WT/DS495/R/Add.1  
 
22 February  2018 
(18-1036) Page: 1/86 
  Original: English  
 
  
KOREA – IMPORT BANS, AND TES TING AND CERTIFICATION 
REQUIREMENTS  FOR RADIONUCLIDES  
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to D to the Report of the Panel to be found in document  
WT/DS495/R . 
 
 
_______________  
 
 WT/DS495/R/Add.1  
 
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  LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES O F THE PANEL  
Contents  Page  
Annex  A-1 Adopted Working Procedures of the Panel  A-2 
Annex  A-2 Panel  Working Procedures for Consultations with Experts  A-7 
ANNEX B  
ARGUMENTS OF THE PAR TIES 
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Japan  B-2 
Annex  B-2 Integrated executive summary of the arguments of Korea  B-28 
ANNEX  C 
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  C-2 
Annex  C-2 Integrated executive summary of the arguments of Canada  C-3 
Annex  C-3 Integrated executive summary of the arguments of the European Union  C-7 
Annex  C-4 Executive summary of the arguments of New Zealand  C-11 
Annex  C-5 Executive summary of the arguments of Norway  C-14 
Annex  C-6 Executive summary of the arguments of the United States  C-18 
ANNEX  D 
CERTAIN PROCEDURAL R ULINGS MADE BY THE P ANEL 
Contents  Page  
Annex D -1 Decision of Panel on request for enhanced third -party rights  D-2 
Annex D -2 Decision of Panel on selection of experts  D-5 
Annex D -3 Decision on redacting submissions to be sent to experts  D-8 
Annex D -4 Decision of Panel on request to comment on exhibits  D-10 
 
 
 WT/DS495/ R/Add.1  
 
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 ANNEX A  
WORKING PROCEDURES O F THE PANEL  
Contents  Page  
Annex  A-1 Adopted Working Procedures of the Panel  A-2 
Annex  A-2 Panel  Working Procedures for Consultations with Experts  A-7 
 WT/DS495/ R/Add.1  
 
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 ANNEX A -1 
ADOPTED WORKING PROC EDURES OF THE PANEL  
24 February 2016  
 
 
1. In its proceedings, the Panel shall follow the relevant provisions of the Understanding on 
Rules and Procedures Governing the Settlement of Disputes (DSU). In addition, the following 
Working Procedures shall apply.  
General  
 
2. The deliberations of the Panel and the documents submitted to it shall be kept confidential. 
Nothing in the DSU or in these Working Procedures shall preclude a party to the dispute (hereafter 
"party") from disclosing statem ents of its own positions to the public. Members shall treat as 
confidential information submitted to the Panel by another Member which the submitting Member 
has designated as confidential. Where a party submits a confidential version of its written 
submis sions to the Panel, it shall also, upon request of a Member, provide a non -confidential 
summary of the information contained in its submissions that could be disclosed to the public.  
3. Upon indication from any party, at the latest on the first substantive m eeting , that it shall 
provide information that requires protection additional to that provided for under these Working 
Procedures, the Panel shall, after consultation with the parties, decide whether to adopt 
appropriate additional procedures. Exceptions t o this procedure shall be granted upon a showing of 
good cause .  
4. Consistent with Article 13 of the DSU and Article 11.2 of the SPS Agreement, the Panel may 
seek expert advice from experts and from international organizations  and adopt additional 
procedures  to this end , as appropriate . 
5. The Panel shall meet in closed session. The parties, and Members having notified their 
interest in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU  
(hereafter "third parties"), shall be present at the meetings only when invited by the Panel to 
appear before  it.  
6. Each party and third party has the right to determine the composition of its own delegation 
when meeting with the Panel. Each party and thir d party shall have the responsibility for all 
members of its own delegation and shall ensure that each member of such delegation acts in 
accordance with the DSU and these Working Procedures, particularly with regard to the 
confidentiality of the proceeding s.  
Submissions  
 
7. Before the first substantive meeting of the Panel with the parties, each party shall submit a 
written submission in which it presents the facts of the case and its arguments, in accordance with 
the timetable adopted by the Panel. Each part y shall also submit to the Panel, prior to the second 
substantive meeting of the Panel, a written rebuttal, in accordance with the timetable adopted by 
the Panel.  
8. A party shall submit any request for a preliminary ruling at the earliest possible opportuni ty 
and in any event no later than in its first written submission to the Panel.  Based on the nature of 
the request the Panel will consider whether additional briefing is required and make changes to the 
timetable as necessary. This is without prejudice to any requests for rulings based on 
circumstances that   arise later in the process. Requests for such  rulings should be made as soon as 
possible after a party becomes aware of a potential issue .  
9. Each party shall submit all factual evidence to the Panel no l ater than during the first 
substantive meeting, except with respect to evidence necessary for purposes of rebuttal, answers WT/DS495/ R/Add.1  
 
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 to questions or comments on answers provided by the other party. Exceptions to this procedure 
shall be granted upon a showing of goo d cause. Where such exception has been granted, the Panel 
shall accord the other party a period of time for comment, as appropriate, on any new factual 
evidence submitted after the first substantive meeting.  
10. Where the original language of exhibits is not a WTO working language, the submitting party 
or third party shall submit a translation into the WTO working language of the submission at the 
same time.  Translations should include all germane portions of documents that the party seeks to 
rely upon. German e portions include not only specific provisions of measures, but also relevant 
context.  The Panel may grant reasonable extensions of time for the translation of such exhibits 
upon a showing of good cause. It is expected that Japan, as the complainant, wil l submit 
translations into English of the relevant measures with its first written submission. Should Korea 
have any objections to  the translations provided by Japan, it shall identify those objections  in 
writing no later than at the time of Korea's first written submission.  Any objection as to the 
accuracy of a translation submitted by either party subsequent to the first written submissions 
should be raised promptly in writing, no later than the next filing or meeting (whichever occurs 
earlier) following the submission which contains the translation in question. Any objection shall be 
accompanied by a detailed explanation of the grounds of the objection and an alternative 
translation. The Panel may make an exception to these deadlines upon a showing of goo d cause.  
11. In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in accordance with the WTO Editorial Guide for Panel Submissions attached as 
Annex  1, to the extent that it is practical to do so.  
12. To fac ilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute. For example, exhibits submitted by Japan  could  be numbered  JPN-1, JPN-2, 
etc. If the last exhibit in connection with the first submission was numbered JPN-5, the first exhibit 
of the next submission thus would be numbered JPN-6. 
Questions  
 
13. The Panel may at any time pose questions to the parties and third parties,  orally or in 
writing, including prior or subsequent to each substantive meeting.   
Substantive meetings  
 
14. Each party shall provide to the Panel the list of members of its delegation in advance of each 
meeting with the Panel and no later than 5. 00 p.m. Gen eva time  three working days prior to the 
Panel meeting.  
15. The first substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall invite Japan  to make an opening statement to present its case first. 
Subsequently, the Panel  shall invite Korea  to present its point of view. Before each party 
takes the floor, it shall provide the Panel and other participants at the meeting with a 
provisional written version of its statement. In the event that interpretation is needed, 
each part y shall provide additional copies for the interpreters  through the Panel 
Secretary . Each party shall make available to the Panel and the other party the final 
version of its statement, preferably at the end of the meeting, and in any event no later 
than 5. 00 p.m. on the first working day following the meeting.  
b. After the conclusion of the statements, the Panel shall give each party the opportunity to 
ask each other questions or make comments, through the Panel. Each party shall have 
an opportunity to orally answer these questions. Each party shall send in writing, within 
a timeframe to be determined by the Panel, any questions to the other party to which it 
wishes to receive a response in writing. Each party shall be invited to respond in writing 
to the other  party's questions within a deadline to be determined by the Panel.  
c. The Panel may subsequently pose questions to the parties.  Each party shall then have an 
opportunity to answer these questions orally. The Panel shall send in writing, within a WT/DS495/ R/Add.1  
 
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 timeframe to  be determined by it, any questions to the parties to which it wishes to 
receive a response in writing. Each party shall be invited to respond in writing to such 
questions within a deadline to be determined by the Panel.  
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with Japan  presenting its statement first.  
e. The Panel may, after consultation with the parties, set time limits for the opening 
statements; such time limits would be informed to the parties before the first 
substantive meeting.  
16. The second substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall ask Korea  if it wishes to avail itself of the right t o present its case first. If 
so, the Panel shall invite Korea  to present its opening statement, followed by Japan . If 
Korea  chooses not to avail itself of that right, the Panel shall invite Japan  to present its 
opening statement first. Before each party ta kes the floor, it shall provide the Panel and 
other participants at the meeting with a provisional written version of its statement. In 
the event that interpretation is needed, each party shall provide additional copies for the 
interpreters  through the Pan el Secretary . Each party shall make available to the Panel 
and the other party the final version of its statement, preferably at the end of the 
meeting, and in any event no later  than 5. 00 p.m. Geneva time of the first working day 
following the meeting.  
b. After the conclusion of the statements, the Panel shall give each party the opportunity to 
ask questions or make comments, through the Panel. Each party shall then  have an 
opportunity to answer these questions  orally. Each party shall send in writing, within  a 
timeframe to be determined by the Panel, any questions to the other party to which it 
wishes to receive a response in writing. Each party shall be invited to respond in writing 
to the other party's questions within a deadline to be determined by the Pan el. 
c. The Panel may subsequently pose questions to the parties.  Each party shall then have an 
opportunity to answer these questions orally. The Panel shall send in writing, within a 
timeframe to be determined by it, any questions to the parties to which it w ishes to 
receive a response in writing. Each party shall be invited to respond in writing to such 
questions within a deadline to be determined by the Panel.  
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a b rief closing statement, with the party that presented its opening statement 
first, presenting its closing statement first.  
Third parties  
 
17. The Panel shall invite each third party to transmit to the Panel a written submission prior to 
the first substantive meeting  of the Panel with the parties, in accordance with the timetable 
adopted by the Panel.  
18. Each third party shall also be invited to present its views orally during a session of this first 
substantive meeting, set aside for that purpose. Each third par ty shall provide to the Panel the list 
of members of its delegation and whether it will be making an oral statement in advance of this 
session and no later than 5. 00 p.m. (Geneva time)  the previous working day.  
19. The third -party session shall be conducted a s follows:  
a. All third parties may be present during the entirety of this session.  
b. The Panel shall first hear the arguments of the third parties in alphabetical order. Third 
parties present at the third -party session and intending to present their views ora lly at 
that session, shall provide the Panel, the parties and other third parties with provisional 
written versions of their statements before they take the floor.  In the event that 
interpretation is needed, each third party shall provide additional copies  for the WT/DS495/ R/Add.1  
 
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 interpreters  through the Panel Secretary . Third parties shall make available to the Panel, 
the parties and other third parties the final versions of their statements, preferably at 
the end of the session, and in any event no later than 5.00 p.m. (Geneva time) of the 
first working day following the session.  
c. After the third parties have made their statements, the parties may be given the 
opportunity, through the Panel, to ask the third parties questions for clarification on any 
matter raised in the  third parties' submissions or statements. Each party shall send in 
writing, within a timeframe to be determined by the Panel, any questions to a third party 
to which it wishes to receive a response in writing. Each third party shall be invited to 
respond in writing to these questions within a deadline to be determined by the Panel.  
d. The Panel may subsequently pose questions to the third parties.  Each third party shall 
then have an opportunity to answer these questions orally.  The Panel shall send in 
writing , within a timeframe to be determined by it, any questions to the third parties to 
which it wishes to receive a response in writing. Each third party shall be invited to 
respond in writing to such questions within a deadline to be determined by the Panel.  
Descriptive part  
 
20. The description of the arguments of the parties and third parties in the descriptive part of 
the Panel report shall consist  of the executive summaries  provided by the parties and third parties , 
which shall be annexed  as addenda to the rep ort. The Panel will not summarize in the descriptive 
part of its report, or annex to its report, the facts and arguments as presented to the Panel by the 
parties  in the course of the proceedings.  These executive summaries shall not in any way serve as 
a substitute for the submissions of the parties and third parties in the Panel's examination of the 
case. 
21. Each party shall submit an executive summar y of the facts and arguments as presented to 
the Pa nel in its written submissions and oral statements, in accor dance with the timetable adopted 
by the Panel . This summar y may also include a summary of responses to questions . The executive 
summary shall not exceed 30 pages.  
22. Each third party shall submit an executive summary of its arguments as presented in its 
written submission and statement in accordance with the timetable adopted by the Panel. This 
summary may also include a summary of responses to questions, where relevant. The executive 
summary to be provided by each third party shall not exceed 6  pages.  
Interim  review  
 
23. Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to req uest such a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
24. In the event that no further meeting with the Panel is requested, each party may submit 
written comments on the other party's written request for  review, in accordance with the timetable 
adopted by the Panel. Such comments shall be limited to commenting on the other party's  written 
request for review.  
25. The interim report , as well as the final report prior to its official circulation,  shall be kept 
strictly confidential and shall not be disclosed.  
Service of documents  
 
26. The following procedures regarding service of documents shall apply:  
a. Each party and third party  shall submit all documents to the Panel by filing them with 
the DS  Registry (office No. 2047) .  WT/DS495/ R/Add.1  
 
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 b. Each party and third party shall file 3 paper copies of all documents it submits to the 
Panel.  Exhibits may be filed in 3 copies on CD -ROM or DVD and 2 paper c opies.  The 
DS Registrar shall stamp the documents with the date and time of the filing. The paper 
version shall constitute the official version for the purposes of the record of the dispute.  
However, any Excel format documents contained in exhibits which a re not suitable for a 
printed version may be filed in an electronic form only an d in that event the electronic 
version  of such documents filed to the Panel shall constitute the official version for the 
purposes of the record of the dispute.  
c. Each party and  third party shall also provide an electronic copy of all documents it 
submits to the Panel at the same time as the paper versions, preferably in Microsoft 
Word format, either on a CD -ROM, a DVD or as an e -mail attachment. If the electronic 
copy is provide d by e -mail, it should be addressed to DSRegistry@wto.org , with a copy  
to ****.****@wto.org , ****.**** @wto.org , ****.****@wto.org , ****.**** @wto.org , 
and ****.**** @wto.org . If a CD -ROM or DVD is provided, it shall be filed with the 
DS Registry.  
d. Each party shall serve any document sub mitted to the Panel directly on the other party  
and third parties . Each party shall  be required to serve on all third parties only those of 
its written submissions made in advance of the first substantive meeting with the Panel. 
Each third party shall serv e any document submitted to the Panel directly on the parties 
and all other third parties. Each party and third party shall confirm, in writing, that 
copies have been served as required at the time it provides each document to the Panel.  
e. Each party and thi rd party  shall file its documents with the DS Registry and serve  copies 
on the other party (and third parties where appropriate) by 5.00  p.m. (Geneva time) on 
the due dates established by the Panel.  A party or third party may submit  its documents 
to anothe r party or third party in electronic  format only,  provided that the  recipient party 
or third party has indicated its prior consent in writing to the submitting party or third 
party and the Panel Secretary  is so notified . 
f. The Panel shall provide the parties  with an electronic version of the descriptive part, the 
interim report and the final report, as well as of other documents as appropriate. When 
the Panel transmits to the parties or third parties both paper and electronic versions of a 
document, the paper  version shall constitute the official version for the purposes of the 
record of the dispute.  
27. The Panel reserves the right to modify these procedures as necessary, after consultation 
with the parties.  The Panel will annex these procedures to its report.  
 
 WT/DS495/ R/Add.1  
 
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 ANNEX A -2 
PANEL WORKING PROCED URES FOR CONSULTATIO NS WITH EXPERTS1 
24 February 2016  
 
28. In accordance with paragraph 4 of the Working Procedures, if in the course of the 
proceedings, the  Panel shall determine that there is a need to seek expert advice2 the procedures 
described below shall apply. In addressing matters concerning scientific and/or technical advice 
from experts, the Panel shall have regard to th e provisions of the DSU and, inter alia , to the 
objective of conduct ing these proceedings in an efficient and timely manner and at a reasonable 
cost.  
29. After consultation with the parties, t he Panel may ask any relevant institutions , as well as 
the parties,  for suggestions of possible experts . Parties shall not engage in direct contact with the 
individuals suggested  (whether by the parties or the international organizations) on any matter 
related to this dispute . 
30. The Panel shall provide the parties with a li st of possible experts, their curricula vitae  and 
declarations of potential conflicts of interest . In this declaration, each potential expert will be 
instructed to disclose information which may include the following:  
a. financial interests (e.g. investments,  loans, shares, interests, other debts); business 
interests (e.g. directorship or other contractual interests); and property interests 
relevant to the dispute in question;  
b. professional interests (e.g. a past or present relationship with private clients or relevant 
industry, or any interests the person may have in domestic or international proceedings, 
and their implications, where these involve issues similar to those addressed in the 
dispute in question);  
c. other active interests (e.g. active participation i n public interest groups or other 
organisations which may have a declared agenda relevant to the dispute in question);  
d. considered statements of personal opinion on issues relevant to the dispute in question 
(e.g. publications, public statements);  
e. employme nt or family interests (e.g. the possibility of any indirect advantage or any 
likelihood of pressure which could arise from their employer, business associates or 
immediate family members);  and 
f. any other relevant information.  
31. Parties shall have the opportu nity to comment and to make known any compelling 
objections to any particular expert.  
32. The Panel shall select the experts on the basis of their qualifications and the need for 
specialized scientific expertise , and shall not select experts whom the Panel considers to have a 
conflict of interest either after self -disclosure or otherwise. The Panel shall decide the number of 
experts in light of the number and type of issues on which advice shall be sought, as wel l as of the 
different areas on which each expert can provide expertise.  
33. The Panel shall inform the parties of the experts and international organizations it has 
decided to consult , in accordance with the timetable adopted by the Panel. Experts shall act i n 
                                                
1 These procedures are adopted in accordance with paragraph 4 of the Panel’s Working Procedures 
adopted on 24 February 2016 . 
2 For the purpose of these Working Procedures, the term "expert" may be used to refer to individuals, 
institutions, research bodies, or international organizations.  WT/DS495/ R/Add.1  
 
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 their personal capacities and not as representatives of any entity . However, should the Panel seek 
advice from an international organization, the advice received shall be deemed to be received from 
the international organization and not the individual st aff members or representatives of the 
international organization. Moreover, any staff members of such international organization that 
attend a meeting with the Panel , shall be deemed to do so in a representative capacity, on behalf 
of the respective intern ational organization.  
34. The experts shall be subject to the DSB's Rules of Conduct for the Understanding on Rules 
and Procedures Governing the Settlement of Disputes (WT/DSB/RC/1) , a copy of which shall be 
provided to them by the Panel .  
35. The Panel shall prep are written questions for the experts. The parties will be invited to 
suggest a limited number of questions that the Panel could include in its questions to the experts. 
The experts shall be requested to provide responses in writing to the Panel's question s within a 
time-period specified by the Panel . The experts shall be requested to respond only to questions on 
which they have sufficient knowledge . The responses of experts shall be part of the Panel's record 
but shall not be attached to the Panel report a s annexes. The Panel shall provide the parties with 
copies of the responses , in accordance with the adopted timetable. The parties shall have the 
opportunity to comment in writing on the responses from the experts . The parties shall also have 
the opportuni ty to pose written questions to the experts in advance of the meeting, to assist the 
experts in their preparation for the meeting. The parties are invited to pose these questions or any 
others at the meeting.  
36. The Panel may provide the experts, on a confid ential basis, with relevant parts of the 
parties' submissions, including exhibits, as well as with any additional information deemed 
necessary . The experts shall have the opportunity to request, through the Panel, additional factual 
information or clarific ations from the parties, if it shall aid them in answering the Panel’s questions.  
37. The Panel may schedule a meeting with the experts, in conjunction with t he second 
substantive meeting with the parties.  Prior to the Panel's meeting with the experts, the Pa nel shall 
ensure that:   
g. the parties' comments on the experts' responses are provided to all experts;  
h. each expert is provided with the other experts' responses to the Panel's questions; and 
i. each expert is provided with any advance questions from the parti es to the experts.  
38. The Panel's meeting with the experts would be conducted as follows:  
j. The Panel shall invite each expert to make an opening statement. This statement may 
include, but is not limited to, any clarification of their written responses to the Panel 
questions requested by the Panel or the parties, or information complementary to these 
responses. The experts that intend to make an opening statement shall provide the 
Panel and the parties with written versions of their statements, before they take  the 
floor.  The Panel shall make available, to the other experts, and to the parties, a final "as 
delivered" version of each expert's written statement, no later than 5.00  p.m. on the 
first working day following the meeting . 
k. After the conclusion of the st atements, the Panel shall give each party the opportunity to 
ask the experts questions or make comments through the Panel. To facilitate this, each 
party may send in writing  in advance of the meeting, within a timeframe to be 
determined by the Panel, any q uestions to the experts to which it wishes to receive an 
oral response at the Panel's meeting with the experts. Each expert shall be invited to 
respond orally to the parties' questions, whether posed in advance or for the first time at 
the meeting, and to react to the parties' comments.   
l. The Panel may subsequently pose questions to the experts. The expert to whom the 
question is addressed shall be invited to respond orally to the Panel's questions. The 
Panel may also give the other experts the opportunity to address any question or 
comment.  WT/DS495/ R/Add.1  
 
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 m. Once the questioning has concluded, the Panel shall afford each expert an opportunity to 
present a brief closing statement.  
n. The Panel may pose additional written questions or schedule additional meetings with 
the experts  if necessary.  
39. The Secretariat shall prepare a compilation  of the experts' written replies to  the Panel's  
questions, as well as a full transcript of any meeting with the experts for inclusion in the record of 
the Panel proceeding . This transcript shall not be annexed to the Panel report. The experts shall be 
given an opportunity to verify , before the texts are finalized , the drafts of these texts to ensure 
that they accurately reflect the information they provided . The parties sha ll likewise be given an 
opportunity to verify that the transcript of any meeting with the experts accurately reflects the 
parties' own interventions.  
 
 
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 WT/DS495/ R/Add.1  
 
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 ANNEX  B 
ARGUMENTS OF THE PAR TIES 
Contents  Page  
Annex  B-1 Integrated executive summary of the arguments of Japan  B-2 
Annex  B-2 Integrated executive summary of the arguments of Korea  B-28 
 
 WT/DS495/ R/Add.1  
 
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 ANNEX  B-1 
INTEGRATED EXECUTIVE  SUMMARY OF THE ARGUM ENTS OF JAPAN  
I. INTRODUCTION  
1. In March 2011, a major earthquake and tsunami resulted in an accident at the Fukushima 
Dai-ichi nuclear power plant ( "FDNPP "). The personal, societal, physical and emotional 
consequences of the earthquake, tsunami and FDNPP accident have been immense for J apanese 
society. The loss of life and severe injury caused by the earthquake and tsunami were devastating, 
and the consequences to Japanese society enduring.   
2. One of the consequences of the FDNPP accident was the release of radioactive nuclides 
("radionuclides ") into the environment, and ultimately into food for human consumption. The 
ingestion of food containing radionuclides may have adverse health consequences. Japan fully 
recognizes Members ' rights to take measures to protect their people from adver se health 
consequences. Indeed, Japan shares the same goal. In pursuit of that goal, Japan and other 
countries have taken measures to limit exposure to radionuclides in food, including the adoption of 
maximum threshold levels for radionuclides in food.   
3. At the heart of this dispute, however, is the fact that the Republic of Korea ( "Korea ") has 
adopted measures that do not respond appropriately to concerns raised by the FDNPP accident.  
Instead, Korea 's measures discriminate arbitrarily or unjustifiably between similarly situated 
Members, and are more trade restrictive than necessary to achieve Korea 's desired level of 
protection of public health, in violation of Articles 2.3 and 5.6 of the Agreement on Sanitary and 
Phytosanitary Measures  ("SPS Agreement "). Korea has also failed to observe the transparency 
obligations under Annex B to the SPS Agreement , and further disciplines under Annex C to the 
Agreement . 
4. Korea 's discriminatory and unnecessary measures include import bans  for certain food 
products from Japan, and additional testing requirements  on other food products from Japan that 
each contain radionuclides at levels well below the thresholds adopted by Korea. Korea itself 
described its import bans as preventing imports of Japanese fisheries products "regardless of their 
radioactive contamination ".  Korea also described its additional testing requirements as, "in effect ", 
"a total import ban ". Moreover, explaining the reasons for its measures, Korea cited, among 
others, t he dismal economic condition of Korean fishermen, who, it said, were suffering losses.1 
5. To assist with questions of a scientific nature, Japan submitted expert analyses prepared by 
Professor Brenner and Dr. Buesseler, two eminent experts in the scientif ic fields at issue in these 
proceedings.  Similarly, to assist with questions concerning the scientific evidence of record in 
these proceedings, the Panel appointed five independent experts, each of which overwhelmingly 
supported the key factual propositio ns underlying Japan 's claims. Japan will recall the experts ' 
views throughout this executive summary.  
II. MEASURES AT ISSUE  
A. Korea 's import bans on Japanese food products  
6. Korea maintains two sets of import bans applic able to Japanese food products:  (i) product -
specific  bans applicable to fisheries products and agricultural products from certain Japanese 
prefectures; and, (ii) a blanket import ban  on all fisheries products from eight Japanese 
prefectures.2 The product -specific bans  were introduced incre mentally by Korea after the FDNPP 
accident. The blanket import ban was introduced in September 2013.  Japan 's claims concern the 
import bans, as they apply to 28 species of fisheries products from the eight prefectures subject to 
                                                
1 Japan 's FWS, paras. 1 -8.  Japan 's references to its submissions include references to the exhibits cited 
therein.  
2 Japan's SWS, para. 19.  See also  Japan's FWS, paras. 115-120.   WT/DS495/ R/Add.1  
 
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 the blanket import ban. In  each instance, Korea asserts that the measures take the form of a 
press release. These press releases do not contain all relevant details regarding these measures.  
B. Korea 's pre -market additional testing requirements for food products from 
Japan  
7. Korea  applies different pre -market testing requirements to Japanese food and food imported 
from other countries. Specifically, Korean pre-export testing requirements  apply solely to Japanese 
food products, and do not apply to food product from other countries.3 For Japanese food 
products, pre -export testing for cesium is required; and, if more than 0.5 Bq/kg of cesium is 
detected, additional testing for 17 other radionuclides is also required. Although at-the-border 
testing  in Korea applies to imports from all c ountries, the requirements differ for Japanese food 
products and for food products from other countries.   
8. First, with respect to at-the-border cesium testing , Korea subjects every consignment of 
Japanese  food to cesium testing.4  At-the-border cesium t esting applies to Japanese food products 
irrespective of whether the consignment has already undergone pre -export cesium testing.  For 
food products imported from countries other than Japan , at-the-border cesium testing is 
conducted based on a random selec tion of consignments for testing.  
9. Second , if cesium is detected in Japanese  food imports, the consignment is subject to at-
the-border additional testing  for 17 other radionuclides.5  Like pre -export additional testing, non-
Japanese food imports are not subject to at -the-border additional testing.  
10. Korea asserts that its measures take the form of press releases. The press releases 
announcing the introduction of Korea 's pre-export  cesium testing and additional testing  
requirements, which apply solely to  Japan , and the press releases announcing the introduction of 
Korea 's at-the-border cesium testing and additional testing requirements , do not specify all 
relevant detail regarding these measures.6  
C. Korea 's point -of-sale testing scheme, which is not at issue in these 
proceedings  
11. Korea also conducts random point-of-sale testing  on "the 150 most frequently -consumed 
food products distributed in the Korean market ".7 Point-of-sale testing, which is conducted by 
taking samples from shops at the retail lev el, applies to products of all origins. Point -of-sale testing 
involves cesium testing and, if cesium is detected, additional testing f or certain other 
radionuclides. Thus, point -of-sale testing applies to randomly -selected food products that are 
already in  free circulation in the Korean market.   
12. Point-of-sale testing allows Korea to verify the assumptions on which its approach to 
regulating SPS risks arising from the presence of man -made radionuclides in food is based, in a 
manner that is neither discri minatory nor trade restrictive. Japan does not challenge Korea 's 
point-of-sale testing in these proceedings.  
III. FACTUAL BACKGROUND TO  THE DISPUTE  
A. Japan 's approach to regulating exposure to radionuclides in food  
13. Since the FDNPP accident, Japan ha s put in place comprehensive food safety measures 
covering food production, distribution and export. T o secure compliance with its appropriate level 
of protection ( "ALOP") for radionuclides in food of 1 mSv/year – a measure that represents the 
maximum annu al dose exposure for consumers from radionuclides in food – Japan has adopted:  
(i) Bq/kg thresholds for cesium in food products; (ii) a regime for the monitoring of radionuclides 
in food products; and (iii) area -specific distribution restrictions on certa in food products, where 
thresholds are exceeded.  The effectiveness of Japan 's measures is illustrated by the fact that, in 
                                                
3 Japan 's SWS, para. 28.  
4 Japan 's FWS, paras. 127 -137; Japan 's SWS, para. 30.  
5 Japan 's FWS, para. 129; Japan 's SWS, para. 31.  
6 Japan 's FWS, paras. 165 -178; Japan 's SWS, paras. 32 -38. 
7 Japan 's SWS, para. 45.  WT/DS495/ R/Add.1  
 
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 more than 233,000 consignments of Japanese food products imported into Korea, each tested for 
cesium, Korea has not found a single c onsignment with cesium in excess of its 100 Bq/kg 
threshold.8 The IAEA and FAO found "that the measures taken to monitor and respond to issues 
regarding radionuclide contamination of food are appropriate, and that the food supply chain is 
under control ".9 Similarly, the Panel -appointed experts confirmed the adequacy of Japan 's 
regulatory approach and its sampling practices.10 
14. Central  to Japan 's regulatory regime is its derivation of a cesium threshold that takes into 
account dose contributions from oth er radionuclides.  Japan 's adoption of a cesium threshold 
reflects the dominant role of cesium in releases and contamination from the FDNPP accident, both 
in terms of activity levels and dose contribution.  Based on measurements of the relationship 
between  cesium and the other radionuclides, Japan  calculated a cesium threshold  that ensures 
that the combined exposure from cesium and the additional radionuclides does not exceed 
1 mSv/year, in accordance with Codex Stan 193 -1995.  In deriving the cesium thresh old, Japan 
started with (i) its 1 mSv/year ALOP, and (ii) an assumption of the percentage of food that would 
be contaminated.  Japan then took into account, (iii) for various population subgroups, (iv) the 
types and quantities of food consumed per year, an d (v) the ingestion -dose coefficient for each 
radionuclide.   
15. In undertaking its calculation, Japan used a formula provided by Codex, with the addition of 
a number of assumptions that are far more conservative than dictated by Codex.  First, it assumed  
that 50 percent  of food contains the relevant radionuclides at the threshold level, whereas Codex 
assumes just 10 percent; second, compared to Codex 's assumption, Japan assumed that larger 
amounts of foods are consumed per year; and, third, rather than re gulating groups of 
radionuclides in isolation, Japan took into account the quantitative relationships ( or ratios) 
between the relevant radionuclides.  Japan thereby calculated a threshold for cesium that ensures 
that the combined  exposure from all relevant  radionuclides does  not exceed 1  mSv/year.  Whereas 
Codex 's cesium threshold is 1000 Bq/kg, Japan calculated a 100 Bq/kg cesium threshold.11  The 
Panel -appointed experts unequivocally confirmed the appropriateness and conservativeness of 
Japan 's calculatio ns.12 
16. Contrary to Korea 's assertions, Japan 's calculations of its 100 Bq/kg cesium threshold take 
into account the contribution from cesium and other relevant radionuclides .  The calculations 
estimated  that cesium  and these other radionuclides would contribute to the overall radiation dose 
in an annual average  ratio of 88:12 (50:50, in the case of marine products).  Korea characterizes 
the use of this ratio as involving an assumption of a "scaling factor " between c esium and the other 
radionuclides that is fixed and unchanging.  This is wrong; the estimated relationship is simply an 
average  spread over an entire year 's worth of food , during which each meal could have a very 
different Cs:Sr ratio, without that variabi lity calling into question Japan 's conservative calculations.   
17. This conclusion is confirmed by actual test results under Japan 's monitoring schemes,13 and 
was confirmed by the Panel -appointed experts.14 
B. Japan 's food monitoring program and testing schemes for radionuclides  
18. Following the FDNPP accident, Japan implemented a comprehensive monitoring program for 
the environment and food, and has taken regulatory decisions, including food distribution 
                                                
