WT/DS495/8  
 
12 April 2018  
(18-2204) Page: 1/4 
  Original: English  
 
KOREA – IMPORT BANS, AND TES TING AND  
CERTIFICATION REQUIR EMENTS FOR RADIONUCL IDES   
NOTIFICATION OF AN A PPEAL BY THE REPUBLIC OF KOREA  UNDER ARTICLE 16.4 A ND  
ARTICLE 17 OF THE UN DERSTANDING ON RULES  AND PROCEDURES GOVER NING  
THE SETTLEMENT OF DI SPUTES (DSU), AND UN DER RULE 20(1) OF  
THE WORKING PROCEDUR ES FOR APPELLATE REV IEW 
The following communication, dated 9 April 2018 , from the delegation of the Republic of Korea , 
is being circulated to Members.  
 
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1. Pursuan t to Articles 16.4 and 17 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review 
(WT/AB/WP/6, 16 August 2010) ("Working Procedures"), Korea hereby notifies the Di spute 
Settlement Body ("DSB") of its decision to appeal certain issues of law and legal interpretations in 
the Panel Report in Korea – Import Bans, and Testing and Certification Requirements for 
Radionuclides (WT/DS495/R) ("Panel Report").  
2. Pursuant to Rul es 21 of the Working Procedures, Korea files this Notice of Appeal together 
with its Appellant Submission with the Appellate Body Secretariat.  
3. Pursuant to Rule 20(2)(d)(iii)  of the Working Procedures, this Notice of Appeal includes an 
indicative list of th e paragraphs of the Panel Report containing the alleged errors, without 
prejudice to Korea 's ability to rely on other paragraphs of the Panel Report in its appeal.  
4. Korea seeks review by the Appellate Body of the Panel 's expert selection. In particular, the  
Panel acted inconsistently with Article 11 of the DSU in selecting experts that had a conflict of 
interest in the matter.1 Korea requests the Appellate Body to find that in consulting such experts, 
the Panel acted inconsistently with Korea 's due process r ights under Article 11 of the DSU. Since 
the Panel relied on its consultations with such experts in its assessment under Articles 5.7, 5.6, 
and 2.3 of the SPS Agreement2, Korea requests that the Appellate Body reverse the Panel 's 
findings under these provi sions, including in paragraphs 7.96, 7.108 -7.109, 7.111, 7.251 -7.256, 
7.321 -7.322, 7.349 -7.350, 7.355, 7.359 -7.360, 8.1, 8.2 b -e, and 8.3 a -b. 
5. Korea seeks review by the Appellate Body of the Panel 's findings under Article 5.7 of the 
SPS Agreement. The Panel erred in making findings under Article 5.7 even though the provision 
was not within its terms of reference.3 Korea requests the Appellate Body to find that, in 
proceeding in this manner, the Panel acted inconsistently with Articles 6.2, 7, and 11 of the DSU.  
6. Korea also seeks review by the Appellate Body of the Panel 's interpretation and application 
of Article 5.7. In particular, the Panel erred in finding that:  
                                                
1 See, for example, Panel Report, paras. 1.26, 1.27. and 1.28.  
2 See, for example, Panel Report, paras. 7.92, 7.93, 7.167 7.190, 7.195(e), 7.197, 7.199, 7.203, 7.205, 
7.206, 7.208, 7.209, 7.210, 7.216, 7.223, 7.230, 7.236, 7.238, 7.239, 7.243, and 7.315.  
3 See, for example, Panel Report, paras. 7.75, 7.93, 7.96, 7.107,  7.108, 7.109, 7.111 and 8.1.  WT/DS495/8  
 
