KOREA – IMPORT BANS, AND TESTING AND CERTIFICATION REQUIREMENTS FOR RADIONUCLIDES NOTIFICATION OF AN APPEAL BY THE REPUBLIC OF KOREA UNDER ARTICLE 16.4 AND ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Document: THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF THE WORKING PROCEDURES FOR APPELLATE REVIEW
Date: 12 April 2018
Document codes: WT/DS495/8
Complainant: Japan
Respondent: South Korea
Third parties: U.S., EU, Norway, New Zealand, India, Russia, Taiwan, China, Guatemala, Canada, Brazil
Dispute stage: Appellate Body
Agreements cited: Art. 7, Annex B, 5.8, 2.3, 5.5, 5.6, 8, Annex C  Sanitary and Phytosanitary Measures (SPS)Art. XXIII:1  GATT 1994

KOREA – IMPORT BANS, AND TESTING AND
CERTIFICATION REQUIREMENTS FOR RADIONUCLIDES
NOTIFICATION OF AN APPEAL BY THE REPUBLIC OF KOREA UNDER ARTICLE 16.4 AND
ARTICLE 17 OF THE UNDERSTANDING ON RULES AND PROCEDURES GOVERNING
THE SETTLEMENT OF DISPUTES (DSU), AND UNDER RULE 20(1) OF
THE WORKING PROCEDURES FOR APPELLATE REVIEW
The following communication, dated 9 April 2018 , from the delegation of the Republic of Korea ,
is being circulated to Members.

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 () ("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 Agreement 2, 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.

 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 additional testing requirements were not based
on pertinent available information.6
 Korea did not review the measures within a reasonable period of time.7
7. Korea also seeks review by the Appellate Body of the Panel 's analysis of 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 paragraphs 7.251-7.256 and 8.2 b-e.
9. Korea seeks review by the Appellate Body of the Panel 's interpretation and application of
Article 5.6 of the SPS Agreement. Korea requests the Appellate Body to find that the Panel erred in
the 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. Accordingly, Korea requests that the Appellate Body reverse the Panel 's findings concerning
the use of such evidence and data, in particular in paragraphs 7.5, 7.8, 7.134, 7.142, 7.207,
7.219, 7.226, 7.236, and 7.245. Since the Panel relied on such evidence and data in its
assessment under Article 5.6, Korea further requests that the Appellate Body reverse the Panel 's

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.

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 Agreement.17
14. Korea additionally requests that the Appellate Body find that the Panel failed to make an
objective assessment of the matter and acted inconsistently with Article 11 of the DSU in
considering evidence and data that was not available to the Korean 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, 7.222-7.223, 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 Report, paras. 7.359, 7.360, and 8.3(a) and (b).
18 See, for example, Panel Report, paras. 7.5, 7.8, 7.134, 7.142, 7.307-7.308, 7.311, 7.315, 7.319,
7.321-7.322, 7.360, and 8.3(a) and (b).
19 See, for example, Panel Report, paras. 7.461 and 7.464.

 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).