AUSTRALIA – MEASURES AFFECTING THE IMPORTATION OF APPLES FROM NEW ZEALAND
Document: Communication from the Chairman of the Panel Preliminary Ruling by the Panel
Date: 23 June 2008
Document codes: WT/DS367/7; WT/DS367/5
Complainant: New Zealand
Respondent: Australia
Third parties: Chile, EU, Japan, Pakistan, Taiwan, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. 2.2, 2.3, 5.1, 5.2, 5.5, 5.6, 8, Annex C  Sanitary and Phytosanitary Measures (SPS)

AUSTRALIA – MEASURES AFFECTING THE IMPORTATION OF APPLES
FROM NEW ZEALAND

Communication from the Chairman of the Panel

Preliminary Ruling by the Panel

 The following communication, dated 19 June 2008, from the Chairman of the Panel to the
Chairman of the Dispute Settlement Body, is circulated to Members for their information.

 On 13 March 2008, Australia, the respondent in the above-mentioned dispute, raised a
preliminary procedural question concerning the consistency of New Zealand's request for the
establishment of the Panel () with Article 6.2 of the Dispute Settlement Understanding.

 Over the past months, the Panel has received written submissions on this preliminary issue
from both parties as well as from two third parties. On 6 June 2008, the Panel issued the enclosed
preliminary ruling on the procedural question raised by Australia, reserving its right to further develop
the reasons for its preliminary ruling later in the proceedings or to include them in its report, as
appropriate.

 After having consulted the parties to the disput e, the Panel has decided to inform the Dispute
Settlement Body of the content of its preliminary ru ling. Therefore, I would be grateful if you could
circulate the body of this letter and the enclosed preliminary ruling as a WT/DS367 document in all
three official languages of the WTO at the same time.

 Circulation of the preliminary ruling as a sep arate document in the WT/DS series was decided
because of the specific circumstances of the case before this Panel and in the light of the outcome of
the preliminary ruling. Accordingly, it should not be seen as establishing a practice or setting a
precedent for the circulation of preliminary rulings in any other dispute.

PRELIMINARY RULING OF THE PANEL

I. INTRODUCTION
1. On 13 March 2008, Australia filed a request befo re this Panel for a preliminary procedural
ruling. Australia asserted that New Zealand's re quest for the establishment of this Panel, dated
7 December 2007, is inconsistent with Article 6.2 of the Disput e Settlement Understanding (DSU),
because the panel request fails to identify the specific measures at issue and fails to provide a brief
summary of the legal basis of New Zealand's complaint sufficient to present the problem clearly.
Australia asked the Panel to find that New Zealand' s panel request fails to fulfil the requirements of
Article 6.2 of the DSU, and therefore to refrain from considering the substance of New Zealand's
claims in this dispute.
1
2. The Panel has examined Australia's prelimin ary request, as well as the arguments presented
subsequently by Australia and New Zealand, a nd by Chile and the European Communities as third
parties to the dispute. In considering Australia 's request, the Panel has looked at New Zealand's
request for the establishment of the Panel as a w hole and on its face, as well as the attendant
circumstances of the present case. The Panel assessed the sufficiency of this panel request in the light
of the terms used in Article 6.2 of the DSU in th eir context and in the light of the object and purpose
of this provision.
3. In the interest of due process, and especially in order to allow parties and third parties
sufficient time to prepare their first written submis sions, the Panel has decided to issue an early
preliminary ruling. This is consistent with Aust ralia's request that the Panel issue its preliminary
ruling prior to the due dates of the parties' first written submissions. 2 The Panel reserves its right to
further develop the reasons for its ruling later in the proceedings, or to include them in its report.
4. The Panel begins by recalling the requirements c ontained in Article 6.2 of the DSU. These
requirements are as follows:
"The request for the establishment of a pane l shall be made in writing. It shall
indicate whether consultations were held, identify the specific measures at issue and
provide a brief summary of the legal basis of the complaint sufficient to present the
problem clearly. In case the applicant re quests the establishment of a panel with
other than standard terms of reference, th e written request shall include the proposed
text of special terms of reference."
5. The Panel notes that New Zealand's panel request clearly satisfies the first two requirements
contained in Article 6.2 of the DSU. In this regard, the panel request was made in writing and
indicates that "consultations [between the parties] were held on 4 October 2007 in Geneva ... [but
they] failed to resolve the matter". 3 Indeed, neither Australia nor the third parties have raised any
issue with regard to these particular two require ments. The Panel will now turn to whether New
Zealand's panel request satisfies the other requirements of Article 6.2.

1 Australia's letter dated 13 March 2008.
2 Australia's letter dated 17 March 2008.
3Australia – Apples , Request for the Establishment of a Panel by New Zealand (WT/DS367/5),
7 December 2007, p. 3.