8 Japan 's FWS, para. 359; Japan 's response to Panel Question 8, para. 37; Japan 's comment on Korea 's 
response to Panel Question 120, para. 162; Korea 's response to Panel Question 120, para. 51. 
9 Japan 's FWS, paras. 57 -60. 
10 Transcript of Panel meeting with the experts, para. 3.70.  See also Id., paras. 1.199, 1.201, 3.88, 
3.89, 3.91, 3.138, 3.152, 3.155, 3.186, 3.219, 4.136; Japan 's response to Panel Question 123, paras. 187, 
188. 
11 Japan's FWS, para. 3 46-375; Japan's SWS, paras. 238 -240; Japan's comments on experts' 
responses, para. 36; Japan's comments on Korea's comments on experts' responses, paras. 93-106; Japan 's 
response to Panel Questions 123 and 148, paras. 179 -183, 322 -331. 
12 Transcript of Pan el meeting with the experts, paras. 1.129, 1.136, 1.137, 1.147, 1.240, 3.15, 3.55, 
4.1, 4.2; Compilation of experts ' replies, experts ' responses to Panel Questions 77, 78 and 81.  
13 Japan 's FWS, paras. 376 -394; Japan 's SWS, paras. 241-244, 253 -289; Japan 's response to Panel 
Question 148, paras. 332 -342. 
14 Transcript of Panel meeting with the experts, paras. 4.58 -4.59; Compilation of experts ' replies, 
experts ' responses to Panel Questions 82 and 83.  WT/DS495/ R/Add.1  
 
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 restrictions, based on information gathered throu gh that program.  Japan 's monitoring program 
ensures that the overall committed dose exposure of Japan 's population from the ingestion of food 
remains below 1 mSv/year, by ensuring that levels of cesium in sampled food products do not 
exceed 100 Bq/kg.  Be tween April 2012 and March 2016, more than 1.2 million samples were 
tested for cesium under this program.  
19. Japan has designated 17 of its 47 prefectures for mandatory monitoring, and monitoring 
extends to food products from all categories of food.15 Japan targets food products that are 
expected, based on scientific understanding and available information, to contribute the highest 
committed dose level from radionuclides in food. Such products are subjected to increased testing.  
Monitoring activities are  continuously informed and refined on the basis of past results.16 The 
Panel -appointed experts confirmed that Japan 's approach represents a widely -accepted food safety 
sampling technique.17   
20. On the basis of cesium test results under Japan 's monitoring  program, Japan has also 
imposed (and, where warranted by testing results, lifted) distribution restrictions for various food 
products.18 
21. In addition to its cesium monitoring program, Japan maintains a number of testing schemes 
that cover cesium and ad ditional radionuclides.  These schemes include:  nationwide market -
basket surveys; nationwide and Fukushima prefecture duplicate diet surveys; strontium testing of 
fisheries products; testing of fish and shellfish by Japan 's Ministry of the Environment; te sting of 
fisheries products close to the FDNPP site by TEPCO; joint testing by Japan and Korea; test results 
included in the Environmental Radioactivity database, for both fisheries and non -fisheries 
products; and a FY 2014 study of various fisheries and n on-fisheries products.19  
22. Test results under these programs reveal that contamination levels for fisheries and non -
fisheries products from Japan are, with rare exceptions, significantly below Japan 's (and Korea 's) 
cesium threshold of 100 Bq/kg, such th at there is no risk that dose exposures for Japanese 
consumers from radionuclides in food will exceed 1 mSv/year.  For the additional radionuclides, 
contamination levels of Japanese fisheries and non -fisheries products are also significantly below 
the Code x thresholds adopted by Korea.  Since Japanese products represent only 0.37 percent of 
the Korean diet, there is no risk that consumption of Japanese food products results in dose 
exposure for Korean consumers in excess of 1 mSv/year.20 
23. The Panel -appoi nted experts have confirmed the adequacy of Japan 's test results, and in 
particular that there are sufficient test results to support the above conclusions.21  With respect to 
the number of test results for each of the 28 species at issue, specifically, th ere are a sufficient 
number of cesium test results for each species across the prefectures at issue; with respect to 
strontium test results, there are test results for each of the 28 species at issue, and additional test 
results from representative species . In light of the low contamination levels, in particular for 
strontium, these test results are representative, and sufficient to support Japan 's factual 
propositions, as the Panel -appointed experts have, once again, confirmed.  
C. Korea 's references to sub sequent releases at the FDNPP site  
24. Korea asserts that its measures are justified by the release of contaminated water from the 
FDNPP site subsequent to the accident.  To begin, any post -accident release events that have 
occurred are 1000 times smaller  than the initial releases, such that they have no impact on the 
factual propositions advanced by Japan.  Moreover, monitoring around the FDNPP site continues on 
a daily and even hourly basis, including through a real -time radioactivity detection system fo r 
                                                
15 These are:  grains, vegetables, fruits, cultivated edib le fungi, marine products, freshwater fisheries 
products, cattle meat, other livestock products, game meat, wild plants and wild edible fungi, milk for infant 
use, tea and drinking water and processed foods  
16 Japan 's FWS, paras. 63 -73; Japan 's response to  Panel Question 7, paras. 16 -27; Japan 's response to 
Panel Question 123, paras. 166 -177. 
17 Transcript of Panel meeting with the experts, paras. 3.88, 3.89, 3.91, 3.138; Compilation of experts ' 
replies, experts ' responses to Panel Questions 15 and 63.   
18 Japan 's FWS, paras. 74 -77; Japan 's response to Panel Question 19, paras. 102 -104. 
19 Japan 's FWS, paras. 63 -73; Japan 's response to Panel Question 123, paras. 184 -186. 
20 Japan 's SWS, para. 243.  
21 Compilation of experts ' replies, experts ' responses to Panel Questions 44, 46, 57, 62, 89.  WT/DS495/ R/Add.1  
 
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 seawater at the mouth of the FDNPP port that measures levels of cesium and total beta emitters, 
including strontium.22   
25. The Panel -appointed experts confirmed that any ongoing releases do not undermine Japan 's 
factual propositions.  The experts also emphasized the importance of Japan 's ongoing monitoring 
of the seawater near the FDNPP site, and the value of real -time public access to the data recording 
that monitoring activity.  
IV. STANDARD OF REVIEW  
26. Korea contends that, in reviewing Japan 's claims, the Panel must defer to the assessments 
made by the domestic regulator in adopting the challenged measures.  Korea asserts that the 
Panel may not undertake a de novo  review of those measures.    
27. Korea 's approach is inconsistent with the Panel 's duty under Article 11 of the DSU, and 
Articles 2.3 and 5.6 of the SPS Agreement , which together shape the Panel 's standard of review.  
Rather than accept Korea 's partisan "judgment " about its measures, the Panel must make its own 
objective  assessment of the matter, including by scrutinizing the scientific evidence of record.23 
28. Non-discrimination, as embodied in Article 2.3, is a cornerstone principle of WTO law.24  In 
assessing compliance with this principle under Article 2.3, or otherwise, WTO adjudicators do not 
simply defer to the judgment of domestic regulators.25  Likewise, in assessing the "necessity " of a 
measure under Article 5.6, panels never simply defer to the judgment of the domestic regulator.  
To the contrary, and as expressly stated by the Appellate Body, in  reviewing claims under 
Article  5.6, panels must make an objective assessment of the matter, and scrutinize all relevant 
evidence.26   
29. Even as suming that deference were required, Korea has pointed to no formal process or 
explanation that preceded the adoption of its measures to which the Panel could defer.  
V. TEMPORAL SCOPE OF EVI DENCE  
30. Japan challenges the continuing inconsistency of the i mport bans and the additional testing 
requirements with continuing obligations under the SPS Agreement , on the basis of evidence 
speaking to the factual situation at the time of, and subsequen t to, Panel establishment on 
28 September 2015.27   
31. Nonethel ess, Korea contends that the Panel cannot consider evidence that did not exist on:  
(i) 6 September 2013, when Korea adopted the blanket import ban and additional testing 
requirements; or (ii) 28 September 2015, the date of Panel establishment.  
32. In any  dispute, the temporal scope of the evidence is influenced by whether a claim is made 
regarding the adoption or the maintenance of a measure (or both), and by the temporal scope of 
the obligations at issue – that is, do the obligations serving as the legal  basis for the complainant 's 
claim apply at a specific time (e.g., at the time of adoption of the measure), or do they impose 
continuing obligations (e.g., on the maintenance of the measure).28  
33. Articles 2.3 and 5.6 of the SPS Agreement impose a contin uing obligation with respect to the 
maintenance of a measure:  similar to Article 6.1 of the SPS Agreement , which the Appellate Body 
found to impose a continuing obligation, these provisions use the present tense in conjunction with 
"ensure ", and contain n o language limiting the temporal scope.29 Furthermore, Article 5.6 applies 
"when establishing or maintaining " SPS measures.  The ordinary meaning of the verbs used 
                                                
22 Japan's FOS, para. 32; Japan's response to Panel Question 9, paras. 42 -49; Japan's SWS, paras. 506 -
508; Japan's comment on Korea's response to Panel Question 117, para. 131. 
23 Japan 's SOS, para. 30.  
24 Japan 's SOS, para. 34.  
25 Japan 's SOS, para. 34.  
26 Japan 's SOS, paras. 29 -43. 
27 Japan 's response to Panel Question 115, paras. 46 -47. 
28 Japan 's response to Panel Question 115, paras. 42 -43. 
29 Japan 's SOS, paras. 17, 20.  WT/DS495/ R/Add.1  
 
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 indicates that these provisions impose an obligation at all times.  Article 7, Annex B, Arti cle 8 and 
Annex C similarly impose continuing obligations.  
34. In these circumstances, the Panel is required to consider the most up -to-date evidence 
available to determine whether, in light of the latest available facts, Korea is engaged in a 
continuing  violation of its continuing  obligations.  
35. Indeed, Article 11 of the DSU requires a panel to make an objective assessment of the 
matter, including an objective assessment of the evidence of record.  This means that where a 
complainant claims that a meas ure is being maintained after panel establishment in a manner that 
is inconsistent with a continuing obligation, the panel must assess the present WTO -consistency of 
the measure on the basis of the most up -to-date evidence available, subject to due process  
considerations.30 
36. This allows the DSB to make timely and relevant  recommendations and rulings in 
accordance with Article 3.3 of the DSU, which states that the "prompt " settlement of disputes is 
"essential "; with Article 3.4 of the DSU , which requires the DSB 's recommendations and ruling to 
"be aimed at achieving a satisfactory settlement of the matter "; and  with Article 3.7 of the DSU, 
which states that the objective of dispute settlement is "to secure a positive solution to a dispute ".  
In contrast, if a panel fails to consider the most recent evidence, resolution of the dispute may be 
delayed, and a "satisfactory settlement " and "prompt " and "positive " solution thwarted, because 
the parties may disagree whether, in view of recent evidence, the measure continues to be 
WTO-inconsistent.   
37. The long -standing and consistent case law under a range of covered agreements – including 
the SPS Agreement , GATT 1 994, Agreement on Agriculture , Anti-Dumping Agreement , SCM 
Agreement , TBT Agreement , and TRIPS Agreement  – supports an assessment of continuing 
inconsistency with continuing obligations on the basis of up -to-date post -establishment evidence.31  
Indeed, und er the SPS Agreement itself, the panels in Australia – Salmon , Japan – Apples , 
Australia – Apples , and Russia – Pigs all relied on evidence post -dating establishment.32 Similarly, 
the Panel in this dispute must assess the consistency of Korea 's measures on  the basis of the 
latest available evidence, including the post -establishment evidence on which Korea itself relies.  
38. In any event, were the Panel to decide, erroneously, that the consistency of Korea 's 
measures must be assessed solely against the fact ual situation existing at the time of 
establishment, the Panel shou ld rely on any evidence, whenever  submitted or prepared, that 
speaks to the situation at the time of establishment.  In this regard, Japan recalls that it has 
submitted evidence that establ ishes violations of the relevant SPS provisions both at the time of, 
and after, Panel establishment.33   
39. Should the Panel decide that it is appropriate to limit its assessment of the consistency of 
Korea 's measures to evidence pertaining to the situati on at the time of establishment, Japan urges 
the Panel to make alternative findings based on all evidence before it.  Such findings would enable 
the Appellate Body to complete the legal analysis, were it to decide that the Panel erred in failing 
to assess post-establishment evidence.  
VI. KOREA'S ARGUMENTS UNDER ARTICLE 5.7 OF THE SPS  AGREEMENT   
40. Throughout the proceedings, Korea has argued that its measures are "provisional ", within 
the meaning of Article 5.7 of the SPS Agreement , because it considers t he scientific evidence 
concerning the situation at the FDNPP to be insufficient, and the number of strontium test results 
for fisheries products to be similarly insufficient.   
41. While any relevant insufficiencies in the scientific evidence must be taken  into account in the 
objective assessment by a panel of claims brought under Articles 2.3, 5.6, 7 and 8, Korea itself 
has acknowledged that the status of a measure as "provisional " does not alter the scope of 
                                                
30 Japan's response to Panel Question 115, para. 48. 
31 Japan 's response to Panel Question 115, paras. 57 -143. 
32 Japan 's response to Panel Question 115, paras. 78 -81. 
33 Japan 's comments on Korea 's response to Panel Question 115, paras. 91-121, and references cited 
therein.  WT/DS495/ R/Add.1  
 
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 application of those provisions.34  In any even t, as the Panel -appointed experts have confirmed, no 
relevant uncertainties or insufficiencies in the evidence exist.35 
42.  Separately, Japan has also established Korea 's failure to comply with the requirements of 
Article 5.7, including to seek informatio n necessary to review  its allegedly provisional measures.  
Since imposition, in September 2013, of the last of the measures at issue in these proceedings, 
Korea has ceased trying to obtain and review additional information.  The only exception concerns 
the activities of the go vernment -mandated and -organized "Korean Group ", which suspended its 
activities in May 2015 following Japan 's request for consultations.  Therefore, even were Article 5.7 
directly applicable to claims brought under Articles 2.3, 5.6, 7 and 8, Korea has not  observed the 
requirement, under Article 5.7, to seek continuously to obtain additional information.36 
VII. KOREA'S IMPORT BANS AND PR E-MARKET ADDITIONAL TE STING REQUIREMENTS A RE INCONSISTENT 
WITH ARTICLE 2.3 OF THE SPS  AGREEMENT   
A. Interpretation of Arti cle 2.3  
1. Article 2.3, first sentence  
43. A panel 's assessment under the first sentence of Article 2.3 involves three cumulative 
steps.37  First, the panel identifies the SPS risks that a respondent seeks to regulate, in order to 
determine the group of p roducts that gives rise to those risks. Second , the panel looks to the 
regulatory treatment afforded to those products to determine whether products of some origins 
are treated less favourably – i.e., whether there is discrimination. Third, the panel consi ders 
whether this discrimination is arbitrary or unjustifiable.  
a. Identical or similar conditions prevail  
44. To ensure an apples -to-apples comparison of similar conditions, a panel must begin by 
identifying the basket of products  of different origins tha t present the same or similar SPS risks  
that are regulated by the SPS measures at issue.  
45. To undertake the appropriate apples -to-apples comparison, a panel must begin by 
identifying the conditions relevant to the dispute.38 The starting point is the respondent 's own 
regulatory framework .39  The respondent 's measure is important, because it reveals the SPS risks 
that the respondent seeks to regulate and, in turn, the products that are potentially subject to 
discriminatory regulatory treatment. The releva nce of the measure to identifying the SPS risks at 
issue is confirmed by the definition of the term "SPS measure " as set out in Annex A(1) of the 
SPS Agreement , which includes measures that "protect human or animal life or health…from risks 
arising from additives, contaminants, toxins or disease -causing organism in foods, beverages or 
feedstuffs ".40  These SPS risks are a central part of the identification of the relevant conditions that 
ensure an apples -to-apples comparison and, ultimately, of the overal l enquiry under Article 2.3.   
46. To assess whether conditions are similar, a panel must begin by identifying, based on the 
SPS measures at issue, the basket of products  of different origins that present the same or similar 
SPS risks .41  To be included in  the basket, a product must present the SPS risk that the respondent  
itself has chosen to regulate through the challenged measure.  This process ensures an 
assessment that connects the SPS risk regulated by the measure at issue with the basket of 
products presenting that risk.  The assessment is designed to review whether the respondent is 
distorting consumer choice in the marketplace by imposing discriminatory restrictions on products 
of some origins that present the regulated SPS risk, when it does not im pose the same restrictions 
                                                
34 Japan 's response to Panel Question 108, paras. 453 -503; Japan 's SWS, paras. 53 -69. 
35 Compilation of experts ' replies, experts ' responses to Panel Questions 26, 44, 46, 57, 59, 62, 89, and 
92. Transcript of the Panel meeting with the experts, paras. 4.1, 4.2, 4. 133, 4.139, 4.143.   
36 Japan's FWS, paras. 102 -108; Japan's SWS, paras. 65-67, 481 -492; Japan's comments on Korea's 
responses to Panel Questions 150 and 151, paras. 293-305. 
37 Japan 's FWS, paras. 200 -202; Japan 's SWS, para. 74.  
38 Japan 's FWS, paras. 203 -207; Japan 's SWS, para. 83.  
39 Japan 's FWS, paras. 203 -204; Japan 's SWS, para. 83.  
40 Japan 's SWS, para. 84.  
41 Japan 's SWS, para. 86.  WT/DS495/ R/Add.1  
 
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 on products of other origins that present the same or similar SPS risks. This approach has been 
taken by previous panels.42  
47. Article 5.5 of the SPS Agreement , along with the SPS Committee 's Guidelines to Further the 
Practical  Implementation of Article 5.5 , confirm Japan 's interpretation.43  Article 5.5 involves 
"different " yet comparable "situations ", where distinctions in the ALOP may result in discrimination 
that is arbitrary and/or unjustifiable.  The Guidelines confirm tha t discrimination comparisons must 
be made between situations that involve "sufficient common elements to render them 
comparable ". The Guidelines further underscore that the comparability turns on the types of 
SPS risk at stake , with the relevant conditions  differing depending on whether the SPS risks 
pertain to the spread of pests or diseases, or to "food-borne risks ". In the case of "food-borne 
risks", the Guidelines confirm that "situations involving the same type of substance or pathogen " 
are comparable.  
48. Japan 's product -based interpretation of Article 2.3 is consistent with, and supported by, the 
origins of that provision in the GATT 1994, and with the context provided by the parallel provisions 
under the GATT 1994.44  Starting with the discrimination  element, Article 2.3 embodies disciplines 
against discrimination on both national treatment (i.e., products from the Member 's "own territory 
and that of other Members ") and most -favoured nation ( "between Members ") grounds.45 Article 
2.3 of the SPS Agreeme nt, therefore, reflects both the national treatment and most -favoured 
nation disciplines also enshrined in Articles III:4 and I:1 of the GATT 1994.  Specifically, Articles 
III:4 and I:1 discipline discrimination between products  of different origins.46  The origin of Article 
2.3 in the non -discrimination provisions of Articles III:4 and I:1, therefore, confirms that Article 
2.3 ultimately also concerns discrimination between products .  
49. In contrast, Korea argues that a panel 's assessment of "similar conditions " does not allow 
for a product -based comparison. Instead, Korea interprets Article 2.3 to permit solely a 
comparison of the environmental conditions prevailing in the territories of two or more Members.47  
Along with ignoring the text and the con text of Article 2.3, Korea 's interpretation would 
erroneously exclude certain types of SPS measures, such as measures regulating additives or 
contaminants in products, from the scope of a provision that was expressly drafted to impose 
"basic … obligations " that apply to all SPS measures.48 
b. Discrimination  
50. Having established that products from different sources are similarly -situated based on 
relevant conditions, such that they are comparable, a complainant must next show that the 
challenged measure "discriminate[s] between Members " in respect of the regulatory treatment 
afforded to the comparable products.  This element of the analysis is satisfied when comparable 
products from different Members are treated "differently ", based on origin.49  
c. Discri mination is arbitrary or unjustifiable  
51. If comparable products of different origins are afforded different treatment, a panel must 
consider whether the difference in treatment is arbitrary or unjustifiable. This may be the case 
where, e.g.: (i) the reas ons for the discrimination are not rationally connected to the measure 's 
objective; (ii) a measure leaves no scope for taking into account conditions in the exporting 
country; or (iii) a Member restricts products from some sources in response to a particul ar risk, 
but does not verify whether products from other sources pose the same risk. Panels have held that 
the same facts may underlie both a finding that conditions are identical or similar, and a finding 
that discrimination is arbitrary or unjustifiable.50  
                                                
42 Japan 's FWS, paras. 204 -205. 
43 Japan 's SWS, paras. 88 -89. 
44 Japan 's response to Panel Question 133, para. 232.  
45 Japan 's response to Panel Question 133, para. 235.  
46 Japan 's response to Panel Question 133, para. 236.  
47 Japan 's SWS, para. 94.  
48 Japan 's comment to Korea 's response to Panel Question 134, para. 233.  
49 Japan 's FWS, para. 208.  
50 Japan 's FWS, para. 211. WT/DS495/ R/Add.1  
 
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 2. Article 2.3, second sentence  
52. SPS measures that arbitrarily or unjustifiably discriminate also constitute a "disguised 
restriction ", under the second sentence of Article 2.3, although the latter may additionally extend 
to measures that do not arb itrarily or unjustifiably discriminate.  Other factors may, therefore, also 
establish the existence of a disguised restriction.51 
B. Korea 's import bans and pre -market additional testing requirements are 
inconsistent with the first sentence of Article 2.3 of the SPS Agreement  
1. Similar conditions prevail with respect to food products of 
Japanese origin and those of Korean or third country origins  
53. As reflected in its regulatory framework, Korea seeks to protect its consumers from adverse 
health consequ ences arising from exposure to radionuclides in food. Thus, Korea has adopted 
thresholds (in Bq/kg) to ensure that dose exposure for Korean consumers from the consumption of 
food products does not exceed 1 mSv/year.  In particular, Korea has adopted the sa me 100 Bq/kg 
cesium threshold adopted by Japan. In addition, Korea has adopted Codex thresholds for the 
additional radionuclides.  Korea has implicitly confirmed the particular relevance it attaches to 
cesium as an indication of the presence of the additio nal radionuclides; under its regulatory 
regime, Korea requires testing for the additional radionuclides where cesium contamination in a 
food product exceeds 0.5 Bq/kg.  
54. In establishing the similarity of conditions with respect to food products of Japane se and 
non-Japanese origin, Japan has, therefore, focused on the particular SPS risks regulated by Korea, 
and has identified two relevant conditions for ensuring a relevant apples -to-apples comparison 
between food products of Japanese and non -Japanese orig in.  Specifically, Korea 's regulatory 
regime demonstrates that the two relevant conditions relate to (i) the presence of cesium and the 
additional radionuclides, and (ii) the risk that cesium and the additional radionuclides exceed 
Korea 's thresholds.52   
55. Japan has, in turn, provided evidence demonstrating two factual propositions  relevant to its 
claims under Article 2.3:  (i) that food products of all origins contain cesium  and the additional 
radionuclides; and, (ii) that food products of all origins pose a similar – and similarly low – risk of 
containing cesium and the additional radionuclides in excess of Korea 's thresholds. Japan has 
demonstrated these factual proposition s based on evidence pertaining to the situation at the time 
of Panel establishment on 28 September 2015, as well as during the pendency of the Panel 
proceedings.53   
a. Food products of all origins contain cesium and other radionuclides  
56. With respect to  the first factual proposition, Japan has demonstrated that food products of 
all origins contain cesium and the additional radionuclides.54 
57. Beginning with cesium  data for Japanese food products , Japan notes that, in the months 
immediately following the  FDNPP accident, cesium (134Cs and 137Cs) levels in food products from 
the most affected areas of Japan increased considerably.  However, the cesium dispersed rapidly 
in the environment, which has been reflected in reduced cesium levels in Japanese food pr oducts, 
as established by test results.  In addition, the quantity of cesium has decreased due to physical 
decay.  In particular, 134Cs has largely decayed away since 2011, due to its half -life of two years.  
Since the two cesium isotopes were initially pr esent in equal proportions, almost half of the cesium 
                                                
51 Japan 's FWS, para. 221.  
52 Japan 's FWS, paras. 228 -239; Japan 's FOS, para. 20; Japan 's SWS, para. 109.  
53 Japan 's FWS, paras. 240 -291; Japan 's response to Panel Questions 38 and 45, paras. 147 -155, 183 -
196; Japan's SWS, paras. 109 -144; Japan's comments on experts' responses, paras. 9 -28; Japan's response to 
Panel Question 136, paras. 254 -282; Japan's comments on Korea's response to Panel Questi on 115, paras. 98-
109. 
54 Japan's FWS, paras. 240 -291; Japan's responses to Panel Questions 38 and 45, paras. 147 -155, 183 -
196; Japan's SWS, paras. 109 -144; Japan's comments on experts' responses, paras. 9 -28; Japan's response to 
Panel Question 136, paras.  254-263; Japan's comments on Korea's response to Panel Question 115, paras. 98-
102. WT/DS495/ R/Add.1  
 
- B-11 - 
 
 has decayed away.  Nonetheless, food products from Japan continue to contain cesium at low 
levels.  
58. Turning to cesium  data for non-Japanese food products , at-the-border testing by both Korea 
and Japa n, as well as Korea 's point -of-sale testing, show what Professor Brenner and Dr.  Buesseler 
demonstrated based on general scientific knowledge about the impact of prior release events, such 
as nuclear weapons testing and Chernobyl:  food of non -Japanese ori gin also contains cesium.  
While Korea does not test all non-Japanese pro ducts for cesium, between March  2011 and July 
2016, it nonetheless detected cesium in excess of 1 Bq/kg but below its threshold of 100 Bq/kg in 
281 samples from Korea and the rest of the world.  In contrast, Korea tests all imports from Japan 
for cesium.  Having tested all Japanese food imports for cesium during the period March 2011 to 
July 2016 , Korea detected cesium between 1 Bq/kg and 100 Bq/kg in 333 samples, which is not 
many mor e than it detected as a result of mere random sampling  of food from non -Japanese 
sources.  Importantly, for both Japanese and non -Japanese food, Korea has detected cesium in 
samples across all food categories.  Similarly, Japan 's at-the-border testing identified a large 
number of samples of food from the rest of the world with cesium below 100  Bq/kg.  
59. Moreover, test results from Japanese testing schemes covering the additional radionuclides 
show that Japanese food products  contai n the additional radionuclides .  Similarly, non-Japanese 
food products  also contain the additional radionuclides .  For instance, point -of-sale test results 
submitted by Korea indicate that a number of Korean and non -Japanese food products for which 
cesium was detected also contained strontium or plutonium.  This evidence is confirmed by what is 
known about the radionuclides released during various release events, as explained by 
Professor  Brenner and Dr. Buesseler, and by test results for Japanese food prod ucts prior to the 
FDNPP accident.  
60. To recall, Japan has established the factual proposition that food of Japanese and non -
Japanese origin contains cesium and the additional radionuclides both as of 28 September 2015, 
and during the pendency of the Panel  proceedings.   
61. The Panel -appointed experts confirmed the accuracy of Japan 's conclusions.55 
b. Food products of all origins pose a similar – and similarly low – risk 
of containing cesium, strontium, and other radionuclides in excess 
of Korea 's threshol ds 
62. Moreover, food of Japanese and non -Japanese origin pose similar – and similarly low – risks 
of containing cesium, strontium and the other radionuclides in excess of Korea 's thresholds.  This 
conclusion is confirmed by evidence compiled on a food cat egory -by-food category basis.56 
63. Data from Japan 's food monitoring program show that, for fiscal year ( "FY") 2015,  more 
than 99% of all cesium test results, across all food categories,  are at the lowest level (0 -25 
Bq/kg), and thus significantly below K orea's threshold of 100 Bq/kg.  The evidence for FY 2015 
demonstrates that there are only five food categories for which cesium  test results in Japanese 
food products  tested in Japan, have, on occasion, exceeded Korea 's 100 Bq/kg threshold.  These 
are:  (i)  wild plants and edible fungi (which includes blueberries and mushrooms); (ii) processed 
foods; (iii) game meat; (iv) grains; (v) freshwater fisheries products.  These food categories are 
the same categories for which higher cesium levels are expected base d on general scientific 
knowledge.  Indeed, Korea 's and Japan 's at-the-border cesium testing and Korea 's point -of-sale 
cesium  testing reveal that food of non -Japanese origin  in these categories also, on occasion, 
exceeds Korea 's 100 Bq/kg cesium threshold.   
64. Moreover, Japan has demonstrated, on the basis of data from Japanese testing schemes 
covering the additional radionuclides , that Japanese food products  do not exceed Korea 's 
thresholds for the additional radionuclides.  Japan has also demonstrated that Japanese fisheries 
products with cesium below 100 Bq/kg do not exceed Korea 's thresholds for the additional 
                                                
55 Compilation of experts' replies, responses to Panel Questions 19, 49 and 52.    
56 Japan's FWS, paras. 240 -291; Japan's responses to Panel Questions 38 and 45, paras. 1 47-155, 183 -
196; Japan's SWS, paras. 109 -144; Japan's comments on experts' responses, paras. 9 -28; Japan's response to 
Panel Question 136, paras. 264 -282; Japan 's comments on Korea 's response to Panel Question 115, paras. 
103-109. WT/DS495/ R/Add.1  
 
- B-12 - 
 
 radionuclides.  Similarly, non-Japanese food products  do not exceed Korea 's thresholds for the 
additional radionucl ides.  For instance, point -of-sale test results submitted by Korea indicate that a 
number of Korean and other non -Japanese food products for which cesium was detected contained 
strontium or plutonium below their respective thresholds.  This evidence is con firmed by what is 
known about the radionuclides released during various release events, as explained by Professor 
Brenner and Dr. Buesseler, and by test results for Japanese food products prior to the FDNPP 
accident.  
65. As noted, Japan has established the  factual proposition that food of Japanese and non -
Japanese origins pose a similar – and a similarly low – risk of containing cesium and the additional 
radionuclides in excess of Korea 's thresholds both as of 28 September 2015, and during the 
pendency of t he Panel proceedings.  
66. The Panel -appointed experts confirmed the accuracy of Japan 's conclusion.57 
2. Korea 's measures discriminate between Japanese and non -
Japanese products  
a. Korea 's import bans discriminate between the banned Japanese 
products and  non-Japanese products  
67. Korea treats differently comparable products from countries where the same or similar 
conditions prevail.  Specifically, the Japanese products that are the subject of Japan 's claim are 
simply banned, regardless of the radiation l evel.  Korea itself described its import bans as 
preventing imports of Japanese fisheries products "regardless of their radioactive contamination ".  
In contrast, food products from Korea and third countries are granted market access if cesium 
testing of ra ndom samples demonstrate the presence of no more than 100 Bq/kg of cesium.58 
68. As a result, Korea discriminates against Japanese food products.  Specifically, the banned 
Japanese products are treated "differently " than food products of Korean and third country origin; 
the import bans alter the conditions of competition to the detriment of the banned products,  by 
denying any opportunity to compete in the Korean market.  
b. Korea 's pre -market additional testing requir ements discriminate 
between Japanese and non -Japanese products  
69. Korea 's pre -market additional testing requirements likewise discriminate against Japanese 
products.  For Japanese food products, additional radionuclide testing is required if more than 1 
Bq/kg of cesium is detected.  In contrast, for food products from other sources, no pre -market 
additional testing requirements apply; rather, products from other sources are subject solely to 
random cesium testing.59  
70. Korea argues that, by virtue of it s point -of-sale testing scheme, all products, regardless of 
origin, are subject to additional testing for other radionuclides, if 1 Bq/kg of cesium is detected.  
However – and regardless whether point -of-sale testing for additional radionuclides is mandato ry60 
– Korea 's assertions about point -of-sale testing do not resolve the discriminatory treatment 
afforded Japanese food products under Korea 's pre-market additional testing requirements, for at 
least five reasons.61   
71. First, Japanese food products are  subject to both pre-market and point -of-sale additional 
testing, whereas non -Japanese food products are never subject to pre -market additional testing.62  
Second , point -of-sale additional testing is conducted solely for strontium and plutonium, whereas 
pre-market additional testing is conducted for 90Sr, 238Pu, 239Pu, 240Pu and 13 other radionuclides.63  
Third, point -of-sale additional testing applies to 150 food products, whereas pre -market additional 
                                                
57 Compilation of experts ' replies, responses to Panel Questions 43, 44 and 49.  
58 Japan 's FWS, para. 292; Japan 's SWS, para. 145.  
59 Japan 's SWS, para. 146.  
60 Japan 's response to Panel Question 136, paras. 244 -253. 
61 Japan 's SWS, paras. 47 -51. 
62 Japan 's SWS, paras. 47 -51. 
63 Japan's SWS, paras. 47 -51; Japan 's response to Panel Question 136, para. 248.  WT/DS495/ R/Add.1  
 