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   Korea had the burden proof under Article 5.7.4 
 There was not insufficient scientific evide nce to conduct a risk assessment with respect to 
the product specific import bans, the blanket import ban, and the extension of the 
additional testing requirements to fishery and livestock products in 2013.5 
 The 2013 blanket import ban and the 2013 additio nal testing requirements were not based 
on pertinent available information.6 
 Korea did not review the measures within a reasonable period of time.7 
7. Korea also seeks review by the Appellate Body of the Panel 's analysis of whether the 
measures were based on pertinent available information  in light of Article 11 of the DSU . The 
Panel 's failure to make an objective assessment of the matter under Article 11 of the DSU includes 
the Panel 's internally contradictory reasoning in relation to the product -specific ban s and the 
import ban.8 
8. Accordingly, Korea requests that the Appellate Body reverse the Panel 's findings, in 
paragraphs 7.75, 7.93, 7.96, 7.100, 7.106 -7.112, and 8.1. The Panel 's errors in interpretation and 
application under Article 5.7 also invalidated th e Panel 's findings under Articles 2.3 and 5.6. As a 
consequence, Korea requests that the Appellate Body reverse the Panel 's findings under 
Article  2.3, in paragraphs 7.321 -7.322, 7.349 -7.350, 7.355, 7.359 -7.360, and 8.3 a -b, and under 
Article  5.6, in parag raphs 7.251 -7.256 and 8.2 b -e. 
9. Korea seeks review by the Appellate Body of the Panel 's interpretation and application of 
Article 5.6 of the SPS Agreement. Korea requests the Appellate Body to find that the Panel erred in 
the interpretation and application of Article 5.6.9 The Panel 's errors under Article 5.6 include the 
findings that:  
 Japan had established that the suggested alternative measure achieves Korea's ALOP with 
regard to the adoption of the 2013 additional testing requirements and import bans on t he 
28 fishery products, with the exception of Pacific cod from Fukushima and Ibaraki.10 
 Japan had established that its alternative measure would achieve Korea's ALOP with regard 
to the maintenance of all the measures.11 
10. Accordingly, Korea requests that the Appellate Body reverse the Panel 's findings, in 
paragraphs 7.251 -7.256, and 8.2 b -e, that Korea 's measures were more trade -restrictive than 
required to achieve their appropriate level of sanitary or phytosanitary protection within  the 
meaning of Article 5. 6.  
11. Korea also seeks review of the Panel 's findings under Article 5.6 because the Panel applied 
an incorrect standard of review and therefore failed to make an objective assessment of the 
matter under  Article 11 of the DSU . The Panel 's failure to make an o bjective assessment of the 
matter included its consideration of evidence that was not available to the Korean authorities at 
the time of the adoption of the measures and consideration of data that did not exist at the time 
the Panel was established.12 
12. Accor dingly, Korea requests that the Appellate Body reverse the Panel 's findings concerning 
the use of such evidence and data, in particular in paragraphs 7.5, 7.8, 7.134, 7.142, 7.207, 
7.219, 7.226, 7.236, and 7.245.  Since the Panel relied on such evidence and  data in its 
assessment under Article 5.6,  Korea further requests that the Appellate Body reverse the Panel 's 
                                                
4 See, for example, Panel Report, para. 7.75.  
5 See, for example, Panel Report, paras. 7.93, 7.96, 7.108, and 7.111.  
6 See, for example, Panel Report, paras. 7.109 and 7.111.  
7 See, for example, Panel Report, paras. 7.107, 7.110, and 7.111.  
8 See, for example, Panel Report, paras. 7.98, 7.100, 7.109 and 7.111.  
9 See, for example, Panel Report, paras. 7.172 -7.173.  
10 See, for example, Panel Report, paras. 7.251 and 7.253.  
11 See, for example, Panel Report, paras. 7.252 and 7.253.  
12 See, for example, Panel Report, paras. 7.4 -7.6, 7.129, 7.142, and 7.199 -7.200.  WT/DS495/8  
 
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  findings that Korea ' SPS measures are inconsistent with Article 5.6 of the SPS Agreement, 
including in paragraphs 7.251 -7.256, and 8.2(b) -(e).13 
13. Korea seeks review by the Appellate Body of the Panel 's interpretation and application of 
Article 2.3 of the SPS Agreement. The Panel erred, inter alia , in finding that:  
 Similar conditions existed in Japan and in other Members with regard to the adoption o f 
the 2013 additional testing requirements and of the blanket im port ban with respect to the 
27 fishery products covered by Japan's claim and for Pacific cod originating from Aomori, 
Chiba, Gunma, Iwate, Miyagi, and Tochigi prefectures, and similar conditi ons existed in 
Japan and in other Members for all food products, including the 28 fishery products, with 
regard to the maintenance of Korea's measures.14  
 The import ban and the additional testing requirements arbitrarily or unjustifiably 
discriminate.15  
 The 2013 additional testing requirements and the blanket im port ban with respect to the 
27 fishery products subject to Japan's claim from the 8 prefectures and  Pacific cod from 
6 prefectures, i.e. excluding Pacific cod from Fukushima and Ibaraki, were incons istent 
with Article 2.3, first sentence of the SPS Agreement when Korea adopted them, and that 
by maintaining the product -specific and blanket import bans on the 28 fishery products 
from the 8 prefectures and the 2011 and 2013 additional testing requiremen ts on 
Japanese products, Korea acted inconsistently with Article  2.3, first sentence of the 
SPS Agreement.16 
 Korea 's measures constitute disguised restrictions on international trade and thereby 
violate the second sentence of Article 2.3 of the SPS Agreemen t.17 
14. Korea additionally requests that the Appellate Body find that the Panel failed to make an 
objective assessment of the matter and acted inconsistently with Article 11 of the DSU in 
considering evidence and data that was not available to the Korean regul ator when the measures 
were adopted and evidence and data that post -dated the establishment of the Panel. As the 
Panel 's finding that similar conditions existed was based on such evidence and data, Korea 
requests the Appellate Body to reverse the Panel 's findings concerning the use of such evidence 
and data, in particular in paragraphs 7.5, 7.8, 7.134, 7.142, 7.307 -7.308, 7.311, 7.315, 7.319, 
as well as the ultimate findings of inconsistency with Article 2.3, in paragraphs 7.321 -7.322, 
7.355, 7.360, and 8.3 (a) and (b).18 
15. Accordingly, Korea requests that the Appellate Body reverse the Panel 's findings, in 
paragraphs 7.276, 7,283, 7.321 -7.322, 7.349 -7.350, 7.355, 7.359, 7.360, and 8.3 a -b, that 
Korea 's measures are inconsistent with Article 2.3.  
16. Korea seeks re view by the Appellate Body of the Panel 's interpretation and application of 
Article 7 and Annex B(1) and B(3) of the SPS Agreement. The Panel erred, inter alia , in finding 
that: 
 Annex B(1) requires that the content of the regulation be published and that s uch 
publication must make the publication contain sufficient content that the importing 
Member will know the conditions, including specific principles and methods, that apply to 
its goods.19 
                                                