II. ON THE IDENTIFICATION OF THE SPECIFIC MEASURES AT ISSUE
6. As to whether New Zealand's panel request id entifies the specific measures at issue in a
manner consistent with the requirements of Artic le 6.2 of the DSU, the Panel has reached the
conclusions set forth below.
7. In its panel request, New Zealand has referred to both "measures specified in and required by
Australia pursuant to the Final import risk analysis report for apples from New Zealand " (FIRA) and,
"in particular" to a list of 17 requirements spelt out in the FIRA and identified in the panel request
through bullet points.
8. Looking at the text of New Zealand's panel request, the Panel finds that, with respect to the 17
items identified by New Zealand through 17 separate bullet points, the request is sufficiently precise
in identifying the specific measures at issue with respect to those 17 items, pursuant to Article 6.2 of
the DSU.
9. On the other hand, given the length and complexity of Australia's FIRA, the Panel finds that
the broad reference in New Zealand's panel request to the "measures specified in and required by
Australia pursuant to the [ FIRA]" fails to satisfy the requirement of sufficient clarity in the
identification of the specific measur es at issue set forth in Article 6.2 of the DSU. Accordingly, the
Panel finds that its terms of reference are limite d to the 17 measures specifically identified by New
Zealand in its panel request and do not encompass other measures that may be contained in Australia's
FIRA, but which were not identified with sufficient precision in the panel request.
III. THE SUMMARY OF THE LEGAL BASIS OF THE COMPLAINT
10. In its panel request, New Zealand has liste d a number of provisi ons of the covered
agreements, which it alleges are breached by the measures adopted by Australia. New Zealand has
not drawn an explicit and detailed connection be tween the specific measures challenged and the
provisions invoked. New Zealand has only stated in general terms that "the above measures are
inconsistent with the obligations of Australia under [nine provisions of the Agreement on the
Application of Sanitary and Phyto sanitary Measures, (SPS Agreement)]".
4 Having carefully
considered the language used in the panel request and the specific content of the provisions of the SPS
Agreement cited therein, the Panel understands that New Zealand has claimed that "every measure ...
[identified] in its panel request is inconsistent w ith each of the [nine] provisions referred to [in the
panel request]."5 In the Panel's view, this satisfies the re quirement that the panel request lays out a
connection between the various measures challenged and the specific provisions invoked.6
11. The Panel now turns to the issue of whether New Zealand's panel request provides a brief
summary of the legal basis of the complaint, whic h is sufficient to present the problem clearly, as
required by Article 6.2 of the DSU. The Pane l would ideally have preferred a more explicit
explanation of how or why the measures at issue are considered by New Zealand to be violating the
identified provisions of the SPS Agreement. Howe ver, considering the language used in the panel
request and the specific content of the provision s of the SPS Agreement cited therein, the Panel
concludes that New Zealand's panel request contai ns enough information to adequately inform the
responding party and other WTO Members on the nature of the complaint 7 and to allow the

4 Australia – Apples , Request for the Establishment of a Panel by New Zealand (WT/DS367/5),
7 December 2007, p. 3.
5 Australia – Apples , Written Submission by New Zealand on Australia's Request for a Preliminary
Procedural Ruling in Relation to the Consistency of New Zealand's Panel Request with Article 6.2 of the DSU,
7 April 2008, para. 2.51.
6 See Appellate Body Report on US – Oil Country Tubular Goods Sunset Review, para. 162.
7 Appellate Body Report on EC – Bananas III, para. 142.

responding party to begin preparing its defence.
8 The Panel recalls in this regard that the complaining
party is under no obligation to develop its arguments in its panel request. 9 Furthermore, the Panel's
conclusion in this case is supported by practice fo llowed by WTO Members in some previous panel
requests (including that of New Zealand and Australia ), as well as by rulings such as that adopted by
the panel in EC – Approval and Marketing of Biotech Products . Finally, the Panel notes that it is not
convinced by Australia's arguments that the lack of a more detailed explanation as to how or why the
17 specifically listed measures at issue are considered by New Zealand to be violating the provisions
invoked has prejudiced or will prejudice Australia's ab ility to defend itself in the course of the Panel's
proceedings.
12. Accordingly, the Panel finds that New Zealand' s panel request does not fail to provide a brief
summary of the legal basis of its complaint, wh ich is sufficient to present the problem clearly, as
required by Article 6.2 of the DSU.
IV. CONCLUSION
13. In light of the foregoing, the Panel finds:
(a) With respect to the 17 items contained in Australia's Final import risk analysis report
for apples from New Zealand (FIRA) and identified by bullet points in New Zealand's
request for the establishment of this Pa nel, dated 7 December 2007, the specific
measures at issue have been properly identified;
(b) New Zealand's panel request does not identify with sufficient precision any measures
contained in Australia's FIRA, other than the 17 specific items identified through
bullet points. Accordingly, any such other measures are not part of this Panel's terms
of reference; and,
(c) New Zealand's panel request contains suffici ent information regarding the legal basis
of the complaint to present the problem clearly with respect to the 17 identified items.
14. In light of the findings above, the Panel will allo w this proceeding to continue with respect to
the 17 measures specifically identified in New Zealand's panel request and to the alleged
inconsistency of such measures with the provisions of the SPS Agreement cited therein.