- B-13 - 
 
 testing applies to all Japanese food products.64  Fourth, point-of-sale additional testing applies only 
to randomly -selected samples of food found to contain at least  1 Bq/kg of cesium, whereas 
pre-market additional testing applies to all consignments of Japanese f ood found to contain at 
least 1  Bq/kg of cesi um.65 
72. Fifth, pre-market additional testing is highly trade restrictive. To begin, compliance with pre -
market additional testing is a condition precedent for Japanese imports to secure market access in 
Korea. That is, where an imported Japanese food ite m is found to contain at least 1  Bq/kg of 
cesium in pre -market cesium testing, market access for the entire consignment from which that 
item was drawn is withheld until pre -market additional testing is completed. In contrast, food 
randomly selected for poi nt-of-sale testing is already circulating freely in the Korean market, and 
where a randomly -selected food item is found to contain at least 1 Bq/kg of cesium in point -of-sale 
testing, the consignment from which that food item originated remains in free cir culation, 
unaffected by point -of-sale additional testing on the particular food item at issue.66   
73. Moreover, the costs of pre -market additional testing are borne by the exporter, which 
substantially increases the costs of exporting to Korea – a fact ac knowledged by Korea itself.  In 
contrast, the costs of point -of-sale additional testing appear to be borne by Korea, which 
undertakes the testing.67   
74. Accordingly, the treatment afforded to Japanese goods under Korea 's pre-market additional 
testing req uirements in no way mirrors the treatment afforded to all goods under Korea 's point -of-
sale testing regime. This conclusion applies, whether or not point -of-sale additional testing is 
mandatory. Thus, that Korea 's point -of-sale testing regime is applicable  to all food products does 
not level the playing field for Japanese food.  
3. Korea 's import bans and pre -market additional testing 
requirements discriminate arbitrarily and unjustifiably  
a. Similarity of conditions shows unjustifiable discrimination  
75. Korea treats differently comparable products from countries where the same or similar 
conditions prevail.  There exists no rational SPS -related explanation for the difference in regulatory 
treatment Korea affords products from Japan, and products from else where.68    
76. Korea 's regulatory framework seeks to ensure that Korean consumers are not exposed to 
radiation in excess of 1 mSv/year from the presence of radionuclides in food; to achieve this 
objective, Korea has adopted a cesium threshold of 100 Bq/kg . The low risk that Japanese 
products exceed Korea 's 100 Bq/kg threshold for cesium is similar to the low risk that products 
from other sources exceed Korea 's regulatory threshold.  In particular, products of all origins have 
contamination levels that fall  well within Korea 's chosen tolerance limits .69   
77. Thus, given that products from Japan and of non -Japanese origins have similar levels of 
cesium and additional radionuclides – both in absolute levels and in relation to Korea 's tolerance 
limits – they p resent similar SPS risks.  Accordingly, there is no SPS -related rationale to justify the 
discriminatory imposition of the import bans and the pre -market additional testing requirements 
on Japanese food products that are found to have cesium levels below 10 0 Bq/kg.   
78. The arbitrary and unjustifiable nature of Korea 's measures is further confirmed by the fact 
that the decision whether to subject two fish caught in the same fishing area  to Korea 's at-the-
border additional testing requirements turns on the flag flown  by the vessel that caught the fish, or 
the place where the fish is processed and/or packed  – rather than by the area in which the fish 
was caught.70 
                                                
64 Japan 's SWS, paras. 47 -51. 
65 Japan 's response to Panel Question 136, para. 250.  
66 Japan 's response to Panel Question 136, para. 251.  
67 Japan 's response to Panel Question 136, para. 252.  
68 Japan 's SWS, para. 157.  
69 Japan 's SWS, para. 160.  
70 Japan 's SWS, para. 163.  WT/DS495/ R/Add.1  
 
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 79. Finally, a variety of statements made by Korea further confirm that there exists no rational 
SPS-related explanation for the difference in regulatory treatment Korea affords products from 
Japan, and products from other sources.71 An adjudicator should consider statements made by 
government officials, in their official capacity, which shed light on  the explanation or rationale for 
discrimination.72 
b. Alleged uncertainties do not justify discriminatory treatment  
80. Korea seeks to justify the discrimination of Japanese food products by alleging a number of 
uncertainties and insufficiencies in the e vidence:  (i) uncertainty about the levels of radionuclides 
released during and since the FDNPP accident; (ii) uncertainty regarding the continued and future 
release of radionuclides at the accident site; and, (iii) uncertainty regarding the relationship 
between cesium and other radionuclides.73   
81. None of these alleged claims of uncertainty or insufficiency in the evidence justifies the 
discrimination.74  Alleged uncertainty regarding the levels of contamination in Japanese seawater, 
sediment, soil and air and alleged uncertainty with respect to continuing and future releases of 
radionuclides are irrelevant, because the regulated SPS risks associated with Japanese food are 
not only knowable, but known, and they do not justify any discrimination.  More sp ecifically, given 
that (i) testing is available and reliable, (ii) the testing results are known, and (iii) the testing 
results indicate that more than 99 percent of products from Japan are within Korea 's regulatory 
threshold of 100 Bq/kg, there is no basi s on which any alleged uncertainties in general 
environmental conditions  in Japan would justify the discrimination. This has also been confirmed 
by the Panel -appointed experts.75 
82. Korea 's assertion regarding lack of certainty about the relationship betw een cesium and 
other radionuclides must likewise be dismissed.  As confirmed by the Panel -appointed experts,76 
and Professor Brenner and Dr. Buesseler,77 any uncertainty that may exist regarding this 
relationship exists similarly for food products from all  origins, and does not undermine Japan 's 
factual propositions.    
c. Radioactivity from both the FDNPP accident and other release 
events is part of the "ordinary environment "  
83. Korea asserts that the challenged measures are designed to ensure that exposure to 
radiation from food consumed by Korean consumers remains at a level that exists in the "ordinary 
environment ".78 To Korea, the contribution to radionuclide contamination lev els made by the 
Chernobyl accident and by weapons testing is part of the "ordinary environment "; in contrast, the 
contribution to radionuclide contamination levels made by the FDNPP accident is not.79  
84. Japan recalls that the "ordinary environment ", i.e., a world without man -made radionuclides, 
ceased to exist in the 1940s. Radiation release events since the 1940s have dispersed 
radionuclides widely. All of these man -made radionuclides are now a "given " in the environment – 
until such time as they undergo radioactive decay.  Thus, the "ordinary environment " to which 
Korea refers has long ceased to exist.80  
85. Moreover, these events have, in general terms, released the same main group of man -made 
radionu clides into the environment. In this respect, there exists no scientific basis to consider 
                                                
71 Japan 's SWS, paras. 168 -172; Japan 's FWS, para. 305.  
72 Japan 's SWS, para. 207.  
73 Japan 's SWS, para. 178.  
74 Japan 's SWS, paras. 181-182. 
75 Compilation of experts ' replies, responses to Panel Questions 12, 15, 26, 44, 59, 91, 92.   
76 Compilation of experts ' replies, responses to Panel Questions 44, 57, 89; Transcript of the meeting 
with the Parties, paras. 3.176, 3.180.  
77 Japan 's SWS, para.  188. 
78 Japan 's SWS, paras. 190 -191. 
79 Japan 's SWS, para. 192.  
80 Japan 's SWS, para. 193.  WT/DS495/ R/Add.1  
 
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 radionuclides from the FDNPP accident to be any less part of the "ordinary environment " than 
other nuclear releases.81 
C. Korea 's import bans and pre -market addition al testing requirements are 
inconsistent with the second sentence of Article 2.3 of the SPS Agreement  
86. All arguments and evidence demonstrating the inconsistency of the import bans and the pre -
market additional testing requirements with the first senten ce of Article 2.3 also establish that 
Korea 's import bans and pre -market additional testing requirements amount to a disguised 
restriction on international trade.  Moreover, both measures are prohibitive and – as has been 
admitted by Korea – aim to exclude  Japanese products from the Korean market.82   
VIII.  KOREA'S IMPORT BANS AND PR E-MARKET ADDITIONAL TE STING REQUIREMENTS A RE INCONSISTENT 
WITH ARTICLE 5.6 OF THE SPS  AGREEMENT  
A. Interpretation of Article 5.6 of the SPS Agreement   
87. Article 5.6, read with  footnote 3, sets out a three -pronged test.  To establish that an SPS 
measure is more trade -restrictive than required, a complainant must demonstrate that there is an 
alternative measure that: (i) achieves the regulating Member 's ALOP; (ii) is significantl y less trade -
restrictive than the challenged SPS measure; and (iii) is reasonably available, taking into account 
technical and economic feasibility.83 
88. The proposed alternative must, first, achieve the regulating Member 's ALOP.  Demonstrating 
this eleme nt of Article 5.6 involves the following three conceptual steps:  (i) identifying the 
regulating Member 's ALOP; (ii) determining what level of protection would be achieved by the 
proposed alternative measure; and (iii) comparing the two, to verify that the  alternative measure 
achieves the regulating Member 's ALOP.84  
B. Korea 's import bans and pre -market additional testing requirements are 
inconsistent with Article 5.6 of the SPS Agreement  
89. Japan has demonstrated that Korea 's import bans and pre -market additional testing 
requirements are inconsistent with Article 5.6 because cesium testing achieves Korea 's ALOP and 
is significantly less trade -restrictive.  
1. Japan 's alternative measures achieve Korea 's ALOP  
a. Korea 's ALOP for radionuclide contamination in food is 1 mSv/year  
90. Korea 's ALOP aims to ensure that the dose exposure of Korean consumers from 
radionuclides in food remains below 1 mSv/year.85  In September 2013, Korea provided Japan with 
a document that describes 1  mSv as the "[l]imit of annual radiation dose that is allowed through 
food for the public ". In September 2014, Korea informed Japan that its ALOP for exposure to 
radiation from the ingestion of food contaminated with radionuclides is "based on the Codex 
Standards ". Codex, in turn, sets out exposure guidelines for food "based on an intervention 
exemption level of 1 mSv in a year ".  In 2015 and 2016, Korea issued explanatory materials that 
describe the "dose limit for general public (except for medical purpos es)" as 1 mSv/year. Finally, 
in its submissions to the Panel, Korea has clarified that "[t]he 1 mSv/year radiation exposure limit  
is a Codex benchmark that Korea has adopted , in order to quantify the  highest radiation exposure 
it is willing to accept ".  Korea's characterization echoes the SPS Agreement , which defines an ALOP 
as a Member 's "acceptable  level of risk ".   
                                                
81 Japan 's SWS, para. 194.  
82 Japan 's SWS, paras. 211 -212. 
83 Japan 's FWS, para. 61.  
84 Japan 's FWS, paras.  318-328. 
85 Japan 's FWS, paras. 337 -339; Japan 's FOS, paras. 56 -57; Japan 's SWS, paras. 220 -234; Japan 's 
SOS, paras. 53-65; Japan's comments on Korea's response to Panel Questions 140 144, paras. 249-263, 271 -
276. WT/DS495/ R/Add.1  
 
- B-16 - 
 
 91. The Appellate Body has explained that a Member 's consistent expression of its ALOP, made 
outside the context of dispute settlement procee dings, should be accorded significant weight.  
Thus, Korea 's repeated statements, over several years prior to this dispute, to the effect that its 
ALOP is 1 mSv/year, deserve significant weight.  
92. Nonetheless, Korea argues before the Panel that its ALOP is not 1 mSv/year, but is instead 
"as low as reasonably achievable " ("ALARA ").   
93. In response to Panel questions, the ICRP clarified that ALARA "is a process , rather than an 
endpoint ", and that it refers to a "culture … a reference framework, a state of  mind, and attitude ".  
The ALARA principle, therefore, cannot be an ALOP.  Annex A(5) to the SPS Agreement defines an 
ALOP as a "level of protection ".  The word "level" indicates a "position " on a "scale" in respect of 
an extent or amount.  ALARA does not identify a particular "level" of protection, but describes a 
"process " for "optimization " of protection.   
94. Moreover, under Article 5.6, the "level" of protection – whether expressed qualitatively or 
quantitatively – must be capable of serving as a benchmark  or point of comparison  for assessing 
necessity.  According to the Appellate Body, an ALOP cannot be determined "with such vagueness 
or equivocation that the application of the relevant provisions of the SPS Agreement … becomes 
impossible ".  Thus, whi le Members can set their own ALOP, it cannot be so imprecise that it is 
unable to serve as a benchmark.  
95. While ALARA cannot be an ALOP, Japan does not question that, in Korea, the ALARA  
principle serves its intended purpose as a process for optimizing protection.  Korea 's commitment 
to the ALARA principle does not, however, alter its maximum exposure level of 1 mSv/year, which 
it has explicitly identified as "the highest radiation exposu re it is willing to accept ", or its ALOP.  
96. Finally, Korea also argues that its ALOP is to maintain radionuclides in food at levels that 
exist in the "ordinary environment ".  The Panel -appointed experts confirmed that the notion of 
"ordinary " background radiation levels is not a recognized scientific concept.  Indeed, "ordinary " 
background radiation levels differ significantly even within a country, making the concept arbitrary, 
variable, and unsuited to serve as an ALOP.  In any event, the experts confir med that an annual 
dose limit of 1 mSv/year for exposure to man -made radiation in food does not add meaningfully to 
the background doses received.86 
b. Cesium testing is a less trade -restrictive alternative  
97. As a less trade -restrictive alternative ( "LTRA") to both Korea 's import bans for the 
28 fisheries products and Korea 's at-the-border additional testing for Japanese food products, 
Japan has proposed that Korea test for cesium to ensure that Japanese food products contain no 
more than 100 Bq/kg of cesium.87 
98. Korea disputes that cesium testing alone could constitute a proper "alternative " to the at -
the-border additional testing requirements; to Korea, cesium testing is not an "alternative " to, or 
"different " from, the measure currently applied.88   
99. Korea errs.  To understand whether an LTRA is "alternative " to, and "different " from, a 
challenged measure, it is necessary to identify the features of  the challenged measure, and to 
compare them with the features of the LTRA.  In Korea, the requirem ent to test for additional 
radionuclides is triggered where cesium levels are between 0.5 Bq/kg and 100 Bq/kg.  As a result, 
cesium testing is an integral element of additional testing, because the requirement to undertake 
additional testing depends on the  results of a prior cesium test.  Replacing a measure that 
combines, in an integrated fashion, cesium testing and additional testing, with one part of that 
measure – cesium testing alone – is, by virtue of the omission of additional testing, an LTRA that 
is "alternative " to, and "different " from, the existing measure.  Put simply, a measure comprising 
element A is different from a measure comprising elements A and B.  
                                                
86 Compilation of experts ' replies, paras. 3.12, 3.15; Transcript of Panel meeting with the expe rts, 
paras. 2.7,  2.30, 2.33.  
87 Japan 's FWS, paras. 314, 333, 450; Japan 's SWS, para. 219.  
88 Korea does not dispute that cesium testing is properly an alternative measure to its import bans.  WT/DS495/ R/Add.1  
 
- B-17 - 
 
 100. Korea 's reliance on the Appellate Body Report in Brazil – Tyres is inapposite. In tha t dispute, 
the EC challenged an element of a set of measures that each contributed independently  to the 
achievement of the policy objective at issue.  The EC proposed eliminating some elements of the 
set of measures, without replacing them with other measu res that made an equivalent 
independent contribution to the objective .  Removing a single element of this set of measures 
necessarily reduced the overall contribution from the remaining measures to the policy objective, 
since each element contributed indep endently.   
101. In contrast, and as discussed in the next section, when cesium levels in Japanese food 
products are below 100 Bq/kg, additional testing makes no independent contribution  to Korea 's 
ALOP, and is, thus, redundant; additional testing is simpl y not needed to protect the public health 
objective underlying Korea 's ALOP of 1 mSv/year.  Unlike in Brazil – Tyres , proposing to remove 
additional testing does not undermine the achievement of Korea 's ALOP, because it removes a 
redundant element of the m easure.  
102. As a practical matter, the fact that cesium testing alone is "different " from the existing 
measure is evident to Japan 's fishermen and farmers, because elimination of the additional testing 
requirements would significantly enhance competitive opportunities for their products.   
103. The Panel should, therefore, reject this attempt by Korea to evade scrutiny of its measures, 
and find that cesium testing properly constitutes "another measure ", within the meaning of Article 
5.6.89 
c. Testing to ensure that cesium levels remain below 100 Bq/kg is an 
alternative measure that achieves Korea 's ALOP  
104. As just alluded to, cesium testing alone achieves Korea 's ALOP of ensuring that the dose 
exposure of Korean consumers from radionuclides i n food remains below 1 mSv/year. Indeed, food 
products from Japan, with cesium levels below 100 Bq/kg, pose no risk that dose exposure of 
Korean consumers would exceed Korea 's ALOP of 1 mSv/year.90 
105. Japan 's evidence for this factual proposition rests o n two main approaches. First, Japan has 
relied on evidence from the derivation of its own 100 Bq/kg cesium threshold, which is designed to 
ensure, based on conservative assumptions, that exposure of Japan 's population to radionuclides 
in food remains below  1 mSv/year. Second , numerous test results for cesium and other 
radionuclides (in particular strontium, the only other radionuclide that makes more than a 
negligible contribution to the overall dose) show that, where cesium is below 100 Bq/kg, Japanese 
food products pose no risk that dose exposure for consumers from cesium and other radionuclides 
in food would exceed 1 mSv/year.  
106. Concerning the first of these approaches,  Japan 's calculations of its 100 Bq/kg threshold 
follow a standard methodology, and  are scientifically sound. Japan 's adoption of a cesium 
threshold reflects the dominant role of cesium in releases and contamination from the FDNPP 
accident, both in terms of activity levels and dose contribution. Based on measurements of the 
relationship between cesium and the other radionuclides, Japan  calculated a cesium threshold  
designed to ensure that the combined exposure from cesium and the additional radionuclides 
would not exceed 1 mSv/year.  In undertaking its calculation, Japan used a formula pr ovided by 
Codex, with the addition of a number of assumptions that are far more conservative than dictated 
by Codex:  (i) Japan assumed that 50 percent  of food contains the relevant radionuclides at the 
threshold level, whereas Codex assumes just 10 percen t; (ii)  compared to Codex 's assumption, 
Japan assumed that larger amounts of foods are consumed per year; and, (iii) rather than 
regulating groups of radionuclides in isolation, Japan took into account the quantitative 
relationships (or ratios) between the  relevant radionuclides.  Japan thereby calculated a threshold 
for cesium that ensures that the combined  exposure from all relevant radionuclides does not 
exceed 1 mSv/year.  Whereas Codex 's cesium threshold is 100 0 Bq/kg, Japan calculated a 
100 Bq/kg cesi um threshold.   
                                                
89 Japan's SCS, paras. 23 -27; Japan's response to Panel Questio n 146, paras. 295 -320. 
90 Japan's FWS, paras. 340 -394, 451 -452; Japan's FOS, paras. 58 -68; Japan's responses to Panel 
Questions 54, 61, paras. 244 -277, 285 -300; Japan's SWS, paras. 235 -289; Japan's comments on experts' 
responses, paras. 29 -65; Japan's resp onse to Panel Question 148, paras. 321-342; Japan 's comments on 
Korea 's response to Panel Question 115, paras. 110 -113. WT/DS495/ R/Add.1  
 
- B-18 - 
 
 107. The Panel -appointed experts unequivocally confirmed Japan 's calculations as supporting the 
proposition that food products from Japan, with cesium levels below 100 Bq/kg, pose no risk that 
dose exposure of Korean consumers would exceed Korea 's ALOP of 1 mSv/year.  The experts 
described Japan 's calculation and the conclusions drawn as "standard ", "straightforward ", 
"appropriate ", "adequate ", and "scientifically supported ".91   
108. Although Korea disagrees, and argues that Japan 's calcula tion of Japan 's cesium threshold is 
flawed, Korea has steadfastly declined to provide Korea 's calculation of Korea 's own thresholds for 
cesium  and other radionuclides.  In any event, Japan has demonstrated that Korea is wrong in 
asserting that Japan erroneously relied on a fixed ratio of cesium to the additional radionuclides, 
and applied a so -called "scaling factor method ".  Instead, Japan appr opriately relied on estimated 
relationships that reflect an average  spread, over an entire year 's worth of food , during which each 
meal could have a very different Cs:Sr ratio, without that variability calling into question Japan 's 
conservative calculation . 
109. Concerning the second approach identified in paragraph 105, Japan relied on data from 
actual measurements of radionuclide activity levels in food and resulting dose exposure to 
demonstrate that food products from Japan, with cesium levels below 100 Bq/kg, pose no risk that 
dose exposure of Korean consumers could exceed Korea 's ALOP of 1 mSv/year.   
110. Japan, and its experts Professor Brenner and Dr. Buesseler, adopted an approach that 
considered (i) the source term (i.e., the radioactivity released  from the FDNPP); (ii) contamination 
levels in the environment, including in seawater and sea sediment; (iii) contamination levels in 
food products, including fisheries products; and (iv) resulting dose exposure for humans from the 
consumption of Japanese food products.  Japan and its experts also considered available scientific 
knowledge regarding the behaviour of radionuclides in the environment and in food.  The Panel -
appointed experts confirmed this holistic approach.92 
111. Adopting a framework develop ed by Merz et al (2015), a nd proposed by Korea, 
Professor  Brenner and Dr. Buesseler initially demonstrated compliance of Japanese food products 
with Korea 's ALOP by plotting cesium levels in individual samples against a strontium -to-cesium 
ratio from the s ame sample.  Following criticism from Korea, and suggestions from the Panel -
appointed experts, Japan 's experts then established the same conclusions, using a modified Merz 
plot based on absolute  cesium and strontium levels.   
112. As shown below, Professor  Brenner and Dr. Buesseler analysed, on the basis of these 
modified Merz plots, (i) fisheries products caught largely in Fukushima prefecture, and (ii) 
duplicate meals collected from consumers in Fukushima prefecture . Professor Brenner and 
Dr. Buesseler di d so based on evidence (i) pertaining to the situation at P anel establishment on 
28 September 2015, and (ii) during the pendency of the Panel proceedings.  At either point in 
time, and even if that same fish or meal were eaten for an entire year , the graph s show no test 
results where exposure levels would be anywhere close to 1 mSv/year.  
 
  
                                                
91 Compilation of Panel experts ' replies, paras. 5.27, 5.36, 5.18. 5.15, 5.21 and 5.26.  
92 Transcript of Panel meeting with experts, par as. 1.148, 1.151, 3.176, 3.177, 3.180.  WT/DS495/ R/Add.1  
 
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113. Professor Brenner and Dr. Buesseler also performed the same analyses for every other 
dataset relating to Japan 's cesium and strontium testing schemes, with ide ntical conclusions .   
114. Moreover, Japan 's experts calculated total annual dose exposure, using every available data 
set.  For example, they determined that the dose exposure from average meals consumed in 
Fukushima prefecture in 2015 was 0.004 mSv, sign ificantly below 1 mSv/year.  Given that only 
0.37 percent of Korean food consumption is of Japanese origin, dose exposure for Korean 
consumers would be 1/250th of 0.004 mSv/year, and thus negligible.   
115. While Korea has highlighted small differences bet ween Japanese and Korean diets – 
including the consumption in Korea of whole fish, including bones and shells – these differences 
are not meaningful enough to affect Japan 's conclusions.  Indeed, with respect to fisheries 
products, Japan calculated dose ex posure, assuming, conservatively, that all 90Sr contained in 
bones and shells is consumed.  Japan, thereby, overestimated dose exposure from strontium 
bound in bones and shells that are not consumed.    
116. The Panel -appointed experts supported not only the holistic approach adopted by Japan and 
its experts, but also the adequacy of the methodologies employed and the sufficiency of the 
evidence, including the number of test results.  Moreover, the Panel -appoi nted experts provided 
independent calculations, using the evidence submitted by Japan.  Like Japan, the Panel -appointed 
experts concluded that food products from Japan, with cesium levels below 100 Bq/kg, pose no 
risk that dose exposure of Korean consumers  could exceed Korea 's ALOP of 1 mSv/year.93  
2. Japan 's alternative measure is significantly less trade restrictive  
a. Cesium testing is significantly less trade -restrictive than Korea 's 
import ban  
117. The challenged measures involve bans on the import of fisheries products.  The alternative 
measure – i.e., testing to verify that cesium levels do not exceed Korea 's 100 Bq/kg threshold – is 
significantly less trade restrictive than an outright ban.94    
b. Cesium testing is significantly less trade restrictive than Korea 's 
pre-market additional testing requirements   
118. Korea 's pre -market additional testing requirements are trade restrictive because:  (i) the 
duration of pre -market additional testing for  the other Codex radionuclides means that exporting 
to Korea takes additional  time beyond the time required for cesium testing; (ii) the conduct of pre -
market additional testing for the additional radionuclides imposes increased costs on export to 
Korea, b eyond the costs incurred for cesium testing; and, (iii) pre -market additional testing must 
be conducted in Japan .  The time and cost factors are each sufficient, on their own , to 
demonstrate that cesium testing is significantly less trade restrictive than the pre -market 
                                                
93 Compilation of Panel experts ' replies, responses to Panel Questions 37, 77, 90.   
94 Japan 's FWS, para. 395; Japan 's SWS, para. 290.  WT/DS495/ R/Add.1  
 
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 additional testing requirements.95  It is not surprising that Korea itself describes its additional 
testing requirements as, "in effect ", "a total import ban ". 
119. In contrast to Korea 's pre -market additional testing requirements, cesium te sting can be 
completed in a short period of time, is inexpensive, and is already routinely carried out by Korea at 
the border on all food imported from Japan.  Thus, none of the increased time and expense 
associated with Korea 's additional testing would ar ise under Japan 's alternative measure.96   
i. Time required for pre -market additional testing  
120. Testing for additional radionuclides such as strontium pursuant to Korea 's pre -market 
additional testing requirements involves a complex laboratory procedur e that takes considerable 
time.97 For example, cesium and strontium testing differ because cesium is a Gamma emitter, and 
strontium is a Beta emitter.  With Gamma emitters, little or no sample preparation is required for 
cesium testing. In contrast, testin g for Beta emitters requires a two -step process: first, the 
radionuclide must be extracted into a form that can be measured; and, second , the measurement 
must be performed.98   
121. Korea acknowledges that "[t]esting for other radionuclides takes more than  6 weeks ", and 
concedes that more time is required to carry out strontium testing as compared to cesium 
testing.99 The Panel -appointed experts agree that strontium testing is more complex and time 
consuming than cesium testing.100     
ii. Costs involved in  pre-market additional testing  
122. Undertaking the pre -market additional testing is also more costly than cesium testing. The 
costs of Korea 's additional testing amount to roughly half  of the average consignment value of 
fisheries products  (USD 16,000) e xported from Japan to Korea.101 This is equivalent to an 
additional 50% tariff on Japanese food products.   
iii. Shipping products back to Japan  
123. In the only affirmative indication of the required location for at -the-border additional testing, 
Korea s tates that it requires additional testing to take place in Japan .102  Requiring that food be 
shipped back to Japan for at -the-border additional testing lengthens the time for the testing, as 
well as the costs associated with that testing.103   
124. Without  support, Korea  asserts that pre -market additional testing can be conducted in Korea 
by testing institutes authorized by Japan to ensure consistency with Japanese  food safety 
regulations. Japan is not aware of any provision of Korean law that would permit Japan  to 
authorize testing institutes to ensure consistency with Korean regulations on radionuclide content 
in food; nor is Japan aware of the process to follow under Korean law for Japan to deliver such 
authorizations.104 
3. Japan 's alternative measure is  available  and feasible  
125. Korea already undertakes routine cesium testing on all Japanese imports. Thus, Japan 's 
alternative measure is self -evidently reasonably available and technically and economically 
feasible.  
                                                
95 Japan 's SOS, para. 71.  
96 Japan 's SWS, para. 293.  
97 Japan 's SOS, para. 69.  
98 Compilation of Panel experts ' replies, paras. 5.85 and 5.86.  
99 Japan 's SOS, para. 69.  
100 Compilation of experts ' replies, response to Panel Question 87.  
101 Japan 's SWS, para. 299; Japan 's SOS, para. 69.  
102 Japan 's SWS, para. 301.  
103 Japan 's SWS, para s. 301 -302. 
104 Japan 's SWS, para. 303.  WT/DS495/ R/Add.1  
 
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 IX. ARTICLE 7 AND ANNEX B OF THE SPS  AGREEMENT   
A. Korea 's failure to publish the import bans and the pre -market additional 
testing requirements, in violation of Article 7 and Annex B(1)  
1. A Member must promptly publish its SPS regulations, and Korea 
has failed to do so  
126. Annex B(1) requires the publication of SPS regulations in their entirety. To begin, 
Annex  B(1) explicitly states that a Member must publish its SPS "regulations ".  Footnote 5  clarifies 
that SPS "regulations " are "sanitary and phytosanitary measures such as laws, decrees or 
ordinances ". As such, it is the regulation  itself that must be published, and not a summary, 
synopsis, or other description of the text.   
127. This understanding is supported by relevant context, including the contr ast between 
Annex  B(1) and Annex B(5)(a).  Whereas the former requires the publication of the SPS regulation 
itself, the latter merely requires the publication of a "notice " detailing a proposed SPS measure.  
Once the SPS measure is "adopted ", and the final measure is availab le, Annex B(1) states that the 
SPS "regulation " must be published.  The drafters ' choice of the word "regulation " in Annex B(1), 
as opposed to "notice " or "summary ", must be given effect . 
128. Other terms in Annex B(1) provide further context for this inte rpretation.  Annex B(1) 
requires that publication be sufficient to enable Members to become "acquainted " with the 
SPS regulation.   Without publication of the SPS regulation itself, Members are unable to determine 
whether they are, in fact, acquainted with  the regulation, since they are unable to ascertain if 
pertinent information from the SPS regulation has been omitted in the publication.     
129. Korea has published a number of press releases announcing the introduction of its import 
bans and its additio nal testing requirements.  However, the content  of these press releases is 
inadequate, as they fail to provide a vast amount of important information.  Since Korea 's press 
releases do not publish the full text of the measures, Korea has acted inconsistentl y with Article 7 
and Annex B(1).105 
2. The publication must enable a Member to become "acquainted 
with" the SPS regulation, and Korea 's press releases fail to do so  
130. Even if Annex B(1) did not require the publication by Members of t he full text of an 
SPS regulation, Korea 's press releases do not allow interested Members to become "acquainted " 
with its SPS regulations.  The phrase "acquainted with " means "familiar with a matter, state, etc., 
esp. to an extensive degree ".  As such, publication must be accomplished in a manner that allows 
interested Members to become "familiar " to "an extensive  degree " with the regulatory treatment to 
which their goods will be subject under the SPS regulation.   
131. The word "extensive " highlights that the required degree of familiarity is considerable.  
Based on the publication, an interested Member must be able to grasp:  in what circumstances the 
regulation applies, including the product scope and trigger conditions (e.g., rules of orig in or 
contamination thresholds governing whether the rules apply); how its goods will be treated when 
the rules apply; what substantive and procedural requirements its exports and exporters are 
required to meet; and, how its exporters may meet those requir ements.  The case law considering 
similar obligations under Article X:1 of the GATT 1994 confirms that, to become acquainted with a 
measure, publication must allow interested parties to gain "more or less complete " knowledge of 
what is required for goods t o enter the relevant market.   
132. The press releases announcing the challenged Korean measures fall far short of providing 
sufficiently detailed and comprehensive information to allow interested Members to gain 
"extensive " or "more or less complete " familiarity and knowledge of what is required for their 
goods to enter the Korean market.  Specifically, the press releases introducing the measures fail to 
specify information about, inter alia:  product scope; applicable rules of origin; applicable 
threshold s to trigger additional testing; the additional radionuclides for which additional testing is 
                                                
105 Japan 's FWS, paras. 164 -178; Japan 's SWS, paras. 310 -321. WT/DS495/ R/Add.1  
 
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 required; where the additional testing should take place; and, the methodology or conditions for 
the testing.  The press releases do not even provide the degree o f information r equired by 
Annex  B(5) for proposed SPS regulations.   
133. Korea admits that the press releases do not provide sufficient information to enable 
interested parties to become acquainted with its regulations. Korea has said that Korean 
enforcem ent authorities are provided with additional information – not published in the press 
releases – so that they can understand what is required under the measures, and how they are to 
be applied.  Regrettably, Japan and its exporters were not provided with t his additional information 
so that they could also become acquainted with the measures.  
134. Korea argues that it should be exempted from the requirement to publish sufficient details 
about its SPS regulations because of the emergency situation arising fro m the FDNPP accident.  
However, nothing in Annex B absolves a Member from the obligation to publish  an emergency 
measure.  In any event, Korea has failed, in the many years since the FDNPP accident and the 
adoption of its measures, to offer publication tha t is sufficiently detailed and comprehensive to 
enable Members to become acquainted with the regulation.106 
3. An SPS regulation must be published through a medium that allows 
an interested Member to locate it, both on adoption, and through 
the life of the  regulation, and Korea has failed to do so  
135. Annex B(1) requires publication of an SPS measure through a medium that permits 
Members readily to locate and identify the measure, when first published, and over the lifetime of 
the measure.  Members and th eir economic operators cannot be expected to trawl through 
archives of press releases, across any number of government mini stry websites, in search of 
SPS measures.   
136. Korea has published multiple press releases concerning the same measure, on multiple  
government websites, in varying locations on each website, and with each press release offering 
different, but always very limited, information about the measure.  While use of the internet to 
publish a measure in a specifically designated location  could encourage transparency, the mere 
fact of publishing anywhere and anyhow  on the internet does not exhaust the obligation under 
Annex B(1).  Korea 's approach reduces Annex B(1) to inutility, by relieving Korea of the 
publication requirement under Annex B(1),  and instead placing the burden on other Members and 
their economic operators to search for scattered information on government websites, in hopes of 
becoming acquainted with the measure.107   
B. Korea 's SPS Enquiry Point failed to provide Japan with copie s of Korea 's 
measures and to respond fully to the reasonable questions posed by 
Japan, in contravention of Article 7 and Annex B(3)  
1. An SPS enquiry point is required to provide full responses to all 
reasonable questions, and Korea 's Enquiry Point failed  to do so  
137. Annex B(3) requires the provision, by an SPS enquiry point, of meaningful responses to 
reasonable questions posed by another Member.  A meaningful response is a response that is both 
substantively adequate, and that addresses the question i n its entirety. Annex B(3) also requires a 
Member to provide any "relevant " documents regarding, inter alia, the SPS regulations it has 
adopted. The word "relevant " means "legally sufficient, adequate, or pertinent "; "connected with 
the matter in hand; closely relating to the subject at hand ". Thus, like any documents provided, 
responses to reasonable questions must be adequate in light of the question posed. An 
interpretation that reduces Annex B(3) to a procedural  obligation to provide a or some  respon se, 
irrespective of the substantive content  of its response, would allow Members to circumvent their 
obligations under Annex B(3).   
                                                
