSR 2008:X, p. 3507  
US – Continued Zeroing  Appellate Body Report, United  States – Continued Existence and Application of 
Zeroing Methodology , WT/DS350/AB/R , adopted 19  February  2009, 
DSR 2009:III, p. 1291  WT/DS495/AB/R  
 
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  Short Title  Full Case Title and Citation  
US – Countervailing and 
Anti-Dumping Measures 
(China)  Appellate Body Report, United  States – Countervailing and Anti -Dumping 
Measures on Certain Products from China , WT/DS449/AB/R  and Corr.1, 
adopted 22  July 2014, DSR 201 4:VIII, p. 3027  
US – Countervailing 
Measures (China)  Appellate Body Report, United  States – Countervailing Duty Measures on 
Certain Products from China , WT/DS437/AB/R , adopted 16  January  2015, 
DSR 2015:1, p. 7  
US – Gambling  Appellate Body Report, United  States – Measures Affecting the Cross -Border 
Supply of Gambling and Betting Services , WT/DS285/AB/R , adopted 
20 April 2005, DSR 2005:XII, p. 5663 (and Corr.1, DSR 2006:XII, p. 5475)  
US – Hot-Rolled Steel  Appellate Body Report , United  States – Anti-Dumping Measures on Certain 
Hot-Rolled Steel Products from Japan , WT/DS184/AB/R , adopted 
23 August  2001, DSR 2001:X, p. 4697  
US – Large Civil Aircraft (2nd 
complaint)  Appellate Body Report, United  States – Measures Affecting Trade i n Large Civil 
Aircraft (Second Complaint) , WT/DS353/AB/R , adopted 23  March  2012, 
DSR 2012:I, p. 7  
US – Oil Country Tubular 
Goods Sunset Reviews  Appellate Body Report, United  States – Sunset Reviews of Anti -Dumping 
Measures on Oil Country Tubular Goods fro m Argentina , WT/DS268/AB/R , 
adopted 17  December  2004, DSR 2004:VII, p. 3257  
US – Oil Country Tubular 
Goods Sunset Reviews 
(Article  21.5 – Argentina)  Appellate Body Report, United  States – Sunset Reviews of Anti -Dumping 
Measures on Oil Country Tubular Goods from Argentina – Recourse to 
Article  21.5 of the DSU by Argentina , WT/DS268/AB/RW , adopted 
11 May 2007, DSR  2007:IX, p. 3523  
US – Poultry (China)  Panel Report, United  States – Certain Measures Affecting Imports of Poultry 
from China , WT/DS39 2/R, adopted 25  October  2010, DSR 2010:V, p. 1909  
US – Shrimp  Panel Report, United  States – Import Prohibition of Certain Shrimp and Shrimp 
Products , WT/DS58/R  and Corr.1, adopted 6  November  1998, as modified by 
Appellate Body Report WT/DS58/AB/R, DSR 1998:VII, p. 2821  
US – Tuna II (Mexico) 
(Article  21.5 – Mexico)  Appellate Body Report, United  States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products – Recourse to Article  21.5 of 
the DSU by Mexico , WT/DS381/AB/RW  and Add.1, adopted 3  December  2015, 
DSR 2015:X, p. 5133  
US – Upland Cotton 
(Article  21.5 – Brazil)  Appellate Body Report, United  States – Subsidies on Upland Cotton – Recourse 
to Article  21.5 of the DSU by Brazil , WT/DS267/AB/RW , adopted 
20 June 2008, DSR 2008:III, p. 809  
  WT/DS495/AB/R  
 
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WORLD TRADE ORGANIZATION  
APPELLATE  BODY 
 
 
Korea – Import Bans, and Testing and 
Certification Requirements for 
Radionuclides  
 
 
Korea, Appellant/Appellee  
Japan, Other  Appellant/Appellee  
 
Brazil, Third Participant  
Canada, Third Participant  
China, Third Participant  
European  Union, Third Participant  
Guatemala , Third Participant  
India, Third Participant  
New Zealand , Third Participant  
Norway , Third Participant  
Russia, Third Participant  
Chinese Taipei, Third Participant  
United  States , Third Participant  
 AB-2018-1 
 
Appellate  Body Division:  
 
Servansing, Presiding Member  
Bhatia, Member  
Graham, Member  
 
 
 
1  INTRODUCTION  
The Republic of Korea (Korea) and Japan each appeal certain issues of law and legal 
interpretations developed in the Panel Report, Korea – Import Bans, and Testing and Certification 
Requirements for Radionuclides1 (Panel Report). The Panel was  established on 28  September  20152 
to consider a complaint by Japan3 with respect to the consistency of certain measures adopted by 
Korea on Japanese food products with the Agreement on the Application of Sanitary and Phytosanitary 
Measures (SPS  Agreement) . 
The challenged measures were imposed by Korea in response to the Fukushima Dai -ichi Nuclear 
Power Plant (FDNPP) accident in Japan on 11  March  2011 and its aftermath. Specifically, Japan 
challenged four sets of Korean measures: (i) the additional testing requirements adopted in 2011 for 
non-fishery products (except livestock); (ii) the product -specific import bans adopted in 2012 on 
Alaska pollock from one prefecture and on Pacific cod from five prefectures; (iii) the additional testing 
requirements adopte d in 2013 for fishery and livestock products; and (iv) the "blanket import ban" 
adopted in 2013 on all fishery products from eight prefectures in relation to 28 fishery products.4 The 
factual aspects of this dispute are set forth in greater detail in the P anel Report.  
Japan claimed before the Panel that all of Korea's challenged measures are inconsistent with: 
(i) Article  5.6 of the SPS  Agreement for being more trade -restrictive than required; (ii) Article  2.3 of 
the SPS  Agreement for arbitrarily or unjusti fiably discriminating against Japanese food products and 
constituting a disguised restriction on international trade; and (iii)  Article  7 and paragraphs 1 and 3 
of Annex B to the SPS  Agreement, as Korea failed to comply with certain transparency requiremen ts. 
Moreover, Japan claimed before the Panel that the 2011 additional testing requirements and the 2013 
additional testing requirements are inconsistent with Article  8 and paragraphs 1(a), 1(c), 1(e), 
                                                
1 WT/DS495/R, 22  February  2018.  
2 WT/DSB/M/368, para.  6.4. 
3 Panel Report, para.  1.4; Request for the Establishment of a Panel by Japan, WT/DS495/3 (Japan's  panel 
request).  
4 Panel Report, paras.  2.98, 2.100 -2.102, 2.105 -2.107, and 2.113 -2.115. In this Report, we refer to these 
measures as the 2011 additional testing requirements, the product -specific import bans, the 2013 additional 
testin g requirements, and the blanket import ban.  WT/DS495/AB/R  
 
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  and 1(g) of Annex C to the SPS  Agreement.5 Korea reques ted the Panel to reject Japan's claims in 
their entirety.6  
In the Panel Report, circulated to Members of the World Trade Organization (WTO) on 
22 February  2018, the Panel found that:  
a. Korea's measures do not fulfil the four requirements in Article  5.7 of t he SPS  Agreement7;  
b. with respect to whether Korea's measures are more trade -restrictive than required under 
Article  5.6 of the SPS  Agreement:  
i. the 2011 additional testing requirements and product -specific import bans were not 
more trade -restrictive than req uired when adopted8;  
ii. the 2011 additional testing requirements and product -specific import bans are 
maintained in a manner inconsistent with Article  5.6 because they are more trade -
restrictive than required9; 
iii. the 2013 additional testing requirements were a dopted and maintained in a manner 
inconsistent with Article  5.6 because they were and are more trade -restrictive than 
required10; 
iv. the blanket import ban (with the exception of the ban on Pacific cod originating from 
Fukushima and Ibaraki) was adopted in a m anner inconsistent with Article  5.6 
because it was more trade -restrictive than required11; and  
v. the blanket import ban with respect to all 28 fishery products from all 
eight prefectures is maintained in a manner inconsistent with Article  5.6 because it 
is mo re trade -restrictive than required12; 
c. with respect to whether Korea's measures arbitrarily or unjustifiably discriminate against 
Japanese products under the first sentence of Article  2.3 of the SPS  Agreement and 
whether they  are applied in a manner which wo uld constitute a disguised restriction on 
international trade under the second  sentence of Article  2.3: 
i. the 2013 additional testing requirements and the blanket import ban with respect 
to the 27  fishery products subject to Japan's claim from the eight prefectures and 
Pacific cod from six prefectures, i.e. excluding Pacific cod from Fukushima and 
Ibaraki, were inconsistent with the first sentence of Article  2.3 and, as a 
consequence, the second sentence of Article  2.3, when Korea adopted them13;  
ii. by maint aining the product -specific import bans, the blanket import ban on the 
28 fishery products from the eight prefectures, the 2011 additional testing 
requirements, and the 2013 additional testing requirements on Japanese products, 
Korea acted inconsistently w ith the first  sentence of Article  2.3 and, as a 
consequence, the second sentence of Article  2.314; and  
                                                
5 Panel Report, paras.  3.1, 7.1 13, 7.258, 7.363, and 7.448; Japan's first written submission to the Panel, 
paras.  141-142, 155 -157, 195 -196, 333 -335, 402, 450, and 464 -465. 
6 Panel Report, para.  3.3. 
7 Panel Repo rt, paras.  7.111 and 8.1.  
8 Panel Report, paras.  7.253 -7.254 and 8.2.a.  
9 Panel Report, paras.  7.253 -7.254 and 8.2.b.  
10 Panel Report, paras.  7.253, 7.255, and 8.2.c.  
11 Panel Report, paras.  7.253, 7.256, and 8.2.d.  
12 Panel Report, paras.  7.253, 7.256, and 8 .2.e. 
13 Panel Report, paras.  7.360 and 8.3.a.  
14 Panel Report, paras.  7.360 and 8.3.b.  WT/DS495/AB/R  
 
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  iii. the Panel exercised judicial economy with regard to the other grounds raised by 
Japan for inconsistency of Korea's measures with the second sentence of 
Article 2.315; 
d. with respect to the obligations concerning control, inspection, and approval procedures in 
Article  8 and Annex C to the SPS  Agreement, Japan failed to establish that Korea acted 
inconsistently with the provisions of Annex C(1), subparagraphs (a ), (c), (e), and (g), 
and, as a consequence, Article  8 with respect to the adoption and maintenance of the 
2011 additional testing requirements and the 2013 additional testing requirements16; and 
e. with respect to the transparency obligations under Article  7 and Annex B to the 
SPS Agreement:  
i. Korea acted inconsistently with Annex B(1) and, as a consequence, Article  7, in 
relation to the publication of all of the challenged measures17; and  
ii. Korea's SPS enquiry point's incomplete response to Japan's first request a nd its 
failure to respond to Japan's second request are sufficient to establish that Korea 
acted inconsistently with Annex B(3) and, as a consequence, Article  7.18 
In accordance with Article  19.1 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes (DSU), and having found that Korea acted inconsistently with certain provisions 
of the SPS  Agreement, the Panel recommended that Korea bring its measures into conformity with its 
obligations under the SPS  Agreement.19  
On 9 April 2018, Korea notified the Dispute Settlement Body (DSB), pursuant to Articles  16.4 
and 17 of the DSU, of its intention to appeal certain issues of law covered in the Panel  Report and 
certain legal interpretations developed by the Panel, and filed a Notice of Appeal20 and an 
appellant's  submission pursuant to Rule  20 and Rule 21, respectively, of the Working  Procedures for 
Appellate Review21 (Working Procedures). On 16  April 2018, Japan notified the DSB, pursuant to 
Articles  16.4 and 17 of the DSU, of its intenti on to appeal certain issues of law covered in the Panel 
Report and certain legal interpretations developed by the Panel, and filed a Notice of Other Appeal22 
and another  appellant's submission pursuant to Rule 23 of the Working  Procedures . On 27  April 2018,  
Japan and Korea each filed an appellee's submission.23 On 30  April 2018, Brazil, the European  Union, 
and the United  States  each filed a third participant's submission.24 On the same day, Canada, China, 
Guatemala, India, New Zealand, Norway, and the Separate  Customs Territory of Taiwan, Penghu, 
Kinmen and Matsu ( Chinese Taipei) each  notified its intention to appear at the hearing as a 
third participant.25 Subsequently, the Russian Federation (Russia) notified its intention to appear at 
the hearing as a third p articipant.26 
On 8  June 2018, the Chair of the Appellate  Body notified the Chair of the DSB that the 
Appellate  Body would not be able to circulate its Report in this appeal within the 60 -day period 
pursuant to Article  17.5 of the DSU, or within the 90 -day p eriod pursuant to the same provision.27 On 
                                                
15 Panel Report, paras.  7.360 and 8.3.c.  
16 Panel Report, paras.  7.447 and 8.4.  
17 Panel Report, paras.  7.476, 7.487, 7.501 -7.503, and 8.5.a.  
18 Panel Report, paras.  7.519 -7.520 and 8.5.b.  
19 Panel Report, para.  8.7. 
20 WT/DS495/8 . 
21 WT/AB/WP/6, 16  August  2010.  
22 WT/DS495/9 . 
23 Pursuant to Rules 22 and 23(4) of the Working Procedures.  
24 Pursuant to Rule 24(1) of the Working Procedures.  
25 Pursuant to Rule 24(2) of the Working Procedures.  
26 On 28  November  2018, Russia submitted its delegation list for the hearing to the Appellate  Body 
Secretariat. We have interpreted this action as a notification to attend the hearing pursuant to Rule 24(4) of the 
Working Procedures.  
27 The Chair of the Appellate  Body explained that this was due to a number of factors, including the 
substantially enhanced workload of the Appellate  Body in 2018, scheduling issues arising from overlap in the 
composition of the Divisions hearing different app eals owing to the current vacancies on the Appellate  Body, the 
number and complexity of the issues raised in this and concurrent appellate proceedings, together with the 
demands that these concurrent appeals place on the WTO  Secretariat's translation servi ces, and the shortage of 
staff in the Appellate  Body Secretariat. Although the appeals in this dispute were initiated on 9  April 2018 and WT/DS495/AB/R  
 
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  1 March  2019, the Chair of the Appellate  Body informed the Chair of the DSB that the Report in these 
proceedings would be circulated no later than 11  April 2019.28  
On 28  September  2018, the participants and third p articipants were informed that, in accordance 
with Rule  15 of the Working Procedures, the Chair of the Appellate  Body had notified the Chair of the 
DSB of the Appellate  Body's decision to authorize Appellate  Body Member Mr Shree Baboo Chekitan 
Servansing t o complete the disposition of this appeal, even though his term of office was due to expire 
before the completion of the appellate proceedings.  
The hearing in this appeal was held on 3 -4 December  2018. The participants and six of the 
third participants (B razil, Canada, the European  Union, New Zealand, Norway, and the United  States) 
made oral statements and responded to questions posed by the Members of the Appellate  Body 
Division hearing the appeal.  
2  ARGUMENTS OF THE PAR TICIPANTS  
The claims and arguments o f the participants are reflected in the executive summaries of their 
written submissions provided to the Appellate  Body.29 The Notices of Appeal and Other Appeal, and 
the executive summaries of the participants' claims and arguments, are contained in Annexe s A and  B 
of the Addendum to this Report, WT/DS495/AB/R/Add.1.  
3  ARGUMENTS OF THE THI RD PARTICIPANTS  
The arguments of the third participants that filed a written submission (Brazil, the 
European  Union, and the United  States) are reflected in the executive su mmaries of their written 
submissions provided to the Appellate  Body30, and are contained in Annex C of the Addendum to this 
Report, WT/DS495/AB/R/Add.1.  
4  ISSUES RAISED IN THI S APPEAL  
The following issues are raised in this appeal:  
a. whether the Panel erred in its application of Article  5.6 of the SPS  Agreement in finding that 
Japan 's proposed alternative measure achieves Korea 's appropriate level of protection 
(ALOP);  
b. whether the Panel erred in its interpretation and application of Article  2.3 of the 
SPS Agree ment in finding that: (i)  similar conditions exist in Japan and in other Members 
regarding the adoption of certain measures and the maintenance of all challenged measures; 
(ii) the import bans and the additional testing requirements arbitrarily or unjustif iably 
discriminate  between the se Members ; and (iii)  Korea's measures  are applied  in a manner 
which would constitute  a disguised restriction on international trade;  
c. in relation to the Panel's findings under Article  5.7 of the SPS  Agreement:  
i. whether the Panel erred under Articles  6.2, 7, and 11 of the DSU in making findings 
under Article  5.7 of the SPS  Agreement;  
                                                
16 April 2018, due to the multiple appeals pending before the Appellate  Body, the reduced number of 
Appellate  Body Mem bers, and the shortage of staff in the Appellate  Body Secretariat, work on these appeals 
could only begin in September  2018. (WT/DS495/10)  
28 WT/DS495/ 11. 
29 Pursuant to the Appellate  Body's communication on "Executive Summaries of Written Submissions in 
Appellate Proceedings" and "Guidelines in Respect of Executive Summaries of Written Submissions in 
Appellate  Proceedings" (WT/AB/23, 11  March  2015).  
30 Pursuant to the Appellate  Body's communication on "Executive Summaries of Written Submissions in 
Appellate Proceedings" and "Guidelines in Respect of Executive Summaries of Written Submissions in 
Appellate  Proceedings"  (WT/AB/23, 11  March  2015).  
 WT/DS495/AB/R  
 
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  ii. whether the Panel erred in its interpretation and application of Article  5.7 of the 
SPS Agreement in allocating the burden of proof  under that provision to Korea;  
iii. whether the Panel erred in its interpretation and application of Article  5.7 of the 
SPS Agreement in finding that Korea did not establish that: (i) the relevant scientific 
evidence had been insufficient with respect to the product -specific import bans, the 
blanket import ban, and the 2013  additional testing requirements; (ii) the blanket 
import ban and the 2013  additional testing requirements had been adopted on the 
basis of available pertinent information; and (iii) Korea h ad reviewed any of its 
measures within a reasonable period of time; and  
iv. whether the Panel failed to make an objective assessment of the matter under 
Article  11 of the DSU by engaging in internally inconsistent reasoning;  
d. in relation to the Panel's treatmen t of evidence, whether the Panel acted inconsistently with 
Articles 3.3 -3.4, 3.7, and 11 of the DSU and erred in the application of Articles 2.3 and 5.6 
of the SPS  Agreement;  
e. in relation to the Panel's expert selection, whether the Panel acted inconsistent ly with 
Article  11 of the DSU by appointing two experts who allegedly were not independent or 
impartial;  
f. in relation to the Panel's findings under Article  7 and Annex B(1) to the SPS  Agreement:  
i. whether the Panel erred in its interpretation of Annex B(1) t o the SPS  Agreement 
in finding that this provision requires that the publication of an SPS  regulation 
contain sufficient content that interested Members will know the conditions 
(including specific principles and methods) that apply to their goods;  
ii. whether  the Panel erred in its application of Annex B(1) to the SPS  Agreement in 
finding that Korea acted inconsistently with this provision by: (i)  not publishing the 
full product scope of the blanket import ban, and the full content of the 2011 
additional testi ng requirements and the 2013 additional testing requirements; and 
(ii) not demonstrating that interested Members would have known to look to the 
websites indicated by Korea for information on the SPS  measures at issue; and  
iii. whether the Panel acted inconsist ently with Article  11 of the DSU in finding that it 
was unable to know whether the web addresses provided by Korea were available 
on the day Korea  announced each of the SPS  measures at issue and what content 
was available on that day;  
g. in relation to the P anel's findings under Article  7 and Annex B(3) to the SPS  Agreement,  
whether the Panel erred in its interpretation and application of Annex B(3) to the 
SPS Agreement in finding that Korea acted inconsistently with Annex  B(3) and, as a 
consequence, Article  7 of the SPS  Agreement, because of Korea's SPS enquiry point's 
incomplete response to Japan's first request and its failure to respond to Japan's 
second  request; and  
h. whether  the Panel erred in its interpretation and application of Annex  C(1)(a) to the 
SPS Agreement in declining to presume that Japanese imported products and Korean 
domestic products are "like" and therefore in finding that Japan failed to establish that Korea 
acted inconsistently with Annex C(1)(a) and, as a consequence, Article  8 of the 
SPS Agreement.  
5  ANALYSIS OF THE A PPELLATE  BODY  
In this Report, we address the participants' claims of error on appeal in the following order : 
(i) Korea's claim under Article  5.6 of the SPS  Agreement; (ii)  Korea's claims under Article  2.3 of the 
SPS Agreement; (iii) Korea's claims regarding the Panel's findings under Article  5.7 of the 
SPS Agreement; (iv)  Korea's and Japan's claims regarding the Panel's treatment of evidence; 
(v) Korea's claim regarding the selection of certain experts by the Panel; (vi)  Korea's  claims regarding WT/DS495/AB/R  
 
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  the Panel's findings under Article  7 and Annexes  B(1) and B(3) to the SPS  Agreement; and 
(vii) Japan's claim under Article  8 and Annex  C(1)(a) to the SPS  Agreement.  
5.1  Article  5.6 of the SPS  Agreement  
5.1.1   Introduction  
Korea appeals the Panel's f inding that Korea acted inconsistently with Article  5.6 of the 
SPS Agreement with respect to: (i)  the adoption of the blanket import ban (except for the ban on 
Pacific cod from Fukushima and Ibaraki) and the 2013 additional testing requirements; and (ii)  the 
maintenance of all of Korea's measures. In particular, Korea contests the Panel's findings relating to 
the achievement of Korea's ALOP by an alternative measure proposed by Japan.  Korea argues that 
"the Panel effectively applied an incorrect ALOP, and a s a result erred in finding that Japan's proposed 
alternative measure would meet Korea's ALOP."31 Based on this alleged error, Korea requests that we 
reverse the Panel's finding that the challenged import bans and the additional testing requirements 
are inc onsistent with Article  5.6 of the SPS  Agreement.32 Japan responds that the Panel did not err in 
applying Korea's ALOP to Japan's proposed alternative measure.33 
We begin by summarizing the Panel's findings under Article  5.6 of the SPS  Agreement. We then 
address Korea's claim of error on appeal.  
5.1.2   The Panel's findings  
Before  the Panel, Japan claimed that Korea's measures are inconsistent with Article  5.6 of the 
SPS Agreement because they are more trade -restrictive than required. In support of this claim, Japan 
proposed a single alternative measure to all challenged Korean measures consisting of "testing for 
caesium, to verify that the products' caesium content does not exceed Korea's level of 100  Bq/kg, as 
a means to control both caesium contamination and contami nation from additional radionuclides".34 
Japan submitted that testing for caesium alone would be sufficient to ensure that Korean consumers' 
exposure to radionuclides through the consumption of food would be below 1  millisievert per year 
(mSv/yr ) as long as caesium levels in Japanese imports were below 100  becquerel per 
kilogram  (Bq/kg ).35 Before the Panel, Korea contested the level of protection that would be achieved 
by Japan's alternative measure in relation to its own ALOP.  
In addressing wheth er the alternative measure proposed by Japan would achieve Korea's ALOP36, 
the Panel noted Korea's acknowledgement that "it has adopted the Codex  benchmark of 1  mSv/year 
radiation exposure limit, in order to quantify the highest radiation exposure it is wil ling to accept, 
keeping in mind the two  objectives of not exceeding the levels in the ordinary environment and abiding 
by the … principle" of exposure "as low as reasonably achievable"  (ALARA).37 The Panel then reviewed 
evidence concerning the ALARA princip le and its application to food safety standards, including the 
views of the experts consulted by the Panel.38 With regard to radioactivity levels that exist in the 
ordinary environment, the Panel stated that "[t]he experts were not familiar with Korea's def inition of 
the 'ordinary environment' being the levels of radiation absent a major nuclear accident."39 The Panel 
                                                
31 Korea's appellant's submission, para.  170. 
32 Korea's appellant's submission, para s. 170 and 197 (referri ng to Panel Report, paras. 7.253 -7.256 
and 8.2.b-e). 
33 Japan's appellee's submission, para.  140. 
34 Panel Report, para.  7.120.  (fn omitted)  
35 Panel Report, para.  7.120.  (fn omitted)  
36 With respect to other issues under Article  5.6 of the SPS  Agreement, the Panel found as a preliminary 
matter that Japan's proposed alternative of testing for caesium with a 100 Bq/kg limit is "another measure"  
within the meaning of footnote 3 to Article  5.6. (Panel Report, paras.  7.122-7.127) The Panel also concluded that 
the proposed alternative measure is technically and economically feasible, noting that Korea already undertakes 
caesium and iodine testing on randomly selected samples from every consignment of Japanese products at the 
border.  (Panel Report, para.  7.149) As to whether Japan's proposed alternative measure is significantly less 
trade -restrictive than Korea's measures, the Panel noted that Korea did not contest that the alternative measure 
would be less trade -restrictive than the import bans. Further, based on evidence concerning "the additional cost 
and time required for the additional testing",  the Panel found that the proposed alternative measure is 
significantly less trade -restrictive than the additional testing requirements. ( Panel Report, paras.  7.150 and 
7.156)  
37 Panel Report, para.  7.165 (referring to Korea's first written submission to the Panel, para.  234).  
38 Panel Report, paras.  7.166 -7.168.  
39 Panel Report, para.  7.170.  WT/DS495/AB/R  
 
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  noted, however, the experts' recognition that "radiological protection in food is based on the principle 
that the additional dose from contamin ating radionuclides in foods should not add significantly to the 
dose already received in the ordinary environment or as they referred to it the 'background dose'."40  
The Panel  stated that it "appreciate[d] Korea's adherence to the ALARA principle" and tha t Korea 
"maintains that its ALOP is not a fixed quantitative threshold".41 At the same time, the Panel 
considered that, "if a Member is applying a particular measure with an express quantitative limit for 
contaminants, that is an indicator that products con taining levels of contaminants below that limit will 
satisfy its ALOP."42 The Panel observed in this connection that "not only for the challenged measures, 
but for food products in general, Korea has established maximum levels for radionuclides with a 
maxim um upper limit of 1  mSv/year for total consumption of man -made radionuclides from all 
sources."43 On this basis, the Panel stated that "it must determine whether Japan's alternative 
measure achieves the level of protection"44 formulated in the following term s submitted by Korea:  
[T]o 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 contaminat ion in food that are "as low 
as reasonably achievable" (ALARA), below the 1  mSv/year radiation dose limit .45  
In light of this articulation of Korea's ALOP, the Panel reasoned 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."46 
In order to a ssess whether Japan's alternative measure would achieve Korea's ALOP, the Panel 
explained that it would examine: (i) the identification and characterization of the contaminants at 
issue; (ii) the levels of contaminants in Japanese food products; (iii) the extent to which Korean 
consumers will be exposed to radionuclides through their diet if Japan's alternative measure is 
adopted; and (iv) risk characterization.47 The Panel stated that, based on this analysis, it would 
determine the level of protection achie ved by Japan's alternative measure and whether "Japan has 
established that testing for caesium alone at a level of 100  Bq/kg would be sufficient to ensure that 
Korean consumers will be exposed to less than 1  mSv/year of radionuclides in food products from all 
sources."48 
Regarding the relevant contaminants and their adverse effects, the Panel concluded that the 
main radionuclides released during the accident were caesium (Cs -134 and Cs -137) and iodine 
(I-131), while strontium and plutonium were also released . The Panel noted that Korea's measures at 
issue only "definitively regulate" these same four radionuclides.49 Regarding leaks since the accident 
and the potential for future leaks, the Panel addressed the relevance of the amount of radionuclides 
released  (referred to as the "source term") to the risk of contamination in food products, stating that:  
The experts concurred that[,] after the initial release, the source term becomes less 
important as you have the ability to produce actual measurements in food. A ll the experts 
agreed that knowing the remaining radionuclides contained in the reactor or the specific 
                                                
40 Panel Report, para.  7.170 (referring to Dr Skuteru d's response to Panel question No. 11 to the experts).  
In this regard, the Panel recorded an expert's view that an effective dose of 1  mSv/year is "considered to be a 
minor addition to already experienced doses – or at the same level as that existing in th e ordinary environment".  
(Panel Report, para.  7.170 ( quoting  Dr Skuterud's response to Panel question No.  11 to the experts))  
41 Panel Report, para.  7.171.  
42 Panel Report, para.  7.172.  
43 Panel Report, para.  7.172.  
44 Panel Report, para. 7.172.  
45 Panel Report , para.  7.172 ( quoting  Korea's opening statement at the second Panel meeting, para.  66). 
(emphasis added by the Panel)  
46 Panel Report, para.  7.173.  
47 Panel Report, para.  7.178.  
48 Panel Report, para.  7.178.  
49 Panel Report, para.  7.183.  The Panel described e stimates of the radionuclides released after the 
accident, and stated that "[c]aesium was the radionuclide released in the greatest absolute numbers as well as in 
the largest proportion to other radionuclides."  The Panel also recorded various factual detai ls and uncertainty 
regarding the release of caesium into the ocean, and noted evidence of the relatively limited release of strontium 
and plutonium. (Panel Report, paras.  7.184 -7.190  (fn omitted) ) WT/DS495/AB/R  
 
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  amount of leaks was not relevant to assessing the potential for specific products to be 
contaminated with radionuclides.50 
The Panel noted the developmen t of "dose coefficients" to determine guideline levels for human 
consumption, based on the properties of radionuclides and "the rate at which the contamination moves 
up the food chain to higher order animals and eventually to humans, the so -called transfer  factor".51 
The Panel stated that these dose coefficients were developed by the International Commission on 
Radiological Protection (ICRP), which "was guided by the principle that human exposure through 
ingestion of man -made radionuclides should not add sig nificantly to doses from background exposure 
and other sources – such as medical treatments and air travel".52 The Panel also discussed the Codex 
Alimentarius Commission (Codex) guideline levels for radionuclides in food and the review conducted 
by the Codex Committee on Contaminants in Food following the FDNPP accident.53 
With respect to the levels of contaminants in Japanese food products, the Panel examined data 
provided by Japan from its food -monitoring programmes and other data sets. The Panel noted "a 
consensus among the experts that the various test results produced by Japan provide a statistically 
valid support for the conclusion that agricultural and fishery products containing less than 100  Bq/kg 
of caesium would contain the additional Codex radi onuclides below or far below their tolerance 
levels".54 Accordingly, the Panel concluded based on "the totality of the evidence, including the 
knowledge about releases of radionuclides from the FDNPP, as well as the uptake of radionuclides by 
the relevant s pecies" that "Japan has established that if a food product contains less than 100  Bq/kg 
of caesium (both Cs -134 and Cs -137) it will necessarily contain amounts of strontium, plutonium and 
other radionuclides in amounts lower than the Codex guideline levels ."55 
The Panel then assessed the potential dietary exposure of Korean consumers to radionuclides 
in food products and the contribution of Japanese products to Korean consumers' overall exposure on 
an annual basis. The Panel reviewed evidence and calculation s presented by Japan that contamination 
levels would remain below 1  mSv/year in a diet exclusively based on meals typically eaten in 
Fukushima or a diet completely consisting  of Japanese marine products.56 The Panel found that "the 
evidence supports a concl usion that testing for food with less than 100  Bq/kg of caesium would result 
in an effective dose below 1  mSv/year, and likely significantly lower, even if 100% of food consumed 
was of Japanese origin."57 
                                                
50 Panel Report, para.  7.192. (fn omitted) The Panel additionally noted the "[r]igorous environmental and 
seawater monitoring" in place and the "relatively quick"  detection in food products of evidence of a major new 
release. (Panel Report, para.  7.193  (fn omitted) ) The Panel also addressed other f actors that Korea considered to 
affect the assessment of the potential contamination of food products with radionuclides, including various 
"issues" concerning the ongoing release and contamination from the FDNPP. The Panel stated with respect to the 
issues raised by Korea that "the consensus of the experts was that they were not relevant to an analysis of the 
potential for contamination in Japanese food products." The Panel also observed that "[t]he experts universally 
stated that actual measurements in fo od were what are required."  In response to specific issues raised by Korea, 
the experts clarified that many were of little relevance from the perspective of protection against radiation 
exposure arising from contaminated food products. (Panel Report, paras . 7.194 -7.195)  
51 Panel Report, paras.  7.196 -7.197.  
52 Panel Report, para.  7.197.  (fn omitted)  The Panel further stated its understanding that "the 
development of the dose coefficient takes into account the ALARA principle as well as the LNT [linear -no-
threshold] approach."  (Ibid.) The Panel explained elsewhere in its Report that "[t]he linear -no-threshold (LNT) 
model currently represents the most widely accepted dose -response model relating exposure to radiation and 
increase in cancer incidence" and that "[t ]he LNT model assumes that there is no threshold below which adverse 
effects can be guaranteed not to occur."  (Panel Report, para.  2.17 (fn omitted) ) 
53 Panel Report, para.  7.198. The Panel noted that this review has not resulted in any modifications to the  
standards, and that "[t]he experts all agreed that the review of the guideline levels did not impact the sufficiency 
of the evidence on overall dose limit, individual dose limits, or how to test for radionuclide contamination in food 
products."  (Ibid.  (fn omitted) ) According to the Panel, Codex uses the ALARA principle when adopting its 
guidelines for substances in foods, and both Japan and Korea use Codex guideline levels for all radionuclides 
except caesium, for which they have adopted a level (100 Bq/kg ) that is ten times lower than the Codex 
standard. (Ibid.)  
54 Panel Report, para.  7.225. (fn omitted) In doing so, the Panel addressed various arguments concerning 
the adequacy of the test results and methodologies used to analyse the data.  
55 Panel Report, para. 7.226.  
56 Panel Report, para.  7.228.  
57 Panel Report, para.  7.236. In this connection, recalling that the 1  mSv/year level is based on annual 
averages, the Panel noted expert explanations that consumption of one outlier fish (a so -called "Frankenfish")  
with high levels of strontium exceeding its caesium levels would not affect the overall conclusion about consumer WT/DS495/AB/R  
 
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Regarding "risk characterization", the Panel turned to assess the link between the onset of 
adverse effects (e.g. cancers) and radiation exposure. Noting the difficulty of tracing such effects to 
one particular source of radiation, the Panel stated that "[t]he ICRP recommended dose limit is the 
basis for fo od safety standards adopted by many national authorities."58 The Panel stated that "the 
upper boundary of Korea's tolerance is 1  mSv/year" and that "Korea seems to adopt as its own the 
risk characterization carried out by the ICRP and utilized by the Codex in developing its maximum 
guideline levels."59 According to the Panel, "Korea's adoption of the 1  mSv/year dose limit and the 
Codex guideline levels for the 20 radionuclides (except caesium) when developing its own limits[] 
reflects an understanding that be low these levels food should be considered as safe for human 
consumption."60 
Finally, the Panel assessed the level of protection achieved by Japan's proposed alternative 
measure in comparison to Korea's ALOP. The Panel was unable to conclude that Japan's al ternative 
measure would achieve human exposure at 1  mSv/year at the time of adoption of the 2011 additional 
testing requirements61 and the product -specific import bans.62 At the same time, the Panel also found 
that, at least since 2013, the data were suffici ent to confirm that caesium levels were consistently 
below 100  Bq/kg and that strontium and plutonium had not been detected in levels even nearing their 
respective Codex guidelines.63 Assessing Japan's alternative measure in light of the volumes of initial 
releases, their dispersion, and their effect on plants and animals in the food chain, combined with the 
expected dietary exposure of Korean consumers to contamination in Japanese products, the Panel 
stated that:  
[T]he evidence supports a conclusion that ut ilizing Japan's alternative measure would 
result in a dose below 1  mSv/year even if 100% of food consumed was of Japanese origin. 
Given that Japanese food products represent a small share of the Korean market, their 
expected contribution to Korean consumer s' dose would be significantly lower.  
Therefore, the Panel finds that Japan's alternative measure ensures that the total dose is 
below 1  mSv/year and likely significantly lower.64 
In comparing this level of protection with Korea's ALOP, the Panel noted tha t Korea's tolerance 
level for caesium is 100  Bq/kg and "not 'trace amounts' or 0.5  Bq/kg".65 Therefore, according to the 
Panel, "testing for 100  Bq/kg of caesium is an appropriate measure for ensuring that Korea's tolerance 
level for that radionuclide is no t exceeded"66, and products from Japan containing less than 100  Bq/kg 
                                                
exposure. (Ibid.) The Panel further noted the views of the experts that, even if the market share of Japanese 
products were to return to pre -accident levels (0.37% of the Korean food market), "the data supports a 
conclusion that this would still result in a dietary exposure of less than 1  mSv/year."  (Panel Report, para.  7.237  
(fn omitted) ) 
58 Panel Report, para.  7.238.  The Panel cited explanations by the experts that the model employed by 
ICRP to calculate the 1  mSv/year dose limit "assumes that there is no threshold below which adverse effects can 
be guaranteed not to occur".  (Ibid., para.  7.239)  
59 Panel Report, para.  7.240. 
60 Panel Report, para.  7.240.  (fn omitted)  
61 Panel Report, para.  7.242. Regarding the 2011 additional testing requirements, the Panel referred to its 
earlier finding that these requirements "were adopted in a situation where there was insufficient sci entific 
evidence".  (Ibid., para.  7.84) The Panel specifically found for the 2011 additional testing requirements that "the 
data were not sufficient to support the conclusion that levels of strontium and plutonium would normally have 
been lower than levels of caesium in products and that testing for 100  Bq/kg of caesium would have ensured that 
the levels of the other radionuclides were below their Codex guideline levels."  (Ibid., para.  7.242)  
62 Panel Report, para.  7.242. Regarding the product -specific import  bans, the Panel recalled that Japan 
itself had "conducted its own risk assessment and determined that the products were not safe for distribution", 
and concluded for this reason that "the evidence does not support a conclusion that Japan's alternative mea sure 
would achieve 1  mSv/year in 2012 for Alaska pollock and Pacific cod from the five relevant prefectures." (Ibid.)  
63 Panel Report, para.  7.243. The Panel "recognize[d] that testing for 100  Bq/kg of caesium should be 
sufficient to identify and prevent th e entry onto market of any goods that exceed the maximum levels 
established". ( Ibid.)  
64 Panel Report, paras.  7.244 -7.245. (fn omitted) In this regard, the Panel noted that "Japan presents a 
'worst case scenario' where the maximum level of exposure that cou ld be reached using its alternative measure 
would be 0.94  mSv/year."  (Panel Report, fn  897 to para.  7.244)  
65 Panel Report, para.  7.249.  
66 Panel Report, para.  7.249.  WT/DS495/AB/R  
 