13 See, for example, Panel Report, paras. 7.199, 7.200, 7.207, 7.219, 7.22 2-7.223, 7.225 -7.226, 
and 7.235, 7.251 -7.256, and 8 .2(b)-(e). 
14 See, for example, Panel Report, paras. 7.321 and 7.322.  
15 See, for example, Panel Report, paras. 7.349 -7.350, 7.355, 7.360, and 8.3 (a) and (b).  
16 See, for example, Panel Report, paras. 7.360 and 8.3(a) and (b).  
17 See, for example, Panel Repor t, paras. 7.359, 7.360, and 8.3(a) and (b).  
18 See, for example, Panel Report, paras. 7.5, 7.8, 7.134, 7.142, 7.307 -7.308, 7.311, 7.315, 7.319, 
7.321 -7.322, 7.360, and 8.3(a) and (b).  
19 See, for example, Panel Report, paras. 7.461 and 7.464.  WT/DS495/8  
 
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   Korea had not published the full content of the blanket import ban  and the additional 
testing requirements.20 
 The 2011 and 2013 press releases announcing the additional testing requirements did not 
include content that is sufficient to enable an interested Member to know the conditions 
that would be applied to its goods.21  
 Korea did not publish the measures in a manner so as to enable Japan to become 
acquainted with the challenged measures.22 
 Korea acted inconsistently with Annex B(1), as a conseq uence with Article 7 of the 
SPS Agreement, with respect to the publication of all of the challenged measures.23 
 Korea 's SPS Enquiry Point 's failure to respond to Japan 's follow -up query in conjunction 
with its earlier failure to relate the answers and documents provided to their relevance for 
the questions Japan had posed, is suffici ent to establish that Korea acted inconsistently 
with Annex B(3) and as a consequence Article 7 of the SPS Agreement.24 
17. Furthermore, Korea requests that the Appellate Body find that the Panel failed to make an 
objective assessment of the matter under Articl e 11 of the DSU, and thereby acted inconsistently 
with Article 11, in faulting Korea for not having provided archived links of web -pages.25 
Accordingly, Korea requests the Appellate Body to reverse the Panel 's findings in 
paragraphs  7.474 -7.476, 7.485 -7.487 , 7.497 -7.502, and 8.5(a).  
18. Accordingly, Korea requests that the Appellate Body reverse the Panel 's findings, in 
paragraphs 7.464, 7.474 -7.476, 7.483, 7.485 -7.487, 7.492, 7.496 -7.502, 7.509, 7.518 -7.519, 
and 8.5 that Korea failed to publish the measures consistently with Article 7 and Annex B(1), and 
that Korea did not comply with Article 7 and Annex B(3).  
 
__________  
                                                
20 See, for exam ple, Panel Report, paras. 7.483, 7.487, 7.492, and 7.496.  
21 See, for example, Panel Report, paras. 7.500 -7.501.  
22 See, for example, Panel Report, paras. 7.474, 7.476, 7.485, 7.487, 7.497, 7.500, and 7.501.  
23 See, for example, Panel Report, paras. 7.474, 7 .476, 7.487, 7.499 -7.502, and 8.5(a).  
24 See, for example, Panel Report, paras. 7.518, 7.519 and 8.5(b).  
25 See, for example, Panel Report, paras. 7.474, 7.485, and 7.497.