106 Japan 's FWS, paras. 163 -178; Japan 's SWS, paras. 322 -342; Japan 's response to Panel Question 
156, paras. 346 -361. 
107 Japan 's SWS, paras. 343 -353; Japan 's comment to Korea 's response to Panel Question 114, paras. 
56-62. WT/DS495/ R/Add.1  
 
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 138. Japan posed a series of questions to Korea 's SPS Enquiry Point; for all but one of its 
questions, Japan either receive d no response, or a substantively inadequate response. As such, 
Korea acted inconsistently with Annex B(3).  
139. Korea argues that a single instance in which an SPS enquiry point fails to provide a 
(substantively adequate) response does not trigger a viola tion of Annex B(3).  Korea errs. Annex 
B(3) requires that an SPS enquiry point provide a substantively adequate and complete response 
to "all" reasonable questions posed by interested Members. An SPS enquiry point cannot pick and 
choose to which questions it wishes to respond. In any event, Japan has demonstrated much more 
than "a single instance " of an inadequate response.108 
2. An SPS enquiry point is required to provide relevant documents, 
and Korea 's Enquiry Point failed to do so  
140. Annex B(3) requir es a Member to provide any "relevant " documents regarding, inter alia, 
SPS regulations it has adopted and that are the focus of questions from another Member. The 
word "relevant " clarifies that Annex B(3) requires a Member to provide documents that are 
pertinent and relate to matters raised in reasonable questions posed.  While the refusal to provide 
relevant documents is inconsistent with Article B(3), so, too, is the provision of documents that are 
not pertinent or relating to the matters raised in those questions. Burying documents that are 
relevant to the question posed, amongst voluminous documents that are not relevant, is 
inconsistent with Annex B(3), because the receiving Member is unable to determine  which of the 
documents are relevant to its questi ons, and which are not. 
141. Japan requested a number of different categories of documents from Korea. In response, 
Korea 's Enquiry Point provided 10,000 pages of documents in Korean language, without indicating 
which parts of those 10,000 pages were relev ant to Japan 's requests, and failed to provide certain 
categories of documents altogether. Japan subsequently asked Korea 's Enquiry Point to indicate 
which parts of the 10,000 pages were relevant, and also reiterated its request for documents not 
provided.  Korea 's Enquiry Point declined to respond. Korea has, therefore, acted inconsistently 
with Annex B(3).109 
X. THE ADDITIONAL TESTIN G REQUIREMENTS ARE I NCONSISTENT WITH ARTICLE 8 AND ANNEX C OF 
THE SPS  AGREEMENT   
142. Japan raises a series of claims under Article 8 and Annex C, which apply to "control, 
inspection and approval procedures ". Japan first addresses the proper scope of the phrase 
"control, inspection and approval procedures ", before turning to its claims under paragraphs 1(a), 
(c), (e) and (g) of Annex C.  
A. The pre -market additional testing requirements are subject to Article 8 
and Annex C(1) of the SPS Agreement   
143. Article 8 provides that "Members shall observe the provisions of Annex C in the operati on of 
control, inspection and approval procedures ".  Annex C is, in turn, entitled "Control, Inspection and 
Approval Procedures ", and the chapeau  to Annex C(1) states that Annex C applies to "any 
procedure to check and ensure the fulfillment of [SPS] measu res". A threshold issue under 
Article  8 and Annex C is, therefore, establishing that the measures at issue involve "procedures " 
that are for "control, inspection and approval ".   
144. First, a "procedure " is defined as "[t]he fact or manner of proceeding w ith any action, or in 
any circumstance or situation ". Thus, a "procedure " refers to the way or manner in which an action 
or situation is processed. The chapeau  to Annex C states that Annex C(1) applies to "any 
procedure ". The breadth of the provision is co nfirmed by Article 8 and footnote 7 to Annex C, 
which both state that control, inspection and approval procedures "includ[e] " a variety of 
measures, thus confirming that the scope of the obligations is not confined to the measures 
specifically enumerated.   
                                                
108 Japan 's FWS, paras. 183 -193; Japan 's SWS, paras. 355 -371. 
109 Japan 's SWS, paras. 372 -385; Japan 's response to Panel Question 18, paras. 98 -101. WT/DS495/ R/Add.1  
 
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 145. Thus, Korea errs in arguing that the scope of Article 8 and Annex C is limited  to those 
"procedures " that "prescribe a ‘specific course of action ' or dictate a process " for how the 
procedure at issue is to be pursued.  Nothing in the definition of "procedures ", or the text of 
Article  8 and Annex C, sets out a minimum requirement of specificity  or formality  for a measure to 
qualify as a "procedure ".   
146. Second , for procedures to be covered by Article 8 and Annex C, they must be control, 
inspection or approval  procedures, i.e., they must be procedures that "check and verify "; "look 
closely or carefully [into] ", or "corroborate " or "confirm ", in this case the conformity of goods with 
SPS measures.  Footnote 7 to Annex C clarifies that this includes pr ocedures for sampling , testing  
and certification .  Annex C(1) confirms that the "control, inspection or approval procedures " 
covered by Article 8 and Annex C are those that "check and ensure the fulfillment of " an 
SPS measure.110 
147. On the facts, Korea 's additional testing requirements fall within the scope of Article 8 and 
Annex C.  Korea 's pre -market additional testing and certification requirements are explicitly 
covered, under footnote 7 to Annex C, as "procedures for  … testing  and certification ". Mor eover, 
the pre -market additional testing requirements are "procedures ", within the ordinary meaning of 
the term, as they address the way or manner in which an action or situation is processed, namely 
the testing and certification requirement that must be m et before food from Japan can access the 
Korean market. Finally, the pre -market additional testing requirements are procedures ostensibly 
taken by Korea to check fulfillment of its thresholds for radionuclide content in food and, hence, its 
ALOP of 1 mSv/y ear.111 
B. Annex C(1) permits of "as such " challenges  
148. Korea erroneously suggests that Annex C(1) admits solely of "as applied " challenges against 
"specific instances " in which procedures are implemented.  Korea errs.  Annex C(1) imposes 
obligations on a general "procedure to check and ensure the fulfilment of sanitary or phytosanitary 
measures " – i.e., on a measure "as such " – as well as on individual applications of t hat procedure.  
Nothing in Annex C(1) suggests that the obligations are limited to the application of a "procedure " 
in an individual instance.112 
C. The pre -market additional testing requirements are undertaken in a less 
favourable manner for imported prod ucts than for like domestic products, 
in violation of Annex C(1)(a)  
149. Annex C(1)(a) imposes a non -discrimination obligation, providing that control, inspection, 
and approval procedures must be undertaken "in no less favourable manner for imported produc ts 
than for like domestic products ".  Korea 's pre -market additional testing requirements fail to 
comply with this obligation.  
1. Interpretation of Annex C(1)(a)  
150. To establish an inconsistency with Annex C(1)(a), a complaining Member must establish 
that:  (i) imported products and domestic products are "like"; and (ii) that the challenged 
procedures are undertaken in a "less favourable manner " for imported products than for domestic 
products.  
151. It is well established that the "likeness " of imported an d domestic products can be presumed 
where a measure distinguishes between products solely on the basis of origin, without the need to 
examine the criteria typically reviewed in a likeness assessment. To determine whether the 
challenged procedure is underta ken in a manner less favourable to imported products, context 
from Article III of GATT 1994 suggests that the relevant question is whether the procedures are 
                                                
110 Japan 's SWS, paras. 388 -400. 
111 Japan 's SWS, paras. 401 -408. 
112 Japan 's response to Panel Question 157; Japan 's comment on Korea 's response to Panel Question 
157. WT/DS495/ R/Add.1  
 
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 undertaken in a manner that "modifies the conditions of competition " to the detriment of imported 
products.113   
2. Factual arguments that Korea 's pre -market additional testing 
requirements are inconsistent with Annex C(1)(a)  
152. Korea acknowledges that the pre -market additional testing requirements apply exclusively to 
Japanese products.  Accordingly , Japanese products subject to the pre -market additional testing 
requirements are presumed to be "like" domestic Korean products.   
153. Moreover, the pre -market additional testing requirements significantly impair competitive 
opportunities for Japanese pr oducts by, inter alia, imposing increased testing, storage and 
transportation costs, in addition to considerably delaying market access.  Korea has acknowledged 
that these consequences make the pre -market additional testing requirements tantamount to a 
ban.  Although Korea contends that Japanese products are not treated less favourably than Korean 
products because Korean products are subject to point -of-sale additional testing, Japan has 
elsewhere demonstrated that Korea 's point -of-sale additional te sting i s different from the 
pre-market additional testing requirements in important respects.  Finally, in stating its Article 2.3 
claim, Japan has established that the additional testing requirements involve arbitrary and 
unjustifiable discrimination.114 
D. The pre-market additional testing requirements are information 
requirements not limited to what is necessary for appropriate control, 
inspection and approval procedures, in violation of Annex C(1)(c)  
154. Korea 's pre -market additional testing requirements and  the associated certification 
requirements are information requirements not limited to what is necessary for appropriate 
control, inspection and approval procedures, in violation of Annex C(1)(c).  
1. Interpretation of Annex C(1)(c)  
155. An "information req uirement ", under Annex C(1)(c), is a demand for knowledge pertinent to 
the application of an SPS measure.  Korea agrees, stating that an information requirement is "a 
requirement to produce information that helps ensure compliance or ‘ensure the fulfillmen t' of an 
SPS measure ". 
156. Article 5.6 of the SPS Agreement  offers relevant context for the interpretation of the word 
"necessary ".  A procedure is not necessary for purposes of Annex C(1)(c) if there is an alternative 
measure that also achieves a Member 's ALOP and that is significantly less trade restrictive and 
economically and technically feasible.115 
2. Factual arguments that Korea 's pre -market additional testing 
requirements are inconsistent with Annex C(1)(c)  
157. Korea 's pre-market additional testin g requirements require that certain facts be certified and 
communicated, namely the presence and levels of certain man -made radionuclides in food from 
Japan.  This information is sought in connection with the control, inspection and approval of 
Japanese fo od for entry to the Korean market.   
158. Moreover, the information requirement is not "necessary ". Japan has demonstrated that 
testing Japanese food products to ensure that cesium activity levels are under 100 Bq/kg ensures 
that Korean consumers ' exposure  to man -made radionuclides does not exceed Korea 's ALOP of 
1 mSv/year. That the information requirement is not "necessary " is also confirmed by the fact that 
Korea requests the additional information solely for Japanese food; were the information 
                                                
113 Japan 's SWS, paras. 411 -422. 
114 Japan 's FWS, paras. 469 -470; Japan 's SWS, paras. 423 -436. 
115 Japan 's SWS, paras. 4 38-440. WT/DS495/ R/Add.1  
 
- B-26 - 
 
 necessary , Korea would impose similar requirements on food of other origins, which Japan has 
demonstrated pose similar risks of containing radionuclides.116 
E. The pre -market additional testing of individual specimens is not limited to 
what is reasonable and necess ary, in violation of Annex C(1)(e)  
159. Korea 's pre -market additional testing of individual specimens is not limited to what is 
reasonable and necessary, in contravention of Annex C(1)(e).  
1. Interpretation of Annex C(1)(e)  
160. The word "requirements " refers to "[s]omething called for or demanded; a condition which 
must be complied with ". An individual "specimen " is a sample  taken from a larger consignment, 
such that Annex C(1)(e) covers measures imposing control, inspection and approval procedures on 
samples, rather than on an entire consignment.  
161. The examination whether requirements are "necessary " requires a panel to assess whether 
there is an alternative measure that would also achieve the responding Member 's ALOP, and that 
is significantly less tr ade restrictive and economically and technically feasible.  Moreover, the word 
"reasonable " has been interpreted to mean "something [that] is ‘not irrational, absurd or 
ridiculous '", and that "is appropriate or suitable to the circumstances or purpose ".   Requirements 
for control, inspection and approval of individual specimens must be both "reasonable and 
necessary ".117  
2. Factual arguments that Korea 's pre -market additional testing 
requirements are inconsistent with Annex C(1)(e)  
162. Every consignment of Japanese food exported to Korea is sampled and subject to at -the-
border cesium testing. Every sample in which cesium is detected is then subjected to at -the-border 
additional testing for the other radionuclides.  As such, all "individu al specimens " in which cesium 
is detected are subjected to the at -the-border additional testing requirements, ostensibly to 
control compliance with Korea 's tolerance limits for radionuclides in food. In contrast, non -
Japanese food imports are subject only to random at -the-border sampling for cesium, and no at -
the-border additional testing.   
163. As established above with respect to Annex C(1)(c), Korea 's pre -market additional testing 
requirements are not "necessary " to secure compliance with Korea 's 1 mSv/ year ALOP.  Moreover, 
at-the-border additional testing must be undertaken in Japan, which requires storage of the 
consignment at the border while a sample is shipped back to Japan to undergo additional 
testing.  Even if testing were to take place in Korea, the delays and costs attendant to the 
additional testing requirements are unreasonable, particularly in the circumstance of perishable 
products. Accordingly, the pre -market additional testing requirements are not appropriate to the 
circumstances, and are, therefore, not "reasonable ".118 
F. The pre -market additional testing requirements do not use the same 
criteria for the siting of facilities and the selection of samples for imported 
products as are used for domestic products, in violation of Annex C(1)(g)  
164. Korea 's pre -market additional testing requirements do not apply the same criteria for the 
siting of test facilities and the selection of samples for imported products as they do for domestic 
products, in contravention of Annex C(1)(g).  
1. Interpretat ion of Annex C(1)(g)  
165. The term "siting of facilities " refers to the location of the facilities where pre -market 
additional testing is performed; the term "selection of samples ", in turn, refers to a process 
whereby authorities select, for testing, a su b-part of a larger group of products (e.g., a 
                                                
116 Japan 's SWS, paras. 441 -448. 
117 Japan 's FWS, para. 479; Japan 's SWS, paras. 450 -456. 
118 Japan 's FWS, para. 480; Japan 's SWS, paras.  452, 457-464. WT/DS495/ R/Add.1  
 
- B-27 - 
 
 consignment), for the purpose of enabling or verifying conclusions about relevant SPS -related 
qualities of the larger groups of products.  While Members are, under Annex C(1)(g), in principle 
free to choose the  sampling criteria and the criteria for the siting of testing facilities they consider 
appropriate, in so doing, they are required to use "the same criteria " for imported products as they 
use for domestic products.119 
2. Japan 's arguments that Korea 's pre -market additional testing 
requirements are inconsistent with Annex C(1)(g)  
166. Korea does not apply the same sample selection criteria  for Japanese and Korean products.  
Indeed, Korea 's pre -market additional testing requirements are applied exclusively to  Japanese 
products, and do not apply to Korean products at all.  Japan accepts that Korea applies the same 
sampling criteria for point-of-sale additional testing, regardless of origin.  However, while domestic 
food products are potentially subject to addit ional testing only once, at point -of-sale, Japanese 
food products are subject to additional testing twice – pre-market and potentially at point -of-sale. 
This difference in treatment amounts to the application of different sampling criteria.   
167. In any e vent, even were the Panel to compare sampling criteria under Korea 's pre-market 
and point -of-sale schemes, the applicable sampling criteria remain dissimilar. The requirement 
that additional testing take place for food products in which cesium at or above 1 Bq/kg is found 
applies, under the pre -market additional testing measure, to all consignments of all Japanese food 
imports , while additional testing under the point -of-sale measure applies only to those products 
that happen to be randomly sampled, from th e sub -categories of products that Korea subjects to 
point-of-sale sampling in the first place .   
168. Moreover, under pre -market additional testing, Korea imposes more burdensome siting 
requirements  on Japanese products than are imposed on Korean products, because Japanese 
products must be returned to Japan to conduct additional testing.  To the extent that Korean food 
products are subject to point -of-sale additional testing, they are tested in the co untry of 
destination for sale, not in another country. Thus, Korea does not impose the "same criteria " for 
siting requirements on imported and domestic products, because point -of-sale additional testing 
can take place without shipping the product to anothe r country.120 
XI. CONCLUSION AND REQUES T FOR RELIEF  
169. Japan respectfully requests the Panel to find that:  
with respect to the import bans and the additional testing requirements, Korea 
failed to comply with the transparency requirements in Article 7 and paragraphs 1 
and 3 of Annex B to the SPS Agreement ; 
Korea 's import bans on the 28 fisheries products and K orea's additional testing 
requirements are inconsistent with Articles 2.3 and 5.6 of the SPS Agreement . 
Korea 's additional testing requirements are inconsistent with Article 8 and 
paragraphs 1(a), 1(c), 1(e) and 1(g) of Annex C to the SPS Agreement . 
170. Japan respectfully requests the Panel to recommend to the Dispute Settlement Body that 
Korea be required to bring its import bans and additional testing requirements into conformity with 
the covered agreements.  
 
  
                                                
119 Japan 's SWS, paras. 466 -471. 
120 Japan 's FWS, paras. 485 -489; Japan 's SWS, paras. 472 -478; Japan 's comments on Korea 's response 
to Panel Question 159.  WT/DS495/ R/Add.1  
 
- B-28 - 
 
 ANNEX  B-2 
INTEGRATED EXECUTIVE  SUMMARY OF  THE ARGUMENTS OF KOR EA 
I. INTRODUCTION  
1. Korea is justified in taking provisional measures under Article 5.7 of the SPS Agreement in 
response to one of the most severe environmental disasters of the century, which is continuing to 
cause significant contamination of the environment. As Korea 's submissions in this dispute have 
demonstrated, Japan has failed to sustain its burden of proof with respect to all of its claims.  
Specifically, Japan has not shown that Korea 's targeted SPS measures taken in re sponse to the 
radioactive contamination stemming from the Fukushima Dai -ichi Nuclear Power Plant (FDNPP) are 
inconsistent with Article 2.3, Article 5.6, Article 7 / Annex B, and Article 8 / Annex C of the 
Agreement on the Application of Sanitary and Phytos anitary  Measures (SPS Agreement).  
2. A fundamental aspect of the SPS Agreement is to maintain the sovereign right of the 
regulating Member to determine its own level of protection and to conduct its own risk 
assessments. Moreover, the SPS Agreement allows a government to take temporary, 
precautionary measures when it considers that the scientific evidence is not sufficient to determine 
whether a product is  safe, and in particular, to conduct a risk assessment.  Korea notes that Japan 
has not challenged Kore a's SPS measures under Article 5.7 of the SPS Agreement.  
3. Japan has the burden of establishing each of its claims.  With respect to Article 2.3 of the 
SPS Agreement, the Appellate Body recently clarified that "notwithstanding certain similarities 
between  its language and that of the chapeau of Article XX of the GATT 1994, Article 2.3, first 
sentence, of the SPS Agreement, sets out an obligation and is not expressed in the form of an 
exception.  Thus, a complainant raising a claim that a Member 's SPS measu re is inconsistent with 
Article 2.3, first sentence, bears the overall burden of establishing its prima facie  case of 
inconsistency. "1 
4. In the case of Article 5.6 of the SPS Agreement, Japan must adduce sufficient evidence to 
raise a presumption that its  proposed alternative measures would achieve Korea 's appropriate 
level of protection.2 With respect to the role of experts in the assessment under Article 5.6, the 
Appellate Body has held that "[e]xperts may assist a panel in assessing the level of risk as sociated 
with SPS measures and potential alternative measures, but whether or not an alternative 
measure 's level of risk achieves a Member 's appropriate level of protection is a question of legal 
characterization, the answer to which will determine the con sistency or inconsistency of a 
Member 's measure with its obligation under Article 5.6. "3  Thus, "[a]nswering this question is not a 
task that can be delegated to scientific experts ".4 
II. FACTUAL BACKGROUND  
5. There is no dispute that the FDNPP accident co nstitutes the most significant release of 
radionuclides from a nuclear accident into the marine environment, and the releases continue.  
Scientific information about the accident and subsequent releases, as well as about the impact on 
the environment, rema ins limited.  
A. The Significant Release of Radionuclides from the FDNPP Accident  
6. Japan understates the extent of the release of radionuclides from the FDNPP accident.  While 
scientific knowledge on the amount and types of radionuclides released and con tinuing to be 
released from the FDNPP remains insufficient, there is no dispute among the scientific community 
that vast amounts of radionuclides were released from the FDNPP accident.   
                                                
1 Appellate Body Report, India – Agricultural Products , para. 5.260. (footnote omitted)  
2 Appellate Body Report, Australia – Apples , para. 404.  
3 Appellate Body Report, Australia – Apples , para. 3 84. 
4 Appellate Body Report, Australia – Apples , para. 384.  WT/DS495/ R/Add.1  
 
- B-29 - 
 
 7.   Estimates tend to converge to between 15 and 20 PBq  for the combined FDNPP inputs of 
Cs-137 from atmospheric fallout and direct discharge to the North Pacific. This represents an 
additional input of approximately 25 per cent more Cs -137 than existed in the North Pacific prior 
to the FDNPP event from nuclea r weapons testing.  Moreover, approximately 1.0 -2.4 x 109 Bq of 
Pu-239, 240 was released into the environment from the FDNPP reactors. Most of the Sr -90 
released from the FDNPP was directly discharged to the North Pacific, with estimates of total 
inventori es ranging from 0.04 to 1.0 PBq.  There have also been ongoing spills of liquid radioactive 
waste from the FDNPP into the ocean causing Sr -90 activities to exceed those of Cs -137 in the 
ocean near the FDNPP. However, strontium remains one of the most under studied radionuclides 
from the FDNPP accident.  
8. In all, the FDNPP accident caused about 30,000 km2 of Japanese territory to be 
contaminated with different types of  radionuclides from  the nuclear fallout , in addition to the 
contamination of sea sediments . Given the relatively long half -life of Cs -134 and Cs -137, these 
isotopes are still a significant source of radioactive contamination in the environment, particularly 
in forests that cover 75 percent of the contaminated territory.   
B. Elevated Levels of Cesium Continue to be Detected  
9. Japan also downplays elevated levels of cesium that are still found in the environment 
surrounding the FDNPP and in food products. The levels of cesium contained in soil particles on the 
flood plains in the downstream are as of Fukushima 's rivers have been found to be significant and 
to potentially increa se the local radiation dose.  
10. Japan also disregards scientific data that continue to show elevated levels of cesium in fish 
samples. Fishery species caught near the FDNP P still show high levels of contamination. The 
cesium monitoring results of fishery products caught within the port near the FDNPP, which Japan 
did not provide to the Panel, show measurements up to 223,000 Bq/kg of cesium.   
C. The FDNPP is an Active and O ngoing Source of Contamination  
11. The FDNPP presents an active and ongoing situation with no long -term solution. Highly 
contaminated water continues to build up at the FDNPP site and water continues to inadvertently 
leak into the sea. This in and of itsel f distinguishes the FDNPP incident from prior events, such as 
the Chernobyl accident and nuclear weapons testing, and heightens the food safety risks stemming 
from contaminated Japanese food products.  
12. Given  the gravity of the situation, Tokyo Electric Power Company (TEPCO) has attempted to 
construct a large ice wall surrounding the FDNPP to stem the flow of groundwater into the plant.  
While specific information about the operation of the ice wall has been lacking, reports indicate 
that the ice wall eff ort has largely failed.   
13. Moreover, Japan continues to maintain distribution bans and restrictions itself and has in this 
past year continued to impose new bans and restrictions on certain food products.5  Japan cannot 
expect that Korea would respond a ny differently. Thus, Japan itself recognizes that bans, and not 
just cesium testing, are required.  
III. INSUFFICIENCIES IN J APAN 'S FOOD MONITORING PR OGRAM  
14. Japan has asserted in this dispute that it has maintained a comprehensive national food 
monitoring program, which covers all categories of food products. Korea notes, however, that the 
Ministry of Health, Labour, and Welfare of Japan 's (MHLW) "Cesium Monitoring Data of Food 
Products " (April 2012 -July 2016) mainly consist of livestock p roducts , which account for 
72.4 percent (835,741) of the total number of samples (1,154,025). Agricultural products only 
accounted for 14.0 percent (161,798) and fishery products accounted for 7.6 percent (87,638) of 
the total samples. Japan 's cesium monitoring d ata is disproportionately weighted towards livestock 
products that are not imported into Korea, which undermines the representativeness of the data.  
                                                
5 Please see Japan 's domestic restrictions at 
http://www.mhlw.go.jp/english/topics/2011eq/index_food_press.html . WT/DS495/ R/Add.1  
 
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 15. Moreover, the data sets presented by Japan in this dispute actually highlight the lack of 
sufficient te sting for other radionuclides, as follows:  
a. Ministry of Agriculture, Forestry and Fishers of Japan (MAFF) data do not present 
strontium measurements for 16 of the 28 types of fishery products subject to 
Japan 's challenges. Moreover, for the 12 types of fishery products with strontium 
data, only a t otal of 50 samples were taken.  
b. The Ministry of Environment of Japan (MOE) provided strontium results for only 
3 of the 28 fishery products subject to Japan 's claims, and only a total of 6 
samples were analy sed.  Also, there were no strontium test results for any of the 
28 fishery products at issue in the data provided by TEPCO.  There are no testing 
results for plutonium in the data provided by MOE or TEPCO.   
c. Japan 's Environmental Radioactivity Database (ERD )  data (Exhibit JPN -130) also 
provides limited strontium and plutonium measurements, especially for the most 
commercially important fish  species from key prefectures.  
16. It is inappropriate to draw conclusions regarding concent ration levels or facto rs of 
non-cesium radionuclides from such small samples, which do not account for varying factors, 
including the size of the fish, living area and conditions, and feed. Sampling for non-cesium 
radionuclides has been extremely limited and haphazard at best. There has been no quality 
assurance and quality control (QAQC) program outlined for these other radionuclides.  
17. As Korea 's expert confirmed during the Second Substantive Meeting, currently  the samples 
for non -cesium radionuclides do not nearly reflect the range or depth of samples required to 
characterize the movement or transfer of radionuclides through the food chain. Orders of 
magnitude more samples – likely amounting to approximately thousands more samples of 
strontium and other radionuclides – are required. This is especially true now that fishing activities 
are openly resuming in Fukushima coastal regions.  
18. At a minimum, multiple samples of each important species should be tested from all key 
locations of production at several  times throughout t he year to assess species,  geographic, and 
temporal sources of variability in contaminant levels.  In addition, an attempt to assess detection 
probabilities should also be assessed at some subset of test sites.  However, the effort exerted by 
Japan to address QAQC issues to date has  been vastly insufficient.   
IV. METHODOLOGICAL FLAWS  IN JAPAN 'S EVIDENCE  
19. The Exhibit JPN -11 and JPN -148 statements by Japan 's consultants unsuccessfully attempt 
to provide an analytical framework for Japan 's incorrect premise that measuring for cesium  only 
will ensure that the 1 mSv/year radiation dose will not be exceeded. These statements contain 
significant methodological flaws that undermine Japan 's analytical framework and the conclusions 
drawn from applying that framework to specific data sets pr ovided by Japan.   
20. First, the 419 data points of Sr -90 and Cs -137 concentration activity in fishery product 
analysed by Japan 's consultants, spanning the period 2011 -2016, are insufficient.  
21. Second, according to Exhibits JPN -11 and JPN -148, Japan c laims that through the use of a 
"Scaling Factor " it can identify a statistical correlation between cesium and other radionuclides 
such that it can determine that fish containing less than 100 Bq/kg of cesium will not contain 
significant amounts of other ra dionuclides, making them safe for human consumption. In Exhibit 
KOR-213, Korea 's experts have demonstrated that Japan 's analysis is scientifically invalid because 
(i) there are no acceptable grounds for the use of a Scaling Factor and (ii) there is no evid ence of 
any correlation between cesium and other radionuclides for the purposes of assessing food safety.   
22. Moreover, Exhibit KOR -213 explains that Japan 's application of the "Scaling Factor " in a case 
like the one before the Panel is unprecedented. To Korea 's knowledge, the Scaling Factor "has 
never been used for an accident of this sort " nor has it ever been used "for the prediction of 
radionuclides in the context of complex biological commu nity analysis ." As Korea 's experts WT/DS495/ R/Add.1  
 
- B-31 - 
 
 explained, the Scaling Factor method is unsuited to making predictions in a complex and evolving 
situation where food safety and public health are concerned.  
V. STANDARD OF REVIEW  
23. Japan asks the Panel to apply an incorrect standard of review. The standard of review 
applicable in SPS disputes is that articulated in Article 11 of the DSU, which provides that a panel 
must make an objective assessment of the matter, including an objecti ve assessment of the facts.6  
The Appellate Body has held that the standard of review must respect the allocation of 
jurisdictional competences in the SPS Agreement.7 
24. The Appellate Body has also held that the assessment of risk is a matter that is of e xclusive 
competence of each Member and that panels are not authorized, under the applicable standard of 
review, to perform their own risk assessment.8   
25. When a panel is established, a regulator could at most have available to it measurements 
undertake n until that date.  In fact, in such circumstances, one cannot reasonably expect the 
regulator to have had the opportunity to review and validate the most recent measurements.  This 
practical reality was recently acknowledged in Russia – Pigs (EU)  where the  panel and the 
Appellate Body both held that the regulating Member is entitled to a period of time to process and 
evaluate detailed and complex information.9   
26. Thus, in assessing Korea 's SPS measures, the Panel must consider only the information that 
was available to the domestic regulator. Consideration by the Panel of information that was not 
available to the domestic regulator means that the Panel would be substituting its own judgment 
for that of the domestic regulator. Moreover, the Panel cannot fa ult Korea 's regulator for not 
taking into account what it could not have known. If it does so, the Panel would, in effect, be 
conducting a de novo  review.10 
27. Yet, this is precisely what Japan asks the Panel to do in this case.  Exhibits JPN -11, JPN -148, 
JPN-238 and JPN -239 did not exist prior to this dispute. Thus, these documents could not have 
been available to Korea 's regulator before these dates. Moreover, much of the data relied on for 
the analysis in these Exhibits also did not exist when the Panel  was established. For instance, 
Exhibit JPN -148 indicates that it analysed a total of 419 data points covering the period from 
April 2011 to March 2016.  Of these 419 data points, 66 data points correspond to measurements 
taken after 28 September 2015, whi ch was when this Panel was established.  Similarly, Exhibits 
JPN-238 and JPN -239 contain data through 5 December 2016 and 16 September 2016, 
respectively.    
28. Given that these data did not exist prior to panel establishment, they were obviously not 
available to Korea 's regulator, and therefore it is impossible for Korea 's regulator to have taken 
these data into account.  If the Panel were to consider this information, the Panel would essentially 
be engaging in its own risk assessment as it would be d etermining SPS risks on the basis of 
information Korea 's regulator could not have even considered.  As a result, the Panel would be 
substituting its own judgement for that of Korea 's regulator, thereby acting inconsistently with 
Article 11 of the DSU.   
29. Unfortunately, the Panel 's experts have already expressed their views on the basis of 
Exhibits JPN -11, JPN -148, JPN -238 and JPN -239. Again, it is not possible to reconcile the experts ' 
use of analyses and data not in existence at the time the dispute was  initiated with the standard of 
review applicable in this dispute. The Panel 's experts also cannot "second -guess " Korea 's regulator 
or substitute their own post-hoc evaluations for that of the regulator, under the SPS Agreement 
and the DSU.  Thus, consider ation of the experts ' views that take into account such analyses and 
data would also violate the applicable standard of review.  
                                                