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  of caesium "would also contain less than Korea's specific maximum levels for strontium, plutonium, 
and the other Codex radionuclides".67 
The Panel thus found that Japan failed to establish  that its proposed alternative measure would 
have achieved Korea's ALOP at the time the 2011 additional testing requirements68 and the product -
specific import bans were adopted.69 The Panel, however, found that Japan's alternative measure 
would achieve Korea 's ALOP with regard to the adoption  of the 2013 additional testing requirements 
and blanket import ban70, and that Japan had established that its alternative measure would achieve 
Korea's ALOP with respect to the maintenance  of all the challenged measures.71 
The Panel therefore found that the 2011 additional testing requirements and product -specific 
import bans were not more trade -restrictive than required when adopted, but were maintained 
inconsistently with Article  5.6 because they were more trade -restricti ve than required at the time of 
the establishment of the Panel.72 The Panel further found that the 2013 additional testing requirements 
and the blanket import ban73 were adopted and maintained inconsistently with Article  5.6 because 
they were more trade -restrictive than required.74 
5.1.3   Whether the Panel erred under Article  5.6 of the SPS  Agreement in finding that the 
alternative measure proposed by Japan would achieve Korea's appropriate level of 
protection  
Korea claims that the Panel committed legal error under A rticle 5.6 because it "effectively 
substituted" an incorrect quantitative standard  as Korea's ALOP75 and thus compared Japan's proposed 
alternative against an incorrect ALOP.76 In particular, Korea contends  that, after initially accepting 
Korea's ALOP, the P anel then proceeded to apply a quantitative standard of 1  mSv/year as Korea's 
ALOP and that the Panel disregarded Korea's actual ALOP by relying on this standard.77 Korea 
emphasizes that its ALOP consists of "several elements", including maintenance of levels of radioactive 
contamination in food as low as reasonably achievable (ALARA), below the 1  mSv/year radiation dose 
limit, at a level that exists in the ordinary environment.78 Korea argues that the Panel's analysis and 
conclusions focus  solely on a quantitative threshold, ignoring the ALARA element, and the maintenance 
of radioactivity levels at levels that exist in the ordinary environment, both of which are part of 
Korea's  ALOP.79 In this regard, Korea submits that the 1  mSv/year dose l imit is an "upper bound" of 
tolerable risk80, and that a measure meeting this threshold would not necessarily meet an ALOP of 
radiation exposure as low as reasonably achievable below 1  mSv/year at a level that exists in the 
ordinary environment, as these ar e two different standards.81  
Japan submits that the Panel correctly determined and applied Korea's ALOP as part of its 
finding that Japan's proposed alternative measure would meet Korea's ALOP. Japan notes that the 
Panel accepted Korea's own formulation of  its ALOP as comprising three elements: (i) the levels that 
exist in the ordinary environment; (ii) ALARA; and (iii) the quantitative dose exposure threshold of 
                                                
67 Panel Report, para.  7.249.  
68 Panel Report, para.  7.250. The Panel recalled in this connec tion that it had found that "there is 
insufficient data to demonstrate that testing for caesium alone would have been sufficient to achieve a dose 
below 1  mSv/year in 2011 when the first additional testing requirements were adopted." (Ibid.)  
69 Panel Report , para.  7.250. The Panel recalled that it had found that "the evidence also did not support a 
conclusion as regards the adoption of the 2012 product -specific import bans that testing only for caesium would 
achieve a 1  mSv/year level of protection with resp ect to Alaska pollock and Pacific cod from the five relevant 
prefectures."  (Ibid.)  
70 Panel Report, para.  7.251. The Panel noted the "exception"  of Pacific cod from Fukushima and Ibaraki 
for which Japan maintained distribution restrictions throughout 2013 because Japan considered it to be unsafe 
for distribution. (Ibid.)  
71 Panel Report, para.  7.252. The Panel also cited the "even smaller concentra tion levels measured in all 
Japanese food products in 2015"  in support of this conclusion. (Ibid.)  
72 Panel Report, para.  7.254.  
73 With the exception of the adoption of the import ban on Pacific cod from Fukushima and Ibaraki.  
74 Panel Report, paras.  7.255 -7.256. 
75 Korea's appellant's submission, para.  184. 
76 Korea's appellant's submission, para.  196. 
77 Korea's appellant's submission, para.  188. 
78 Korea's appellant's submission, para.  187. 
79 Korea's appellant's submission, para.  191. 
80 Korea's appellant's sub mission, para.  194. 
81 Korea's appellant's submission, para.  192. WT/DS495/AB/R  
 
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  1 mSv/year.82 Japan asserts that one aspect of the Panel's task in this dispute was to clarify t he 
relationship between the three elements of Korea's ALOP.83 According to Japan, the Panel found that 
the role of the first two elements ( ordinary environment and ALARA ) was to inform Korea's 
determination of the third element (dose exposure limit of 1  mSv/year).84 Japan argues that the 
ALARA element was not apt to serve as an ALOP because it did not constitute or define a particular 
"level of protection".85 Japan further submits that the Panel properly assessed the ALOP actually being 
applied in Korea's SPS regime based on the quantitative limit used by Korea for contaminants in food.86 
Article  5.6 of the SPS  Agreement provides that:  
Without prejudice to paragraph 2 of Article  3, when establishing or maintaining sanitary 
or phytosanitary measures to achieve th e appropriate level of sanitary or phytosanitary 
protection, Members shall ensure that such measures are not more trade -restrictive than 
required to achieve their appropriate level of sanitary or phytosanitary protection, taking 
into account technical and economic feasibility. [*] 
[*fn original]  3 For purposes  of paragraph 6 of Article  5, a measure is not more trade -restrictive 
than required unless there is another measure, reasonably available taking into account technical 
and economic feasibility, that ach ieves the appropriate level of sanitary or phytosanitary protection 
and is significantly less restrictive to trade.  
We recall that, under Article  5.6, a complainant must establish that an alternative  measure: 
(i) is reasonably available taking into account  technical and economic feasibility; (ii) achieves the 
Member's ALOP; and (iii) is significantly less restrictive to trade than the contested SPS measure.87 
These cumulative elements entail an assessment of a proposed alternative measure that serves as a 
conceptual tool to be used for the analysis under Article  5.6.88 
This appeal concerns the requirement that an alternative measure achieve a Member's ALOP. 
Annex A(5) to the SPS  Agreement defines the "appropriate level of sanitary or phytosanitary 
protection " as "[t]he level of protection deemed appropriate by the Member establishing a sanitary or 
phytosanitary measure to protect human, animal or plant life or h ealth within its territory". The note 
to Annex A(5) explains that the concept of the appropriate level of protection is also referred to as the 
"acceptable level of risk".  
The Appellate  Body has said that a Member's ALOP is an "objective" and that an SPS measure 
is the instrument chosen to attain or implement that objective.89 It is the "prerogative" of a Member 
to set the level of protection that it deems appropriate.90 At the same time, Members adopting 
SPS measures must determine their appropriate level o f protection with sufficient precision to enable 
the application of the relevant provisions of the SPS  Agreement.91 While a Member is not required to 
set the appropriate level of protection in quantitative terms, a Member may not establish its level of 
protection with such vagueness or equivocation as to render impossible the application of the relevant 
disciplines of the SPS  Agreement, including the obligation set out in Article  5.6.92  
In examining a claim under Article  5.6 of the SPS  Agreement, a panel is charged with, inter alia, 
identifying the level of protection of the Member whose SPS measure is challenged and the level of 
                                                
82 Japan's appellee's submission, para.  126. 
83 Japan's appellee's submission, para.  128. 
84 Japan's appellee's submission, para.  129. 
85 Japan's appellee's submission, paras.  131-132. (emphasis original)  
86 Japan's appellee's submission, para.  134. 
87 Appellate  Body Reports,  India – Agricultural Products , para.  5.203; Australia – Salmon , para.  194. 
88 Appellate  Body Report, Australia  – Apples , para.  363. Consequently, a demonstration that an 
alternative measure meets the relevant Member's ALOP does not imply that the Member whose SPS  measure is 
found to be inconsistent with Article  5.6 of the SPS  Agreement must adopt that alternative measure or that the 
alternative measure is the only option t hat would achieve the desired level of protection. (Ibid.)  
89 Appellate  Body Reports, Australia – Salmon , para.  200; India – Agricultural Products , para.  5.204.  
90 Appellate  Body Reports,  India – Agricultural Products , para.  5.205; Australia – Apples , para.  342; 
Australia – Salmon , para.  199. (emphasis omitted)  
91 Appellate  Body Report, India – Agricultural Products , para.  5.205 (referring to Appellate  Body Reports, 
Australia  – Apples , para.  343; Australia – Salmon , paras.  205-206).  
92 Appellate  Body Report, Australia  – Apples , para.  343 (referring to Appellate  Body Report, Australia – 
Salmon , para.  206).  WT/DS495/AB/R  
 
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  protection of the proposed alternative measure.93 A panel would typically be expected to accord weight 
to the respondent's articulat ion of its ALOP, particularly where that appropriate level of protection was 
specified in advance of the adoption of the SPS measure, where the ALOP is specified with sufficient 
precision, and where it has been consistently expressed by the responding Memb er.94 A panel, 
however, is not required to defer completely to a respondent's characterization of its own ALOP, 
particularly where the respondent has not expressed its ALOP with sufficient precision. Rather, a panel 
must ascertain the respondent's ALOP on t he basis of the totality of the arguments and evidence on 
the record, which may include the level of protection reflected in the SPS measure actually applied.95  
The main issue raised by Korea in its appeal is whether the Panel "effectively substituted"96 a 
quantitative standard of  1 mSv/year  as Korea's ALOP and thus applied an incorrect ALOP97 in its 
assessment of the alternative measure proposed by Japan. In setting out the relevant ALOP for its 
analysis under Article  5.6 of the SPS  Agreement, the Panel stat ed that it must determine whether 
Japan's alternative measure achieves the following level of protection:  
[T]o 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 "a s low 
as reasonably achievable" (ALARA), below the 1  mSv/year radiation dose limit .98  
We note that this formulation of the relevant ALOP, as articulated by Korea and accepted by 
the Panel99, consists of both qualitative and quantitative aspects concerning r adioactivity levels in food 
consumed by Korean consumers, namely: (i) the levels that exist in the ordinary environment; 
(ii) ALARA; and (iii) the quantitative dose exposure of 1  mSv/year.  
The Panel acknowledged the multi -faceted character of Korea's formu lation of its ALOP, and 
accordingly "concluded that Korea's ALOP is not quantified at 1  mSv per year, but is rather a qualitative 
ALOP that reflects Korea's adherence to the ALARA principle and its desire not to increase radiation 
exposure beyond what is i n the ordinary environment".100 The Panel made several observations 
concerning the various elements of this ALOP before ultimately accepting the formulation advanced 
by Korea.101  
We observe, however, that, despite recognizing that Korea's ALOP comprises sever al elements, 
various statements throughout the Panel's analysis reflect a predominant focus on exposure below 
1 mSv/year as a decisive indicator of whether Japan's proposed alternative measure would meet 
Korea's ALOP. Notably, having accepted the relevant ALOP as formulated by Korea, the Panel 
immediately stated in light of that formulation 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 elemen t of Article  5.6."102 The Panel reiterated this emphasis on the quantitative threshold 
                                                
93 Appellate  Body Reports, Australia – Apples , para.  344; India – Agricultural Products , para.  5.220.  
94 Appellate  Body Report, India – Agricultural Products , para. 5.221.  
95 Appellate  Body Reports, India – Agricultural Products , para.  5.221 ; Australia – Salmon , para.  207. 
96 Korea's appellant's submission, para.  184. 
97 Korea's appellant's submission, para.  170. 
98 Panel Report, para.  7.172 (referring to Korea's opening statement at the second Panel meeting, 
para. 66). (emphasis added by the Panel)  
99 We note that Korea submits that its ALOP was correctly defined by the Panel at the outset of its 
analysis. (Korea's appellant's submission, para.  185) Japan o bserves on appeal that the Panel accepted Korea's 
own formulation of its ALOP. (Japan's appellee's submission, para.  126) 
100 Panel Report, para.  7.247.  
101 The Panel noted that "the overall limit for all radionuclides set by CODEX STAN 193 -1995 is 
1 mSv/year ." (Panel Report, para.  7.165) With respect to ALARA, the Panel took note of evidence cited by Korea 
that "ALARA is an obligation of means, and not an obligations of results", and further noted an expert's view that 
"ALARA is a process with no easily discer nible end point and … it cannot itself be used as an international 
standard for food acceptance." (Panel Report, paras.  7.166 (referring to Korea's response to Panel question 
No. 57(b), in turn referring to European ALARA Network, Newsletter 31: "Developme nt and dissemination of 
ALARA culture" (11  July 2016)  (Panel Exhibit KOR -140)) and 7.167 (referring to Expert Meeting Transcript, 
para. 1.7)) With respect  to radiation levels that exist in the ordinary environment, the Panel noted the experts' 
recognition that "radiological protection in food is based on the principle that the additional dose from 
contaminating radionuclides in foods should not add significantly to the dose already received in the ordinary 
environment or as they referred to it the 'backgrou nd dose'."  (Panel Report, para.  7.170 ( quoting  Dr Skuterud's 
response to Panel question No. 11 to the experts))  
102 Panel Report, para.  7.173.  WT/DS495/AB/R  
 
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  at the outset of its assessment of whether Japan's proposed alternative measure would achieve Korea's 
ALOP, stating that it would determine whether Japan has established t hat "testing for caesium alone 
at a level of 100  Bq/kg would be sufficient to ensure that Korean consumers will be exposed to less 
than 1  mSv/year of radionuclides in food products from all sources."103 With respect to the level of 
protection achieved by Jap an's proposed alternative measure, the Panel then found that "Japan's 
alternative measure ensures that the total dose is below 1  mSv/year and likely significantly lower."104 
The Panel emphasized the same view when comparing this level of protection to Korea' s ALOP. 
Specifically, the Panel found that "the evidence supports a conclusion that since 2013 Japan's 
alternative measure would achieve a maximum level of exposure below 1  mSv/year and likely 
significantly lower"105 for all but one of the products subject t o the challenged measures. The Panel 
thus found that Japan had established that its suggested alternative measure would achieve Korea's 
ALOP.106 
While neither Article  5.6 nor Annex A(5) to the SPS  Agreement precludes a Member's ALOP 
from containing multiple elements, Korea's appeal regarding the Panel's emphasis on one element of 
the ALOP as accepted by the Panel in this dispute raises the  question of the precise relationship that 
exists between the various elements, both  quantitative and qualitative, of that  ALOP.107 We note that 
the Panel did not clearly resolve whether each of these elements represented a distinct component of 
Korea's ALOP, and how they interact as parts of Korea's overall ALOP. In this respect, the Panel 
examined the development of the 1  mSv/year limit used by Codex in its guideline levels for 
radionuclides.108 The Panel stated that both the ICRP and Codex applied the ALARA principle when 
arriving at the dose limit for all radionuclides (1  mSv/year) and the guideline levels for the individual 
radionuclides.109 The Panel understood that the development of the dose coefficient by the ICRP and 
Codex takes into account the ALARA principle110, and noted that the ICRP was guided by the principle 
that human exposure through ingestion of man -made radionucli des should not add significantly to 
doses from background exposure and other sources – such as medical treatments and air travel.111 
Despite these explanations, the Panel did not address whether the ALARA principle or background 
exposure, as considered by th e ICRP and Codex to develop the 1  mSv/year limit, differs in any way 
from the elements of ALARA or radiation levels in the " ordinary environment" that form part of Korea's 
ALOP.  
Further, the Panel did not resolve whether the qualitative aspects of Korea's ALOP were fully 
comprised by the 1  mSv/year dose limit, such that an alternative measure achieving exposure below 
that quantitative threshold would necessarily achieve the qualitative level of protection represented 
by the ALARA element and mainten ance of radioactivity levels in food at levels that exist "in the 
ordinary environment". The Panel appeared to suggest that this is the case in referring to measures 
applied by Korea to food in general, stating that "the qualitative ALOP [i.e. the ALARA el ement and 
radioactivity levels in the ordinary environment] is reflected and inherent in the measures Korea 
applies to food products – which seek to limit overall consumption to below 1  mSv/year."112 In 
characterizing the relevant risk, the Panel referred to  the 1  mSv/year dose limit as the "upper 
boundary of Korea's tolerance" before concluding that "Korea's adoption of the 1  mSv/year dose limit 
and the Codex guideline levels for the 20 radionuclides (except caesium) when developing its own 
                                                
103 Panel Report, para.  7.178.  
104 Panel Report, para.  7.245. The Panel similarly stated that Japan's alternative measu re "would achieve 
an exposure dose for Korean consumers below 1  mSv/year and likely significantly lower".  (Ibid., para.  7.246)  
105 Panel Report, para. 7.251.  
106 Panel Report, para.  7.251. Similarly, the Panel found that "Japan has also established that its 
alternative measure would result in an exposure level below 1  mSv/year or significantly lower and achieve 
Korea's ALOP with regard to the maintenance of all the measures."  (Panel Report, para.  7.252)  
107 This is particularly so given Japan's argument before th e Panel that Korea's ALOP is in fact an exposure 
level of 1  mSv/year, and the nature of Japan's proposed alternative measure to verify that the caesium content 
of products does not exceed a specified quantitative level. (Panel Report, paras.  7.120 and 7.16 1; Japan's 
second  written submission to the Panel, paras.  220-234) We also note, in this regard, the European  Union's view 
that "the key issue … is the relationship between Korea's 1  mSv/year benchmark and the qualitative elements ". 
(European  Union's third  participant's submission, para.  67) 
108 Panel Report, paras.  2.35-2.36. 
109 Panel Report, para.  7.171.  
110 Panel Report, para.  7.197. The Panel also understood that "the development of the dose coefficient 
takes into account … the LNT approach", which the Panel  explained refers to the use of a "linear no threshold" 
model that "assumes that there is no threshold below which adverse effects can be guaranteed not to occur".  
(Ibid., para s. 7.197 and 7.239)  
111 Panel Report, para.  7.197; see also ibid., para. 7.170.  
112 Panel Report, para.  7.247.  WT/DS495/AB/R  
 
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  limits[] reflects  an understanding that below these levels food should be considered as safe for human 
consumption."113 The Panel further considered 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."114 Although these statements would suggest that 
the Panel considered the quantitative threshold to be an expression of Korea's ALOP, they stand in 
tension with the Panel 's stated appreciation of "Korea's adherence to the ALARA principle"115, its 
recognition that Korea "maintains that its ALOP is not a fixed quantitative threshold"116, and its 
ultimate acceptance of the ALOP expressed by Korea for purposes of Article  5.6.  
The Panel's findings of an exposure limit that is "significantly lower"117 than the purely 
quantitative standard of 1  mSv/year arguably reflect a qualitative dimension of reduction below  that 
numeric exposure limit that, like the elements of ALARA and "levels t hat exist in the ordinary 
environment", forms part of Korea's ALOP. At the same time, we recall that  the identification of a 
Member's ALOP is a critical element of the analysis under Article  5.6. This is because, pursuant to 
footnote  3 to Article  5.6, a me asure cannot be considered "more trade -restrictive than required" 
unless, inter alia , there is "another measure" that is shown to achieve that ALOP. In this dispute, the 
Panel identified the relevant ALOP as maintaining radioactivity levels in food "at lev els that exist in the 
ordinary environment" and thus maintaining those levels as low as reasonably achievable, below the 
1 mSv/year radiation dose limit.118 In identifying the ALOP in these terms, the Panel did not 
subordinate any of the various aspects of t his ALOP or clearly find that certain aspects (namely, the 
elements of ALARA and "levels that exist in the ordinary environment") were necessarily comprised 
by the quantitative exposure limit of 1  mSv/year. Rather, the formulation advanced by Korea and 
accepted by the Panel reflected a multi -faceted level of protection that would need to be satisfied in 
its entirety in accordance with the requirements of Article  5.6 of the SPS  Agreement. In our view, the 
Panel's findings as to achievement of exposure "below " or "significantly lower" than that upper 
boundary do not clearly correspond to the other integral elements of the ALOP that the Panel identified 
as being the basis for its analysis under Article  5.6. 
Moreover, we do not consider achievement of the multi -faceted ALOP accepted by the Panel to 
follow automatically from the Panel's observations as to the "conservative" nature of the proposed 
alternative measure and Japan's supporting argumentation concerning, for example, the relationship 
between the 100  Bq/kg contamination level and Codex standards119 or the overestimation of Korean 
dietary  exposure to Japanese products.120 While such considerations may have been potentially 
relevant to the Panel's application of Article  5.6, the Panel did not explicitly draw on these 
considerations in carrying out the required comparison under Article  5.6 between the level of 
protection achieved by the alternative measure proposed by Japan and Korea's ALOP as identified by 
the Panel.121 
Having accepted Korea's formulation of its AL OP, it was incumbent on the Panel to assess 
whether the alternative measure proposed by Japan, namely, testing whether the caesium content of 
food products  exceeds 100  Bq/kg, would achieve Korea's ALOP by maintaining levels of radioactivity 
that exist in t he ordinary environment, and as low as reasonably achievable, below the 1  mSv/year 
radiation dose limit. The Panel, however, did not explicitly integrate the various elements of Korea's 
ALOP to account for all of these elements in assessing the level of pr otection that would be achieved 
by Japan's alternative measure. Rather, the Panel found that Japan's alternative measure would 
                                                
113 Panel Report, para.  7.240. The Panel distinguished caesium among the radionuclides regulated by 
Korea given that Korea applied lower limits than those provided for in th e Codex guideline levels. (Ibid., 
para. 2.109 and Tables 2 and 5)  
114 Panel Report, para.  7.172.  
115 Panel Report, para.  7.171.  
116 Panel Report, para.  7.171.  
117 Before the Panel, Japan had "calculated that applying this limit [of 100  Bq/kg] to imports would result 
in an estimated maximum exposure dose of 0.8  mSv/year (0.94  mSv/year in the worst -case scenario)".  (Panel 
Report, para.  7.120 (fn omitted) and fn  897 to para.  7.244)  
118 We note that Korea acknowledged before the Panel that "it has adopted the Codex b enchmark of 
1 mSv/year radiation exposure limit, in order to quantify the highest radiation exposure it is willing to accept, 
keeping in mind the two objectives of not exceeding the levels in the ordinary environment and abiding by the 
ALARA principle."  (Panel Report, para.  7.165 (emphasis added ; fn omitted )) 
119 Panel Report, para.  7.168.  
120 Panel Report, paras.  7.233 -7.234 and 7.236.  
121 Appellate  Body Reports, India – Agricultural Products , para.  5.206; Australia  – Apples , para.  344. WT/DS495/AB/R  
 
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  achieve exposure "below 1  mSv/year" or "significantly lower"122 than 1  mSv/year, which the Panel 
recognized as "the  upper boundary  of Korea's tolerance".123  
The specification of an ALOP is both a prerogative and an obligation of the responding Member 
under Article  5.6.124 Members adopting SPS measures must determine their appropriate level of 
protection with sufficient precision as to en able the application of the relevant provisions of the 
SPS Agreement.125 A panel must ascertain the respondent's ALOP on the basis of the totality of the 
arguments and evidence on the record126, which may include evidence of the level of protection 
reflected i n the SPS measure actually applied.127 Where a panel considers that a respondent's ALOP 
differs from that articulated by the respondent, the panel must clearly explain what it has determined 
the respondent's ALOP to be, along with the reasons and evidentiary  basis for the panel's 
determination. Reasons for such a determination may include whether the respondent has expressed 
its ALOP in a manner that it is insufficiently precise or that would otherwise render impossible the 
application of the disciplines of A rticle 5.6.128  
In this dispute, the Panel made certain statements concerning the qualitative aspects of Korea's 
ALOP that may have been relevant to their significance under Article  5.6.129 In particular, the Panel 
cited evidence concerning the objective of im plementing ALARA, which stated that "ALARA is an 
obligation of means, and not an obligation of results, in the sense that the result of ALARA depends 
on processes, procedures, and judgments and is not a given value of exposure."130 While such 
statements coul d have called into question whether the ALARA principle or radioactivity levels that 
exist in the ordinary environment can serve as a meaningful ALOP, or as parts thereof, the Panel did 
not resolve the issue and did not make any finding to this effect. The  Panel also did not determine 
that the ALARA principle, as applied by the ICRP and Codex131, and the principle that food 
contamination should not add significantly to the doses received in the ordinary environment132 are 
equivalent to the qualitative elements of the ALOP as expressed by Korea. Ultimately, the Panel 
accepted Korea's own formulation of the relevant ALOP as the level of protection that would need to 
be achieved by Japan's alternative measure.133 Thus, the Panel did not explicitly examine whether the  
ALARA element and the maintenance of radioactivity levels in food "at levels that exist in the ordinary 
environment" were insufficiently precise or otherwise incapable of serving as elements of Korea's ALOP 
for the purposes of assessing alternative measur es under Article  5.6.  
                                                
122 Panel Report, paras.  7.245 -7.246 and 7.251 -7-252. 
123 Panel Report, para.  7.240.  (emphasis added)  
124 Appellate  Body Reports, India – Agricultural Products , para.  5.221; Australia – Salmon , paras.  199 and 
205-206. 
125 Appellate  Body Report, India – Agricultural Products , para . 5.205 (referring to Appellate  Body Reports, 
Australia – Salmon , paras.  205-206; Australia  – Apples , para.  343).  
126 The Appellate  Body has said that "[t]his duty applies equally when a claimant further contends that the 
appropriate level of protection expr essed or identified by the respondent for purposes of WTO dispute settlement 
proceedings does not genuinely reflect that Member's appropriate level of protection."  (Appellate  Body Report, 
India – Agricultural Products , para.  5.221)  
127 Appellate  Body Reports , India – Agricultural Products , paras.  5.221 -5.222; Australia – Salmon , 
para. 207. 
128 Appellate  Body Reports, India – Agricultural Products , para.  5.205; Australia  – Apples , para.  343; 
Australia – Salmon , paras.  206-207. 
129 For example, regarding the ALARA element of Korea's ALOP, the Panel noted the absence of evidence 
on how adherence to this element "pre-existed the onset of this proceeding" or "how Korea developed its ALOP 
[including the ALARA element] or where this ALOP is set forth in its internal legislation or regulations".  (Panel 
Report, fn  716 to para.  7.171) Regarding radiation levels in the ordinary environment, the Panel noted that 
"[t]he experts [appointed by the Panel] were not familiar with Korea's definition o f the 'ordinary environment' 
being the levels of radiation absent a major nuclear accident."  (Panel Report, para.  7.170) The Panel further 
observed that Korea's tolerance level for caesium is 100  Bq/kg and that the measures Korea applies to food 
products s eek to limit overall consumption to below 1  mSv/year. (Panel Report, paras.  7.172, 7.247, and 7.249)  
130 Panel Report, para.  7.166 (referring to Korea's response to Panel question No. 57(b), in turn quoting  
European ALARA Network, Newsletter 31: "Development  and dissemination of ALARA culture"  (11 July 2016)  
(Panel Exhibit KOR -140)).  Relatedly, the Panel noted a clarification from the ICRP that "the optimisation principle 
(of which ALARA is a part) applies in all circumstances and that it is a process rather than an endpoint."  (Panel 
Report, para.  6.35 (referring to ICRP's response to Panel question No. 1))  
131 Panel Report, paras.  7.166 -7.168.  
132 Panel Report, paras.  7.170 and 7.197.  
133 Panel Report, para.  7.172 (referring to Korea's opening statement at the seco nd Panel meeting, 
para. 66). WT/DS495/AB/R  
 
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Overall, the Panel framed its analysis under Article  5.6 of the SPS  Agreement according to an 
ALOP containing multiple elements, while reaching conclusions with respect to Japan's alternative 
measure, that leave unclear whether it co nsidered the alternative measure to satisfy all of the 
elements of the ALOP it had identified. The Panel's ultimate findings reflect an effective subordination 
of the elements of ALARA and radioactivity levels "in the ordinary environment" to the quantitat ive 
element of Korea's ALOP, in a manner that is at odds with the formulation of the ALOP explicitly 
accepted by the Panel at the outset of its analysis. Based on the requirements of Article  5.6, the Panel 
was required to have either clearly accounted for all elements of Korea's ALOP in comparing the level 
of protection that would be achieved by Japan's proposed alternative measure, or to have explicitly 
determined, based on the totality of the evidence, that certain elements were not part of the relevant 
ALOP under Article  5.6. We consider that the Panel, having ultimately failed to account clearly for all 
elements of the ALOP attributed to Korea in relation to the level of protection achieved by Japan's 
proposed alternative measure, erred in its applicatio n of Article  5.6 and assessment of whether Korea's 
measures are more trade -restrictive than required.  
Our finding of error concerns the Panel's acceptance of an ALOP consisting of quantitative and 
qualitative aspects, and its comparison to an alternative measure in a manner that effectively focuses 
on achievement of protection to some degree "below" the quantitative threshold that forms only 
one part of that ALOP. We are not called upon to consider whether Korea's ALOP could be equated or 
reduced to exposu re "below" or even "significantly lower " than 1 mSv/year. We do not express a view 
on the Panel's assessment of factual matters that are not challenged on appeal, including the levels 
of contaminants in Japanese food products, the relationship and ratios of different radionuclides based 
on releases fr om the FDNPP, and the potential dietary exposure of Korean consumers to radionuclides 
in food products.  
5.1.4   Conclusion  
A panel examining a claim under Article  5.6 of the SPS  Agreement is charged with, inter alia , 
ascertaining the respondent's ALOP on the basi s of the totality of the arguments and evidence on the 
Panel record. A panel is also required to identify the level of protection that would be achieved by the 
alternative measure proposed by the complainant. The Panel in this dispute accepted Korea's own 
articulation of the relevant ALOP as one containing the following elements concerning radioactivity 
levels in food consumed by Korean consumers: (i) the levels that exist in the ordinary environment; 
(ii) exposure "as low as reasonably achievable"; and (ii i) the quantitative dose exposure of 
1 mSv/year. While the Panel accepted Korea's articulation of this multi -faceted ALOP, its analysis 
focuses on the quantitative element of 1  mSv/year. The Panel reached conclusions with respect to 
Japan's alternative mea sure that leave unclear whether it considered the alternative measure to satisfy 
all of the elements of Korea's ALOP it had identified. The Panel's findings effectively subordinated the 
elements of ALARA and radioactivity levels "in the ordinary environmen t" to the quantitative element 
of exposure below 1  mSv/year. This is at odds with the articulation of the ALOP explicitly accepted by 
the Panel at the outset of its analysis.  
We therefore find that the Panel erred in its application of Article  5.6 of the SPS Agreement in 
finding that Japan's proposed alternative measure achieves Korea's ALOP. Consequently, we reverse  
the Panel's findings of inconsistency with Article  5.6 with respect to: (i)  the adoption of the blanket 
import ban (except for the ban on Pac ific cod from Fukushima and Ibaraki) and the 2013 additional 
testing requirements; and (ii)  the maintenance of all of Korea's measures.  
5.2  Article  2.3 of the SPS  Agreement  
5.2.1   Introduction  
Korea appeals the Panel's findings that Korea acted inconsistently with Ar ticle 2.3 of the 
SPS Agreement with respect to: (i)  the adoption of the blanket import ban (except for the ban on 
Pacific cod from Fukushima and Ibaraki) and the 2013 additional testing requirements; and (ii)  the 
maintenance of all of Korea's measures. In particular, Korea challenges the Panel's interpretation and 
application of Article  2.3, first sentence, concerning whether "similar conditions prevail" between the 
territories of Japan and other Members, and whether Korea's measures result in arbitrary or 
unjustifiable discrimination. Korea further challenges the Panel's finding that its measures constitute 
disguised restrictions on international trade in violation of Article  2.3, second  sentence. Korea requests WT/DS495/AB/R  
 
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  us to reverse the Panel's findings that Korea  acted inconsistently with Article  2.3.134 Japan contends 
that the Panel correctly found that similar conditions prevail between Japanese food products and 
products from other sources, and that Korea has not established any legal error with respect to the 
Panel's findings on arbitrary or unjustifiable discrimination or disguised restrictions on international 
trade.135 We begin by summarizing the Panel's  findings under Article  2.3 before addressing Korea's 
claims on appeal.  
5.2.2   The Panel's findings  
Before the Panel,  Japan claimed that Korea's measures are inconsistent with the first sentence 
of Article  2.3 of the SPS  Agreement because they arbitrarily or unjustifiably discriminate against 
Japanese products. In this connection, Japan claimed that the conditions of foo d products from Japan  
and from other origins are similar because they pose similar SPS risks regulated by Korea's  measures. 
Japan additionally claimed that Korea's measures constitute a disguised restriction on international 
trade within the meaning of the  second sentence of Article  2.3. Korea contended before the Panel that 
the relevant conditions are not similar between Japan and other Members, and that any distinction 
drawn by the challenged measures is rationally connected to the differences in the cond itions 
prevailing in the territories of the Members concerned.136  
Under the first sentence of Article  2.3, the Panel assessed whether identical or similar conditions 
prevail between Japan and other Members, and then examined whether Korea's measures arbitra rily 
or unjustifiably discriminate between Japanese products and those of other Members.137 
Regarding "the type of conditions that can be [the] subject of a comparison under 
Article  2.3"138, the Panel considered  that "the regulatory objective of a measure shou ld inform the 
Panel's determination of the relevant conditions" to be compared under Article  2.3.139 The Panel 
further considered that the phrase "including between their own territory and that of other Members", 
which appears at the end of the first sentenc e of Article  2.3, "identifies 'territory' as an example of 
conditions that could be compared, but it does not preclude that other conditions could be compared 
as well" .140 Based on these considerations, the Panel declined to limit the conditions to be compar ed 
under Article  2.3 only to territorial conditions in different Members, and thus exclude the conditions of 
products.141  
In this connection, the Panel set out its views on the relationship between Article  2.3 and other 
provisions of the SPS  Agreement and t he General Agreement on Tariffs and Trade 1994 (GATT  1994), 
including Articles 5.2 and 5.5 of the SPS  Agreement and Articles I:1, III:4, and X:1 of the 
GATT  1994.142 The Panel further reasoned that "SPS measures regulate products and the risks that 
they can transfer from one territory to another."143 The Panel contrasted cases involving "measures 
adopted to prevent the spread of pests or diseases" in which "territorial aspects are likely to be more 
prominent compared to disputes over measures targeting 'risks a rising from additives, contaminants, 
toxins or disease -causing organisms in foods, beverages or feedstuffs', covered by Annex A(1)(b)."144 
The Panel considered that, "even when examining territorial conditions – such as the presence of pests 
or environmental  contamination – it is done in light of the ultimate purpose of addressing risks of 
products in international trade."145 The Panel concluded that its determination of the relevant 
"conditions" under Article  2.3 "should be informed by the regulatory objective  of the challenged 
measures and the justification relied upon by the Member in light of the character of the measures 
                                                