6 Appellate Body Report, Australia – Apples, para. 211. 
7 Appellate Body Report, EC – Hormones , para. 115.  
8 Appellate Body Report, US/Canada – Continued Suspension , para. 590.  
9 Panel Report, Russia – Pigs (EU) , para. 7.705; Appellate Body Report, Russia – Pigs (EU) , para. 5.80.  
10 Appellate Body Report, US – Cotton Yarn , para. 78.  WT/DS495/ R/Add.1  
 
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 VI. TERMS OF REFERENCE  
30. The breach of a relevant WTO provision must have materialized at the time the Panel was 
established. This conclusion holds irrespective of whether Japan 's claims are on the adoption or 
maintenance of the measures. Pursuant to the Panel 's terms of reference, the Panel must 
determine whether Korea 's measures were inconsistent with Articles 2.3, 5.6, and 8 a t the time 
the Panel was established. The inconsistency must have existed at this time; otherwise the claim 
would have been purely speculative.   
31. Under Article 7 of the DSU, the Panel is responsible for examining the matter referred to the 
Dispute Settl ement Body (DSB) by Japan in document WT/DS495/3.11 The "matter " is, in turn, 
comprised of the measures challenged and the claims set out by Japan in its panel request. The 
measures are those in existence at the time of the panel request. The Appellate Bod y has said that 
the specific measures identified in the panel request are the measures "alleged to be causing the 
violation of an obligation contained in a covered agreement ".12 Thus, the violation caused by the 
challenged measures must already exist when the panel is established.  
32. Japan 's panel request does not allege that Korea 's SPS measures will be  in breach of the 
SPS Agreement at some point during the Panel proceedings. Instead, Japan 's panel request 
describes Korea 's SPS measures as being in breach of the SPS Agreement at the time of the Panel 
request. Thus, the Panel 's terms of reference preclude it from determining the consistency of 
Korea 's SPS measures on the basis of analyses and data that did not exist at the time the Panel 
was establish ed.  Consequently, consideration of Exhibits JPN -11, JPN -148, JPN -238 and JPN -239 
in the Panel 's assessment of Japan 's claims under Articles 2.3, 5.6, and 8 would violate the Panel 's 
terms of reference.  
33. As noted during the Second Substantive Meeting, a nd as acknowledged by Japan, Korea 's 
position is consistent with the view of the panel in EC – Biotech , which found that it had to 
examine "whether, on the date of establishment of this Panel , each safeguard measure was based 
on an assessment of risks whic h was appropriate to the circumstances existing at that time. "13  
Korea notes that the panel in that case was referring to a claim concerning the maintenance of the 
measure and, even in those circumstances, the panel found that the reference point was the date 
of establishment.  
VII. KOREA 'S SPS MEASURES ARE P ROVISIONAL MEASURES UNDER ARTICLE 5.7  
34. As the complaining party, Japan has the burden of proof with respect to each of its claims.14  
Had Japan brought a claim against the import bans and the additional testing requirements under 
Article 5.7 of the SPS Agreement, the burden of proving the measures ' inconsistency with this 
provision would have fallen on Japan.15  In the absence of a cha llenge by Japan under Article 5.7, 
Korea is entitled to the presumption that the import bans and additional testing requirements are 
consistent with the requirements of Article 5.7. The Appellate Body has held, in this regard, that a 
respondent Member 's measures must be treated "as WTO -consistent  until proven otherwise ".16   
35. Korea notes, in any event, that there is no burden of proof to Korea that attaches with 
respect to the interpretation of a provision of the WTO agreements. Thus, there is no burden of 
proof that Korea must overcome in arguing that Article 5.7 is relevant for purposes of the 
interpretation of Articles 2.3, 5.6, 7 (Annex B) and 8 (Annex C) of the SPS Agreement.  
VIII.  KOREA 'S SPS MEASURES ARE CONSISTENT WITH ARTICLE 2.3  
36. Japan has fa iled to establish that Korea 's SPS measures are inconsistent with Arti cle 2.3 of 
the SPS Agreement.  
                                                
11 Appellate Body Report, Guatemala – Cement I , para. 72.  
12 Appellate Body Report, EC – Selected Customs Matters , para. 130. (underlining added)  
13 Panel Report, EC – Biotech , para. 7.3034. (underlining added)  
14 Appellate Body Report, US – Wool Shirts and Blouses, p. 14.  
15 Panel Report,  EC – Approval and Marketing of Biotech Products , paras. 7.2976 and 7.2979.  
16 Appellate Body Report, US – Carbon Steel , para. 157. (original em phasis)  WT/DS495/ R/Add.1  
 
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 A. Japan Applies a Novel Product -Based Test under Article 2.3  
37. Japan 's claim is based on an erroneous interpretation of Article 2.3. In particular, Japa n 
applies a novel, product -based test that is not reflected in the text of Article 2.3. The text of 
Article  2.3 refers to "conditions " and does not refer to "products. "  This is a deliberate choice of the 
drafters that must be given effect.  The term "conditions " in Article 2.3 refers to such factors as 
the state of the atmosphere, the land, and the marine environment. This understanding of 
"conditions " fits coherently with the rest of Article 2.3 and with its context.  
38. Japan 's interpretation is comp letely divorced from the text of that provision. Indeed, Japan 's 
interpretative exercise begins far from the SPS Agreement, in Annex 1A of the WTO Agreement.  
The general scope of coverage of the agreements in Annex 1A cannot mean that every provision in 
every agreement in Annex 1A is about differential treatment of goods. The text of Article 2.3 
specifically calls for a comparison of "conditions " existing in Members ' territories; products are 
simply not mentioned in Article 2.3.   
39. The starting point of  the analysis under Article 2.3 is an assessment of whether "identical or 
similar conditions prevail " in the territories of the Members concerned. Following Article 31(1) of 
the Vienna Convention on the Law of Treaties (Vienna Convention), an interpretatio n of Article 2.3 
must begin with the ordinary meaning of the terms used in the provision. This ordinary meaning is 
supported by the link made in Article 2.3 between "conditions " and "territory ". The latter term is 
referring to the area under the jurisdicti on of the relevant Member.  Thus, the link between 
"conditions " and "territory " in Article 2.3 supports Korea 's view that the subjects of comparison are 
the environmental conditions prevailing in the relevant Members.  
40. Further contextual support for this  interpretation is found in Article 5.2 of the 
SPS Agreement, which expressly includes "the relevant ecological and environmental conditions " 
among the factors that must be taken into account in the assessment of risks.   
41. The evidence on record demonst rates that the conditions in Japan were not similar to the 
conditions in the rest of the world.  On 28 September 2015, there continued to be an active source 
of contamination on Japanese territory. The FDNPP continued to be in an unstable situation: leaks 
continued to be reported, contaminated groundwater continued to flow through the plant and into 
the ocean, and large amounts of contaminated water continued to be stored in precarious 
conditions at the plant.  Even the limited estimates of strontium releas e that exist are complicated 
by the ongoing spills of liquid radioactive waste at the FDNPP site. In addition, insufficient scientific 
information regarding the amount and types of radionuclides released, as well as the lack of 
sampling in particular regio ns and for specific commercially important species also render 
conditions in Japan not identical or similar to conditions prevailing in Ko rea and the rest of the 
world.  
42. As discussed in Korea 's submissions, high levels of cesium  contained in soil particles have 
been found on the flood plains in the downstream areas of Fukushima 's rivers. These rivers, whose 
banks have high levels of cesium contamination, ultimately enter the sea. Studies have also found 
that a significant portion  of mineral -bound radiocesium is discharged into marine estuaries. Thus, 
the river catchments will be a longer -term, ongoing source of radiocesium to estuaries and coastal 
areas, which can easily accumulate in marine biota. Dams, lakes and reservoirs in Fu kushima -
impacted watersheds also have been shown to be both sinks for radiocesium and potential sources 
of significant downstream cesium deposition. Forests too have been found to be deposits of 
significant levels of radionuclides, including Cs -137.  Final ly, there are risks from contamination of 
the seabed, as even Japan 's consultant has cautioned that nearshore sediments off Japan will 
remain a significant long -term source of radiocesium for years to decades.   
43. Indeed, Japan itself acknowledges throug h its own regulations the uniqueness of the 
conditions prevailing in its territory. Japan itself has imposed marketing bans on fishery and 
agricultural products, some of which were still in place up until the date of Panel establishment.  
Moreover, Japan h as repeatedly referred to the fact that fish from the FDNPP port and from the 
area within a 20 km radius of the FDNPP are not marketed in Japan. This area is within Japanese 
territory and the decision not to allow the marketing of fish in this area is nece ssarily recognition 
of the particular nature of the conditions in Japanese territory. Thus, Japan 's own marketing ban is 
based on environmental conditions in Japan. If the measurement of contamination levels in the WT/DS495/ R/Add.1  
 
- B-34 - 
 
 products were the only relevant criterion , as argued by Japan under Article 2.3, then Japan itself 
could test all fishery products marketed instead of imposing a ban over an entire area.   
44. In sum, the Panel must reject Japan 's erroneous claim that conditions in Japanese territory 
and conditio ns in Korea and the rest of the world are similar. Because Japan fails to establish a 
necessary element of its Article 2.3 claim, the Panel need not proceed further.    
B. Even If the Panel Concludes That Conditions Are Similar, Japan Has Failed to 
Establi sh That Korea 's SPS Measures "Arbitrarily or Unjustifiably 
Discriminate " 
45. Even on the arguendo  assumption that conditions were similar, Japan has failed to 
demonstrate that Korea 's SPS measures arbitrarily or unjustifiably discriminate.  Japan 's argument 
is premised on its position that Japanese products and products from non -Japanese origins have 
similar levels of cesium and additional radionuclides in absolute terms. This element of Japan 's 
claim is also premised on an incorrect interpretation  of Article 2.3.  
46. As Korea has explained, the focus of Article 2.3 is on the conditions prevailing in Members ' 
territories.  Even if the Panel were to conclude that conditions in Japan and the rest of the world 
are similar, its subsequent analysis would  have to proceed on the basis of the conditions identified 
by the Panel.  Japan 's attempt to disregard consideration of the conditions in its territory must 
therefore be rejected by the Panel.  
47. In addition, Japan has explained that its Article 2.3 claim  depends on the proposition that 
Japanese food products and food products of other origins pose "a similar risk of containing cesium 
and other radionuclides in excess of Korea 's respective thresholds ".  However, the Panel could only 
accept Japan 's argument  by conducting a risk assessment, which the Panel is not permitted to do.  
Indeed, Japan 's approach would require the Panel to undertake not one, but two, risk 
assessments. The Panel would first have to assess the risks posed by Japanese products. It would  
then have to assess the risks posed by products from Korea and by products from the rest of the 
world.  And, finally, it would have to compare those risks.  However, under the applicable standard 
of review, the Panel is not authorized to conduct such risk  assessments.  
48. Moreover, by focusing on the risks posed by the products concerned, Japan is effectively 
converting the analysis of Article 2.3 into a question of whether the measures are properly based 
on a risk assessment. However, that is a matter to be evaluated under Article 5.1, and Japan has 
not brought a claim under that provision.   
49. Nor has Japan brought a claim under Article 5.7. Korea 's SPS measures seek to protect 
Korean citizens from the additive effects of the radionuclides stemming from  the FDNPP. Given the 
relatively few measurements for radioactive strontium that have been generated to date, and the 
much fewer measurements for other radionuclides of potential significance, this testing is a 
prudential measure in response to the insuffi ciency of data.  In the circumstances, continued 
monitoring for cesium, strontium, and other radionuclides is required to properly assess risk.  
50. Japan 's argument also introduces the appropriate level of protection (ALOP) into the 
assessment of Article 2. 3 as Japan is asking the Panel to find that Japanese and non -Japanese 
food products pose identical or similar risks of exceeding Korea 's ALOP.  However , the text of 
Article 2.3 does not  frame the ALOP as a benchmark to determine whether there is any 
discrim ination.  
51. The Panel -appointed experts confirmed that radionuclides have additive effects and that any 
additional amount of radiation increase s the risks of adverse effects.  They also confirmed that 
there is evidence that radiation can have effects even at very low doses.  There is no dispute that 
the FDNPP added to levels of radionuclides present in Japan 's territory before the accident.  
Therefore, even under Japan 's erroneous products -based test, Korea 's regulator has a legitimate 
right to be concerned about the consumption of products with radionuclide contamin ation 
stemming from the FDNPP.  
52. Even accepting arguendo  Japan 's approach, Japan has emphasized that a key factual 
proposition underlying its claims is that the overall exposure to Korean consum ers from cesium WT/DS495/ R/Add.1  
 
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 and all other radionuclides will remain below 1 mSv/year if cesium levels in Japanese food are 
within Korea 's 100 Bq/kg threshold.  Japan 's proposition is based on an incorrect characterization 
of Korea 's ALOP.    
53. In any event, even und er an erroneous product -based approach, food products from one 
origin posing a risk of exposure should not be deemed "identical or similar " within the meaning of 
Article 2.3 to the food products from another origin posing a risk of exposure. As asserted ab ove, 
the ALOP has no bearing on the application of Article 2.3.  
54. Thus, even assuming Japan 's product -based test were correct and Japan succeeded in 
establishing this factual proposition, it would not demonstrate that products from Japan and 
products fr om the rest of the world pose similar risks.  This is because Japan 's definition of Korea 's 
ALOP is incorrect. Likewise, Japan 's criterion for similarity, which is exclusively based on whether 
an overall dose of 1 mSv/year is exceeded, is not an appropriate criterion for  similarity under 
Article 2.3.  
55. As discussed in Korea 's submissions, Korea also conducts additional testing on Korean and 
third-country products.  When cesium or iodine is detected, the samples are subject to further 
analysis f or additional radionuclides . The alleged differences that Japan identifies are in the 
frequency and location of testing.  However, these differences are rationally related to the different 
conditions prevailing in Japan. The additional testing requirements  provide information on the 
levels of strontium and other additional radionuclides in fisheries and agricultural products 
imported from Japan. Large amounts of strontium and other radionuclides were released and 
continue to be released from the FDNPP. As e xplained by Korea 's expert, there have been only 
limited measurements of strontium and other non -cesium radionuclides such that the information 
about these radionuclides in Japanese territory is insufficient to draw robust conclusions. Thus, the 
need to te st fisheries and agricultural products from Japan more frequently, and the need to 
require the test prior to entry into the market, are both rationally related to the conditions 
prevailing in Japan. As such, any differences in frequency and location, which  reflect different 
conditions, cannot constitute arbitrary or unjustifiable discrimination for purposes of Article 2.3.  
56. Korea further notes that the import ban on fishery products is circumscribed to products 
from the Fukushima prefecture and the seven  surrounding prefectures. Thus, the import bans are 
rationally related to the conditions prevailing in those prefectures.   
57. Finally, Japan 's argument under the second sentence of Article 2.3 is premised on its claim 
under the first sentence. Because Ja pan has failed to substantiate its claim under the first 
sentence of Article 2.3, the claim under the second sentence must also be rejected.  
IX. KOREA 'S SPS MEASURES ARE C ONSISTENT WITH ARTIC LE 5.6  
58. The arguments and evidence put forward by Japan are i nsufficient to establish a violation of 
Article 5.6 of the SPS Agreement.   
A. The Flaws in Japan 's Article 5.6 Claim  
1. Japan 's Claim Is Premised on an Incorrect Characterization of Korea 's 
ALOP  
59. Japan continues to claim that Korea 's ALOP  for exposure to man -made radionuclide 
contamination in food is 1 mSv/year, and that Japan 's proposed alternative measure (i.e., cesium 
testing) achieves this dose limit.  This is incorrect.   
60. As previously noted, the Appellate Body has held that the determination of the ALOP "is a 
prerogative  of the Member concerned. "17 An Article 5.6 analysis thus requires an examination of 
whether possible alternative SPS measures meet the ALOP "as determined by the Member 
                                                
17 Appellate Body Report, Australia – Salmon , para. 199. (original emphasis)  WT/DS495/ R/Add.1  
 
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 concer ned."18  The Appellate Body has held that the panel is charged with "identifying the level of 
protection of the Member whose SPS measure is challenged. "19   
61. As Korea has repeatedly shown, its ALOP is to maintain radioactivity levels in food consumed 
by Korean consumers at levels that exist in the ordinary environment – in the absence of radiation 
from a major nuclear accident – and thus maintain levels of radioactive contamination in food that 
are "as low as reasonably achievable " (ALARA), below  the 1 m Sv/year radiation dose limit.  
62. Korea 's ALOP is not a fixed quantitative threshold but instead aims to achieve a high to very 
high level of protection below  the 1 mSv/year dose limit.  It is incorrect for Japan to characterize 
Korea 's ALOP as 1 mSv/year w hen Korea has made clear that its "acceptable " level of radiation 
exposure is below the 1 mSv/year dose limit. Korea maintains a highly prudent approach to the 
management of radionuclides from external sources, and therefore aims to control the additional 
radiation exposure from Japanese imports to be as low as possible below 1 mSv/year.  
63. Korea maintains an ALOP that is high, conservative, and consistently applied across all 
categories of such risk. To do this, it establishes a range of measures that con tribute to the ALOP.  
The measures that are under dispute are such measures.  The nature of the measures and their 
method of determination will vary according to the substance concerned and the nature of its 
human health effect. In this case, Korea uses the  ALARA approach to establish quantitative 
thresholds from which exposure would result in a level as far as possible below  1 mSv/year. The  
use of the ALARA principle is a well -known part of the Codex standards and is applied to establish 
maximum levels (MLs ) for contaminants in food necessary to protect consumers.  Notably, the 
application of the ALARA principle in food safety differs from its application in the radiological 
protection context.  
64. The ALARA principle is articulated in Article 1(34) of the K orea Food Code. In addition, Korea 
has consistently expressed its ALOP with sufficient precision.  As a result, the Panel should accord 
significant weight to Korea 's articulation of its ALOP.  
65. Korea reiterates that it is well -established that there is n o obligation for an importing 
Member to set its ALOP in "quantitative terms. "20  In fact, in Australia – Apples , the Appellate Body 
confirmed that Australia 's ALOP was "providing a high level of sanitary or phytosanitary protection 
aimed at reducing risk t o a very low level, but not to zero. "21 The Appellate Body found that 
Australia 's ALOP makes clear that Australia 's acceptance of "very low " risk is a standard that is 
stricter than standards that would accept "moderate ", "high", or "extreme " risk, but not as strict 
as standards that would accept only "negligible " risk. While there were no "upper bounds " or 
numerical thresholds provided in Australia 's ALOP, the Appellate Body still found that the ALOP 
made clear Australia 's acceptable level of  risk and could be applied in international trade.  
66. As shown in Exhibit KOR -143, the 1 mSv/year dose limit is the upper bound of the 
"tolerable " level of risk, but Korea 's ALOP, or "acceptable level of risk ", is a level below that dose 
limit, which refl ects the ALARA principle. Ultimately, while Korea 's ALOP is not defined in 
quantitative terms, it is not vague or equivocating.22  In fact, Korea 's ALOP is notably more precise 
than Australia 's ALOP in Australia – Apples .  Japan attempts to confuse Korea 's clear standards by 
arguing that "tolerable " is synonymous with "acceptable " and therefore everything below the 
"upper bound " of 1 mSv/year is "acceptable. "  In doing so, Japan has continued to avoid engaging 
with the information submitted in Exhibit KOR -143 and other authoritative sources explaining the 
ALARA principle.   
2. Japan 's Claim Is Also Premised on an Incorrect Characterization of 
Cesium Testing As "Another Measure " Under Article 5.6  
67. Japan also fails to make a valid claim under Article 5.6 because cesium testing does not 
constitute "another measure " under footnote 3 to Article 5.6.  A Member invoking Article 5.6 must 
establish the existence of "another measure " that achieves the ALOP o f the respondent Member.  
                                                
18 Appellate Body Report, Australia – Salmon , para. 204. (original emphasis)  
19 Appellate Body Report, India – Agricultural Products , paras. 5.220 -5.221.  
20 Appellate Body Report, Australia – Apples , para. 343.  Korea 's second written submission, para. 268.  
21 Appellate Body Report, Australia – Apples , para. 369.  
22 See Appellate Body Report, Australia – Salmon , para. 206.  WT/DS495/ R/Add.1  
 
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 The term "another " is "[u]sed to refer to a different person or thing from one already mentioned or 
known about ".  The Appellate Body confirmed this in India – Agricultural Products , where it stated 
that "[i]n order to succeed in a claim under Article 5.6, a complainant must establish that there is 
an alternative  measure… ."23 The term "alternative " indicates that the measure is different to the 
measure currently being applied by the respondent Member.      
68. Japan errs when it st ates that cesium testing is an "alternative " measure that is "different " 
from the measure currently being applied by Korea.  Korea already applies cesium testing to 
imports of Japanese food products.  Therefore, cesium testing is not different to the measu res 
already being applied by Korea.  
69. The panel in Brazil – Tyres  also confirmed the principle that a measure already being applied 
by the respondent party cannot constitute an "alternative " measure.  The panel specifically found 
that "the alternative m easures…do not constitute alternatives that could apply as a substitute for 
the import ban on retreaded tyres  … Rather, they would appear to be complementary measures 
that Brazil in fact already applies, at least in part. "24 The panel 's finding was upheld on appeal by 
the Appellate Body, which noted that "some of the proposed alternatives are not real substitutes 
for the Import Ban since they complement each other as part of Brazil 's comprehensive policy. "25 
70. Similarly, cesium testing is not an "alternative " measure to Korea 's import bans or additional 
testing requirements, but rather a "complementary " measure already being applied by Korea that 
is "cumulative rather than substitutable " with respect to those measures challenged by Japan.  
Japan co ncedes that cesium testing is an "integral element " of Korea 's additional testing 
requirements because the requirement to undertake additional testing depends on the results of a 
prior cesium test.  Indeed, cesium testing, the additional testing requiremen ts, and the import 
bans are all integral and complementary parts of Korea 's comprehensive response to the 
radioactive contamination from the FDNPP. The measures are complementary in that they are 
applied to target different prefectures in Japan that pose d ifferent risks based on their proximity to 
the FDNPP accident and prior recordings of high levels of radioactivity in food products, as well as 
to address food safety risks arising from contamination in Japanese food products by different 
radionuclides. Th us, cesium testing is a complementary measure already currently applied by 
Korea and does not constitute an "alternative " measure that could apply as a "substitute " for 
Korea 's import ban and additional testing requirements. Similarly, the Appellate Body h as held that 
"[s]ubstituting one element of [a] comprehensive policy for another would weaken the policy by 
reducing the synergies between its components, as well as its  total effect " and therefore found 
that the panel  did not err in "rejecting as alternat ives to the Import Ban components of Brazil 's 
policy regarding waste tyres that are complementary to the Import Ban. "26 
71. Japan also states that the fact that cesium testing alone is "different " from Korea 's existing 
measures is evident to Japan 's fisher men and farmers because cesium testing alone would 
significantly enhance competitive opportunities for their products. Japan misses the point.  
Whether a measure enhances or restricts competitive opportunities for products is relevant for 
determining wheth er the proposed alternative measure is "significantly less restrictive to trade " 
than the challenged measure but is not relevant for determining whether the proposed measure 
constitutes "another measure " under footnote 3 of Article 5.6.   
72. In addition, Japan refers to Korea 's ALOP, which it again mistakenly describes as achieving a 
committed dose exposure of Korea 's consumers that does not exceed 1 mSv/year.  Japan then 
claims that the additional testing requirements make no independent contribution to K orea's ALOP.  
In doing so, Japan attempts to distinguish Korea 's measures from those in Brazil – Retreaded 
Tyres , which each allegedly contributed independently to the achievement of the policy objective 
at issue. However, the panel in Brazil – Retreaded T yres noted in fact that the European 
Communities ' proposed waste tyre disposal schemes would not seem able to achieve the same 
level of protection pursued by Brazil – i.e., "non-generation " of waste tyres in the first place –  as 
the import ban.27 As a res ult, the panel found that such schemes are not "an alternative  to the 
import ban in light of the level of protection Brazil pursues in relation to the health risks 
                                                
23 Appellate Body Report, India – Agricultural Products , para. 5.203. (emphasis added)  
24 Panel Report, Brazil – Tyres , para. 7.172.  
25 Appellate Body Report, Brazil – Tyres , para. 181.  
26 Appellate Body Report, Brazil – Retreaded Tyres , para. 172.  
27 Panel Report, Brazil – Retreaded Tyres , para. 7.177.  WT/DS495/ R/Add.1  
 
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 concerned... "28  Thus, the panel found that the European Communities ' proposed measures did not 
contribute to the achievement of Brazil 's policy objective or level of protection.  
73. Similarly, cesium testing alone cannot achieve Korea 's policy objective of achieving a high 
level of protection or ALOP for its people, which is not 1 mSv/year. Japa n is incorrect when it 
states that additional testing requirements contribute nothing additional to the achievement of 
Korea 's ALOP. Korea aims to achieve a very high level of protect ion that is stricter than the 
1 mSv/year dose limit of the International Commission on Radiological Protection (ICRP). As Korea 
noted at the Second Substantive Meeting, it is undisputed between the parties that strontium is 
hazardous and even more so than cesium. The additional testing provides information on the 
levels of stro ntium and other radionuclides in Japan 's food products, and as a result, independently 
contributes to Korea 's policy objective or ALOP. Thus, this is not a case where, in proposing cesium 
testing only, Japan is merely removing a "redundant " measure.  
74. In sum, because cesium testing is a "complementary " measure currently applied by Korea as 
part of its comprehensive regulatory response to the FDNPP accident, cesium testing itself does 
not constitute "another measure " that could apply as a "substitute " for Korea 's import ban and 
additional testing requirements un der footnote 3 of Article 5.6.  
75. For these reasons, Japan 's proposed measure – cesium testing – does not constitute 
"another measure " within the meaning of footnote 3 and Article 5.6 and, consequen tly, Japan 's 
claim must fail.  
3. Japan 's Claim Is Premised on the Use of t he Scaling Factor Method 
though the Pre-Conditions for Use of the  Method Are Not Met  
76. Japan claims that cesium testing achieves Korea 's alleged ALOP of 1 mSv /year.  In doing so, 
Japan relies heavily on the analysis provided in Exhibits JPN -11 and JPN -148.  Korea has already 
shown that 1 mSv/year is not Korea 's ALOP. In addition, Korea has shown that Japan 's 
methodological approach is flawed.  
77. Japan repeated ly claims that it is not using the Scaling Factor Method (SFM) in the 
Exhibit  JPN-11 and JPN -148 statements. Contrary to those claims, Korea has shown that Japan 's 
consultants indeed used the SFM in their analysis. As Korea previously pointed out, 
Exhibit  JPN-148 references a "scaling approach " throughout the analysis.  The SFM is a technique 
for predicting amounts of other unmeasured radionuclides on the basis of ratios with Cs -137. The 
SFM was developed to predict emissions from nuclear facilities where th e characteristics of the 
source terms are very well characterized and relatively unchanging over time. This method relies 
on a very strong correlation among radionuclides and other conditions that are not met in this 
case.  However, Korea 's experts demonst rated that Japan 's analysis based on the SFM is 
scientifically invalid because (i) there are no acceptable grounds for the use of a scaling factor and 
(ii) there is no evidence of any correlation between cesium and other radionuclides for the 
purposes of a ssessing food safety  
4. Japan 's Measurement Data Are Insufficient  
78. Japan claims that measurements in Japanese food products in Exhibits JPN -11, JPN -148, 
JPN-238 and JPN -239 confirm the conservative nature of the 100 Bq/kg cesium  threshold. Japan 
asserts that the data further confirms that, if cesium levels are below 100 Bq/kg, overall exposure 
will not exceed 1 mSv/year. Japan 's argument has several flaws.  
79. As Korea has explained, the data included in Exhibits J PN-11, JPN -148, JPN-238 and 
JPN-239 were not available to Korea 's regulator at the time the measures at issue were taken or 
even when this Panel was established. Thus, assessing Korea 's measures against these analyses 
and data would constitute an improper second -guessing  of Korea 's regulator and would violate the 
applicable standard of review and the Panel 's terms of reference.  
80. Japan has emphasized the conservative nature of its approach, including its assumptions 
regarding the contribution of strontium  to the overall radiation dose. However, Japan 's approach is 
                                                
28 Panel Report, Brazil – Retreaded Tyres , para. 7.178.  WT/DS495/ R/Add.1  
 
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 novel as was confirmed by one of the Panel 's experts. Any such novel assumptions or new 
approach must be validated through sufficient measurements, including of strontium  and other 
radionuclides.  Such measurements did not exist at the time the Panel was established and do not 
yet exist today. Thus, all assertions regarding the supposedly conservative nature of Japan 's 
approach, and utilizing data after September 28, 2015, are ex post facto  rationa lizations.  
81. In addition, as Korea has noted, the data set in Exhibits JPN -11 and JPN -148 is quite limited.  
Only 419 pairs of cesium  and strontium  data points were provided to support the conclusion in 
Exhibit JPN -148. Subsequently, Japan submitted an u pdated sample set of 579 pairs of cesium  and 
strontium  data points, which now included data points with the "ND" values for cesium  or 
strontium , or both.  However, even including the "ND" values in the analysis of the Sr -90/Cs -137 
ratio for a total of 579 pairs of data points is not sufficient, considering the long period of time that 
has elapsed since the Fukushima accident in 2011.  
82. To this day there are highly insufficient samples of strontium  measurements within Japan 's 
monitoring program. One of the  Panel 's experts recommended that one -third of the amount of 
money spent on measuring Cs -134+137 should be spent on measuring Sr -90. Another expert 
suggested that 5 percent of samples should also be analysed for Sr -90. To date, Japan has 
measured 1,272,711  Cs-134+137 samples and only 3,752 Sr -90 samples , which is about 
0.295 percent of the total cesium measurements.  Even fewer samples have been tested for 
significant radionuclides such as H3, Ru, Ce, among others.  
83. Without sufficient measurement data, Ko rea cannot ensure that testing for cesium only will 
guarantee that overall exposure remain below Korea 's ALOP. 
5. The Additional Testing Requirements Are Not Significantly More 
Restrictive to Trade than Japan 's Proposed Measure  
84. Japan errs when it asserts that Korea 's additional testing requirements are trade -restrictive 
because of the additional time and increased costs associated with the testing, and because testing 
supposedl y must be conducted in Japan.  
85. As Korea has stated, differences in t ime or costs associated with the process for testing 
additional radionuclides as opposed to cesium cannot be an indicator of trade restrictiveness. Any 
additional time or increased costs are the result of the scientific process or current state of 
technolo gy that is available for testing. As Japan itself recognizes, strontium and other additional 
radionuclides are more difficult to test than cesium. That is independent from any action taken on 
the part of Korea 's regulator. Korea cannot be penalized under A rticle 5.6 because there is not a 
faster method for tes ting additional radionuclides.  
86. Strontium testing is no more burdensome than other tests used in the food safety context, 
for example , for mercury. The technical limitations that prevent quicker and  cheaper strontium 
testing should not be understood to be a restriction on trade, particularly since these limitations 
are completely outside the control of Korea.  
87. Japan also continues to incorrectly state that a Japanese product found to contain cesiu m 
must be shipped back to Japan to undergo additional testing. This is an incorrect fact that Korea 
has repeatedly clarified.  Korea notes that a Japanese product that is subject to additional testing 
requirements can either undergo such testing in Japan prior to export to Korea, or if already at the 
Korean border, the product can undergo additional testing in Korea  at an institution that is 
authorized by Japan. Thus, Japan 's attempts to highlight the costs associated with shipping the 
Japanese consignment back to Japan for additional testing are not relevant.  
88. Japan therefore has failed to establish that its proposed measure is "significantly less 
restrictive to trade " than the additional testing requirements.  Because Japan fails to establish the 
key el ements under Article 5.6, the Panel should reject Japan 's claim.  WT/DS495/ R/Add.1  
 
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 2  B. The Role of Panel Experts in Assessing Japan 's Article 5.6 Claim  
89. Finally, Korea recalls that the role of panel experts in an assessment of Article 5.6 is limited.  
Whether or not an alternative measure 's level of risk achieves a Member 's appropriate level of 
protection is a question of legal characterization that cannot be delegated to scientific experts.29   
90. Yet, during the expert meeting, several of the Panel experts opined on t he "necessity " of 
Korea 's SPS measures in light of Korea 's ALOP. This is a question that falls outside the purview of 
the Panel experts. The ALOP is the sole prerogative of Korea, and whether an SPS measure is 
"necessary " to achieve Korea 's ALOP is a legal  question that cannot be delegated to scientific 
experts. Korea further notes that a large number of the experts ' responses were premised on a 
dose limit of 1mSv/year, which, as Korea has explained repeatedly, is not Korea 's ALOP.  
X. KOREA 'S SPS MEASURES A RE CONSISTENT WITH A RTICLE 7 / ANNEX B O F THE 
SPS AGREEMENT  
A. Publication of Korea 's SPS Measures  
91. Korea promptly published the SPS regulations at issue through press releases and notices 
that were immediately posted on government  websites. Thus, Korea  has fully complied with its 
transparency obligations under Article 7 and Annex B(1). Indeed, publication on the intern is the 
approach recommended by the SPS Committee.  
92. Japan was well aware of Korea 's press releases and notices as it specifically ref erred to 
many of them in the request for consultations, request for establishment of a panel, and in its 
submissions to this Panel.  
93. Japan argues that the publication of the basic requirements of a regulation is not sufficient 
to provide more or less complete familiarity with the regulation. However, Korea has demonstrated 
that its press releases and notices provided detailed information about the SPS measures at issue.  
The information that Korea provided was sufficient to enable interested Members to  become 
acquainted with them. In fact, several of Japan 's exhibits  were compiled using information from 
Korean government websites. The information that Japan complains was not provided was either 
provided by Korea, or is information that is generally not included in SPS regulations, such as the 
rules of origin.  
94. Finally, Japan seems to introduce a new requirement that publication on the Internet only 
complies with Annex B(1) if it occurs "in a specifically designated location ". Japan fails to provide 
any basis in the text of Annex B(1) for this requirement. Indeed, Annex B(1) does not specify the 
medium to be used for publication, nor does it require that publication occur "in a specifically 
designated location ". 
B. Korea 's SPS Enquiry Point  
95. Korea has satisfied its obligations under Annex B by establishing an Enquiry Point, which 
was responsive to Japan 's questions. The Panel should reject Japan 's attempt to apply a strict 
liability standard under Annex B(3). The actual language used in Annex B(3) i ndicates that the 
obligation on Members is to "ensure that one enquiry point exists ". There is no indication in the 
text of Annex B(3) that the drafters intended to establish a strict liability standard pursuant to 
which a single instance in which an Enqui ry Point fails to respond to a request could give rise to a 
WTO dispute.   
96. Simply  because in a single instance an Enquiry Point may not have provided information that 
satisfied the requesting party, does not give rise to a violation of Annex B(3) . 
97. Regardless, in this case, Korea 's Enquiry Point responded to Japan 's request and provided 
Japan with the requested information. Japan rests its entire claim in this case on a single request 
(24 June 2014), to which Japan acknowledges Korea responded,30 and an alleged  follow -up 
                                                
29 Appellate Body Report, Australia – Apples , para. 384.  See Korea 's first written submission, para. 98.   
30 Japan 's first written submission, para. 185.  WT/DS495/ R/Add.1  
 
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 (13 November 2014).31  Thus, at most, Japan 's claim would be based on a single instance in which 
the Korean Enquiry Point would have failed to respond to a request. This does not constitute a 
failure by Korea to "ensure that one enqui ry 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 ". 
98. In sum, Japan 's claims under Article 7 and Annex B have no merit and should be re jected by 
the Panel.   
XI. KOREA 'S SPS MEASURES ARE C ONSISTENT WITH ARTIC LE 8 / ANNEX C OF TH E 
SPS AGREEMENT  
99. Japan 's arguments fail to establish that Korea 's additional testing requirements are 
inconsistent with Article 8 and  Annex C of the SPS Agreement.  
3  A. Scope of Article 8 and Annex C  
100. Japan fails to demonstrate that Korea 's additional testing requirements are "procedures " 
within the meaning of Annex C. Japan argues that a "procedure " is defined as "[t]he fact or 
manne r of proceeding with any action, or in any circumstance or situation ". In other words, a 
"procedure " refers to the way or the manner in which an action or situation is processed.  
However, Korea 's additional testing requirements do not specify the "way or manner " in which an 
action or situation must take place. They do not dictate the process for testing, only that testing 
for additional radionuclides be conducted for products that contain at least 1 Bq/kg of cesium or 
iodine.  
101. Japan references the appa rently broad scope of the wording in the chapeau of Annex C and 
footnote 7 of Annex C. However, the fact the chapeau references "any procedure " or that 
footnote  7 indicates that Annex C procedures can include "procedures for sampling, testing and 
certifica tion," does not change the fact that Korea 's additional testing requirements must still first 
be characterized as "procedures. " 
102. Because Korea 's additional testing requirements indicate that testing for additional 
radionuclides must be conducted in pro ducts that contain at least 1 Bq/kg of cesium or iodine, not 
how or in what way or manner  the testing is to be conducted, the additional testing requirements 
are not "procedures ". Notably, footnote 7 to Annex C also specifies that "control, inspection and 
approval procedures " include "procedures  for sampling, testing and certification. " A "procedure " for 
testing would have to articulate a process  for conducting the testing beyond just requiring that the 
testing be conducted.  
103. Japan incorrectly asserts that Korea 's definition of "procedures " hinges on the "specificity " or 
"formality " of the measure and the amount of detail published regarding the measure. On the 
contrary, Korea 's arguments concern the nature of the measure itself and not the specificity of the 
details published regarding the measure.  Korea 's additional testing requirements are not 
"procedures " because they do not concern the process for conducting testing, and not because of 
any alleged lack of specificity in the information published abo ut the requirements.  
104. Thus, because Korea 's additional testing requirements are not "procedures, " they are not 
covered under Article 8 and Annex C.  
B. Assuming Annex C(1)(a) Applies, Korea 's Additional Testing Requirements 
Are Not Undertaken in a Less Favourable  Manner For  Imported Products Than 
For Like Domestic Products  
105. Japan claims that Korea 's additional testing requirements are inconsistent with Annex 
C(1)(a) because they allegedly are not "undertaken and completed … in no less favourable mann er 
for imported products than for like domestic products. " 
                                                
31 Japan 's first written submission, paras. 184 -190. WT/DS495/ R/Add.1  
 
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 106. Japan has the burden of establishing "likeness " and h as failed to meet this burden. Japan 
also has failed to establish that the additional testing requirements are undertaken in a "less 
favourable" manner for Japa nese imports.  
107. The approach to "less favourable treatment " under Annex C(1)(a) should proceed pursuant 
to the analytical approach under Article 2.1 of the TBT Agreement.  The Appellate Body has found 
that Article 2.1 of the TBT Agr eement does not "prohibit[] any detrimental impact on competitive 
opportunities for imports in cases where such detrimental impact on imports stems exclusively 
from legitimate regulatory distinctions ."32 
108. Any differences in treatment of Japanese products resulting from Korea 's additional testing 
requirements do not amount to less favo urable treatment because they are explained  by a 
legitimate regulatory distinction. Korea has demonstrated that it implemented its additional testing 
requirements wit h respect to Japanese food products because of the food safety risks posed by the 
radioactive contamination from the FDNPP. Thus, Japan 's claim of inconsistency with Annex 
C(1)(a) fails . 
C. Assuming Annex C(1)(c) Applies, Korea 's Additional Testing Require ments 
Are Not Inconsistent With  This Provision  
109. Japan also claims that Korea 's additional testing requireme nts are inconsistent with 
Annex  C(1)(c). Korea 's additional testing requirements are not "information requirements " under 
Annex C(1)(c). However, even assuming they were subject to Annex C(1)(c), Korea 's additional 
testing requirements are necessary to achieve Korea 's ALOP.  
110. Japan 's attempt to liken the situation in this case with Russia – Pigs (EU)  is misplaced. I n 
that case, the panel examined the necessity of Russia 's requests for information ( "information 
requirements ") required for the process of determining the existen ce of African swine fever 
(ASF) -free areas within the European Union (Article 8 / Annex C "procedure ").33 Thus, "information 
requirements " are requests for information to carry out an Article 8 / Annex C procedure. In 
contrast, Korea does not separately request information in order to carry out its additional testing 
requirements. The additional t esting requirements do not involve "information requirements " that 
are sep arate from the measure itself.  
111. Japan itself has stated that both the additional testing and certification requirements involve 
or constitute information requirements.  As Japan 's statement reflects, the additional testing 
requirements do not involve "information requirements " that can be separated from the measure 
itself.  Japan also asserts that Korea requires not only additional testing be undertaken, but also 
that a "test repor t" or "certificate " be submitted to disclose the results of the additional testing to 
Korean authorities.  Again, a test report or certificate is not a separate information requirement in 
order to carry out an Article 8 / Annex C procedure. The submission of a test report or certificate is 
part of the additional testing requirement itself, as there would be no purpose to requiring 
additional testing if the results of that testing were not recorded and presented to Korean 
authorities.  
112. Japan also continu es to challenge the additional testing requirements as being 
"unnecessary " to "ensure compliance with Korea 's 1 mSv/year ALOP ".  In making such arguments, 
Japan is challenging the necessity of the testing requirements themselves and not any requirement 
to provide information. In doing so, Japan simply reiterates its Article 2.3 and 5.6 arguments.  
Even so, Korea has repeatedly sh own that only testing for cesium does not ensure compliance with 
Korea 's ALOP.  As a result, its additional testing requirements are necessary.  
113. Finally, in its responses to Panel questions after the Second Substantive Meeting, Japan 
asserted that in t he event the Panel were to consider that Korea 's additional testing requirements 
do not constitute "information requirements " within the meaning of Annex C(1)(c), Japan submits 
that the additional "certification " requirements alone constitute "information requirements ", and 
that these certification requirements are not "limited to what is necessary for appropriate control, 
inspection and approval procedures. " Even if the Panel were to accept this new argument at such a 
late stage in the proceedings, Japan a gain errs in trying to adopt a formalistic separation between 
                                                
32 Appellate Body Report, US – Clove Cigarettes , para. 174 (emphasis added).  
33 Panel Report, Russia – Pigs (EU) , paras. 7.564 -7.571.  WT/DS495/ R/Add.1  
 
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 the additional testing requirements and the so -called "additional certification requirements. " The 
"additional certification requirements " are not separate from the "additional testing requireme nts." 
They reflect the results from the testing conducted.  
114. Even if Korea 's additional testing requirements are subject to Annex C(1)(c), Korea has 
shown that the additional testing requirements are necessary to achieve Korea 's ALOP given the 
insuffici ent measurement data on radionuclides other than cesium, the lack of correlation found 
between cesium and other radionuclides, and the ongoing contamination stemming from the 
FDNPP.  
D. Assuming Annex C(1)(e) Applies, Korea 's Additional Testing Requirement s 
Are Limited To What Is Reasonable And Necessary  
115.  A "specimen " refers to a sample taken from a larger consignment. Annex C(1)(e) refers to 
regulations on the control, transport, inspection and approval of diagnostic  specimens (including 
biological samples, infectious substances, etc.) for disease control and testing purposes.  The World 
Organization for Animal Health (OIE) (or formerly the International Office of Epizootics), which is 
specifically referenced in the pr eamble of the SPS Agreement, has adopted standards in relation to 
the handling of such specimens. The most relevant standards are included in Chapter 1.1.3 of the 
Manual of Diagnostic Tests and Vaccines for Terrestrial Animals: "Transport of Specimens of 
Animal Origin ". The OIE Manual articulates requirements for the transport, collection, storage, 
handling and a cceptance of animal specimens.  
116. Korea 's additional testing requirements do not concern "individual specimens ". While Korea 's 
additional testing  requirements involve testing certain randomly selected samples within each 
Japanese consignment for other radionuclides if more than 1 Bq/kg of cesium or iodine is detected, 
the additional testing requirements do not outline methods or procedures concerni ng how the 
"individual specimens " or "biological samples " will be collected, handled, stored, and transported.  
Thus, Korea 's additional testing requirements are not such procedures covered under  
Annex  C(1)(e).  
117. Even if Korea 's additional testing requi rements were to  fall within the scope of 
Annex  C(1)(e),  they are both reasonable and necessary to achieve Korea 's ALOP. Moreover, 
Japan 's Annex C(1)(e) claim is again premised on misrepresentations regarding the key elements 
of Korea 's additional testing r equirements. Testing for additional radionuclides does not have to 
take place in Japan. Korea only requires that the laboratory or institution conducting the testing be 
authorized by the Japanese government , and thus has implemented its additional testing 
requirements in a reasonable manner.  
E. Assuming Annex C(1)(g) Applies, the Provision Does Not Impose a 
Mandatory Obligation on Korea 's Additional Testing Requirements  
118. Korea notes that Annex C(1)(g) uses the words "should be used " rather than "shall", or even 
"are" which is used in Annex C, paragraphs 1(a), 1(c), and 1(e). The plain language meaning of 
"should ", as opposed to "shall", means that this provision is hortatory.  
119. Korea also notes that the language in Annex C(1)(g) is very similar to Article 5.2.6 under 
the TBT Agreement. However, in the latter, the mandatory nature of the provision is explicit. The 
distinctions in the language used in the two agreements must be given effect.  
120. Moreover, the language in Article 5.2.6 of the TBT Agre ement has a "necessity " test 
embedded within the provision.  By contrast, Annex C(1)(g) only encourages the "minimizing " of 
inconvenience. There is an inherent lack of specificity in how each Member is to minimize the 
inconvenience to applicants, importers , and exporters in any given situation and what that entails.  
As a result, other language in the provision also provides further support for the hortatory nature 
of Annex C(1)(g).  
121. Even assuming that Annex C(1)(g) were to impose a mandatory obligation , Korea has 
already demonstrated that Japan 's claim fails because it is again premised on mischaracterizations 
of Korea 's additional testing requirements.  WT/DS495/ R/Add.1  
 
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 122. Japan claims that Korea erroneously compares (i) pre -market testing of Japanese food 
products wi th (ii) point -of-sale testing of both Japanese and domestic food products. Japan then 
asserts that domestic Korean food products are subject only to point -of-sale testing, which may 
include additional testing, and are not subject to pre -market testing.  This is incorrect.  
123. Cesium testing is conducted on samples from randomly selected final products. In addition, 
Korea conducts radioactivity testing on randomly selected domestic products both at the 
pre-market stage (i.e., at the stage of production)  and at the point -of-sale stage , in the same 
manner as radioactivity testing is conducted for imported foods both at the border and at the 
point-of-sale.  Moreover, additional testing is also required for domestic Korean products that are 
found to contain more than 1 Bq/kg of cesium or iodine at both the pre -market stage (i.e., at the 
stage of production)  and point-of-sale stage .   
124. With respect to the "siting of facilities, " Korea does not require that food products from 
Japan containing at least 1 Bq/kg of  cesium or iodine be sent back to Japan for additional testing.  
Korea permits the testing for additional radionuclides to occur in Korea or prior to export to Korea, 
as long as the testing is conducted by an institution authorized by the Japanese governme nt.  
125. With respect to the "selection of samples ", Korea reiterates that domestic food products are 
also subject to additional testing if at least 1 Bq/kg of cesium or iodine was detected. Japan 
incorrectly alleges that under Korea 's measure, mandatory additional testing is required for all 
consignments from Japan in which any cesium or iodine is found, while Korean products are not 
subject to similar mandatory testing for additional radionuclides when cesium or iodine is found.  
For Korean products that  have been found to contain at least 1 Bq/kg of cesium or iodine, testing 
for additional radionuclides is mandatory.  
126. The plain text of Annex C(1)(g) references the "criteria " used in the "selection of samples " of 
imported and domestic products. Japan does not challenge ces ium testing, whether at the 
pre-export  stage or at the Korean border. That means Japan does not challenge the scope or 
frequency of that testing.  Japan 's Annex C(1)(g) claim only relates to K orea's additional testing 
requirements. Korea has shown that the "criteria " used in the "selection of samples " of imported 
and domestic products for additional testing is the same. Specifically, if 1 Bq/kg of cesium or 
iodine is detected, both imported Jap anese products and domestic Korean products are subject to 
mandatory additional testing requirements. Pursuant to its annual Guidelines for Food Safety 
Management, Korea has required additional testing for strontium, plutonium, and other 
radionuclides if 1  Bq/kg of cesium or iodine is detected.  
127. Japan then claims that the Panel must ensure an "apples -to-apples comparison " of the 
differences in sampling criteria under Annex C(1)(g) which may necessitate an assessment of 
whether any differences in samplin g criteria are rationally related to, and justified by, differences 
in the respective purpose of the schemes being compared. This is a new test proposed by Japan, 
which is not linked to the plain text of Annex C(1)(g). There is no indication of a 
trade -restrictiveness or necessity test in the provision.  Annex C(1)(g) only encourages Members 
to use the "same criteria " with respect to the "siting of facilities " and "selection of samples " for 
imported products and domestic products. Annex C(1)(g) does not cal l for an analysis of whether 
the differences in sampling criteria are "rationally related to, and justified by, differences in the 
respective purpose of the schemes being compared ". As a result, the Panel should disregard 
Japan 's attempts to insert new tes ts into its analysis that do not have any basis in the text of 
Annex C(1)(g).  
128. Ultimately, however, because Annex C(1)(g) does not impose a mandatory obligation, Japan 
fails to show that Korea 's additional testing requirements are inconsistent with Ann ex C(1)(g) of 
the SPS Agreement.  
XII. CONCLUSION  
129. For these reasons, Korea respectfully requests that the Panel reject Japan 's claims in their 
entirety.  
 
_______________  
 WT/DS495/ R/Add.1  
 
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 ANNEX  C 
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary of the arguments of Brazil  C-2 
Annex  C-2 Integrated executive summary of the arguments of Canada  C-3 
Annex  C-3 Integrated executive summary of the arguments of the European Union  C-7 
Annex  C-4 Executive summary of the arguments of New Zealand  C-11 
Annex  C-5 Executive summary of the arguments of Norway  C-14 
Annex  C-6 Executive summary of the arguments of the United States  C-18 
 
 
 WT/DS495/ R/Add.1  
 
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 ANNEX C -1 
INTEGRATED EXECUTIVE SUMMARY OF  THE ARGUMENTS OF BRAZIL  
BRAZIL'S VIEWS ON THE TRANSPARENCY OBLIGATIONS IN THE SPS AGREEMENT  
1. Brazil intervenes in this dispute due to its systemic interest in the correct and consistent 
interpretation of the obligations contained in the Agreement on the Application of Sanitary and 
Phytosanitary Measures ("SPS Agreement"), particularly those related to transparency and the 
provision of inform ation related to SPS measures by the WTO Members. This integrated executive 
summary integrates comments made by Brazil in its Third Party Written Submission and the 
responses to the Panel's questions.  
2. In its third party submission, Brazil clarified that  it does not question the Members' right to 
adopt sanitary measures they deemed necessary, including an appropriate level of protection 
higher than that established by international standards. However, this right is not unbounded as 
the adoption of SPS mea sures are to be applied only to the extent necessary, based on scientific 
principles and in a non -discriminatory manner.  
3. Brazil understands that the transparency obligations under Article 7 and Annex B are not 
something irrelevant, but central pieces o f the SPS Agreement, and are directly linked to the right 
to adopt SPS measures. These obligations constitute the adequate means to inform others 
Members affected by the measures and to provide additional information they deemed necessary.  
4. In what regar ds the obligation contained in Article 7 and Annex B, Brazil explained that,  in 
order to maintain the balance of rights and obligations in the WTO, Members need to ensure that 
any sanitary measure which may affect international trade are promptly informed  to the 
Membership, particularly those directly affected by the implementation of the measure. The duty 
to inform is not to be understood as pro forma , but entails the need to provide prompt, on -time, 
and effective information on all aspects of the relevan t measure.  
5. As for the questions of the Panel to the third parties, Brazil argued that the scope of the 
publication obligation provided for in Annex B(1) is not straightforward and should be interpreted 
in light of the provision's own object and purpose.  In this sense, when Annex B(1) determines that 
measures adopted be published promptly "in such a manner" as to enable interested Members to 
become acquainted with them, it establishes that the content of the publication/notification in 
order to comply wit h this publication obligation is not fixed.  
6. The expression "in such a manner" of Annex B(1) works as an operative element that 
informs the scope of the publication obligation and the level of detail of information to be provided. 
As the very basis of t ransparency obligations, Brazil understands that the SPS measure itself need 
to be published and does not agree with interpretations that suggest that the publication obligation 
may be narrower depending on the specificities of the relevant regulation. Nev ertheless, although 
in most situations the simple publication of the text of the relevant SPS measures may suffice to 
provide enough information to interested Members, there may be cases in which the nature of the 
measure requires additional information so  as to allow the Membership to "become acquainted 
with" the real scope of the SPS measure.  WT/DS495/ R/Add.1  
 
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 ANNEX  C-2 
INTEGRATED EXECUTIVE SUMMARY OF  THE ARGUMENTS OF CANADA  
I. INTRODUCTION  
1. As a third party in this case, Canada submitted a written statement, an oral statement, and 
responses to third party questions issued by the Panel.  In this Executive Summary, Canada 
summarizes its position on issues related to the scope of SPS Agreement Annex B.1 and Annex 
B.3, the interpretation of Article 2.3, and the impact of Article 5.7 on Articles 2.3 and 5.6.  
A. SPS Agreement Transparency Provisions: Annex B  
1. The regulation must be published under Annex B.1  
2. It is Canada's position that the adopted regulation must be published pursuant to Annex B.1.  
Canada believes that the plain and ordinary meaning of the provision, in accordance with Article 
31(1) of the Vienna Convention on the Law of Treaties (Vienna Convention), is clear and requires 
that all adopted SPS regu lations be published promptly.  
3. The context of Annex B.1 also suggests that it is the final measure itself that must be 
published. In contrast to Annex B.5(a) and (b), which refer to the publication of a notice  in 
advance of a regulation, and Annex B.5(c ), which refers to the actual copies of the proposed  
regulation, Annex B.1 clearly refers to the adopted  measure itself that must be published 
promptly.  
4. Canada also notes that footnote 5 to Annex B.1 states that regulations include "laws, 
decrees, or or dinances which are applicable generally".  The Appellate Body in Japan – Agricultural 
Products II  clarified that measures that are "similar in character" to those in the footnote also fall 
within the scope of Annex B.1.  Canada does not believe a press rel ease falls within the scope of 
Annex B.1 as it is not the regulation itself, it does not fall within the scope of footnote 5, and is not 
"similar in character" to those instruments in footnote 5.  Canada does not believe that publishing 
a summary of a regu lation is sufficient to fulfil the requirements of Annex B.1.  However, if the 
actual regulation or measure is appended to the press release, or if there is a direct web link to the 
regulation or measure in a press release, the requirement to publish the " regulation" in Annex B.1 
would be met.  
2. "To become acquainted with" a measure in Annex B.1 means a 
measure must provide the level of information necessary for an 
exporter to understand what is required for a product to get to 
market  
5. Annex B.1 requires  that the publication of a measure be done in such a manner as to allow 
other Members "to become acquainted with them".  It is Canada's position that this requirement 
goes beyond the mere publication of the measure, to whether the measure provides a level of 
information necessary for an exporter to understand what is required for a product to get to 
market.  
6. In accordance with Article 31(1) of the Vienna Convention, Canada notes that the ordinary 
meaning of the word "acquaint" in the Shorter Oxford Englis h Dictionary is to be made "aware" or 
"familiar" . This suggests that a threshold amount of information must be included in the 
regulation. In this case, exporters would need to be sufficiently aware and familiar with the 
measures so that th ey could export their products.  This could only be achieved if the measure 
includes a certain de gree of detail and specificity.  Canada also believes that the meaning of "in 
such a manner" should not be restricted to how a measure is published, but speaks to the content 
of the measure.  WT/DS495/ R/Add.1  
 
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 7. Canada notes that the Appellate Body in Japan – Agricultural Products II  stated that the 
scope of Annex B.1 should be interpreted in light of the object and purpose of the provision.  
Canada believes that its position on the interpretation  of Annex B.1 is supported by the object and 
purpose of the provision and the SPS Agreement more generally, which is to facilitate 
transparency and the predictability of the rules affecting trade in products subject to those rules.  
8. The amount of informa tion necessary to meet the threshold in Annex B.1 will depend on the 
circumstances of the particular measure.  In some cases, a measure may be less complex and 
require less detail for a Member and its exporters to become sufficiently "acquainted" with the 
measure.  However, in other cases a measure may include a series of complex requirements and 
necessitate a greater level of detail and explanation for exporters to understand what is required 
of them.  
9. Canada agrees with Norway's citation of three cases under Article X:1 of the GATT 1994, as 
support for its position on this issue based on the similarity of the provision to Annex B.1 of the 
SPS Agreement. In EC – IT Products , the Panel held that the minutes of a Customs Code 
Committee meeting did not provide traders and governments with adequate knowledge of the 
measures at issue. In Dominican Republic – Import and Sale of Cigarettes  and Thailand – 
Cigarettes (Philippines),  the panels set out specifically what type of information would be 
necessary to meet the requirements of the transparency provision.  These cases suggest strongly 
that there is a substantive requirement to the transparency provisions of Article X:1 of the GA TT 
1994, and not just a procedural requirement, and Canada believes that the same substantive 
requirement exists for Annex B.1 of the SPS Agreement.  
3. Annex B.3 includes a substantive obligation to provide answers to 
"reasonable questions" and to provide "relevant documents" 
where requested  
10. Canada believes that Annex B.3 is not limited to a procedural requirement of establishing an 
Enquiry Point, but includes a substantive obligation of responding meaningfully to reasonable 
questions and providing rele vant documents that fall within the scope of Annex B.3(a) -(d). 
11.  It is Canada’s position that limiting Annex B.3 to a procedural requirement is contrary to 
the plain and ordinary meaning of the provision, and would deprive it of any practical meaning.  
Furthermore, such an interpretation would be contrary to the object and purpose of the provision , 
which is clear from reading the text: there is an obligation to not only have an Enquiry Point, but 
to answer all reasonable questions and provide documents t hat fall wit hin the scope of the 
provision.  To suggest that the text of the treaty should be interpreted as requiring the 
establishment of an Enquiry Point to respond to inquiries that fall within the subparagraph (a) -(d), 
but that there is no obligation t o actually answer any of these inquiries, is absurd.  As stated by 
the Appellate Body in Australia – Salmon , it "would obviously be wrong to interpret the SPS 
Agreement in a way that would render nugatory entire articles or paragraphs of articles of this 
Agreement and allow Members to escape from their obligations under this Agreement".  
12. Canada also believes there is extensive support for its position when the provision is read in 
its context. Annex B.4, also under "Enquiry Points", clearly assumes that the documents requested 
under Annex B.3 will be delivered (and supplied at a certain price).  Canada also recalls that Article 
7 (Transparency) requires Members to "…provide information on their [SPS] measures in 
accordance with the provisions of Annex B",  and Annex B.3 reflects the obligation in Article 7 to 
provide relevant documents and answer reasonable questions.  
13. Canada disagrees with the United States' position that Members' substantive obligations with 
respect to transparency are not found in Ann ex B.3, but are found in other provisions such  as 
Annex B.1 and Article 5.8. Canada notes that the transparency obligations in Annex B.1 and Article 
5.8 address two very narrow and specific scenarios. Annex B.1 addresses the requirement to 
promptly publish  the adopted SPS measure in such a manner as to enable Members to become 
acquainted with them, while Article 5.8 allows a Member to request an explanation of the reasons 
for an SPS measure when there is reason to believe that the measure is constraining or  has the 
potential to constrain its exports, and the measure is not based on international standards.  The 
only other substantive transparency obligations in Annex B fall under "Notification Procedures", 
which are also limited and specific in their applica tion: they apply in the context of a proposed WT/DS495/ R/Add.1  
 
- C-5 - 
 
 regulation.  It would be illogical to suggest that there are comprehensive transparency obligations 
for proposed regulations, but none when the measure has been adopted.  
14. Canada has taken the position that t he meaning of "reasonable questions" and "relevant 
documents" in Annex B.3 should be determined in light of what information Members and 
exporters need in order to ensure equality of competitive opportunities for foreign producers and 
exporters.  This posi tion is supported by the plain and ordinary meaning of "reasonable" and 
"relevant" in the Shor ter Oxford English Dictionary. "Reasonable" means "appropriate or suitable 
to the circumstances or purpose" and not "irrational, absurd or ridiculous". "Relevant"  means 
"bearing on, connected with, or pertinent to the matter at hand".  Canada submits that what would 
constitute reasonable information or relevant documents in this case would be information that 
would be necessary for exporters to understand what is r equired for a product to be eligible for 
market access.  
15. Overall, there will be an element of discretionary judgment that WTO panels will have to 
exercise in deciding what level of detailed information must be published in Annex B.1 and what 
can be addr essed  subsequently under Annex B.3. Canada believes that the two provisions work in 
tandem.  
B. SPS Agreement Substantive Provisions  
1. SPS Agreement Article 2.3 and "where identical or similar 
provisions prevail"  
16. The first sentence of Article 2.3 sets out a three -step test that includes the following 
cumulative elements: a) that identical or similar conditions prevail in the territories of the 
Members being compared; b) that the challenged measure discriminates between those Members; 
and c) that the dis crimination is arbitrary or unjustifiable.  
17. The first step of the test requires a comparison of conditions, similar to that found in Article 
XX of the GATT 1994.  Canada notes that the Appellate Body in EC – Seal Products  stated that the 
term "condition s" could encompass a number of circumstances facing a country, while the panel in 
Australia – Salmon (Article 21.5 – Canada)  stated that discrimination under Article 2.3 of the SPS 
Agreement may include discrimination between products that are different.  
18. Canada takes the position that it is the similarity of risks that is the central factor in the first 
step of the Article 2.3 analysis.  For example, the mere presence of a disease in a Member's 
territory and the risk associated with that disease may be a relevant condition if the same or 
similar disease prevails in another Member's territory.  A comparison of the level of risks posed by 
comparable products may be one of many factors that can be taken into account in an "identical or 
similar conditions" a nalysis.  Canada also notes that the jurisprudence suggests that the conditions 
to be compared must be relevant and case -specific, and that the regulatory objective of a measure 
can provide guidance on the question of which conditions prevailing in Members  are relevant. In 
the context of this case, Canada believes that an assessment of relevant conditions should include, 
for example, the presence of toxins within a territory, namely the presence of cesium, and the 
risk-mitigating measures in place to assure  the sanitary safety of food products.  
2. The nature of a provisional measure under Article 5.7 should be 
taken into account in an assessment under Articles 2.3 and 5.6  
19. Canada believes that the provisional nature of a measure is a relevant consideratio n for the 
purposes of the other substantive obligations in the SPS Agreement, if the measure also satisfies 
the criteria in Article 5.7.  
20. Canada recalls the position of the Appellate Body in EC – Approval and Marketing of Biotech 
Products , that the thre shold issue for Article 5.7 is whether relevant scientific evidence is 
insufficient.  A measure would fall within the scope of Article 5.7 only if the four cumulative criteria 
cited by the Appellate Body in Japan – Agricultural Products II are met: the mea sure is imposed 
where relevant scientific information is insufficient; the measure is adopted on the basis of 
pertinent information; the Member adopting the measure seeks to obtain the additional WT/DS495/ R/Add.1  
 
- C-6 - 
 
 information necessary for a more objective assessment of ris k; and that the Member reviews the 
measure accordingly within a reasonable period of time.  
21. Canada notes that the panel in EC – Approval and Marketing of Biotech Products stated that 
the obligations of Articles 2.1, 2.3 and 2.4 are applicable to provisi onal measures under Article  5.7.  
However, Canada believes that if a measure meets the requirements of Article 5.7, this must be 
taken into account in an assessment of the measure under Articles 2.3 and 5.6.  Therefore, for 
example, an analysis under Artic le 2.3 would take into account the fact that there was insufficient 
evidence to complete a full risk assessment on which to base the measure.  Similarly, an 
assessment under Article 2.3 should take into account the fact that a measure is provisional under 
Article 5.7.  For example, in assessing whether a measure is arbitrary or unjustifiable, Korea may 
provide a justifiable rationale for the imposition of more stringent measures against Japanese fish 
products as compared to similar products from other count ries. 
 WT/DS495/ R/Add.1  
 