134 Korea's appellant's submission, paras. 291, 322, and 333 (referring to Panel Report, paras. 7.276, 
7.283, 7.321 -7.322, 7.349 -7.350, 7.355, 7.359 -7.360, and 8.3.a -b). 
135 Japan's appellee's submission, paras.  145, 349, and 372.  
136 Panel Report, paras.  7.258 and 7.357 -7.358.  
137 Panel Report, para.  7.259. 
138 Panel Report, para.  7.261.  
139 Panel Report, para.  7.266.  
140 Panel Report, para.  7.267.  (fn omitted)  
141 Panel Report, paras.  7.268 -7.275.  
142 Panel Report, paras.  7.268 -7.269 and 7.272 -7.275.  
143 Panel Report, para.  7.270.  
144 Panel Report, para.  7.270.  
145 Panel Report, para.  7.270.  (fn omitted)  WT/DS495/AB/R  
 
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  and specific circumstances of the case".146 In this regard, the Panel found that it was not precluded 
"from considering the risk present in products in international trade as the relevant condition".147 
Turning to the relevant "conditions" in this dispute, the Panel reviewed evidence concerning 
Korea's regulatory objective and the risks being addressed by its measures.148 The Panel noted "the 
close link between Korea's measures, their complementarity and their single regulatory objective", 
and, based on these factors , it "view[ed] Korea's import bans and the additional testing requirements 
as part of an overall regime purs uing a single objective of protecting Korea's population from potential 
adverse effects from consumption of food contaminated with radionuclides".149 The Panel therefore 
considered the relevant conditions to be compared under Article  2.3 to be "whether produ cts from 
Japan and the rest of the world have a similar potential to be contaminated … and whether the levels 
of contamination would be below Korea's tolerance levels".150 
In assessing the potential for contamination with caesium and the additional radionucl ides in 
food products from Japan and other origins, the Panel first addressed the source of radioactive 
contamination and, in light of the nature and volumes of the radionuclides released from the FDNPP, 
focused on the potential contamination by caesium, s trontium, and plutonium isotopes.151 While 
recognizing the "unprecedented nature" of the FDNPP accident as "the largest release of radionuclides 
from a nuclear accident into the marine environment", the Panel also noted major releases of 
radionuclides and co ntamination of the marine environment prior to that accident.152 The Panel 
reviewed evidence concerning the release of radionuclides in general and the process of contamination 
of plants, animals, and fungi ("radionuclide uptake")153 to conclude that "past rel eases of radionuclides 
to the environment continue to affect food products and mean that food from anywhere in the world 
has the potential to be contaminated with radionuclides."154 
The Panel next turned to the levels of radionuclides in food based on data p rovided by Japan. 
Recalling the progressive imposition of the measures over time, their different product coverage, and 
Japan's challenge against the adoption and maintenance of the measures, the Panel stated that it 
would first determine "whether the cond itions were similar in 2011, 2012, and 2013 with respect to 
the groups of products covered by each measure", and then determine "whether the conditions were 
similar when the Panel was established on 28  September  2015 and whether they continued to be 
so".155  
The Panel found that Japan did not establish the existence of similar conditions in Japanese and 
non-Japanese products at the time of adoption of the 2011 additional testing requirements156 and the 
product -specific bans.157 Regarding the adoption of the blanket import ban, the Panel found the data 
to "support[] a conclusion that the potential caesium contamination in these products was below the 
100 Bq/kg tolerance level" for all but one of the products covered by Japan's  challenge.158 The Panel 
                                                
146 Panel Report, para.  7.276.  
147 Panel Report, para.  7.276.  
148 Panel Report, paras.  7.280 -7.282. In addition to Korea's additional testing requirements and import 
bans, the Panel also examined measures that were not challenged by Japan, including the testing of randomly 
selected samples from every consignment for caesium and iodine, the requirement of origin certifi cates and 
pre-export caesium and iodine testing certificates, as well as internal measures for additional testing. (Ibid., 
para. 7.282)  
149 Panel Report, para.  7.283.  
150 Panel Report, para.  7.283. The Panel specifically referred to the potential to be contami nated with "the 
20 Codex radionuclides, in particular with caesium, iodine, strontium and plutonium".  (Ibid.)  
151 Panel Report, para.  7.290.  
152 Panel Report, para.  7.292.  (fn omitted)  
153 Panel Report, paras.  7.293 -7.297.  
154 Panel Report, para.  7.298.  
155 Panel Re port, para.  7.300.  
156 Panel Report, para.  7.301. This was  due to "the absence of sufficient data directly addressing the 
conditions of the Japanese products subject to the challenged measure".  (Ibid.)  
157 Panel Report, para.  7.302. Specifically, the Panel fou nd that Japan did not "establish its factual 
assertion that the potential for radionuclide contamination in Pacific cod and Alaska pollock from the relevant 
prefectures in 2012 [was] below Korea's tolerance levels" , based on evidence of Japan's own imposition of 
internal restrictions on these products. The Panel considered that "[t]hese restrictions are an indication that 
Japan itself concluded that there was a high potential for contamination in these fishery produc ts in these areas 
in 2012."  (Ibid.)  
158 Panel Report, para.  7.303. Specifically, the Panel found that "the data supports a conclusion that the 
potential caesium contamination … was below the 100 Bq/kg tolerance level"  in relation to 27 of the fishery WT/DS495/AB/R  
 
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  found with respect to the adoption of the 2013 additional testing requirements that "Japan has 
established its factual assertion that, in general, the levels of caesium contamination in all Japanese 
food products were below 100  Bq/kg."159 For the maintenance of the import bans and the additional 
testing requirements, the Panel found that Japan established "that the potential for contamination 
with caesium in excess of 100  Bq/kg is low".160 
The Panel then stated that it would compare "the pot ential for contamination with caesium in 
Japanese products … with those of other origins".161 For this purpose, the Panel compared test results 
of Japanese and non -Japanese food products "taking into account the Panel's findings about past 
releases of caesiu m, their global reach and potential to transfer to food products".162 The Panel 
concluded on this basis that "the majority of both Japanese and non -Japanese products have potential 
to contain caesium in amounts below the 100  Bq/kg tolerance level."163 With res pect to strontium and 
plutonium, the Panel again compared test results of Japanese and non -Japanese food products164 
"taking into account generally low levels of strontium and plutonium released globally and from the 
FDNPP".165 On this basis, the Panel found t hat "food products from Japan and from other origins have 
similar potential for containing strontium and plutonium below their respective tolerance levels."166 
The Panel rejected the relevance of potential future releases from the FDNPP to whether the condit ions 
in food products were similar when Korea adopted the measures and as of the establishment of the 
Panel.167 
The Panel therefore concluded that similar conditions existed in Japan and in other Members 
with regard to the adoption of the 2013 additional tes ting requirements and the blanket import ban 
(except for the ban on Pacific cod from Fukushima and Ibaraki), and that similar conditions existed 
with regard to the maintenance of Korea's import bans and additional testing requirements at the time 
of the es tablishment of the Panel.168 
The Panel proceeded to analyse whether the measures for which similar conditions existed 
arbitrarily or unjustifiably discriminated against Japanese products.169 With respect to the import bans, 
the Panel concluded based on a varie ty of factors that "Korea's import bans are not rationally 
connected to the objective of protecting Korea's population against the risk arising from consumption 
of contaminated food products."170 As a result, the Panel found that Korea's maintenance of the 
product -specific bans and the blanket import ban amounts to arbitrary or unjustifiable discrimination, 
and that "the discrimination resulting from the adoption of the blanket import ban … constitute[s] 
arbitrary or unjustifiable discrimination."171 With respe ct to the additional testing requirements, the 
Panel found that "there is no rational connection between the discrimination resulting from applying 
the additional testing requirements to Japanese food products and the stated regulatory objective of 
                                                
product s from all eight prefectures and Pacific cod from Aomori, Chiba, Gunma, Iwate, Miyagi, and Tochigi, but 
not for Pacific cod from Fukushima and Ibaraki.  (Ibid.)  
159 Panel Report, para.  7.306.  
160 Panel Report, para.  7.311.  In support of this finding, the Panel noted data showing a continuous 
decline in levels of caesium in Japanese products, and the Panel addressed the significance of "outliers"  in the 
data for some samples with caesium in excess of 100  Bq/kg. (Panel Report, paras.  7.308 -7.311) 
161 Panel Report, p ara. 7.312.  
162 Panel Report, para.  7.314.  
163 Panel Report, para.  7.314.  
164 The Panel noted the relatively limited measurements of strontium and plutonium and used data on 
samples tested by Korea at the point -of-sale, while referring to its findings in respons e to Korea's objections on 
the sufficiency of the sample size to draw valid conclusions. (Panel Report, paras.  7.316 -7.317)  
165 Panel Report, para.  7.319.  
166 Panel Report, para.  7.319.  
167 Panel Report, para.  7.320.  
168 Panel Report, paras.  7.321 -7.322. The Panel  stated that it would not continue the analysis with respect 
to the adoption of the 2011 additional testing requirements or the product -specific import bans, because Japan 
had failed to establish that similar conditions existed in that regard. (Ibid., para . 7.322)  
169 The Panel made separate findings that the import bans and additional testing requirements 
discriminate against Japanese products. (Panel Report, paras.  7.324 -7.325 and 7.330 -7.332)  
170 Panel Report, para.  7.349. The Panel's conclusion was based on  "a cumulative assessment"  of various 
factors, namely: (i) the high degree of trade -restrictiveness of the measures; (ii) the levels of caesium and 
additional Codex radionuclides measured in the relevant Japanese fishery species well below Korea's toleranc e 
levels; (iii)  the lack of review of the measures within a reasonable period of time with a view to conducting a risk 
assessment; (iv) the Panel's findings that the import bans are inconsistent with Article  5.6; and (v)  the 
disregarding of the origin and contamination levels of a product harvested by a Japanese ship and packaged or 
processed in one of the eight prefectures. (Ibid.)  
171 Panel Report, para.  7.350. This finding excluded the ban on Pacific cod from Fukushima and Ibaraki.  WT/DS495/AB/R  
 
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  the mea sure."172 Therefore, the Panel considered "the discriminatory treatment afforded by the 
additional testing requirements when they were adopted in 2013 as well as the maintenance of both 
the 2011 and the 2013 additional testing requirements to constitute arbi trary or unjustifiable 
discrimination".173 
Under the second sentence of Article  2.3, the Panel found that the import bans and additional 
testing requirements "constitute equally a disguised restriction on international trade" based on its 
finding of arbitrar y or unjustifiable discrimination.174 
5.2.3   Whether the Panel erred under Article  2.3 of the SPS  Agreement in finding that 
"similar conditions prevail" in Japan and other Members  
Korea challenges the Panel's findings with respect to the scope of the conditions tha t must be 
compared under Article  2.3 of the SPS  Agreement . As an interpretive matter, Korea takes issue with 
the Panel's reliance on the principle of effective treaty interpretation, considerations of object and 
purpose, and contextual reference to other n on-discrimination provisions of the SPS  Agreement and 
GATT  1994.175 Korea further argues that the Panel erred in conducting "an overly narrow application 
of Article  2.3 that did not take full account of the circumstances or factors that made up the relevant 
conditions".176 In this regard, Korea considers that the Panel applied an incorrect standard that is 
focused exclusively on the risk present in products as " the relevant condition".177 According to Korea, 
the Panel failed to explain why "the level of contamina tion of the products … should be the defining 
standard and all other circumstances or factors (e.g. environmental and ecological conditions) … are 
irrelevant to defining the relevant conditions in this dispute."178 
Korea specifically criticizes the Panel for  having "focused almost exclusively on the product test 
data" in its analysis as a "fail[ure] to properly assess whether the conditions in Japan and the 
conditions in the rest of the world were similar".179 In Korea's view, the relevant conditions "had to 
include the environmental and ecological conditions in Japan and the status of the FDNPP" in addition 
to the "insufficiencies of the information about the ecological conditions in Japan, as well as about the 
status of the FDNPP".180 In this respect, Korea argu es that the Panel did not sufficiently assess 
radionuclide dispersion and contamination as they relate specifically to the FDNPP accident, despite 
the Panel's recognition of various factors that would be relevant to such radionuclide dispersion and 
contami nation.181 For example, Korea submits that the Panel recognized that radionuclide dispersion 
                                                
172 Panel Report, para.  7.355. In support of this finding, the Panel considered various factors, including: 
(i) the trade -restrictiveness of the additional testing requirements; (ii) the "low threshold"  to trigger additional 
testing as compared with Korea's tolerance levels; (iii) the fact that Korea does not conduct at -the-border testing 
for additional radionuclides for countries and products "in which higher concentration of radionuclides have been 
detected than in Japanese products" ; (iv) Korea's practice of administering import bans on Japanese products 
strictly on the basis of the nationality of the fishing vessel or location of the processing or packaging plant, 
regardless of the products' origin an d contamination levels; and (v) its findings that there was sufficient 
knowledge about the levels of contamination in Japanese food products at the time the 2013 additional testing 
requirements were adopted, and that Korea had not completed a risk assessme nt of these requirements. (Ibid., 
paras.  7.351 -7.354)  
173 Panel Report, para.  7.355.  
174 Panel Report, para.  7.359.  The Panel found it unnecessary to consider other grounds put forward by 
Japan to support its claim under Article  2.3, second sentence  – namely, statements by Korean officials indicating 
protectionist intent and the de facto restrictive effect of the additi onal testing requirements – and "exercise[d] 
judicial economy with respect to them".  (Ibid.)  
175 Korea's appellant's submission, paras.  251-266. In particular, Korea contends that "the Panel disclosed 
its own preconceived view of the scope of Article  2.3" in  its consideration that "remov[ing] whole categories of 
SPS measures" from the scope of Article  2.3 "would be contrary to the principles of effective treaty 
interpretation".  (Ibid., paras.  252-253 ( quoting Panel Report, para.  7.268)) Korea additionally con trasts the 
obligation under Article  2.3 of the SPS  Agreement with those of Articles  I:1 and III:4 of the GATT  1994 in that 
the latter explicitly call for a product -based comparison. (Ibid., paras.  261-264) Korea also contrasts the chapeau  
of Article  XX of the GATT  1994, which "functions as an equilibrium device [that] should not cancel out the role of 
either substantive GATT obligations or each of the sub -paragraphs of Article  XX", with Article  2.3, "which 
provides for an independent obligation without any exception clauses".  (Ibid.,  para. 265) 
176 Korea's appellant's submission, para.  250. 
177 Korea's appellant's submission, para.  268 (referring to Panel Report, paras.  7.276 and 7.283). 
(emphasis added by Korea)  
178 Korea's appellant's submission, para.  269 (refe rring to Panel Report, paras.  7.276 and 7.283).  
179 Korea's appellant's submission, para.  274. 
180 Korea's appellant's submission, para.  276. 
181 Korea's appellant's submission, paras.  277-279. WT/DS495/AB/R  
 
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  may depend on "the atmospheric transport, precipitation, sea currents, as well as physical and 
chemical characteristics of specific isotopes"182, but that "the Panel d id not make any assessment of 
these factors or how they affected the dispersion of the radionuclides released before and after the 
accident from the FDNPP."183 Korea further notes the Panel's observation that fish and marine species 
"can absorb radionuclides  directly from water, from dietary sources, such as plankton, forage fish and, 
to a lesser extent, sediments in [the] case of demersal species"184, but that the Panel "failed to assess 
these factors in connection with the FDNPP".185 Korea also argues that the Panel failed to take account 
of "continuous releases of radionuclides"186 after the accident, and that "the very fact that there is an 
active source of radionuclide contamination in Japan makes conditions there different ."187 Korea thus 
submits that "the Panel effectively adopted and applied an erroneous 'product -based' approach that 
improperly focused on the contamination levels of the products to the exclusion of the other relevant 
conditions."188 
Japan submits that the Panel correct ly found that similar conditions prevail between Japanese 
food products and products from other sources. Regarding the Panel's interpretation of the relevant 
"conditions" under Article  2.3, Japan contests Korea's claim that the Panel failed to cover all po tentially 
relevant factors or prejudged the character of relevant "conditions". In Japan's view, the Panel left 
such conditions "to be identified on an open -ended basis in light of the particular circumstances 
surrounding the challenged measure"189, especial ly the objectives pursued by the respondent's 
challenged measure and the SPS risks addressed.190 Moreover, Japan submits that the Panel correctly 
identified the relevant conditions under Article  2.3 by reference to the objective of Korea's measures191 
and, bas ed on the particular risk related to that objective, "explored the weight to be ascribed to the 
available evidence regarding a variety of matters, covering the conditions relating to the environment, 
ecology, and food".192 In this regard, Japan refers to the  elements of the Panel's assessment covering 
environmental contamination from the FDNPP and other major  radionuclide releases worldwide193, as 
well as the factors relied on by the Panel to assess the "risk of [food from Japan and from the rest of 
the world] containing levels of radionuclides above Korea's respective thresholds", including "scientific 
information concerning ecological and environmental issues; information concerning the specific 
properties of the radionuclides in question; and measurements of radiation levels in the food 
products".194 
Responding to Korea's allegation that the Panel focused exclusively on the risk present in 
products as "the relevant condition" in its application of Article  2.3, Japan submits that the Panel 
considered all relevant  factors and properly accounted for them.195 In particular, Japan disagrees with 
Korea's contention that the Panel treated environmental and ecological conditions as "irrelevant", as 
the Panel expressly took relevant environmental and ecological consideratio ns into account.196 
According to Japan, these factors include the environmental contamination near the FDNPP and in the 
wider global environment, as well as the pathways of contamination from the environment to 
agricultural, livestock, and marine products.197 Japan further submits that the Panel explicitly 
addressed factors Korea claims to have been overlooked, such as the relevance of leak disclosures 
following the FDNPP accident and the possibility of future leaks.198 In Japan's view, the fact that the 
Panel ma y have attached different weight to certain evidence is not itself an error in the legal 
application of Article  2.3.199  
                                                
182 Panel Report, para.  7.291 . 
183 Korea's appellant's submission, para.  278. 
184 Panel Report, para.  7.294 . 
185 Korea's appellant's submission, para.  279. 
186 Korea's appellant's submission, para.  281. 
187 Korea's appellant's submission, para.  285. 
188 Korea's appellant's submission, para.  291. 
189 Japan's appellee's submission, para.  175. 
190 Japan's appellee's submission, para.  179. 
191 Japan's appellee's submission, para.  200. 
192 Japan's appellee's submission, para.  204. 
193 Japan's appellee's submission, paras.  205-212. 
194 Japan's appellee's submission, para.  213. (fns omi tted) 
195 Japan's appellee's submission, para.  223. 
196 Japan's appellee's submission, para.  228. 
197 Japan's appellee's submission, para.  231. 
198 Japan's appellee's submission, paras.  237-239. 
199 Japan's appellee's submission, para.  240. WT/DS495/AB/R  
 
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Article  2.3 of the SPS  Agreement provides:  
Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily 
or unju stifiably discriminate between Members where identical or similar conditions 
prevail, including between their own territory and that of other Members. Sanitary and 
phytosanitary measures shall not be applied in a manner which would constitute a 
disguised r estriction on international trade.  
Under the first sentence of Article  2.3, a complainant bears the burden of establishing that a 
measure arbitrarily or unjustifiably discriminates between Members where identical or similar 
conditions prevail, including be tween their own territory and that of other Members.200 Article  2.3 
therefore requires demonstrating as a threshold matter that "identical or similar conditions prevail" 
between Members. In this regard, the Appellate  Body has said that, although the text of Article  2.3, 
first sentence, does not mandate a particular order of analysing the requirements thereunder, 
"identifying the relevant  conditions, and assessing whether they are identical or similar, will often 
provide a good starting point for an analysis u nder Article  2.3, first sentence."201 
The relevant conditions under Article  2.3 of the SPS  Agreement must be identified subject to 
the particular nature of the measure and the specific circumstances of the case. By definition, 
SPS measures relate to a "prote cted interest"202 as set out in Annex A(1) to the SPS  Agreement, which 
corresponds to protection against a specific risk, or preventing or limiting damage from certain causes. 
The Appellate  Body has previously recognized that "identifying the relevant condit ions" and their 
similarity under Article  2.3 may require consideration of the specific SPS risks at issue.203 The 
particular risk addressed by an SPS measure will necessarily relate to an objective pursued under the 
SPS Agreement204 that may inform the "condit ions" that must be "identical or similar" under the 
first sentence of Article  2.3.205 Consequently, the disciplines of Article  2.3, and the particular 
"conditions" that must be shown to be "similar or identical" under that provision, should be informed 
by the nature of SPS measures in light of the particular circumstances of the case. Thus, "conditions" 
relating to the particular objective pursued and risks addressed by the SPS measure in question are 
relevant for the analysis under Article  2.3 of whether ide ntical or similar conditions prevail between 
Members.206  
The main issue raised in this appeal is whether the Panel properly considered the relevant 
"conditions" prevailing in Japan, including environmental and ecological conditions in Japan and the 
status o f the FDNPP.207 One aspect of Korea's appeal concerns the Panel's interpretation of Article  2.3 
with respect to the relevance of risks arising in products  to the prevailing "conditions" that must be 
shown to be "identical or similar" in different territories . Korea alleges that the Panel's "erroneous 
interpretive approach"208 resulted in its articulation of "an incorrect standard that is focused 
                                                
200 Appellate  Body Report, India – Agricultural Products , para.  5.260.  
201 Appellate  Body Report, India – Agricultural Products , para.  5.261. (emphasis added)  
202 Appellate  Body Report, Australia – Apples , para.  172. 
203 In India – Agricultural Products , the Appellate  Body stated that "identifying the relevant conditions, and 
assessing whether they are identical or similar", would logically serve as a good starting point for an analysis 
under Article  2.3, and found support for this in the Appellate  Body' s consideration in Australia – Salmon  that, 
under the first sentence of Article  2.3, "it would first of all be necessary to determine the risk to Australia's 
salmonid population resulting from diseases."  (Appellate  Body Report, India – Agricultural Products , para.  5.261 
and fn 703 thereto (quoting  Appellate  Body Report, Australia – Salmon , para.  255 (emphasis omitted)))  
204 We recall that the Appellate  Body has previously referred to a Member's "appropriate level of 
protection" as an "obje ctive"  that is pursued by an SPS measure. (Appellate  Body Reports, Australia – Salmon , 
para. 200; Australia – Apples , para.  172) (emphasis omitted)  
205 This understanding of Article  2.3 is in accord with the Appellate  Body's guidance as to the chapeau  of 
Article XX of the GATT  1994, which similarly refers to "arbitrary or unjustifiable discrimination between countries 
where the same conditions prevail". The Appellate  Body has said in that context that "'conditions' relating to the 
particular policy objective under the applicable subparagraph [of Article  XX of the GATT  1994] are relevant for 
the analysis under the chapeau."  (Appellate  Body Reports, EC – Seal Products , para.  5.300; see also 
Appellate  Body Reports, US – Tuna II (Mexico) (Article  21.5 – Mexico) , paras. 7.307 -7.308; Indonesia  – Import 
Licensing Regimes , para.  5.99)  
206 Appellate  Body Reports, EC – Seal Products , paras.  5.300 and 5.317.  
207 Korea's appellant's submission, paras.  268-271, 276, and 291.  
208 Korea's appellant's submission, para.  266. WT/DS495/AB/R  
 
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  exclusively on 'the risk present in the products'"209 as "the defining standard"210 of the relevant 
conditions in this di spute.  
We note that the Panel concluded its interpretation of the relevant "conditions" under Article  2.3 
as follows:  
[T]he Panel concludes that its determination of the relevant conditions should be informed 
by the regulatory objective of the challenged measures and the justification relied upon 
by the Member in light of the character of the measures and specific circumstances of the 
case. In that regard, the Panel sees nothing in the language of Article  2.3, first sentence, 
read in its context and in the  light of its object and purpose that would preclude it from 
considering the risk present in products in international trade as the relevant condition.211 
In our view, the Panel correctly recognized that the regulatory objective of a measure should 
inform th e determination of the relevant conditions under Article  2.3212, which Korea does not dispute 
on appeal.213 We note that Korea emphasizes the significance of territorial conditions based on the 
reference in Article  2.3 to discrimination "between Members", and the prevalence of "identical or 
similar conditions" as qualified by the phrase "including between their own territory and that of other 
Members".  According to Korea, this language calls for a comparison "between the 'conditions' 
prevailing in the territory  of one Member and the 'conditions' prevailing in the territor y of another 
Member".214  
It is noteworthy to us that the Panel considered that, under Article  2.3, "ecological or 
environmental conditions in an exporting Member can be relevant depending on the circumstances of 
the case and, in particular, the type of risk addressed by the challenged measures."215 In our view, 
the relevant conditions under Article  2.3 include those of the territory of the Member taking the 
SPS measure and the territory of other Mem bers. We note that Article  5.2 of the SPS  Agreement 
requires Members to take into account "relevant ecological and environmental conditions" in their risk 
assessments. When ecological or environmental conditions in the territories of different Members are 
relevant to the risks addressed by an SPS measure, they inform the scope of conditions to be compared 
under Article  2.3. At the same time, we agree with the Panel's conclusion that the conditions referred 
to in Article  2.3 may be construed to " include  those found in products and not just  the territory of an 
exporting or importing Member".216  
We disagree, however, with the Panel's conclusion that Article  2.3 permits consideration of the 
"risk present in products in international trade as the relevant condition"217 because this would not 
give appropriate weight to all other relevant conditions und er Article  2.3. While the analysis under 
Article  2.3 may include consideration of conditions that can be characterized as being present in the 
products from different Members, a proper interpretation of Article  2.3 includes consideration of other 
relevant conditions, such as territorial conditions, to the extent they have the potential to affect the 
products at issue.218 The analysis under Article  2.3 thus entails consideration of all relevant conditions 
in different Members, including territorial conditions that may not yet have manifested in products but 
are relevant in light of the regulatory objective and specific SPS risks at issue. We note the Panel's 
                                                
209 Korea' s appellant's submission, para.  268, referring to Panel Report, para.  7.276.  
210 Korea's appellant's submission, para.  269. 
211 Panel Report, para.  7.276.  
212 Panel Report, para.  7.266.  
213 Korea's appellant's submission, para.  268 ( referring to  Panel Report, para . 7.276).  
214 Korea's appellant's submission, para.  235. 
215 Panel Report, para.  7.270.  
216 Panel Report, para.  7.274. (emphasis added)  
217 Panel Report, para.  7.276. (emphasis added)  
218 We further note that the Panel, in discussing the contextual relevance of the definition of "risk 
assessment" in Annex A(4)  of the SPS  Agreement , emphasized the words " presence  of … contaminants, toxins … 
in food, beverages or feedstuffs" to conclude that "it is appropriate for a risk assessment analysis with regard to 
an Annex A(1)(b) measure to focus on the presence  of a health hazard in certain products and not on an analysis 
of territories ." (Panel Report, para.  7.274) ( underlining removed; italics added) We disagree with the Panel to the 
extent that it understood the contextual guidance in Annex A(4) regarding risk assessments to exclude territorial 
conditions from the scope of relevant "conditions"  under Article  2.3. More generally, we do not consider that the 
interpretation of Article  2.3 differs depending on the type of SPS measure at issue. Therefore, we disagree with 
the Panel's  statement that territorial aspects are likely to be more prominent with respect to other risks covered 
by Annex  A(1) than those falling under Annex A(1)(b); rather, the application of Article  2.3 may be informed by 
the type of SPS measure at issue and the arguments and evidence submitted in a particular dispute.  WT/DS495/AB/R  
 
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  view that, "even when examining territorial conditions[,] … it is done in light of the ultimate purpose 
of addressing risks of products in international trade."219 We do not consider that the "ultimate purpose 
of addressing risks of products in international trade"220 permits, as an interpretive matter, conducting 
an analysis under Article  2.3 without fully cons idering relevant territorial conditions that have the 
potential to affect products for the reason that they have not yet materialized in products, despite 
their relevance to the regulatory objective and specific SPS risks at issue.  
Therefore, we find that the Panel erred in its interpretation of Article  2.3 when it concluded that 
this provision permits consideration of the "risk present in products in international trade as the 
relevant condition" because we understand the Panel to have concluded that the s cope of relevant 
"conditions" under Article  2.3 may be exclusively limited to "the risk present in products".221 
Turning to the Panel's application  of Article  2.3, Korea criticizes the Panel for having "focused 
almost exclusively on the product test data"222 and argues that the Panel "did not properly assess 
other factors, particularly those relating to the ecological and environmental conditions in Japan".223  
In identifying the relevant conditions under Article  2.3, "the Panel view[ed] Korea's import bans 
and t he additional testing requirements as part of an overall regime pursuing a single objective of 
protecting Korea's population from potential adverse effects from consumption of food contaminated 
with radionuclides."224 The Panel found that:  
Therefore, the rel evant conditions to be compared between Members for the purpose of 
determining whether conditions are similar within the meaning of Article  2.3 is whether 
products from Japan and the rest of the world have a similar potential to be contaminated 
with the 20  Codex radionuclides, in particular with caesium, iodine, strontium and 
plutonium, and whether the levels of contamination would be below Korea's tolerance 
levels.225 
The "relevant conditions" identified by the Panel for the purposes of Article  2.3 concern 
"whether products from Japan and the rest of the world have a similar potential to be contaminated" 
with certain radionuclides. In addition to the "potential to be contaminated", the Panel further 
identified as a relevant condition "whether the levels of co ntamination would be below 
Korea's  tolerance levels". The Panel explained that "assessing whether the potential for contamination 
with caesium and the additional radionuclides is similar in food products from Japan and of other 
origins requires the Panel t o take a holistic approach that would consider all the relevant factors 
affecting such a risk."226  
The Panel began by assessing evidence relating to "the source of radioactive contamination", 
including "major releases of man -made radionuclides" and contamin ation of the global environment 
prior to the FDNPP accident.227 In this regard, the Panel noted that "the fallout from nuclear weapons 
testing is responsible for the most radioactive material distributed globally."228 The Panel also referred 
to the accident in  the Chernobyl nuclear power plant as "another major source of global radioactive 
contamination, although it had a particularly strong impact on Europe", as well as "[r]eleases from 
other nuclear facilities [that] had more localized effects".229 The Panel ci ted examples of "major 
releases of radionuclides [that] took place in marine areas, resulting in their contamination", including 
"discharges of radioactive waste into the Irish Sea and North Atlantic, as well as nuclear weapons tests 
conducted in the Pacif ic".230 
                                                
219 Panel Report, para.  7.270.  (fn omitted)  
220 Panel Report, para.  7.270.  (fn omitted)  
221 Panel Report, para.  7.276.  (emphasis added)  
222 Korea's appellant's submission, para.  274. 
223 Korea's appellant's submission, para.  280. 
224 Panel Report, para.  7.283.  
225 Panel Report, para.  7.283. (emphasis added)  
226 Panel Report, para.  7.289. 
227 Panel Report, paras.  7.290 -7.291.  
228 Panel Report, para.  7.291.  
229 Panel Report, para.  7.291.  (fns omitted)  
230 Panel Report, para.  7.292.  (fns omitted)  WT/DS495/AB/R  
 
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At the same time, the Panel "recognise[d] the unprecedented nature of the FDNPP accident, as 
the largest  release of radionuclides from a nuclear accident into the marine environment".231 Further, 
the Panel stated that "radioactive material, mainly caes ium, released [into] the atmosphere from the 
FDNPP also contributed to global contamination levels, although the fallout has affected the East and 
North of Japan the most."232 The Panel noted that radionuclides released from the FDNPP "were largely 
dispersed  by sea currents and added to existing concentration levels in the Northern  Pacific", stating 
further that "some amounts of these radionuclides were bound to particles, sunk and settled in 
sediments off the Fukushima coast."233  
In its discussion of global r adionuclide contamination, the Panel appeared to indicate that there 
may be territorial differences in contamination depending on the source, specifically stating that 
"radionuclides can be more concentrated close to the source of contamination."234 In addit ion, having 
noted that some of the radionuclides released from the FDNPP would be expected to have settled in 
sediments off the Fukushima coast, the Panel stated that "[t]his would also be true for areas close to 
the other primary sources of contamination. "235  
The Panel made these statements in the context of its findings of continuing global 
contamination resulting from various radionuclide releases, including those from the FDNPP. For 
example, while acknowledging the potential for concentration of radionuclides close to the source, the 
Panel further stated in reference to various radionuclide releases that "the radioactive material 
originating from all of these events has been dispersed across the world depending on the atmospheric 
transport, precipitation, sea currents, as well as physical and chemical characteristics of specific 
isotopes."236 The Panel stated that "both the historical releases and the FDNPP accident continue to 
have global effects", and found that "the caesium, stron tium and plutonium that were released to the 
environment in significant quantities prior to the FDNPP accident still have the potential to be present 
in food from across the world."237  
We note that the Panel's findings concerning past releases of radionucli des refer generally to 
the potential for contamination, without accounting for any degree  of contamination or differentiating 
the relative potential  for contamination in different territories. Rather, the Panel ultimately concluded 
that "past releases of r adionuclides to the environment continue to affect food products and mean that 
food from anywhere in the world has the potential  to be contaminated with radionuclides."238  
The Panel's conclusion as to "the potential to be contaminated with radionuclides", w ithout 
regard to any specific source or relative degree, appears to conflict with some of the Panel's 
intermediate observations concerning the sources of worldwide contamination. For example, in 
addressing the example of contamination from nuclear weapons testing, the Panel states that 
"radioactive isotopes of caesium and strontium from nuclear weapons testing continue to this day to 
constitute a potential  for contamination of food products across the world."239 However, the Panel 
noted that the evidence reli ed on to reach this conclusion "does not take into account the additional 
releases from the Chernobyl accident or other release events from nuclear facilities", stating that such 
events "added to the global contamination levels and thus increase the potent ial for contamination of 
food above" that which is attributable to nuclear weapons testing.240 Further, as noted above, the 
Panel observed that nuclear releases could have localized effects and that radionuclides can be more 
concentrated close to the source of contamination.241 These statements indicate that particular release 
events may be capable o f increasing the potential for contamination of food within a specified 
geographical location or territory.  
We therefore read the Panel's assessment of the source of contamination as containing 
conflicting indications of relevant territorial differences co ncerning the potential for contamination of 
food. On the one hand, the Panel's analysis contains suggestions that specific release events or 
                                                
231 Panel Report, para.  7.292.  (fn omitted)  
232 Panel Report, para.  7.291.  (fn omitted)  
233 Panel Report, para.  7.291.  (fn omitted)  
234 Panel Report, para.  7.291.  
235 Panel Report, para.  7.291.  (fn omitted)  
236 Panel Report, para.  7.291.  (fn omitted)  
237 Panel Report, para.  7.293. ( fn omitted; emphasis added)  
238 Panel Report, para.  7.298.  (emphasis added)  
239 Panel Report, para.  7.297.  (emphasis added)  
240 Panel Report, para.  7.297. (emphasis added)  
241 Panel Report, para.  7.291.  WT/DS495/AB/R  
 
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  radionuclide sources may result in an incremental and localized increase  in contamination levels and 
the potential for food contamination, combined with the Panel's observation that radionuclides can be 
more concentrated close to the source of contamination. On the other hand, the Panel generally noted 
that radioactive material originating from the FDNPP and other even ts "has been dispersed across the 
world depending on the atmospheric transport, precipitation, sea currents, as well as physical and 
chemical characteristics of specific isotopes".242 Although aspects of the Panel's reasoning appear to 
suggest that such disp ersion is not globally uniform across different territories, its conclusion 
concerning environmental contamination makes no distinction between territories as it relates to the 
relative degree of potential for food contamination.243  
We recognize that the Pa nel's assessment of the sources of contamination formed only part of 
what it framed at the outset as "a holistic approach that would consider all the relevant factors 
affecting such a risk".244 Nevertheless, the Panel's conclusion regarding environmental con tamination, 
as well as its general assessment of territorial conditions surrounding the FDNPP in relation to other 
territories, does not reflect a number of factors that the Panel itself had identified as affecting 
radionuclide contamination of different a reas. The Panel observed that radionuclide dispersion from 
certain events would depend on "the atmospheric transport, precipitation, sea currents, as well as 
physical and chemical characteristics of specific isotopes".245 Although the Panel did provide factu al 
background on the radionuclides released from the FDNPP  accident along with other major releases 
worldwide246, it did not specifically account for such factors or territorial differences pertaining to the 
FDNPP, as opposed to other territories globally, a nd as they may relate to differences in the potential 
for food contamination. Indeed, the Panel's  explanations of radionuclide release and dispersion 
following the FDNPP accident indicate localized  and relatively recent  territorial contamination247, which 
the Panel does not reconcile with its conclusion suggesting undifferentiated global contamination 
stemming from various radionuclide releases worldwide and dispersion over a long period of time. 
Thus, at this stage of the Panel's  assessment of the relevant c onditions under Article  2.3, its 
comparison of territorial conditions near the FDNPP and the rest of the world does not reflect or 
differentiate between various factors that the Panel itself suggested could differently affect the 
potential for contaminatio n. 
Having assessed past releases of radionuclides, including from the FDNPP accident, to conclude 
that that "food from anywhere in the world has the potential to be contaminated with radionuclides", 
the Panel then "turn[ed] to the levels of radionuclides i n food".248 The Panel explained in this regard 
                                                
242 Panel Report, para.  7.291.  (fn omitted)  
243 We further note that the Panel's discussion of the process of contamination of plants, animals, and 
fungi ( "radionuclide uptake") does not reflect any difference across territories as it relates to the potential for 
food contamination. Rather, the Panel assessed in general terms the contamination of agricultural and livestock 
products from "[m]an -made radionuclides released [into] the environment … through direct deposition from the 
atmosphere",  and made general observations on the exposure of livestock and marine species to environmental 
contamination and dietary consumption. Although the Panel noted  "[v]arious pathways of radionuclide uptake" 
that "allow estimating transfer factors between plants, animals, and fungi up the food chain and ultimately to 
food products for humans" , it made no indication of how such pathways and factors may specifically r elate to the 
environmental contamination from the FDNPP accident, as compared to contamination from other major releases. 
Thus, despite the indication of various factors that may affect radionuclide dispersion and environmental 
contamination, the Panel did  not address what impact such factors had on environmental and territorial 
conditions in Japan, or the relative potential for contamination of Japanese food products. (Panel  Report, 
paras.  7.291 and 7.294 -7.295  (fn omitted) ; see also ibid., paras.  2.4-2.7) 
244 Panel Report, para.  7.289.  
245 Panel Report, para.  7.291.  (fn omitted)  
246 These include, for example, the accident at the Chernobyl nuclear power plant, discharges of 
radioactive waste into the Irish Sea and North Atlantic Ocean, as well as nuclear weapons  tests conducted in the 
Pacific Ocean. (See e.g. Panel Report, paras.  2.44-2.62, 7.291 -7.292, and Table 20)  
247 For example, the Panel noted that "[t]he effect of a release of radionuclides is not necessarily localized, 
but may be dispersed through the atmosphere and ocean currents."  (Panel Report, para.  2.53) At the same time, 
the Panel noted of atmospheric dispersion that "the activity concentration in the atmosphere decreased 
noticeably with increase in distance from the FDNPP."  (Ibid., para.  2.54 (fn omitted) ) Regarding ocean 
dispersion, the Panel noted that the "high caesium -activity ratios" in samples from the North -Western Pacific 
taken two years after the accident suggest that these samples were contaminated by caesium released from the 
FDNPP. (Ib id., para.  2.56) Further, the Panel observed that "[t]he Fukushima prefecture and neighbouring 
prefectures have several river systems that flow from contaminated upland forests to coastal plains, and 
ultimately empty into the Pacific Ocean", and that "[g]r oundwater has been continuously flowing from the hills 
into the FDNPP where it interacts with damaged fuel and becomes contaminated."  (Ibid., paras.  2.57 and 2.60  
(fn omitted) ) 
248 Panel Report, para.  7.298.  WT/DS495/AB/R  
 
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  that "Japan has provided the Panel with data with respect to the levels of radionuclides in food products 
in Japan and from other origins."249 Based on that data, the Panel reviewed the levels of radionuclides 
in food in order to make separate findings regarding the relevant "conditions" for both the adoption 
and maintenance of the challenged measures (the product -specific import bans, the blanket import 
ban, as well as the 2011 and 2013 additional testing requirem ents).250 The Panel then compared "the 
potential for contamination in Japanese products … with those of other origins" based on import testing 
data from Korea and Japan,  "as well as knowledge about contamination resulting from pre -2011 
releases of radionucli des".251 
In contrast to the Panel's finding of a general "potential for contamination" in relation to sources 
of contamination, the Panel's assessment of Japanese food focused on actual  – not potential  – levels 
of contamination for different products during different time periods, with emphasis on Korea's 
"tolerance level" for the relevant radionuclide.252 As discussed in further detail below with regard to 
caesium, the Panel assessed levels of caesium contamination in Japanese food, focusing on actual 
caesium levels measured in Japanese food samples with repeated reference to the 100  Bq/kg 
"tolerance level".  
We note that the Panel used varying formulations to express its findings in this step of its 
assessment, at times appearing to equate the potential for ca esium contamination with the 
observation of actual measurements below a quantitative tolerance level. For example, regarding the 
adoption of the blanket import ban, the Panel cited measurements being "at that time consistently 
below the tolerance level of 100 Bq/kg" to find that "the data supports a conclusion that the potential 
caesium contamination in these products was below the 100  Bq/kg tolerance level."253 The Panel 
similarly appeared to equate the notion of potential contamination with observed measure ments below 
Korea's tolerance level in finding with respect to the maintenance of Korea's measures that "Japan 
has met its burden to establish that the potential for contamination with caesium in excess of 
100 Bq/kg is low."254 In relation to the adoption of  the 2013 additional testing requirements, the Panel 
did not refer to the "potential" contamination as a legally relevant "condition" under Article  2.3, but 
rather concluded based on data on caesium contamination levels for all Japanese products255 that 
"Japan has established its factual assertion that, in general, the levels of caesium contamination in all 
Japanese food products were below 100  Bq/kg."256  
                                                
249 Panel Report, para.  7.298.  
250 Panel Report, paras . 7.300 -7.309.  
251 Panel Report, para.  7.312.  
252 In addition to the appealed findings discussed below, the Panel's unappealed findings regarding Japan's 
failure to show the existence of similar conditions (in relation to the adoption of measures in 2011 and 2 012) 
similarly evince a focus on actual levels of food contamination in relation to Korea's tolerance levels. Regarding 
the adoption of the 2011 additional testing requirements, the Panel cited "the absence of sufficient data directly 
addressing the condit ions of the Japanese products subject to the challenged measure"  as the sole factor for 
finding that Japan had not demonstrated the existence of similar conditions. (Panel Report, para.  7.301) 
Regarding the adoption of the product -specific import bans, the  Panel cited both Japan's  own internal restrictions 
on the relevant products, as well as Japan's lack of argumentation with respect to the contamination levels of 
samples in 2012, to find that Japan had not established that "the potential for radionuclide contamination in 
Pacific cod and Alaska pollock from the relevant prefectures in 2012 [was]  below Korea's tolerance levels."  
(Ibid.,  para. 7.302)  
253 Panel Report, para.  7.303. (fn omitted) The Panel made this finding in relation to products covered by 
the blanket import ban with the exception of Pacific cod for which Japan maintained its own restrictions in 2013.  
254 Panel Report, para.  7.311. We note that the Panel addressed various issues in support of this finding 
based on data on product samples, including  the significance of outliers exceeding the 100 Bq/kg level. 
(Ibid., paras.  7.307 -7.311)  
255 In this connection, the Panel explained that the 2013 additional testing requirements apply "to 
essentially all food – fishery, livestock, and agricultural products;  processed food; and food additives". Further, 
because "Japan [was] seeking to invalidate Korea's additional testing requirements completely with respect to all 
the food products that they cover", the Panel stated that it would "not exclude any test result s from specific fish 
species or food products from [its] analysis of the similarity of conditions with regard to the additional testing 
requirements". Thus, the Panel explained that, "[a]s the 2013 additional testing requirements address all 
products from anywhere in Japan in terms of their contribution towards an average annual exposure level, [its] 
analysis [would] examine all products from anywhere in Japan from the same perspective." (Panel Report,  
paras.  7.304 -7.305)  
256 Panel Report, para.  7.306. The Pa nel noted in support of this finding that , "at the time the measure 
was adopted, in general, less than 1% of samples were found to exceed the caesium tolerance level of 100  Bq/kg 
for all product categories from all Japanese prefectures ." (Ibid., para. 7.305  (fn omitted) ) WT/DS495/AB/R  
 
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At this intermediate stage of its assessment, the varying formulations of the Panel's conclusions 
lend the mselves to different possible readings in relation to the "conditions" to be compared under 
Article  2.3. Depending on the measure and claim being addressed, the Panel's  findings may be read 
to mean that the "potential caesium contamination" was itself belo w the 100  Bq/kg level257, there was 
a "low" potential for contamination in excess of  100 Bq/kg258, or simply that caesium levels were below 
100 Bq/kg.259  
The Panel turned from its examination of caesium contamination levels in Japanese food "to 
compare the pote ntial for contamination with caesium" in products of other origins.260 The Panel noted 
the lack of "comprehensive testing data of non -Japanese products over all food categories".261 
Nevertheless, the Panel found that "the data provided can serve as a basis for  a conclusion on general 
contamination in conjunction with the information available on contamination due to past releases 
throughout the world and general knowledge on the uptake of radionuclides in food products."262 
We understand the Panel's reference to "the information available on contamination due to past 
releases throughout the world"263 to correspond to its assessment of the sources of contamination 
undertaken before examining "the levels of radionuclides in food". As we observed above, the Panel's 
conclusion regarding past releases and global contamination was that "food from anywhere in the 
world has the potential to be contaminated with radionuclides."264 While the Panel did not specify 
whether this means a similar  potential for contamination for food from all origins, we noted various 
elements of the Panel's analysis indicating potential differences in territorial conditions concerning the 
potential for food contamination. This includes the Panel's apparent recognition of the concentration 
of released radionuclides near their source and the localized impact of specific release events on the 
potential for contamination of food products. The Panel's analysis suggests that such contamination 
may eventually be dispersed over a longer period of time, but doe s not address whether this renders 
concentration levels near the sources of contamination comparable to global contamination levels 
existing in other territories.  
The Panel's comparison of the potential for contamination in food of Japanese and other orig ins 
reflects the contradiction between, on the one hand, its generalized description of global radionuclide 
contamination and, on the other hand, its observation of conditions related to specific events and 
locations. In the context of its comparison of fo ods from different origins, the Panel cited the 
explanation of an expert that "there is sufficient data to conclude that caesium is present in food from 
all over the world in trace amounts, mainly from nuclear weapons testing fallout, but also from 
Chernob yl", and that "these levels [of caesium] are[,] in general, very low and significantly lower than 
100 Bq/kg."265 The Panel also cited the expert's view that "concentrations of caesium in 
Japanese  foods are likely to be higher than in non -Japanese foods ", eve n though concentration levels 
"would also be very low and significantly lower than 100  Bq/kg".266  
These expert views cited by the Panel are consistent with the Panel's earlier conclusion that 
"food from anywhere in the world has the potential to be contamin ated with radionuclides."267 
However, the expert specifically indicated a higher likelihood of caesium contamination in Japanese 
foods, while also expressing the view that the concentration levels in Japanese and non -Japanese 
foods would both be "very low an d significantly lower than 100  Bq/kg".268 The Panel thus cited expert 
views that there is in fact a dissimilar potential  for caesium contamination in Japanese and 
non-Japanese products, but that caesium levels would similarly be "significantly lower than 
100 Bq/kg". The Panel does not explain whether caesium concentration "significantly lower than 
100 Bq/kg" means that the dissimilar potential for contamination is irrelevant under Article  2.3. 
                                                
257 Panel Report, para.  7.303.  
258 Panel Report, para.  7.311.  
259 Panel Report, para.  7.306.  
260 Panel Report, para.  7.312.  
261 Panel Report, para.  7.312.  
262 Panel Report, para.  7.312.  
263 Panel Report, para.  7.312.  
264 Panel Report, para. 7.298.  
265 Panel Report, para.  7.313 (referring to Ms Brown's response to Panel question No. 49 to the experts).  
266 Panel Report, para.  7.313 (referring to Ms Brown's response to Panel question No. 49 to the experts). 
(emphasis added)  
267 Panel Report, pa ra. 7.298.  
268 Panel Report, para.  7.313 (referring to Ms Brown's response to Panel question No. 49 to the experts).  WT/DS495/AB/R  
 
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This apparent gap in the Panel's reasoning is unresolved in the Pa nel's concluding comparisons 
on the existence of "similar conditions" for Japanese and non -Japanese products, which reflect the 
Panel's focus on the presence of contamination in food without accounting for differences in territorial 
conditions affecting the potential  for contamination. Referring to the "test results" for Japanese and 
non-Japanese food products, and "taking into account the Panel's  findings about past releases of 
caesium, their global reach and potential to transfer to food produ cts", the Panel concluded that "the 
majority of both Japanese and non -Japanese products have potential to contain caesium in amounts 
below the 100  Bq/kg tolerance level."269 The Panel's conclusion refers simply to "potential" to contain 
caesium below the 100  Bq/kg tolerance level in both Japanese and non -Japanese products, but does 
not address the relative degree of the potential for contamination, or at least whether such products 
have a similar  potential for caesium contamination. Indeed, the Panel noted an  expert's recognition 
"that the risk of higher absolute contamination levels is of course larger in a really contaminated 
area"270, which is consistent with observations made by the Panel in its assessment of the sources of 
contamination. It would appear tha t, notwithstanding this difference in territorial conditions in relation 
to the potential for contamination, the Panel effectively discounted, in its assessment under Article  2.3 
of whether conditions are similar, the relevance of such differences based on  actual product test data 
showing caesium concentration below the level of 100  Bq/kg.  
In its identification of the relevant "conditions" to be compared under Article  2.3, the Panel 
stated that it would compare the "potential to be contaminated" with the r elevant radionuclides, and 
"whether the levels of contamination would be below Korea's tolerance levels".271 The Panel did not 
address or clarify the exact relationship between these two aspects for the purposes of assessing 
whether "similar conditions" prev ailed between Japan and other Members. While the "potential to be 
contaminated" appears to concern a question of degree taking into account Korea's regulatory 
objective, the other condition identified by the Panel appears to entail a more binary assessment  of 
whether contamination levels would, or would not, fall below a given quantitative threshold.  
In identifying the relevant "conditions" that it would compare under Article  2.3, the Panel did 
not explicitly indicate that similarity based on contamination  levels below a certain tolerance level 
would necessarily amount to similar "potential" to be contaminated generally. Rather, the Panel 
presented these as combined elements of the relevant "conditions" that would need to be 
demonstrated to be "similar" for  the purposes of Article  2.3. However, the Panel's conclusions 
concerning caesium contamination solely refer to whether the contamination would be below a given 
tolerance level, without otherwise accounting for the dissimilarity of certain territorial cond itions 
between Japan and other Members that the Panel recognized at various points in its assessment. The 
relevant similarity for caesium contamination is thus expressed as a "potential to contain caesium in 
amounts below the 100  Bq/kg tolerance level" for  "the majority of both Japanese and 
non-Japanese  products".272  
The Panel's conclusion regarding strontium and plutonium is likewise cast in terms of "similar 
potential for containing strontium and plutonium below their respective tolerance levels ".273 In 
reaching this conclusion, the Panel consulted data on actual concentrations in Japanese food with 
reference to Korea's tolerance levels274 and, with regard to sampling sufficiency, referred to its earlier 
finding "that data provided by Japan allows valid conclus ions on the levels of caesium, strontium and 
plutonium in Japanese food products".275 The Panel further stated that available data from Korea's 
internal testing on non -Japanese food showed either non -detectable levels of strontium or plutonium, 
or detectable  amounts below their respective tolerance levels.276 The Panel thus reached its conclusion 
on strontium and plutonium based on product test data, combined with its assessment of caesium 
contamination and "taking into account generally low levels of strontium  and plutonium released 
globally and from the FDNPP".277 This conclusion accords with factual evidence considered by the Panel 
about the relatively lower levels of strontium and plutonium released from the FDNPP  accident as 
                                                
269 Panel Report, para.  7.314.  
270 Panel Report, para.  7.314 (referring to Dr Skuterud's response to Panel question No. 49 to the 
experts).  
271 Panel Report, para.  7.283.  
272 Panel Report, para.  7.314.  
273 Panel Report, para.  7.319. (emphasis added)  
274 Panel Report, para.  7.315.  
275 Panel Report, para.  7.316. (fn omitted)  
276 Panel Report, para.  7.317.  
277 Panel Report, para.  7.319.  WT/DS495/AB/R  
 
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  compared to the level of caesium278, and to that extent may be understood as reflecting relevant 
territorial conditions concerning environmental contamination of these radionuclides. At the same 
time, the Panel's conclusion on similar conditions regarding strontium and plutonium is explicitl y based 
on its comparison of actual caesium contamination in Japanese and non -Japanese  food, and is not 
curative of the shortcomings we have identified in relation to the Panel's assessment of relevant 
territorial conditions concerning the potential  for ca esium contamination in food.  
In sum, we consider the Panel's comparison of "conditions" under Article  2.3 to be effectively 
based on actual radionuclide concentration levels in samples of food products as measured against 
quantitative tolerance levels cor responding to each radionuclide. In this respect, we agree with Korea's 
claim on appeal that the Panel erred in the application of Article  2.3 by focusing on product test data 
without properly accounting for whether the territorial conditions in Japan and the rest of the world 
were similar within the meaning of Article  2.3. The Panel effectively treated evidence of actual 
contamination of samples within tolerance levels as being decisive of whether "similar conditions" 
prevail between Members within the mea ning of Article  2.3. As noted earlier, the Panel did not account 
for the different degrees of potential contamination or reconcile its conclusions with territorial 
conditions that the Panel suggested could differently affect the potential for contamination .279 
Importantly, the Panel neither explained how contamination within certain quantitative levels would 
be determinative of "similar" potential for contamination280, nor whether the measurement of product 
contamination within those limits would fully capture the territorial dimensions of the different 
potential  for contamination between the territories of different Members.281 For these reasons, we find 
that the Panel failed to account for relevant territorial conditions and therefore erred in its application 
of the first sentence of Article  2.3. 
Our finding of error as to the Panel's application of Article  2.3 concerns its legal assessment of 
the similarity of the relevant conditions it had identified. We do not address in this appeal whether 
evidence before the  Panel could, under an analysis properly accounting for differences in relevant 
territorial conditions, support a conclusion that the potential for contamination in Japanese and 
non-Japanese food products is sufficiently similar or dissimilar for purposes of applying the 
requirements of Article  2.3.  
5.2.4   Conclusion  
Under the first sentence of Article  2.3 of the SPS  Agreement, a complainant must show that a 
measure arbitrarily or unjustifiably discriminates between Members where identical or similar 
conditions prevail , including between their own territory and that of other Members. Article  2.3 
therefore requires demonstrating as a threshold matter that "identical or similar conditions prevail" 
between Members. While the analysis under Article  2.3 may include con sideration of conditions that 
can be characterized as being present in the products from different Members, a proper interpretation 
of Article  2.3 includes consideration of other relevant conditions, such as territorial conditions, to the 
extent that they have the potential to affect the products at issue. The analysis under Article  2.3 thus 
entails consideration of all relevant conditions in different Members, including territorial conditions 
that may not yet have manifested in products but are relevant in  light of the regulatory objective and 
specific SPS risks at issue. We find that the Panel erred in its interpretation of Article  2.3 when it 
concluded that this provision permits consideration of the "risk present in products in international 
                                                
278 See e.g. Panel Report, para.  7.186.  
279 Specifically, despite suggestions that specific releases such as those from the FDNPP accident could 
represent an incremental and territorially concentrated addition to prior global contamination, the Panel appears 
to have assimilate d the leaks and releases of radionuclides at the time of the FDNPP accident and thereafter as 
part of an undifferentiated global contamination due to dispersion of radionuclides over certain time periods in its 
actual comparison of the relevant conditions.  
280 We recall in this regard our finding with respect to the qualitative aspects of Korea's ALOP that were 
identified by the Panel under Article  5.6. Inasmuch as the ALOP is an expression of the regulatory objective 
pursued by a Member under the SPS  Agreeme nt, its proper characterization may also inform the nature of the 
relevant "conditions" that  must be accounted for under Article  2.3. As the ALOP identified by the Panel in this 
dispute appeared to comprise multiple elements, the overall significance of pu rely quantitative thresholds in that 
context may also have informed the nature of the comparison to be carried out under Article  2.3. 
281 We recall our view that , while  evidence concerning radionuclide concentration levels in food may be 
relevant  to whether similar conditions prevail between Members , an Article  2.3 analysis includes consideration of 
other relevant conditions, such as territorial conditions, to the extent they have the potential to affect the 
products at issue. (See para.  5.64.  above)  WT/DS495/AB/R  
 
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  trade as the relevant condition" because we understand the Panel to have concluded that the scope 
of relevant "conditions" under Article  2.3 may be exclusively limited to "the risk present in products".  
In its application of Article  2.3, the Panel effectively relied o n actual contamination levels in 
food without reconciling its findings as to other pertinent territorial conditions affecting the potential 
for contamination of food. Such findings include the Panel's recognition of greater potential for 
contamination near  the source and its indications that specific release events could result in a localized 
and incremental increase in the potential for contamination of food. The Panel's findings under 
Article  2.3 on the sole basis of actual measurement levels in product s amples ultimately fail to account 
for the potential  for contamination in light of relevant conditions prevailing in the territories of different 
Members.  
We therefore find that the Panel erred in its interpretation and application of Article  2.3 of the 
SPS Agreement in finding that similar conditions prevail between Japan and other Members. 
Consequently, we reverse  the Panel's findings of inconsistency with Article  2.3 with respect to: (i)  the 
adoption of the blanket import ban (except for the ban on Pacif ic cod from Fukushima and Ibaraki) 
and the 2013 additional testing requirements; and (ii) the maintenance of all of Korea's  measures. In 
light of the reversal of the Panel's findings regarding the existence of "similar conditions" within the 
meaning of Art icle 2.3, it is not necessary to address Korea's additional claims of error regarding 
arbitrary or unjustifiable discrimination, and whether Korea's measures constitute disguised 
restrictions on international trade.  
5.3  Article  5.7 of the SPS  Agreement  
5.3.1   Introdu ction  
5.94.   Korea appeals the Panel's finding that its measures do not fulfil the requirements of Article  5.7 
of the SPS  Agreement.282 First, Korea claims that the Panel was not authorized to make findings under  
Article  5.7 and thus erred under Articles  6.2, 7, and 11 of the DSU in making findings under that 
provision.283 Second, Korea claims that the Panel made several errors in its interpretation and 
application of Article  5.7 in finding that Korea's measures do not meet the requirements of this 
provision. In particular, Korea claims that the Panel erred in allocating the burden of proof under 
Article  5.7 to Korea.284 Korea also claims that the Panel erred in finding that: (i)  relevant scientific 
evidence was "not i nsufficient" with respect to the product -specific import bans, the blanket import 
ban, and the 2013 additional testing requirements285; (ii)  the blanket import ban and the 
2013 additional testing requirements were not adopted on the basis of available pertin ent 
information286; and (iii)  Korea did not review its measures within a reasonable period of time.287 Korea 
requests us to reverse the Panel's finding that its measures do not fulfil the requirements of 
Article  5.7.288 By contrast, Japan requests us to uphold t he Panel  finding at issue.289  
5.95.   In this section, we begin by summarizing the Panel's findings under Article  5.7 of the 
SPS Agreement. Then, we address Korea's claim that the Panel erred under Articles  6.2, 7, and 11 of 
the DSU in making findings as to the consistency of Korea's measures with the requirements of 
Article  5.7. Finally, we turn to Korea's claims that the Panel erred in its interpretation and application 
                                                
282 Korea's appellant's submission, para.  387.b -g. 
283 Korea's appellant's submission, paras.  53-54 and 58 -59. 
284 Korea's appellant's submission, para.  83. 
285 Korea's appellant's su bmission, paras.  91 and 120.  
286 Korea's appellant's submission, paras. 133 -139, 144 -152, and 154. Korea  also claims that the Panel 
failed to comply with its duty under Article  11 of the DSU by engaging in internally inconsistent reasoning in 
finding that th e 2011 additional testing requirements and the product -specific import bans, but not the blanket 
import ban and the 2013 additional testing requirements, had been adopted on the basis of available pertinent 
information. (Korea's appellant's submission, par as. 128 and  153-154) 
287 Korea's appellant's submission, paras.  155 and 168 -169. 
288 Korea's appellant's submission, para.  387.b -g (referring to Panel Report, paras.  7.75-7.112 and  8.1). 
As a consequence, Korea also requests us to reverse the Panel's findings under Articles  2.3 and 5.6 of the 
SPS Agreement. Korea refers to Panel Report, paras.  7.321 -7.322, 7.349 -7.350, 7.355, 7.359 -7.360, 
and 8.3.a-b (in relation to Article  2.3 of the SPS  Agreement) and paras.  7.251 -7.256 and 8.2.b -e (in relation to 
Article  5.6 of the SPS  Agreement). (Korea's appellant's submission, para.  387.b)  
289 Japan's appellee's submission, para.  925. WT/DS495/AB/R  
 
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  of Article  5.7 and under Article  11 of the DSU in finding that Korea's measures do not meet the 
requirements of this provisi on. 
5.3.2   The Panel's  findings  
5.96.   Before the Panel, Japan raised claims of inconsistency under Articles 2.3, 5.6, 7, and 8 of the 
SPS Agreement as well as under paragraphs 1 and 3 of Annex  B and paragraphs 1(a), 1(c), 1(e), 
and 1(g) of Annex C to the SPS  Agreement.290 Before addressing Japan's claims, the Panel noted 
Korea's argument that "its measures were adopted provisionally pursuant to Article  5.7 of the 
SPS Agreement" and that "this affects the Panel's analysis of the substantive elements of 
Japan's  claims under  other provisions of the SPS  Agreement."291 To Korea, Article  5.7 provides 
"context" for the interpretation of every provision of the SPS  Agreement.292 The Panel therefore 
decided to assess first whether Korea's measures fulfil the requirements of Article  5.7. If necessary, 
the Panel would then turn to the question of how that might affect its analysis of Japan's claims.293 
5.97.   At the outset of its analysis under Article  5.7, the Panel noted that Korea had asserted "several 
factual premises underlying its arguments – most importantly that there was insufficient scientific 
evidence to conduct an objective assessment of the risk" arising from the consumption of certain food 
products from Japan.294 The Panel allocated the burden of proof to Korea under Article  5.7.295 With 
this consideration in mind, the Panel turned to assess Korea's measures in light of each of the four 
requirements set out in Article  5.7, namely , the requirements that : (i) the relevant scientific evidence 
be insufficient to conduct a risk assessment; (ii)  the provisional measure be adopted on the basis of 
available pertinent information; (iii)  the Member adopting the provisional measure seek to obtain the 
additional information necessary for a more objective assessment of risk; and (iv)  the measure be 
reviewed within a reasonable period of time.296  
5.98.   The Panel first assessed whether the "relevant scientific evidence" was "insufficient" when Korea 
adopted each of its measures. With respect to the 2011 additional testing requirements, the Panel 
observed that they  had been adopted at a time when the regulators were uncertain about the extent 
of the FDNPP accident and the types and amounts of radionuclides that had been released. The Panel 
further observed that in March 2011 Japan had also adopted measures on an eme rgency basis and in 
the absence of a risk assessment. The Panel therefore found that there was insufficient scientific 
evidence when Korea adopted the 2011  additional testing requirements.297  
5.99.   By contrast, the Panel found that scientific evidence was not ins ufficient in 2012 and 2013 when 
Korea adopted the product -specific import bans, the blanket import ban, and the 2013 additional 
testing requirements.298 The Panel reached this conclusion after an analysis of the factors that Korea 
claimed affected the suffic iency of the relevant scientific evidence.299 In particular, the Panel observed 
that the blanket import ban and the 2013 additional testing requirements had been adopted in 
response to the disclosure of leaks at the FDNPP.300 The Panel took the view that, alth ough specific 
amounts of radioactive materials released into the ocean following those leaks could not be tied to 
specific dates, some estimates were publicly available.301 Moreover, the Panel addressed  the relevance 
of: (i) additional leaks or an uncertaint y about the amounts and share of radionuclides; (ii)  uncertainty 
about the amounts of radionuclides remaining in the reactor; (iii)  uncertainty about environmental 
contamination levels in seawater, sediment, soil, and air; (iv)  if there was a significant n ew leak; 
(v) the potential presence of caesium -rich microparticles in soil; (vi)  radionuclide deposits in river 
catchments, marine estuaries, and coastal areas; and (vii)  the ratio between caesium and other 
radionuclides. With respect to these elements, th e Panel relied on the experts' consensus that "the 
best way to know what is in food consumed is by testing it "302 and that information about these 
                                                
290 Panel Report, para.  3.1. 
291 Panel Report, para.  7.67. See also ibid., para.  7.17. 
292 Panel Report, para.  7.70 (referring to Korea's response to Panel question No.  108).  
293 Panel Report, para s. 7.67 and 7.111 -7.112 . 
294 Panel Report, para.  7.75. 
295 Panel Report, para.  7.75. 
296 Panel Report, para.  7.76. 
297 Panel Report, paras.  7.84 and 7.108.  
298 Panel Report, paras.  7.96, 7.108, and 7.111.  
299 Panel Report, paras. 7.80 -7.81 and 7.85 -7.95. 
300 Panel Report, para.  7.87. 
301 Panel Report, para.  7.91. 
302 Panel Report, para. 7.92.  WT/DS495/AB/R  
 
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  elements is not critical to an assessment of the risk to humans from consumption of food containing 
radionuclides.303  
5.100.   The Panel then assessed whether Korea's measures had been adopted "on the basis of 
available pertinent information". With respect to the 2011 additional testing requirements and the 
product -specific import bans, the Panel recalled that the se measures had been adopted shortly after 
the FDNPP  accident and closely mirrored Japan's own measures. Therefore, the Panel found that they 
had been adopted on the basis of available pertinent information.304  
5.101.   The Panel, however, found that Korea had not b ased the blanket import ban and the 
2013 additional testing requirements on available pertinent information.305 In its analysis leading up 
to this finding, the Panel observed that Korea had listed various kinds  of information, including the 
Codex  Standard, c laiming that this information served as the basis for its measures.306 The Panel took 
the view that a mere listing of documents is not enough to show that a measure was adopted on the 
basis of available pertinent information. The Panel further considered the  text of the measures and 
the contemporaneous "Q&A on Radioactivity Safety Management of Fishery Products Imported from 
Japan", observing that the latter contained a reference to the Codex Standard.307 The Panel thus 
proceeded to assess the relevance of the Codex Standard, but ultimately could not conclude that the 
Codex Standard had served as a basis for the measures at issue.308  
5.102.   Finally, the Panel assessed whether Korea had sought additional information and whether 
Korea had reviewed its measures "within a r easonable period of time". In this context, the Panel 
reviewed a number of activities undertaken by Korea since 2011.309 Based on the evidence on the 
record, the Panel found that Korea had sought additional information from Japan and had regularly 
accessed t he publicly available data.310 The Panel, however, observed that, whereas, in 2014, Korea 
had announced the commencement of a review of its 2013 measures, that review had not been 
concluded. The Panel pointed to the lack of evidence on the record of specific  activity undertaken by 
the Korean Government related to this review since September  2014. The Panel also observed that 
Korea had provided no legitimate justification for the suspension of this review. Therefore, the Panel 
found that Korea did not review i ts measures within a reasonable period of time.311 
5.103.   In conclusion, the Panel found that Korea had failed to: (i)  establish that there was insufficient 
scientific evidence with respect to the product -specific import bans, the blanket import ban, or the 
2013 ad ditional testing requirements; (ii)  demonstrate that it had based the blanket import ban or 
the 2013 additional testing requirements on available pertinent information; and (iii)  review any of its 
measures within a reasonable period of time. Consequently, the Panel found that none of Korea's 
measures fulfils all of the requirements of Article  5.7.312 
5.3.3   Whether  the Panel  erred under Articles 6.2, 7, and 11 of the DSU in making findings 
under Article  5.7 of the SPS  Agreement  
5.104.   Korea's first claim on appeal is that Article  5.7 of the SPS  Agreement was outside the Panel's 
terms of reference and that the Panel erred under Articles  6.2, 7, and 11 of the DSU in making findings 
                                                
303 Panel Report, paras.  7.92-7.94. The Panel also addressed the uncertainty "with respect to the potential 
for future nuclear accidents at the FDNPP or elsewhere", but considered that "this uncertainty does not relate to 
the science necessary to assess the risks associated with the consumption of contaminated food."  (Panel Report, 
para. 7.108. See also ibid., para.  7.95)  
304 Panel Report, para.  7.98. 
305 Panel Report, paras.  7.109 and 7.111.  
306 Panel Report, para.  7.99. 
307 Panel Report, para.  7.100 (referring to Korea O ffice for Government Policy Coordination , Ministry of 
Food and Drug Safety, Ministry of Oceans and Fisheries , and Nuclear Safety and Security Commission , "Q&A on 
Radioactivity Safety Management of Fishery Products Imported from Japan"  (September 2013)  (Panel Exhibit 
JPN-4.b)).  
308 Panel Report, para.  7.100.  
309 Panel Report, para.  7.105.  
310 Panel Report, para.  7.107. See also ibid., para.  7.110.  
311 Panel Report, paras.  7.107 and 7.110.  
312 Panel Report, paras.  7.111 and 8.1.  WT/DS495/AB/R  
 
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  under Article  5.7.313 Japan responds that the Panel correctly addressed Article  5.7 by recognizin g that 
Korea had invoked this provision as part of its defence.314 
5.105.   Article  5.7 of the SPS  Agreement provides:  
In cases where relevant scientific evidence is insufficient, a Member may provisionally 
adopt sanitary or phytosanitary measures on the basis of av ailable pertinent information, 
including that from the relevant international organizations  as well as from sanitary or 
phytosanitary measures applied by other Members. In such circumstances, Members shall 
seek to obtain the additional information necessar y for a more objective assessment of 
risk and review the sanitary or phytosanitary measure accordingly within a reasonable 
period of time.  
5.106.   Pursuant to this provision, a Member may provisionally adopt an SPS measure where relevant 
scientific evidence is ins ufficient. The Appellate  Body has said that the relevant scientific evidence will 
be considered insufficient for purposes of Article  5.7 "if the body of available scientific evidence does 
not allow, in quantitative or qualitative terms, the performance of an adequate assessment of risks as 
required under Article  5.1 and as defined in Annex A to the SPS  Agreement".315 The Appellate  Body 
has further said that under Article  5.1, "WTO Members are allowed to base SPS measures on divergent 
or minority views provide d they are from a respected and qualified source."316 It may thus be possible 
to perform a risk assessment that meets the requirements of Article  5.1 "even when there are 
divergent views in the scientific community in relation to a particular risk".317 By cont rast, Article  5.7 
is concerned with "situations where deficiencies in the body of scientific evidence do not allow a 
WTO Member to arrive at a sufficiently objective conclusion in relation to risk".318 The Appellate  Body 
has also considered that "Article  5.7 operates as a qualified exemption from the obligation under 
Article  2.2 [of the SPS  Agreement] not to maintain SPS  measures without sufficient scientific 
evidence."319 When such a situation of insufficiency of relevant scientific evidence arises, a Member 
may adopt a provisional SPS measure on the basis of available pertinent information, but it must then 
seek to obtain the additional information necessary for a more objective risk assessment and review 
the provisional measure within a reasonable period of t ime. 
5.107.   Accordingly, there are four cumulative requirements in Article  5.7320: (i) the provisional 
measure is adopted with respect to a situation where "relevant scientific evidence is insufficient" ; 
(ii) the provisional measure is adopted "on the basis of avai lable pertinent information"321; (iii)  the 
Member adopting the measure "seek [s] to obtain the additional information necessary for a more 
objective assessment of risk" ; and (iv)  the Member adopting the measure review s that measure 
"accordingly within a reaso nable period of time".322 The latter two  requirements "highlight the 
provisional  nature of measures adopted pursuant to Article  5.7".323 
                                                
313 Korea's appellant's submission, paras.  53 and 59.  
314 Japan's appellee's submission, paras.  665 and 670.  
315 Appellate  Body Report, Japan – Apples , para.  179. See also Appellate  Body Reports, Australia – Apples , 
paras. 238-239; Canada – Continued Suspension , para. 677; US – Continued Suspension , para.  677. 
316 Appellate  Body Reports, Canada – Continued Suspension , para. 677; US – Continued Suspension , 
para. 677. See also Appellate Body Report, EC – Hormones , para. 194.  
317 Appellate  Body Reports, Canada – Continued Suspension , para.  677; US – Continued Suspension , 
para. 677. 
318 Appellate  Body Reports, Canada – Continued Suspension , para.  677; US – Continued Suspension , 
para. 677. 
319 Appellate  Body Report, Japan – Agricultural Products II , para.  80. (emphasis original) See also Panel 
Reports, EC – Approval and Marketing of Biotech Products , paras.  7.2969, 7.2974, and 7.2976 ; US – Animals , 
paras.  7.292 -7.293; Russia – Pigs (EU) , para.  7.643.  
320 Appellate  Body Reports, Japan – Agricultural Products II , para.  89; Japan – Apples , para.  176. 
321 The Appellate  Body has emphasized that "there must be a rational and objective relations hip between 
the information concerning a certain risk and a Member's provisional SPS measure."  (Appellate  Body Reports, 
Canada – Continued Suspension , para. 678; US – Continued Suspension , para.  678) 
322 The Appellate  Body has held that "'a 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 information necessary for the review and the characteristics of the provisional SPS measure."  
(Appellate  Body Report, Japan – Agricultural Products II , para.  93 (emphasis original))  
323 Appellate  Body Report, Japan – Apples , fn 318 to para.  176. (emphasis original)  WT/DS495/AB/R  
 