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 ANNEX C -3 
INTEGRATED EXECUTIVE SUMMARY OF  THE ARGUMENTS OF THE EUROPEAN UNION  
1. CLAIMS RELATED TO ARTICLE 7 AND ANNEX B OF THE SPS  AGREEMENT  
1.1. THE ALLEGED FAILURE T O PUBLISH THE SPS REGULATIONS  
4.1.2.1. Relationship of Article 7  and Annex B  
1. The European Union (EU) agrees with previous panels and the Appellate Body that a finding 
of inconsistency with Annex B would result in a finding of inconsistency also with Article 7. The EU 
recalls that previous panels have therefore start ed by examining the claims under Annex B.  
4.1.2.2. Paragraph 1 of Annex B  
2. According to Annex B(1), Members shall ensure that SPS regulations (i.e. SPS measures, 
read in conjunction with footnote 5 of the SPS Agreement) are published promptly "in such a 
manner as to enable interested Members to become acquainted with them. " The Appellate Body 
has previously stated in Japan – Agricultural Products II  that the object and purpose of Annex B(1) 
is to enable interested Members to become acquainted with SPS mea sures and to enhance 
transparency regarding those measures. With regard to the similarly worded publication obligation 
in Article X:1 GATT 1994, the panel previously found in EC – IT Products  that the publication 
should provide governments and traders with  "adequate " knowledge of the measures in question. 
The case law as well as the fact that the SPS Agreement contains several provisions dealing with 
transparency (e.g. Article 5.8, Article 7, Annex B) underline the importance of transparency 
obligations und er the SPS Agreement.    
3. The overall purpose of Annex B(1) therefore is to ensure that other Members (and their 
exporters) are able to understand the SPS measure in question, to know what is required of them 
so that they can continue exporting e.g. thei r food and feed products to the Member adopting the 
SPS measure. Whether a given publication fulfils this purpose in a specific case will depend on a 
case-by-case analysis.  
4. Accordingly, the EU considers that in principle the publication of the SPS measu re as such is 
required but also sufficient to fulfil the transparency obligation under Annex B(1). However, what 
is required of a Member to comply with the obligation to publish may depend on the factual 
circumstances of a given case. The EU therefore does  not take the position that the publication by 
Korea of press releases regarding the SPS measures per se allows to conclude on the inconsistency 
of the publication with Annex B(1) on the grounds that a press release does not constitute the SPS 
measure itse lf. The EU considers that in certain exceptional circumstances, the publication of a 
text falling short of the full text of the SPS measure may be sufficient to fulfil the transparency 
obligations. In the case of a press release, this could be the case, fo r example, if the press release 
contains a web link to the full text of the respective SPS measure or if the SPS measure is 
described in such a manner so as to amount de facto  to the publication of the SPS measure. The 
EU does not conclude on the factual q uestion as to whether this is the case.       
1.2. THE ALLEGED FAILURE T O PROVIDE INFORMATIO N 
5. Annex B(3) states that each Member "shall ensure that one enquiry point exists " which is 
"responsible " for providing answers and documents. In view of the impor tance of the transparency 
obligations under the SPS Agreement, the EU considers that Annex B(3) would be devoid of 
purpose if it would contain a mere obligation to set up an enquiry point and to provide any type of 
answers or documents, irrespective of the ir substantive content.  
6. According to the European Union 's view, Annex B(3) contains an obligation for Members to 
provide meaningful answers and documents. The provision of an answer/document creates a 
presumption that the obligation to provide meaningfu l answers has been complied with. This 
presumption may be rebutted in which case the panel may find an inconsistency with Annex B(3).   
7. However, the obligation to provide meaningful answers is subject to certain limitations, e.g., 
(i) it only applies wi th respect to "reasonable " questions and "relevant " documents; (ii) it is subject 
to a standard of reasonableness; (iii) it must be considered in the overall context (e.g. not every WT/DS495/ R/Add.1  
 
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 failure to reply is an inconsistency) and (iv) the questions and documents must "regard ", i.e. be 
closely related to the items listed exhaustively in subparagraphs (a) to (d).  
8. The EU also notes that any argument that Article 5.8 contains a specific (an d hence the 
only) obligation to provide answers under the SPS Agreement cannot prevail. Article 5.8 concerns 
a specific obligation to provide "explanations of the reasons " for an SPS measure in particular 
circumstances. This is a situation which is not nec essarily covered by Annex B(3) and hence Article 
5.8 is not relevant to define the scope of the obligation under Annex B(3).        
2.  CLAIMS RELATED TO ARTICLE 2.3 OF THE SPS  AGREEMENT  
2.1.   RELATIONSHIP OF ARTICLE 2.3 WITH OTHER PROVISIONS  
9. The EU ag rees with previous case law stating that an inconsistency with Article 2.3 can be 
found independently of an inconsistency with the more specific obligation of Article 5.5. Therefore 
Japan may invoke an inconsistency with Article 2.3 without having to invok e Article 5.5.  
10. The EU also considers that the potential provisional nature of Korea 's SPS measures and 
hence Article 5.7 and its relationship with Article 2.3 may be relevant for the panel 's assessment in 
the present case. Japan makes no claim under Ar ticle 5.7 of the SPS Agreement. Korea also does 
not make an explicit argument under Article 5.7, except to generally describe its measures as 
"provisional in nature pursuant to Article 5.7 ". Korea 's arguments under Article 2.3 (and under 
Article 5.6) focus  on the alleged lack of scientific information. The EU notes that Article 5.7 can be 
relied upon by the respondent against a claim brought under another relevant provision of the SPS 
Agreement even if the complainant did not invoke Article 5.7.  
11. The EU considers that Article 2.3 remains applicable even if a measure is provisional under 
Article 5.7. Other than in Article 2.2, Article 5.7 is not mentioned as a qualified exemption in 
Article 2.3. The EU also considers that the provisions in Article 5.7 and Article 5.5 (and Article 5.6, 
see below) are closely connected and contextually inform each other. A situation of insufficient 
scientific evidence should not completely insulate the regulating Member from the specific non -
discrimination obligation under Ar ticle 5.5 and the same applies to the general non -discrimination 
obligation under Article 2.3.  However, the assessment under Article 2.3 would in such case be 
informed by the fact that a provisional measure is, by definition, based on incomplete informati on. 
This is similar to the situation in EC - Biotech  where the panel held that, where scientific evidence 
is insufficient, Members are only required to perform a risk assessment which "takes into account 
available pertinent information ". The non -discrimina tion analysis of a provisional measure should 
therefore not be carried out under the same standard as for a definitive measure, based on a full 
risk assessment.     
12. The EU also takes the view that Article 2.3 cannot be meaningfully applied in the prese nt 
case without taking into account if Korea 's SPS measures are provisional, whether Article 5.7 is 
invoked or not and whether the conditions of Article 5.7 are fulfilled or not. In deciding any claim 
under Article 2.3, a panel must look at the totality of  the facts and evidence which may include the 
provisionality of a measure. This is also warranted under Article 11 DSU. The EU also considers 
that the fact that "all relevant factors " should be considered for the guidelines with respect to the 
implementati on of the non -discrimination obligation under Article 5.5 indicates that all relevant 
factors should also be considered for an analysis as regards non -discrimination under Article 2.3 . 
2.2. ARTICLE 2.3  
13. Under Article 2.3, first sentence, an SPS measure  is discriminatory if (1) the measure 
discriminates between the territories of Members other than the Member imposing the measure, or 
between the territory of the Member imposing the measure and that of another Member; (2) the 
discrimination is arbitrary o r unjustifiable; and (3) identical or similar conditions prevail in the 
territory of the Members compared. The EU agrees with the position of previous panels that 
measures that constitute arbitrary or unjustifiable discrimination also constitute a disguise d 
restriction under Article 2.3, second sentence.  
14. The central issue under Article 2.3 in the present case appears to be whether identical or 
similar conditions prevail in the territory of the Members compared. The EU recalls that Article 2.3, 
contrary  to the usual position with respect to non -discrimination obligations under other WTO 
agreements, may also include discrimination between different (non -competing) products. Article 
2.3 therefore does not require a comparison in order to determine whether certain products are 
"like" but requires a comparison in order to determine whether conditions are similar or identical.  WT/DS495/ R/Add.1  
 
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 15. Japan's comparison in the present case focuses on the question of whether and to what 
extent Japanese food and food from other sou rces may contain cesium and other radionuclides. 
Contrary to Korea 's contention, the EU does not consider that this constitutes an assessment as to 
whether the products are comparable, since Japan did not carry out any analysis of the 
competitive relations hip between Japanese and non -Japanese fishery products. The level of 
radionuclides in food products is one important element to assess whether conditions are similar in 
a case like the present one. However, the EU considers that the panel will have to care fully assess 
whether Japan has shown, on the basis of a comparison of all relevant factors, that the conditions 
in the respective territories are similar.  
3. CLAIMS RELATED TO ARTICLE 5.6 OF THE SPS  AGREEMENT  
16. Under Article 5.6, an SPS measure is more trade -restrictive than required if there is an 
alternative SPS measure which (1) is reasonably available, taking into account technical and 
economic feasibility; (2) achieves the Member's ALOP and (3) is significan tly less trade restrictive 
than the contested measure. It is for each Member to choose its own ALOP. However, the Member 
should calibrate its measures according to the chosen level.  
3.1. IMPORT BANS  
17. The EU proceeds on the assumption that Japan 's propo sed alternative measure corresponds 
to Korea 's approach to food from non -Japanese sources.  
18. The Appellate Body has noted that the SPS Agreement contains an implicit obligation to 
determine the appropriate level of protection. Where a Member does not do so with sufficient 
precision, the ALOP may be established by panels on the basis of the level o f protection reflected 
in the SPS measure actually applied. With this in mind, the relationship between Korea 's 1 
mSv/year benchmark and the "ALARA " principle should be clarified, in order to understand at 
which level the ALOP is actually set. Moreover, th e Panel may look to the "SPS measure actually 
applied " for evidence on Korea 's ALOP. If such an assessment showed that Korea seeks to ensure 
an ALOP of 1 mSv/year with respect to Korean food and non -Japanese imports, it would be difficult 
to see how a diff erent ALOP could apply to Japanese imports. If the ALOP was said to be "ALARA " 
for food from all sources, this might suggest that Korea 's measure does not reach Korea 's own 
ALOP with respect to Korean and non -Japanese food.  
19. Another contentious issue is  whether Japan 's proposed alternative measure achieves Korea 's 
ALOP. In this respect, the EU focuses on the relationship between necessity, as expressed in 
Article 5.6, and insufficient scientific evidence, as expressed in Article 5.7 of the SPS Agreement.  
As mentioned earlier, none of the Parties invokes Article 5.7 in the present case.    
20. Article 5.6 should be read together with Article 2.2 of the SPS Agreement. Article 2.2 
excludes from its scope of application the kinds of situations covered by Arti cle 5.7. This does not 
necessarily mean that situations covered by Article 5.7 are excluded from the scope of Article 5.6. 
Articles 5.6 and 5.7 are closely connected provisions. For example, the reference to "technical 
feasibility " in Article 5.6 could lea d the adjudicator to ask whether it was technically feasible, in a 
situation of insufficient scientific evidence, for the regulator to design a less restrictive measure; 
conversely, the Article 5.7 requirements to base provisional measures on "available pe rtinent 
information ", to seek additional information and review the measure, are a way of preventing the 
maintenance of overly trade -restrictive measures. In deciding any claim under Article 5.6, a panel 
must look at the totality of the facts and evidence.  It is hard to see how facts and evidence 
showing that a measure is, in some sense, provisional in nature could be disregarded just because 
Article 5.7 was not relied upon. Moreover, even where those facts and evidence would not in 
themselves be sufficient  to fulfil the requirements of Article 5.7, there is no basis on which a panel 
could simply disregard them entirely, in view of its obligation under Article 11 DSU.  
21. The EC - Biotech  panel held that, where scientific evidence is insufficient, Members ar e only 
required to perform a risk assessment which "takes into account available pertinent information ". 
Such considerations should also weigh in with respect to Article 5.6. A provisional measure is, by 
definition, based on incomplete information. There m ay be uncertainty as to such a measure 's 
contribution to the Member 's ALOP, or its trade -restrictiveness. Alternative measures may be more 
difficult to implement on a provisional basis. A provisional measure could still be more trade 
restrictive than neces sary, for example if it does not take into account "available pertinent 
information ". Conversely, the fact that a measure is manifestly unnecessary and disproportionate 
would be relevant to determining whether or not the measure is in fact based on pertine nt 
information. Both scenarios would support the conclusion that the measure breaches both Article 
5.7 and Article 5.6.  WT/DS495/ R/Add.1  
 
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 22. Moving on, the EU agrees that, in principle, product testing is a less trade restrictive 
measure than an import ban, since it still allows imports to access the regulating Member 's 
market. Finally, the EU agrees with Japan that the regulating Member 's existing use of the 
alternative measure with respect to the same or closely comparable products or risks could 
support the claim that th e measure is reasonably available.  
3.2. ADDITIONAL TESTING RE QUIREMENTS  
23. The EU refers mutatis mutandis  to its comments on the necessity of the import bans, adding 
only the following remarks on whether the alternative measure is significantly less trad e 
restrictive. Here, the central issue is the extent of market access permitted by the two measures 
being compared. Any additional costs, complexities and delays that are imposed on imports as a 
result of the measure at issue, which would not be imposed un der the alternative measure, should 
be taken into account. Thus, the EU disagrees with Korea insofar as it seems to suggest that 
differences in costs and delays are not a relevant consideration.  
24. With respect to Korea 's argument that additional testing  is also contemplated by the Codex 
standard, the EU notes that whether or not an SPS measure is based on an international standard 
is not necessarily an issue that arises under the third prong of the Article 5.6 test. If the measures 
were considered to con form to a relevant international standard, they would benefit from a 
rebuttable presumption of conformity with the SPS Agreement under Article 3.2. Article 5.6 of the 
SPS Agreement applies "without prejudice " to Article 3.2. Consequently, in such a situati on, it 
would be for the complainant to rebut the presumption of necessity.  
4. CLAIMS RELATED TO ARTICLE 8 AND ANNEX C OF THE SPS  AGREEMENT  
25. The Appellate Body has found that Article 8 of the SPS Agreement "establishes an obligation 
to comply with the provisions in Annex C ". A violation of the obligations in Annex C will also entail 
a violation of Article 8. Korea argues that an SPS measure itself cannot also constitute a 
"procedure " subject to Annex C. The EU does not find such a rigid distinction conv incing. An SPS 
measure may itself contain rules on inspection and control procedures. For example, if a measure 
simply requires food to be tested on importation in order to establish whether it contains a certain 
contaminant, it would be an SPS measure, bu t it would also concern inspection and control 
procedures. On the other hand, the requirements of Annex C should not apply to each and every 
SPS measure. Annex C measures must concern control, inspection and approval procedures.  
26. Many of the specific p rovisions of Annex C are similar to obligations that are expressed 
elsewhere in the SPS Agreement. For example, paragraph 1(a) is related to the non -discrimination 
rule of Article 2.3, and paragraphs 1(c) and 1(e) are reminiscent of the necessity rules in 
Articles  2.2 and 5.6. With this in mind, the EU expects that the Panel will have largely completed 
its task with respect to some of the Annex C claims by deciding on Japan 's Article 2.3 and 5.6 
claims.  
27. Regarding paragraph 1(a), the E U recalls the finding of the EC - Biotech  panel that "a mere 
showing that a Member has undertaken or completed a particular approval procedure in a manner 
which is unfavourable for a given imported product would not be sufficient to establish a "less 
favou rable manner" of undertaking or completing approval procedures if the relevant Member's 
conduct is explained by factors or circumstances unrelated to the foreign origin of the product. " 
Regarding paragraph 1(c), the same report suggests that a complainant should normally identify 
"specific information requirements which were imposed on applicants " in the relevant procedures, 
and "why any such requirements were not necessary ". Regarding paragraph 1(e), that panel 
suggested that it is not sufficient that the procedure involves testing of specimens, but that the 
claim must identify specific requirements which were imposed "for the approval of individual 
specimens ".WT/DS495/ R/Add.1  
 
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 ANNEX C -4 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF NEW  ZEALAND  
I.  Introduction  
This case and the associated third party submissions have raised some important systemic issues 
concerning transparency and provisional measures under the Agreement on the Application of 
Sanitary and Phytosanitary Measures (SPS Agreement). New Zealand 's participation as a t hird 
party in these proceedings reflects our systemic interest in the proper implementation of the SPS 
Agreement.  
 
II.  Relationship between Articles 5.7, 2.3 and 5.6  
  
Article 5.7 of the SPS Agreement relates to provisional measures, adopted in cases wh ere relevant 
scientific evidence is insufficient. Japan makes no claim under this Article. Consequently, Korea 
does not make a specific legal ar gument relating to Article 5.7.  While Article 5.7 is not directly at 
issue in this case, Korea generally describ es its measures as "provisional in nature pursuant to 
Article 5.7 of the SPS Agreement "1 and its arguments under Articles 2.3 (Non -Discrimination) and 
5.6 (Appropriate Level of Protection) draw on the alleged lack of scientific information, and inability 
to carry out a risk assessment.2   
The EU argued, in its third party submission, that the provisional nature of a measure is relevant 
to the analysis carried o ut under Articles 2.3 and 5.6. In contrast, New Zealand considers that 
articles 2.3 and 5.6 apply in the same way to both provisional and definitive SPS measures.   
  
In relation to Articles 2.3 and 5.7, the EU says in its written submission "the non -discrimination 
analysis of a provisional measure should not be carried out under the same standard as f or a 
definitive measure, based on a full risk assessment. " New Z ealand takes a different view. A 
different standard should not be applied. However, if relevant, the factors surrounding the 
imposition of provisional measures may be taken into account when c arrying out  an analysis under 
Article 2.3.  For instance, the fact that insufficient evidence is available about conditions in one 
Member vis a vis another Member may contribute to a finding that similar conditions do not prevai l 
in these two countries.  Evidence will have to be adduced as to the lack of evidence available, 
leading to the claim that similar conditions do not prevail.    
  
We apply a si milar analysis to Article 5.6. We do not consider that a different standard should be 
applied to assessin g the compliance of provisio nal measures with Article 5.6. Rather, the 
circumstances surrounding the establishment or maintenance of a measure should be taken into 
account when assessing whether the measures in questions are "not more trade restrictive tha n 
required to achieve the [Member 's] appropriate level of protection, taking into account technical 
and economic feasibility ". The consideration of technical feasibility provides scope to consider the 
technical difficulties which may arise from having a la ck of scientific information available when 
designing a measure or considering alternative measures (in terms of footnote 3 to Article 5.6) 
and determining whether it will meet a Member 's appropriate level of protection.  
  
In this case it is not necessary  for the Panel to consider this issue in order to resolve the dispute, 
as Korea 's measures have not been shown to be provisional in  accordance with Article 5.7. 
However, if a Panel were to take into account the provisional nature of measures in an 
examinat ion of claims under Articles 2.3 and 5.6, then it must be demonstrated that the measures 
are indeed "provisional " in accordance with Article 5.7.  The burden falls on the party invoking the 
Article 5.7 "justification " to prove that their measures comply wit h Article 5.7, meeting the four 
cumulative requirements which must be met in order to adopt and maintain a provisional SPS 
measure (as set out by the Appellate Body in Japan — Agricultural Products II3). In the absence of 
such proof, arguments relating to insufficient scientific evidence and provisional measures may not 
                                                
1 Korea First Written Submission, para. 83.  
2 Korea First Written Submission, paras. 138, 190,  244 and 248.  
3 Appellate Body Report, Japan  - Measures Affecting Agricultural Products , WT/DS76/AB/R, adopted 
22 February 1999, para. 89.  WT/DS495/ R/Add.1  
 
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 be part of the interpretative exerci se under Articles 2.3 and 5.6. We cannot "relax" the core 
obligations in these two articles by referencing Article 5.7 but not providing any evidence that  the 
elements of Article 5.7 are met.  
 
III. Annex B(1) of the SPS Agreement requires publication of the measure itself  
   
New Zealand 's view is that the publication obligation under Annex B(1) requires publication of the 
text of the relevant SPS measures , in all instances.  Annex B(1) states clearly that all SPS 
regulations (SPS measures such as laws, decrees, or o rdinances) shall be published. Moreover, an 
interpretation of this obligation in accordance with the plain reading of the words, and in light of  
the object and purpose of the Annex – transparency – suggests that the measures themselves are 
to be published.  
  
Publishing an incomplete summary of regulations, for example, through a press release, is not an 
acceptable means of satisfying this obligat ion. Given the technical nature of SPS regulations, in 
order to ensure compliance, Members must have access to  the full text of regulations. This is 
especially important for measures of a provisional nature, which are adopted without prior notice 
and witho ut Members having had an opportunity to comment.  
  
A requirement to publish the text of SPS measures provides a predictable baseline which must be 
met by all Members. While the legal obligation to publish SPS measures will be met once the text 
of the meas ure is published, Members should be encouraged to publish extra information relating 
to their measures to assist with implementation and understanding. A Member must never publish 
less than the measure itself.    
  
New Zealand does not see a continuum of o bligations as useful here, with publication meaning less 
than the text of an SPS regulation in some circumstances, and more than the text of the regulation 
in othe r circumstances. Rather than Members unilaterally deciding what they should publish, 
dependin g on how complex they believe their regulations to be, Members need certainty about 
what they are obligated to publish.  New Zealand sees one fixed standard - publication of the 
measure itself - as facilitating such certainty.   
  
We recognise that in some  cases, additional information may be required by some Parties in order 
to interpret particularly complicated measures. However, it is the role of the enquiry point, 
pursuant to Annex B(3), to provide this information if requested by interested Members.  
 
IV. Annex B(1) of the SPS Agreement does not govern the level of detail required in 
a measure  
  
There are two possible interpretations of the obligation that "Members shall ensure that all sanitary 
and phytosanitary regulations which have been adopted are  published promptly in such a manner 
as to enable interested Members to become acquainted with them. "    
  
The first interpretation is that this obligation is about access to SPS regulations; the manner in 
which a regulation is published refers to the way in which a regulation is published, the medium of 
publication. Regulations must be published in an accessible way, such as on a government 
website, or in easily accessible journals. Annex B(1) applies to regulations that have been adopted . 
Therefore, it wo uld not follow from this that Annex B(1) should govern the level of detail that a 
regulation must go into, because it applies to regulations that have already been adopted.     
  
The second interpretation is that the manner in which a regulation is publish ed refers to the 
content of the regulation, and the level of detail required in the publication so that a Member can 
become acquainted with the requirements of the regulation.    
  
New Zealand 's inclination is to follow the first interpretation. The ordina ry meaning of the word 
manner ( "a way in which a thing is done or happens ") in the context of this obligation seems to 
refer to the way in which a regulation is published, rather than the level of detail required of the 
regulation (for the reasons set out above in paragraph 7).   
  
However, if the Panel takes the second interpretation of Annex B(1) and determines that it 
governs the level required in a regulation,  New Zealand considers that the level of detail required 
by Annex(1) is that which will allow Members to understand what is required for compliance wit h a WT/DS495/ R/Add.1  
 
- C-13 - 
 
 particular SPS regulation. New Zealand agrees with Canada, who adopted a similar approach in its 
oral statement, stating that "the level of detail or information required by Annex B(1) is that which 
allows Members and its exporters to understand what is required for their products to be eligible 
for market access ".    
 
V. Members are required to provide a nswers to reasonable questions and relevant 
documents under Annex B(3), not under Article 5.8  
  
New Zealand considers that Annex B(3) contains a substantive obligation for Members to both 
establish an enquiry point, and through this enquiry point, to resp ond to all reasonable questions 
from interested Members as well as provide relevant documents.    
  
As stated by Canada in its third party written submission,4 to interpret this obligation in a way that 
requires an enquiry point to be established, but does  not require the enquiry point to actually 
respond to questions, makes little sense. Further, the qualifications placed on what can be directed 
to the enquiry point – reasonable questions and requests for relevant documents – would be 
ineffective and unnec essary if there were no obligation to respond to questions at all.   
 
Article 5.8 is applicable only in a narrow range of circumstances.  It allows Members to request an 
explanation of the reasons for SPS measures in situations where they have reason to be lieve that 
a specific SPS measure maintained by another member is constraining, or has the potential to 
constrain its exports, and the measure is not based on the relevant international standards, 
guidelines or recommendations, or such standards, guideline s or recommendations do not exist. 
On the contrary, Annex B(3) is applicable in a much wider range of circumstances – Members must 
provide answers to all reasonable questions from interested Members, as well as provide relevant 
documents regarding any SPS regulations adopted or proposed within their territory, risk 
assessment procedures, and the determination of their appropriate level of sanitary or 
phytosanitary protection, among other things.  
  
As we can see from a comparison of these two provisions, th e purpose and content of Article 5.8 
and Annex B(3) are different, and they are appl icable in different situations.  Article 5.8 is specific 
to Members seeking clarification about the reasons behind measures they believe to be 
constraining and not based on international standards.  However, under Annex B(1) a Member 
may ask reasonable questions and request relevant documents about any SPS measure imposed 
by a Member.  
                                                
4 Canada Third Party Written Submission, para. 21.  WT/DS495/ R/Add.1  
 
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 ANNEX C -5 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF NORWAY  
I. INTRODUCTION   
 
1. A transparent regulatory framework is a prerequisite for international trade in general and 
the importation of food products in particular. Without the possibility to gain access to relevant 
and precise information regarding the requirements applicab le to the importation of food products, 
traders are left without predictability and the appropriate due process guarantees. In the 
Recommended procedures for implementing the transparency obligation of the SPS Agreement 
(Article 7),  the SPS Committee  recog nised transparency as one of the fundamental principles of 
the WTO .1  
 
II. THE RELATIONSHIP BET WEEN ARTICLE 7 AND A NNEX B  
 
2. Article 1.3 of the SPS Agreement states that "[t]he annexes are an integral part of this 
Agreement ". The SPS Agreement Article 7 refers to Annex B, stating that "Members […] shall 
provide information on their sanitary or phytosanitary measures in accordance with Annex B ". In 
India – Agricultural Products the panel clarified that "Article 7 must be read together with the 
provisions of Annex B of the SPS Agreement ".2 Moreover, the same panel pointed out that the 
Appellate Body has found that "an inconsistency with the provisions of Annex B results in an 
inconsistency with Article 7 ".3  
 
3. Accordingly, it is quite clear that a violation of any of the paragraphs of Annex B will result 
in a violation of Article 7 of the SPS Agreement. Whether this is the situation in the case at hand, 
will depend on an interpretation of paragraph 3 and the assessment of the f acts. 
 
III.   PUBLICATION REQUIREM ENTS  
 
A. Interpretation of  Article 7 and paragraph 1 of Annex B  
 
a) Publication vs information  
 
4. In Japan - Agricultural Products II  the Appellate Body addressed paragraph 1 of Annex B to 
the SPS Agreement  and stated that;  
The object and purpose of paragraph 1 of Annex B is "to enable interested Members to  
become acquainted with" the sanitary and phytosanitary regulations adopted or maintained 
by other Members and thus to enhance transparency regarding thes e measures. In our 
opinion, the scope of application of the publication requirement of paragraph 1 of Annex B 
should be interpreted in the light of the object and purpose of this provision. 4 
5. Article 7 of the SPS Agreement  contains an obligation on Memb ers, namely that Members 
"shall provide information " on their sanitary or phytosanitary measures. This must be done in 
accordance with the provisions in Annex B, which clarifies and specifies the content of Article 7. 
Following Annex B(1), adopted SPS regu lations must be "published promptly in such a manner as 
to enable interested Members to become acquainted with them ".  
6. In Japan  – Agricultural Products II , guidelines had been distributed to a limited number  of 
addressees, and the Ministry of Agricultur e, Forestry and Fisheries (MAFF) was available to answer 
queries. Still, the panel found that this was not sufficient to satisfy the publication requirement in 
Annex B(1) of the SPS Agreement.5 Norway understands this to mean that access to information 
                                                
1 G/SPS/7/Rev.3, para. 1.  
2 Panel Report, India – Agricultural Pr oducts, para. 7.741.  
3 Ibid, referring to Appellate Body Report, Japan – Agricultural Products II , para. 108.  
4 Appellate Body Report, Japan - Agricultural Products II , para. 106.  
5 Panel Report, Japan  - Agricultural Products II, para. 8.115.  WT/DS495/ R/Add.1  
 
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 upon request would not fulfil the publication requirement. Rather, the publication requirement in 
paragraph 1 of Annex B and Article 7 must be interpreted to the effect that it entails a positive 
obligation  on the Member, a duty to act on one’s own initiative  and to publish all SPS regulations.  
7. Thus, the publication requirement will be fulfilled only if SPS regulations are published in a 
manner that makes them publicly available, so all interested Members and traders can become 
acquainted with them. This i nterpretation is in line with the fundamental aim of transparency, 
namely to facilitate international trade by ensuring clarity and predictability of Members ' 
regulations.  
b) The content of the publication requirement  
8. In accordance with paragraph 1 of A nnex B to the SPS Agreement , Members shall ensure 
that "all sanitary and phytosanitary regulations " are published promptly. In line with the wording 
of the SPS Agreement , it is the SPS regulation itself  that must be published. This interpretation is 
also in line with the assessment of the panel in Japan  - Agricultural Products II.6 Footnote 5 to 
Annex B(1) clarifies that "regulations " mean "sanitary and phytosanitary measures  such as laws, 
decrees or ord inances which are applicable generally ", thus referring back to the wording of 
Article  7 of the SPS Agreement . This entails an obligation to publish the text of the relevant SPS 
measures, regardless of the specificities of the relevant regulation.  
9. Should, however, the Panel find that paragraph 1 of Annex B to the SPS Agreement  does not 
contain an unconditional obligation to publish the SPS regulation itself, Norway would argue, in the 
alternative, that this provision nevertheless contains an obligation on Members to publish complete 
and sufficiently detailed information on the regulation to allow other Members and traders to 
achieve the clarity and predictability necessary to facilitate international trade in food products. 
This follows from the standard  set in paragraph 1 of Annex B to the  SPS Agreement , namely  that 
SPS measures must be published "in such a manner  as to enable interested Members to become 
acquainted with them " (underlining added).  
10. Similar publication requirements may be found in a nu mber of WTO Agreements and case 
law concerning other WTO Agreements containing such provisions may also be relevant for the 
interpretation of the SPS Agreement . In this respect, Norway refers to the panel reports in EC – IT 
Products,7 Dominican Republic — Import and Sale of Cigarettes8 and Thailand — Cigarettes 
(Philippines).9 These cases illustrate that Members must publish complete and precise information  
regarding the applicable rules and restrictions on the importation of food products. The manner in 
which this information is published must be adequate , to ensure that it enables Members to 
become acquainted with them.  
11. The case at hand also illustrates the need for precise information on SPS regulations, to 
ensure that Members and traders are able to  gain knowledge about the regulatory framework 
within which they must operate. Moreover, the challenges highlighted by Japan in this case point 
back to the object and purpose of transparency as a fundamental principle of the WTO, namely to 
achieve a greate r degree of clarity, predictability and information about trade policies, rules and 
regulations of Members for the benefit of all traders.  
12. In its First Written Submission, Korea argues that Japan complains about a level of detail 
that goes beyond the p ublication requirement in paragraph 1 of Annex B to the SPS Agreement .10 
Moreover, Korea claims that "[t]he fact that paragraph 3 anticipates that interested Members may 
have questions confirms that publication under paragraph 1 does not require that publication 
include a description with the level of detail demanded in this case by Japan ".11 
13. Norway does not share this interpretation of the relationship between paragraphs 1 and 3 of 
Annex B of the SPS Agreement . As set out above, it is in our view clear that the publication 
requirement in paragraph 1 relates to the measure itself. We cannot, however, see that the 
obligations set out in paragraph 3 affect or limit the scope of the publication requirement in 
                                                
6 Ibid. 
7 Panel Reports, EC – IT Products, paras 7.1086 and 7.1087.  
8 Panel Report, Dominican Republic - Import and Sale of Cigarettes,  para. 7.414.  
9 Panel Report, Thailand - Cigarettes (Philippines ), paragraph 7.789.  
10 Korea’s First Written Submission, para. 376.  
11 Korea’s First Written Submission, para. 377.  WT/DS495/ R/Add.1  
 
- C-16 - 
 
 paragraph 1. Rather, paragraph 3 complement s paragraph 1 in that it stipulates easy access, 
through one enquiry point, to relevant information on SPS measures. This includes, but is not 
limited to, information about the measure itself. Paragraph 3 has a much wider scope, in that it 
obliges Members to provide documents on proposed SPS measures, control and inspection 
procedures, risk assessment procedures etc.  
14. Thus, the level of detail demanded by Japan is not in itself decisive for the content of the 
publication requirement. What must be publish ed is the SPS regulation itself, irrespective of the 
level of detail in the regulation.  
IV.  THE INTERPRETATION O F ARTICLE 7 AND PARA GRAPH 3 OF ANNEX B  
a) The obligation to provide answers and documents in paragraph 3 of Annex B  
15. Annex B of the SPS Agreement is entitled "Transparency of Sanitary and Phytosanitary 
Regulations " and concerns in its entirety different forms of transparency provisions. This reflects 
the importance of clarity, predictability and information on national r egulations for the trade in 
food products.  
16. Paragraph 3 requires Members to establish enquiry points which are responsible for "the 
provision of answers to all reasonable questions from interested Members " and "for the provision 
of relevant documents ". The obligation to have an enquiry point is not disputed in this case, rather 
the disagreement between Korea and Japan concerns the precise content of the obligation in 
paragraph 3.  
17. To this, Norway would argue that an obligation on Members to answer r easonable 
questions and to provide relevant documents follow from the wording of paragraph 3. The answers 
and the documents may not necessarily be prepared by the enquiry point itself, for instance other 
governmental entities may assist the enquiry point. However, the basic idea with the enquiry point 
is that interested Members shall have one point of contact in another Member where it will be able 
to obtain answers to its questions.  
18. Read in the context of the wording of Article 7 of the SPS Agreement, which states that 
"Members shall […] provide information […] in accordance with […] Annex B ", it is further 
underlined that the Member that receives a reasonable question though its enquiry point, is 
obligated to answer the question. Likewise, if a Member receives a request for relevant documents 
through its enquiry point, it is obligated to provide them.  
19. This interpretation finds support not only in an ordinary reading of the text and its context, 
but also in the revised Recommended Procedures for Imp lementing the Transparency Obligations 
of the SPS Agreement (Article 7), adopted by the SPS Committee.12 In paragraph 1, in the final 
sentence, it is stated that "[t]ransparency under the SPS Agreement also includes answering 
reasonable questions ". In para graph 52 of the Recommended Procedures, under the heading 
"Guidelines for National Enquiry Points ", it is stated that the enquiry point "is an effective avenue 
for obtaining information regarding SPS systems and measures from other Members ".  
20. Moreover,  an interpretation of paragraph 3 under which a Member was not obliged to 
provide answers, but merely to have an enquiry point with no obligations to follow up on requests 
received, would not be in line with the purpose of the provision, namely to increase  transparency 
to facilitate international trade. If the provision were to be interpreted as Korea suggests,13 it 
would be rendered a mere formalistic provision – to establish an enquiry point – but with no real 
content. In Norway 's view, such a reading of the provision would defeat its very purpose.  
b) The obligation to provide "relevant documents " in paragraph 3 of Annex B  
21. What constitutes "relevant documents " must be assessed on a case by case basis. 
However, the interpretation of which type of documents that are relevant is informed by the 
context in which this term is used. In this respect, Norway refers in particular to Article 7 of the 
                                                
12 G/SPS/7/rev.3.  
13 Korea 's First Written Submission, paras. 392 and 393.  WT/DS495/ R/Add.1  
 
- C-17 - 
 
 SPS Agreement, which  imposes an obligation to provide information on SPS measures in 
accordance with Annex B. Moreover, paragraph 1 of Annex B, contains an obligation to publish SPS 
regulations , which is to be understood as SPS measures .14  
22. In light of the obligation to p ublish and provide information on SPS measures, such 
measures are indeed "relevant documents " in the context of paragraph 3 of Annex B. The 
obligation to publish the measure cannot be interpreted as excluding the measure itself from the 
obligation of the S PS enquiry point to provide relevant documents.  
23. Accordingly, Norway does not share Korea 's assertion that "there is no basis for Japan to 
complain that it was not provided with 'copies of the measures at issue’ ".15 Rather, the provision of 
copies of th e measure itself seems to be at the very heart of what are "relevant documents " in the 
context of paragraph 3 of Annex B.  
  
                                                
14 Cf. footnote 5 to Annex B(1).  
15 Korea’s First Written Submission, para. 395.  WT/DS495/ R/Add.1  
 
- C-18 - 
 
 ANNEX  C-6 
EXECUTIVE SUMMARY OF  THE ARGUMENTS OF THE UNITED STATES  
EXECUTIVE SUMMARY OF  US THIRD PARTY ORAL STA TEMENT   
I. INTRODUCTION  
1. The United States will first address the two transparency obligations set forth in Article 7 
and Annex B; second, we address interpretive issues related to Japan 's claims arising under 
Article  2.3 and Article 5.6.   
II. JAPAN 'S TRANSPARENCY CLAIMS UNDER ARTICLE 7 AND ANNEX B  
2. Neither Article 7 nor Paragraph 1 of Annex B prescribes the form in whi ch a measure must 
be published.  Therefore, the United States considers that publication through a press release 
would not necessarily raise a concern under the SPS Agreement.  More important to compliance 
with a Member 's obligation is the manner and content of any publication. Paragraph 1 of Annex B 
requires publication of the SPS measure  itself, which includes any laws , decrees, or ordi nances 
that are applicable generally . We do not understand Korea to take the position that its import bans 
and other requirements are unwritten measures.   
3. Given the requirements of Paragraph 1, Korea 's publication of press releases about the 
measures w ould appear to fall short of its publication obligation. While publication of the press 
releases may have made Japan and other Members aware of the existence of the SPS measures, 
that publication did not contain the SPS measures themselves.  And by includi ng bullet summaries 
of the details of the measures but not the measures themselves, the press releases did not enable 
Members to become acquainted with each measure because any summary necessarily paraphrases 
the language of the measure itself.   
4. Paragr aph 3 of Annex B provides that each Member shall ensure that one enquiry point 
"exists, which is responsible for the provision of answers to all reasonable questions ", and for 
providing relevant documents.  On its face, Paragraph 3 creates a procedural obl igation to ensure 
that an enquiry point "exists " and that this enquiry point "is responsible for " providing certain 
information.  By its terms, Paragraph 3 does not itself impose a substantive obligation on a 
Member to provide information or to explain the  reasons behind its measures.  
5. Members ' substantive obligations with respect to transparency and the provision of certain 
information regarding SPS measures are created by other provisions of the SPS Agreement.  For 
example, Article 5.8 requires a Member  to provide an explanation of the reasons for an SPS 
measure if requested; Article 5.8 does not, however, require that the information be published or 
provided by the enquiry point described in Paragraph 3.   
6. Rather, Paragraph 3 requires that a mechanis m exist through which Members may submit 
questions or request documents, among other things; it does not impose additional substantive 
obligations on the enquiry point itself.  Indeed, one can imagine that the enquiry point may be the 
office that receives an enquiry, but would then communicate the enquiry to the relevant 
governme nt office to which it relates. Similarly, a concerned Member, instead of making enquiries 
to the enquiry point, may bring its concerns directly to the government office to which tha t 
concern relates.   
III. ARTICLE 2.3  
7. The United States considers that the factual assessment at issue under Article 2.3 should be 
based on all relevant factors to the conditions that may affect the risk presented by a product to 
human, animal, or plant  life or health within the territory, including, but not limited to, the 
conditions occurring in a Member 's territory and any relevant conditions relating to the product at 
issue.   WT/DS495/ R/Add.1  
 
- C-19 - 
 
 8. The panel in India – Agricultural Products  deemed relevant the presence  of a disease within 
a territory, and the concomitant risk associated with that disease.   It is appropriate for the Panel to 
consider differences that may exist between and among WTO Members from which the products 
are imported, including with regard to ci rcumstances in which the products do not pose a risk even 
though they originate in a country reporting a unique condition that, alone, could result in a higher 
risk.  Here, for example, the radionuclide release resulting from the accident in Japan is a rel evant 
factor, just as the risk associated with the presence of radionuclides for particular products – 
regardless of  their location – is relevant. These and other factors should be part of the Panel 's 
assessment of whether Japan has shown that similar cond itions prevail with respect to other 
Members.   
IV. ARTICLE 5.6  
9. It is not clear from the submissions whether Korea 's measure is based on scientific evidence 
demonstrating that, as a result of the accident, radionuclides other than cesium  are present in the 
Japanese environment in excess of acceptable levels and could be transmitted via traded products.  
It is further not clear whether radionuclides other than cesium could be present in the subject 
products even where safe amounts of cesiu m are detected.  The United States notes that while the 
existence or sufficiency of any such scientific evidence could be addressed in the context of a legal 
claim pursuant to Articles 2.2 or 5.1 of the SPS Agreement, these articles appear to be outside th e 
scope of this proceeding.   
10. The precise level of protection Korea intends to achieve through these measures is unclear 
from its submission.  In cases where a Member does not determine its appropriate level of 
protection, or does so with insufficient precision, a panel may identify the level of protection on the 
basis of the level of protection reflected in the SPS measure actually applied.  In this respect, the 
level of cesium in products Korea deems safe for import from Members other than Japan would  be 
a relevant consideration.  
EXECUTIVE SUMMARY OF  RESPONSES OF THE UNI TED STATES OF AMERIC A TO THE 
PANEL 'S QUESTIONS FOR THE THIRD PARTIES  
11. Annex B, Paragraph 1, sets forth one publication obligation for all SPS "regulations. " To 
publish an SPS regulat ion is to print the text that constitutes the measure itself.  The "measures " 
are typically written, and publication of such a measure would therefore mean printing the text of 
the measure.  
12. Content, not form, is the focus of compliance with the publica tion obligation.  In some cases, 
for Members to become acquainted with the SPS measure at issue, additional information may also 
need to be published to meet the obligation.  For example, when a law incorporates by reference 
another law, ordinance, or decr ee, the referenced measure also may need to be published.  
13. "Acquainted " is synonymous with familiar and conversant. To become acquainted with an 
SPS regulation, Members must be provided with enough information not only to be aware of the 
measure, but t o be familiar with the content of the measure. As discussed above, for a written 
measure – which we understand Korea 's measure to be – this obligation would include publication 
of the measure itself.  
14. On its face, Annex B, Paragraph 3, creates an oblig ation to ensure that an enquiry point 
"exists " and that this enquiry point "is responsible for " providing certain information including 
responses to reasonable questions.  By its terms, however, Paragraph 3 does not obligate a 
Member to reply to each such q uestion through the enquiry point or stipulate the nature  or 
substance of any response. Therefore, Annex B, Paragraph 3, alone, does not provide a 
substantive standard against which an enquiry point 's response to a request can be measured.  
15. Paragraph 3 states that the enquiry point is to be "responsible " for providing answers to all 
"reasonable " requests , but does not set out the nature of the response.  Paragraph 3 ensures that 
no Member will be precluded from making an enquiry about an SPS measure, inc luding, for 
example, because the Member does not know how best to direct its enquiry.  WT/DS495/ R/Add.1  
 
- C-20 - 
 
 16. On the other hand, Article 5.8 is an example of Members ' substantive obligations with 
respect to transparency and the provision of certain types of infor mation regar ding SPS measures. 
Unlike Annex B, Paragraph 3, Article 5.8 does not designate a process, e.g., point of contact. In 
other words, Article 5.8 obligates a Member maintaining a measure to provide, upon request, an 
explanation of the reasons for an SPS measure that constrains exports .  The United States invoked 
Article 5.8 as an example of a substantive obligation to provide information of a particular nature, 
and to distinguish the substantive language of Article 5.8 from the procedural language of Anne x 
B, Paragraph 3, to establish a process and entity to receive enquiries.   
17. Regardless of the channel by which a request pursuant to Article 5.8 is made, Article 5.8 
(and not Annex B, Paragraph 3) dictates the content of the response, i.e., an explanat ion of the 
reasons for the measure.   
18. Therefore, the relationship between Annex B, Paragraph 3, and Article 5.8 is that a Member 
could appropriately exercise its rights under Article 5.8 to seek an explanation of the reasons for 
an SPS measure by way o f the enquiry point required by Annex B, Paragraph 3; alternatively, a 
Member could exercise the same rights without the enquiry point.  
19. The United States does not fully agree with the EU 's positon that the provisional nature of a 
measure is relevant un der the analyses in Articles 2.3 and 5.6, as a Member will adopt a measure 
provisionally, within the meaning of Article 5.7, only when the evidence is insufficient to conduct a 
risk assessment pursuant to Article 5.1. This does not mean the obligation unde r Article 5.1 is 
"less stringent " but that a different obligation applies in that specific situation.   
20. The United States agrees with New Zealand that, in this case, it is not necessary for the 
Panel to determine whether a "similar accommodation " is required in relation to clai ms under 
Articles 2.3 and 5.6. Korea did not invoke Article 5.7.  Nor has either party submitted evidence or 
argumentation on the provisional nature of the measure such that the Pa nel could make such a 
finding. Without more, whethe r the provisional nature of a measure could be relevant to a panel 's 
analysis under Articles 2.3 and 5.6 would not appear to be a question raised by this dispute, and 
therefore the Panel need not address it to make findings consistent with DSU Article 7.1.    
 
_______________  
 
 
 
 
 
 
 
 WT/DS495/ R/Add.1  
 
- D-1 - 
 
 ANNEX D  
CERTAIN PROCEDURAL R ULINGS MADE BY THE P ANEL 
Contents  Page  
Annex D-1 Decision of Panel on request for enhanced third -party rights  D-2 
Annex D -2 Decision of Panel on selection of experts  D-5 
Annex D-3 Decision on redacting submissions to be sent to experts  D-8 
Annex D -4 Decision of Panel on request to comment on exhibits  D-10 
 
 WT/DS495/R/Add.1  
 
- D-2 - 
 
 ANNEX D -1 
Decision of Panel on request for enhanced third-party rights  
KOREA — IMPORT BANS, AND TES TING AND CERTIFICATI ON REQUIREMENTS FOR 
RADIONUCLIDES  
(WT/DS495)  
Dear representatives of Canada, Norway, and Separate Customs Territory of Taiwan, Penghu, 
Kinmen and Matsu (Chinese Taipei),  
 
The Panel ref ers to the joint communication dated 1 March 2016 from Canada, Norway and 
Chinese Taipei (the requesting third parties), asking the Panel to exercise its discretion under 
Article 12.1 of the DSU to grant third parties enhanced rights in the  Working Procedu res "in order 
to ensure that the interests of third parties can be fully taken into account." Specifically, the 
requesting third parties ask the Panel to grant them rights to: (i)  "receive an electronic copy of all 
submissions and statements of the parties , including responses to Panel questions, up to the 
issuance of the interim report "; and (ii) "be present for the entirety of all  substantive meetings of 
the Panel  with the parties".  
 
On 11 March 2016, following the Panel's invitation to comment on the re quest, Korea (the 
respondent) expressed its opposition to the granting of enhanced rights to third parties in these 
proceedings. On the same date, Japan (the complainant) indicated that it did not oppose the 
request so long as certain procedural concerns c ould be accommodated and that confidential 
information would be protected. The Panel also received comments from a number of other third 
parties supporting the request: the European Union, Guatemala, India, and New Zealand. The 
United States submitted that  any deviation from the DSU should only be granted with the parties 
consent.  
 
We understand that the additional rights requested are limited to allowing the third parties to be 
present during all substantive meetings without taking the floor and to receiv ing all written 
communications of the parties up to the issuance of the interim report without the right to present 
views on those communications.  
 
The Appellate Body has clarified that panels "enjoy a discretion to grant additional participatory 
rights t o third parties in particular cases, as long as such 'enhanced' rights are consistent with the 
provisions of the DSU and the principles of due process."  
 
1 Prior panels have used this discretion on a number of occasions, such as when the measures at 
issue resulted in significant economic benefits for certain third parties ,2 where third parties 
maintain measures similar to the measures at issue3, or where the  third party  was involve d as a 
party in a parallel panel proceeding.4 None of these factors is present in this dispute.  
 
In making their joint request, Canada, Norway, and Chinese Taipei have identified as the bases for 
receiving enhanced third party rights their systemic interests in the case as it will be "breaking 
new l egal ground" regarding the transparency obligations under the SPS Agreement, as well as the 
need to be fully apprised of arguments and evidence so as not to compromise their ability to make 
submissions in the event of an appeal.  
 
With respect to the argument that the Panel is considering issues of first impression with respect 
to several obligations in the SPS Agreement, we observe that many panels are faced with the task 
of interpreting provisions that have not yet been subject to  dispute settlement. Members would 
                                                
1 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 243. See also Appellate Body Report, EC – 
Hormones  (Canada) , para.  154; Appellate Body Report, US – 1916 Act , para.  150; Panel Report, EC – Export 
Subsidies on Sugar , para.  2.3. 
2 Panel Reports, EC – Bananas  III (Guatemala and Honduras), para. 7.8; Panel Report, EC – Tariff 
Preferences , Annex A, para.  7(a).  See, also, Panel Reports, EC – Export Subsidies on Sugar , para. 2.5.   
3 Panel Report, EC – Tariff Preferences , Annex A, para. 7(b). 
4 Panel Report, EC — Hormones (Canada) , para. 8.17.  WT/DS495/ R/Add.1  
 
- D-3 - 
 
 have been aware, when drafting the DSU, that panels would be called upon regularly to consider 
important systemic issues of first impression. They drafted the basis for third -party access 
contained in Article 10 of the DS U with this in mind. In our view, therefore, the fact that a panel 
will consider issues of first impression is not sufficient to justify according enhanced third -party 
rights beyond those contained in Article 10  of the DSU.  
 
Nor are we persuaded that the a dditional access requested is required to ensure that the ability of 
the requesting third parties to make written submissions to, and be given an opportunity to be 
heard by, the Appellate Body in the event of an appeal would not be compromised. The drafter s of 
the DSU devised Article 10 in full knowledge of and bearing in mind that third parties would have 
an opportunity to make submissions and be heard by the Appellate Body and considered that the 
access permitted under Article 10 would be sufficient to en able them to participate effectively in 
appellate proceedings. We also note that, in addition to access to the full written submissions up to 
the first substantive meeting and the right to be heard, any Member, including third parties, may 
request non -confidential summaries of the parties' arguments under Article 18.2 of the DSU. 
Moreover, third parties will be able to read the Panel Report, which will contain the executive 
summaries of the parties' arguments as well as the Panel's detailed reasoning for it s findings 
pursuant to Article 12.7 of the DSU.  
 
Finally, in reaching our decision, we are mindful that the distinction drawn in the DSU between 
parties and third parties should not  be blurred.5  
 
For the reasons stated above, we decline Canada, Norway, a nd Chinese Taipei's  joint request for 
enhanced third party  rights in these proceedings.  
 
 Yours sincerely,  
 
 
 
 William Ehlers  
 Chairperson of the Panel  
 
 
 
c.c.  H.E. Mr Junichi IHARA  
 Permanent Mission of Japan  
 
 H.E. Mr CHOI Kyong -lim 
 Permanent Mission o f the Republic of Korea  
 
 H.E Mr Marcos GALVÃO  
 Permanent Mission of Brazil  
 
H.E. Mr YU Jianhua  
Permanent Mission of China  
 
H.E. Mr Marc VANHEUKELEN   
Permanent Mission of the European Union  
      
H.E. Mr Eduardo Ernesto SPERISEN -YURT   
Permanent Mission of Guatemala  
     
H.E. Ms Anjali PRASAD  
Permanent Mission of India  
  
H.E. Mr. Vangelis VITALIS  
Permanent Mission of New Zealand  
  
H.E. Mr Gennady OVECHKO  
                                                
5 Panel Report, EC- Bananas III (Guatemala and Honduras) , para.  7.9. See also, Panel Report, EC – 
Tariff Preferences , Annex A, para.  7(d); Panel Report, EC –Export Subsidies on Sugar (Australia, Brazil and 
Thailand) , para.  2.7. Panel Report, EC and certain memb er States – Large Civil Aircraft , para.  7.166.  WT/DS495/R/Add.1  
 
- D-4 - 
 
 Permanent Mission of the Russian Federation  
 
H.E. Mr Michael PUNKE  
Permanent Mission of the United States of America  
 
 WT/DS495/R/Add.1  
 
- D-5 - 
 
 ANNEX  D-2 
Decision of Panel on selection of experts* 
KOREA — IMPORT BANS, AND TES TING AND CERTIFICATI ON REQUIREMENTS FOR 
RADIONUCLIDES  
(WT/DS495)  
Dear Sirs  [representatives of Korea and Japan] , 
 
The Panel recalls that pursuant to Article 13 of the DSU and Article 11.2 of the SPS Agreement, we 
have decided to consult experts in this dispute in the following areas: (i) release of nuclear 
materials int o the environment (by accident or other means); (ii) radionuclide contamination in 
foods including testing methods and any differences in contamination based on the source of 
contamination (air, groundwater, or naturally occurring); and (iii) radionuclides  in marine 
environments including issues of radionuclide deposits in the ocean and levels of radioactivity in 
marine organisms.   
 
The Panel received names of experts from UNSCEAR, ICRP, IAEA, WHO, and FAO/Codex. The 
Panel is grateful to these organizations  for their assistance. The Panel contacted each of the 25 
named experts and inquired as to their availability, conflict of interest and areas of expertise. The 
parties were provided with the information of the 15 available experts and given the opportuniti y 
to comment.  
 
The Panel has considered the background and qualifications of each available expert as well as the 
importance of having more than one expert to respond to questions in each area.1  
 
In addition, the Panel carefully considered the comments su bmitted by the parties. The Panel 
notes that Japan accepts all of the proposed experts, although it has expressed preferences for 
some over others. With respect to Korea's comments on the experts, the Panel notes that Korea 
accepts 5 of the proposed expert s and objects to the rest.  
 
Korea objects to one expert who had been preliminarily consulted by Korea in this matter. Korea 
objected to two experts because of their previous affiliations with the Japanese government in this 
area. The Panel found these obje ctions to be well founded and will not select these experts.  
 
Korea objects to four experts because they appeared to have participated in the drafting of a 2013 
report by UNSCEAR on the Fukushima Dai -ichi accident. Korea argues that because in its view it s 
measures were adopted provisionally because there was insufficient scientific evidence to conduct 
a risk assessment within the meaning of Article 5.7 of the SPS Agreement, the Panel could not rely 
on any expert that had participated in a risk assessment.   
 
First, the Panel notes that the UNSCEAR  report was commissioned by an organ of the United 
Nations who of course sought the best experts in the field. The report dealt with the immediate 
effects of the disaster on the people living in and around the Fukushima Dai -ichi nuclear power 
plant not tho se who consume some Japanese products as part of their diet. There are some 
elements in the report that address internal exposure of people living in and around the Fukushima 
Dai-ichi nuclear power plant  through consumption of contaminated food, but the re port is not an 
assessment of the risks arising from human consumption of radionuclides in food products.  
 
Furthermore, the Panel does not agree with Korea that anyone who participated in a risk 
assessment would be per se  inappropriate to consult in a situ ation where Article 5.7 is raised by 
the respondent. The Panel does not believe that this is the principle established by the 
Appellate  Body in US/Canada – Continued Suspension . Nevertheless, the Panel notes that it was 
able to identify enough suitable exp erts without selecting the four experts who participated in the 
preparation of the UNSCEAR report.  
                                                
* The Panel has made certain redactions indicated as [***] to protect the privacy of the experts.  
1 Therefore, the Panel, at this time, did not select experts who had expertise in only one identified area.  WT/DS495/R/Add.1  
 
- D-6 - 
 
  
Based on its evaluation, the Panel selects the following experts:  
 
Expert  Recommended 
by release of nuclear 
materials into the 
environment (by 
accident or  other 
means)  radionuclide 
contamination 
in foods  radionuclides in 
marine 
environments  
Lynn 
ANSPAUGH  UNSCEAR, WHO  Yes Yes Yes 
Rolf MICHEL  UNSCEAR  Yes Yes  
Lavrans 
SKUTERUD  ICRP Yes Yes  
Patsy 
THOMPSON  UNSCEAR  Yes Yes Yes 
Joanne BROWN  WHO Yes Yes  
 
The Panel notes that it has selected two experts, [***] and [***] who Korea objects to. In making 
its selection the Panel considered first, that Korea objects to every expert proposed with expertise 
in radionuclides in marine environments. Therefore, there  was no way for the Panel to have 
experts in this field without selecting one that Korea objects to.  
 
The Panel examined Korea's objections to all the available experts with expertise in radionuclides 
in marine environments. The Panel finds that Korea's ob jections to [***] and [***] are not 
sufficient to preclude them from serving as experts assisting the Panel in evaluating the evidence 
presented.  
 
With respect to [***], Korea mentions (i) [***] involvement in the preparation of the UNSCEAR 
report on Fukus hima Dai -ichi; (ii) as well as some statements [***] made with respect to radon 
exposure from natural gas in fracking sites; and (iii) statements purportedly made by [***] with 
respect to the wildlife at Chernobyl.   
 
With respect to [***] participation in  the UNSCEAR report, the Panel recalls its reasoning above 
that this is not per se  a reason to exclude an expert. Moreover, the Panel notes that [***] was 
listed as a "critical reviewer" of the report, which indicates to us that the report does not reflect  
[***] own work. With respect to [***] statements on radon, the Panel notes that radon is not a 
man-made radionuclide subject to Korea's measures and that [***] statements were made in the 
context of an environmental release and not about the presence of r adionuclides in food. Finally, 
there is an allegation, without citation, that [***] made a statement about wildlife living near 
Chernobyl. The Panel cannot objectively evaluate this statement without more information. 
Nevetherless, even if accurate, the al leged statement does not relate to humans consuming food 
or other products from the Chernobyl site. Therefore, the Panel finds that Korea's objection is 
insufficient to demonstrate any bias or partiality on [***] part.  
 
Korea objects to [***] because Korea  believes that [***] has written articles in which [***] has 
provided [***] own assessment of the risk posed by the FDNPP. However, Korea does not provide 
citations to such articles. Instead, Korea provides an excerpt from an article in a [***] newspaper 
written by [***] which relates to the effects of post -Fukushima radiation on fish caught off the 
West Coast of North America. [***] comment relates to the diluation of the radioactive waste by 
the time it crosses the Pacific, thus posing limited health risk  to [***] consuming [***] products. 
Korea's letter then turns to a different quotation from a different news article without making an 
overt reference to the change. In that article [***] was explaining, in [***] [***], a [***] 
government initiative to pro vide iodine thyroid blocking pills to those within a 10km radius of a 
nuclear power plant for immediate use in the event of an accident. [***] statement about people 
not needing to fear living near a nuclear power plant has nothing to do with food consumpt ion 
from an area contaminated after a nuclear accident. Finally, Korea cites a press release from 
Families Against Radiation Exposure, which appears to be a [***] NGO in [***]. The statements 
attributed to [***] are from 2009, two years before the Fukushim a disaster, and do not relate to 
the consumption of food that has been contaminated after a nuclear release, but rather to children 
living near nuclear power plants. The Panel also notes that in the latter two instances, [***] was 
acting in [***] [***] as an official of the  [***]. Therefore, the Panel finds that Korea's assertion 
that [***] has provided an assessment of the risks posed by the FDNPP is unsubstantiated.  WT/DS495/R/Add.1  
 
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Korea also requests that the Panel seek additional experts in the areas of severe nuclea r accidents 
and the risks of radionuclides to human health. Neither party in this dispute has claimed that man -
made radionuclides are not risky to human health. Neither party has disputed the serious health 
risks from stochastic effects of exposure to radi ation (such as thyroid cancer, leukemia, and other 
cancers). Therefore, the Panel does not consider that it needs assistance in assessing any evidence 
in this area.  
 
With respect to severe nuclear accidents, the Panel recalls that one of the areas of expertise it has 
sought assistance in is " release of nuclear materials into the environment ( by accident  or other 
means) ". The Panel believes that this encompasses severe nuclear accidents. The Panel recalls 
that it has sought the names of experts from the  international organizations dealing with the 
effects of severe nuclear accidents – the WHO, Codex, the IAEA, ICRP and UNSCEAR. We are 
therefore confident that we have received the names of those who are the most qualified to assist 
the Panel in evaluating  the evidence presented to it with respect to the accident at Fukushima Dai -
ichi. 
 
The Panel is committed to its obligation, as explained by the Appellate Body, to ensure due 
process in these proceedings by selecting experts that are independent and impart ial.2 For the 
reasons stated above, the Panel is satisfied that the five selected experts all have the relevant 
expertise required and are capable of rendering independent and impartial advice to the Panel on 
the relevant issues in the dispute. The Panel recogn izes  and will bear in mind the fact that its 
obligation to protect the parties' due process rights applies not only to the process for selecting 
experts, but also to the Panel's consultations with the experts, and continues throughout the 
proceedings.3  
 
In light of the importance of the present decision, the Panel shall annex this communication to its 
Report.  
 
 
  
 
 Yours faithfully,  
 
 
 
 
 William Ehlers  
Chairman of the Panel  
 
                                                
2 Appellate Body Report, US/Canada – Continued Suspension , para. 436.  
3 Ibid. WT/DS495/R/Add.1  
 
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 ANNEX D -3 
Decision on redacting submissions to be sent to experts  
KOREA — IMPORT BANS, AND TES TING AND CERTIFICATI ON REQUIREMENTS FOR 
RADIONUCLIDES  
(WT/DS495)  
Dear Sirs [representatives of Korea and Japan],  
 
The Panel wishes to thank the parties for their comments of 14 Sep tember 2016 on the redacted 
versions of the submissions to be sent to the experts.   
 
Paragraph 36 of the Panel's Working Procedures for Consultations with Experts provides that "[t] he 
Panel may provide the experts, on a confidential basis, with relevant p arts of the parties' 
submissions, including exhibits, as well as with any additional information deemed necessary. " The 
Panel notes that the parties have differing view on whether the entirety of the parties' submissions 
should be transmitted to the expert s in light of the reference to relevant parts in the Working 
Procedures.  Although, sending un -redacted versions would have been less time consuming for 
both the Panel and the parties, the Panel has decided to adopt a conservative approach towards 
the inte rpretation of the Working Procedures and redact portions of the submissions. The purpose 
of the redaction is to provide the experts with a clear picture of the factual issues they need to 
consider without the distraction of the legal argumentation.  
 
In pa rticular, the Panel applied the following criteria for redaction. First, argumentation that was 
solely legal in nature and referring to interpretation of WTO obligations was redacted. Second, 
argumentation and facts that related to claims that the Panel is  not seeking advice from the 
experts on (namely Article 7, Article 8 and Annexes B and C) were redacted. Finally, the Panel 
sought to redact any potentially inflammatory characterisations of the parties' arguments or 
actions. The Panel has reviewed the red actions in light of these criteria and the parties' comments 
and made changes where relevant.  
 
In particular, the Panel has adjusted the redaction on Article 8 and Annex C claims. Although there 
was reference to some of the relevant scientific issues in th ese sections, they are repetitive of 
those under Articles 2.3 and 5.6. Therefore, in the interest of consistency across submissions the 
entirety of the sections on Article 8 of both parties will be redacted. The Panel maintains its 
redaction of the legal a rguments on what is the relevant condition for comparison under Article 
2.3. These issues are not relevant for the experts' analysis of the factual questions being posed to 
them. The Panel will not redact argumentation about the methodologies used by the e xperts of 
either party or their suitability for supporting the conclusions reached. These are precisely the 
issues where the Panel needs the advice of the experts. The revised redactions can be put on the 
USB key provided earlier.  Please contact the Panel  Secretary to arrange a time for this.  
 
We note Japan's concern that the experts may require some additional context to assist them in 
answering the Panel's questions. In this regard, the Panel recalls that paragraph 36 of the Panel's 
Working Procedures fo r Consultations with Experts states that "[t] he experts shall have the 
opportunity to request, through the Panel, additional factual information or clarifications from the 
parties, if it shall aid them in answering the Panel’s questions". . The Panel also recalls that the 
parties will be able to provide their own advance questions to the experts to assist them in 
preparation for the meeting as well as pose oral questions to the experts at the meeting. The Panel 
trusts that these mechanisms will adequately a ddress Japan's concern.  
  
In its communication of 14 September 2016, Japan notes that planning for attendance at panel 
meetings can be burdensome and that the revised timetable should be based on a realistic time -
frame for the experts to prepare their resp onses to the Panel's questions. The Panel understands 
Japan's concerns and indeed this was one of the main considerations for the Panel to propose 
moving the date of the second meeting. In its letter to the parties of 7 September 2016, the Panel 
noted that  there was a "large volume of complex material on the record that the experts will have 
to review in order to respond" [to the Panel's questions]. The Panel believes the revised draft  WT/DS495/R/Add.1  
 
- D-9 - 
 
 timetable responds to the need to provide the experts with sufficient ti me to answer the Panel's 
questions. Moreover, in light of Japan's comments on the revised timetable the second meeting is 
likely to begin in January or early February 2017 and there is scope within the timetable that 
would allow the Panel to grant the expe rts an extension if one is required without necessitating 
moving the meeting date.  
 
In its letter of 14 September 2016, Korea notes that the Table of Documents sent to the parties 
included Annex A and Annex B but that that these two annexes had not been in cluded on the USB 
key.  Korea asks if it could review any redactions to these annexes if they are to be sent to the 
experts. In an email of 12 September 2016, responding to a similar query from Japan, the 
Secretariat informed the parties that these two ann exes are to be sent to the experts but as they 
had not been redacted they had not been included in the documents on the USB key. Korea also 
requests that Korea's opening statement at the first substantive meeting  be added to the Table of 
Documents.  This h as been done.  
 
          
 
Yours faithfully  
 
 
 
 
  
                  William Ehlers  
     (Chairman of the Panel)  
 
 
 WT/DS495/R/Add.1  
 
- D-10 - 
 
 ANNEX D -4 
Decision of Panel on request to comment on exhibits  
KOREA — IMPORT BANS, AND TES TING AND CERTIFICATI ON REQUIREMENTS FOR 
RADIONUCLIDES  
(WT/DS495)  
Thank you for your email.  After reviewing Japan's comments on the relevant exhibits, the Panel 
notes that Japan does not contest the exhibits as such, but rather takes issue with the fact that 
Korea did not provide a translation o f all relevant parts of Exhibits KOR -299(a) and KOR -304(a).   
As Japan's comments were limited to pointing out the full text of the exhibits, the Panel does not 
see the need for Korea to comment further.  
 
The Panel recalls that paragraph 10 of its Working Procedures requires that "translations should 
include all germane portions of documents that the party seeks to rely upon. Germane portions 
include not only specific provisions of measures, but also relevant context." In light of Japan's 
comments and takin g account of paragraph 10 of the Panel's Working Procedures, the Panel 
requests that Korea provide full translations of any slides relating to Japan's "measures to prevent 
fish movement inside and outside the harbour" including, but not limited to, p. 14. and the entirety 
of KOR -304(a).  
 
Such translations should be provided to the Panel by 5 p.m. Friday, 28 April 2017.  
 
 
__________