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  5.108.   In EC – Hormones , the Appellate  Body recognized that Article  5.7 of the SPS  Agreement 
reflects the precautionary principle. The Appellate  Body emphasized:  
[A] panel charged with determining, for instance, whether "sufficient scientific evidence" 
exists to warrant the mai ntenance by a Member of a particular SPS measure may, of 
course, and should, bear in mind that responsible, representative governments commonly 
act from perspectives of prudence and precaution where risks of irreversible, e.g. life -
terminating, damage to h uman health are concerned.324 
5.109.   As recalled above, the Panel assessed the consistency of Korea's measures with each of the 
four cumulative requirements set out in Article  5.7 and found that none of Korea's measures fulfils all 
of these requirements.325  
5.110.   Korea, h owever, contends that Article  5.7 was outside the Panel's terms of reference because 
Japan had not made a claim of inconsistency under this provision in its panel request.326 In addition, 
Korea submits that it did not argue before the Panel that, if its meas ures satisfied the requirements 
of Article  5.7, they could not be found to be inconsistent with Articles  2.3 and 5.6 of the 
SPS Agreement  or would be excluded from the scope of these provisions.327 Korea submits that it 
referred to Article  5.7 as a "contextu al argument under Articles  2.3 and 5.6".328 Therefore, according 
to Korea, its own reference to Article  5.7 neither required nor authorized the Panel to make an 
assessment of the consistency of Korea's measures under that provision.329 Instead, the Panel shoul d 
have explored the guidance provided by Article  5.7 in relation to the relevance of the insufficiency of 
scientific evidence in determining: (i)  the similarity of conditions prevailing in Japan and the rest of 
the world under Article  2.3; and (ii)  whether  Japan's proposed alternative measure achieves Korea's 
ALOP and is technically and economically feasible under Article  5.6.330 In these circumstances, Korea 
submits that, in making findings under Article  5.7, the Panel acted inconsistently not only with 
Articles 6.2 and 7 of the DSU, but also with Article  11 of the DSU , because the Panel assessed a 
provision that was not part of the matter before it.331  
5.111.   Japan argues that the Panel was correct to make findings in relation to Article  5.7 given that 
Korea had inv oked that provision as part of its arguments in defence.332 Japan contends that, 
"[w]hatever claims and arguments are raised in defense, Article  11 of the DSU requires that they be 
properly addressed by a panel as part of its 'objective assessment of the mat ter', which includes 'the 
applicability of and conformity with the relevant covered agreements'."333 Thus, Japan contends that 
the Panel acted consistently with its duties under Article  11 of the DSU in assessing Korea's arguments 
under Article  5.7 of the SP S Agreement. Japan adds that the Panel was required to make an objective 
assessment of Korea's arguments under Article  5.7 even if that provision was not included in 
Japan's  panel request.334 
5.112.   Korea's claim of error on appeal requires us to examine whether th e Panel failed to comply 
with Articles 7 and 11 of the DSU in making findings as to the consistency of Korea's measures with 
the requirements of Article  5.7 of the SPS  Agreement.335  
                                                
324 Appellate  Body Report, EC – Hormones , para.  124. See also Appellate  Body Reports, Canada – 
Continued Suspension , para. 680; US – Continued Suspension , para.  680. 
325 Panel Report, paras.  7.111 and 8.1.  
326 Korea's appellant's submission, paras.  54 and 59.  
327 Korea's appellant's submission, para. 57. 
328 Korea's appellant's submission, para.  47. See also ibid., para.  55. At the oral hearing, Korea 
emphasized that it had not raised Article  5.7 before the Panel as a defence, but as context for the assessment of 
Japan's claims under other provisio ns of the SPS  Agreement. (Korea's response to questioning at the oral 
hearing)  
329 Korea's appellant's submission, paras.  54-55 and 58.  
330 Korea's appellant's submission, para.  55. 
331 Korea's appellant's submission, para.  59 (referring to Appellate  Body Report , Chile – Price Band 
System , para.  173).  
332 Japan's appellee's submission, para.  665. 
333 Japan's appellee's submission, para.  668 (quoting DSU, Article 11).  
334 Japan's appellee's submission, para.  670. 
335 We note that Korea also claims that the Panel acted inconsistently with Article  6.2 of the DSU. 
Article  6.2 sets forth the requirements applicable to a request for the establishment of a panel. Korea does not 
allege that Japan's panel request fails to meet the requirements set out in that provision. W e therefore find that 
the claim of error raised by Korea on appeal does not concern Article  6.2 of the DSU.  WT/DS495/AB/R  
 
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  5.113.   Articles  7 and 11 of the DSU concern the terms of reference and the functio n of panels, 
respectively. The Appellate  Body has said that a panel request defines the scope of the dispute.336 The 
measures and the claims identified in the panel request constitute the "matter referred to the DSB", 
which serves as a basis for the panel's terms of reference under Article  7.1 of the DSU.337 Under 
Article  7.1, unless the parties agree otherwise, panels shall have the following terms of reference: 
"[t]o examine, in the light of the relevant provisions in (name of the covered agreement(s) cited b y 
the parties to the dispute), the matter referred to the DSB by (name of party) in document ... and to 
make such findings as will assist the DSB in making the recommendations or in giving the rulings 
provided for in that/those agreement(s)". Article  7.2 o f the DSU specifies that panels shall address 
the relevant provisions in any covered agreement or agreements cited by the parties to the dispute.338 
Like Article  7.1, Article  11 of the DSU also refers to the "matter" before a panel. Pursuant to Article  11, 
a panel is required to make an objective assessment of the matter before it, including an objective 
assessment of the facts of the case and the applicability of and conformity with the relevant covered 
agreements.  
5.114.   A panel's mandate, as reflected in Article s 7.1 and 11 of the DSU, is to examine the "matter" 
before it in light of  the relevant provisions of the covered agreements cited by the parties and to make 
such findings as will assist the DSB in making the recommendations or in giving the ruling s provide d 
for in the covered agreements.339 Parties may , for example , refer to a WTO provision merely to serve 
as relevant context to the interpretation of other WTO provisions identified in the "matter" before a 
panel. In such a case, while Article  7.2 of the DSU r equires panels to "address the relevant provisions 
in any covered agreement … cited by the parties", a panel's mandate does not extend to making 
findings as to the consistency of the measure at issue with a provision cited as mere interpretative 
context.  
5.115.   It is uncontested that Japan did not make a claim of inconsistency under Article  5.7 of the 
SPS Agreement  in its panel request.340 Instead, it was Korea's rebuttal arguments before the Panel 
that prompted the Panel to examine Korea's measures under Article  5.7.341 Thus, the issue before us 
is whether, in light of Korea's references to Article  5.7, the Panel was correct to make findings as to 
the consistency of Korea's measures with each of the requirements of Article  5.7. Accordingly, we 
review the Panel record  to assess how Korea used Article  5.7 in the Panel proceedings.  
5.116.   In its first written submission to the Panel, Korea relied on the provisional nature of its 
measures under Article  5.7 as factual background information to the dispute.342 Throughout the 
remaining stages of the Panel proceedings, Korea asserted that there is insufficient relevant scientific 
evidence to conduct an adequate risk assessment of consuming certain Japanese food products 
                                                
336 Appellate  Body Reports , Argentina – Import Measures , para.  5.11. See also Appellate  Body Reports, 
US – Carbon Steel , para.  124; US – Countervailin g Measures (China) , para.  4.6; US – Countervailing and 
Anti-Dumping Measures (China) , para.  4.6. 
337 Appellate  Body Reports, Guatemala – Cement I , paras.  72-73; US – Carbon Steel , para.  125;  
Australia – Apples , para.  416; China – Raw Materials , para.  219. S ee also European  Union's third participant's 
submission, para.  39; United  States' third participant's submission, para.  15. 
338 The Appellate  Body has said that "panels are required to address issues that are put before them by 
the parties to a dispute." The  Appellate  Body has also stated that "panels cannot simply ignore issues which go to 
the root of … their authority to deal with and dispose of matters "; rather, "panels must deal with such issues  – if 
necessary, on their own motion – in order to satisfy th emselves that they have authority to proceed."  
(Appellate  Body Report, Mexico – Corn Syrup (Article  21.5 – US), para.  36) See also Appellate  Body Report, 
EC and certain member States – Large Civil Aircraft , para.  791; Brazil's third participant's submissio n, para.  3. 
339 Panels are called upon to examine the claims of inconsistency against the challenged measures raised 
by the complaining party that form part of the matter as well as the defences, including justification for a 
responding party's action, submi tted by the responding party that are relevant for the assessment of such 
claims.  
340 Korea's appellant's submission, para.  59; Japan's appellee's submission, para.  670. See also Japan's 
panel request. We note that Japan included Article  5.7 of the SPS  Agree ment in its Request for Consultations. 
(Request for Consultations by Japan, WT/DS495/1 , para. 15(b) ) 
341 Panel Report, para.  7.67. The Panel's "findings and recommendation(s)" confirm  that the Panel did not 
treat Article  5.7 as part of the claims made by Jap an. The Panel first recalled its finding that "the measures do 
not fulfil the four requirements in Article  5.7" and then summarized its findings "on Japan's specific requests".  
(Panel Report, para.  8.1) Accordingly, in setting out the infringements giving rise to a presumption of nullification 
or impairment under Article  3.8 of the DSU, the Panel listed Articles  5.6, 2.3, and 7 as well as Annexes B(1) and 
B(3), but made no mention of Article  5.7. (Panel Report, para.  8.6) See also the European  Union's third  
participant's submission, para.  41. 
342 Korea's first written submission to the Panel, paras.  83-86 under Heading II entitled "Factual 
background to the dispute".  WT/DS495/AB/R  
 
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  contaminated with radionuclides stemming fr om the FDNPP and that this is relevant to the assessment 
of Japan's claims under other provisions of the SPS  Agreement.343 Specifically, Korea argued that the 
available scientific evidence is insufficient to establish that Japan's proposed alternative measur e under 
Article  5.6 of the SPS  Agreement is capable of achieving Korea's ALOP.344 Korea also argued that, for 
purposes of Japan's claim under Article  2.3 of the SPS  Agreement, the conditions prevailing in Japan 
cannot be said to be similar or identical to co nditions prevailing in Korea or in other countries due to 
the insufficiency of scientific evidence.345 In this respect, Korea  stated that it was not arguing that 
Article  5.7 justifies discrimination. Rather, Korea contended that "the insufficiency of the rel evant 
scientific evidence concerning radionuclide contamination in Japan is an important factor that makes 
the conditions prevailing in Japan different to conditions prevailing in Korea or in third countries."346 
Moreover, Korea argued that Article  5.7 provi des relevant context for the interpretation of Articles  2.3, 
5.6, 7, and 8 and Annexes B and C to the SPS  Agreement.347 In its closing statement at the second 
Panel meeting, Korea explicitly stated that the Panel's terms of reference "d[id] not permit [the P anel] 
to make any findings that Korea's SPS  measures depart from the requirements of Article  5.7".348 
5.117.   The Panel record shows us that Korea did not allege before the Panel that its measures would 
be justified or exempted from the obligations contained in Articles  2.3, 5.6, 7, and 8 and Annexes B 
and C to the SPS  Agreement, by virtue of their alleged provisional nature under Article  5.7 o f the 
SPS Agreement. Korea also did not argue that there are different sets of obligations for provisional 
measures and for definitive measures under Articles  2.3 and 5.6. Rather, Korea's main argument was 
that a particular situation – namely, the alleged insufficiency of scientific evidence to conduct an 
assessment of the risk associated with the consumption of certain food products from Japan – is 
relevant to the assessment of Japan's claims under Articles  2.3 and 5.6. Given the nature of Korea's 
reliance  on Article  5.7, the Panel was called upon to explore the relevance of the alleged insufficiency 
of relevant scientific evidence in determining the similarity of conditions prevailing in Japan and  other 
Members  under Article  2.3 and whether  Japan's propose d alternative measure achieves Korea's  ALOP 
and is technically and economically feasible under Article  5.6.349 The Panel was also called upon to 
explore whether Article  5.7 provides relevant context to the interpretation of certain provisions of the 
SPS Agreement at issue in this dispute.  
5.118.   As noted above, Japan did not include a claim under Article  5.7 in its panel request. For its 
part, Korea did not allege that its measures would be justified or exempted from the obligations 
contained in Articles  2.3, 5.6, 7 , and 8 and Annexes B and C by virtue of their provisional nature under 
Article  5.7. Rather, Korea relied on Article  5.7 to serve as relevant context to the interpretation of 
certain other provisions of the SPS  Agreement, which were the subject of Japan's claims of 
inconsistency. Korea also referred to Article  5.7 when relying on the alleged insufficiency of evidence 
in this case as a relevant factor to the Panel's assessment of Japan's claims of inconsistency, in 
particular those under Articles 2.3 and 5.6  of the SPS  Agreement. Therefore, by making findings as to 
the consistency of Korea's measures with  Article  5.7, the Panel exceeded its mandate, thereby acting 
inconsistently with Articles  7.1 and 11 of the DSU. For this reason, we declare the Panel's find ings 
under Article  5.7 of the SPS  Agreement moot and of no legal effect . 
                                                
343 See e.g. Korea's second written submission to the Panel, paras.  174 and 298; opening statement at 
the first Panel meeting, paras.  40-42; response to Panel question No. 104, para.  170. 
344 Korea's second written submission to the Panel, para.  298. See also Ko rea's opening statement at the 
first Panel meeting, para.  87; response to Panel question No. 104, para.  170. 
345 Korea's second written submission to the Panel, paras.  172-176. See also Korea's opening statement 
at the first Panel meeting, para.  53; response  to Panel question No.  107, paras.  177-179. 
346 Korea's response to Panel question No.  107, para.  180. To Korea, given that prevailing conditions are 
not identical or similar, "there would be no basis to examine, let alone find, discrimination under Article  2.3." 
(Ibid.)  
347 Korea's response to Panel question No.  108, para.  191. 
348 Korea's closing statement at the second Panel meeting, para.  3. 
349 Despite making findings under Article  5.7, the Panel appears to have acknowledged as much. After 
making findings under Article  5.7, the Panel indeed referred to the relevance of "the nature, scope, and quality of 
scientific evidence … for determining wheth er the constituent elements of Japan's claims under Articles 2.3, 5.6, 
and 8 (Annex C) have been demonstrated" and stated that it would "carefully consider both parties' arguments 
on whether the scientific evidence adduced is sufficient to prove Japan's cl aims".  (Panel  Report, para.  7.112)  WT/DS495/AB/R  
 
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  5.3.4   Whether  the Panel erred in its interpretation and application of Article  5.7 of the 
SPS Agreement and under  Article  11 of the DSU in finding that Korea's measures do not 
meet the requ irements of Article  5.7 of the SPS  Agreement  
5.119.   Korea  claims on appeal that the Panel made several errors in its interpretation and application 
of Article  5.7 of the SPS  Agreement in finding that Korea's measures do not meet the requirements of 
this provision . In particular, Korea claims that the Panel erroneously allocated the burden of proof 
under Article  5.7 to Korea.350 Korea also claims that the Panel erred in finding that Korea's measures 
did not meet the requirements in Article  5.7 that scientific evidenc e be insufficient, provisional 
SPS measures be adopted on the basis of pertinent information, and provisional SPS measures be 
reviewed within a reasonable period of time.351 Finally, Korea claims that the Panel failed to make an 
objective assessment of the m atter under Article  11 of the DSU by engaging in internally inconsistent 
reasoning.352 Japan requests us to reject Korea's claims of error on appeal.353  
5.120.   Having  declared the Panel's findings under Article  5.7 of the SPS  Agreement  moot and of no 
legal effect , it is not necessary for us to consider further Korea's other claims of error in relation to 
those same Panel findings.  
5.3.5   Conclusion  
5.121.   A panel's mandate, as reflected in Articles 7.1 and 11 of the DSU, is to examine the "matter" 
before it in light of the relevant provisions of the covered agreements cited by the parties and to make 
such findings as will assist the DSB in making the recommendations or in giving the ruling s provided 
for in the covered agreements . Japan did not make a  claim under Article  5.7 of the SPS  Agreement in 
its panel request. While Korea raised arguments in relation to Article  5.7 as part of its rebuttal 
arguments, Korea did not allege that its measures would be justified or exempted from the obligations 
contai ned in Articles  2.3, 5.6, 7, and 8 and Annexes B and C to the SPS  Agreement by virtue of their 
provisional nature under Article  5.7. Rather, Korea relied on Article  5.7 to serve as relevant context 
to the interpretation of certain other provisions of the S PS Agreement, which were the subject of 
Japan's claims of inconsistency. Korea also referred to Article  5.7 when relying on the alleged 
insufficiency of evidence in this case as a relevant factor to the Panel's assessment of Japan's claims 
of inconsistency , in particular those under Articles 2.3 and 5.6. By making findings as to the 
consistency of Korea's measures with  Article  5.7, the Panel exceeded its mandate, thereby acting 
inconsistently with Articles 7.1 and 11 of the DSU.  
5.122.   For this reason, we declare  the Panel's findings under Article  5.7 of the SPS  Agreement moot 
and of no legal effect . Consequently , it is not necessary for us to consider further Korea's other claims 
of error in relation to those same Panel findings under Article  5.7. 
5.4  The Panel's tre atment of evidence  
Both Korea and Japan claim on appeal that the Panel erred in its treatment of evidence when 
assessing the consistency of Korea's measures with Articles  2.3 and 5.6 of the SPS  Agreement. Korea 
claims that the Panel erred under Article  11 of the DSU by considering evidence that either was not 
available to the Korean authorities at the time of the adoption of the challenged measures or did not 
exist at the time of the Panel's establishment. Korea contends that the Panel relied on such eviden ce 
to find that the alternative measure proposed by Japan would meet Korea's ALOP under Article  5.6 
and that similar conditions existed under Article  2.3. Therefore, Korea requests us to reverse the 
Panel's findings concerning the use of such evidence as w ell as the ultimate findings of inconsistency 
under Articles 2.3 and 5.6.354  
                                                
350 Korea's appellant's submission, paras.  62 and 83.  
351 Korea's appellant's submission, paras.  91, 120, 128, 154-155, and 169.  
352 Korea's appellant's submission, para.  153. 
353 Japan submits that Korea bore the burden of proof  under Article  5.7 of the SPS  Agreement and that 
the Panel correctly examined each requirement under Article  5.7. (Japan's appellee's submission, paras.  677, 
687-790, and 797 -817) In addition, Japan disagrees with Korea that the Panel engaged in internally  inconsistent 
reasoning and failed to comply with its duties under Article  11 of the DSU. (Japan's appellee's submission, 
paras.  791-796) 
354 Korea's Notice of Appeal, paras.  11-12 and 14; appellant's submission, paras.  229 and 346 (referring 
to Panel Report , paras.  7.5, 7.8, 7.134, 7.142, 7.207, 7.219, 7.226, 7.236, 7.245, 7.251 -7.256, 7.307 -7.308, 
7.311, 7.315, 7.319, 7. 321-7.322, 7.355, 7.360, 8.2.b -e, and 8.3.a -b). WT/DS495/AB/R  
 
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In response, Japan requests us to reject Korea's claims of error on appeal. With regard to 
evidence not available to the Korean authorities at the time of the adoption of the chall enged measures, 
Japan submits that the Panel did not err in relying on such evidence when assessing the maintenance  
of the measures355, and did not rely on such evidence to reach conclusions as to the adoption of the 
measures.356 Regarding evidence that post -dated the Panel's establishment, Japan contends that the 
Panel was not permitted to exclude such evidence when assessing the maintenance of the challenged 
measures, as Articles 2.3 and 5.6 impose continuing obligations.357 Alternatively, Japan submits that 
the Panel did not err in considering such evidence to confirm Japan's prima facie  case.358 
In its Other Appeal, Japan claims that the Panel erred in the interpretation and application of 
Articles 3.3 -3.4, 3.7, and 11 of the DSU, as well as the application of A rticles 2.3 and 5.6 of the 
SPS Agreement , by disregarding timely submitted evidence relating to the situation after the Panel's 
establishment in its assessment of Japan's claims that the challenged measures were maintained 
inconsistently with Articles 2.3 and 5.6. Nonetheless, Japan considers that these errors do not vitiate 
the Panel's ultimate findings under Articles 2.3 and 5.6, and requests us to uphold these findings.359 
If we consider that the Panel's error s in this regard do vitiate its ultimate findings under Articles  2.3 
and 5.6, Japan requests us to complete the legal analysis and find that, based on all timely submitted 
evidence, Korea's measures are maintained inconsistently with these provisions.360  
By contrast, Korea re quests us to reject Japan's claims of error on appeal. Korea submits that 
the Panel was required to assess whether there was an inconsistency with the SPS  Agreement as of 
the date of the Panel's establishment. Korea further submits that the SPS  Agreement a nd the DSU 
precluded the Panel from considering evidence that post -dated the Panel's establishment.361  
Korea's and Japan's claims of error on appeal concerning the Panel's treatment of evidence 
relate to the Panel's application of Articles 2.3 and 5.6 of th e SPS  Agreement. We have found that the 
Panel erred in its application of Article  5.6 with regard to Korea's ALOP. We have also found that the 
Panel erred in its interpretation and application of Article  2.3 with regard to whether identical or similar 
conditions prevail between Japan and other Members. Accordingly, we have reversed the Panel's 
findings of inconsistency under Articles 2.3 and 5.6.362 Given that the participants' claims of error in 
relation to evidence concern Panel findings that have already b een reversed, we do not consider it 
necessary to examine further these claims of error.  
5.5  The Panel's e xpert  selection  
Korea appeals the Panel's decision to consult with two experts.363 Korea claims that the Panel 
erred under Article  11 of the DSU by appointi ng these two  experts in disregard of Korea's due process 
rights. Korea contends that the Panel should have found that there was an objective basis to conclude  
that these experts' independence or impartiality was likely to be affected or that there were jus tifiable 
doubts about their independence or impartiality.364 Given that the Panel relied on its consultation with 
these experts in its assessment under Articles  2.3, 5.6, and 5.7 of the SPS  Agreement, Korea requests 
us to reverse the Panel findings under the se provisions.365 
                                                
355 Japan's appellee's submission, paras.  615-616. 
356 Japan's appellee's submission, paras.  620, 630 -631, and 637.  
357 Japan's appellee's submission, paras.  380-381. 
358 Japan's appellee's submission, para.  382. 
359 Japan's other appellant's submission, paras.  244 and 357.a -b. 
360 Japan's Notice of Other Appeal, para.  3; other appellant's submission, paras.  245, 294, 356 , and 357.c.  
361 Korea's appellee's submission, paras.  9, 30, and 48. Korea also submits that the Panel's errors 
concerning evidence warrant reversal of its ultimate findings under Articles 2.3 and 5.6 of the SPS  Agreement, 
and that the Appellate  Body should decline to complete the legal analysis after reversing these Panel  findings. 
(Ibid., paras.  89 and 102)  
362 See paras.  5.39.  and 5.93.  above.  
363 Korea's appellant submission, para.  38; Panel Report, para.  1.28 and Annex  D-2. 
364 Korea's appellant's submission, para.  38 (referring to Appellate Body Reports, Canada – Continued 
Suspension , para. 454; US – Continued Suspension , para. 454).  
365 Korea's appellant's submission, paras.  39 and 387.a. Korea refers to Panel Report, paras.  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. WT/DS495/AB/R  
 
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By contrast, Japan requests us to reject Korea's challenge on appeal. Japan submits that the 
Panel was rigorous in its expert selection process and that it observed Korea's due process rights. To 
Japan , Korea has failed to demonstrate that the Panel erred under Article  11 of the DSU.366 
Korea's claim of error at issue is connected with the Panel's application of Articles  2.3, 5.6, 
and 5.7 of the SPS  Agreement. The two experts at issue provided responses to the majority of the 
questions posed b y the Panel, and the Panel relied on these responses in its assessment of the 
consistency of Korea's measures with Articles  2.3, 5.6, and 5.7.367 We have found above that the 
Panel erred in its findings under Articles  2.3 and 5.6, and in making findings under Article  5.7. We 
have reversed the Panel's findings of inconsistency under Articles  2.3 and 5.6, and declared the Panel's 
findings under Artic le 5.7 moot and of no legal effect .368 Consequently, Korea's claim of error under 
Article  11 of the DSU and request on appeal in relation to the Panel's expert selection concern Panel 
findings that have been reversed or  declared moot and of no legal effect . For this reason, we do not 
consider it necessary to examine further Korea's claim that the Panel erred under Article  11 of the 
DSU by appointing the two experts that Korea challenges on appeal.  
5.6  Article  7 and Annex B to the SPS  Agreement   
Korea appeals the Panel's interpretation and application of Article  7 and Annex  B(1) to the 
SPS Agreement, as well as the Panel's interpretation and application of Article  7 and Annex  B(3) to 
the SPS  Agreement. We examine these aspects of Korea's appeal in sections  5.6.1   and 5.6.2  below.  
5.6.1   Annex  B(1) to the SPS  Agreement  
5.6.1.1   Introduction   
Korea appeals the Panel's finding that Annex  B(1) to the SPS  Agreement requires that the 
publication of an SPS  regulation "contain sufficient content that the [interested]369 Member will know 
the conditions (including specific principles and met hods) that apply to its goods".370 Korea claims that 
the Panel erred in its interpretation of Annex  B(1) by imposing additional obligations not included in 
this provision.371 Korea also appeals several aspects of the Panel's application of Annex  B(1) to the 
measures at issue in this dispute.  In particular, Korea claims that the Panel erred in finding that: 
(i) the press release announcing the blanket import ban did not include the full product coverage of 
the measure372; (ii) the press releases announcing the 2011 and 2013 additional testing re quirements 
did not include sufficient content to enable Japan to know the conditions that would be applied to its 
goods373; and (iii)  Korea did not show that interested Members would have known to look to certain 
websites for information on each of the chall enged measures.374 In addition, Korea claims that the 
Panel erred under Article  11 of the DSU by finding that the Panel could not know whether the web 
addresses provided by Korea were available on the day Korea announced the measures at issue and 
what conten t was available on that day.375 Korea requests us to reverse the relevant Panel findings at 
issue.376 Japan, for its part, requests us to reject Korea's claims of error on appeal and uphold the 
relevant findings by the Panel.377 
Before examining Korea's claims o f error on appeal, we summarize the relevant Panel  findings. 
We then set out our understanding of Annex B(1) to the SPS  Agreement. Thereafter, we examine the 
                                                
366 Japan's appellee's submission, paras.  31-32, 57 -58, 65, 76, and 925.  
367 Korea's appellant's submission, para.  39; Panel Report, paras. 1.32 -1.33 and 1.35 -1.36. 
368 See paras.  5.39.  , 5.93.  , and 5.122.   above.  
369 The Panel appears to have inadvertently referred to "importing" Member. Given the Panel's reasoning 
and how this expression was used in this sentence, we understand the Panel to have intended to refer to 
"interested" Member instead.  
370 Korea's appellant's submission, para.  351 (quoting Panel Report, para.  7.464 ). 
371 Korea's appellant's submission, paras.  347, 358, and 363 -364. 
372 Korea's appellant's submission, paras.  366-367 (referring to Panel Report, paras.  7.483 and 7.487 ). 
373 Korea's appellant 's submission, paras.  368-369 (referring to Panel Report, paras.  7.492, 7.494, and 
7.500-7.501). 
374 Korea's appellant's submission, paras.  372-373 (referring to Panel Report, paras.  7.474, 7.476, 7.485, 
and 7.497). 
375 Korea's appellant's submission, para.  376 (referring to Panel Report, paras.  7.474, 7.485, and 7.497). 
376 Korea's appellant's submission, paras.  364, 375, and 379 (referring to Panel Report, 
paras.  7.461 -7.464, 7.474 -7.476, 7.483, 7.485 -7.487, 7.492, 7.494, 7.496 -7.502, and 8.5.a).  
377 Japan's appellee's submission, paras.  821, 859, 869, 871, 892, and 925.  WT/DS495/AB/R  
 
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  merits of Korea's claims of error on appeal that the Panel erred in its interpretation and applica tion of 
this provision. In the final step of our analysis, we address Korea's claim that the Panel acted 
inconsistently with Article  11 of the DSU.  
5.6.1.2   The Panel's findings  
At the outset, the Panel found that Japan had established that Korea's measures at issue are 
SPS regulations subject to Annex  B(1) to the SPS  Agreement.378 The Panel then recalled that, under 
Annex B(1), Members are obliged to ensure that an adopted measure is published promptly in such a 
manner as to enable interested Members to become ac quainted with it. The Panel noted that Japan 
did not dispute the promptness of Korea's actions; rather, Japan questioned whether Korea's actions 
to post press releases on certain websites were sufficient to fulfil the other elements in Annex  B(1).379 
The Pan el noted that Annex  B(1) refers to the term "regulation". The Panel contrasted this 
term with the term "notice" in Annex  B(5)(a) to the SPS  Agreement, which refers to the publication 
of a notice of a proposal to introduce a particular SPS  regulation. The P anel considered that this 
difference demonstrates that the publication requirements in the two provisions must be qualitatively 
different and that, therefore, Annex B(1) requires publication of something more than an 
announcement that the regulation exists . In addition, the Panel observed that Annex  B(5)(c) and 
Annex  B(6)(b) require Members to provide copies of the (proposed) regulation itself, a requirement 
that is absent from Annex  B(1). To the Panel, this difference support ed a conclusion that the obliga tion 
under Annex B(1) is to publish the content of the SPS  regulation ; otherwise , the drafters would have 
included a similar obligation, as those in Annex  B(5)(c) and Annex B(6)(b), to provide a copy of the 
(proposed) regulation itself separately.380 The Pan el thus considered that the obligation under 
Annex  B(1) is to publish the content of the SPS  regulation, and not an announcement of its existence 
or a brief summary. To the Panel, this can be achieved by publishing the actual regulation "through a 
formal l egal instrument, such as in an official gazette, through decision, or by reproducing the content 
of the regulation in a press release or on a webpage".381 
The Panel also considered that Annex B(2) to the SPS  Agreement provides relevant context 
for the interp retation of Annex  B(1) to the SPS  Agreement. The Panel noted that Annex B(2) requires 
Members to allow a reasonable interval between publication and entry into force of SPS regulations 
"in order to allow time for producers in exporting Members, and particu larly in developing country 
Members, to adapt their products and methods of production to the requirements of the importing 
Member".382 To the Panel, producers in exporting Members cannot adapt their products and methods 
to the requirements of the importing Member if they do not understand them in sufficient detail. The 
Panel considered that the specific elements that will allow interested Members to become acquainted 
with an SPS regulation may vary from regulation to regulation. That said, the Panel took the  view that 
some of the essential elements can be inferred from the substantive requirements for promulgating 
SPS regulations found in the SPS  Agreement, and from a proper interpretation of Annex  B(1). In this 
respect, the Panel stated that, in light of the  goal of enabling Members to know what conditions apply 
to their products and to give them time to adapt to the new requirements, "one would also expect 
information on: the substantive and procedural requirements that an exporter must fulfil, the date on 
which the regulation takes effect, the products affected by the SPS  regulation, as well as, in the case 
of regulations affecting specific Members or regions, the Members or regions the regulation applies 
to."383 
The Panel concluded that, in order to comply wi th the requirement in Annex  B(1) to the 
SPS Agreement, the publication must make the measures generally known or available through an 
appropriate medium and contain sufficient content that the interested Member "will know the 
conditions (including specific  principles and methods) that apply to its goods".384  
Turning to the product -specific import bans, the Panel found that the press releases 
announcing those bans contain the content of the regulation, as they list the goods, the origin, and 
                                                
378 Panel Report, para.  7.456.  
379 Panel Report, para.  7.458.  
380 Panel Report, para.  7.461.  
381 Panel Report, para.  7.461.  
382 Panel Report, para.  7.463 (quoting Anne x B(2) to the SPS  Agreement).  
383 Panel Report, para.  7.463.  
384 Panel Report, para.  7.464.  WT/DS495/AB/R  
 
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  the applicable co nditions.385 With respect to the accessibility of these press releases on the web 
address provided by Korea, the Panel found that it had "no way of knowing" whether that web address 
was available on the day Korea announced the measures and what content was available on that day. 
The Panel noted that Korea had not provided "an archived version of the website from the appropriate 
time-period".386 In addition, the Panel considered that Korea did not provide any evidence to 
demonstrate that at the time of adoption of the measure interested Members would have known to 
look to the website indicated by Korea for information on SPS measures governing these products.387 
As Japan had made a prima facie  case that Korea did not publish the product -specific import bans in 
a manner so as to enable Japan to become acquainted with them, the Panel found that, with respect 
to the product -specific import bans, Korea acted inconsistently with Annex  B(1) and Article  7 of the 
SPS Agreement.388 
In relation to the blanket import ban, the Pa nel noted that it was undisputed that the press 
release announcing this measure contains the origin and the conditions applicable to the products 
concerned. Korea and Japan, however, disagreed on whether the reference to "all fishery products" in 
the press  release is sufficient to specify the products covered by the blanket import ban.389 The Panel 
noted that the press release does not refer to either Chapter 3 of the Harmonized System (HS) 
nomenclature390 or to the World Organi sation for Animal Health  (OIE) Aq uatic Animal Health Code.391 
The Panel then observed that, in its WTO notification of the blanket import ban, Korea provided more 
details on the product scope of this measure when compared to the press release. In its 
WTO notification, Korea included "aquatic animals" as well as products not included in Chapter  3 of 
the HS, such as algae. To the Panel, Japanese exporters could lack clarity on whether the term "aquatic 
animals" is limited to a more traditional understanding of fishery products or also e xtends to other 
products.392 The Panel considered that Korea used a vague term in its press release rather than 
referring to common sources of definitions for the phrase "fishery products", and then included in the 
scope of the blanket import ban, as describ ed in its notification to the WTO, products that would 
normally be considered in other categories. Given that the press release did not include the products 
that would be subject to the ban set forth in the measure, the Panel found that Korea did not publi sh 
the full content of the regulation.393 With respect to the accessibility of the press release, the Panel 
found that it had "no way of knowing" whether the web address provided by Korea was available on 
the day Korea  announced the measures and what content  was available on that day.394 The Panel 
noted that Korea had not provided "an archived version of the website from the date of release".395 
In addition, the Panel observed that Korea did not explain how Japan would have been aware that it 
had to go to the Kor ean prime minister's website to find SPS measures relating to food imports, 
especially given that the prime minister is not the authority that is directly in charge of regulating the 
items subject to the blanket import ban.396 As Japan had made a prima facie  case that Korea did not 
publish the blanket import ban in a manner so as to enable Japan to become acquainted with it, the 
Panel found that Korea acted inconsistently with Annex  B(1) and Article  7 of the SPS  Agreement.397 
In relation to the 2011 additional testing requirements, the Panel noted that the relevant press 
release does not refer to the levels of caesium or iodine that would trigger the additional testing, which 
specific radionuclides would be tested, or the maximum levels for those radionuclides t hat would result 
in products being rejected. The Panel thus concluded that the press release announcing the 2011 
additional testing requirements does not include the entire content of the regulation.398 With respect 
to the accessibility of the press release,  the Panel found that it had "no way of knowing" whether the 
web address provided by Korea was available on the day Korea  announced the measures and what 
                                                
385 Panel Report, para. 7.472.  
386 Panel Report, para.  7.474.  
387 Panel Report, para.  7.474.  
388 Panel Report, paras.  7.476 and 7.503.  
389 Panel Report, para.  7.479.  
390 Chapter 3 of the HS nomenclature refers to "Fish and crustaceans, molluscs and other aquatic 
invertebrates". (Panel Report, para.  7.481)  
391 Panel Report, para.  7.481. The OIE Aquatic Animal Health Code provides a common definition of 
"aquatic animals". (Ibid .) 
392 Panel Report, para.  7.482.  
393 Panel Report, paras.  7.483 and 7.487.  
394 Panel Report, para.  7.485.  
395 Panel Report, para.  7.485.  
396 Panel Report, para.  7.485.  
397 Panel Report, paras.  7.485, 7.487, and 7.503.  
398 Panel Report, para.  7.492.  WT/DS495/AB/R  
 
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  content was available on that day.399 The Panel noted that Korea had not provided "an archived version 
of the website from the appropriate time period".400 In addition, the Panel stated that Korea did not 
explain how Japan would have known to go to that website to find SPS  measures relating to food 
imports.401 The Panel found that Japan had made a prima facie  case that Korea did not publish the 
2011 additional testing requirements in a manner so as to enable Japan to become acquainted with 
the measure, and that, thus, Korea acted inconsistently with Annex  B(1) and Article  7 of the 
SPS Agreement.402 
In relation to t he 2013 additional testing requirements, the Panel noted that the relevant press 
release does not refer to the levels of caesium that would trigger the additional testing, which specific 
radionuclides would be tested, the maximum levels for those radionucl ides that would result in 
products being rejected, or the procedure and location of the testing required for the additional 
radionuclides.403 Therefore, the Panel concluded that the press release announcing the 2013  additional 
testing requirements does not i nclude the entire content of the regulation.404 With respect to the 
accessibility of the press release, the Panel referred to its earlier analysis, and found that, in addition 
to the missing content, the location of the press release prevented Japan from bec oming acquainted 
with the 2013 additional testing requirements.405 The Panel thus concluded that , in relation to the 
2013 additional testing requirements,  Korea acted inconsistently with Annex  B(1) and Article  7 of the 
SPS Agreement.406 
5.6.1.3   Annex B(1) to the SPS  Agreement: " in such a manner as to enable interested 
Members to become acquainted with them"  
Korea's appeal calls for us to examine the final part of Annex  B(1) to the SPS  Agreement, 
namely, the requirement that adopted SPS regulations be  publish ed promptly  "in such a manner as to 
enable interested Members to become acquainted with them".  
Annex B(1) to the SPS  Agreement provides:  
Members shall ensure that all sanitary and phytosanitary regulations [*] which have been 
adopted are published promptly in such a m anner as to enable interested Members to 
become acquainted with them.  
[*fn original]  5 Sanitary and phytosanitary measures such as laws, decrees or ordinances which 
are applicable generally.  
Article  7 of the SPS  Agreement provides that "Members shall notif y changes in their sanitary 
or phytosanitary measures and shall provide information on their sanitary or phytosanitary measures 
in accordance with the provisions of Annex B." Annex B(1) imposes an obligation on Members to 
ensure that adopted SPS regulation s407 are published promptly "in such a manner as to enable 
interested Members to become acquainted with them". This dispute concerns only the latter part of 
this obligation.408  
                                                
399 Panel Report, para. 7.498.  
400 Panel Report, para.  7.498.  
401 Panel Report, para.  7.498.  
402 Panel Report, paras.  7.498, 7.501, and 7.503.  
403 Panel Report, para.  7.494.  
404 Panel Report, para.  7.496.  
405 Panel Report, para.  7.500.  
406 Panel Report, paras.  7.500 and 7.502 -7.503.  
407 SPS regulations are defined in footnote 5 of the SPS  Agreement as "[s]anitary and phytosanitary 
measures such as laws, decrees or ordinances which are applicable generally".  The Appellate  Body has observed 
that the list of instruments contai ned in this footnote is, as indicated by the words "such as", not  exhaustive in 
nature. To the Appellate  Body, the scope of application of the publication requirement in Annex  B(1) is not 
limited to "laws, decrees or ordinances", but  also includes other in struments which are applicable generally and 
are similar in character to the instruments explicitly referred to in the illustrative list of the footnote  5 to 
Annex  B(1). (Appellate  Body Report, Japan – Agricultural Products II , para.  105) 
408 As noted by the  Panel, Japan does not dispute the promptness of Korea's actions. Rather, Japan 
questions whether Korea's actions are sufficient to fulfil the other elements of Annex  B(1). (Panel Report, 
para. 7.458)  WT/DS495/AB/R  
 
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On the basis of relevant dictionary definitions409, the terms "to enable … to become  
acquainted" can be understood as to give the means to become familiar. Thus, to enable interested 
Members to become acquainted with an adopted SPS regulation, a publication must give the means 
to interested Members to become familiar with it. In our view,  this suggests that the publication of an 
adopted SPS  regulation must be accessible to interested Members and contain sufficient information 
so as to give the means to interested Members to become familiar with it. A publication that is not 
accessible to i nterested Members would not enable interested Members to become acquainted with 
the adopted SPS  regulation. Similarly, a publication that contains insufficient information regarding 
the adopted SPS  regulation would not enable interested Members to become a cquainted with that 
SPS regulation. This reading of the publication requirement in Annex  B(1) is also a prerequisite for 
giving meaning to Annex B(2) to the SPS  Agreement, which requires Members to provide a reasonable 
interval between the publication of a n SPS  regulation and its entry into force, in order to allow 
producers time to adapt their products and methods of production. Annex  B(2) thus provides relevant 
context to the interpretation of the last phrase of Annex B(1). Annex  B(2) provides:  
Except in urgent circumstances, Members shall allow a reasonable interval between the 
publication of a sanitary or phytosanitary regulation and its entry into force in order to 
allow time for producers in exporting Members, and particularly in developing country 
Members, to adapt their products and methods of production to the requirements of the 
importing Member.  
Annex  B(2) refers to the publication under Annex  B(1) when it provides that Members shall 
allow a reasonable interval between the publication of an SPS reg ulation and the entry into force of 
that regulation. As noted earlier, it is the publication pursuant to Annex  B(1) that enables interested 
Members to become acquainted with adopted SPS regulations. Producers in exporting Members will 
be informed of adopte d SPS regulations in importing Members as a consequence of the Annex  B(1) 
publication. Thus, when interpreted in light of the context of Annex  B(2), the final part of Annex  B(1) 
suggests that the publication under that annex must inform of the product scop e and include adequate 
information about the requirements contained in the adopted SPS  regulation. This is because, as 
specified in Annex  B(2), the purpose of the interval between publication and entry into force of an SPS 
regulation is to allow time for p roducers in exporting Members to adapt "their products and methods 
of production" to the requirements of the importing Member.  
In sum, to enable interested Members to become acquainted with an adopted SPS regulation, 
an Annex  B(1) publication must be acces sible to interested Members and contain sufficient 
information, including the product scope and the requirements of the adopted SPS  regulation, to give 
the means to interested Members to become familiar with it. The precise content and amount of 
informatio n that must be included in an Annex  B(1) publication to enable interested Members to 
become acquainted with an adopted SPS  regulation will depend on the particular SPS  regulation at 
issue.  
5.6.1.4   Whether the Panel erred in its interpretation of Annex B(1) to the SPS Agreement  
The Panel found that Annex B(1) to the SPS  Agreement requires the publication of the content 
of the SPS regulation, which can be achieved  by publishing the actual regulation through a formal 
legal instrument, such as in an official gazette, t hrough decision, or by reproducing the content of the 
regulation in a press release or on a webpage.410 According to the Panel, in order to meet the 
requirements in Annex  B(1), the publication of an SPS regulation must make the measures generally 
known and c ontain sufficient content that the exporting Member "will know the conditions (including 
specific principles and methods) that apply to its goods".411  
On appeal, Korea claims that the Panel erred in the interpretation of Annex B(1) to the 
SPS Agreement in f inding that this provision requires that the publication of an adopted SPS  regulation 
include sufficient content so that the interested Member will know the conditions, including specific 
principles and methods, that apply to its goods. Korea argues that A nnex B(1) does not refer to 
"conditions", "specific principles", or "methods" that must be published. To Korea, by finding that 
                                                
409 The definition of "enable" includes "[m]ake able, giv e the means, to be or to do something". ( Shorter 
Oxford English Dictionary , 6th edn, A. Stephenson (ed.) (Oxford University Press, 2007), Vol.  1, p. 824) The 
definition of "acquainted" includes "familiar through being known". (Ibid., p. 20)  
410 Panel Report,  para. 7.461.  
411 Panel Report, para.  7.464.  WT/DS495/AB/R  
 
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  Annex  B(1) requires that detailed methodologies for compliance be included in the publication, the 
Panel imposed additional obli gations not present in Annex  B(1).412 Korea notes, however, that the 
publication obligation of Annex B(1) requires only that the publication of SPS  regulations enable 
interested Members to become acquainted with them.413 
Japan disagrees with Korea that the Panel erred in the interpretation of A nnex B(1) to the 
SPS Agreement. To Japan, the Panel correctly found that the publication under Annex B(1) must 
contain sufficient information, comprising the "conditions (including specific principles and methods)" 
that apply to goods in order to allow pro ducers in exporting Members to "adapt their products and 
production methods" to the importing Member's "requirements".414 Japan contends that the legitimate 
commercial interests of traders and exporting Members would be frustrated if SPS  regulations were 
published in a manner that does not allow them to know how to comply with and adapt to the importing 
Member's "requirements".415 
The Panel began by noting that, in light of the goal of enabling Members to know what 
conditions apply to their products and to give  them time to adapt to the new  requirements, "one would 
also expect information on: the substantive and procedural requirements that an exporter must fulfil, 
the date on which the regulation takes effect, the products affected by the SPS regulation, as wel l as, 
in the case of regulations affecting specific Members or regions, the Members or regions the regulation 
applies to."416 The Panel further stated that, in order to meet the requirements in Annex  B(1) to the 
SPS Agreement, the publication of an SPS regul ation must make the measures generally known and 
contain sufficient content that the exporting Member "will know the conditions (including specific 
principles and methods) that apply to its goods".417 To the extent the Panel's reference to "conditions" 
means  the requirements of the adopted SPS  regulation, that aspect of the Panel's interpretation would 
comport with our interpretation of Annex B(1) set out above. We read, however, the latter part of this 
Panel statement as requiring that the publication of an SPS regulation under Annex B(1) always contain 
conditions that apply to products, as well as "specific principles and methods". We disagree with the 
Panel's reference to "specific principles and methods" to the extent the Panel suggested that this 
undefine d requirement must, in all cases , be met in the publication of an SPS regulation. As explained 
above, to enable interested Members to become acquainted with an adopted SPS regulation, an 
Annex  B(1) publication must contain sufficient information, including  the product scope and the 
requirements of the adopted SPS  regulation, to give the means to interested Members to become 
familiar with it. That said, the precise content and amount of information, in particular any information 
in addition to the product sc ope and requirements of the SPS regulation, that must be included in an 
Annex  B(1) publication to enable interested Members to become acquainted with an adopted 
SPS regulation, will depend on the specific circumstances of each case, including the nature of  the 
SPS regulation at issue, the products covered, and the nature of the SPS risks involved. In particular 
situations, Annex  B(1) may require publication of the "specific principles and methods" relating to an 
adopted SPS  regulation so as to enable intere sted Members to become acquainted with that adopted 
SPS regulation. We do not read, however, Annex  B(1) as imposing such a requirement in all cases , 
regardless of a consideration of the particular SPS  regulation , the products covered, the SPS  risk, and 
other relevant circumstances at issue.  
Japan submits that, in reaching its finding, the Panel drew on the context in Annex  B(5)(b) 
and Annex  B(6)(a) to the SPS  Agreement.418 Indeed, we note that the Panel appears to have found 
support in these provisions for it s interpretation of Annex  B(1). The Panel noted that Annex  B(5)(b) 
requires that a notification include information on the products covered, and the object ive and 
rationale of a proposed regulation. The Panel also noted that Annex  B(6)(a) requires the same  
information, as well as the nature of the urgent problem. The Panel then concluded that it would be 
"paradoxical if Annex  B(1) required less information in the publication of an adopted regulation than 
that required in the notification of a proposed regul ation or one adopted on an emergency basis".419 
                                                
412 Korea's appellant's submission, paras.  347, 357 -358, and 363 -364 (referring to Panel Report, 
para. 7.464).  
413 Korea's appellant's submission, para.  358. 
414 Japan's appellee's submission, paras.  850-852 (referring to Panel Report, paras.  7.463 -7.464).  
415 Japan's appellee's submission, para.  854. 
416 Panel Report, para.  7.463.  
417 Panel Report, para.  7.464.  
418 Japan's appellee's submission, paras.  855-856 (referring to Panel Report, para.  7.463).  
419 Panel Report, para.  7.463.  WT/DS495/AB/R  
 
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We note that Annex  B(5) to the SPS  Agreement sets forth notification procedures for a 
proposal to introduce an SPS regulation. Annex  B(6) to the SPS  Agreement concerns the notification 
procedures in situations where urgent problems of health protection arise or threaten to arise for a 
Member. In particular, Annex B(5)(b) requires Members to notify other Members, through the WTO, 
of the products to be covered by the regulation together with a brief indication of the objective and 
rationale of the proposed regulation. Annex B(6)(a) similarly requires a Member relying on that 
provision to notify other Members, through the WTO, of the particular regulation and the products 
covered, with a brief indication of the obje ctive and the rationale of the regulation, including the nature 
of the urgent problem(s). We observe that neither Annex  B(5) nor Annex  B(6) refers to the "specific 
principles" or "methods" of SPS  regulations. Therefore, we do not see how the Panel found co ntextual 
support in Annex B(5) or Annex  B(6) for the proposition that the publication of an SPS regulation 
under Annex B(1) must always include such "specific principles and methods".420 
For the reasons set out above, we consider that the publication of an adopted SPS  regulation 
must contain sufficient information, including the product scope and the requirements of the 
SPS regulation, so as to enable Members  to become acquainted with it. In this  respect, we agree with 
the Panel to the extent the Panel's reference to "conditions" means the requirements of the adopted 
SPS regulation. We modify , however, the Panel's finding, in paragraph 7.464 of the Panel Report, to 
the extent it considered that An nex B(1) requires, in all cases, that the publication of an SPS  regulation 
include the "specific principles and methods" applicable to the products. We instead find that whether 
a publication of an adopted SPS regulation under Annex B(1) needs to include t he "specific principles 
and methods" applicable to the products may only be determined with reference to the specific 
circumstances of each case, such as the nature of the SPS  regulation at issue, the products covered, 
and the nature of the SPS risks invol ved. 
5.6.1.5   Whether the Panel erred in its application of Annex B(1) to the SPS  Agreement and 
acted inconsistently with Article  11 of the DSU  
We turn to examine Korea's claims on appeal that the Panel erred in the application of 
Annex  B(1) to the SPS  Agreement an d acted inconsistently with Article  11 of the DSU in finding that 
Korea had failed to publish all of its measures at issue in accordance with Annex B(1) to the 
SPS Agreement. Before the Panel, the parties disagreed on whether Korea's publication of the pre ss 
releases announcing its measures on certain websites was compliant with Annex B(1).421 The Panel 
found that Korea had not complied with Annex B(1) with respect to each measure at issue and provided 
several bases for this finding.422 
First, with respect to t he blanket import ban, the 2011 additional testing requirements, and 
the 2013 additional testing requirements, the Panel found that the press releases announcing those 
measures did not provide sufficient content to meet Korea's obligation under Annex B(1) to the 
SPS Agreement.423 Korea separately appeals the Panel's findings with respect to each of these 
measures.424 
Second, with respect to the accessibility of all measures at issue, the Panel found that Korea 
failed to publish the press releases announcing the  measures in such a manner as to enable Japan to 
become acquainted with the SPS  regulations at issue. The Panel provided two reasons for this finding: 
(i) Korea had not explained how interested Members would have known to look to the websites 
indicated by Korea for information on SPS measures governing the products at issue; and (ii)  the 
Panel was unable to know whether the press releases announcing those measures were available on 
the designated websites when Korea announced those measures.425 Korea challeng es both reasons 
provided by the Panel, claiming that, in basing its finding on the first reason, the Panel erred in the 
application of Annex B(1) to the SPS  Agreement, and in basing its finding on the second  reason, it 
acted inconsistently with Article  11 of the DSU.426 
                                                
420 Panel Report, para.  7.464.  
421 Panel Report, para.  7.449.  
422 Panel Report, paras.  7.476, 7.487, 7.498, and 7.500 -7.503.  
423 Panel Report, paras.  7.487, 7.492, and 7.496.  
424 Korea's appellant's submission, paras.  366 and 368.  
425 Panel Report, paras.  7.474, 7.485, 7.498, and 7.500.  
426 Korea's appellant's submission, paras.  373 and 376.  WT/DS495/AB/R  
 
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Below we address Korea's challenges on appeal in the following order. We begin with the 
assessment of whether the Panel erred in the application of Annex B(1) to the SPS  Agreement in 
finding that Korea acted inconsistently with this provision by not publishing the full content of the 
blanket import ban, the 2011 additional testing requirements, and the 2013 additional testing 
requirements. Subsequently, we turn to examine whether the Panel erred in the application of 
Annex  B(1) in finding that Korea acted inconsistently with this provision by not demonstrating that 
interested Members would have known to look to the websites indicated by Korea for information on 
the SPS  measures at issue. Lastly, we will consider whether the Panel acted inconsist ently with 
Article  11 of the DSU in finding that it was unable to know whether the web addresses provided by 
Korea were available on the day Korea announced each of the SPS  measures at issue and what content 
was available on that day.  
Application of Annex B(1) to the SPS  Agreement  
5.6.1.5.1.1   Blanket import ban  
In relation to the blanket import ban, the Panel first noted that it is undisputed that the press 
release announcing this measure contains the origin of the products concerned and the conditions 
applicable to t hem. Korea and Japan, however, disagreed on whether the reference to "all fishery 
products" in the press release is sufficient to specify the products covered by the blanket import ban.427 
After observing that Korea's press release does not refer to Chapter 3 of the HS nomenclature or to 
the OIE Aquatic Animal Health Code428, the Panel highlighted that  Korea , in its WTO notification of the 
SPS measure at issue, included "aquatic animals" as well as products not included in Chapter  3 of the 
HS, such as algae. The Panel considered that Korea used a vague term in its press release rather than 
referring to common sources of definitions for the phrase "fishery products", and then included in the 
scope of the blanket import ban, as described in its notificati on to the WTO, products that would 
normally be considered in other categories. Given that the press release did not include the products 
that would be subject to the ban, the Panel found that Korea did not publish the full content of the 
regulation.429 The P anel thus found that Korea acted inconsistently with Annex  B(1) and Article  7 of 
the SPS  Agreement by not publishing the blanket import ban in such a manner as to enable Japan to 
become acquainted with it.430  
On appeal, Korea claims that the Panel erred in its application of Annex  B(1) by finding that 
Korea had not published the full content of the blanket import ban.431 Korea contends that the 
reference to "all fishery products" in the press release is clear in relation to the scope of the 
measure.432 Korea arg ues that Annex B(1) "does not require the publication of each and every 
HS code, as long as the product scope is defined, as was done by Korea".433 
Japan responds that Korea fails to engage with the Panel's specific reasons for finding that the 
reference in the press release to "all fishery products" was inadequate to communicate the product 
coverage of the blanket import ban.434 Japan notes, in particular, that the Panel conducted its 
assessment of whether the term "fishery products" described the product cove rage of the measure on 
the basis of commonly used sources of defining terms in international trade, such as the HS 
nomenclature and the OIE Aquatic Animal Health Code.435  
We recall that an Annex  B(1) publication must contain sufficient information, includin g the 
product scope and the requirements of the adopted SPS  regulation, to enable interested Members to 
become acquainted with an adopted SPS regulation. The question before us is thus whether the Panel 
correctly found that the press release announcing the  blanket import ban did not sufficiently specify 
the product scope of that SPS  measure.  
                                                
427 Panel Report, para.  7.479.  
428 Panel Report, para.  7.481. The OIE Aquatic Animal Health Code provides a common definition of 
"aquatic animals". (Ibid.)  
429 Panel Report, paras.  7.483 and 7.487.  
430 Panel Report, para.  7.487.  
431 Korea's appellant's submission, para.  366. 
432 Korea's appellant's submission,  para. 367. 
433 Korea's appellant's submission,  para. 367. 
434 Japan's appellee's submission, para.  868. 
435 Japan's appellee's submission, paras.  864-866. WT/DS495/AB/R  
 
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We note that the press release announcing the blanket import ban refers to "all fishery 
products".436 The Panel examined the documentation surrounding the adoption of th e blanket import 
ban to verify whether the phrase "all fishery products" was based on commonly used sources for 
defining terms in international trade in fishery or other aquatic products. In this respect, the Panel 
noted that the press release does not ref er to Chapter 3 of the HS nomenclature, which is entitled 
"Fish and crustaceans, molluscs and other aquatic invertebrates".437 The Panel also noted that the 
press release does not refer to the OIE Aquatic Animal Health Code, which provides a common 
definitio n of "aquatic animals".438 The Panel then noted that Korea's notification to the WTO of the 
blanket import ban contains the following definition of fishery products: "Aquatic animals and algae … 
being consumed as food".439 On appeal, Korea confirmed that its n otification accurately describes the 
product scope of the blanket import ban.440 
We agree with the Panel that the press release announcing the blanket import ban does not 
contain the full product scope of the blanket import ban. As observed by the Panel, Kor ea's notification 
to the WTO of the blanket import ban includes algae. This is a product that falls outside Chapter 3 of 
the HS nomenclature covering "[f]ish and crustaceans, molluscs and other aquatic invertebrates". 
Given that the blanket import ban cove rs products that would normally be included in a category other 
than "fishery products", we do not consider that the press release at issue published the blanket import 
ban in such a manner as to enable Japan to become acquainted with this ban.  
In view of  the foregoing, we find that the Panel did not err in its application of Annex  B(1) to 
the SPS  Agreement to the blanket import ban in relation to the product scope of this measure. Thus, 
we uphold  the Panel's finding, in paragraph 7.487 of the Panel Report , that Korea acted inconsistently 
with Annex  B(1) and Article  7 of the SPS  Agreement by not publishing the full product scope of the 
blanket import ban .  
5.6.1.5.1.2   2011 and 2013 additional testing requirements  
The Panel found that Korea did not publish the 2011 addi tional testing requirements and the 
2013 additional testing requirements in accordance with Annex B(1) to the SPS  Agreement because 
the press releases announcing those measures did not provide the full content of the measures.441 
The Panel considered that th e press releases did not include the following information: (i)  the levels 
of caesium (and iodine in the 2011 press release) that would trigger the additional testing; (ii)  the 
specific radionuclides to be tested; (iii)  the maximum levels for those radionu clides that would result 
in products being rejected; and (iv)  in relation to the 2013 press release only, the procedure and 
location of the testing required for the additional radionuclides.442 
On appeal, Korea claims that the Panel erred in its application of Annex  B(1) by finding that 
the press releases announcing the 2011 additional testing requirements and the 2013 additional 
testing requirements did not contain sufficient information to enable an interested Member to know 
the conditions that would apply to its goods.443 Korea argues that the Panel's application goes beyond 
what is required under Annex  B(1).444 Korea submits that "both the 2011 and 2013 press releases 
state that if caesium (and iodine in the 2011 press release) was detected, certificates of ot her 
radionuclides, such as strontium and plutonium, would be required."445 Korea contends that this would 
allow interested Members to become acquainted with the measures and their requirements.446 
Japan disagrees with Korea's claim of error on appeal. Japan su bmits that Korea's claim is 
based on Korea's view that the Panel erred in interpreting Annex B(1) to the SPS  Agreement to require 
                                                
436 Panel Report, para.  7.477; Korea Prime Minister's Office, Press Release, "Government Bans Import of 
All Fishery Products from 8 ken near Fukushima"  (6 September  2013) (PMO blanket import ban and additional 
testing requirements press release ) (Panel Exhibit  JPN-3.b). 
437 Panel Report, para.  7.481.  
438 Panel Report, para.  7.481.  
439 Panel Report, para.  7.481  (quoting Korea's Addendum to Notification of Emergency Measures , 
G/SPS/N/KOR/454/Add.1).  
440 Korea's response to  questioning at the oral hearing.  
441 Panel Report, paras.  7.492, 7.496, and 7.501 -7.502.  
442 Panel Report, paras.  7.492, 7.494, and 7.496.  
443 Korea's appellant's submission, para.  368 (referring to Panel Report, para s. 7.500 -7.501).  
444 Korea's appellant's submission, para.  368. 
445 Korea's appellant's submission, para. 370 (referring to  Panel Report, paras.  7.491 and 7.493).  
446 Korea's appellant's submission,  para. 370. WT/DS495/AB/R  
 
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  the publication to include the "conditions (including specific principles and methods) that apply to its 
goods".447 Japan reiter ates that the publication under Annex B(1) should communicate enough 
information to enable traders and interested Members to know how to comply with the importing 
Member's requirements.448 
As explained earlier, an Annex  B(1) publication must contain sufficie nt information, including 
the requirements of the adopted SPS  regulation, to enable interested Members to become acquainted 
with an adopted SPS regulation. In the present case, the Panel found that the press releases 
announcing the 2011 additional testing requirements and the 2013 additional testing requirements 
did not include the full content of the measures. The Panel considered that the elements of the 
measures that were missing included the levels of caesium (and iodine in the 2011  press release) that 
would trigger the additional testing; the specific radionuclides to be tested; the maximum levels for 
those radionuclides that would result in products being rejected; and, in relation to the 2013 press 
release only, the procedure and location of the testi ng required for the additional radionuclides.449 We 
agree with the Panel that, in light of the SPS  regulations at issue, the press releases announcing the 
2011 additional testing requirements and the 2013 additional testing requirements should have 
contained  these elements to meet the publication requirements in Annex  B(1). In our view, without 
these elements, the press releases do not enable interested Members to become acquainted with the 
2011 additional testing requirements and the 2013  additional testing requirements.450 
 In view of the foregoing, we find that the Panel did not err in its application of Annex  B(1) to 
the SPS  Agreement to the 2011 additional testing requirements and the 2013 additional testing 
requirements in relation to the requirements of t hese measures. Thus, we uphold  the Panel's findings, 
in paragraphs 7.501 -7.502 of the Panel Report, that Korea acted inconsistently with Annex  B(1) and 
Article  7 of the SPS  Agreement by not publishing sufficient information to enable Japan to become 
acquainted with the requirements of the 2011 additional testing requirements and the 2013 additional 
testing requirements.  
5.6.1.5.1.3   All measures – accessibility of the press releases  
With respect to all SPS  measures at issue, the Panel found that Korea had not show n that 
interested Members would have known to look to the websites indicated by Korea for information on 
these measures.451  
On appeal, Korea claims that the Panel erred in applying Annex  B(1) of the SPS  Agreement to 
the measures at issue because, in reachin g these findings, the Panel set a standard of certainty not 
called for under this provision.452 Japan does not specifically respond to this aspect of Korea's appeal, 
and contends in general that the Panel properly found that Korea did not satisfy the Annex  B(1) 
publication requirements with respect to all of its measures.453  
As noted above, the requirement in Annex B(1) to publish adopted SPS regulations "in such a 
manner as to enable interested Members to become acquainted with them" concerns not only the 
content of publication but also its accessibility. In order to comply with Annex B(1), the publication of 
an adopted SPS  regulation must be accessible to interested Members. Where an adopted 
SPS regulation is published in a manner that prevents interested Mem bers from locating and accessing 
it, we do not consider that such publication could be said to enable interested Members to become 
acquainted with the SPS  regulation.  
In the present case, Korea published its measures on certain government websites.454 Befor e 
the Panel, Korea submitted a table indicating that its measures were published on the following 
government websites: the blanket import ban and the 2013  additional testing requirements on the 
websites of the Ministry of Food and Drug Safety (MFDS) and th e Prime Minister's Office; the product -
                                                
447 Japan's appellee's submission, para.  871 ( referring to Korea's appellant's su bmission, para.  357, in 
turn quoting Panel Report, para.  7.464).  
448 Japan's appellee's submission, para.  871. 
449 Panel Report, paras.  7.492, 7.494, and 7.496.  
450 Panel Report, paras.  7.492, 7.494, and 7.496.  
451 Panel Report, paras.  7.474, 7.485, 7.498, and 7.5 00. 
452 Korea's appellant's submission,  para. 373. 
453 Japan's appellee's submission, paras.  821 and 925.  
454 Panel Report, paras.  7.473, 7.484, 7.497 -7.498, and 7.500.  WT/DS495/AB/R  
 
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  specific import bans on the website of the Ministry of Food, Agriculture, Forestry and Fisheries (later 
changed to the Ministry of Agriculture, Food and Rural Affairs); and the 2011 additional testing 
requirements on the website of Korea's Food and Drug Administration  (later changed to MFDS).455 
There were thus websites of three different governmental entities where Korea posted the press 
releases announcing the SPS  measures at issue.  
We note that, before the Panel and,  on appeal, Japan argued that it is not for Members and 
their economic operators to "search for scattered information on government websites, and … piece 
together the information [they] might discover by chance on different websites, in hopes of becoming 
acquainted with the measure".456 In this respect, Japan submitted that the press releases announcing 
the measures at issue were not generally known and Japan's ability to become acquainted with the 
measures was inhibited by the location of the websites where the press releases were posted.457 In 
light of the case presented by Japan, it was for Korea to provide some evidence or explanation that 
interested Members would have known to look to the websites indicated by Korea for information on 
the SPS  measures at is sue. In our view, this could have included a showing that these websites were 
the customary locations in Korea to publish SPS  regulations on certain products.458 Korea, however, 
did not provide a clear explanation concerning whether interested Members would have been able to 
locate and access these press releases. In particular, it remains unclear to us why certain of 
Korea's  SPS measures were published on the website of the Prime Minister's Office, some were 
published on the website of the Ministry of Food, Agriculture, Forestry and Fisheries (later changed to 
the Ministry of Agriculture, Food and Rural Affairs), and others were published on the website of 
Korea's Food and Drug Administration  (later changed to MFDS). In addition, as noted by the Panel, 
Korea did not explain how Japan would have been aware that it would have had to access the prime 
minister's website to find the publication of an SPS  measure relating to food imports, "especially given 
that the Prime Minister is not the authority that is directl y in charge of regulating the items subject to 
the blanket import ban".459  
In view of the foregoing, we find that the Panel did not err in its application of Annex  B(1) to 
the SPS  Agreement to the SPS  measures at issue in relation to the accessibility of the publications. 
Thus, we uphold  the Panel's findings, in paragraphs 7.474, 7.485, 7.498, and 7.500 of the Pa nel 
Report, that Korea did not show that interested Members would have known to look to the websites 
indicated by Korea for information on the SPS  measures at issue.  
Article  11 of the DSU  
The Panel found that Korea did not publish all measures at issue i n accordance with Annex  B(1) 
to the SPS  Agreement because, inter alia , it could not know whether the web addresses provided by 
Korea were available on the day Korea announced each of the SPS  measures at issue and what content 
was available on that day. The  Panel reasoned that it could not do so because Korea did not provide 
the archived versions of those websites from the appropriate time period.460  
On appeal, Korea claims that, in reaching this finding, the Panel acted inconsistently with 
Article  11 of the DSU. According to Korea, there was no question before the Panel regarding the dates 
of publication of the press releases, or whether they were available on the websites on those dates. 
Korea further submits that Japan expressly acknowledged the dates of pu blication of several of the 
press releases in its panel request.461 Korea thus considers that it was inappropriate for the Panel to 
                                                
455 Korea's response to Panel question No. 114.  
456 Japan's second written submission to the Pane l, para.  344. See also Japan's response to Panel question 
No. 81; comments to Korea's responses to Panel question No.  114; appellee's submission, para.  882. 
457 Panel Report, paras.  7.465 and 7.497  (referring to Japan's second written submission to the Panel, 
paras.  317 and 349; response to Panel question No.  81). 
458 Our understanding is not meant to imply that SPS regulations must be published on the website of a 
particular governmental entity. Prov ided that the publication meets the requirements in Annex  B(1) to the 
SPS Agreement, including that the publication be accessible to interested Members, Members are, in principle, 
free to publish them in the location they deem appropriate. We note that acc essibility is particularly important in 
the case of perishable goods, such as those at issue in the present dispute.  
459 Panel Report, para.  7.485 (referring to Korea's response to Panel question No. 114).  
460 Panel Report, paras.  7.474, 7.485, 7.498, and 7.50 0. 
461 Korea's appellant's submission, para.  377 (referring to Japan's panel request ). WT/DS495/AB/R  
 
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  require Korea to bring evidence on an uncontested matter, especially given that the Panel never 
requested Korea to provide arc hived versions of the webpages.462 
Japan disagrees with Korea's assertion and submits that Korea is incorrect to suggest that the 
publication dates of the press releases were uncontested before the Panel. This is because, according 
to Japan, the Panel's asse ssment at issue related to a question that was contested, namely, the 
accessibility of Korea's press releases.463  
We recall that Article  11 of the DSU imposes on panels a comprehensive obligation to make 
an "objective assessment of the matter", an obligatio n that embraces all aspects of a panel's 
examination of the "matter", both factual and legal.464 A panel's duty as the trier of facts requires it 
to consider all the evidence presented to it, assess its credibility, determine its weight, and ensure 
that the panel's factual findings have a proper basis in that evidence.465 As an initial trier of facts, a 
panel must also provide reasoned and adequate explanations, and coherent reasoning466, and not 
reveal a lack of even -handedness in the treatment of the evidence.467 Moreover, a panel must ensure 
that the due process rights of parties to a dispute are respected.468 Within these parameters, however, 
it is generally within the discretion of a panel to decide which evidence it chooses to utilize in making 
its findings469, and to determine how much weight to attach to the various items of evidence placed 
before it by the parties.470 A panel does not err simply because it declines to accord to the evidence 
the weight that one of the parties believes should be accorded to it.471  
In support of its claim that the Panel acted inconsistently with Article  11 of the DSU, 
Korea  argues that it was inappropriate for the Panel to require Korea to bring evidence on an 
uncontested factual issue that was not the subject of a claim before the Pan el.472 We observe that, 
before the Panel, Japan did not develop arguments regarding the dates of publication of the press 
releases announcing Korea's measures on the websites provided by Korea. In our view, however, this 
does not mean that the Panel was obli ged simply to accept, on this basis alone, that the press releases 
were available on those websites on the dates Korea's measures were announced. Rather, as indicated 
above, Article  11 of the DSU required the Panel to base its factual conclusions on the ev idence on the 
record, or at least on the basis of a clear statement on the record that a party admits a certain fact.473 
Thus, a panel is not precluded from objectively determining the accuracy of a factual assertion even 
when it is not disputed between the parties.  
Korea argues that Japan expressly acknowledged the dates of publication of several of the 
press releases in its panel request.474 We note that Japan's panel request lists Korea's press releases 
accompanied by certain dates.475 In our view, however, t his is not necessarily an admission that the 
press releases were available on the websites on those specific dates. Rather, the list with dates 
presented by Japan in its panel request can be understood as a way of specifying that those were the 
press relea ses at issue in this dispute. We thus do not share Korea's view that Japan's inclusion of a 
                                                
462 Korea's appellant's submission, paras.  377-378. 
463 Japan's appellee's submission, para.  879 (referring to Korea's appellant's submission, para.  377).  
464 Appellate  Body Report, US – Hot-Rolled Steel , para.  54. 
465 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) , para.  992 (quoting Appellate  Body 
Report, Brazil – Retreaded Tyres , para.  185, in turn referring to Appellate  Body Report, EC – Horm ones, 
paras.  132-133; referring to Appellate  Body Reports , Australia  – Salmon , para.  266; EC – Asbestos , para.  161; 
EC – Bed Linen (Article  21.5 – India) , paras.  170, 177, and  181; EC – Sardines , para. 299;  
EC – Tube or Pipe Fittings , para.  125; Japan  – Apples, para.  221; Japan – Agricultural Products II , 
paras.  141-142; Korea  ‒ Alcoholic Beverages , paras.  161-162; Korea – Dairy , para.  138; US – Carbon Steel , 
para. 142; US ‒ Gambling , para.  363; US – Oil Country Tubular Goods Sunset Reviews , para.  313; EC ‒ Selected  
Customs Matters , para.  258).  
466 Appellate  Body Report, US – Upland Cotton (Article  21.5 – Brazil) , fn 618 to para.  293. 
467 Appellate  Body Report, US – Upland Cotton (Article  21.5 – Brazil) , para.  292. 
468 Appellate  Body Reports, Canada – Continued Suspension , para.  482; US – Continued Suspension , 
para. 482 (referring to Appellate  Body Report, US – Gambling , para.  273).  
469 Appellate  Body Report, EC – Hormones , para.  135. 
470 Appellate  Body Report, Korea – Dairy , para.  137. 
471 Appellate  Body Reports, Australia – Salmon , para.  267; Japan  – Apples , para.  221; Korea  – Alcoholic 
Beverages , para.  164. 
472 Korea's appellant's submission, para s. 377-378. 
473 See e.g. Panel Report, US – Shrimp , para.  7.15. In the context of anti -dumping investigations, see 
Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews  (Article 21.5  – Argentina ), para.  112. 
474 Korea's appellant's submission, para.  377 (referring to Japan's panel request ). 
475 See e.g. Japan's panel request, paras.  13-14 (such as "Press release by MIFAFF, dated 
13 November  2012, 'Temporary ban on import of cod from Ibaraki -ken'" (emphasis added)).  WT/DS495/AB/R  
 
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  list of press releases with dates in its panel request amounts to a clear statement that Japan admits 
the publication dates of those press releases.  
We note, at th e same time, that the press releases themselves contain certain dates in their 
texts. More precisely, the English translation of the press release announcing the 2011 additional 
testing requirements submitted by Japan states that it was "[d]istributed on A pril 14, 2011" and 
"[r]eported on April  14, 2011", while the English translation submitted by Korea states that 
14 April 2011 is its "[r]elease" and "[p]ublish" date.476 Similarly, each of the press releases 
announcing the product -specific import bans contai ns a date on which it was "provided", and from 
which it may be "reported".477 Likewise, the press release announcing the blanket import ban and the 
2013 additional testing requirements indicates, in its header, the date of 6  September  2013 and states 
"[p]lea se use after 09:30, September  6 (Friday)."478  
In our view, these exhibits submitted to the Panel could be indicative of the publication dates 
of the press releases on the government websites. This evidence, however, was not addressed by the 
Panel and is abs ent from its analysis. We recall that a panel's duty as the trier of facts requires it to 
consider all the evidence presented to it, assess its credibility, determine its weight, and ensure that 
the panel's factual findings have a proper basis in that evid ence.479 In the present case, the Panel 
offered no explanation of whether and how it took the evidence on record concerning the press 
releases into account in reaching its conclusion that it could not verify the publication dates of the 
press releases on the  government websites. We do not believe that, by disregarding pertinent evidence 
on the record, the Panel could have complied with its duty under Article  11 of the DSU to conduct an 
objective assessment of the matter.  
Furthermore, at no point during the pa nel proceedings did the Panel indicate that it required 
the archived versions of the webpages , in order to confirm the publication dates of the press releases, 
or request Korea to submit such evidence. We note that the Panel requested Korea to provide certain 
information about the publication of its measures on government websites.480 Korea provided a 
                                                
476 Korea Food and Drug Administration, Press Release, "Status of KFDA's Response an d Management 
Measures Regarding the Japanese Nuclear Crisis  (5)" / "KFDA's Response to the Fukushima Nuclear Power Plant 
Accident and Management Status" (14 April 2011) (KFDA 14  April 2011 press release ) (Panel Exhibits JPN -55.b 
(revised) and KOR -72 (revised) ). 
477 The press release announcing the ban on cod from Miyagi and Iwate states, in its header, "[p]rovided 
on: May  3, 2012" and "[p]lease report this material from its distribution on May  3, 2012" . (Korea Ministry of 
Food, Agriculture, Forestry an d Fisheries, Press Release, "Temporary Import Suspension on Cod from Miyagi -ken 
and Iwate -ken, Japan"  (3 May 2012) (Panel Exhibit JPN -76.b)) The press release announcing the ban on 35 
fishery products, including yellowfish, states "[p]rovided on: June  26, 2012" and "[p]lease report this material 
from its distribution on June  27, 2012" . (Korea Ministry of Food, Agriculture, Forestry and Fisheries, Press 
Release , "Temporary Import Suspension on 35 Fishery Products, including Yellowfish from Fukushima -ken, 
Japan" (26 June 2012) (Panel Exhibit JPN -77.b)) The press release announcing the ban on cod from Aomori also 
states "[p]rovided on: Aug. 29, 2012" and "[p]lease report this material from its distribution on Aug. 29, 2012" . 
(Korea Ministry of Food, Agriculture , Forestry and Fisheries, Press Release, "Temporary Import Suspension on 
Cod from Aomori -ken, Japan"  (29 August  2012) (Panel Exhibit JPN -78.b))  
478 PMO blanket import ban and additional testing requirements press release  (Panel Exhibit JPN -3.b). We 
also note  that the MFDS document containing the administrative instructions sent to the relevant Korean 
enforcement agencies after the announcement of the blanket import ban contains the following information in its 
last page: "[a]pproved on September  6, 2013", " [r]eceived by International Cooperation Officer –3066 
(September  6, 2013)", and " [d]isclosed to public".  (See Korea Ministry of Food and Drug Safety, "Notice of 
Temporary Special Measure for Safety for Food Imported from Japan" (6  Septe mber 2013)  (MFDS 2013 blanket 
import ban and additional testing requirements  notice)  (Panel Exhibit  JPN-75.b)) 
479 Appellate  Body Report, US – Large Civil Aircraft (2nd complaint) , para.  992 (quoting Appellate  Body 
Report, Brazil – Retreaded Tyres , para.  185, in turn referring to Appellate  Body Report, EC – Hormones , 
paras.  132-133; referring to Appellate  Body Reports, Australia  – Salmon , para.  266; EC – Asbestos , para.  161; 
EC – Bed Linen (Article  21.5 – India) , paras.  170, 177, and  181; EC – Sardines , para. 299;  
EC – Tube or Pipe Fittings , para.  125; Japan  – Apples , para.  221; Japan – Agricultural Products II , 
paras.  141-142; Korea  ‒ Alcoholic Beverages , paras.  161-162; Korea – Dairy , para.  138; US – Carbon Steel , 
para. 142; US ‒ Gambling , para.  363; US – Oil Country Tubular Goods Sunset Reviews , para.  313; EC ‒ Selected  
Customs Matters , para.  258).  
480 At the second meeting with the parties, the Panel asked Korea the following question: "To help the 
Panel gain a better understanding of the posting of the press releases on government websites, please fill out the 
following table".  The table in the Panel q uestion at issue contained the following columns to be completed  by 
Korea: exhibit number; date; title; "Agency website where it was posted"; " Address of agency's website where 
the press release appears"; "Is this authority in charge of regulating the rele vant products?"; " Other SPS 
measures posted on this website?"; "Is there an official document (e.g. Official Gazette) that indicates where WT/DS495/AB/R  
 
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  response to that request from the Panel.481 Despite Korea's response and without asking for 
information on the publication dates, the Panel based its finding on the absence of further evidence 
pertaining to the publication dates of the press releases. Thus, even in the absence of a contestation 
or refutation of the publication dates of the press releases by Japan, the Panel implicitly placed the 
burden of further confirming the publication dates of the press releases on Korea, and then found that 
Korea acted inconsistently with Annex B(1) because it had not met that burden.  
As observed by the Appellate  Body, "it is not enough for a panel to leave it to the parties to 
guess what proof it will require."482 While a panel cannot make the case for a party, Article  11 requires 
a panel to "test evidence with the parties, and to seek further information if necessary, in order to 
determine whether the evidence sati sfies a party's burden of proof".483 Thus, in the present case, the 
Panel should not have left it to Korea to anticipate, in the absence of a contestation of the publication 
dates by Japan, that it would be required to submit the archived versions of the webpages to prove 
the publication dates of the press releases on government websites. Rather, to the extent the Panel 
considered it was necessary for it to have such evidence, it should have sought it from both parties to 
the dispute and should only then have  drawn appropriate inferences.  
Therefore, on account of the Panel's failure to engage with the pertinent evidence on the 
record and to seek information on the publication dates of the press releases at issue that the Panel 
considered necessary for its find ing, we consider that the Panel failed to make an objective assessment 
of the matter. Consequently, we find that the Panel acted inconsistently with Article  11 of the DSU in 
finding that it was unable to know whether the web addresses provided by Korea wer e available on 
the day Korea announced each of the SPS measures at issue and what content was available on that 
day.  
As explained above, the Panel's findings that Korea acted inconsistently with Annex  B(1) and 
Article  7 of the SPS  Agreement rest on severa l grounds. With respect to the blanket import ban, the 
2011 additional testing requirements, and the 2013 additional testing requirements, the Panel's 
findings are based on the following reasons: (i) the insufficient content of the publications484; (ii) Korea 
had not explained how interested Members would have known to look to the website indicated by 
Korea for information on SPS measures governing the products at issue485; and (iii) the Panel's view 
that it was unable to know whether the web addresses provided  by Korea were available on the day 
Korea announced each of the SPS  measures at issue and what content was available on that day .486 
With respect to the product -specific import bans, the Panel's findings are based on the reasons listed 
in items (ii) and (iii ) above.487 Our finding that the Panel acted inconsistently with Article  11 of the 
DSU concerns only the Panel's finding that it was unable to know whether the web addresses provided 
by Korea were available on the day Korea announced each of the SPS measures  at issue and what 
content was available on that day. We note that the remaining grounds for the Panel's ultimate finding 
regarding the SPS  measures at issue are left undisturbed, and that each of these reasons would justify 
the Panel's ultimate finding. T hus, the Panel's ultimate finding that Korea failed to publish its 
SPS measures at issue in accordance with Annex B(1) and Article  7 of the SPS  Agreement stands.488 
5.6.1.6   Conclusion  
Annex  B(1) to the SPS  Agreement requires Members to ensure that adopted SPS regul ations 
are published promptly "in such a manner as to enable interested Members to become acquainted 
with them". An Annex  B(1) publication must be accessible to interested Members and contain sufficient 
information, including the product scope and the requ irements of the adopted SPS  regulation, in order 
to enable interested Members to become acquainted with that adopted SPS  regulation. The precise 
content and amount of information that must be included in an Annex  B(1) publication to enable 
                                                
these measures can be found? Please provide specific reference"; and "Information filters available (e.g. origin, 
product)".  (Panel question No.  114) 
481 In its response, Korea filled out the table sent by the Panel . (Korea's response to Panel question 
No. 114) 
482 Appellate  Body Report, US – Continued Zeroing , para.  347. 
483 Appellate  Body Report, US – Continued Zeroing , para . 347. 
484 Panel Report, paras.  7.487, 7.492, and 7.496.  
485 Panel Report, paras.  7.485, 7.498, and 7.500.  
486 Panel Report, paras.  7.485, 7.498, and 7.500.  
487 Panel Report, para.  7.474.  
488 Panel Report, para s. 7.503 and 8.5.a.  WT/DS495/AB/R  
 
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  interested Membe rs to become acquainted with an adopted SPS  regulation will depend on the 
particular SPS  regulation at issue.  
Therefore , we agree with the Panel to the extent the Panel's reference to "conditions" means 
the requirements of the adopted SPS  regulation. We modify, however, the Panel's finding , in 
paragraph 7.464 of the Panel Report, to the extent it considered that Annex B(1) requires, in all cases, 
that the publication of an SPS  regulation include the "specific principles and methods" applicable to 
the produ cts. We instead find that whether the publication of an adopted SPS regulation under 
Annex  B(1) needs to include the "specific principles and methods" applicable to the products may be 
determined only with reference to the specific circumstances of each ca se, such as the nature of the 
SPS regulation at issue, the products covered, and the nature of the SPS  risks involved.  
In relation to the product scope of the blanket import ban, we agree with the Panel that the 
reference to "all fishery products" in the p ress release announcing this measure is not sufficient to 
comply with Annex  B(1) to the SPS  Agreement. The blanket import ban covers products that would 
normally be included in a category other than "fishery products". For this reason, we do not consider 
that the press release at issue published the blanket import ban in such a manner as to enable Japan 
to become acquainted with this ban.  
Therefore , we find that the Panel did not err in its application of Annex  B(1) to the 
SPS Agreement to the blanket impo rt ban in relation to the product scope of this measure. 
Consequently, we  uphold  the Panel's finding, in paragraph 7.487 of the Panel Report, that Korea acted 
inconsistently with Annex  B(1) and Article  7 of the SPS  Agreement by not publishing the full prod uct 
scope of the blanket import ban . 
In relation to the publication of the additional testing requirements, we agree with the Panel 
that, in light of the SPS  regulations at issue, the press releases announcing the 2011 additional testing 
requirements and t he 2013 additional testing requirements should have contained the levels of 
caesium (and iodine in the 2011 press release) that would trigger the additional testing; the specific 
radionuclides to be tested; the maximum levels for those radionuclides that w ould result in products 
being rejected; and, in relation to the 2013 press release only, the procedure and location of the 
testing required for the additional radionuclides. In our view, without these elements, the press 
releases do not enable interested M embers to become acquainted with the 2011 additional testing 
requirements and the 2013 additional testing requirements.  
We therefore find that the Panel did not err in its application of Annex  B(1) to the 
SPS Agreement to the 2011 additional testing requir ements and the 2013 additional testing 
requirements in relation to the requirements of these measures. Consequently, we uphold  the Panel's 
findings, in paragraphs 7.501 -7.502 of the Panel Report, that Korea acted inconsistently with 
Annex  B(1) and Article  7 of the SPS  Agreement by not publishing sufficient information to enable 
Japan to become acquainted with the requirements of the 2011 additional testing requirements and 
the 2013 additional testing requirements.  
In relation to the accessibility of the pub lication of all the SPS  measures at issue, we agree 
with the Panel that, in light of the case presented by Japan, it was for Korea to provide some evidence 
or explanation that interested Members would have known to look to the websites indicated by Korea 
for information on the SPS  measures at issue. Korea, however, did not provide a clear explanation 
concerning whether interested Members would have been able to locate and access the press releases 
announcing those measures.  
We therefore find that the Panel  did not err in its application of Annex  B(1) to the 
SPS Agreement to the SPS  measures at issue in relation to the accessibility of the publications. 
Consequently, we uphold  the Panel's findings, in paragraphs 7.474, 7.485, 7.498, and 7.500 of the 
Panel Report, that Korea did not show that interested Members would have known to look to the 
websites indicated by Korea for information on the SPS  measures at issue.  
In relation t o Korea's claim of error under Article  11 of the DSU, we consider that the Panel 
failed to engage with the pertinent evidence on the record. Moreover, the Panel should not have left 
it to Korea to anticipate, in the absence of a contestation of the publica tion dates by Japan, that it 
would be required to submit the archived versions of the webpages to prove the publication dates of 
the press releases on government websites. Rather, to the extent the Panel considered it was WT/DS495/AB/R  
 
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  necessary for it to have such evid ence, it should have sought it from both parties to the dispute and 
should only then have drawn appropriate inferences.  
We therefore find that the Panel acted inconsistently with Article  11 of the DSU in concluding 
that it was unable to know whether the we b addresses provided by Korea were available on the day 
Korea announced each of the SPS measures at issue and what content was available on that day.  
Given that the remaining grounds for the Panel's ultimate finding regarding the SPS  measures 
at issue are  left undisturbed, and that each of these reasons would justify that finding, the Panel's 
ultimate finding in paragraphs  7.503 and 8.5.a of the Panel Report, that Korea acted inconsistently 
with Annex  B(1) and, as a consequence, Article  7 of the SPS  Agreem ent, stands.  
5.6.2   Annex  B(3) to the SPS  Agreement  
5.6.2.1   Introduction  
Korea appeals the Panel's finding that Korea acted inconsistently with Annex  B(3) to the 
SPS Agreement because Korea's SPS enquiry point did not respond to Japan's second query after it 
had responded in August 2014 to Japan's first query.489 Korea claims that the Panel erred in its 
interpretation and application of Annex  B(3) in finding that Korea acted inconsistently with Annex  B(3) 
and, as a consequence, Article  7 of the SPS  Agreement, becaus e of Korea's SPS enquiry point's failure 
to respond to Japan's second request and its earlier failure to enable Japan to relate the documents 
provided to their relevance for the questions Japan had posed in its first request.490 Korea requests us 
to reverse the Panel's finding  that Korea acted inconsistently with Annex B(3), and, as a consequence, 
Article  7 of the SPS  Agreement.491 Japan, for its part, requests us to uphold the Panel's finding.492 
At the outset, we briefly summarize the relevant Panel findings. W e then examine the merits 
of Korea's claims of error on appeal that the Panel erred in its interpretation and application of 
Annex  B(3) to the SPS  Agreement.  
5.6.2.2   The Panel's findings  
Before the Panel, Japan argued that Korea acted inconsistently with Annex B(3 ) to the 
SPS Agreement because Korea's SPS enquiry point failed to respond adequately to Japan's request of 
24 June 2014 and failed to respond to its request of 13  November  2014.493 Also before the Panel, 
Korea responded that, as acknowledged by Japan, Korea 's SPS enquiry point replied to Japan's earlier 
request of 24  June 2014, which, in Korea's view, means that it fulfilled its obligations under 
Annex  B(3). Korea did not contest the enquiry point's failure to respond to Japan's follow -up request 
of 13 Novem ber 2014.494 Korea, however, argued that a single instance of no response by an enquiry 
point does not give rise to a violation of Annex B(3).495  
The Panel explained that, pursuant to Annex  B(3) to the SPS  Agreement, Members must 
ensure the existence of one e nquiry point which is responsible for providing answers to all reasonable 
questions and relevant documents. The Panel noted that the correspondence with an enquiry point is 
an iterative process, and that an enquiry point must not be held to the "standard o f perfection".496 To 
the Panel, the incompleteness of a single answer or failure to provide a particular document as part 
of a response will not necessarily give rise to an inconsistency with Annex  B(3). That said, the Panel 
explained that "failure to respon d at all would result in an inconsistency with the obligation in 
Annex  B(3)."497 The Panel concluded that compliance with Annex  B(3) is achieved not only through 
the formality of creating an enquiry point, but also through the actual provision of information  and 
                                                
489 Korea's appellant's submission, pa ra. 380. See also Panel Report, para.  7.519.  
490 Korea's appellant's submission, paras.  383 and 385 -386. 
491 Korea's appellant's submission, paras.  386 and 387.u  (referring to Panel Report, paras.  7.506 -7.507, 
7.509, 7.518 -7.519, and 8.5.b ). 
492 Japan's appellee's submission, paras.  924-925. 
493 Panel Report, para.  7.504 (referring to Japan's second written submission to the Panel, para.  362).  
494 Panel Report, para.  7.505.  
495 Panel Report, para.  7.506 (referring to Korea's first written submission to the Pane l, para.  394).  
496 Panel Report, para.  7.507.  
497 Panel Report, para.  7.507 . See also ibid., para.  7.520.  WT/DS495/AB/R  
 
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  answers to reasonable questions.498 The Panel reasoned that it would be "incongruous" to conclude 
that the drafters of the SPS  Agreement would establish an obligation for Members to set up an enquiry 
point, endow it with responsibility, and then not req uire that the concomitant benefit to interested 
Members of receiving the answers and documents be provided.499 
Turning to examine whether Korea acted inconsistently with Annex  B(3) to the 
SPS Agreement, the Panel found that Korea's SPS enquiry point provided  a response to 
Japan's  request of 24  June 2014. The Panel noted that Korea's response to this request was not 
complete and was not done in a manner that would easily enable Japan to relate the documents 
provided to the questions Japan had posed.500 That said , the Panel considered that Korea's response, 
on its own, did not rise to the level of an inconsistency with Annex B(3).501 
The Panel then noted that Korea did not provide any response to Japan's request of 
13 November 2014.502 The Panel considered that, even though Korea's response to Japan's first 
request was not sufficient on its own to establish an inconsistency with Annex B(3), Korea failed to 
comply with its obligations under Annex B(3) because Korea's SPS  enquiry point did not respond to 
Japan's second r equest.503 The Panel clarified that it based its finding of inconsistency on the 
SPS enquiry point's failure both to respond to Japan's second request and to relate the answers and 
documents provided to their relevance for the questions Japan had posed in it s first request.504 
5.6.2.3   Whether the Panel erred in finding that Korea acted inconsistently with Annex  B(3) 
to the SPS  Agreement  
On appeal, Korea claims that the Panel erred in its interpretation and application of Annex  B(3) 
to the SPS  Agreement in finding that a single omission of Korea's SPS enquiry point to respond to a 
request from Japan constitutes an inconsistency with this provision.505 In Korea's view, the obligation 
contained in Annex  B(3) is for a Member to ensure that one enquiry point exists and that it is given 
the responsibilities described in this provision. Korea argues that there is nothing in Annex  B(3) 
suggesting that an indi vidual failure to respond to a question would necessarily result in an 
inconsistency with this provision.506 Korea agrees that a persistent or repeated failure to respond to 
requests may constitute an inconsistency with Annex B(3), because, despite its exist ence "on paper", 
the enquiry point could not be said to have the responsibilities set out in Annex  B(3).507 
Thus,  Korea  submits that a claim of inconsistency with Annex B(3) must be based on allegations and 
evidence that the Member has failed to ensure that one enquiry point exists which is responsible for 
the provision of answers to reasonable questions and relevant documents.508 Korea contends that, in 
the present case, Japan failed to demonstrate that the failure of Korea's SPS enquiry point to respond 
to one query makes it "non -responsive" such that it exists only "on paper".509 
Japan considers that Korea's arguments on appeal take issue with "where the Panel drew the 
line … between acceptable and unacceptable failures to respond to reasonable questions"510 in the 
application of Annex  B(3) to the SPS  Agreement, rather than with the interpretation of this 
provision.511 Japan contends that the Panel did not base its conclusion of an inconsistency with 
Annex  B(3) on a single failure of Korea's SPS enquiry point to res pond to Japan's request.512 According 
to Japan, the Panel rather reached its conclusion in light of both: (i)  Korea's SPS enquiry point's failure 
to respond to Japan's first request in a manner that would have enabled Japan to relate the documents 
                                                
498 Panel Report, paras.  7.510 and 7.520.  
499 Panel Report, para.  7.508.  
500 Panel Report, para.  7.516.  
501 Panel Report, paras.  7.516 and 7.519 -7.520.  
502 Panel Re port, para. 7.517.  
503 Panel Report, paras.  7.518 -7.519.  
504 Panel Report, para.  7.520.  
505 Korea's appellant's submission, paras.  383 and 385 -386 (referring to Panel Report, para.  7.518).  
506 Korea's appellant's submission, para.  383. 
507 Korea's appellant's submis sion, paras.  383-384. 
508 Korea's appellant's submission, para. 383. 
509 Korea's appellant's submission, para.  384. 
510 Japan's appellee's submission, para.  916. (emphasis omitted ) 
511 Japan's appellee's submission, para s. 915-916. 
512 Japan's appellee's submission, paras.  919 and 922.  WT/DS495/AB/R  
 
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  provided t o their relevance for the questions Japan had posed; and (ii)  Korea's SPS enquiry point's 
failure to respond to Japan's second request.513  
We note that the introductory clause of Annex B(3) to the SPS  Agreement provides that each 
Member "shall ensure that o ne enquiry point exists which is responsible for the provision of answers 
to all reasonable questions from interested Members as well as for the provision of relevant 
documents". Subparagraphs (a) through (d) of Annex  B(3) detail the matters regarding whic h an 
enquiry point provides answers to reasonable questions and relevant documents.514  
In its interpretation of Annex  B(3) to the SPS  Agreement, the Panel considered that the 
incompleteness of an answer or failure to provide a particular document as part of  a response will not 
necessarily give rise to an inconsistency with Annex  B(3).515 The Panel then clarified, however, that 
"failure to respond at all would result in an inconsistency with the obligation in Annex  B(3)."516 
Therefore, the Panel considered that, while an incomplete answer would not necessarily lead to an 
inconsistency with Annex B(3), a failure to respond would result in an inconsistency with this provision. 
We understand the Panel's interpretation to imply that a single failure of an enquiry poin t to answer a 
reasonable question or to provide relevant documents necessarily leads to an inconsistency with 
Annex  B(3). 
In its appeal, Korea challenges the Panel's interpretation, arguing that a single failure of an 
enquiry point to respond to a request is not sufficient to establish an inconsistency with Annex B(3) 
to the SPS  Agreement. We do not consider that a single failure of an enquiry point to respond in and 
of itself  would automatically result in an inconsistency with the obligation provided for i n Annex B(3) 
to ensure the existence of an enquiry point with the responsibilities set out in this provision. As 
explained above, Annex B(3) requires Members to ensure the existence of one enquiry point which is 
responsible for the provision of answers to all reasonable questions and for the provision of relevant 
documents. In our view, this means that the obligation under Annex B(3) concerns ensuring the 
existence of an enquiry point which is responsible for providing answers and documents.  
We emphasize t hat whether and the extent to which a particular enquiry point answers all 
reasonable questions and provides relevant documents are not irrelevant for the assessment under 
Annex  B(3). Rather, it informs an assessment of whether "one enquiry point exists wh ich is responsible 
for the provision of answers to all reasonable questions from interested Members as well as for the 
provision of relevant documents" within the meaning of Annex B(3). In our view, this assessment 
requires an examination of all the releva nt factors, including the total number of questions received 
by the enquiry point and the proportion of and the extent to which questions were answered, the 
nature and scope of the information sought and received, and whether the enquiry point repeatedly 
failed to respond. Thus, we agree with the Panel that compliance with Annex B(3) is not a mere 
formality of establishing an enquiry point.517 We disagree, however, with the Panel that a single failure 
of an enquiry point to respond to a request would result i n an inconsistency with the obligation under 
Annex  B(3).518  
In view of the foregoing, we find that the Panel erred in its interpretation of Annex  B(3) to the 
SPS Agreement in finding that a single failure of an enquiry point to respond to a request would re sult 
                                                
513 Japan's appellee's submission, paras.  922-923 (quoting Panel Report, para.  7.520).  
514 Annex B(3)  of the SPS  Agreement  provides:  
Each Member shall ensure that one enquiry point exists which is responsible for the provision o f 
answers to all reasonable questions from interested Members as well as for the provision of 
relevant documents regarding:  
(a) any sanitary or phytosanitary regulations adopted or proposed within its territory;  
(b) any control and inspection procedures, productio n and quarantine treatment, pesticide 
tolerance and food additive approval procedures, which are operated within its territory;  
(c) risk assessment procedures, factors taken into consideration, as well as the determination 
of the appropriate level of sanitary or phytosanitary protection;  
(d) the membership and participation of the Member, or of relevant bodies within its territory, 
in international and regional sanitary and phytosanitary organizations and systems, as 
well as in bilateral and multilateral agreements and arrangements within the scope of this 
Agreement, and the texts of such agreements and arrangements.  
515 Panel Report, paras.  7.507 and 7.520.  
516 Panel Report, para.  7.507.  
517 Panel Report, paras.  7.510 and 7.520.  
518 Panel Report, par a. 7.507.  WT/DS495/AB/R  
 
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  in an inconsistency with Annex  B(3). We thus reverse  the Panel's findings in paragraphs  7.507 -7.510 
of the Panel Report.  
With respect to the Panel's application of Annex B(3) to the SPS  Agreement, Japan's 
arguments before the Panel focused on the resp onses provided by Korea's enquiry point to 
two requests by Japan, and the Panel structured its analysis accordingly.519 Having found that (i)  the 
response provided to Japan's first request was not complete and did not easily enable Japan to relate 
the docume nts provided to their relevance for the questions Japan had posed520, and (ii)  that no 
response was provided to Japan's second request521, the Panel found that Korea acted inconsistently 
with Annex  B(3) to the SPS  Agreement.522 
In applying Annex B(3) to the fact s of the case, the Panel thus limited its analysis to the 
responsiveness of Korea's enquiry point only vis -à-vis the two requests submitted by Japan, one of 
which was partially answered. In our view, this does not constitute a sufficient examination of all  
relevant factors necessary to determine whether Korea acted consistently with Annex B(3). While the 
Panel did assess the scope and nature of the information sought through Japan's first request, it did 
not do so for Japan's second request. Furthermore, th e Panel did not examine how many requests had 
been received by Korea's enquiry point in total over a period of time and the proportion of questions 
that had been answered. The Panel also failed to examine whether Korea's enquiry point repeatedly 
failed to respond. Without assessing those factors, the Panel was not in a position to reach a conclusion 
as to whether Korea ensured  that "one enquiry point exists which is responsible for the provision of 
answers to all reasonable questions from interested Members  as well as for the provision of relevant 
documents", and, consequently, whether Korea acted inconsistently with Annex  B(3).  
In view of the foregoing, we find therefore that the Panel erred in its application of Annex  B(3) 
to the SPS  Agreement in finding,  based only on two specific instances – Korea's SPS enquiry point's 
incomplete response to Japan's first request and its failure to respond to Japan's second request – 
that Korea acted inconsistently with Annex  B(3) and, as a consequence, Article  7 of the 
SPS Agreement. We thus reverse  the Panel's finding in paragraphs 7.520 and 8.5.b of the Panel 
Report.  
5.6.2.4   Conclusion  
The introductory clause of Annex B(3) to the SPS  Agreement requires Members to ensure that 
one enquiry point exists which is responsible for th e provision of answers to all reasonable questions 
and for the provision of relevant documents. We do not consider that a single failure of an enquiry 
point to respond in and of itself  would automatically result in an inconsistency with Annex  B(3). In our 
view, however, whether and the extent to which an enquiry point actually provides answers to all 
reasonable questions and provides documents are not irrelevant for the assessment under Annex  B(3). 
Rather, it informs an assessment of whether "one enquiry po int exists which is responsible for the 
provision of answers to all reasonable questions from interested Members as well as for the provision 
of relevant documents" within the meaning of Annex B(3). This assessment requires an examination 
of all the releva nt factors, including the total number of questions received by the enquiry point and 
the proportion of and the extent to which questions were answered, the nature and scope of the 
information sought and received, and whether the enquiry point repeatedly f ailed to respond. For 
these reasons, we disagree with the Panel's view that a single failure to respond would result in an 
inconsistency with the obligation under Annex  B(3). 
We therefore find that the Panel erred in its interpretation of Annex  B(3) to the  SPS Agreement 
in finding that a single failure of an enquiry point to respond to a request would result in an 
inconsistency with Annex  B(3). Consequently, we reverse  the Panel's findings in 
paragraphs  7.507 -7.510 of the Panel Report.  
With respect to the P anel's application of Annex B(3) to the SPS  Agreement, the Panel limited 
its analysis to the responsiveness of Korea's enquiry point only vis -à-vis the two requests submitted 
by Japan. In our view, this does not constitute a sufficient examination of all r elevant factors necessary 
                                                
519 Panel Report, paras.  7.504 and 7.511 -7.519. The Panel assessment concerns Japan's requests of 
24 June 2014 and of 13  November  2014.  
520 Panel Report, paras.  7.516 and 7.520.  
521 Panel Report, paras.  7.517 and 7.520.  
522 Panel Report, para.  7.520.  WT/DS495/AB/R  
 
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  to determine whether Korea acted inconsistently with Annex B(3). The Panel did not assess: (i)  the 
scope and nature of the information sought through Japan's second request; (ii)  how many requests 
had been received by Korea's enqu iry point in total over a period of time and the proportion of 
questions that had been answered; and (iii)  whether the enquiry point repeatedly failed to respond. 
Without assessing those factors, the Panel was not in a position to reach a conclusion about whether 
Korea ensured that "one enquiry point exists which is responsible for the provision of answers to all 
reasonable questions from interested Members as well as for the provision of relevant documents", 
and, consequently , whether Korea acted inconsist ently with Annex B(3).  
We therefore find that the Panel erred in its application of Annex B(3) to the SPS  Agreement 
in finding, based only on two specific instances – Korea's SPS enquiry point's incomplete response to 
Japan's first request and its failure  to respond to Japan's second request – that Korea acted 
inconsistently with Annex  B(3) and, as a consequence, Article  7 of the SPS  Agreement. Consequently, 
we reverse  the Panel's finding, in paragraphs 7.520 and 8.5.b of the Panel Report, that Korea acted  
inconsistently with Annex  B(3) and, as a consequence, Article  7 of the SPS  Agreement.  
5.7  Article  8 and Annex C(1)(a) to the SPS  Agreement  
5.7.1   Introduction  
In this section of the Report, we address Japan's claim of error on appeal under Annex  C(1)(a) 
to the SPS  Agreement. Japan appeals the Panel's finding that Japan failed to establish that imported 
and domestic products can be presumed to be "like" for the p urposes of its claim under Annex C(1)(a). 
In Japan's view, the Panel erred in its interpretation and application of Annex  C(1)(a) in articulating 
the conditions for presuming likeness under that provision and in finding that Japanese imported 
products subj ect to the 2011 and 2013 additional testing requirements and Korean domestic products 
could not be presumed to be "like".523 Japan requests us to reverse the Panel's  findings and 
conclusions pertaining to the presumption of likeness. Japan also requests us t o reverse the Panel's 
finding that, as Japan had not demonstrated that Japanese and Korean  products can be regarded as 
like products, it had also failed to establish that Korea acted inconsistently with Annex  C(1)(a) and, 
as a consequence, Article  8 of the  SPS Agreement by adopting or maintaining the 2011 and 2013 
additional testing requirements.524 By contrast, Korea  requests us to uphold these Panel findings.525  
Japan's claim on appeal under Annex  C(1)(a) focuses on the Panel's decision not to presume 
that Japanese imported products and Korean domestic products are "like".526 In this section, we 
therefore first summarize the relevant Panel findings with respect to t he presumption of likeness. We 
then turn to examine the merits of Japan's claim that the Panel erred in its interpretation and 
application of Annex C(1)(a) in declining to presume that Japanese imported products and 
Korean  domestic products are "like".  
5.7.2   The Panel's findings  
Before the Panel, Japan raised a claim of inconsistency under Article  8 and Annex  C(1)(a) to 
the SPS  Agreement in relation to two of Korea's measures, namely, the 2011 additional testing 
requirements and the 2013 additional testing requi rements.527 Having found that the 2011 and 2013 
additional testing requirements constitute "procedures to check and ensure the fulfilment of Korea's 
SPS measures" falling within the scope of Article  8 and Annex  C528, the Panel recalled that the second 
clause o f Annex  C(1)(a) requires that such procedures be undertaken and completed in no less 
favourable manner for imported products than for "like" domestic products.529 In assessing whether 
Japanese imported products and Korean domestic products are "like" under t hat provision, the Panel 
recalled the Appellate  Body's statement made in the context of the General Agreement on Trade in 
                                                
523 Japan's other appellant's submission, para s. 362-365 and 384.  
524 Japan's other appellant's submission, para.  486 (referring to Panel Report, paras.  7.394 -7.403, 7.409, 
7.447, and 8.4 ). 
525 Korea's appellee's submission, paras.  126 and 136 -137. 
526 Japan's other appellant's submission, paras.  358 and 395. On appeal, Japan does not challenge the 
Panel's subsequent analysis of whether Japanese and Korean products are "like" under Annex C(1)(a) to the 
SPS Agreement.  
527 Panel Report, paras.  7.363 -7.364.  
528 Panel Report, para.  7.384.  
529 Panel Report, para.  7.385.  WT/DS495/AB/R  
 
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  Services (GATS)  that, for likeness to be presumed, a complainant must make a prima facie  case that 
a measure draws a distinction based  solely on origin.530  
Turning to the procedures at issue, the Panel acknowledged that the 2011 and 2013 additional 
testing requirements apply only to Japanese products and that origin is a criterion that Korea uses to 
distinguish between domestic and Japane se products. To the Panel, however, a panel must not assume 
that, simply because origin is a criterion for distinguishing between products, the measures satisfy the 
test to apply the presumption. Rather, a panel must address the parties' arguments with res pect to 
whether the distinction is based on grounds in addition to origin.531  
The Panel relied on the press releases announcing the 2011 and 2013 additional testing 
requirements and a related document on the Panel record, noting that these documents refer t o the 
FDNPP  accident and health -related concerns.532 In addition, the Panel observed that Japan did not 
deny that concerns other than origin underpin the 2011 and 2013 additional testing requirements. 
Rather, as the Panel recalled, Japan argued that such con cerns are not based on science, given the 
allegedly similar risk profile of Japanese and Korean products.533 To the Panel, however, this is an 
issue more properly addressed under Articles  2.2, 2.3, 5.1, and 5.6 of the SPS  Agreement. The Panel 
added that, eve n if the 2011 and 2013 additional testing requirements are applied more than to the 
extent necessary, "the distinction of applying them only to Japan cannot be separated from the public 
health concern and the fact that it was Japan that experienced the FDN PP accident."534 Moreover, the 
Panel looked at "Korea's SPS regime" and considered that it takes into account health risks posed by 
contaminated products from origins other than Japan. In particular, the Panel observed that Korea 
"closely monitors imports of food products from Ukraine, Belarus and other neighbouring countries 
affected by the fallout following the Chernobyl accident" and undertakes caesium testing, twice weekly, 
for "six fishery species caught in the Pacific region".535 In the Panel's view, Korea has thus "a varied 
regime that is not based only on origin, but takes into consideration the potential of contamination of 
food by radionuclides".536 For all of these reasons, the Panel found that Japan had failed to 
demonstrate that Japanese imp orted products and Korean domestic products can be presumed to be 
"like".537 
The Panel further found that, even if Japan had established a prima facie case that the 
presumption of likeness applies, Korea had succeeded in rebutting that presumption. In reachi ng this 
conclusion, the Panel considered that Korea introduced arguments to support its contention that the 
distinction drawn by the 2011 and 2013 additional testing requirements is not solely based on origin.538 
The Panel emphasized that "the documents anno uncing the 2011 and 2013 additional testing 
requirements refer to health risks related to the contamination of Japanese food by radionuclides as 
the rationale for adopting the measures" and, as such, "they provide contemporaneous corroboration 
for Korea's contention that public health concerns constituted one of the grounds for drawing a 
distinction between domestic and imported products."539  
Having concluded that likeness could not be presumed for the purposes of Japan's claim under 
Annex  C(1)(a), the Panel  turned to assess whether Japanese imported products and Korean  domestic 
products are in fact "like".540 Given that Japan did not elaborate further why imported and domestic 
products should be considered "like", the Panel found that Japan had failed to demon strate that 
                                                
530 Panel Report, para.  7.394 (referring to Appellate  Body Report, Argentina – Financial Services , 
para. 6.42).  
531 Panel Report, para.  7.397 (referring to Appellate  Body Report, Argentina – Financial Services , 
paras.  6.60-6.61).  
532 Panel Report, para.  7.398 (referring to KFDA 14  April 2011 press release  (Panel Exhibits JPN -55.b 
(revised) and KOR -72 (revised) ); PMO blanket import ban and additional testing requirements press release  
(Panel Exhibit JPN -3.b); MFDS 2013 blanket import ban and additional testing requirements  notice  (Panel Exhibit 
JPN-75.b)).  
533 Panel Report, para.  7.399 (referring to Japan's second written submission to the Panel, para.  434).  
534 Panel Report, para.  7.399.  
535 Panel Report, para.  7.400.  (fns omitted)  
536 Panel Report, para.  7.400.  
537 Panel Report, para.  7.400.  
538 Panel Report, para.  7.401.  
539 Panel Report, para.  7.401. In this context, the Panel observed that "assessing whether a presumption 
of likeness has been established does not imply an in -depth inquiry into the nature of the distinction, as long as 
the reasons given by the respondent to rebut it are genuine and corroborated by evidence."  (Panel Report, 
para. 7.402 (referring to Panel Report, China – Publicat ions and Audiovisual Products , para.  7.1496))  
540 Panel Report, para.  7.403.  WT/DS495/AB/R  
 
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  domestic and imported products are "like" under Annex  C(1)(a).541 The Panel therefore found that 
Japan had failed to establish that Korea acted inconsistently with Annex  C(1)(a) and, as a 
consequence, Article  8 of the SPS  Agreement by adopting or  maintaining the 2011 and 2013 additional 
testing requirements.542  
5.7.3   Whether the Panel erred under Annex C(1)(a) to the SPS  Agreement in declining to 
presume likeness  
Japan claims that the Panel erred in its interpretation and application of Annex  C(1)(a) to the 
SPS Agreement in declining to presume  that Japanese imported products and Korean domestic 
products are "like".543 According to Japan, the pertinent considerations for a panel when deciding 
whether to presume likeness are "the terms of the measure itself , and whether the measure expresses 
origin as the sole criterion of distinction" between imported and domestic products.544 In Japan's view, 
whether the regulator considered grounds other than origin when adopting the measure should not 
be taken into consider ation in the analysis.545 Japan thus takes issue with the Panel's reliance on 
health concerns considered by Korea, which were allegedly not expressed as a criterion for the 
distinction between Japanese and Korean products in the 2011 and 2013 additional test ing 
requirements themselves.546 Japan submits that, in giving weight to such health concerns, the Panel 
looked beyond whether the 2011 and 2013 additional testing requirements express origin as the sole 
criterion of distinction.547 Japan concludes that the Pan el should have presumed likeness on the basis 
that Japan established a prima facie case that the 2011 and 2013 additional testing requirements draw 
a distinction exclusively on the basis of origin548, and that Korea did not successfully rebut that prima 
facie case.549  
Korea argues that, in determining whether a distinction is based exclusively on origin, a panel 
may examine "factors outside of the terms of the measure, including the objectives, rationale, and 
effect of the measure".550 Korea also argues that the re is no obligation for panels to presume likeness 
even where the measure at issue distinguishes between products solely based on origin. Therefore, to 
Korea, even if the presumption had been applicable, the Panel was free not to presume likeness and 
then turn to examine whether the products at issue were "like" under Annex  C(1)(a).551 
Annex C(1)(a) to the SPS  Agreement requires Members to ensure, with respect to any 
procedure to check and ensure the fulfilment of SPS measures, that "such procedures are under taken 
and completed without undue delay and in no less favourable manner for imported products than for 
like domestic products."  
Japan's appeal focuses on the likeness requirement in the second clause of Annex C(1)(a) and, 
more particularly, on the Panel's  decision not to presume the likeness of Japanese imported products 
and Korean domestic products for the purposes of Japan's claim of inconsistency under that clause. 
We therefore examine whether the Panel erred in its interpretation and application of Ann ex C(1)(a) 
in declining to presume likeness for Japanese imported products and Korean domestic products when 
assessing the consistency of the 2011 and 2013 additional testing requirements with that provision.  
Several panels have found, under the GATT  1994 and the GATS, that, when a measure makes 
a distinction between products (or between services and service suppliers) based exclusively on the 
origin of the product s (or the service s and the service supplier s), a complainant is not necessarily 
required to e stablish likeness based on the criteria traditionally employed as analytical tools for 
                                                
541 Panel Report, paras.  7.407 -7.408.  
542 Panel Report, paras.  7.409, 7.447, and 8.4.  
543 Japan's other appellant's submission, paras.  362-365 and 384.  
544 Japan's other appellant's submission, paras.  363 and 416. (emphasis original) See also ibid., 
para. 421. 
545 Japan's other appellant's submission, para s. 364, 416, and 424.  
546 At the oral hearing, Japan clarified that health concerns could have been relevant , had they been 
expressed as a criterion for the distinction in the 2011 and 2013 additional testing requirements themselves. 
(Japan's response to questioning at the oral hearing)  
547 Japan's other appellant's submission, para.  380. See also ibid., paras.  384 and 446.  
548 Japan's other appellant's submission, para.  437. 
549 Japan's other appellant's submission, para s. 460-461 and 469. 
550 Korea's appellee's submission, para.  119. 
551 Korea's appellee's submission, paras.  106-107 and 112.  WT/DS495/AB/R  
 
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  assessing likeness.552 Instead, th ose panels found that, in such cases, likeness can be presumed.553 
This approach of presuming likeness was endorsed by the Appellate  Body i n Argentina – Financial 
Services in the context of Articles  II:1 and  XVII:1 of the GATS.554 The Appellate  Body considered that 
"where a measure provides for a distinction based exclusively on origin, there will or can be services 
and service suppliers that are the same in all respects except for origin"  and that, as a result, likeness 
can be presumed.555  
This dispute is the first in which a panel addressed the presumption of likeness  in the context 
of the SPS  Agreement. Unlike the non -discrimin ation provisions in the GATT  1994, the 
non-discrimination obligations set out in Articles  2.3 and 5.5 of the SPS  Agreement do not refer to like 
products. In the SPS  Agreement, the reference to like products is found only in Annex  C(1). The Panel 
considered  that the same likeness criteria as under Article  III:4 of the GATT  1994 are appropriate for 
an analysis under Annex  C(1)(a) to the SPS  Agreement.556 As set out above, the Panel then addressed 
whether likeness might be presumed and found that Japan had not made a prima facie case that origin 
is the sole basis for a distinction between  Japanese and Korean products and that, to the extent Japan 
made such a prima facie case, Korea had successfully rebutted it. It is on this basis that the Panel 
declined to presu me that Japanese imported products and Korean domestic products are "like".557  
The Panel appears to have accepted that, in principle, likeness may be presumed for purposes 
of Annex  C(1)(a) if a procedure distinguishes between products based exclusively on t heir origin. We 
are not convinced that the Panel could have done so under the SPS  Agreement without further 
analysis. SPS  measures are defined in Annex  A(1) to the SPS  Agreement as measures applied to 
protect human, animal, or plant life or health from a c ertain risk or to prevent or limit certain damage 
from pests. In our view, in light of Annex  A(1), the question arises whether a procedure to check and 
ensure the fulfilment of SPS  measures is at all capable of making a distinction between products based 
exclusively  on their origin and thus whether likeness may be presumed in the context of 
Annex  C(1)(a). The Panel did not explore that question and appears to have simply assumed that 
likeness may be presumed under Annex  C(1)(a).  
We consider it unnecessary,  however, to reach a conclusion regarding the Panel's view that 
likeness may be presumed under Annex  C(1)(a). We agree with the Panel that the 2011 and 2013 
additional testing requirements do not draw a distinction between Japanese and Korean products 
                                                
552 In the context of the GATT  1994, the criteria traditionally employed for assessing likeness are those 
outlined in the Working Party Report on Border Tax Adjustments and further developed by the Appellate  Body in  
Japan – Alcoholic Beverages  II. (GATT Working Party Report, Border Tax Adjustments , L/3464, adopted 
2 December 1970, BISD 18S, para. 18 ; Appellate  Body Report, Japan – Alcoholic Beverages II , pp. 21 -22; 
DSR 1996:I, pp. 114 -115) 
553 See e.g. Panel Reports, Indonesia – Autos , para s. 14.112 -14.113 ; China – Publications and Audiovisual 
Products , paras.  7.975 and 7.1447 ; US – Poultry (China) , paras.  7.426-7.429; Argentina – Import Measures , 
paras.  6.275 -6.276; Brazil – Taxation , para.  7.125.  
554 This was the first dispute in which the Appellate  Body had to examine the presumptio n of likeness.  
555 Appellate  Body Report, Argentina – Financial Services , para.  6.38. The Appellate  Body stated that, 
compared to trade in goods, the scope for such a presumption under the GATS would be more limited, and 
establishing likeness based on the pr esumption may often involve greater complexity in trade in services . (Ibid., 
para. 6.38)  The Appellate  Body further stated that "[w]hether and to what extent such complexities have an 
impact on the determination of whether a distinction is based exclusivel y on origin in a particular case will 
depend on the nature, configuration, and operation of the measure at issue and the particular claims raised." 
(Ibid., para.  6.41) The Appellate  Body said that it is for the complainant to make a prima facie  case that a  
measure draws a distinction based exclusively on origin. The respondent may rebut such a prima facie case by 
demonstrating that origin is not the exclusive basis for the distinction drawn by the measure, or by introducing 
arguments and evidence relating t o the criteria for determining likeness under the relevant provisions of the 
GATS. (Ibid., paras.  6.42 and 6.45) The measures at issue in that dispute distinguished between "cooperative" 
countries and "non -cooperative" countries  for tax transparency purpos es. In the context of that particular 
dispute, t he Appellate  Body disagreed with the panel's decision to presume likeness. The panel had noted that 
the distinction operated by the measures was not based on "origin per se ", but on "the regulatory framework 
inextricably linked to such origin".  To the Appellate  Body, in light of that observation, the panel could not have 
conclude d that the distinction drawn by the measures at issue was based exclusively on origin.  (Ibid., paras.  5.3 
and 6.56 -6.61) 
556 Panel Report, para.  7.393. We recall that, in this appeal, we are not requested to examine whether the 
Panel erred in employing, under  Annex  C(1)(a) to the SPS  Agreement, the criteria for assessing likeness 
traditionally employed as analytical tools in the context of the GATT  1994.  
557 Panel Report, paras.  7.400 and 7.402.  WT/DS495/AB/R  
 
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  based solely on origin.558 Thus, it is inconsequential whether likeness may be presumed under 
Annex  C(1)(a), because, in the particular circumstances of this case, the Panel, in any event, would 
not have been in a position to presume that Japanese and Korean pro ducts are "like" in relation to the 
procedures at issue. In the following paragraphs, we examine whether our preliminary assessment 
should be maintained in light of Japan's arguments on appeal that challenge the Panel's view that the 
measures at issue do n ot draw a distinction between Japanese and Korean products based solely on 
origin.  
On appeal, Japan notes that, under Articles  2.3 and  5.6 of the SPS  Agreement, the Panel found 
that Japanese products do not differ in terms of "health risks". Specifically, Japan notes that the Panel 
examined in detail Korea's alleged public health "rationale for adopting the measures", and rejected 
Korea's argument that Japanese food products raise particular health concerns that would justify 
distinguishing Japanese product s from Korean food products.559 In Japan's view, the Panel could not 
decline to presume likeness because of alleged public health concerns underpinning the 2011 and 
2013 additional testing requirements when the Panel had already found that those public healt h 
concerns are not warranted as they do not support the distinction drawn between Japanese and Korean 
food products.560  
We are not convinced by Japan's argument. In arguing that both domestic and imported 
products present similar "health risks", Japan in ef fect appears to acknowledge that the 2011 and 
2013 additional testing requirements were adopted to address certain health risks. We agree with the 
Panel that, regardless of whether Korea's measures are consistent with Articles 2.3 and 5.6, the 
distinction of applying the 2011 and 2013 additional testing requirements only to Japan cannot be 
separated "from the public health concern and the fact that it was Japan that experienced the FDNPP 
accident".561 Moreover, the fact that a measure does not distinguish pro ducts based exclusively on the 
origin of those products does not prevent domestic and imported products that pose similar health 
risks from being  considered "like" under the likeness analysis in Annex  C(1)(a).  
Japan also takes issue with the Panel's relia nce on health concerns considered by Korea 
because they were allegedly not expressed as a criterion for the distinction between Japanese and 
Korean products in the 2011 and 2013 additional testing requirements themselves.562 In the same 
vein, Japan faults th e Panel for having examined other measures in Korea's SPS regime in its analysis 
of the presumption.563 Korea in turn argues that, in determining whether a distinction is based 
exclusively on origin, a panel may examine the objectives, rationale, and effect of the measure.564 We 
note that the Panel focused its analysis on the documents announcing the 2011 and 2013 additional 
testing requirements.565 In addition, the Panel examined the 2011 and 2013 additional testing 
requirements against Korea's SPS regime.566 As noted above, we agree with the Panel that the 
documents announcing the 2011 and 2013 additional testing requirements refer to the FDNPP accident 
and certain health -related concerns.567 Thus, we are not convinced by Japan's  argument that the Panel 
erred by tak ing into account the health -related concerns underpinning the  2011 and 2013 additional 
testing requirements reflected in the documents announcing th ose measures.  
                                                
558 The Panel found that the documents announcing the 2011 and 2013 a dditional testing requirements 
refer to the FDNPP accident and health -related concerns. (Panel Report, para.  7.398) Specifically, these 
documents refer to the FDNPP accident, "the recent level -up in nuclear incident rating" , "nuclear event scale of 
FDNPP t hat has been revised upward" , "imports of fishery products that have been contaminated with radiation",  
and measures taken "for safety management of imported fishery products"  with respect to the FDNPP accident. 
(KFDA 14  April 2011 press release  (Panel Exh ibits JPN -55.b (revised) and KOR -72 (revised) ); PMO blanket import 
ban and additional testing requirements press release  (Panel Exhibit JPN -3.b); MFDS 2013 blanket import ban 
and additional testing requirements  notice  (Panel Exhibit JPN -75.b)) We agree wit h the Panel that "the distinction 
of applying [the 2011 and 2013 additional testing requirements] only to Japan cannot be separated from the 
public health concern and the fact that it was Japan that experienced the FDNPP accident."  (Panel Report, 
para. 7.399) Finally, we note that Japan acknowledged that health concerns are a factor in Korea's adoption of its 
measures. (Panel Report, para.  7.399 (referring to Japan's second written submission to the Panel, para.  434))  
559 Japan's other appellant's submission,  para. 450 (referring to Panel Report, paras.  7.355 and 7.359).  
560 Japan's other appellant's submission, paras.  450 and 463 -468. 
561 Panel Report, para.  7.399.  
562 Japan's other appellant's submission, paras.  363-364, 416, 421, 44 8-449, and 453.  
563 Japan's other appellant's submission, para.  452. 
564 Korea's appellee's submission, para.  119. 
565 Panel Report, para.  7.398.  
566 Panel Report, para.  7.400.  
567 Panel Report, para.  7.398.  WT/DS495/AB/R  
 
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Finally, Japan submits that, while the Panel states that it relied on "the text of the measure 
[at issue] or other documents on the record", the Panel merely relied on one internal unpublished 
document and two press releases announcing the 2011 and 2013 additional testing requirements.568 
Japan contends that these documents did not include the  entire content of the regulations.569 In its 
analysis, the Panel indeed relied on the documents announcing the 2011 and 2013 additional testing 
requirements as well as a related document on the Panel record, namely, an MFDS communication to 
a number of Kore an agencies.570 Before the Panel, Korea confirmed that this latter document contains 
the administrative instructions sent to the relevant enforcement agencies after the announcement of 
the 2013 additional testing requirements.571 In our view, the documents on the Panel record examined 
by the Panel were relevant to the analysis under Annex  C(1)(a). Japan has neither identified other 
documents that the Panel should have considered, nor explained how such other documents would 
have affected the Panel's analysis. T hus, we are not convinced by Japan's argument.  
For all of these reasons, in relation to this dispute, we see no error in the Panel's decision to 
decline to presume that Japanese imported products and Korean domestic products are "like" for 
purposes of Anne x C(1)(a) to the SPS  Agreement. We therefore confirm our view that it is not 
necessary for the purposes of Japan's claim of error on appeal to consider whether the presumption 
of likeness may at all be used in the context of Annex  C(1)(a).  
5.7.4   Conclusion  
Annex C(1)(a) to the SPS  Agreement requires Members to ensure, with respect to any 
procedure to check and ensure the fulfilment of SPS measures, that such procedures are undertaken 
and completed in no less favourable manner for imported products than for "like  domestic products". 
In our view, in light of the definitions of SPS measures in Annex A(1) to the SPS  Agreement, the 
question arises whether a procedure to check and ensure the fulfilment of SPS measures is at all 
capable of making a distinction between p roducts based exclusively on their origin and thus whether 
likeness may be presumed in the context of Annex C(1)(a). The Panel did not explore that question 
and appears to have simply assumed that likeness may be presumed under Annex C(1)(a). That said, 
for the purposes of Japan's claim of error on appeal, it is inconsequential whether likeness may be 
presumed under Annex C(1)(a), because, in the particular circumstances of this case, the Panel, in 
any event, would not have been in a position to presume tha t Japanese and Korean products are "like" 
in relation to the procedures at issue. This is because we agree with the Panel's statement, in 
paragraph 7.399 of its Report, that the distinction of applying the 2011 and 2013 additional testing 
requirements only  to Japan "cannot be separated from the public health concern and the fact that it 
was Japan that experienced the FDNPP accident". On this basis, the Panel was correct to conclude that 
the 2011 and 2013 additional testing requirements do not distinguish be tween Japanese and Korean 
products solely based on origin.  
We therefore find that the Panel did not err in declining to presume that Japanese imported 
products and Korean domestic products are "like" for purposes of Annex C(1)(a) to the 
SPS Agreement. Cons equently, we uphold  the Panel's finding, in paragraph 7.403 of the Panel Report, 
that Japan has failed to establish that imported and domestic products can be presumed to be "like". 
Therefore, the Panel's finding , in paragraph  8.4 of the Panel Report , that Japan has failed to establish 
that Korea acted inconsistently with Annex C(1)(a) and Article  8 of the SPS  Agreement stands.  
6  FINDINGS AND CONCLUSIONS  
For the reasons  set out in this Report, the Appellate  Body makes the following findings and 
conclusions.  
                                                
568 Japan's other appellant's submission, para.  442 ( referring to Panel Report , para s. 7.398  and 
7.490 -7.494 ). 
569 Japan's other appellant's submission, para.  442. 
570 Panel Report, para.  7.398 (referring to KFDA 14  April 2011 press release  (Panel Exhibits JPN -55.b 
(revised) and KOR -72 (revised) ); PMO blanket import ban and additional testing requirements press release  
(Panel Exhibit JPN -3.b); MFDS 2013 blanket import ban and additional testing requirements  notice  (Panel Exhibit 
JPN-75.b)).  
571 Panel Report, para.  7.477 (referring to Korea's response s to Panel question s Nos. 72 and 130).  See 
also ibid., para.  2.101.  WT/DS495/AB/R  
 
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  6.1  Article  5.6 of the SPS  Agreement  
A panel  examining a claim under Article  5.6 of the SPS  Agreement is charged with, inter alia , 
ascertaining the respondent's ALOP on the basis of the totality of the arguments and evidence on the 
Panel record. A panel is also required to identify the level of protection that would be achieved by the 
alternative measure proposed by the complainant. The Panel in this dispute accepted Korea's own 
articulation of the relevant ALOP as one containing the following elements concerning radioactivity 
levels in food consumed by Korean consumers: (i) the levels that exist in the ordinary environme nt; 
(ii) exposure "as low as reasonably achievable"; and (iii) the quantitative dose exposure of 
1 mSv/year. While the Panel accepted Korea's articulation of this multi -faceted ALOP, its analysis 
focuses on the quantitative element of 1  mSv/year. The Panel  reached conclusions with respect to 
Japan's alternative measure that leave unclear whether it considered the alternative measure to satisfy 
all of the elements of Korea's ALOP it had identified. The Panel's findings effectively subordinated the 
elements o f ALARA and radioactivity levels "in the ordinary environment" to the quantitative element 
of exposure below 1  mSv/year. This is at odds with the articulation of the ALOP  explicitly accepted by 
the Panel at the outset of its analysis.  
a. We therefore find that the Panel erred in its application of Article  5.6 of the SPS  Agreement 
in finding that Japan's proposed alternative measure achieves Korea's ALOP.  
b. Consequently, we reverse  the Panel's findings of inconsistency with Article  5.6 with respect 
to: (i)  the adoption of the blanket import ban (except for the ban on Pacific cod from 
Fukushima and Ibaraki) and the 2013 additional testing requirements; and (ii)  the 
maintenance of all of Korea's measures.  
6.2  Article  2.3 of the SPS  Agreement  
Under  the first sentence o f Article  2.3 of the SPS  Agreement, a complainant must show that a 
measure arbitrarily or unjustifiably discriminates between Members where identical or similar 
conditions prevail, including between their own territory and that of other Members. Article  2.3 
therefore requires demonstrating as a threshold matter that "identical or similar conditions prevail" 
between Members. While the analysis under Article  2.3 may include consideration of conditions that 
can be characterized as being present in the products  from different Members, a proper interpretation 
of Article  2.3 includes consideration of other relevant conditions, such as territorial conditions, to the 
extent that they have the potential to affect the products at issue. The analysis under Article  2.3 thus 
entails consideration of all relevant conditions in different Members, including territorial conditions 
that may not yet have manifested in products but are relevant in light of the regulatory objective and 
specific SPS risks at issue. We find that th e Panel erred in its interpretation of Article  2.3 when it 
concluded that this provision permits consideration of the "risk present in products in international 
trade as the relevant condition" because we understand the Panel to have concluded that the sco pe 
of relevant "conditions" under Article  2.3 may be exclusively limited to "the risk present in products".  
In its application of Article  2.3, the Panel effectively relied on actual contamination levels in food 
without reconciling its findings as to other  pertinent territorial conditions affecting the potential for 
contamination of food. Such findings include the Panel's recognition of greater potential for 
contamination near the source and its indications that specific release events could result in a loc alized 
and incremental increase in the potential for contamination of food. The Panel's findings under 
Article  2.3 on the sole basis of actual measurement levels in product samples ultimately fail to account 
for the potential  for contamination in light of relevant conditions prevailing in the territories of different 
Members.  
a. We therefore find that the Panel erred in its interpretation and application of Article  2.3 
of the SPS  Agreement in finding that similar conditions prevail between Japan and other 
Memb ers.  
b. Consequently, we reverse  the Panel's findings of inconsistency with Article  2.3 with 
respect to: (i)  the adoption of the blanket import ban (except for the ban on Pacific cod 
from Fukushima and Ibaraki) and the 2013 additional testing requirements; a nd (ii) the 
maintenance of all of Korea's  measures.  WT/DS495/AB/R  
 
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  c. In light of the reversal of the Panel's findings regarding the existence of "similar 
conditions" within the meaning of Article  2.3, it is not necessary to address Korea's 
additional claims of error regar ding arbitrary or unjustifiable discrimination, and whether 
Korea's measures constitute disguised restrictions on international trade.  
6.3  Article  5.7 of the SPS  Agreement  
A panel's mandate, as reflected in Articles 7.1 and 11 of the DSU, is to examine the "ma tter" 
before it in light to the relevant provisions of the covered agreements cited by the parties and to make 
such findings as will assist the DSB in making the recommendations or in giving the ruling s provided 
for in the covered agreements. Japan did not  make a claim under Article  5.7 of the SPS  Agreement in 
its panel request. While Korea raised arguments in relation to Article  5.7 as part of its rebuttal 
arguments, Korea did not allege that its measures would be justified or exempted from the obligations  
contained in Articles  2.3, 5.6, 7, and 8 and Annexes B and C to the SPS  Agreement by virtue of their 
provisional nature under Article  5.7. Rather, Korea relied on Article  5.7 to serve as relevant context 
to the interpretation of certain other provisions o f the SPS  Agreement, which were the subject of 
Japan's claims of inconsistency. Korea also referred to Article  5.7 when relying on the alleged 
insufficiency of evidence in this case as a relevant factor to the Panel's assessment of Japan's claims 
of incons istency, in particular those under Articles 2.3 and 5.6. By making findings as to the 
consistency of Korea's measures with  Article  5.7, the Panel exceeded its mandate, thereby acting 
inconsistently with Articles  7.1 and 11 of the DSU.  
a. For this reason, we declare the Panel's findings under Article  5.7 of the SPS  Agreement 
moot and of no legal effect . 
b. Consequently , it is not necessary for us to consider further Korea's other claims of error 
in relation to those same Panel findings under Article  5.7. 
6.4  The Pane l's treatment of evidence  
Korea's and Japan's claims of error on appeal concerning the Panel's treatment of evidence relate 
to the Panel's application of Articles 2.3 and 5.6 of the SPS  Agreement. We have found that the Panel 
erred in its application of Ar ticle 5.6 with regard to Korea's ALOP. We have also found that the Panel 
erred in its interpretation and application of Article  2.3 with regard to whether identical or similar 
conditions prevail between Japan and other Members. Accordingly, we have reverse d the Panel's 
findings of inconsistency under Articles 2.3 and 5.6.  
a. Given that the participants' claims of error in relation to evidence concern Panel findings 
that have already been reversed, we do not consider it necessary to examine further these 
claims  of error.  
6.5  The Panel's expert selection  
Korea's  claim of error concerning the Panel's expert selection is connected with the Panel's 
application of Articles 2.3, 5.6, and 5.7 of the SPS  Agreement. The two experts at issue provided 
responses to the majority of the questions posed by the Panel, and the P anel relied on these responses 
in its assessment of the consistency of Korea's measures with Articles 2.3, 5.6, and 5.7. We have 
found above that the Panel erred in its findings under Articles 2.3 and 5.6, and in making findings 
under Article  5.7. We have reversed the Panel's findings of inconsistency under Articles 2.3 and 5.6, 
and declared  the Panel's findings under Article  5.7 moot and of no legal effect . Consequently, Korea's 
claim of error under Article  11 of the DSU and request on appeal in relation t o the Panel's expert 
selection concern Panel findings that have been reversed or  declared moot and of no legal effect .  
a. For this reason, we do not consider it necessary to examine further Korea's claim that the 
Panel erred under Article  11 of the DSU by ap pointing the two experts that Korea challenges 
on appeal.  
6.6  Article  7 and Annex  B(1) to the SPS  Agreement  
Annex  B(1) to the SPS  Agreement requires Members to ensure that adopted SPS regulations are 
published  promptly "in such a manner as to enable interested  Members to become acquainted with WT/DS495/AB/R  
 
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  them". An Annex  B(1) publication must be accessible to interested Members and contain sufficient 
information, including the product scope and the requirements of the adopted SPS  regulation, in order 
to enable interested M embers to become acquainted with that adopted SPS  regulation. The precise 
content and amount of information that must be included in an Annex  B(1) publication to enable 
interested Members to become acquainted with an adopted SPS  regulation will depend on t he 
particular SPS  regulation at issue.  
a. Therefore , we agree with the Panel to the extent the Panel's reference to "conditions" means 
the requirements of the adopted SPS  regulation. We modify , however, the Panel's finding, 
in paragraph 7.464 of the Panel Re port, to the extent it considered that Annex  B(1) requires, 
in all cases, that the publication of an SPS  regulation include the "specific principles and 
methods" applicable to the products. We instead find that whether the publication of an 
adopted SPS reg ulation under Annex B(1) needs to include the "specific principles and 
methods" applicable to the products may be determined only with reference to the specific 
circumstances of each case, such as the nature of the SPS regulation  at issue, the products 
covered, and the nature of the SPS risks involved.  
In relation to the product scope of the blanket import ban, we agree with the Panel that the 
reference  to "all fishery products" in the press release announcing this measure is not sufficient to 
comply with Annex  B(1) to the SPS  Agreement. The blanket import ban covers products that would 
normally be included in a category other than "fishery products". Fo r this reason, we do not consider 
that the press release at issue published the blanket import ban in such a manner as to enable Japan 
to become acquainted with this ban.  
a. Therefore , we find that the Panel did not err in its application of Annex  B(1) to th e 
SPS Agreement to the blanket import ban in relation to the product scope of this measure.  
b. Consequently, we  uphold  the Panel's finding, in paragraph 7.487 of the Panel Report, that 
Korea acted inconsistently with Annex  B(1) and Article  7 of the SPS  Agree ment by not 
publishing the full product scope of the blanket import ban . 
In relation to the publication of the additional testing requirements, we agree with the Panel 
that, in light of the SPS  regulations at issue, the press releases announcing the 2011 a dditional testing 
requirements and the 2013 additional testing requirements should have contained the levels of 
caesium (and iodine in the 2011 press release) that would trigger the additional testing; the specific 
radionuclides to be tested; the maximum l evels for those radionuclides that would result in products 
being rejected; and, in relation to the 2013 press release only, the procedure and location of the 
testing required for the additional radionuclides. In our view, without these elements, the press  
releases do not enable interested Members to become acquainted with the 2011 additional testing 
requirements and the 2013 additional testing requirements.  
a. We therefore find that the Panel did not err in its application of Annex  B(1) to the 
SPS Agreement t o the 2011 additional testing requirements and the 2013 additional testing 
requirements in relation to the requirements of these measures.  
b. Consequently, we uphold  the Panel's findings, in paragraphs 7.501 -7.502 of the Panel 
Report, that Korea acted incons istently with Annex  B(1) and Article  7 of the SPS  Agreement 
by not publishing sufficient information to enable Japan to become acquainted with the 
requirements of the 2011 additional testing requirements and the 2013 additional testing 
requirements.  
In rel ation to the accessibility of the publication of all the SPS  measures at issue, we agree with 
the Panel that, in light of the case presented by Japan, it was for Korea to provide some evidence  or 
explanation that interested Members would have known  to look  to the websites indicated by Korea for 
information on the SPS  measures at issue. Korea, however, did not provide a clear explanation 
concerning whether interested Members would have been able to locate and access the press releases 
announcing those measur es.  
a. We therefore find that the Panel did not err in its application of Annex  B(1) to the 
SPS Agreement to the SPS  measures at issue in relation to the accessibility of the 
publications.  WT/DS495/AB/R  
 
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  b. Consequently, we uphold  the Panel's findings, in paragraphs 7.474, 7 .485, 7.498, and 7.500 
of the Panel Report, that Korea did not show that interested Members would have known to 
look to the websites indicated by Korea for information on the SPS  measures at issue.  
In relation to Korea's claim of error under Article  11 of the DSU, we consider that the Panel 
failed to engage with the pertinent evidence on the record. Moreover, the Panel should not have left 
it to Korea to anticipate, in the absence of a contestation of the publication dates by Japan, that it 
would be require d to submit the archived versions of the webpages  to prove the publication dates of 
the press releases on government websites. Rather, to the extent the Panel considered it was 
necessary for it to have such evidence, it should have sought it from both part ies to the dispute and 
should only then have drawn appropriate inferences.  
a. We therefore find that the Panel acted inconsistently with Article  11 of the DSU in concluding 
that it was unable to know whether the web addresses provided by Korea were available on 
the day Korea announced each of the SPS measures at issue and what content was available 
on that day.  
Given that the remaining grounds for the Panel's ultimate finding regarding the SPS  measures 
at issue are left undisturbed, and that each of these rea sons would justify that finding, the Panel's 
ultimate finding, in paragraphs  7.503 and 8.5.a of the Panel Report, that Korea acted inconsistently 
with Annex  B(1) and, as a consequence, Article  7 of the SPS  Agreement, stands.  
6.7  Article  7 and Annex  B(3) to the SPS  Agreement  
The introductory clause of Annex B(3) to the SPS  Agreement requires Members to ensure that 
one enquiry point exists which is responsible for the provision of answers to all reasonable questions 
and for the provision of relevant documents.  We do not consider that a single failure of an enquiry 
point to respond in and of itself  would automatically result in an inconsistency with Annex B(3). In our 
view, however, whether and the extent to which an enquiry point actually provides answers to al l 
reasonable questions and provides documents are not irrelevant for the assessment under Annex  B(3). 
Rather, it informs an assessment of whether " one enquiry point exists which is responsible for the 
provision of answers to all reasonable questions from i nterested Members as well as for the provision 
of relevant documents" within the meaning of Annex B(3). This assessment requires an examination 
of all the relevant factors, including the total number of questions received by the enquiry point and 
the propo rtion of and the extent to which questions were answered, the nature and scope of the 
information sought and received, and whether the enquiry point repeatedly failed to respond. For 
these reasons, we disagree with the Panel's view that a single failure to  respond would result in an 
inconsistency with the obligation under  Annex  B(3). 
a. We therefore find that the Panel erred in its interpretation of Annex  B(3) to the 
SPS Agreement in finding that a single failure of an enquiry point to respond to a request 
would result in an inconsistency with Annex  B(3).  
b. Consequently, we reverse  the Panel's finding in paragraphs 7.507 -7.510 of the Panel Report.  
With respect to the Panel's application of Annex B(3) to the SPS  Agreement, the Panel limited 
its analysis to the re sponsiveness of Korea's enquiry point only vis -à-vis the two requests submitted 
by Japan. In our view, this does not constitute a sufficient examination of all relevant factors necessary 
to determine whether Korea acted inconsistently with Annex B(3). The Panel did not assess: (i)  the 
scope and nature of the information sought through Japan's second request; (ii)  how many requests 
had been received by Korea's enquiry point in total over a period of time and the proportion of 
questions that had been answered ; and (iii)  whether the enquiry point repeatedly failed to respond. 
Without assessing those factors, the Panel was not in a position to reach a conclusion about whether 
Korea ensured that "one enquiry point exists which is responsible for the provision of answers to all 
reasonable questions from interested Members as well as for the provision of relevant documents", 
and, consequently , whether Korea acted inconsistently with Annex B(3).  
a. We therefore find that the Panel erred in its application of Annex B(3)  to the SPS  Agreement 
in finding, based only on two specific instances – Korea's SPS enquiry point's incomplete 
response to Japan's first request and its failure to respond to Japan's second request – that WT/DS495/AB/R 
 
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  Korea acted inconsistently with Annex B(3) and, as a consequence, Article 7 of the 
SPS Agreement.  
b. Consequently, we reverse the Panel's finding, in paragraphs 7.520 and 8.5.b of the Panel 
Report, that Korea acted inconsistently with A nnex B(3) and, as a consequence, Article 7 of 
the SPS Agreement. 
6.8  Article 8 and Annex C(1)(a) to the SPS Agreement 
Annex C(1)(a) to the SPS Agreement requires Members to ensure, with respect to any 
procedure to check and ensure the fulfilment of SP S measures, that such procedures are undertaken 
and completed in no less favourable manner for imported products than for "like domestic products". In our view, in light of the definitions of SPS me asures in Annex A(1) to the SPS Agreement, the 
question arises whether a procedure to check and ensure the fulfilment of SPS measures is at all 
capable of making a distinction between products ba sed exclusively on their origin and thus whether 
likeness may be presumed in the context of Annex C(1)(a). The Panel did not explore that question 
and appears to have simply assumed that likeness may be presumed under Annex C(1)(a). That said, 
for the purposes of Japan's claim of error on appe al, it is inconsequentia l whether likeness may be 
presumed under Annex C(1)(a), because, in the particular circumstances of this case, the Panel, in any event, would not have been in a position to pr esume that Japanese and Korean products are "like" 
in relation to the procedures at issue. This is because we agree with the Panel's statement, in 
paragraph 7.399 of its Report, that the distinction of applying the 2011 and 2013 additional testing 
requirements only to Japan "cannot be separated from  the public health concern and the fact that it 
was Japan that experienced the FDNPP accident". On th is basis, the Panel was correct to conclude that 
the 2011 and 2013 additional testing requirements do  not distinguish between Japanese and Korean 
products solely based on origin. 
a. We therefore find that the Panel did not err in declining to presume that Japanese imported 
products and Korean domestic products are "like" for purposes of Annex C(1)(a) to the 
SPS Agreement.  
b. Consequently, we uphold the Pa nel's finding, in paragraph 7.403 of the Panel Report, that 
Japan has failed to establish that imported and domestic products can be presumed to be 
"like".  
c. Therefore, the Panel's finding, in paragraph 8.4 of the Panel Report, that Japan has failed to 
establish that Korea acted inconsistently with Annex C(1)(a) and Article 8 of the 
SPS Agreement stands. 
6.9  Recommendation 
The Appellate Body recommends that the DSB request Korea to bring its measures found in this 
Report, and in the Panel Report as modified by this Report, to be inconsistent with the SPS Agreement, 
into conformity with its obligations under that Agreement. 
Signed in the original in Geneva this 28th day of February 2019 by: