KOREA – IMPORT BANS, AND TESTING AND CERTIFICATION REQUIREMENTS FOR RADIONUCLIDES AB-2018-1
Document: Report of the Appellate Body
Date: 11 April 2019
Document codes: WT/DS495/AB/R
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
AB-2018-1
Report of the Appellate Body

ABBREVIATIONS USED IN THIS REPORT
Abbreviation Description
ALARA as low as reasonably achievable
ALOP appropriate level of protection
Bq becquerel
Codex Codex Alimentarius Commission
DSB Dispute Settlement Body
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes
FDNPP Fukushima Dai-ichi Nuclear Power Plant
GATS General Agreement on Trade in Services
GATT 1994 General Agreement on Tariffs and Trade 1994
HS Harmonized System
ICRP International Commission on Radiological Protection
KFDA Korea Food and Drug Administration
Kg kilogram
LNT linear-no-threshold
MFDS Ministry of Food and Drug Safety
MIFAFF Ministry for Food, Agriculture, Forestry and Fisheries of Korea (original name);
Ministry of Agriculture, Food and Rural Affairs of Korea (since 2013)
mSv millisievert
OIE Office International des Epizooties (original name); World Organisation for
Animal Health (since 2003)
Panel Report Korea – Import Bans, and Testing and Certification Requirements for
Radionuclides
SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures
Working Procedures Working Procedures for Appellate Review
WTO

PANEL EXHIBITS CITED IN THIS REPORT
Exhibit Number Short Title Description
Panel Exhibit JPN-3.b PMO blanket import ban and
additional testing requirements
press release
Korea Prime Minister's Office, Press
Release, "Government Bans Import of All
Fishery Products from 8 ken near
Fukushima" (6 September 2013)
Panel Exhibit JPN-4.b Korea Office for Government Policy
Coordination, Ministry of Food and Drug
Safety, Ministry of Oceans and Fisheries,
and Nuclear Safety and Security
Commission, "Q&A on Radioactivity
Safety Management of Fishery Products
Imported from Japan" (September 2013)
Panel Exhibits JPN-55.b
(revised) and KOR-72
(revised)
KFDA 14 April 2011 press
release
Korea Food and Drug Administration,
Press Release, "Status of KFDA's
Response and Management Measures
Regarding the Japanese Nuclear
Crisis (5)" / "KFDA's Response to the
Fukushima Nuclear Power Plant Accident
and Management Status" (14 April 2011)
Panel Exhibit JPN-75.b MFDS 2013 blanket import ban
and additional testing
requirements notice
Korea Ministry of Food and Drug Safety,
"Notice of Temporary Special Measure for
Safety for Food Imported from Japan"
(6 September 2013)
Panel Exhibit JPN-76.b Korea Ministry of Food, Agriculture,
Forestry and Fisheries, Press Release,
"Temporary Import Suspension on Cod
from Miyagi-ken and Iwate-ken, Japan"
(3 May 2012)
Panel Exhibit JPN-77.b Korea Ministry of Food, Agriculture,
Forestry and Fisheries, Press Release,
"Temporary Import Suspension on 35
Fishery Products, including Yellowfish
from Fukushima-ken, Japan" (26 June
2012)
Panel Exhibit JPN-78.b Korea Ministry of Food, Agriculture,
Forestry and Fisheries, Press Release,
"Temporary Import Suspension on Cod
from Aomori-ken, Japan" (29 August
2012)
Panel Exhibit KOR-140 European ALARA Network, Newsletter 31:
"Development and dissemination of
ALARA culture" (11 July 2016)

CASES CITED IN THIS REPORT
Short Title Full Case Title and Citation
Argentina – Financial
Services
Appellate Body Report, Argentina – Measures Relating to Trade in Goods and
Services, WT/DS453/AB/R and Add.1, adopted 9 May 2016, DSR 2016:II,
p. 431
Argentina – Import Measures Appellate Body Reports, Argentina – Measures Affecting the Importation of
Goods, WT/DS438/AB/R / WT/DS444/AB/R / WT/DS445/AB/R, adopted
26 January 2015, DSR 2015:II, p. 579
Argentina – Import Measures Panel Reports, Argentina – Measures Affecting the Importation of Goods,
WT/DS438/R and Add.1 / WT/DS444/R and Add.1 / WT/DS445/R and Add.1,
adopted 26 January 2015, as modified (WT/DS438/R) and upheld
(WT/DS444/R / WT/DS445/R) by Appellate Body Reports WT/DS438/AB/R /
WT/DS444/AB/R / WT/DS445/AB/R, DSR 2015:II, p. 783
Australia – Apples Appellate Body Report, Australia – Measures Affecting the Importation of
Apples from New Zealand, WT/DS367/AB/R, adopted 17 December 2010,
DSR 2010:V, p. 2175
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of Salmon,
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, p. 3327
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded
Tyres, WT/DS332/AB/R, adopted 17 December 2007, DSR 2007:IV, p. 1527
Brazil – Taxation Panel Reports, Brazil – Certain Measures Concerning Taxation and Charges,
WT/DS472/R, Add.1 and Corr.1 / WT/DS497/R, Add.1 and Corr.1, adopted
11 January 2019, as modified by Appellate Body Reports WT/DS472/AB/R /

Canada – Continued
Suspension
Appellate Body Report, Canada – Continued Suspension of Obligations in the
EC – Hormones Dispute, WT/DS321/AB/R, adopted 14 November 2008,
DSR 2008:XIV, p. 5373
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures
Relating to Certain Agricultural Products, WT/DS207/AB/R, adopted
23 October 2002, DSR 2002:VIII, p. 3045 (Corr.1, DSR 2006:XII, p. 5473)
China – Publications and
Audiovisual Products
Panel Report, China – Measures Affecting Trading Rights and Distribution
Services for Certain Publications and Audiovisual Entertainment Products,
WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by
Appellate Body Report WT/DS363/AB/R, DSR 2010:II, p. 261
China – Raw Materials Appellate Body Reports, China – Measures Related to the Exportation of
Various Raw Materials, WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R,
adopted 22 February 2012, DSR 2012:VII, p. 3295
EC – Approval and Marketing
of Biotech Products
Panel Reports, European Communities – Measures Affecting the Approval and
Marketing of Biotech Products, WT/DS291/R, Add.1 to Add.9 and Corr.1 /
WT/DS292/R, Add.1 to Add.9 and Corr.1 / WT/DS293/R, Add.1 to Add.9 and
Corr.1, adopted 21 November 2006, DSR 2006:III, p. 847
EC – Asbestos Appellate Body Report, European Communities – Measures Affecting Asbestos
and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5 April 2001,
DSR 2001:VII, p. 3243
EC – Bed Linen (Article 21.5
– India)
Appellate Body Report, European Communities – Anti-Dumping Duties on
Imports of Cotton-Type Bed Linen from India – Recourse to Article 21.5 of the
DSU by India, WT/DS141/AB/RW, adopted 24 April 2003, DSR 2003:III,
p. 965
EC – Hormones Appellate Body Report, European Communities – Measures Concerning Meat
and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted
13 February 1998, DSR 1998:I, p. 135
EC – Sardines Appellate Body Report, European Communities – Trade Description of
Sardines, WT/DS231/AB/R, adopted 23 October 2002, DSR 2002:VIII, p. 3359
EC – Seal Products Appellate Body Reports, European Communities – Measures Prohibiting the
Importation and Marketing of Seal Products, WT/DS400/AB/R /
WT/DS401/AB/R, adopted 18 June 2014, DSR 2014:I, p. 7

Short Title Full Case Title and Citation
EC ‒ Selected Customs
Matters
Appellate Body Report, European Communities – Selected Customs Matters,
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping Duties on
Malleable Cast Iron Tube or Pipe Fittings from Brazil, WT/DS219/AB/R,
adopted 18 August 2003, DSR 2003:VI, p. 2613
EC and certain member
States – Large Civil Aircraft
Appellate Body Report, European Communities and Certain Member States –
Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, adopted
1 June 2011, DSR 2011:I, p. 7
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding
Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998,
DSR 1998:IX, p. 3767
India – Agricultural Products Appellate Body Report, India – Measures Concerning the Importation of
Certain Agricultural Products, WT/DS430/AB/R, adopted 19 June 2015,
DSR 2015:V, p. 2459
Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry,
WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, Corr.1 and Corr.2,
adopted 23 July 1998, and Corr.3 and Corr.4, DSR 1998:VI, p. 2201
Indonesia – Import Licensing
Regimes
Appellate Body Report, Indonesia – Importation of Horticultural Products,
Animals and Animal Products, WT/DS477/AB/R, WT/DS478/AB/R, and Add.1,
adopted 22 November 2017, DSR 2017:VII, p. 3037
Japan – Agricultural Products
II
Appellate Body Report, Japan – Measures Affecting Agricultural Products,
WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, p. 277
Japan – Alcoholic Beverages
II
Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R,
WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I,
p. 97
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation of Apples,
WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, p. 4391
Korea – Alcoholic Beverages Appellate Body Report, Korea – Taxes on Alcoholic Beverages, WT/DS75/AB/R,
WT/DS84/AB/R, adopted 17 February 1999, DSR 1999:I, p. 3
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of
Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000,
DSR 2000:I, p. 3
Korea – Radionuclides Panel Report, Korea – Import Bans, and Testing and Certification
Requirements for Radionuclides, WT/DS495/R and Add.1, circulated to WTO
Members 22 February 2018
Mexico – Corn Syrup
(Article 21.5 – US)
Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose
Corn Syrup (HFCS) from the United States – Recourse to Article 21.5 of the
DSU by the United States, WT/DS132/AB/RW, adopted 21 November 2001,
DSR 2001:XIII, p. 6675
Russia – Pigs (EU) Panel Report, Russian Federation – Measures on the Importation of Live Pigs,
Pork and Other Pig Products from the European Union, WT/DS475/R and
Add.1, adopted 21 March 2017, as modified by Appellate Body Report
WT/DS475/AB/R, DSR 2017:II, p. 361
US – Animals Panel Report, United States – Measures Affecting the Importation of Animals,
Meat and Other Animal Products from Argentina, WT/DS447/R and Add.1,
adopted 31 August 2015, DSR 2015:VIII, p. 4085
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain
Corrosion-Resistant Carbon Steel Flat Products from Germany,
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX,
p. 3779
US – Continued Suspension Appellate Body Report, United States – Continued Suspension of Obligations in
the EC – Hormones Dispute, WT/DS320/AB/R, adopted 14 November 2008,
DSR 2008:X, p. 3507
US – Continued Zeroing Appellate Body Report, United States – Continued Existence and Application of
Zeroing Methodology, WT/DS350/AB/R, adopted 19 February 2009,
DSR 2009:III, p. 1291

Short Title Full Case Title and Citation
US – Countervailing and
Anti-Dumping Measures
(China)
Appellate Body Report, United States – Countervailing and Anti-Dumping
Measures on Certain Products from China, WT/DS449/AB/R and Corr.1,
adopted 22 July 2014, DSR 2014:VIII, p. 3027
US – Countervailing
Measures (China)
Appellate Body Report, United States – Countervailing Duty Measures on
Certain Products from China, WT/DS437/AB/R, adopted 16 January 2015,
DSR 2015:1, p. 7
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border
Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted
20 April 2005, DSR 2005:XII, p. 5663 (and Corr.1, DSR 2006:XII, p. 5475)
US – Hot-Rolled Steel Appellate Body Report, United States – Anti-Dumping Measures on Certain
Hot-Rolled Steel Products from Japan, WT/DS184/AB/R, adopted
23 August 2001, DSR 2001:X, p. 4697
US – Large Civil Aircraft (2nd
complaint)
Appellate Body Report, United States – Measures Affecting Trade in Large Civil
Aircraft (Second Complaint), WT/DS353/AB/R, adopted 23 March 2012,
DSR 2012:I, p. 7
US – Oil Country Tubular
Goods Sunset Reviews
Appellate Body Report, United States – Sunset Reviews of Anti-Dumping
Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R,
adopted 17 December 2004, DSR 2004:VII, p. 3257
US – Oil Country Tubular
Goods Sunset Reviews
(Article 21.5 – Argentina)
Appellate Body Report, United States – Sunset Reviews of Anti-Dumping
Measures on Oil Country Tubular Goods from Argentina – Recourse to
Article 21.5 of the DSU by Argentina, WT/DS268/AB/RW, adopted
11 May 2007, DSR 2007:IX, p. 3523
US – Poultry (China) Panel Report, United States – Certain Measures Affecting Imports of Poultry
from China, WT/DS392/R, adopted 25 October 2010, DSR 2010:V, p. 1909
US – Shrimp Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp
Products, WT/DS58/R and Corr.1, adopted 6 November 1998, as modified by
Appellate Body Report WT/DS58/AB/R, DSR 1998:VII, p. 2821
US – Tuna II (Mexico)
(Article 21.5 – Mexico)
Appellate Body Report, United States – Measures Concerning the Importation,
Marketing and Sale of Tuna and Tuna Products – Recourse to Article 21.5 of
the DSU by Mexico, WT/DS381/AB/RW and Add.1, adopted 3 December 2015,
DSR 2015:X, p. 5133
US – Upland Cotton
(Article 21.5 – Brazil)
Appellate Body Report, United States – Subsidies on Upland Cotton – Recourse
to Article 21.5 of the DSU by Brazil, WT/DS267/AB/RW, adopted
20 June 2008, DSR 2008:III, p. 809

APPELLATE BODY

Korea – Import Bans, and Testing and
Certification Requirements for
Radionuclides

Korea, Appellant/Appellee
Japan, Other Appellant/Appellee

Brazil, Third Participant
Canada, Third Participant
China, Third Participant
European Union, Third Participant
Guatemala, Third Participant
India, Third Participant
New Zealand, Third Participant
Norway, Third Participant
Russia, Third Participant
Chinese Taipei, Third Participant
United States, Third Participant

AB-2018-1

Appellate Body Division:

Servansing, Presiding Member
Bhatia, Member
Graham, Member

1 INTRODUCTION
The Republic of Korea (Korea) and Japan each appeal certain issues of law and legal
interpretations developed in the Panel Report, Korea – Import Bans, and Testing and Certification
Requirements for Radionuclides1 (Panel Report). The Panel was established on 28 September 20152
to consider a complaint by Japan 3 with respect to the consistency of certain measures adopted by
Korea on Japanese food products with the Agreement on the Application of Sanitary and Phytosanitary
Measures (SPS Agreement).
The challenged measures were imposed by Korea in response to the Fukushima Dai-ichi Nuclear
Power Plant (FDNPP) accident in Japan on 11 March 2011 and its aftermath. Specifically, Japan
challenged four sets of Korean measures: (i) the additional testing requirements adopted in 2011 for
non-fishery products (except livestock); (ii) the product -specific import bans adopted in 2012 on
Alaska pollock from one prefecture and on Pacific cod from five prefectures; (iii) the additional testing
requirements adopted in 2013 for fishery and livestock products; and (iv) the "blanket import ban"
adopted in 2013 on all fishery products from eight prefectures in relation to 28 fishery products.4 The
factual aspects of this dispute are set forth in greater detail in the Panel Report.
Japan claimed before the Panel that all of Korea's challenged measures are inconsistent with:
(i) Article 5.6 of the SPS Agreement for being more trade-restrictive than required; (ii) Article 2.3 of
the SPS Agreement for arbitrarily or unjusti fiably discriminating against Japanese food products and
constituting a disguised restriction on international trade; and (iii) Article 7 and paragraphs 1 and 3
of Annex B to the SPS Agreement, as Korea failed to comply with certain transparency requirements.
Moreover, Japan claimed before the Panel that the 2011 additional testing requirements and the 2013
additional testing requirements are inconsistent with Article 8 and paragraphs 1(a), 1(c), 1(e),

1 WT/DS495/R, 22 February 2018.
2 WT/DSB/M/368, para. 6.4.
3 Panel Report, para. 1.4; Request for the Establishment of a Panel by Japan, WT/DS495/3 (Japan's panel
request).
4 Panel Report, paras. 2.98, 2.100-2.102, 2.105-2.107, and 2.113-2.115. In this Report, we refer to these
measures as the 2011 additional testing requirements, the product-specific import bans, the 2013 additional
testing requirements, and the blanket import ban.

and 1(g) of Annex C to the SPS Agreement.5 Korea requested the Panel to reject Japan's claims in
their entirety.6
In the Panel Report, circulated to Members of the World Trade Organization (WTO) on
22 February 2018, the Panel found that:
a. Korea's measures do not fulfil the four requirements in Article 5.7 of the SPS Agreement7;
b. with respect to whether Korea's measures are more trade-restrictive than required under
Article 5.6 of the SPS Agreement:
i. the 2011 additional testing requirements and product-specific import bans were not
more trade-restrictive than required when adopted8;
ii. the 2011 additional testing requirements and product -specific import bans are
maintained in a manner inconsistent with Article 5.6 because they are more trade-
restrictive than required9;
iii. the 2013 additional testing requirements were adopted and maintained in a manner
inconsistent with Article 5.6 because they were and are more trade-restrictive than
required10;
iv. the blanket import ban (with the exception of the ban on Pacific cod originating from
Fukushima and Ibaraki) was adopted in a m anner inconsistent with Article 5.6
because it was more trade-restrictive than required11; and
v. the blanket import ban with respect to all 28 fishery products from all
eight prefectures is maintained in a manner inconsistent with Article 5.6 because it
is more trade-restrictive than required12;
c. with respect to whether Korea's measures arbitrarily or unjustifiably discriminate against
Japanese products under the first sentence of Article 2.3 of the SPS Agreement and
whether they are applied in a manner which wo uld constitute a disguised restriction on
international trade under the second sentence of Article 2.3:
i. the 2013 additional testing requirements and the blanket import ban with respect
to the 27 fishery products subject to Japan's claim from the eight prefectures and
Pacific cod from six prefectures, i.e. excluding Pacific cod from Fukushima and
Ibaraki, were inconsistent with the first sentence of Article 2.3 and, as a
consequence, the second sentence of Article 2.3, when Korea adopted them13;
ii. by maint aining the product -specific import bans, the blanket import ban on the
28 fishery products from the eight prefectures, the 2011 additional testing
requirements, and the 2013 additional testing requirements on Japanese products,
Korea acted inconsistently w ith the first sentence of Article 2.3 and, as a
consequence, the second sentence of Article 2.314; and

5 Panel Report, paras. 3.1, 7.113, 7.258, 7.363, and 7.448; Japan's first written submission to the Panel,
paras. 141-142, 155-157, 195-196, 333-335, 402, 450, and 464-465.
6 Panel Report, para. 3.3.
7 Panel Report, paras. 7.111 and 8.1.
8 Panel Report, paras. 7.253-7.254 and 8.2.a.
9 Panel Report, paras. 7.253-7.254 and 8.2.b.
10 Panel Report, paras. 7.253, 7.255, and 8.2.c.
11 Panel Report, paras. 7.253, 7.256, and 8.2.d.
12 Panel Report, paras. 7.253, 7.256, and 8.2.e.
13 Panel Report, paras. 7.360 and 8.3.a.
14 Panel Report, paras. 7.360 and 8.3.b.

iii. the Panel exercised judicial economy with regard to the other grounds raised by
Japan for inconsistency of Korea's measures with the second sentence of
Article 2.315;
d. with respect to the obligations concerning control, inspection, and approval procedures in
Article 8 and Annex C to the SPS Agreement, Japan failed to establish that Korea acted
inconsistently with the provisions of Annex C(1), subparagraphs (a ), (c), (e), and (g),
and, as a consequence, Article 8 with respect to the adoption and maintenance of the
2011 additional testing requirements and the 2013 additional testing requirements16; and
e. with respect to the transparency obligations under Article 7 and Annex B to the
SPS Agreement:
i. Korea acted inconsistently with Annex B(1) and, as a consequence, Article 7, in
relation to the publication of all of the challenged measures17; and
ii. Korea's SPS enquiry point's incomplete response to Japan's first request a nd its
failure to respond to Japan's second request are sufficient to establish that Korea
acted inconsistently with Annex B(3) and, as a consequence, Article 7.18
In accordance with Article 19.1 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU), and having found that Korea acted inconsistently with certain provisions
of the SPS Agreement, the Panel recommended that Korea bring its measures into conformity with its
obligations under the SPS Agreement.19
On 9 April 2018, Korea notified the Dispute Settlement Body (DSB), pursuant to Articles 16.4
and 17 of the DSU, of its intention to appeal certain issues of law covered in the Panel Report and
certain legal interpretations developed by the Panel, and filed a Notice of Appeal 20 and an
appellant's submission pursuant to Rule 20 and Rule 21, respectively, of the Working Procedures for
Appellate Review 21 (Working Procedures). On 16 April 2018, Japan notified the DSB, pursuant to
Articles 16.4 and 17 of the DSU, of its intenti on to appeal certain issues of law covered in the Panel
Report and certain legal interpretations developed by the Panel, and filed a Notice of Other Appeal 22
and another appellant's submission pursuant to Rule 23 of the Working Procedures. On 27 April 2018,
Japan and Korea each filed an appellee's submission.23 On 30 April 2018, Brazil, the European Union,
and the United States each filed a third participant's submission.24 On the same day, Canada, China,
Guatemala, India, New Zealand, Norway, and the Separate Customs Territory of Taiwan, Penghu,
Kinmen and Matsu ( Chinese Taipei) each notified its intention to appear at the hearing as a
third participant.25 Subsequently, the Russian Federation (Russia) notified its intention to appear at
the hearing as a third participant.26
On 8 June 2018, the Chair of the Appellate Body notified the Chair of the DSB that the
Appellate Body would not be able to circulate its Report in this appeal within the 60 -day period
pursuant to Article 17.5 of the DSU, or within the 90-day period pursuant to the same provision.27 On

15 Panel Report, paras. 7.360 and 8.3.c.
16 Panel Report, paras. 7.447 and 8.4.
17 Panel Report, paras. 7.476, 7.487, 7.501-7.503, and 8.5.a.
18 Panel Report, paras. 7.519-7.520 and 8.5.b.
19 Panel Report, para. 8.7.
20 WT/DS495/8.
21 WT/AB/WP/6, 16 August 2010.
22 WT/DS495/9.
23 Pursuant to Rules 22 and 23(4) of the Working Procedures.
24 Pursuant to Rule 24(1) of the Working Procedures.
25 Pursuant to Rule 24(2) of the Working Procedures.
26 On 28 November 2018, Russia submitted its delegation list for the hearing to the Appellate Body
Secretariat. We have interpreted this action as a notification to attend the hearing pursuant to Rule 24(4) of the
Working Procedures.
27 The Chair of the Appellate Body explained that this was due to a number of factors, including the
substantially enhanced workload of the Appellate Body in 2018, scheduling issues arising from overlap in the
composition of the Divisions hearing different appeals owing to the current vacancies on the Appellate Body, the
number and complexity of the issues raised in this and concurrent appellate proceedings, together with the
demands that these concurrent appeals place on the WTO Secretariat's translation services, and the shortage of
staff in the Appellate Body Secretariat. Although the appeals in this dispute were initiated on 9 April 2018 and

1 March 2019, the Chair of the Appellate Body informed the Chair of the DSB that the Report in these
proceedings would be circulated no later than 11 April 2019.28
On 28 September 2018, the participants and third participants were informed that, in accordance
with Rule 15 of the Working Procedures, the Chair of the Appellate Body had notified the Chair of the
DSB of the Appellate Body's decision to authorize Appellate Body Member Mr Shree Baboo Chekitan
Servansing to complete the disposition of this appeal, even though his term of office was due to expire
before the completion of the appellate proceedings.
The hearing in this appeal was held on 3 -4 December 2018. The participants and six of the
third participants (Brazil, Canada, the European Union, New Zealand, Norway, and the United States)
made oral statements and responded to questions posed by the Members of the Appellate Body
Division hearing the appeal.
2 ARGUMENTS OF THE PARTICIPANTS
The claims and arguments of the participants are reflected in the executive summaries of their
written submissions provided to the Appellate Body.29 The Notices of Appeal and Other Appeal, and
the executive summaries of the participants' claims and arguments, are contained in Annexes A and B
of the Addendum to this Report, WT/DS495/AB/R/Add.1.
3 ARGUMENTS OF THE THIRD PARTICIPANTS
The arguments of the third participants that filed a written submission (Brazil, the
European Union, and the United States) are reflected in the executive su mmaries of their written
submissions provided to the Appellate Body30, and are contained in Annex C of the Addendum to this
Report, WT/DS495/AB/R/Add.1.
4 ISSUES RAISED IN THIS APPEAL
The following issues are raised in this appeal:
a. whether the Panel erred in its application of Article 5.6 of the SPS Agreement in finding that
Japan's proposed alternative measure achieves Korea 's appropriate level of protection
(ALOP);
b. whether the Panel erred in its interpretation and application of Article 2.3 of the
SPS Agreement in finding that: (i) similar conditions exist in Japan and in other Members
regarding the adoption of certain measures and the maintenance of all challenged measures;
(ii) the import bans and the additional testing requirements arbitrarily or unjustif iably
discriminate between these Members; and (iii) Korea's measures are applied in a manner
which would constitute a disguised restriction on international trade;
c. in relation to the Panel's findings under Article 5.7 of the SPS Agreement:
i. whether the Panel erred under Articles 6.2, 7, and 11 of the DSU in making findings
under Article 5.7 of the SPS Agreement;

16 April 2018, due to the multiple appeals pending before the Appellate Body, the reduced number of
Appellate Body Members, and the shortage of staff in the Appellate Body Secretariat, work on these appeals
could only begin in September 2018. (WT/DS495/10)
28 WT/DS495/11.
29 Pursuant to the Appellate Body's communication on "Executive Summaries of Written Submissions in
Appellate Proceedings" and "Guidelines in Respect of Executive Summaries of Written Submissions in
Appellate Proceedings" (WT/AB/23, 11 March 2015).
30 Pursuant to the Appellate Body's communication on "Executive Summaries of Written Submissions in
Appellate Proceedings" and "Guidelines in Respect of Executive Summaries of Written Submissions in
Appellate Proceedings" (WT/AB/23, 11 March 2015).

ii. whether the Panel erred in its interpretation and application of Article 5.7 of the
SPS Agreement in allocating the burden of proof under that provision to Korea;
iii. whether the Panel erred in its interpretation and application of Article 5.7 of the
SPS Agreement in finding that Korea did not establish that: (i) the relevant scientific
evidence had been insufficient with respect to the product-specific import bans, the
blanket import ban, and the 2013 additional testing requirements; (ii) the blanket
import ban and the 2013 additional testing requirements had been adopted on the
basis of available pertinent information; and (iii) Korea h ad reviewed any of its
measures within a reasonable period of time; and
iv. whether the Panel failed to make an objective assessment of the matter under
Article 11 of the DSU by engaging in internally inconsistent reasoning;
d. in relation to the Panel's treatment of evidence, whether the Panel acted inconsistently with
Articles 3.3-3.4, 3.7, and 11 of the DSU and erred in the application of Articles 2.3 and 5.6
of the SPS Agreement;
e. in relation to the Panel's expert selection, whether the Panel acted inconsistent ly with
Article 11 of the DSU by appointing two experts who allegedly were not independent or
impartial;
f. in relation to the Panel's findings under Article 7 and Annex B(1) to the SPS Agreement:
i. whether the Panel erred in its interpretation of Annex B(1) t o the SPS Agreement
in finding that this provision requires that the publication of an SPS regulation
contain sufficient content that interested Members will know the conditions
(including specific principles and methods) that apply to their goods;
ii. whether the Panel erred in its application of Annex B(1) to the SPS Agreement in
finding that Korea acted inconsistently with this provision by: (i) not publishing the
full product scope of the blanket import ban, and the full content of the 2011
additional testing requirements and the 2013 additional testing requirements; and
(ii) not demonstrating that interested Members would have known to look to the
websites indicated by Korea for information on the SPS measures at issue; and
iii. whether the Panel acted inconsistently with Article 11 of the DSU in finding that it
was unable to know whether the web addresses provided by Korea were available
on the day Korea announced each of the SPS measures at issue and what content
was available on that day;
g. in relation to the P anel's findings under Article 7 and Annex B(3) to the SPS Agreement,
whether the Panel erred in its interpretation and application of Annex B(3) to the
SPS Agreement in finding that Korea acted inconsistently with Annex B(3) and, as a
consequence, Article 7 of the SPS Agreement, because of Korea's SPS enquiry point's
incomplete response to Japan's first request and its failure to respond to Japan's
second request; and
h. whether the Panel erred in its interpretation and application of Annex C(1)(a) to the
SPS Agreement in declining to presume that Japanese imported products and Korean
domestic products are "like" and therefore in finding that Japan failed to establish that Korea
acted inconsistently with Annex C(1)(a) and, as a consequence, Article 8 of the
SPS Agreement.
5 ANALYSIS OF THE APPELLATE BODY
In this Report, we address the participants' claims of error on appeal in the following order :
(i) Korea's claim under Article 5.6 of the SPS Agreement; (ii) Korea's claims under Article 2.3 of the
SPS Agreement; (iii) Korea's claims regarding the Panel's findings under Article 5.7 of the
SPS Agreement; (iv) Korea's and Japan's claims regarding the Panel's treatment of evidence;
(v) Korea's claim regarding the selection of certain experts by the Panel; (vi) Korea's claims regarding

the Panel's findings under Article 7 and Annexes B(1) and B(3) to the SPS Agreement; and
(vii) Japan's claim under Article 8 and Annex C(1)(a) to the SPS Agreement.
5.1 Article 5.6 of the SPS Agreement
5.1.1 Introduction
Korea appeals the Panel's f inding that Korea acted inconsistently with Article 5.6 of the
SPS Agreement with respect to: (i) the adoption of the blanket import ban (except for the ban on
Pacific cod from Fukushima and Ibaraki) and the 2013 additional testing requirements; and (ii) the
maintenance of all of Korea's measures. In particular, Korea contests the Panel's findings relating to
the achievement of Korea's ALOP by an alternative measure proposed by Japan. Korea argues that
"the Panel effectively applied an incorrect ALOP, and as a result erred in finding that Japan's proposed
alternative measure would meet Korea's ALOP."31 Based on this alleged error, Korea requests that we
reverse the Panel's finding that the challenged import bans and the additional testing requirements
are inconsistent with Article 5.6 of the SPS Agreement.32 Japan responds that the Panel did not err in
applying Korea's ALOP to Japan's proposed alternative measure.33
We begin by summarizing the Panel's findings under Article 5.6 of the SPS Agreement. We then
address Korea's claim of error on appeal.
5.1.2 The Panel's findings
Before the Panel, Japan claimed that Korea's measures are inconsistent with Article 5.6 of the
SPS Agreement because they are more trade-restrictive than required. In support of this claim, Japan
proposed a single alternative measure to all challenged Korean measures consisting of "testing for
caesium, to verify that the products' caesium content does not exceed Korea's level of 100 Bq/kg, as
a means to control both caesium contamination and contami nation from additional radionuclides". 34
Japan submitted that testing for caesium alone would be sufficient to ensure that Korean consumers'
exposure to radionuclides through the consumption of food would be below 1 millisievert per year
(mSv/yr) as long as caesium levels in Japanese imports were below 100 becquerel per
kilogram (Bq/kg).35 Before the Panel, Korea contested the level of protection that would be achieved
by Japan's alternative measure in relation to its own ALOP.
In addressing whether the alternative measure proposed by Japan would achieve Korea's ALOP36,
the Panel noted Korea's acknowledgement that "it has adopted the Codex benchmark of 1 mSv/year
radiation exposure limit, in order to quantify the highest radiation exposure it is wil ling to accept,
keeping in mind the two objectives of not exceeding the levels in the ordinary environment and abiding
by the … principle" of exposure "as low as reasonably achievable" (ALARA).37 The Panel then reviewed
evidence concerning the ALARA princip le and its application to food safety standards, including the
views of the experts consulted by the Panel. 38 With regard to radioactivity levels that exist in the
ordinary environment, the Panel stated that "[t]he experts were not familiar with Korea's definition of
the 'ordinary environment' being the levels of radiation absent a major nuclear accident."39 The Panel

31 Korea's appellant's submission, para. 170.
32 Korea's appellant's submission, paras. 170 and 197 (referring to Panel Report, paras. 7.253-7.256
and 8.2.b-e).
33 Japan's appellee's submission, para. 140.
36 With respect to other issues under Article 5.6 of the SPS Agreement, the Panel found as a preliminary
matter that Japan's proposed alternative of testing for caesium with a 100 Bq/kg limit is "another measure"
within the meaning of footnote 3 to Article 5.6. (Panel Report, paras. 7.122-7.127) The Panel also concluded that
the proposed alternative measure is technically and economically feasible, noting that Korea already undertakes
caesium and iodine testing on randomly selected samples from every consignment of Japanese products at the
border. (Panel Report, para. 7.149) As to whether Japan's proposed alternative measure is significantly less
trade-restrictive than Korea's measures, the Panel noted that Korea did not contest that the alternative measure
would be less trade-restrictive than the import bans. Further, based on evidence concerning "the additional cost
and time required for the additional testing", the Panel found that the proposed alternative measure is
significantly less trade-restrictive than the additional testing requirements. (Panel Report, paras. 7.150 and
7.156)
37 Panel Report, para. 7.165 (referring to Korea's first written submission to the Panel, para. 234).
38 Panel Report, paras. 7.166-7.168.
39 Panel Report, para. 7.170.

noted, however, the experts' recognition that "radiological protection in food is based on the principle
that the additional dose from contaminating radionuclides in foods should not add significantly to the
dose already received in the ordinary environment or as they referred to it the 'background dose'."40
The Panel stated that it "appreciate[d] Korea's adherence to the ALARA principle" and that Korea
"maintains that its ALOP is not a fixed quantitative threshold". 41 At the same time, the Panel
considered that, "if a Member is applying a particular measure with an express quantitative limit for
contaminants, that is an indicator that products containing levels of contaminants below that limit will
satisfy its ALOP."42 The Panel observed in this connection that "not only for the challenged measures,
but for food products in general, Korea has established maximum levels for radionuclides with a
maximum upper limit of 1 mSv/year for total consumption of man -made radionuclides from all
sources."43 On this basis, the Panel stated that "it must determine whether Japan's alternative
measure achieves the level of protection"44 formulated in the following terms submitted by Korea:
[T]o maintain radioactivity levels in food consumed by Korean consumers at levels that
exist in the ordinary environment – in the absence of radiation from a major nuclear
accident – and thus maintain levels of radioactive contamination in food that are "as low
as reasonably achievable" (ALARA), below the 1 mSv/year radiation dose limit.45
In light of this articulation of Korea's ALOP, the Panel reasoned that "if Japan can demonstrate
that its proposed alternative measure can achieve an ALOP that is below 1 mSv/year it will have met
its burden under the second element of Article 5.6."46
In order to assess whether Japan's alternative measure would achieve Korea's ALOP, the Panel
explained that it would examine: (i) the identification and characterization of the contaminants at
issue; (ii) the levels of contaminants in Japanese food products; (iii) the extent to which Korean
consumers will be exposed to radionuclides through their diet if Japan's alternative measure is
adopted; and (iv) risk characterization. 47 The Panel stated that, based on this analysis, it would
determine the level of protection achie ved by Japan's alternative measure and whether "Japan has
established that testing for caesium alone at a level of 100 Bq/kg would be sufficient to ensure that
Korean consumers will be exposed to less than 1 mSv/year of radionuclides in food products from all
sources."48
Regarding the relevant contaminants and their adverse effects, the Panel concluded that the
main radionuclides released during the accident were caesium (Cs -134 and Cs -137) and iodine
(I-131), while strontium and plutonium were also released. The Panel noted that Korea's measures at
issue only "definitively regulate" these same four radionuclides. 49 Regarding leaks since the accident
and the potential for future leaks, the Panel addressed the relevance of the amount of radionuclides
released (referred to as the "source term") to the risk of contamination in food products, stating that:
The experts concurred that[,] after the initial release, the source term becomes less
important as you have the ability to produce actual measurements in food. All the experts
agreed that knowing the remaining radionuclides contained in the reactor or the specific

40 Panel Report, para. 7.170 (referring to Dr Skuterud's response to Panel question No. 11 to the experts).
In this regard, the Panel recorded an expert's view that an effective dose of 1 mSv/year is "considered to be a
minor addition to already experienced doses – or at the same level as that existing in the ordinary environment".
(Panel Report, para. 7.170 (quoting Dr Skuterud's response to Panel question No. 11 to the experts))
41 Panel Report, para. 7.171.
42 Panel Report, para. 7.172.
43 Panel Report, para. 7.172.
44 Panel Report, para. 7.172.
45 Panel Report, para. 7.172 (quoting Korea's opening statement at the second Panel meeting, para. 66).
(emphasis added by the Panel)
46 Panel Report, para. 7.173.
47 Panel Report, para. 7.178.
48 Panel Report, para. 7.178.
49 Panel Report, para. 7.183. The Panel described estimates of the radionuclides released after the
accident, and stated that "[c]aesium was the radionuclide released in the greatest absolute numbers as well as in
the largest proportion to other radionuclides." The Panel also recorded various factual details and uncertainty
regarding the release of caesium into the ocean, and noted evidence of the relatively limited release of strontium
and plutonium. (Panel Report, paras. 7.184-7.190 (fn omitted))

amount of leaks was not relevant to assessing the potential for specific products to be
contaminated with radionuclides.50
The Panel noted the development of "dose coefficients" to determine guideline levels for human
consumption, based on the properties of radionuclides and "the rate at which the contamination moves
up the food chain to higher order animals and eventually to humans, the so -called transfer factor".51
The Panel stated that these dose coefficients were developed by the International Commission on
Radiological Protection (ICRP), which "was guided by the principle that human exposure through
ingestion of man-made radionuclides should not add significantly to doses from background exposure
and other sources – such as medical treatments and air travel".52 The Panel also discussed the Codex
Alimentarius Commission (Codex) guideline levels for radionuclides in food and the review conducted
by the Codex Committee on Contaminants in Food following the FDNPP accident.53
With respect to the levels of contaminants in Japanese food products, the Panel examined data
provided by Japan from its food -monitoring programmes and other data sets. The Panel noted "a
consensus among the experts that the various test results produced by Japan provide a statistically
valid support for the conclusion that agricultural and fishery products containing less than 100 Bq/kg
of caesium would contain the additional Codex radi onuclides below or far below their tolerance
levels".54 Accordingly, the Panel concluded based on "the totality of the evidence, including the
knowledge about releases of radionuclides from the FDNPP, as well as the uptake of radionuclides by
the relevant species" that "Japan has established that if a food product contains less than 100 Bq/kg
of caesium (both Cs-134 and Cs-137) it will necessarily contain amounts of strontium, plutonium and
other radionuclides in amounts lower than the Codex guideline levels."55
The Panel then assessed the potential dietary exposure of Korean consumers to radionuclides
in food products and the contribution of Japanese products to Korean consumers' overall exposure on
an annual basis. The Panel reviewed evidence and calculations presented by Japan that contamination
levels would remain below 1 mSv/year in a diet exclusively based on meals typically eaten in
Fukushima or a diet completely consisting of Japanese marine products.56 The Panel found that "the
evidence supports a conclusion that testing for food with less than 100 Bq/kg of caesium would result
in an effective dose below 1 mSv/year, and likely significantly lower, even if 100% of food consumed
was of Japanese origin."57

50 Panel Report, para. 7.192. (fn omitted) The Panel additionally noted the "[r]igorous environmental and
seawater monitoring" in place and the "relatively quick" detection in food products of evidence of a major new
release. (Panel Report, para. 7.193 (fn omitted)) The Panel also addressed other factors that Korea considered to
affect the assessment of the potential contamination of food products with radionuclides, including various
"issues" concerning the ongoing release and contamination from the FDNPP. The Panel stated with respect to the
issues raised by Korea that "the consensus of the experts was that they were not relevant to an analysis of the
potential for contamination in Japanese food products." The Panel also observed that "[t]he experts universally
stated that actual measurements in food were what are required." In response to specific issues raised by Korea,
the experts clarified that many were of little relevance from the perspective of protection against radiation
exposure arising from contaminated food products. (Panel Report, paras. 7.194-7.195)
51 Panel Report, paras. 7.196-7.197.
52 Panel Report, para. 7.197. (fn omitted) The Panel further stated its understanding that "the
development of the dose coefficient takes into account the ALARA principle as well as the LNT [linear-no-
threshold] approach." (Ibid.) The Panel explained elsewhere in its Report that "[t]he linear-no-threshold (LNT)
model currently represents the most widely accepted dose-response model relating exposure to radiation and
increase in cancer incidence" and that "[t]he LNT model assumes that there is no threshold below which adverse
effects can be guaranteed not to occur." (Panel Report, para. 2.17 (fn omitted))
53 Panel Report, para. 7.198. The Panel noted that this review has not resulted in any modifications to the
standards, and that "[t]he experts all agreed that the review of the guideline levels did not impact the sufficiency
of the evidence on overall dose limit, individual dose limits, or how to test for radionuclide contamination in food
products." (Ibid. (fn omitted)) According to the Panel, Codex uses the ALARA principle when adopting its
guidelines for substances in foods, and both Japan and Korea use Codex guideline levels for all radionuclides
except caesium, for which they have adopted a level (100 Bq/kg) that is ten times lower than the Codex
standard. (Ibid.)
54 Panel Report, para. 7.225. (fn omitted) In doing so, the Panel addressed various arguments concerning
the adequacy of the test results and methodologies used to analyse the data.
55 Panel Report, para. 7.226.
56 Panel Report, para. 7.228.
57 Panel Report, para. 7.236. In this connection, recalling that the 1 mSv/year level is based on annual
averages, the Panel noted expert explanations that consumption of one outlier fish (a so-called "Frankenfish")
with high levels of strontium exceeding its caesium levels would not affect the overall conclusion about consumer

Regarding "risk characterization", the Panel turned to assess the link between the onset of
adverse effects (e.g. cancers) and radiation exposure. Noting the difficulty of tracing such effects to
one particular source of radiation, the Panel stated that "[t]he ICRP recommended dose limit is the
basis for fo od safety standards adopted by many national authorities." 58 The Panel stated that "the
upper boundary of Korea's tolerance is 1 mSv/year" and that "Korea seems to adopt as its own the
risk characterization carried out by the ICRP and utilized by the Codex in developing its maximum
guideline levels."59 According to the Panel, "Korea's adoption of the 1 mSv/year dose limit and the
Codex guideline levels for the 20 radionuclides (except caesium) when developing its own limits[]
reflects an understanding that be low these levels food should be considered as safe for human
consumption."60
Finally, the Panel assessed the level of protection achieved by Japan's proposed alternative
measure in comparison to Korea's ALOP. The Panel was unable to conclude that Japan's al ternative
measure would achieve human exposure at 1 mSv/year at the time of adoption of the 2011 additional
testing requirements61 and the product-specific import bans.62 At the same time, the Panel also found
that, at least since 2013, the data were sufficient to confirm that caesium levels were consistently
below 100 Bq/kg and that strontium and plutonium had not been detected in levels even nearing their
respective Codex guidelines.63 Assessing Japan's alternative measure in light of the volumes of initial
releases, their dispersion, and their effect on plants and animals in the food chain, combined with the
expected dietary exposure of Korean consumers to contamination in Japanese products, the Panel
stated that:
[T]he evidence supports a conclusion that ut ilizing Japan's alternative measure would
result in a dose below 1 mSv/year even if 100% of food consumed was of Japanese origin.
Given that Japanese food products represent a small share of the Korean market, their
expected contribution to Korean consumers' dose would be significantly lower.
Therefore, the Panel finds that Japan's alternative measure ensures that the total dose is
below 1 mSv/year and likely significantly lower.64
In comparing this level of protection with Korea's ALOP, the Panel noted that Korea's tolerance
level for caesium is 100 Bq/kg and "not 'trace amounts' or 0.5 Bq/kg".65 Therefore, according to the
Panel, "testing for 100 Bq/kg of caesium is an appropriate measure for ensuring that Korea's tolerance
level for that radionuclide is not exceeded"66, and products from Japan containing less than 100 Bq/kg

exposure. (Ibid.) The Panel further noted the views of the experts that, even if the market share of Japanese
products were to return to pre-accident levels (0.37% of the Korean food market), "the data supports a
conclusion that this would still result in a dietary exposure of less than 1 mSv/year." (Panel Report, para. 7.237
(fn omitted))
58 Panel Report, para. 7.238. The Panel cited explanations by the experts that the model employed by
ICRP to calculate the 1 mSv/year dose limit "assumes that there is no threshold below which adverse effects can
be guaranteed not to occur". (Ibid., para. 7.239)
59 Panel Report, para. 7.240.
61 Panel Report, para. 7.242. Regarding the 2011 additional testing requirements, the Panel referred to its
earlier finding that these requirements "were adopted in a situation where there was insufficient scientific
evidence". (Ibid., para. 7.84) The Panel specifically found for the 2011 additional testing requirements that "the
data were not sufficient to support the conclusion that levels of strontium and plutonium would normally have
been lower than levels of caesium in products and that testing for 100 Bq/kg of caesium would have ensured that
the levels of the other radionuclides were below their Codex guideline levels." (Ibid., para. 7.242)
62 Panel Report, para. 7.242. Regarding the product-specific import bans, the Panel recalled that Japan
itself had "conducted its own risk assessment and determined that the products were not safe for distribution",
and concluded for this reason that "the evidence does not support a conclusion that Japan's alternative measure
would achieve 1 mSv/year in 2012 for Alaska pollock and Pacific cod from the five relevant prefectures." (Ibid.)
63 Panel Report, para. 7.243. The Panel "recognize[d] that testing for 100 Bq/kg of caesium should be
sufficient to identify and prevent the entry onto market of any goods that exceed the maximum levels
established". (Ibid.)
64 Panel Report, paras. 7.244-7.245. (fn omitted) In this regard, the Panel noted that "Japan presents a
'worst case scenario' where the maximum level of exposure that could be reached using its alternative measure
would be 0.94 mSv/year." (Panel Report, fn 897 to para. 7.244)
65 Panel Report, para. 7.249.
66 Panel Report, para. 7.249.

of caesium "would also contain less than Korea's specific maximum levels for strontium, plutonium,
and the other Codex radionuclides".67
The Panel thus found that Japan failed to establish that its proposed alternative measure would
have achieved Korea's ALOP at the time the 2011 additional testing requirements 68 and the product-
specific import bans were adopted. 69 The Panel, however, found that Japan's alternative measure
would achieve Korea's ALOP with regard to the adoption of the 2013 additional testing requirements
and blanket import ban70, and that Japan had established that its alternative measure would achieve
Korea's ALOP with respect to the maintenance of all the challenged measures.71
The Panel therefore found that the 2011 additional testing requirements and product -specific
import bans were not more trade -restrictive than required when adopted, but were maintained
inconsistently with Article 5.6 because they were more trade -restrictive than required at the time of
the establishment of the Panel.72 The Panel further found that the 2013 additional testing requirements
and the blanket import ban 73 were adopted and maintained inconsistently with Article 5.6 because
they were more trade-restrictive than required.74
5.1.3 Whether the Panel erred under Article 5.6 of the SPS Agreement in finding that the
alternative measure proposed by Japan would achieve Korea's appropriate level of
protection
Korea claims that the Panel committed legal error under A rticle 5.6 because it "effectively
substituted" an incorrect quantitative standard as Korea's ALOP75 and thus compared Japan's proposed
alternative against an incorrect ALOP. 76 In particular, Korea contends that, after initially accepting
Korea's ALOP, the P anel then proceeded to apply a quantitative standard of 1 mSv/year as Korea's
ALOP and that the Panel disregarded Korea's actual ALOP by relying on this standard. 77 Korea
emphasizes that its ALOP consists of "several elements", including maintenance of levels of radioactive
contamination in food as low as reasonably achievable (ALARA), below the 1 mSv/year radiation dose
limit, at a level that exists in the ordinary environment. 78 Korea argues that the Panel's analysis and
conclusions focus solely on a quantitative threshold, ignoring the ALARA element, and the maintenance
of radioactivity levels at levels that exist in the ordinary environment, both of which are part of
Korea's ALOP.79 In this regard, Korea submits that the 1 mSv/year dose limit is an "upper bound" of
tolerable risk80, and that a measure meeting this threshold would not necessarily meet an ALOP of
radiation exposure as low as reasonably achievable below 1 mSv/year at a level that exists in the
ordinary environment, as these are two different standards.81
Japan submits that the Panel correctly determined and applied Korea's ALOP as part of its
finding that Japan's proposed alternative measure would meet Korea's ALOP. Japan notes that the
Panel accepted Korea's own formulation of its ALOP as comprising three elements: (i) the levels that
exist in the ordinary environment; (ii) ALARA; and (iii) the quantitative dose exposure threshold of

67 Panel Report, para. 7.249.
68 Panel Report, para. 7.250. The Panel recalled in this connection that it had found that "there is
insufficient data to demonstrate that testing for caesium alone would have been sufficient to achieve a dose
below 1 mSv/year in 2011 when the first additional testing requirements were adopted." (Ibid.)
69 Panel Report, para. 7.250. The Panel recalled that it had found that "the evidence also did not support a
conclusion as regards the adoption of the 2012 product-specific import bans that testing only for caesium would
achieve a 1 mSv/year level of protection with respect to Alaska pollock and Pacific cod from the five relevant
prefectures." (Ibid.)
70 Panel Report, para. 7.251. The Panel noted the "exception" of Pacific cod from Fukushima and Ibaraki
for which Japan maintained distribution restrictions throughout 2013 because Japan considered it to be unsafe
for distribution. (Ibid.)
71 Panel Report, para. 7.252. The Panel also cited the "even smaller concentration levels measured in all
Japanese food products in 2015" in support of this conclusion. (Ibid.)
72 Panel Report, para. 7.254.
73 With the exception of the adoption of the import ban on Pacific cod from Fukushima and Ibaraki.
74 Panel Report, paras. 7.255-7.256.
75 Korea's appellant's submission, para. 184.
76 Korea's appellant's submission, para. 196.
77 Korea's appellant's submission, para. 188.
78 Korea's appellant's submission, para. 187.
79 Korea's appellant's submission, para. 191.
80 Korea's appellant's submission, para. 194.
81 Korea's appellant's submission, para. 192.

1 mSv/year.82 Japan asserts that one aspect of the Panel's task in this dispute was to clarify t he
relationship between the three elements of Korea's ALOP.83 According to Japan, the Panel found that
the role of the first two elements ( ordinary environment and ALARA) was to inform Korea's
determination of the third element (dose exposure limit of 1 mSv/year).84 Japan argues that the
ALARA element was not apt to serve as an ALOP because it did not constitute or define a particular
"level of protection".85 Japan further submits that the Panel properly assessed the ALOP actually being
applied in Korea's SPS regime based on the quantitative limit used by Korea for contaminants in food.86
Article 5.6 of the SPS Agreement provides that:
Without prejudice to paragraph 2 of Article 3, when establishing or maintaining sanitary
or phytosanitary measures to achieve th e appropriate level of sanitary or phytosanitary
protection, Members shall ensure that such measures are not more trade-restrictive than
required to achieve their appropriate level of sanitary or phytosanitary protection, taking
into account technical and economic feasibility.[*]
[*fn original] 3 For purposes of paragraph 6 of Article 5, a measure is not more trade -restrictive
than required unless there is another measure, reasonably available taking into account technical
and economic feasibility, that achieves the appropriate level of sanitary or phytosanitary protection
and is significantly less restrictive to trade.
We recall that, under Article 5.6, a complainant must establish that an alternative measure:
(i) is reasonably available taking into account technical and economic feasibility; (ii) achieves the
Member's ALOP; and (iii) is significantly less restrictive to trade than the contested SPS measure. 87
These cumulative elements entail an assessment of a proposed alternative measure that serves as a
conceptual tool to be used for the analysis under Article 5.6.88
This appeal concerns the requirement that an alternative measure achieve a Member's ALOP.
Annex A(5) to the SPS Agreement defines the "appropriate level of sanitary or phytosanitary
protection" as "[t]he level of protection deemed appropriate by the Member establishing a sanitary or
phytosanitary measure to protect human, animal or plant life or h ealth within its territory". The note
to Annex A(5) explains that the concept of the appropriate level of protection is also referred to as the
"acceptable level of risk".
The Appellate Body has said that a Member's ALOP is an "objective" and that an SPS measure
is the instrument chosen to attain or implement that objective. 89 It is the "prerogative" of a Member
to set the level of protection that it deems appropriate. 90 At the same time, Members adopting
SPS measures must determine their appropriate level of protection with sufficient precision to enable
the application of the relevant provisions of the SPS Agreement.91 While a Member is not required to
set the appropriate level of protection in quantitative terms, a Member may not establish its level of
protection with such vagueness or equivocation as to render impossible the application of the relevant
disciplines of the SPS Agreement, including the obligation set out in Article 5.6.92
In examining a claim under Article 5.6 of the SPS Agreement, a panel is charged with, inter alia,
identifying the level of protection of the Member whose SPS measure is challenged and the level of

82 Japan's appellee's submission, para. 126.
83 Japan's appellee's submission, para. 128.
84 Japan's appellee's submission, para. 129.
85 Japan's appellee's submission, paras. 131-132. (emphasis original)
86 Japan's appellee's submission, para. 134.
88 Appellate Body Report, Australia – Apples, para. 363. Consequently, a demonstration that an
alternative measure meets the relevant Member's ALOP does not imply that the Member whose SPS measure is
found to be inconsistent with Article 5.6 of the SPS Agreement must adopt that alternative measure or that the
alternative measure is the only option that would achieve the desired level of protection. (Ibid.)
91 Appellate Body Report, India – Agricultural Products, para. 5.205 (referring to Appellate Body Reports,
Australia – Apples, para. 343; Australia – Salmon, paras. 205-206).
92 Appellate Body Report, Australia – Apples, para. 343 (referring to Appellate Body Report, Australia –
Salmon, para. 206).

protection of the proposed alternative measure.93 A panel would typically be expected to accord weight
to the respondent's articulation of its ALOP, particularly where that appropriate level of protection was
specified in advance of the adoption of the SPS measure, where the ALOP is specified with sufficient
precision, and where it has been consistently expressed by the responding Memb er.94 A panel,
however, is not required to defer completely to a respondent's characterization of its own ALOP,
particularly where the respondent has not expressed its ALOP with sufficient precision. Rather, a panel
must ascertain the respondent's ALOP on t he basis of the totality of the arguments and evidence on
the record, which may include the level of protection reflected in the SPS measure actually applied.95
The main issue raised by Korea in its appeal is whether the Panel "effectively substituted" 96 a
quantitative standard of 1 mSv/year as Korea's ALOP and thus applied an incorrect ALOP 97 in its
assessment of the alternative measure proposed by Japan. In setting out the relevant ALOP for its
analysis under Article 5.6 of the SPS Agreement, the Panel stat ed that it must determine whether
Japan's alternative measure achieves the following level of protection:
[T]o maintain radioactivity levels in food consumed by Korean consumers at levels that
exist in the ordinary environment – in the absence of radiation from a major nuclear
accident – and thus maintain levels of radioactive contamination in food that are "as low
as reasonably achievable" (ALARA), below the 1 mSv/year radiation dose limit.98
We note that this formulation of the relevant ALOP, as articulated by Korea and accepted by
the Panel99, consists of both qualitative and quantitative aspects concerning radioactivity levels in food
consumed by Korean consumers, namely: (i) the levels that exist in the ordinary environment;
(ii) ALARA; and (iii) the quantitative dose exposure of 1 mSv/year.
The Panel acknowledged the multi -faceted character of Korea's formu lation of its ALOP, and
accordingly "concluded that Korea's ALOP is not quantified at 1 mSv per year, but is rather a qualitative
ALOP that reflects Korea's adherence to the ALARA principle and its desire not to increase radiation
exposure beyond what is i n the ordinary environment". 100 The Panel made several observations
concerning the various elements of this ALOP before ultimately accepting the formulation advanced
by Korea.101
We observe, however, that, despite recognizing that Korea's ALOP comprises several elements,
various statements throughout the Panel's analysis reflect a predominant focus on exposure below
1 mSv/year as a decisive indicator of whether Japan's proposed alternative measure would meet
Korea's ALOP. Notably, having accepted the relevant ALOP as formulated by Korea, the Panel
immediately stated in light of that formulation that, "if Japan can demonstrate that its proposed
alternative measure can achieve an ALOP that is below 1 mSv/year[,] it will have met its burden under
the second element of Article 5.6."102 The Panel reiterated this emphasis on the quantitative threshold

94 Appellate Body Report, India – Agricultural Products, para. 5.221.
96 Korea's appellant's submission, para. 184.
97 Korea's appellant's submission, para. 170.
98 Panel Report, para. 7.172 (referring to Korea's opening statement at the second Panel meeting,
para. 66). (emphasis added by the Panel)
99 We note that Korea submits that its ALOP was correctly defined by the Panel at the outset of its
analysis. (Korea's appellant's submission, para. 185) Japan observes on appeal that the Panel accepted Korea's
own formulation of its ALOP. (Japan's appellee's submission, para. 126)
100 Panel Report, para. 7.247.
101 The Panel noted that "the overall limit for all radionuclides set by CODEX STAN 193-1995 is
1 mSv/year." (Panel Report, para. 7.165) With respect to ALARA, the Panel took note of evidence cited by Korea
that "ALARA is an obligation of means, and not an obligations of results", and further noted an expert's view that
"ALARA is a process with no easily discernible end point and … it cannot itself be used as an international
standard for food acceptance." (Panel Report, paras. 7.166 (referring to Korea's response to Panel question
No. 57(b), in turn referring to European ALARA Network, Newsletter 31: "Development and dissemination of
ALARA culture" (11 July 2016) (Panel Exhibit KOR-140)) and 7.167 (referring to Expert Meeting Transcript,
para. 1.7)) With respect to radiation levels that exist in the ordinary environment, the Panel noted the experts'
recognition that "radiological protection in food is based on the principle that the additional dose from
contaminating radionuclides in foods should not add significantly to the dose already received in the ordinary
environment or as they referred to it the 'background dose'." (Panel Report, para. 7.170 (quoting Dr Skuterud's
response to Panel question No. 11 to the experts))
102 Panel Report, para. 7.173.

at the outset of its assessment of whether Japan's proposed alternative measure would achieve Korea's
ALOP, stating that it would determine whether Japan has established t hat "testing for caesium alone
at a level of 100 Bq/kg would be sufficient to ensure that Korean consumers will be exposed to less
than 1 mSv/year of radionuclides in food products from all sources." 103 With respect to the level of
protection achieved by Jap an's proposed alternative measure, the Panel then found that "Japan's
alternative measure ensures that the total dose is below 1 mSv/year and likely significantly lower."104
The Panel emphasized the same view when comparing this level of protection to Korea' s ALOP.
Specifically, the Panel found that "the evidence supports a conclusion that since 2013 Japan's
alternative measure would achieve a maximum level of exposure below 1 mSv/year and likely
significantly lower"105 for all but one of the products subject t o the challenged measures. The Panel
thus found that Japan had established that its suggested alternative measure would achieve Korea's
ALOP.106
While neither Article 5.6 nor Annex A(5) to the SPS Agreement precludes a Member's ALOP
from containing multiple elements, Korea's appeal regarding the Panel's emphasis on one element of
the ALOP as accepted by the Panel in this dispute raises the question of the precise relationship that
exists between the various elements, both quantitative and qualitative, of that ALOP.107 We note that
the Panel did not clearly resolve whether each of these elements represented a distinct component of
Korea's ALOP, and how they interact as parts of Korea's overall ALOP. In this respect, the Panel
examined the development of the 1 mSv/year limit used by Codex in its guideline levels for
radionuclides.108 The Panel stated that both the ICRP and Codex applied the ALARA principle when
arriving at the dose limit for all radionuclides (1 mSv/year) and the guideline levels for the individual
radionuclides.109 The Panel understood that the development of the dose coefficient by the ICRP and
Codex takes into account the ALARA principle110, and noted that the ICRP was guided by the principle
that human exposure through ingestion of man -made radionuclides should not add significantly to
doses from background exposure and other sources – such as medical treatments and air travel. 111
Despite these explanations, the Panel did not address whether the ALARA principle or background
exposure, as considered by th e ICRP and Codex to develop the 1 mSv/year limit, differs in any way
from the elements of ALARA or radiation levels in the "ordinary environment" that form part of Korea's
ALOP.
Further, the Panel did not resolve whether the qualitative aspects of Korea's ALOP were fully
comprised by the 1 mSv/year dose limit, such that an alternative measure achieving exposure below
that quantitative threshold would necessarily achieve the qualitative level of protection represented
by the ALARA element and mainten ance of radioactivity levels in food at levels that exist "in the
ordinary environment". The Panel appeared to suggest that this is the case in referring to measures
applied by Korea to food in general, stating that "the qualitative ALOP [i.e. the ALARA el ement and
radioactivity levels in the ordinary environment] is reflected and inherent in the measures Korea
applies to food products – which seek to limit overall consumption to below 1 mSv/year."112 In
characterizing the relevant risk, the Panel referred to the 1 mSv/year dose limit as the "upper
boundary of Korea's tolerance" before concluding that "Korea's adoption of the 1 mSv/year dose limit
and the Codex guideline levels for the 20 radionuclides (except caesium) when developing its own

103 Panel Report, para. 7.178.
104 Panel Report, para. 7.245. The Panel similarly stated that Japan's alternative measure "would achieve
an exposure dose for Korean consumers below 1 mSv/year and likely significantly lower". (Ibid., para. 7.246)
105 Panel Report, para. 7.251.
106 Panel Report, para. 7.251. Similarly, the Panel found that "Japan has also established that its
alternative measure would result in an exposure level below 1 mSv/year or significantly lower and achieve
Korea's ALOP with regard to the maintenance of all the measures." (Panel Report, para. 7.252)
107 This is particularly so given Japan's argument before the Panel that Korea's ALOP is in fact an exposure
level of 1 mSv/year, and the nature of Japan's proposed alternative measure to verify that the caesium content
of products does not exceed a specified quantitative level. (Panel Report, paras. 7.120 and 7.161; Japan's
second written submission to the Panel, paras. 220-234) We also note, in this regard, the European Union's view
that "the key issue … is the relationship between Korea's 1 mSv/year benchmark and the qualitative elements".
(European Union's third participant's submission, para. 67)
108 Panel Report, paras. 2.35-2.36.
109 Panel Report, para. 7.171.
110 Panel Report, para. 7.197. The Panel also understood that "the development of the dose coefficient
takes into account … the LNT approach", which the Panel explained refers to the use of a "linear no threshold"
model that "assumes that there is no threshold below which adverse effects can be guaranteed not to occur".
(Ibid., paras. 7.197 and 7.239)
112 Panel Report, para. 7.247.

limits[] reflects an understanding that below these levels food should be considered as safe for human
consumption."113 The Panel further considered that, "if a Member is applying a particular measure with
an express quantitative limit for contaminants, that is an indicator that products containing levels of
contaminants below that limit will satisfy its ALOP."114 Although these statements would suggest that
the Panel considered the quantitative threshold to be an expression of Korea's ALOP, they stand in
tension with the Panel 's stated appreciation of "Korea's adherence to the ALARA principle" 115, its
recognition that Korea "maintains that its ALOP is not a fixed quantitative threshold" 116, and its
ultimate acceptance of the ALOP expressed by Korea for purposes of Article 5.6.
The Panel's findings of an exposure limit that is "significantly lower" 117 than the purely
quantitative standard of 1 mSv/year arguably reflect a qualitative dimension of reduction below that
numeric exposure limit that, like the elements of ALARA and "levels t hat exist in the ordinary
environment", forms part of Korea's ALOP. At the same time, we recall that the identification of a
Member's ALOP is a critical element of the analysis under Article 5.6. This is because, pursuant to
footnote 3 to Article 5.6, a me asure cannot be considered "more trade -restrictive than required"
unless, inter alia, there is "another measure" that is shown to achieve that ALOP. In this dispute, the
Panel identified the relevant ALOP as maintaining radioactivity levels in food "at levels that exist in the
ordinary environment" and thus maintaining those levels as low as reasonably achievable, below the
1 mSv/year radiation dose limit. 118 In identifying the ALOP in these terms, the Panel did not
subordinate any of the various aspects of t his ALOP or clearly find that certain aspects (namely, the
elements of ALARA and "levels that exist in the ordinary environment") were necessarily comprised
by the quantitative exposure limit of 1 mSv/year. Rather, the formulation advanced by Korea and
accepted by the Panel reflected a multi -faceted level of protection that would need to be satisfied in
its entirety in accordance with the requirements of Article 5.6 of the SPS Agreement. In our view, the
Panel's findings as to achievement of exposure "below " or "significantly lower" than that upper
boundary do not clearly correspond to the other integral elements of the ALOP that the Panel identified
as being the basis for its analysis under Article 5.6.
Moreover, we do not consider achievement of the multi-faceted ALOP accepted by the Panel to
follow automatically from the Panel's observations as to the "conservative" nature of the proposed
alternative measure and Japan's supporting argumentation concerning, for example, the relationship
between the 100 Bq/kg contamination level and Codex standards 119 or the overestimation of Korean
dietary exposure to Japanese products. 120 While such considerations may have been potentially
relevant to the Panel's application of Article 5.6, the Panel did not explicitly draw on these
considerations in carrying out the required comparison under Article 5.6 between the level of
protection achieved by the alternative measure proposed by Japan and Korea's ALOP as identified by
the Panel.121
Having accepted Korea's formulation of its AL OP, it was incumbent on the Panel to assess
whether the alternative measure proposed by Japan, namely, testing whether the caesium content of
food products exceeds 100 Bq/kg, would achieve Korea's ALOP by maintaining levels of radioactivity
that exist in t he ordinary environment, and as low as reasonably achievable, below the 1 mSv/year
radiation dose limit. The Panel, however, did not explicitly integrate the various elements of Korea's
ALOP to account for all of these elements in assessing the level of pr otection that would be achieved
by Japan's alternative measure. Rather, the Panel found that Japan's alternative measure would

113 Panel Report, para. 7.240. The Panel distinguished caesium among the radionuclides regulated by
Korea given that Korea applied lower limits than those provided for in the Codex guideline levels. (Ibid.,
para. 2.109 and Tables 2 and 5)
114 Panel Report, para. 7.172.
115 Panel Report, para. 7.171.
116 Panel Report, para. 7.171.
117 Before the Panel, Japan had "calculated that applying this limit [of 100 Bq/kg] to imports would result
in an estimated maximum exposure dose of 0.8 mSv/year (0.94 mSv/year in the worst-case scenario)". (Panel
118 We note that Korea acknowledged before the Panel that "it has adopted the Codex benchmark of
1 mSv/year radiation exposure limit, in order to quantify the highest radiation exposure it is willing to accept,
keeping in mind the two objectives of not exceeding the levels in the ordinary environment and abiding by the
ALARA principle." (Panel Report, para. 7.165 (emphasis added; fn omitted))
119 Panel Report, para. 7.168.
120 Panel Report, paras. 7.233-7.234 and 7.236.

achieve exposure "below 1 mSv/year" or "significantly lower" 122 than 1 mSv/year, which the Panel
recognized as "the upper boundary of Korea's tolerance".123
The specification of an ALOP is both a prerogative and an obligation of the responding Member
under Article 5.6.124 Members adopting SPS measures must determine their appropriate level of
protection with sufficient precision as to en able the application of the relevant provisions of the
SPS Agreement.125 A panel must ascertain the respondent's ALOP on the basis of the totality of the
arguments and evidence on the record 126, which may include evidence of the level of protection
reflected in the SPS measure actually applied. 127 Where a panel considers that a respondent's ALOP
differs from that articulated by the respondent, the panel must clearly explain what it has determined
the respondent's ALOP to be, along with the reasons and evidentiary basis for the panel's
determination. Reasons for such a determination may include whether the respondent has expressed
its ALOP in a manner that it is insufficiently precise or that would otherwise render impossible the
application of the disciplines of Article 5.6.128
In this dispute, the Panel made certain statements concerning the qualitative aspects of Korea's
ALOP that may have been relevant to their significance under Article 5.6.129 In particular, the Panel
cited evidence concerning the objective of im plementing ALARA, which stated that "ALARA is an
obligation of means, and not an obligation of results, in the sense that the result of ALARA depends
on processes, procedures, and judgments and is not a given value of exposure." 130 While such
statements could have called into question whether the ALARA principle or radioactivity levels that
exist in the ordinary environment can serve as a meaningful ALOP, or as parts thereof, the Panel did
not resolve the issue and did not make any finding to this effect. The Panel also did not determine
that the ALARA principle, as applied by the ICRP and Codex 131 , and the principle that food
contamination should not add significantly to the doses received in the ordinary environment 132 are
equivalent to the qualitative elements of the ALOP as expressed by Korea. Ultimately, the Panel
accepted Korea's own formulation of the relevant ALOP as the level of protection that would need to
be achieved by Japan's alternative measure.133 Thus, the Panel did not explicitly examine whether the
ALARA element and the maintenance of radioactivity levels in food "at levels that exist in the ordinary
environment" were insufficiently precise or otherwise incapable of serving as elements of Korea's ALOP
for the purposes of assessing alternative measures under Article 5.6.

122 Panel Report, paras. 7.245-7.246 and 7.251-7-252.
124 Appellate Body Reports, India – Agricultural Products, para. 5.221; Australia – Salmon, paras. 199 and
205-206.
125 Appellate Body Report, India – Agricultural Products, para. 5.205 (referring to Appellate Body Reports,
Australia – Salmon, paras. 205-206; Australia – Apples, para. 343).
126 The Appellate Body has said that "[t]his duty applies equally when a claimant further contends that the
appropriate level of protection expressed or identified by the respondent for purposes of WTO dispute settlement
proceedings does not genuinely reflect that Member's appropriate level of protection." (Appellate Body Report,
India – Agricultural Products, para. 5.221)
127 Appellate Body Reports, India – Agricultural Products, paras. 5.221-5.222; Australia – Salmon,
para. 207.
Australia – Salmon, paras. 206-207.
129 For example, regarding the ALARA element of Korea's ALOP, the Panel noted the absence of evidence
on how adherence to this element "pre-existed the onset of this proceeding" or "how Korea developed its ALOP
[including the ALARA element] or where this ALOP is set forth in its internal legislation or regulations". (Panel
Report, fn 716 to para. 7.171) Regarding radiation levels in the ordinary environment, the Panel noted that
"[t]he experts [appointed by the Panel] were not familiar with Korea's definition of the 'ordinary environment'
being the levels of radiation absent a major nuclear accident." (Panel Report, para. 7.170) The Panel further
observed that Korea's tolerance level for caesium is 100 Bq/kg and that the measures Korea applies to food
products seek to limit overall consumption to below 1 mSv/year. (Panel Report, paras. 7.172, 7.247, and 7.249)
130 Panel Report, para. 7.166 (referring to Korea's response to Panel question No. 57(b), in turn quoting
European ALARA Network, Newsletter 31: "Development and dissemination of ALARA culture" (11 July 2016)
(Panel Exhibit KOR-140)). Relatedly, the Panel noted a clarification from the ICRP that "the optimisation principle
(of which ALARA is a part) applies in all circumstances and that it is a process rather than an endpoint." (Panel
Report, para. 6.35 (referring to ICRP's response to Panel question No. 1))
131 Panel Report, paras. 7.166-7.168.
132 Panel Report, paras. 7.170 and 7.197.
133 Panel Report, para. 7.172 (referring to Korea's opening statement at the second Panel meeting,
para. 66).

Overall, the Panel framed its analysis under Article 5.6 of the SPS Agreement according to an
ALOP containing multiple elements, while reaching conclusions with respect to Japan's alternative
measure, that leave unclear whether it co nsidered the alternative measure to satisfy all of the
elements of the ALOP it had identified. The Panel's ultimate findings reflect an effective subordination
of the elements of ALARA and radioactivity levels "in the ordinary environment" to the quantitat ive
element of Korea's ALOP, in a manner that is at odds with the formulation of the ALOP explicitly
accepted by the Panel at the outset of its analysis. Based on the requirements of Article 5.6, the Panel
was required to have either clearly accounted for all elements of Korea's ALOP in comparing the level
of protection that would be achieved by Japan's proposed alternative measure, or to have explicitly
determined, based on the totality of the evidence, that certain elements were not part of the relevant
ALOP under Article 5.6. We consider that the Panel, having ultimately failed to account clearly for all
elements of the ALOP attributed to Korea in relation to the level of protection achieved by Japan's
proposed alternative measure, erred in its application of Article 5.6 and assessment of whether Korea's
measures are more trade-restrictive than required.
Our finding of error concerns the Panel's acceptance of an ALOP consisting of quantitative and
qualitative aspects, and its comparison to an alternative measure in a manner that effectively focuses
on achievement of protection to some degree "below" the quantitative threshold that forms only
one part of that ALOP. We are not called upon to consider whether Korea's ALOP could be equated or
reduced to exposure "below" or even "significantly lower" than 1 mSv/year. We do not express a view
on the Panel's assessment of factual matters that are not challenged on appeal, including the levels
of contaminants in Japanese food products, the relationship and ratios of different radionuclides based
on releases from the FDNPP, and the potential dietary exposure of Korean consumers to radionuclides
in food products.
5.1.4 Conclusion
A panel examining a claim under Article 5.6 of the SPS Agreement is charged with, inter alia,
ascertaining the respondent's ALOP on the basis of the totality of the arguments and evidence on the
Panel record. A panel is also required to identify the level of protection that would be achieved by the
alternative measure proposed by the complainant. The Panel in this dispute accepted Korea's own
articulation of the relevant ALOP as one containing the following elements concerning radioactivity
levels in food consumed by Korean consumers: (i) the levels that exist in the ordinary environment;
(ii) exposure "as low as reasonably achievable"; and (ii i) the quantitative dose exposure of
1 mSv/year. While the Panel accepted Korea's articulation of this multi -faceted ALOP, its analysis
focuses on the quantitative element of 1 mSv/year. The Panel reached conclusions with respect to
Japan's alternative measure that leave unclear whether it considered the alternative measure to satisfy
all of the elements of Korea's ALOP it had identified. The Panel's findings effectively subordinated the
elements of ALARA and radioactivity levels "in the ordinary environment" to the quantitative element
of exposure below 1 mSv/year. This is at odds with the articulation of the ALOP explicitly accepted by
the Panel at the outset of its analysis.
We therefore find that the Panel erred in its application of Article 5.6 of the SPS Agreement in
finding that Japan's proposed alternative measure achieves Korea's ALOP. Consequently, we reverse
the Panel's findings of inconsistency with Article 5.6 with respect to: (i) the adoption of the blanket
import ban (except for the ban on Pac ific cod from Fukushima and Ibaraki) and the 2013 additional
testing requirements; and (ii) the maintenance of all of Korea's measures.
5.2 Article 2.3 of the SPS Agreement
5.2.1 Introduction
Korea appeals the Panel's findings that Korea acted inconsistently with Ar ticle 2.3 of the
SPS Agreement with respect to: (i) the adoption of the blanket import ban (except for the ban on
Pacific cod from Fukushima and Ibaraki) and the 2013 additional testing requirements; and (ii) the
maintenance of all of Korea's measures. In particular, Korea challenges the Panel's interpretation and
application of Article 2.3, first sentence, concerning whether "similar conditions prevail" between the
territories of Japan and other Members, and whether Korea's measures result in arbitrary or
unjustifiable discrimination. Korea further challenges the Panel's finding that its measures constitute
disguised restrictions on international trade in violation of Article 2.3, second sentence. Korea requests

us to reverse the Panel's findings that Korea acted inconsistently with Article 2.3.134 Japan contends
that the Panel correctly found that similar conditions prevail between Japanese food products and
products from other sources, and that Korea has not established any legal error with respect to the
Panel's findings on arbitrary or unjustifiable discrimination or disguised restrictions on international
trade.135 We begin by summarizing the Panel's findings under Article 2.3 before addressing Korea's
claims on appeal.
5.2.2 The Panel's findings
Before the Panel, Japan claimed that Korea's measures are inconsistent with the first sentence
of Article 2.3 of the SPS Agreement because they arbitrarily or unjustifiably discriminate against
Japanese products. In this connection, Japan claimed that the conditions of food products from Japan
and from other origins are similar because they pose similar SPS risks regulated by Korea's measures.
Japan additionally claimed that Korea's measures constitute a disguised restriction on international
trade within the meaning of the second sentence of Article 2.3. Korea contended before the Panel that
the relevant conditions are not similar between Japan and other Members, and that any distinction
drawn by the challenged measures is rationally connected to the differences in the cond itions
prevailing in the territories of the Members concerned.136
Under the first sentence of Article 2.3, the Panel assessed whether identical or similar conditions
prevail between Japan and other Members, and then examined whether Korea's measures arbitrarily
or unjustifiably discriminate between Japanese products and those of other Members.137
Regarding "the type of conditions that can be [the] subject of a comparison under
Article 2.3"138, the Panel considered that "the regulatory objective of a measure shou ld inform the
Panel's determination of the relevant conditions" to be compared under Article 2.3.139 The Panel
further considered that the phrase "including between their own territory and that of other Members",
which appears at the end of the first sentenc e of Article 2.3, "identifies 'territory' as an example of
conditions that could be compared, but it does not preclude that other conditions could be compared
as well".140 Based on these considerations, the Panel declined to limit the conditions to be compar ed
under Article 2.3 only to territorial conditions in different Members, and thus exclude the conditions of
products.141
In this connection, the Panel set out its views on the relationship between Article 2.3 and other
provisions of the SPS Agreement and the General Agreement on Tariffs and Trade 1994 (GATT 1994),
including Articles 5.2 and 5.5 of the SPS Agreement and Articles I:1, III:4, and X:1 of the
GATT 1994.142 The Panel further reasoned that "SPS measures regulate products and the risks that
they can transfer from one territory to another." 143 The Panel contrasted cases involving "measures
adopted to prevent the spread of pests or diseases" in which "territorial aspects are likely to be more
prominent compared to disputes over measures targeting 'risks arising from additives, contaminants,
toxins or disease-causing organisms in foods, beverages or feedstuffs', covered by Annex A(1)(b)."144
The Panel considered that, "even when examining territorial conditions – such as the presence of pests
or environmental contamination – it is done in light of the ultimate purpose of addressing risks of
products in international trade." 145 The Panel concluded that its determination of the relevant
"conditions" under Article 2.3 "should be informed by the regulatory objective of the challenged
measures and the justification relied upon by the Member in light of the character of the measures

134 Korea's appellant's submission, paras. 291, 322, and 333 (referring to Panel Report, paras. 7.276,
7.283, 7.321-7.322, 7.349-7.350, 7.355, 7.359-7.360, and 8.3.a-b).
135 Japan's appellee's submission, paras. 145, 349, and 372.
136 Panel Report, paras. 7.258 and 7.357-7.358.
137 Panel Report, para. 7.259.
138 Panel Report, para. 7.261.
139 Panel Report, para. 7.266.
141 Panel Report, paras. 7.268-7.275.
142 Panel Report, paras. 7.268-7.269 and 7.272-7.275.
143 Panel Report, para. 7.270.
144 Panel Report, para. 7.270.

and specific circumstances of the case". 146 In this regard, the Panel found that it was not precluded
"from considering the risk present in products in international trade as the relevant condition".147
Turning to the relevant "conditions" in this dispute, the Panel reviewed evidence concerning
Korea's regulatory objective and the risks being addressed by its measures. 148 The Panel noted "the
close link between Korea's measures, their complementarity and their single regulatory objective",
and, based on these factors, it "view[ed] Korea's import bans and the additional testing requirements
as part of an overall regime pursuing a single objective of protecting Korea's population from potential
adverse effects from consumption of food contaminated with radionuclides". 149 The Panel therefore
considered the relevant conditions to be compared under Article 2.3 to be "whether produ cts from
Japan and the rest of the world have a similar potential to be contaminated … and whether the levels
of contamination would be below Korea's tolerance levels".150
In assessing the potential for contamination with caesium and the additional radionucl ides in
food products from Japan and other origins, the Panel first addressed the source of radioactive
contamination and, in light of the nature and volumes of the radionuclides released from the FDNPP,
focused on the potential contamination by caesium, s trontium, and plutonium isotopes. 151 While
recognizing the "unprecedented nature" of the FDNPP accident as "the largest release of radionuclides
from a nuclear accident into the marine environment", the Panel also noted major releases of
radionuclides and co ntamination of the marine environment prior to that accident. 152 The Panel
reviewed evidence concerning the release of radionuclides in general and the process of contamination
of plants, animals, and fungi ("radionuclide uptake")153 to conclude that "past releases of radionuclides
to the environment continue to affect food products and mean that food from anywhere in the world
has the potential to be contaminated with radionuclides."154
The Panel next turned to the levels of radionuclides in food based on data p rovided by Japan.
Recalling the progressive imposition of the measures over time, their different product coverage, and
Japan's challenge against the adoption and maintenance of the measures, the Panel stated that it
would first determine "whether the cond itions were similar in 2011, 2012, and 2013 with respect to
the groups of products covered by each measure", and then determine "whether the conditions were
similar when the Panel was established on 28 September 2015 and whether they continued to be
so".155
The Panel found that Japan did not establish the existence of similar conditions in Japanese and
non-Japanese products at the time of adoption of the 2011 additional testing requirements156 and the
product-specific bans.157 Regarding the adoption of the blanket import ban, the Panel found the data
to "support[] a conclusion that the potential caesium contamination in these products was below the
100 Bq/kg tolerance level" for all but one of the products covered by Japan's challenge.158 The Panel

146 Panel Report, para. 7.276.
147 Panel Report, para. 7.276.
148 Panel Report, paras. 7.280-7.282. In addition to Korea's additional testing requirements and import
bans, the Panel also examined measures that were not challenged by Japan, including the testing of randomly
selected samples from every consignment for caesium and iodine, the requirement of origin certificates and
pre-export caesium and iodine testing certificates, as well as internal measures for additional testing. (Ibid.,
para. 7.282)
149 Panel Report, para. 7.283.
150 Panel Report, para. 7.283. The Panel specifically referred to the potential to be contaminated with "the
20 Codex radionuclides, in particular with caesium, iodine, strontium and plutonium". (Ibid.)
151 Panel Report, para. 7.290.
153 Panel Report, paras. 7.293-7.297.
154 Panel Report, para. 7.298.
155 Panel Report, para. 7.300.
156 Panel Report, para. 7.301. This was due to "the absence of sufficient data directly addressing the
conditions of the Japanese products subject to the challenged measure". (Ibid.)
157 Panel Report, para. 7.302. Specifically, the Panel found that Japan did not "establish its factual
assertion that the potential for radionuclide contamination in Pacific cod and Alaska pollock from the relevant
prefectures in 2012 [was] below Korea's tolerance levels", based on evidence of Japan's own imposition of
internal restrictions on these products. The Panel considered that "[t]hese restrictions are an indication that
Japan itself concluded that there was a high potential for contamination in these fishery products in these areas
in 2012." (Ibid.)
158 Panel Report, para. 7.303. Specifically, the Panel found that "the data supports a conclusion that the
potential caesium contamination … was below the 100 Bq/kg tolerance level" in relation to 27 of the fishery

found with respect to the adoption of the 2013 additional testing requirements that "Japan has
established its factual assertion that, in general, the levels of caesium contamination in all Japanese
food products were below 100 Bq/kg."159 For the maintenance of the import bans and the additional
testing requirements, the Panel found that Japan established "that the potential for contamination
with caesium in excess of 100 Bq/kg is low".160
The Panel then stated that it would compare "the pot ential for contamination with caesium in
Japanese products … with those of other origins".161 For this purpose, the Panel compared test results
of Japanese and non -Japanese food products "taking into account the Panel's findings about past
releases of caesiu m, their global reach and potential to transfer to food products". 162 The Panel
concluded on this basis that "the majority of both Japanese and non-Japanese products have potential
to contain caesium in amounts below the 100 Bq/kg tolerance level."163 With respect to strontium and
plutonium, the Panel again compared test results of Japanese and non -Japanese food products 164
"taking into account generally low levels of strontium and plutonium released globally and from the
FDNPP".165 On this basis, the Panel found that "food products from Japan and from other origins have
similar potential for containing strontium and plutonium below their respective tolerance levels." 166
The Panel rejected the relevance of potential future releases from the FDNPP to whether the conditions
in food products were similar when Korea adopted the measures and as of the establishment of the
Panel.167
The Panel therefore concluded that similar conditions existed in Japan and in other Members
with regard to the adoption of the 2013 additional tes ting requirements and the blanket import ban
(except for the ban on Pacific cod from Fukushima and Ibaraki), and that similar conditions existed
with regard to the maintenance of Korea's import bans and additional testing requirements at the time
of the establishment of the Panel.168
The Panel proceeded to analyse whether the measures for which similar conditions existed
arbitrarily or unjustifiably discriminated against Japanese products.169 With respect to the import bans,
the Panel concluded based on a varie ty of factors that "Korea's import bans are not rationally
connected to the objective of protecting Korea's population against the risk arising from consumption
of contaminated food products." 170 As a result, the Panel found that Korea's maintenance of the
product-specific bans and the blanket import ban amounts to arbitrary or unjustifiable discrimination,
and that "the discrimination resulting from the adoption of the blanket import ban … constitute[s]
arbitrary or unjustifiable discrimination." 171 With respect to the additional testing requirements, the
Panel found that "there is no rational connection between the discrimination resulting from applying
the additional testing requirements to Japanese food products and the stated regulatory objective of

products from all eight prefectures and Pacific cod from Aomori, Chiba, Gunma, Iwate, Miyagi, and Tochigi, but
not for Pacific cod from Fukushima and Ibaraki. (Ibid.)
159 Panel Report, para. 7.306.
160 Panel Report, para. 7.311. In support of this finding, the Panel noted data showing a continuous
decline in levels of caesium in Japanese products, and the Panel addressed the significance of "outliers" in the
data for some samples with caesium in excess of 100 Bq/kg. (Panel Report, paras. 7.308-7.311)
161 Panel Report, para. 7.312.
162 Panel Report, para. 7.314.
163 Panel Report, para. 7.314.
164 The Panel noted the relatively limited measurements of strontium and plutonium and used data on
samples tested by Korea at the point-of-sale, while referring to its findings in response to Korea's objections on
the sufficiency of the sample size to draw valid conclusions. (Panel Report, paras. 7.316-7.317)
165 Panel Report, para. 7.319.
166 Panel Report, para. 7.319.
167 Panel Report, para. 7.320.
168 Panel Report, paras. 7.321-7.322. The Panel stated that it would not continue the analysis with respect
to the adoption of the 2011 additional testing requirements or the product-specific import bans, because Japan
had failed to establish that similar conditions existed in that regard. (Ibid., para. 7.322)
169 The Panel made separate findings that the import bans and additional testing requirements
discriminate against Japanese products. (Panel Report, paras. 7.324-7.325 and 7.330-7.332)
170 Panel Report, para. 7.349. The Panel's conclusion was based on "a cumulative assessment" of various
factors, namely: (i) the high degree of trade-restrictiveness of the measures; (ii) the levels of caesium and
additional Codex radionuclides measured in the relevant Japanese fishery species well below Korea's tolerance
levels; (iii) the lack of review of the measures within a reasonable period of time with a view to conducting a risk
assessment; (iv) the Panel's findings that the import bans are inconsistent with Article 5.6; and (v) the
disregarding of the origin and contamination levels of a product harvested by a Japanese ship and packaged or
processed in one of the eight prefectures. (Ibid.)
171 Panel Report, para. 7.350. This finding excluded the ban on Pacific cod from Fukushima and Ibaraki.

the mea sure."172 Therefore, the Panel considered "the discriminatory treatment afforded by the
additional testing requirements when they were adopted in 2013 as well as the maintenance of both
the 2011 and the 2013 additional testing requirements to constitute arbi trary or unjustifiable
discrimination".173
Under the second sentence of Article 2.3, the Panel found that the import bans and additional
testing requirements "constitute equally a disguised restriction on international trade" based on its
finding of arbitrary or unjustifiable discrimination.174
5.2.3 Whether the Panel erred under Article 2.3 of the SPS Agreement in finding that
"similar conditions prevail" in Japan and other Members
Korea challenges the Panel's findings with respect to the scope of the conditions tha t must be
compared under Article 2.3 of the SPS Agreement. As an interpretive matter, Korea takes issue with
the Panel's reliance on the principle of effective treaty interpretation, considerations of object and
purpose, and contextual reference to other n on-discrimination provisions of the SPS Agreement and
GATT 1994.175 Korea further argues that the Panel erred in conducting "an overly narrow application
of Article 2.3 that did not take full account of the circumstances or factors that made up the relevant
conditions".176 In this regard, Korea considers that the Panel applied an incorrect standard that is
focused exclusively on the risk present in products as "the relevant condition".177 According to Korea,
the Panel failed to explain why "the level of contamina tion of the products … should be the defining
standard and all other circumstances or factors (e.g. environmental and ecological conditions) … are
irrelevant to defining the relevant conditions in this dispute."178
Korea specifically criticizes the Panel for having "focused almost exclusively on the product test
data" in its analysis as a "fail[ure] to properly assess whether the conditions in Japan and the
conditions in the rest of the world were similar". 179 In Korea's view, the relevant conditions "had to
include the environmental and ecological conditions in Japan and the status of the FDNPP" in addition
to the "insufficiencies of the information about the ecological conditions in Japan, as well as about the
status of the FDNPP". 180 In this respect, Korea argu es that the Panel did not sufficiently assess
radionuclide dispersion and contamination as they relate specifically to the FDNPP accident, despite
the Panel's recognition of various factors that would be relevant to such radionuclide dispersion and
contamination.181 For example, Korea submits that the Panel recognized that radionuclide dispersion

172 Panel Report, para. 7.355. In support of this finding, the Panel considered various factors, including:
(i) the trade-restrictiveness of the additional testing requirements; (ii) the "low threshold" to trigger additional
testing as compared with Korea's tolerance levels; (iii) the fact that Korea does not conduct at-the-border testing
for additional radionuclides for countries and products "in which higher concentration of radionuclides have been
detected than in Japanese products"; (iv) Korea's practice of administering import bans on Japanese products
strictly on the basis of the nationality of the fishing vessel or location of the processing or packaging plant,
regardless of the products' origin and contamination levels; and (v) its findings that there was sufficient
knowledge about the levels of contamination in Japanese food products at the time the 2013 additional testing
requirements were adopted, and that Korea had not completed a risk assessment of these requirements. (Ibid.,
paras. 7.351-7.354)
173 Panel Report, para. 7.355.
174 Panel Report, para. 7.359. The Panel found it unnecessary to consider other grounds put forward by
Japan to support its claim under Article 2.3, second sentence – namely, statements by Korean officials indicating
protectionist intent and the de facto restrictive effect of the additional testing requirements – and "exercise[d]
judicial economy with respect to them". (Ibid.)
175 Korea's appellant's submission, paras. 251-266. In particular, Korea contends that "the Panel disclosed
its own preconceived view of the scope of Article 2.3" in its consideration that "remov[ing] whole categories of
SPS measures" from the scope of Article 2.3 "would be contrary to the principles of effective treaty
interpretation". (Ibid., paras. 252-253 (quoting Panel Report, para. 7.268)) Korea additionally contrasts the
obligation under Article 2.3 of the SPS Agreement with those of Articles I:1 and III:4 of the GATT 1994 in that
the latter explicitly call for a product-based comparison. (Ibid., paras. 261-264) Korea also contrasts the chapeau
of Article XX of the GATT 1994, which "functions as an equilibrium device [that] should not cancel out the role of
either substantive GATT obligations or each of the sub-paragraphs of Article XX", with Article 2.3, "which
provides for an independent obligation without any exception clauses". (Ibid., para. 265)
176 Korea's appellant's submission, para. 250.
177 Korea's appellant's submission, para. 268 (referring to Panel Report, paras. 7.276 and 7.283).
(emphasis added by Korea)
178 Korea's appellant's submission, para. 269 (referring to Panel Report, paras. 7.276 and 7.283).
179 Korea's appellant's submission, para. 274.
180 Korea's appellant's submission, para. 276.
181 Korea's appellant's submission, paras. 277-279.

may depend on "the atmospheric transport, precipitation, sea currents, as well as physical and
chemical characteristics of specific isotopes" 182, but that "the Panel d id not make any assessment of
these factors or how they affected the dispersion of the radionuclides released before and after the
accident from the FDNPP."183 Korea further notes the Panel's observation that fish and marine species
"can absorb radionuclides directly from water, from dietary sources, such as plankton, forage fish and,
to a lesser extent, sediments in [the] case of demersal species"184, but that the Panel "failed to assess
these factors in connection with the FDNPP".185 Korea also argues that the Panel failed to take account
of "continuous releases of radionuclides"186 after the accident, and that "the very fact that there is an
active source of radionuclide contamination in Japan makes conditions there different."187 Korea thus
submits that "the Panel effectively adopted and applied an erroneous 'product -based' approach that
improperly focused on the contamination levels of the products to the exclusion of the other relevant
conditions."188
Japan submits that the Panel correct ly found that similar conditions prevail between Japanese
food products and products from other sources. Regarding the Panel's interpretation of the relevant
"conditions" under Article 2.3, Japan contests Korea's claim that the Panel failed to cover all potentially
relevant factors or prejudged the character of relevant "conditions". In Japan's view, the Panel left
such conditions "to be identified on an open -ended basis in light of the particular circumstances
surrounding the challenged measure" 189 , especial ly the objectives pursued by the respondent's
challenged measure and the SPS risks addressed.190 Moreover, Japan submits that the Panel correctly
identified the relevant conditions under Article 2.3 by reference to the objective of Korea's measures191
and, based on the particular risk related to that objective, "explored the weight to be ascribed to the
available evidence regarding a variety of matters, covering the conditions relating to the environment,
ecology, and food".192 In this regard, Japan refers to the elements of the Panel's assessment covering
environmental contamination from the FDNPP and other major radionuclide releases worldwide193, as
well as the factors relied on by the Panel to assess the "risk of [food from Japan and from the rest of
the world] containing levels of radionuclides above Korea's respective thresholds", including "scientific
information concerning ecological and environmental issues; information concerning the specific
properties of the radionuclides in question; and measurements of radiation levels in the food
products".194
Responding to Korea's allegation that the Panel focused exclusively on the risk present in
products as "the relevant condition" in its application of Article 2.3, Japan submits that the Panel
considered all relevant factors and properly accounted for them.195 In particular, Japan disagrees with
Korea's contention that the Panel treated environmental and ecological conditions as "irrelevant", as
the Panel expressly took relevant environmental and ecological consideratio ns into account. 196
According to Japan, these factors include the environmental contamination near the FDNPP and in the
wider global environment, as well as the pathways of contamination from the environment to
agricultural, livestock, and marine products. 197 Japan further submits that the Panel explicitly
addressed factors Korea claims to have been overlooked, such as the relevance of leak disclosures
following the FDNPP accident and the possibility of future leaks. 198 In Japan's view, the fact that the
Panel ma y have attached different weight to certain evidence is not itself an error in the legal
application of Article 2.3.199

182 Panel Report, para. 7.291.
183 Korea's appellant's submission, para. 278.
184 Panel Report, para. 7.294.
185 Korea's appellant's submission, para. 279.
186 Korea's appellant's submission, para. 281.
187 Korea's appellant's submission, para. 285.
188 Korea's appellant's submission, para. 291.
189 Japan's appellee's submission, para. 175.
190 Japan's appellee's submission, para. 179.
191 Japan's appellee's submission, para. 200.
192 Japan's appellee's submission, para. 204.
193 Japan's appellee's submission, paras. 205-212.
194 Japan's appellee's submission, para. 213. (fns omitted)
195 Japan's appellee's submission, para. 223.
196 Japan's appellee's submission, para. 228.
197 Japan's appellee's submission, para. 231.
198 Japan's appellee's submission, paras. 237-239.
199 Japan's appellee's submission, para. 240.

Article 2.3 of the SPS Agreement provides:
Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily
or unju stifiably discriminate between Members where identical or similar conditions
prevail, including between their own territory and that of other Members. Sanitary and
phytosanitary measures shall not be applied in a manner which would constitute a
disguised restriction on international trade.
Under the first sentence of Article 2.3, a complainant bears the burden of establishing that a
measure arbitrarily or unjustifiably discriminates between Members where identical or similar
conditions prevail, including be tween their own territory and that of other Members. 200 Article 2.3
therefore requires demonstrating as a threshold matter that "identical or similar conditions prevail"
between Members. In this regard, the Appellate Body has said that, although the text of Article 2.3,
first sentence, does not mandate a particular order of analysing the requirements thereunder,
"identifying the relevant conditions, and assessing whether they are identical or similar, will often
provide a good starting point for an analysis under Article 2.3, first sentence."201
The relevant conditions under Article 2.3 of the SPS Agreement must be identified subject to
the particular nature of the measure and the specific circumstances of the case. By definition,
SPS measures relate to a "protected interest"202 as set out in Annex A(1) to the SPS Agreement, which
corresponds to protection against a specific risk, or preventing or limiting damage from certain causes.
The Appellate Body has previously recognized that "identifying the relevant condit ions" and their
similarity under Article 2.3 may require consideration of the specific SPS risks at issue. 203 The
particular risk addressed by an SPS measure will necessarily relate to an objective pursued under the
SPS Agreement204 that may inform the "condit ions" that must be "identical or similar" under the
first sentence of Article 2.3. 205 Consequently, the disciplines of Article 2.3, and the particular
"conditions" that must be shown to be "similar or identical" under that provision, should be informed
by the nature of SPS measures in light of the particular circumstances of the case. Thus, "conditions"
relating to the particular objective pursued and risks addressed by the SPS measure in question are
relevant for the analysis under Article 2.3 of whether ide ntical or similar conditions prevail between
Members.206
The main issue raised in this appeal is whether the Panel properly considered the relevant
"conditions" prevailing in Japan, including environmental and ecological conditions in Japan and the
status of the FDNPP.207 One aspect of Korea's appeal concerns the Panel's interpretation of Article 2.3
with respect to the relevance of risks arising in products to the prevailing "conditions" that must be
shown to be "identical or similar" in different territories. Korea alleges that the Panel's "erroneous
interpretive approach" 208 resulted in its articulation of "an incorrect standard that is focused

200 Appellate Body Report, India – Agricultural Products, para. 5.260.
201 Appellate Body Report, India – Agricultural Products, para. 5.261. (emphasis added)
202 Appellate Body Report, Australia – Apples, para. 172.
203 In India – Agricultural Products, the Appellate Body stated that "identifying the relevant conditions, and
assessing whether they are identical or similar", would logically serve as a good starting point for an analysis
under Article 2.3, and found support for this in the Appellate Body's consideration in Australia – Salmon that,
under the first sentence of Article 2.3, "it would first of all be necessary to determine the risk to Australia's
salmonid population resulting from diseases." (Appellate Body Report, India – Agricultural Products, para. 5.261
and fn 703 thereto (quoting Appellate Body Report, Australia – Salmon, para. 255 (emphasis omitted)))
204 We recall that the Appellate Body has previously referred to a Member's "appropriate level of
protection" as an "objective" that is pursued by an SPS measure. (Appellate Body Reports, Australia – Salmon,
205 This understanding of Article 2.3 is in accord with the Appellate Body's guidance as to the chapeau of
Article XX of the GATT 1994, which similarly refers to "arbitrary or unjustifiable discrimination between countries
where the same conditions prevail". The Appellate Body has said in that context that "'conditions' relating to the
particular policy objective under the applicable subparagraph [of Article XX of the GATT 1994] are relevant for
the analysis under the chapeau." (Appellate Body Reports, EC – Seal Products, para. 5.300; see also
Appellate Body Reports, US – Tuna II (Mexico) (Article 21.5 – Mexico), paras. 7.307-7.308; Indonesia – Import
Licensing Regimes, para. 5.99)
206 Appellate Body Reports, EC – Seal Products, paras. 5.300 and 5.317.
207 Korea's appellant's submission, paras. 268-271, 276, and 291.
208 Korea's appellant's submission, para. 266.

exclusively on 'the risk present in the products'" 209 as "the defining standard" 210 of the relevant
conditions in this dispute.
We note that the Panel concluded its interpretation of the relevant "conditions" under Article 2.3
as follows:
[T]he Panel concludes that its determination of the relevant conditions should be informed
by the regulatory objective of the challenged measures and the justification relied upon
by the Member in light of the character of the measures and specific circumstances of the
case. In that regard, the Panel sees nothing in the language of Article 2.3, first sentence,
read in its context and in the light of its object and purpose that would preclude it from
considering the risk present in products in international trade as the relevant condition.211
In our view, the Panel correctly recognized that the regulatory objective of a measure should
inform the determination of the relevant conditions under Article 2.3212, which Korea does not dispute
on appeal.213 We note that Korea emphasizes the significance of territorial conditions based on the
reference in Article 2.3 to discrimination "between Members", and the prevalence of "identical or
similar conditions" as qualified by the phrase "including between their own territory and that of other
Members". According to Korea, this language calls for a comparison "between the 'conditions'
prevailing in the territory of one Member and the 'conditions' prevailing in the territor y of another
Member".214
It is noteworthy to us that the Panel considered that, under Article 2.3, "ecological or
environmental conditions in an exporting Member can be relevant depending on the circumstances of
the case and, in particular, the type of risk addressed by the challenged measures." 215 In our view,
the relevant conditions under Article 2.3 include those of the territory of the Member taking the
SPS measure and the territory of other Mem bers. We note that Article 5.2 of the SPS Agreement
requires Members to take into account "relevant ecological and environmental conditions" in their risk
assessments. When ecological or environmental conditions in the territories of different Members are
relevant to the risks addressed by an SPS measure, they inform the scope of conditions to be compared
under Article 2.3. At the same time, we agree with the Panel's conclusion that the conditions referred
to in Article 2.3 may be construed to "include those found in products and not just the territory of an
exporting or importing Member".216
We disagree, however, with the Panel's conclusion that Article 2.3 permits consideration of the
"risk present in products in international trade as the relevant condition"217 because this would not
give appropriate weight to all other relevant conditions und er Article 2.3. While the analysis under
Article 2.3 may include consideration of conditions that can be characterized as being present in the
products from different Members, a proper interpretation of Article 2.3 includes consideration of other
relevant conditions, such as territorial conditions, to the extent they have the potential to affect the
products at issue.218 The analysis under Article 2.3 thus entails consideration of all relevant conditions
in different Members, including territorial conditions that may not yet have manifested in products but
are relevant in light of the regulatory objective and specific SPS risks at issue. We note the Panel's

209 Korea's appellant's submission, para. 268, referring to Panel Report, para. 7.276.
210 Korea's appellant's submission, para. 269.
211 Panel Report, para. 7.276.
212 Panel Report, para. 7.266.
213 Korea's appellant's submission, para. 268 (referring to Panel Report, para. 7.276).
214 Korea's appellant's submission, para. 235.
215 Panel Report, para. 7.270.
218 We further note that the Panel, in discussing the contextual relevance of the definition of "risk
assessment" in Annex A(4) of the SPS Agreement, emphasized the words "presence of … contaminants, toxins …
in food, beverages or feedstuffs" to conclude that "it is appropriate for a risk assessment analysis with regard to
an Annex A(1)(b) measure to focus on the presence of a health hazard in certain products and not on an analysis
of territories." (Panel Report, para. 7.274) (underlining removed; italics added) We disagree with the Panel to the
extent that it understood the contextual guidance in Annex A(4) regarding risk assessments to exclude territorial
conditions from the scope of relevant "conditions" under Article 2.3. More generally, we do not consider that the
interpretation of Article 2.3 differs depending on the type of SPS measure at issue. Therefore, we disagree with
the Panel's statement that territorial aspects are likely to be more prominent with respect to other risks covered
by Annex A(1) than those falling under Annex A(1)(b); rather, the application of Article 2.3 may be informed by
the type of SPS measure at issue and the arguments and evidence submitted in a particular dispute.

view that, "even when examining territorial conditions[,] … it is done in light of the ultimate purpose
of addressing risks of products in international trade."219 We do not consider that the "ultimate purpose
of addressing risks of products in international trade"220 permits, as an interpretive matter, conducting
an analysis under Article 2.3 without fully cons idering relevant territorial conditions that have the
potential to affect products for the reason that they have not yet materialized in products, despite
their relevance to the regulatory objective and specific SPS risks at issue.
Therefore, we find that the Panel erred in its interpretation of Article 2.3 when it concluded that
this provision permits consideration of the "risk present in products in international trade as the
relevant condition" because we understand the Panel to have concluded that the s cope of relevant
"conditions" under Article 2.3 may be exclusively limited to "the risk present in products".221
Turning to the Panel's application of Article 2.3, Korea criticizes the Panel for having "focused
almost exclusively on the product test data" 222 and argues that the Panel "did not properly assess
other factors, particularly those relating to the ecological and environmental conditions in Japan".223
In identifying the relevant conditions under Article 2.3, "the Panel view[ed] Korea's import bans
and the additional testing requirements as part of an overall regime pursuing a single objective of
protecting Korea's population from potential adverse effects from consumption of food contaminated
with radionuclides."224 The Panel found that:
Therefore, the relevant conditions to be compared between Members for the purpose of
determining whether conditions are similar within the meaning of Article 2.3 is whether
products from Japan and the rest of the world have a similar potential to be contaminated
with the 20 Codex radionuclides, in particular with caesium, iodine, strontium and
plutonium, and whether the levels of contamination would be below Korea's tolerance
levels.225
The "relevant conditions" identified by the Panel for the purposes of Article 2.3 concern
"whether products from Japan and the rest of the world have a similar potential to be contaminated"
with certain radionuclides. In addition to the "potential to be contaminated", the Panel further
identified as a relevant condition "whether the levels of co ntamination would be below
Korea's tolerance levels". The Panel explained that "assessing whether the potential for contamination
with caesium and the additional radionuclides is similar in food products from Japan and of other
origins requires the Panel t o take a holistic approach that would consider all the relevant factors
affecting such a risk."226
The Panel began by assessing evidence relating to "the source of radioactive contamination",
including "major releases of man -made radionuclides" and contamin ation of the global environment
prior to the FDNPP accident.227 In this regard, the Panel noted that "the fallout from nuclear weapons
testing is responsible for the most radioactive material distributed globally."228 The Panel also referred
to the accident in the Chernobyl nuclear power plant as "another major source of global radioactive
contamination, although it had a particularly strong impact on Europe", as well as "[r]eleases from
other nuclear facilities [that] had more localized effects". 229 The Panel ci ted examples of "major
releases of radionuclides [that] took place in marine areas, resulting in their contamination", including
"discharges of radioactive waste into the Irish Sea and North Atlantic, as well as nuclear weapons tests
conducted in the Pacific".230

222 Korea's appellant's submission, para. 274.
223 Korea's appellant's submission, para. 280.
224 Panel Report, para. 7.283.
226 Panel Report, para. 7.289.
227 Panel Report, paras. 7.290-7.291.
228 Panel Report, para. 7.291.

At the same time, the Panel "recognise[d] the unprecedented nature of the FDNPP accident, as
the largest release of radionuclides from a nuclear accident into the marine environment".231 Further,
the Panel stated that "radioactive material, mainly caesium, released [into] the atmosphere from the
FDNPP also contributed to global contamination levels, although the fallout has affected the East and
North of Japan the most."232 The Panel noted that radionuclides released from the FDNPP "were largely
dispersed by sea currents and added to existing concentration levels in the Northern Pacific", stating
further that "some amounts of these radionuclides were bound to particles, sunk and settled in
sediments off the Fukushima coast."233
In its discussion of global radionuclide contamination, the Panel appeared to indicate that there
may be territorial differences in contamination depending on the source, specifically stating that
"radionuclides can be more concentrated close to the source of contamination."234 In addition, having
noted that some of the radionuclides released from the FDNPP would be expected to have settled in
sediments off the Fukushima coast, the Panel stated that "[t]his would also be true for areas close to
the other primary sources of contamination."235
The Panel made these statements in the context of its findings of continuing global
contamination resulting from various radionuclide releases, including those from the FDNPP. For
example, while acknowledging the potential for concentration of radionuclides close to the source, the
Panel further stated in reference to various radionuclide releases that "the radioactive material
originating from all of these events has been dispersed across the world depending on the atmospheric
transport, precipitation, sea currents, as well as physical and chemical characteristics of specific
isotopes."236 The Panel stated that "both the historical releases and the FDNPP accident continue to
have global effects", and found that "the caesium, strontium and plutonium that were released to the
environment in significant quantities prior to the FDNPP accident still have the potential to be present
in food from across the world."237
We note that the Panel's findings concerning past releases of radionucli des refer generally to
the potential for contamination, without accounting for any degree of contamination or differentiating
the relative potential for contamination in different territories. Rather, the Panel ultimately concluded
that "past releases of radionuclides to the environment continue to affect food products and mean that
food from anywhere in the world has the potential to be contaminated with radionuclides."238
The Panel's conclusion as to "the potential to be contaminated with radionuclides", w ithout
regard to any specific source or relative degree, appears to conflict with some of the Panel's
intermediate observations concerning the sources of worldwide contamination. For example, in
addressing the example of contamination from nuclear weapons testing, the Panel states that
"radioactive isotopes of caesium and strontium from nuclear weapons testing continue to this day to
constitute a potential for contamination of food products across the world." 239 However, the Panel
noted that the evidence reli ed on to reach this conclusion "does not take into account the additional
releases from the Chernobyl accident or other release events from nuclear facilities", stating that such
events "added to the global contamination levels and thus increase the potential for contamination of
food above" that which is attributable to nuclear weapons testing. 240 Further, as noted above, the
Panel observed that nuclear releases could have localized effects and that radionuclides can be more
concentrated close to the source of contamination.241 These statements indicate that particular release
events may be capable o f increasing the potential for contamination of food within a specified
geographical location or territory.
We therefore read the Panel's assessment of the source of contamination as containing
conflicting indications of relevant territorial differences co ncerning the potential for contamination of
food. On the one hand, the Panel's analysis contains suggestions that specific release events or

234 Panel Report, para. 7.291.
237 Panel Report, para. 7.293. (fn omitted; emphasis added)
241 Panel Report, para. 7.291.

radionuclide sources may result in an incremental and localized increase in contamination levels and
the potential for food contamination, combined with the Panel's observation that radionuclides can be
more concentrated close to the source of contamination. On the other hand, the Panel generally noted
that radioactive material originating from the FDNPP and other events "has been dispersed across the
world depending on the atmospheric transport, precipitation, sea currents, as well as physical and
chemical characteristics of specific isotopes". 242 Although aspects of the Panel's reasoning appear to
suggest that such disp ersion is not globally uniform across different territories, its conclusion
concerning environmental contamination makes no distinction between territories as it relates to the
relative degree of potential for food contamination.243
We recognize that the Panel's assessment of the sources of contamination formed only part of
what it framed at the outset as "a holistic approach that would consider all the relevant factors
affecting such a risk".244 Nevertheless, the Panel's conclusion regarding environmental contamination,
as well as its general assessment of territorial conditions surrounding the FDNPP in relation to other
territories, does not reflect a number of factors that the Panel itself had identified as affecting
radionuclide contamination of different a reas. The Panel observed that radionuclide dispersion from
certain events would depend on "the atmospheric transport, precipitation, sea currents, as well as
physical and chemical characteristics of specific isotopes". 245 Although the Panel did provide factu al
background on the radionuclides released from the FDNPP accident along with other major releases
worldwide246, it did not specifically account for such factors or territorial differences pertaining to the
FDNPP, as opposed to other territories globally, and as they may relate to differences in the potential
for food contamination. Indeed, the Panel's explanations of radionuclide release and dispersion
following the FDNPP accident indicate localized and relatively recent territorial contamination247, which
the Panel does not reconcile with its conclusion suggesting undifferentiated global contamination
stemming from various radionuclide releases worldwide and dispersion over a long period of time.
Thus, at this stage of the Panel's assessment of the relevant c onditions under Article 2.3, its
comparison of territorial conditions near the FDNPP and the rest of the world does not reflect or
differentiate between various factors that the Panel itself suggested could differently affect the
potential for contamination.
Having assessed past releases of radionuclides, including from the FDNPP accident, to conclude
that that "food from anywhere in the world has the potential to be contaminated with radionuclides",
the Panel then "turn[ed] to the levels of radionuclides i n food".248 The Panel explained in this regard

243 We further note that the Panel's discussion of the process of contamination of plants, animals, and
fungi ("radionuclide uptake") does not reflect any difference across territories as it relates to the potential for
food contamination. Rather, the Panel assessed in general terms the contamination of agricultural and livestock
products from "[m]an-made radionuclides released [into] the environment … through direct deposition from the
atmosphere", and made general observations on the exposure of livestock and marine species to environmental
contamination and dietary consumption. Although the Panel noted "[v]arious pathways of radionuclide uptake"
that "allow estimating transfer factors between plants, animals, and fungi up the food chain and ultimately to
food products for humans", it made no indication of how such pathways and factors may specifically relate to the
environmental contamination from the FDNPP accident, as compared to contamination from other major releases.
Thus, despite the indication of various factors that may affect radionuclide dispersion and environmental
contamination, the Panel did not address what impact such factors had on environmental and territorial
conditions in Japan, or the relative potential for contamination of Japanese food products. (Panel Report,
paras. 7.291 and 7.294-7.295 (fn omitted); see also ibid., paras. 2.4-2.7)
244 Panel Report, para. 7.289.
246 These include, for example, the accident at the Chernobyl nuclear power plant, discharges of
radioactive waste into the Irish Sea and North Atlantic Ocean, as well as nuclear weapons tests conducted in the
Pacific Ocean. (See e.g. Panel Report, paras. 2.44-2.62, 7.291-7.292, and Table 20)
247 For example, the Panel noted that "[t]he effect of a release of radionuclides is not necessarily localized,
but may be dispersed through the atmosphere and ocean currents." (Panel Report, para. 2.53) At the same time,
the Panel noted of atmospheric dispersion that "the activity concentration in the atmosphere decreased
noticeably with increase in distance from the FDNPP." (Ibid., para. 2.54 (fn omitted)) Regarding ocean
dispersion, the Panel noted that the "high caesium-activity ratios" in samples from the North-Western Pacific
taken two years after the accident suggest that these samples were contaminated by caesium released from the
FDNPP. (Ibid., para. 2.56) Further, the Panel observed that "[t]he Fukushima prefecture and neighbouring
prefectures have several river systems that flow from contaminated upland forests to coastal plains, and
ultimately empty into the Pacific Ocean", and that "[g]roundwater has been continuously flowing from the hills
into the FDNPP where it interacts with damaged fuel and becomes contaminated." (Ibid., paras. 2.57 and 2.60
(fn omitted))
248 Panel Report, para. 7.298.

that "Japan has provided the Panel with data with respect to the levels of radionuclides in food products
in Japan and from other origins."249 Based on that data, the Panel reviewed the levels of radionuclides
in food in order to make separate findings regarding the relevant "conditions" for both the adoption
and maintenance of the challenged measures (the product -specific import bans, the blanket import
ban, as well as the 2011 and 2013 additional testing requirements).250 The Panel then compared "the
potential for contamination in Japanese products … with those of other origins" based on import testing
data from Korea and Japan, "as well as knowledge about contamination resulting from pre -2011
releases of radionuclides".251
In contrast to the Panel's finding of a general "potential for contamination" in relation to sources
of contamination, the Panel's assessment of Japanese food focused on actual – not potential – levels
of contamination for different products during different time periods, with emphasis on Korea's
"tolerance level" for the relevant radionuclide. 252 As discussed in further detail below with regard to
caesium, the Panel assessed levels of caesium contamination in Japanese food, focusing on actual
caesium levels measured in Japanese food samples with repeated reference to the 100 Bq/kg
"tolerance level".
We note that the Panel used varying formulations to express its findings in this step of its
assessment, at times appearing to equate the potential for ca esium contamination with the
observation of actual measurements below a quantitative tolerance level. For example, regarding the
adoption of the blanket import ban, the Panel cited measurements being "at that time consistently
below the tolerance level of 100 Bq/kg" to find that "the data supports a conclusion that the potential
caesium contamination in these products was below the 100 Bq/kg tolerance level." 253 The Panel
similarly appeared to equate the notion of potential contamination with observed measurements below
Korea's tolerance level in finding with respect to the maintenance of Korea's measures that "Japan
has met its burden to establish that the potential for contamination with caesium in excess of
100 Bq/kg is low."254 In relation to the adoption of the 2013 additional testing requirements, the Panel
did not refer to the "potential" contamination as a legally relevant "condition" under Article 2.3, but
rather concluded based on data on caesium contamination levels for all Japanese products 255 that
"Japan has established its factual assertion that, in general, the levels of caesium contamination in all
Japanese food products were below 100 Bq/kg."256

249 Panel Report, para. 7.298.
250 Panel Report, paras. 7.300-7.309.
251 Panel Report, para. 7.312.
252 In addition to the appealed findings discussed below, the Panel's unappealed findings regarding Japan's
failure to show the existence of similar conditions (in relation to the adoption of measures in 2011 and 2012)
similarly evince a focus on actual levels of food contamination in relation to Korea's tolerance levels. Regarding
the adoption of the 2011 additional testing requirements, the Panel cited "the absence of sufficient data directly
addressing the conditions of the Japanese products subject to the challenged measure" as the sole factor for
finding that Japan had not demonstrated the existence of similar conditions. (Panel Report, para. 7.301)
Regarding the adoption of the product-specific import bans, the Panel cited both Japan's own internal restrictions
on the relevant products, as well as Japan's lack of argumentation with respect to the contamination levels of
samples in 2012, to find that Japan had not established that "the potential for radionuclide contamination in
Pacific cod and Alaska pollock from the relevant prefectures in 2012 [was] below Korea's tolerance levels."
(Ibid., para. 7.302)
253 Panel Report, para. 7.303. (fn omitted) The Panel made this finding in relation to products covered by
the blanket import ban with the exception of Pacific cod for which Japan maintained its own restrictions in 2013.
254 Panel Report, para. 7.311. We note that the Panel addressed various issues in support of this finding
based on data on product samples, including the significance of outliers exceeding the 100 Bq/kg level.
(Ibid., paras. 7.307-7.311)
255 In this connection, the Panel explained that the 2013 additional testing requirements apply "to
essentially all food – fishery, livestock, and agricultural products; processed food; and food additives". Further,
because "Japan [was] seeking to invalidate Korea's additional testing requirements completely with respect to all
the food products that they cover", the Panel stated that it would "not exclude any test results from specific fish
species or food products from [its] analysis of the similarity of conditions with regard to the additional testing
requirements". Thus, the Panel explained that, "[a]s the 2013 additional testing requirements address all
products from anywhere in Japan in terms of their contribution towards an average annual exposure level, [its]
analysis [would] examine all products from anywhere in Japan from the same perspective." (Panel Report,
paras. 7.304-7.305)
256 Panel Report, para. 7.306. The Panel noted in support of this finding that, "at the time the measure
was adopted, in general, less than 1% of samples were found to exceed the caesium tolerance level of 100 Bq/kg
for all product categories from all Japanese prefectures." (Ibid., para. 7.305 (fn omitted))

At this intermediate stage of its assessment, the varying formulations of the Panel's conclusions
lend themselves to different possible readings in relation to the "conditions" to be compared under
Article 2.3. Depending on the measure and claim being addressed, the Panel's findings may be read
to mean that the "potential caesium contamination" was itself below the 100 Bq/kg level257, there was
a "low" potential for contamination in excess of 100 Bq/kg258, or simply that caesium levels were below
100 Bq/kg.259
The Panel turned from its examination of caesium contamination levels in Japanese food "to
compare the potential for contamination with caesium" in products of other origins.260 The Panel noted
the lack of "comprehensive testing data of non -Japanese products over all food categories". 261
Nevertheless, the Panel found that "the data provided can serve as a basis for a conclusion on general
contamination in conjunction with the information available on contamination due to past releases
throughout the world and general knowledge on the uptake of radionuclides in food products."262
We understand the Panel's reference to "the information available on contamination due to past
releases throughout the world" 263 to correspond to its assessment of the sources of contamination
undertaken before examining "the levels of radionuclides in food". As we observed above, the Panel's
conclusion regarding past releases and global contamination was that "food from anywhere in the
world has the potential to be contaminated with radionuclides." 264 While the Panel did not specify
whether this means a similar potential for contamination for food from all origins, we noted various
elements of the Panel's analysis indicating potential differences in territorial conditions concerning the
potential for food contamination. This includes the Panel's apparent recognition of the concentration
of released radionuclides near their source and the localized impact of specific release events on the
potential for contamination of food products. The Panel's analysis suggests that such contamination
may eventually be dispersed over a longer period of time, but does not address whether this renders
concentration levels near the sources of contamination comparable to global contamination levels
existing in other territories.
The Panel's comparison of the potential for contamination in food of Japanese and other origins
reflects the contradiction between, on the one hand, its generalized description of global radionuclide
contamination and, on the other hand, its observation of conditions related to specific events and
locations. In the context of its comparison of fo ods from different origins, the Panel cited the
explanation of an expert that "there is sufficient data to conclude that caesium is present in food from
all over the world in trace amounts, mainly from nuclear weapons testing fallout, but also from
Chernobyl", and that "these levels [of caesium] are[,] in general, very low and significantly lower than
100 Bq/kg." 265 The Panel also cited the expert's view that "concentrations of caesium in
Japanese foods are likely to be higher than in non-Japanese foods", even though concentration levels
"would also be very low and significantly lower than 100 Bq/kg".266
These expert views cited by the Panel are consistent with the Panel's earlier conclusion that
"food from anywhere in the world has the potential to be contamin ated with radionuclides." 267
However, the expert specifically indicated a higher likelihood of caesium contamination in Japanese
foods, while also expressing the view that the concentration levels in Japanese and non -Japanese
foods would both be "very low and significantly lower than 100 Bq/kg".268 The Panel thus cited expert
views that there is in fact a dissimilar potential for caesium contamination in Japanese and
non-Japanese products, but that caesium levels would similarly be "significantly lower than
100 Bq/kg". The Panel does not explain whether caesium concentration "significantly lower than
100 Bq/kg" means that the dissimilar potential for contamination is irrelevant under Article 2.3.

257 Panel Report, para. 7.303.
258 Panel Report, para. 7.311.
259 Panel Report, para. 7.306.
260 Panel Report, para. 7.312.
261 Panel Report, para. 7.312.
262 Panel Report, para. 7.312.
263 Panel Report, para. 7.312.
264 Panel Report, para. 7.298.
265 Panel Report, para. 7.313 (referring to Ms Brown's response to Panel question No. 49 to the experts).
266 Panel Report, para. 7.313 (referring to Ms Brown's response to Panel question No. 49 to the experts).
(emphasis added)
267 Panel Report, para. 7.298.
268 Panel Report, para. 7.313 (referring to Ms Brown's response to Panel question No. 49 to the experts).

This apparent gap in the Panel's reasoning is unresolved in the Panel's concluding comparisons
on the existence of "similar conditions" for Japanese and non -Japanese products, which reflect the
Panel's focus on the presence of contamination in food without accounting for differences in territorial
conditions affecting the potential for contamination. Referring to the "test results" for Japanese and
non-Japanese food products, and "taking into account the Panel's findings about past releases of
caesium, their global reach and potential to transfer to food products", the Panel concluded that "the
majority of both Japanese and non-Japanese products have potential to contain caesium in amounts
below the 100 Bq/kg tolerance level."269 The Panel's conclusion refers simply to "potential" to contain
caesium below the 100 Bq/kg tolerance level in both Japanese and non-Japanese products, but does
not address the relative degree of the potential for contamination, or at least whether such products
have a similar potential for caesium contamination. Indeed, the Panel noted an expert's recognition
"that the risk of higher absolute contamination levels is of course larger in a really contaminated
area"270, which is consistent with observations made by the Panel in its assessment of the sources of
contamination. It would appear that, notwithstanding this difference in territorial conditions in relation
to the potential for contamination, the Panel effectively discounted, in its assessment under Article 2.3
of whether conditions are similar, the relevance of such differences based on actual product test data
showing caesium concentration below the level of 100 Bq/kg.
In its identification of the relevant "conditions" to be compared under Article 2.3, the Panel
stated that it would compare the "potential to be contaminated" with the r elevant radionuclides, and
"whether the levels of contamination would be below Korea's tolerance levels". 271 The Panel did not
address or clarify the exact relationship between these two aspects for the purposes of assessing
whether "similar conditions" prevailed between Japan and other Members. While the "potential to be
contaminated" appears to concern a question of degree taking into account Korea's regulatory
objective, the other condition identified by the Panel appears to entail a more binary assessment of
whether contamination levels would, or would not, fall below a given quantitative threshold.
In identifying the relevant "conditions" that it would compare under Article 2.3, the Panel did
not explicitly indicate that similarity based on contamination levels below a certain tolerance level
would necessarily amount to similar "potential" to be contaminated generally. Rather, the Panel
presented these as combined elements of the relevant "conditions" that would need to be
demonstrated to be "similar" for the purposes of Article 2.3. However, the Panel's conclusions
concerning caesium contamination solely refer to whether the contamination would be below a given
tolerance level, without otherwise accounting for the dissimilarity of certain territorial cond itions
between Japan and other Members that the Panel recognized at various points in its assessment. The
relevant similarity for caesium contamination is thus expressed as a "potential to contain caesium in
amounts below the 100 Bq/kg tolerance level" for "the majority of both Japanese and
non-Japanese products".272
The Panel's conclusion regarding strontium and plutonium is likewise cast in terms of "similar
potential for containing strontium and plutonium below their respective tolerance levels ".273 In
reaching this conclusion, the Panel consulted data on actual concentrations in Japanese food with
reference to Korea's tolerance levels274 and, with regard to sampling sufficiency, referred to its earlier
finding "that data provided by Japan allows valid conclusions on the levels of caesium, strontium and
plutonium in Japanese food products". 275 The Panel further stated that available data from Korea's
internal testing on non-Japanese food showed either non-detectable levels of strontium or plutonium,
or detectable amounts below their respective tolerance levels.276 The Panel thus reached its conclusion
on strontium and plutonium based on product test data, combined with its assessment of caesium
contamination and "taking into account generally low levels of strontium and plutonium released
globally and from the FDNPP".277 This conclusion accords with factual evidence considered by the Panel
about the relatively lower levels of strontium and plutonium released from the FDNPP accident as

269 Panel Report, para. 7.314.
270 Panel Report, para. 7.314 (referring to Dr Skuterud's response to Panel question No. 49 to the
experts).
271 Panel Report, para. 7.283.
272 Panel Report, para. 7.314.
274 Panel Report, para. 7.315.
276 Panel Report, para. 7.317.
277 Panel Report, para. 7.319.

compared to the level of caesium 278, and to that extent may be understood as reflecting relevant
territorial conditions concerning environmental contamination of these radionuclides. At the same
time, the Panel's conclusion on similar conditions regarding strontium and plutonium is explicitly based
on its comparison of actual caesium contamination in Japanese and non -Japanese food, and is not
curative of the shortcomings we have identified in relation to the Panel's assessment of relevant
territorial conditions concerning the potential for caesium contamination in food.
In sum, we consider the Panel's comparison of "conditions" under Article 2.3 to be effectively
based on actual radionuclide concentration levels in samples of food products as measured against
quantitative tolerance levels corresponding to each radionuclide. In this respect, we agree with Korea's
claim on appeal that the Panel erred in the application of Article 2.3 by focusing on product test data
without properly accounting for whether the territorial conditions in Japan and the rest of the world
were similar within the meaning of Article 2.3. The Panel effectively treated evidence of actual
contamination of samples within tolerance levels as being decisive of whether "similar conditions"
prevail between Members within the meaning of Article 2.3. As noted earlier, the Panel did not account
for the different degrees of potential contamination or reconcile its conclusions with territorial
conditions that the Panel suggested could differently affect the potential for contamination .279
Importantly, the Panel neither explained how contamination within certain quantitative levels would
be determinative of "similar" potential for contamination280, nor whether the measurement of product
contamination within those limits would fully capture the territorial dimensions of the different
potential for contamination between the territories of different Members.281 For these reasons, we find
that the Panel failed to account for relevant territorial conditions and therefore erred in its application
of the first sentence of Article 2.3.
Our finding of error as to the Panel's application of Article 2.3 concerns its legal assessment of
the similarity of the relevant conditions it had identified. We do not address in this appeal whether
evidence before the Panel could, under an analysis properly accounting for differences in relevant
territorial conditions, support a conclusion that the potential for contamination in Japanese and
non-Japanese food products is sufficiently similar or dissimilar for purposes of applying the
requirements of Article 2.3.
5.2.4 Conclusion
Under the first sentence of Article 2.3 of the SPS Agreement, a complainant must show that a
measure arbitrarily or unjustifiably discriminates between Members where identical or similar
conditions prevail, including between their own territory and that of other Members. Article 2.3
therefore requires demonstrating as a threshold matter that "identical or similar conditions prevail"
between Members. While the analysis under Article 2.3 may include consideration of conditions that
can be characterized as being present in the products from different Members, a proper interpretation
of Article 2.3 includes consideration of other relevant conditions, such as territorial conditions, to the
extent that they have the potential to affect the products at issue. The analysis under Article 2.3 thus
entails consideration of all relevant conditions in different Members, including territorial conditions
that may not yet have manifested in products but are relevant in light of the regulatory objective and
specific SPS risks at issue. We find that the Panel erred in its interpretation of Article 2.3 when it
concluded that this provision permits consideration of the "risk present in products in international

278 See e.g. Panel Report, para. 7.186.
279 Specifically, despite suggestions that specific releases such as those from the FDNPP accident could
represent an incremental and territorially concentrated addition to prior global contamination, the Panel appears
to have assimilated the leaks and releases of radionuclides at the time of the FDNPP accident and thereafter as
part of an undifferentiated global contamination due to dispersion of radionuclides over certain time periods in its
actual comparison of the relevant conditions.
280 We recall in this regard our finding with respect to the qualitative aspects of Korea's ALOP that were
identified by the Panel under Article 5.6. Inasmuch as the ALOP is an expression of the regulatory objective
pursued by a Member under the SPS Agreement, its proper characterization may also inform the nature of the
relevant "conditions" that must be accounted for under Article 2.3. As the ALOP identified by the Panel in this
dispute appeared to comprise multiple elements, the overall significance of purely quantitative thresholds in that
context may also have informed the nature of the comparison to be carried out under Article 2.3.
281 We recall our view that, while evidence concerning radionuclide concentration levels in food may be
relevant to whether similar conditions prevail between Members, an Article 2.3 analysis includes consideration of
other relevant conditions, such as territorial conditions, to the extent they have the potential to affect the
products at issue. (See para. 5.64. above)

trade as the relevant condition" because we understand the Panel to have concluded that the scope
of relevant "conditions" under Article 2.3 may be exclusively limited to "the risk present in products".
In its application of Article 2.3, the Panel effectively relied o n actual contamination levels in
food without reconciling its findings as to other pertinent territorial conditions affecting the potential
for contamination of food. Such findings include the Panel's recognition of greater potential for
contamination near the source and its indications that specific release events could result in a localized
and incremental increase in the potential for contamination of food. The Panel's findings under
Article 2.3 on the sole basis of actual measurement levels in product samples ultimately fail to account
for the potential for contamination in light of relevant conditions prevailing in the territories of different
Members.
We therefore find that the Panel erred in its interpretation and application of Article 2.3 of the
SPS Agreement in finding that similar conditions prevail between Japan and other Members.
Consequently, we reverse the Panel's findings of inconsistency with Article 2.3 with respect to: (i) the
adoption of the blanket import ban (except for the ban on Pacif ic cod from Fukushima and Ibaraki)
and the 2013 additional testing requirements; and (ii) the maintenance of all of Korea's measures. In
light of the reversal of the Panel's findings regarding the existence of "similar conditions" within the
meaning of Art icle 2.3, it is not necessary to address Korea's additional claims of error regarding
arbitrary or unjustifiable discrimination, and whether Korea's measures constitute disguised
restrictions on international trade.
5.3 Article 5.7 of the SPS Agreement
5.3.1 Introduction
5.94. Korea appeals the Panel's finding that its measures do not fulfil the requirements of Article 5.7
of the SPS Agreement.282 First, Korea claims that the Panel was not authorized to make findings under
Article 5.7 and thus erred under Articles 6.2, 7, and 11 of the DSU in making findings under that
provision.283 Second, Korea claims that the Panel made several errors in its interpretation and
application of Article 5.7 in finding that Korea's measures do not meet the requirements of this
provision. In particular, Korea claims that the Panel erred in allocating the burden of proof under
Article 5.7 to Korea. 284 Korea also claims that the Panel erred in finding that: (i) relevant scientific
evidence was "not i nsufficient" with respect to the product -specific import bans, the blanket import
ban, and the 2013 additional testing requirements 285 ; (ii) the blanket import ban and the
2013 additional testing requirements were not adopted on the basis of available pertin ent
information286; and (iii) Korea did not review its measures within a reasonable period of time.287 Korea
requests us to reverse the Panel's finding that its measures do not fulfil the requirements of
Article 5.7.288 By contrast, Japan requests us to uphold the Panel finding at issue.289
5.95. In this section, we begin by summarizing the Panel's findings under Article 5.7 of the
SPS Agreement. Then, we address Korea's claim that the Panel erred under Articles 6.2, 7, and 11 of
the DSU in making findings as to the consistency of Korea's measures with the requirements of
Article 5.7. Finally, we turn to Korea's claims that the Panel erred in its interpretation and application

282 Korea's appellant's submission, para. 387.b-g.
283 Korea's appellant's submission, paras. 53-54 and 58-59.
284 Korea's appellant's submission, para. 83.
285 Korea's appellant's submission, paras. 91 and 120.
286 Korea's appellant's submission, paras. 133-139, 144-152, and 154. Korea also claims that the Panel
failed to comply with its duty under Article 11 of the DSU by engaging in internally inconsistent reasoning in
finding that the 2011 additional testing requirements and the product-specific import bans, but not the blanket
import ban and the 2013 additional testing requirements, had been adopted on the basis of available pertinent
information. (Korea's appellant's submission, paras. 128 and 153-154)
287 Korea's appellant's submission, paras. 155 and 168-169.
288 Korea's appellant's submission, para. 387.b-g (referring to Panel Report, paras. 7.75-7.112 and 8.1).
As a consequence, Korea also requests us to reverse the Panel's findings under Articles 2.3 and 5.6 of the
SPS Agreement. Korea refers to Panel Report, paras. 7.321-7.322, 7.349-7.350, 7.355, 7.359-7.360,
and 8.3.a-b (in relation to Article 2.3 of the SPS Agreement) and paras. 7.251-7.256 and 8.2.b-e (in relation to
Article 5.6 of the SPS Agreement). (Korea's appellant's submission, para. 387.b)
289 Japan's appellee's submission, para. 925.

of Article 5.7 and under Article 11 of the DSU in finding that Korea's measures do not meet the
requirements of this provision.
5.3.2 The Panel's findings
5.96. Before the Panel, Japan raised claims of inconsistency under Articles 2.3, 5.6, 7, and 8 of the
SPS Agreement as well as under paragraphs 1 and 3 of Annex B and paragraphs 1(a), 1(c), 1(e),
and 1(g) of Annex C to the SPS Agreement.290 Before addressing Japan's claims, the Panel noted
Korea's argument that "its measures were adopted provisionally pursuant to Article 5.7 of the
SPS Agreement" and that "this affects the Panel's analysis of the substantive elements of
Japan's claims under other provisions of the SPS Agreement."291 To Korea, Article 5.7 provides
"context" for the interpretation of every provision of the SPS Agreement.292 The Panel therefore
decided to assess first whether Korea's measures fulfil the requirements of Article 5.7. If necessary,
the Panel would then turn to the question of how that might affect its analysis of Japan's claims.293
5.97. At the outset of its analysis under Article 5.7, the Panel noted that Korea had asserted "several
factual premises underlying its arguments – most importantly that there was insufficient scientific
evidence to conduct an objective assessment of the risk" arising from the consumption of certain food
products from Japan. 294 The Panel allocated the burden of proof to Korea under Article 5.7.295 With
this consideration in mind, the Panel turned to assess Korea's measures in light of each of the four
requirements set out in Article 5.7, namely, the requirements that: (i) the relevant scientific evidence
be insufficient to conduct a risk assessment; (ii) the provisional measure be adopted on the basis of
available pertinent information; (iii) the Member adopting the provisional measure seek to obtain the
additional information necessary for a more objective assessment of risk; and (iv) the measure be
reviewed within a reasonable period of time.296
5.98. The Panel first assessed whether the "relevant scientific evidence" was "insufficient" when Korea
adopted each of its measures. With respect to the 2011 additional testing requirements, the Panel
observed that they had been adopted at a time when the regulators were uncertain about the extent
of the FDNPP accident and the types and amounts of radionuclides that had been released. The Panel
further observed that in March 2011 Japan had also adopted measures on an emergency basis and in
the absence of a risk assessment. The Panel therefore found that there was insufficient scientific
evidence when Korea adopted the 2011 additional testing requirements.297
5.99. By contrast, the Panel found that scientific evidence was not insufficient in 2012 and 2013 when
Korea adopted the product -specific import bans, the blanket import ban, and the 2013 additional
testing requirements.298 The Panel reached this conclusion after an analysis of the factors that Korea
claimed affected the sufficiency of the relevant scientific evidence.299 In particular, the Panel observed
that the blanket import ban and the 2013 additional testing requirements had been adopted in
response to the disclosure of leaks at the FDNPP. 300 The Panel took the view that, alth ough specific
amounts of radioactive materials released into the ocean following those leaks could not be tied to
specific dates, some estimates were publicly available.301 Moreover, the Panel addressed the relevance
of: (i) additional leaks or an uncertainty about the amounts and share of radionuclides; (ii) uncertainty
about the amounts of radionuclides remaining in the reactor; (iii) uncertainty about environmental
contamination levels in seawater, sediment, soil, and air; (iv) if there was a significant n ew leak;
(v) the potential presence of caesium -rich microparticles in soil; (vi) radionuclide deposits in river
catchments, marine estuaries, and coastal areas; and (vii) the ratio between caesium and other
radionuclides. With respect to these elements, th e Panel relied on the experts' consensus that "the
best way to know what is in food consumed is by testing it "302 and that information about these

290 Panel Report, para. 3.1.
292 Panel Report, para. 7.70 (referring to Korea's response to Panel question No. 108).
293 Panel Report, paras. 7.67 and 7.111-7.112.
294 Panel Report, para. 7.75.
295 Panel Report, para. 7.75.
296 Panel Report, para. 7.76.
297 Panel Report, paras. 7.84 and 7.108.
298 Panel Report, paras. 7.96, 7.108, and 7.111.
299 Panel Report, paras. 7.80-7.81 and 7.85-7.95.
300 Panel Report, para. 7.87.
301 Panel Report, para. 7.91.
302 Panel Report, para. 7.92.

elements is not critical to an assessment of the risk to humans from consumption of food containing
radionuclides.303
5.100. The Panel then assessed whether Korea's measures had been adopted "on the basis of
available pertinent information". With respect to the 2011 additional testing requirements and the
product-specific import bans, the Panel recalled that the se measures had been adopted shortly after
the FDNPP accident and closely mirrored Japan's own measures. Therefore, the Panel found that they
had been adopted on the basis of available pertinent information.304
5.101. The Panel, however, found that Korea had not b ased the blanket import ban and the
2013 additional testing requirements on available pertinent information. 305 In its analysis leading up
to this finding, the Panel observed that Korea had listed various kinds of information, including the
Codex Standard, claiming that this information served as the basis for its measures.306 The Panel took
the view that a mere listing of documents is not enough to show that a measure was adopted on the
basis of available pertinent information. The Panel further considered the text of the measures and
the contemporaneous "Q&A on Radioactivity Safety Management of Fishery Products Imported from
Japan", observing that the latter contained a reference to the Codex Standard. 307 The Panel thus
proceeded to assess the relevance of the Codex Standard, but ultimately could not conclude that the
Codex Standard had served as a basis for the measures at issue.308
5.102. Finally, the Panel assessed whether Korea had sought additional information and whether
Korea had reviewed its measures "within a r easonable period of time". In this context, the Panel
reviewed a number of activities undertaken by Korea since 2011. 309 Based on the evidence on the
record, the Panel found that Korea had sought additional information from Japan and had regularly
accessed the publicly available data.310 The Panel, however, observed that, whereas, in 2014, Korea
had announced the commencement of a review of its 2013 measures, that review had not been
concluded. The Panel pointed to the lack of evidence on the record of specific activity undertaken by
the Korean Government related to this review since September 2014. The Panel also observed that
Korea had provided no legitimate justification for the suspension of this review. Therefore, the Panel
found that Korea did not review its measures within a reasonable period of time.311
5.103. In conclusion, the Panel found that Korea had failed to: (i) establish that there was insufficient
scientific evidence with respect to the product -specific import bans, the blanket import ban, or the
2013 additional testing requirements; (ii) demonstrate that it had based the blanket import ban or
the 2013 additional testing requirements on available pertinent information; and (iii) review any of its
measures within a reasonable period of time. Consequently, the Panel found that none of Korea's
measures fulfils all of the requirements of Article 5.7.312
5.3.3 Whether the Panel erred under Articles 6.2, 7, and 11 of the DSU in making findings
under Article 5.7 of the SPS Agreement
5.104. Korea's first claim on appeal is that Article 5.7 of the SPS Agreement was outside the Panel's
terms of reference and that the Panel erred under Articles 6.2, 7, and 11 of the DSU in making findings

303 Panel Report, paras. 7.92-7.94. The Panel also addressed the uncertainty "with respect to the potential
for future nuclear accidents at the FDNPP or elsewhere", but considered that "this uncertainty does not relate to
the science necessary to assess the risks associated with the consumption of contaminated food." (Panel Report,
304 Panel Report, para. 7.98.
305 Panel Report, paras. 7.109 and 7.111.
306 Panel Report, para. 7.99.
307 Panel Report, para. 7.100 (referring to Korea Office for Government Policy Coordination, Ministry of
Food and Drug Safety, Ministry of Oceans and Fisheries, and Nuclear Safety and Security Commission, "Q&A on
Radioactivity Safety Management of Fishery Products Imported from Japan" (September 2013) (Panel Exhibit
JPN-4.b)).
308 Panel Report, para. 7.100.
309 Panel Report, para. 7.105.
311 Panel Report, paras. 7.107 and 7.110.
312 Panel Report, paras. 7.111 and 8.1.

under Article 5.7.313 Japan responds that the Panel correctly addressed Article 5.7 by recognizing that
Korea had invoked this provision as part of its defence.314
5.105. Article 5.7 of the SPS Agreement provides:
In cases where relevant scientific evidence is insufficient, a Member may provisionally
adopt sanitary or phytosanitary measures on the basis of available pertinent information,
including that from the relevant international organizations as well as from sanitary or
phytosanitary measures applied by other Members. In such circumstances, Members shall
seek to obtain the additional information necessar y for a more objective assessment of
risk and review the sanitary or phytosanitary measure accordingly within a reasonable
period of time.
5.106. Pursuant to this provision, a Member may provisionally adopt an SPS measure where relevant
scientific evidence is insufficient. The Appellate Body has said that the relevant scientific evidence will
be considered insufficient for purposes of Article 5.7 "if the body of available scientific evidence does
not allow, in quantitative or qualitative terms, the performance of an adequate assessment of risks as
required under Article 5.1 and as defined in Annex A to the SPS Agreement".315 The Appellate Body
has further said that under Article 5.1, "WTO Members are allowed to base SPS measures on divergent
or minority views provided they are from a respected and qualified source."316 It may thus be possible
to perform a risk assessment that meets the requirements of Article 5.1 "even when there are
divergent views in the scientific community in relation to a particular risk". 317 By contrast, Article 5.7
is concerned with "situations where deficiencies in the body of scientific evidence do not allow a
WTO Member to arrive at a sufficiently objective conclusion in relation to risk".318 The Appellate Body
has also considered that "Article 5.7 operates as a qualified exemption from the obligation under
Article 2.2 [of the SPS Agreement] not to maintain SPS measures without sufficient scientific
evidence."319 When such a situation of insufficiency of relevant scientific evidence arises, a Member
may adopt a provisional SPS measure on the basis of available pertinent information, but it must then
seek to obtain the additional information necessary for a more objective risk assessment and review
the provisional measure within a reasonable period of time.
5.107. Accordingly, there are four cumulative requirements in Article 5.7320 : (i) the provisional
measure is adopted with respect to a situation where "relevant scientific evidence is insufficient" ;
(ii) the provisional measure is adopted "on the basis of avai lable pertinent information" 321; (iii) the
Member adopting the measure "seek[s] to obtain the additional information necessary for a more
objective assessment of risk" ; and (iv) the Member adopting the measure review s that measure
"accordingly within a reaso nable period of time". 322 The latter two requirements "highlight the
provisional nature of measures adopted pursuant to Article 5.7".323

313 Korea's appellant's submission, paras. 53 and 59.
314 Japan's appellee's submission, paras. 665 and 670.
315 Appellate Body Report, Japan – Apples, para. 179. See also Appellate Body Reports, Australia – Apples,
316 Appellate Body Reports, Canada – Continued Suspension, para. 677; US – Continued Suspension,
317 Appellate Body Reports, Canada – Continued Suspension, para. 677; US – Continued Suspension,
para. 677.
318 Appellate Body Reports, Canada – Continued Suspension, para. 677; US – Continued Suspension,
para. 677.
319 Appellate Body Report, Japan – Agricultural Products II, para. 80. (emphasis original) See also Panel
Reports, EC – Approval and Marketing of Biotech Products, paras. 7.2969, 7.2974, and 7.2976; US – Animals,
320 Appellate Body Reports, Japan – Agricultural Products II, para. 89; Japan – Apples, para. 176.
321 The Appellate Body has emphasized that "there must be a rational and objective relationship between
the information concerning a certain risk and a Member's provisional SPS measure." (Appellate Body Reports,
322 The Appellate Body has held that "'a reasonable period of time' has to be established on a case-by-
case basis and depends on the specific circumstances of each case, including the difficulty of obtaining the
additional information necessary for the review and the characteristics of the provisional SPS measure."
(Appellate Body Report, Japan – Agricultural Products II, para. 93 (emphasis original))
323 Appellate Body Report, Japan – Apples, fn 318 to para. 176. (emphasis original)

5.108. In EC – Hormones, the Appellate Body recognized that Article 5.7 of the SPS Agreement
reflects the precautionary principle. The Appellate Body emphasized:
[A] panel charged with determining, for instance, whether "sufficient scientific evidence"
exists to warrant the mai ntenance by a Member of a particular SPS measure may, of
course, and should, bear in mind that responsible, representative governments commonly
act from perspectives of prudence and precaution where risks of irreversible, e.g. life -
terminating, damage to human health are concerned.324
5.109. As recalled above, the Panel assessed the consistency of Korea's measures with each of the
four cumulative requirements set out in Article 5.7 and found that none of Korea's measures fulfils all
of these requirements.325
5.110. Korea, however, contends that Article 5.7 was outside the Panel's terms of reference because
Japan had not made a claim of inconsistency under this provision in its panel request. 326 In addition,
Korea submits that it did not argue before the Panel that, if its meas ures satisfied the requirements
of Article 5.7, they could not be found to be inconsistent with Articles 2.3 and 5.6 of the
SPS Agreement or would be excluded from the scope of these provisions. 327 Korea submits that it
referred to Article 5.7 as a "contextual argument under Articles 2.3 and 5.6".328 Therefore, according
to Korea, its own reference to Article 5.7 neither required nor authorized the Panel to make an
assessment of the consistency of Korea's measures under that provision.329 Instead, the Panel should
have explored the guidance provided by Article 5.7 in relation to the relevance of the insufficiency of
scientific evidence in determining: (i) the similarity of conditions prevailing in Japan and the rest of
the world under Article 2.3; and (ii) whether Japan's proposed alternative measure achieves Korea's
ALOP and is technically and economically feasible under Article 5.6.330 In these circumstances, Korea
submits that, in making findings under Article 5.7, the Panel acted inconsistently not only with
Articles 6.2 and 7 of the DSU, but also with Article 11 of the DSU , because the Panel assessed a
provision that was not part of the matter before it.331
5.111. Japan argues that the Panel was correct to make findings in relation to Article 5.7 given that
Korea had inv oked that provision as part of its arguments in defence. 332 Japan contends that,
"[w]hatever claims and arguments are raised in defense, Article 11 of the DSU requires that they be
properly addressed by a panel as part of its 'objective assessment of the matter', which includes 'the
applicability of and conformity with the relevant covered agreements'." 333 Thus, Japan contends that
the Panel acted consistently with its duties under Article 11 of the DSU in assessing Korea's arguments
under Article 5.7 of the SPS Agreement. Japan adds that the Panel was required to make an objective
assessment of Korea's arguments under Article 5.7 even if that provision was not included in
Japan's panel request.334
5.112. Korea's claim of error on appeal requires us to examine whether th e Panel failed to comply
with Articles 7 and 11 of the DSU in making findings as to the consistency of Korea's measures with
the requirements of Article 5.7 of the SPS Agreement.335

324 Appellate Body Report, EC – Hormones, para. 124. See also Appellate Body Reports, Canada –
325 Panel Report, paras. 7.111 and 8.1.
326 Korea's appellant's submission, paras. 54 and 59.
327 Korea's appellant's submission, para. 57.
328 Korea's appellant's submission, para. 47. See also ibid., para. 55. At the oral hearing, Korea
emphasized that it had not raised Article 5.7 before the Panel as a defence, but as context for the assessment of
Japan's claims under other provisions of the SPS Agreement. (Korea's response to questioning at the oral
hearing)
329 Korea's appellant's submission, paras. 54-55 and 58.
330 Korea's appellant's submission, para. 55.
331 Korea's appellant's submission, para. 59 (referring to Appellate Body Report, Chile – Price Band
System, para. 173).
332 Japan's appellee's submission, para. 665.
333 Japan's appellee's submission, para. 668 (quoting DSU, Article 11).
334 Japan's appellee's submission, para. 670.
335 We note that Korea also claims that the Panel acted inconsistently with Article 6.2 of the DSU.
Article 6.2 sets forth the requirements applicable to a request for the establishment of a panel. Korea does not
allege that Japan's panel request fails to meet the requirements set out in that provision. We therefore find that
the claim of error raised by Korea on appeal does not concern Article 6.2 of the DSU.

5.113. Articles 7 and 11 of the DSU concern the terms of reference and the functio n of panels,
respectively. The Appellate Body has said that a panel request defines the scope of the dispute.336 The
measures and the claims identified in the panel request constitute the "matter referred to the DSB",
which serves as a basis for the panel's terms of reference under Article 7.1 of the DSU. 337 Under
Article 7.1, unless the parties agree otherwise, panels shall have the following terms of reference:
"[t]o examine, in the light of the relevant provisions in (name of the covered agreement(s) cited b y
the parties to the dispute), the matter referred to the DSB by (name of party) in document ... and to
make such findings as will assist the DSB in making the recommendations or in giving the rulings
provided for in that/those agreement(s)". Article 7.2 of the DSU specifies that panels shall address
the relevant provisions in any covered agreement or agreements cited by the parties to the dispute.338
Like Article 7.1, Article 11 of the DSU also refers to the "matter" before a panel. Pursuant to Article 11,
a panel is required to make an objective assessment of the matter before it, including an objective
assessment of the facts of the case and the applicability of and conformity with the relevant covered
agreements.
5.114. A panel's mandate, as reflected in Articles 7.1 and 11 of the DSU, is to examine the "matter"
before it in light of the relevant provisions of the covered agreements cited by the parties and to make
such findings as will assist the DSB in making the recommendations or in giving the ruling s provided
for in the covered agreements.339 Parties may, for example, refer to a WTO provision merely to serve
as relevant context to the interpretation of other WTO provisions identified in the "matter" before a
panel. In such a case, while Article 7.2 of the DSU requires panels to "address the relevant provisions
in any covered agreement … cited by the parties", a panel's mandate does not extend to making
findings as to the consistency of the measure at issue with a provision cited as mere interpretative
context.
5.115. It is uncontested that Japan did not make a claim of inconsistency under Article 5.7 of the
SPS Agreement in its panel request. 340 Instead, it was Korea's rebuttal arguments before the Panel
that prompted the Panel to examine Korea's measures under Article 5.7.341 Thus, the issue before us
is whether, in light of Korea's references to Article 5.7, the Panel was correct to make findings as to
the consistency of Korea's measures with each of the requirements of Article 5.7. Accordingly, we
review the Panel record to assess how Korea used Article 5.7 in the Panel proceedings.
5.116. In its first written submission to the Panel, Korea relied on the provisional nature of its
measures under Article 5.7 as factual background information to the dispute. 342 Throughout the
remaining stages of the Panel proceedings, Korea asserted that there is insufficient relevant scientific
evidence to conduct an adequate risk assessment of consuming certain Japanese food products

336 Appellate Body Reports, Argentina – Import Measures, para. 5.11. See also Appellate Body Reports,
US – Carbon Steel, para. 124; US – Countervailing Measures (China), para. 4.6; US – Countervailing and
337 Appellate Body Reports, Guatemala – Cement I, paras. 72-73; US – Carbon Steel, para. 125;
Australia – Apples, para. 416; China – Raw Materials, para. 219. See also European Union's third participant's
338 The Appellate Body has said that "panels are required to address issues that are put before them by
the parties to a dispute." The Appellate Body has also stated that "panels cannot simply ignore issues which go to
the root of … their authority to deal with and dispose of matters"; rather, "panels must deal with such issues – if
necessary, on their own motion – in order to satisfy themselves that they have authority to proceed."
(Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 36) See also Appellate Body Report,
EC and certain member States – Large Civil Aircraft, para. 791; Brazil's third participant's submission, para. 3.
339 Panels are called upon to examine the claims of inconsistency against the challenged measures raised
by the complaining party that form part of the matter as well as the defences, including justification for a
responding party's action, submitted by the responding party that are relevant for the assessment of such
claims.
340 Korea's appellant's submission, para. 59; Japan's appellee's submission, para. 670. See also Japan's
panel request. We note that Japan included Article 5.7 of the SPS Agreement in its Request for Consultations.
(Request for Consultations by Japan, WT/DS495/1, para. 15(b))
341 Panel Report, para. 7.67. The Panel's "findings and recommendation(s)" confirm that the Panel did not
treat Article 5.7 as part of the claims made by Japan. The Panel first recalled its finding that "the measures do
not fulfil the four requirements in Article 5.7" and then summarized its findings "on Japan's specific requests".
(Panel Report, para. 8.1) Accordingly, in setting out the infringements giving rise to a presumption of nullification
or impairment under Article 3.8 of the DSU, the Panel listed Articles 5.6, 2.3, and 7 as well as Annexes B(1) and
B(3), but made no mention of Article 5.7. (Panel Report, para. 8.6) See also the European Union's third
participant's submission, para. 41.
342 Korea's first written submission to the Panel, paras. 83-86 under Heading II entitled "Factual
background to the dispute".

contaminated with radionuclides stemming from the FDNPP and that this is relevant to the assessment
of Japan's claims under other provisions of the SPS Agreement.343 Specifically, Korea argued that the
available scientific evidence is insufficient to establish that Japan's proposed alternative measure under
Article 5.6 of the SPS Agreement is capable of achieving Korea's ALOP.344 Korea also argued that, for
purposes of Japan's claim under Article 2.3 of the SPS Agreement, the conditions prevailing in Japan
cannot be said to be similar or identical to co nditions prevailing in Korea or in other countries due to
the insufficiency of scientific evidence. 345 In this respect, Korea stated that it was not arguing that
Article 5.7 justifies discrimination. Rather, Korea contended that "the insufficiency of the rel evant
scientific evidence concerning radionuclide contamination in Japan is an important factor that makes
the conditions prevailing in Japan different to conditions prevailing in Korea or in third countries." 346
Moreover, Korea argued that Article 5.7 provides relevant context for the interpretation of Articles 2.3,
5.6, 7, and 8 and Annexes B and C to the SPS Agreement.347 In its closing statement at the second
Panel meeting, Korea explicitly stated that the Panel's terms of reference "d[id] not permit [the Panel]
to make any findings that Korea's SPS measures depart from the requirements of Article 5.7".348
5.117. The Panel record shows us that Korea did not allege before the Panel that its measures would
be justified or exempted from the obligations contained in Articles 2.3, 5.6, 7, and 8 and Annexes B
and C to the SPS Agreement, by virtue of their alleged provisional nature under Article 5.7 of the
SPS Agreement. Korea also did not argue that there are different sets of obligations for provisional
measures and for definitive measures under Articles 2.3 and 5.6. Rather, Korea's main argument was
that a particular situation – namely, the alleged insufficiency of scientific evidence to conduct an
assessment of the risk associated with the consumption of certain food products from Japan – is
relevant to the assessment of Japan's claims under Articles 2.3 and 5.6. Given the nature of Korea's
reliance on Article 5.7, the Panel was called upon to explore the relevance of the alleged insufficiency
of relevant scientific evidence in determining the similarity of conditions prevailing in Japan and other
Members under Article 2.3 and whether Japan's proposed alternative measure achieves Korea's ALOP
and is technically and economically feasible under Article 5.6.349 The Panel was also called upon to
explore whether Article 5.7 provides relevant context to the interpretation of certain provisions of the
SPS Agreement at issue in this dispute.
5.118. As noted above, Japan did not include a claim under Article 5.7 in its panel request. For its
part, Korea did not allege that its measures would be justified or exempted from the obligations
contained in Articles 2.3, 5.6, 7, and 8 and Annexes B and C by virtue of their provisional nature under
Article 5.7. Rather, Korea relied on Article 5.7 to serve as relevant context to the interpretation of
certain other provisions of the SPS Agreement, which were the subject of Japan's claims of
inconsistency. Korea also referred to Article 5.7 when relying on the alleged insufficiency of evidence
in this case as a relevant factor to the Panel's assessment of Japan's claims of inconsistency, in
particular those under Articles 2.3 and 5.6 of the SPS Agreement. Therefore, by making findings as to
the consistency of Korea's measures with Article 5.7, the Panel exceeded its mandate, thereby acting
inconsistently with Articles 7.1 and 11 of the DSU. For this reason, we declare the Panel's find ings
under Article 5.7 of the SPS Agreement moot and of no legal effect.

343 See e.g. Korea's second written submission to the Panel, paras. 174 and 298; opening statement at
the first Panel meeting, paras. 40-42; response to Panel question No. 104, para. 170.
344 Korea's second written submission to the Panel, para. 298. See also Korea's opening statement at the
345 Korea's second written submission to the Panel, paras. 172-176. See also Korea's opening statement
at the first Panel meeting, para. 53; response to Panel question No. 107, paras. 177-179.
346 Korea's response to Panel question No. 107, para. 180. To Korea, given that prevailing conditions are
not identical or similar, "there would be no basis to examine, let alone find, discrimination under Article 2.3."
(Ibid.)
347 Korea's response to Panel question No. 108, para. 191.
348 Korea's closing statement at the second Panel meeting, para. 3.
349 Despite making findings under Article 5.7, the Panel appears to have acknowledged as much. After
making findings under Article 5.7, the Panel indeed referred to the relevance of "the nature, scope, and quality of
scientific evidence … for determining whether the constituent elements of Japan's claims under Articles 2.3, 5.6,
and 8 (Annex C) have been demonstrated" and stated that it would "carefully consider both parties' arguments
on whether the scientific evidence adduced is sufficient to prove Japan's claims". (Panel Report, para. 7.112)

5.3.4 Whether the Panel erred in its interpretation and application of Article 5.7 of the
SPS Agreement and under Article 11 of the DSU in finding that Korea's measures do not
meet the requirements of Article 5.7 of the SPS Agreement
5.119. Korea claims on appeal that the Panel made several errors in its interpretation and application
of Article 5.7 of the SPS Agreement in finding that Korea's measures do not meet the requirements of
this provision. In particular, Korea claims that the Panel erroneously allocated the burden of proof
under Article 5.7 to Korea.350 Korea also claims that the Panel erred in finding that Korea's measures
did not meet the requirements in Article 5.7 that scientific evidenc e be insufficient, provisional
SPS measures be adopted on the basis of pertinent information, and provisional SPS measures be
reviewed within a reasonable period of time.351 Finally, Korea claims that the Panel failed to make an
objective assessment of the matter under Article 11 of the DSU by engaging in internally inconsistent
reasoning.352 Japan requests us to reject Korea's claims of error on appeal.353
5.120. Having declared the Panel's findings under Article 5.7 of the SPS Agreement moot and of no
legal effect, it is not necessary for us to consider further Korea's other claims of error in relation to
those same Panel findings.
5.3.5 Conclusion
5.121. A panel's mandate, as reflected in Articles 7.1 and 11 of the DSU, is to examine the "matter"
before it in light of the relevant provisions of the covered agreements cited by the parties and to make
such findings as will assist the DSB in making the recommendations or in giving the ruling s provided
for in the covered agreements. Japan did not make a claim under Article 5.7 of the SPS Agreement in
its panel request. While Korea raised arguments in relation to Article 5.7 as part of its rebuttal
arguments, Korea did not allege that its measures would be justified or exempted from the obligations
contained in Articles 2.3, 5.6, 7, and 8 and Annexes B and C to the SPS Agreement by virtue of their
provisional nature under Article 5.7. Rather, Korea relied on Article 5.7 to serve as relevant context
to the interpretation of certain other provisions of the S PS Agreement, which were the subject of
Japan's claims of inconsistency. Korea also referred to Article 5.7 when relying on the alleged
insufficiency of evidence in this case as a relevant factor to the Panel's assessment of Japan's claims
of inconsistency , in particular those under Articles 2.3 and 5.6. By making findings as to the
consistency of Korea's measures with Article 5.7, the Panel exceeded its mandate, thereby acting
inconsistently with Articles 7.1 and 11 of the DSU.
5.122. For this reason, we declare the Panel's findings under Article 5.7 of the SPS Agreement moot
and of no legal effect. Consequently, it is not necessary for us to consider further Korea's other claims
of error in relation to those same Panel findings under Article 5.7.
5.4 The Panel's treatment of evidence
Both Korea and Japan claim on appeal that the Panel erred in its treatment of evidence when
assessing the consistency of Korea's measures with Articles 2.3 and 5.6 of the SPS Agreement. Korea
claims that the Panel erred under Article 11 of the DSU by considering evidence that either was not
available to the Korean authorities at the time of the adoption of the challenged measures or did not
exist at the time of the Panel's establishment. Korea contends that the Panel relied on such eviden ce
to find that the alternative measure proposed by Japan would meet Korea's ALOP under Article 5.6
and that similar conditions existed under Article 2.3. Therefore, Korea requests us to reverse the
Panel's findings concerning the use of such evidence as well as the ultimate findings of inconsistency
under Articles 2.3 and 5.6.354

350 Korea's appellant's submission, paras. 62 and 83.
351 Korea's appellant's submission, paras. 91, 120, 128, 154-155, and 169.
352 Korea's appellant's submission, para. 153.
353 Japan submits that Korea bore the burden of proof under Article 5.7 of the SPS Agreement and that
the Panel correctly examined each requirement under Article 5.7. (Japan's appellee's submission, paras. 677,
687-790, and 797-817) In addition, Japan disagrees with Korea that the Panel engaged in internally inconsistent
reasoning and failed to comply with its duties under Article 11 of the DSU. (Japan's appellee's submission,
paras. 791-796)
354 Korea's Notice of Appeal, paras. 11-12 and 14; appellant's submission, paras. 229 and 346 (referring
to Panel Report, paras. 7.5, 7.8, 7.134, 7.142, 7.207, 7.219, 7.226, 7.236, 7.245, 7.251-7.256, 7.307-7.308,
7.311, 7.315, 7.319, 7.321-7.322, 7.355, 7.360, 8.2.b-e, and 8.3.a-b).

In response, Japan requests us to reject Korea's claims of error on appeal. With regard to
evidence not available to the Korean authorities at the time of the adoption of the challenged measures,
Japan submits that the Panel did not err in relying on such evidence when assessing the maintenance
of the measures355, and did not rely on such evidence to reach conclusions as to the adoption of the
measures.356 Regarding evidence that post-dated the Panel's establishment, Japan contends that the
Panel was not permitted to exclude such evidence when assessing the maintenance of the challenged
measures, as Articles 2.3 and 5.6 impose continuing obligations. 357 Alternatively, Japan submits that
the Panel did not err in considering such evidence to confirm Japan's prima facie case.358
In its Other Appeal, Japan claims that the Panel erred in the interpretation and application of
Articles 3.3-3.4, 3.7, and 11 of the DSU, as well as the application of A rticles 2.3 and 5.6 of the
SPS Agreement, by disregarding timely submitted evidence relating to the situation after the Panel's
establishment in its assessment of Japan's claims that the challenged measures were maintained
inconsistently with Articles 2.3 and 5.6. Nonetheless, Japan considers that these errors do not vitiate
the Panel's ultimate findings under Articles 2.3 and 5.6, and requests us to uphold these findings. 359
If we consider that the Panel's error s in this regard do vitiate its ultimate findings under Articles 2.3
and 5.6, Japan requests us to complete the legal analysis and find that, based on all timely submitted
evidence, Korea's measures are maintained inconsistently with these provisions.360
By contrast, Korea requests us to reject Japan's claims of error on appeal. Korea submits that
the Panel was required to assess whether there was an inconsistency with the SPS Agreement as of
the date of the Panel's establishment. Korea further submits that the SPS Agreement and the DSU
precluded the Panel from considering evidence that post-dated the Panel's establishment.361
Korea's and Japan's claims of error on appeal concerning the Panel's treatment of evidence
relate to the Panel's application of Articles 2.3 and 5.6 of the SPS Agreement. We have found that the
Panel erred in its application of Article 5.6 with regard to Korea's ALOP. We have also found that the
Panel erred in its interpretation and application of Article 2.3 with regard to whether identical or similar
conditions prevail between Japan and other Members. Accordingly, we have reversed the Panel's
findings of inconsistency under Articles 2.3 and 5.6. 362 Given that the participants' claims of error in
relation to evidence concern Panel findings that have already b een reversed, we do not consider it
necessary to examine further these claims of error.
5.5 The Panel's expert selection
Korea appeals the Panel's decision to consult with two experts.363 Korea claims that the Panel
erred under Article 11 of the DSU by appointing these two experts in disregard of Korea's due process
rights. Korea contends that the Panel should have found that there was an objective basis to conclude
that these experts' independence or impartiality was likely to be affected or that there were justifiable
doubts about their independence or impartiality.364 Given that the Panel relied on its consultation with
these experts in its assessment under Articles 2.3, 5.6, and 5.7 of the SPS Agreement, Korea requests
us to reverse the Panel findings under these provisions.365

355 Japan's appellee's submission, paras. 615-616.
356 Japan's appellee's submission, paras. 620, 630-631, and 637.
357 Japan's appellee's submission, paras. 380-381.
358 Japan's appellee's submission, para. 382.
359 Japan's other appellant's submission, paras. 244 and 357.a-b.
360 Japan's Notice of Other Appeal, para. 3; other appellant's submission, paras. 245, 294, 356, and 357.c.
361 Korea's appellee's submission, paras. 9, 30, and 48. Korea also submits that the Panel's errors
concerning evidence warrant reversal of its ultimate findings under Articles 2.3 and 5.6 of the SPS Agreement,
and that the Appellate Body should decline to complete the legal analysis after reversing these Panel findings.
(Ibid., paras. 89 and 102)
362 See paras. 5.39. and 5.93. above.
363 Korea's appellant submission, para. 38; Panel Report, para. 1.28 and Annex D-2.
364 Korea's appellant's submission, para. 38 (referring to Appellate Body Reports, Canada – Continued
365 Korea's appellant's submission, paras. 39 and 387.a. Korea refers to Panel Report, paras. 7.96,
7.108-7.109, 7.111, 7.251-7.256, 7.321-7.322, 7.349-7.350, 7.355, 7.359-7.360, 8.1, 8.2.b-e, and 8.3.a-b.

By contrast, Japan requests us to reject Korea's challenge on appeal. Japan submits that the
Panel was rigorous in its expert selection process and that it observed Korea's due process rights. To
Japan, Korea has failed to demonstrate that the Panel erred under Article 11 of the DSU.366
Korea's claim of error at issue is connected with the Panel's application of Articles 2.3, 5.6,
and 5.7 of the SPS Agreement. The two experts at issue provided responses to the majority of the
questions posed b y the Panel, and the Panel relied on these responses in its assessment of the
consistency of Korea's measures with Articles 2.3, 5.6, and 5.7. 367 We have found above that the
Panel erred in its findings under Articles 2.3 and 5.6, and in making findings under Article 5.7. We
have reversed the Panel's findings of inconsistency under Articles 2.3 and 5.6, and declared the Panel's
findings under Article 5.7 moot and of no legal effect .368 Consequently, Korea's claim of error under
Article 11 of the DSU and request on appeal in relation to the Panel's expert selection concern Panel
findings that have been reversed or declared moot and of no legal effect . For this reason, we do not
consider it necessary to examine further Korea's claim that the Panel erred under Article 11 of the
DSU by appointing the two experts that Korea challenges on appeal.
5.6 Article 7 and Annex B to the SPS Agreement
Korea appeals the Panel's interpretation and application of Article 7 and Annex B(1) to the
SPS Agreement, as well as the Panel's interpretation and application of Article 7 and Annex B(3) to
the SPS Agreement. We examine these aspects of Korea's appeal in sections 5.6.1 and 5.6.2 below.
5.6.1 Annex B(1) to the SPS Agreement
5.6.1.1 Introduction
Korea appeals the Panel's finding that Annex B(1) to the SPS Agreement requires that the
publication of an SPS regulation "contain sufficient content that the [interested]369 Member will know
the conditions (including specific principles and methods) that apply to its goods".370 Korea claims that
the Panel erred in its interpretation of Annex B(1) by imposing additional obligations not included in
this provision.371 Korea also appeals several aspects of the Panel's application of Annex B(1) to the
measures at issue in this dispute. In particular, Korea claims that the Panel erred in finding that:
(i) the press release announcing the blanket import ban did not include the full product coverage of
the measure372; (ii) the press releases announcing the 2011 and 2013 additional testing requirements
did not include sufficient content to enable Japan to know the conditions that would be applied to its
goods373; and (iii) Korea did not show that interested Members would have known to look to certain
websites for information on each of the chall enged measures.374 In addition, Korea claims that the
Panel erred under Article 11 of the DSU by finding that the Panel could not know whether the web
addresses provided by Korea were available on the day Korea announced the measures at issue and
what content was available on that day.375 Korea requests us to reverse the relevant Panel findings at
issue.376 Japan, for its part, requests us to reject Korea's claims of error on appeal and uphold the
relevant findings by the Panel.377
Before examining Korea's claims of error on appeal, we summarize the relevant Panel findings.
We then set out our understanding of Annex B(1) to the SPS Agreement. Thereafter, we examine the

366 Japan's appellee's submission, paras. 31-32, 57-58, 65, 76, and 925.
367 Korea's appellant's submission, para. 39; Panel Report, paras. 1.32-1.33 and 1.35-1.36.
368 See paras. 5.39. , 5.93. , and 5.122. above.
369 The Panel appears to have inadvertently referred to "importing" Member. Given the Panel's reasoning
and how this expression was used in this sentence, we understand the Panel to have intended to refer to
"interested" Member instead.
371 Korea's appellant's submission, paras. 347, 358, and 363-364.
372 Korea's appellant's submission, paras. 366-367 (referring to Panel Report, paras. 7.483 and 7.487).
373 Korea's appellant's submission, paras. 368-369 (referring to Panel Report, paras. 7.492, 7.494, and
7.500-7.501).
374 Korea's appellant's submission, paras. 372-373 (referring to Panel Report, paras. 7.474, 7.476, 7.485,
and 7.497).
375 Korea's appellant's submission, para. 376 (referring to Panel Report, paras. 7.474, 7.485, and 7.497).
376 Korea's appellant's submission, paras. 364, 375, and 379 (referring to Panel Report,
paras. 7.461-7.464, 7.474-7.476, 7.483, 7.485-7.487, 7.492, 7.494, 7.496-7.502, and 8.5.a).
377 Japan's appellee's submission, paras. 821, 859, 869, 871, 892, and 925.

merits of Korea's claims of error on appeal that the Panel erred in its interpretation and application of
this provision. In the final step of our analysis, we address Korea's claim that the Panel acted
inconsistently with Article 11 of the DSU.
5.6.1.2 The Panel's findings
At the outset, the Panel found that Japan had established that Korea's measures at issue are
SPS regulations subject to Annex B(1) to the SPS Agreement.378 The Panel then recalled that, under
Annex B(1), Members are obliged to ensure that an adopted measure is published promptly in such a
manner as to enable interested Members to become ac quainted with it. The Panel noted that Japan
did not dispute the promptness of Korea's actions; rather, Japan questioned whether Korea's actions
to post press releases on certain websites were sufficient to fulfil the other elements in Annex B(1).379
The Panel noted that Annex B(1) refers to the term "regulation". The Panel contrasted this
term with the term "notice" in Annex B(5)(a) to the SPS Agreement, which refers to the publication
of a notice of a proposal to introduce a particular SPS regulation. The P anel considered that this
difference demonstrates that the publication requirements in the two provisions must be qualitatively
different and that, therefore, Annex B(1) requires publication of something more than an
announcement that the regulation exists . In addition, the Panel observed that Annex B(5)(c) and
Annex B(6)(b) require Members to provide copies of the (proposed) regulation itself, a requirement
that is absent from Annex B(1). To the Panel, this difference supported a conclusion that the obligation
under Annex B(1) is to publish the content of the SPS regulation; otherwise, the drafters would have
included a similar obligation, as those in Annex B(5)(c) and Annex B(6)(b), to provide a copy of the
(proposed) regulation itself separately. 380 The Pan el thus considered that the obligation under
Annex B(1) is to publish the content of the SPS regulation, and not an announcement of its existence
or a brief summary. To the Panel, this can be achieved by publishing the actual regulation "through a
formal legal instrument, such as in an official gazette, through decision, or by reproducing the content
of the regulation in a press release or on a webpage".381
The Panel also considered that Annex B(2) to the SPS Agreement provides relevant context
for the interpretation of Annex B(1) to the SPS Agreement. The Panel noted that Annex B(2) requires
Members to allow a reasonable interval between publication and entry into force of SPS regulations
"in order to allow time for producers in exporting Members, and particu larly in developing country
Members, to adapt their products and methods of production to the requirements of the importing
Member".382 To the Panel, producers in exporting Members cannot adapt their products and methods
to the requirements of the importing Member if they do not understand them in sufficient detail. The
Panel considered that the specific elements that will allow interested Members to become acquainted
with an SPS regulation may vary from regulation to regulation. That said, the Panel took the view that
some of the essential elements can be inferred from the substantive requirements for promulgating
SPS regulations found in the SPS Agreement, and from a proper interpretation of Annex B(1). In this
respect, the Panel stated that, in light of the goal of enabling Members to know what conditions apply
to their products and to give them time to adapt to the new requirements, "one would also expect
information on: the substantive and procedural requirements that an exporter must fulfil, the date on
which the regulation takes effect, the products affected by the SPS regulation, as well as, in the case
of regulations affecting specific Members or regions, the Members or regions the regulation applies
to."383
The Panel concluded that, in order to comply wi th the requirement in Annex B(1) to the
SPS Agreement, the publication must make the measures generally known or available through an
appropriate medium and contain sufficient content that the interested Member "will know the
conditions (including specific principles and methods) that apply to its goods".384
Turning to the product-specific import bans, the Panel found that the press releases
announcing those bans contain the content of the regulation, as they list the goods, the origin, and

378 Panel Report, para. 7.456.
379 Panel Report, para. 7.458.
380 Panel Report, para. 7.461.
381 Panel Report, para. 7.461.
382 Panel Report, para. 7.463 (quoting Annex B(2) to the SPS Agreement).
383 Panel Report, para. 7.463.
384 Panel Report, para. 7.464.

the applicable co nditions.385 With respect to the accessibility of these press releases on the web
address provided by Korea, the Panel found that it had "no way of knowing" whether that web address
was available on the day Korea announced the measures and what content was available on that day.
The Panel noted that Korea had not provided "an archived version of the website from the appropriate
time-period".386 In addition, the Panel considered that Korea did not provide any evidence to
demonstrate that at the time of adoption of the measure interested Members would have known to
look to the website indicated by Korea for information on SPS measures governing these products.387
As Japan had made a prima facie case that Korea did not publish the product-specific import bans in
a manner so as to enable Japan to become acquainted with them, the Panel found that, with respect
to the product-specific import bans, Korea acted inconsistently with Annex B(1) and Article 7 of the
SPS Agreement.388
In relation to the blanket import ban, the Pa nel noted that it was undisputed that the press
release announcing this measure contains the origin and the conditions applicable to the products
concerned. Korea and Japan, however, disagreed on whether the reference to "all fishery products" in
the press release is sufficient to specify the products covered by the blanket import ban.389 The Panel
noted that the press release does not refer to either Chapter 3 of the Harmonized System (HS)
nomenclature390 or to the World Organisation for Animal Health (OIE) Aquatic Animal Health Code.391
The Panel then observed that, in its WTO notification of the blanket import ban, Korea provided more
details on the product scope of this measure when compared to the press release. In its
WTO notification, Korea included "aquatic animals" as well as products not included in Chapter 3 of
the HS, such as algae. To the Panel, Japanese exporters could lack clarity on whether the term "aquatic
animals" is limited to a more traditional understanding of fishery products or also e xtends to other
products.392 The Panel considered that Korea used a vague term in its press release rather than
referring to common sources of definitions for the phrase "fishery products", and then included in the
scope of the blanket import ban, as describ ed in its notification to the WTO, products that would
normally be considered in other categories. Given that the press release did not include the products
that would be subject to the ban set forth in the measure, the Panel found that Korea did not publish
the full content of the regulation. 393 With respect to the accessibility of the press release, the Panel
found that it had "no way of knowing" whether the web address provided by Korea was available on
the day Korea announced the measures and what content was available on that day. 394 The Panel
noted that Korea had not provided "an archived version of the website from the date of release". 395
In addition, the Panel observed that Korea did not explain how Japan would have been aware that it
had to go to the Kor ean prime minister's website to find SPS measures relating to food imports,
especially given that the prime minister is not the authority that is directly in charge of regulating the
items subject to the blanket import ban.396 As Japan had made a prima facie case that Korea did not
publish the blanket import ban in a manner so as to enable Japan to become acquainted with it, the
Panel found that Korea acted inconsistently with Annex B(1) and Article 7 of the SPS Agreement.397
In relation to the 2011 additional testing requirements, the Panel noted that the relevant press
release does not refer to the levels of caesium or iodine that would trigger the additional testing, which
specific radionuclides would be tested, or the maximum levels for those radionuclides that would result
in products being rejected. The Panel thus concluded that the press release announcing the 2011
additional testing requirements does not include the entire content of the regulation. 398 With respect
to the accessibility of the press release, the Panel found that it had "no way of knowing" whether the
web address provided by Korea was available on the day Korea announced the measures and what

385 Panel Report, para. 7.472.
386 Panel Report, para. 7.474.
387 Panel Report, para. 7.474.
388 Panel Report, paras. 7.476 and 7.503.
389 Panel Report, para. 7.479.
390 Chapter 3 of the HS nomenclature refers to "Fish and crustaceans, molluscs and other aquatic
invertebrates". (Panel Report, para. 7.481)
391 Panel Report, para. 7.481. The OIE Aquatic Animal Health Code provides a common definition of
"aquatic animals". (Ibid.)
392 Panel Report, para. 7.482.
393 Panel Report, paras. 7.483 and 7.487.
394 Panel Report, para. 7.485.
395 Panel Report, para. 7.485.
396 Panel Report, para. 7.485.
397 Panel Report, paras. 7.485, 7.487, and 7.503.
398 Panel Report, para. 7.492.

content was available on that day.399 The Panel noted that Korea had not provided "an archived version
of the website from the appropriate time period". 400 In addition, the Panel stated that Korea did not
explain how Japan would have known to go to that website to find SPS measures relating to food
imports.401 The Panel found that Japan had made a prima facie case that Korea did not publish the
2011 additional testing requirements in a manner so as to enable Japan to become acquainted with
the measure, and that, thus, Korea acted inconsistently with Annex B(1) and Article 7 of the
SPS Agreement.402
In relation to the 2013 additional testing requirements, the Panel noted that the relevant press
release does not refer to the levels of caesium that would trigger the additional testing, which specific
radionuclides would be tested, the maximum levels for those radionucl ides that would result in
products being rejected, or the procedure and location of the testing required for the additional
radionuclides.403 Therefore, the Panel concluded that the press release announcing the 2013 additional
testing requirements does not i nclude the entire content of the regulation. 404 With respect to the
accessibility of the press release, the Panel referred to its earlier analysis, and found that, in addition
to the missing content, the location of the press release prevented Japan from bec oming acquainted
with the 2013 additional testing requirements. 405 The Panel thus concluded that , in relation to the
2013 additional testing requirements, Korea acted inconsistently with Annex B(1) and Article 7 of the
SPS Agreement.406
5.6.1.3 Annex B(1) to the SPS Agreement: " in such a manner as to enable interested
Members to become acquainted with them"
Korea's appeal calls for us to examine the final part of Annex B(1) to the SPS Agreement,
namely, the requirement that adopted SPS regulations be published promptly "in such a manner as to
enable interested Members to become acquainted with them".
Annex B(1) to the SPS Agreement provides:
Members shall ensure that all sanitary and phytosanitary regulations[*] which have been
adopted are published promptly in such a m anner as to enable interested Members to
become acquainted with them.
[*fn original] 5 Sanitary and phytosanitary measures such as laws, decrees or ordinances which
are applicable generally.
Article 7 of the SPS Agreement provides that "Members shall notif y changes in their sanitary
or phytosanitary measures and shall provide information on their sanitary or phytosanitary measures
in accordance with the provisions of Annex B." Annex B(1) imposes an obligation on Members to
ensure that adopted SPS regulation s407 are published promptly "in such a manner as to enable
interested Members to become acquainted with them". This dispute concerns only the latter part of
this obligation.408

399 Panel Report, para. 7.498.
400 Panel Report, para. 7.498.
401 Panel Report, para. 7.498.
402 Panel Report, paras. 7.498, 7.501, and 7.503.
403 Panel Report, para. 7.494.
404 Panel Report, para. 7.496.
405 Panel Report, para. 7.500.
406 Panel Report, paras. 7.500 and 7.502-7.503.
407 SPS regulations are defined in footnote 5 of the SPS Agreement as "[s]anitary and phytosanitary
measures such as laws, decrees or ordinances which are applicable generally". The Appellate Body has observed
that the list of instruments contained in this footnote is, as indicated by the words "such as", not exhaustive in
nature. To the Appellate Body, the scope of application of the publication requirement in Annex B(1) is not
limited to "laws, decrees or ordinances", but also includes other instruments which are applicable generally and
are similar in character to the instruments explicitly referred to in the illustrative list of the footnote 5 to
Annex B(1). (Appellate Body Report, Japan – Agricultural Products II, para. 105)
408 As noted by the Panel, Japan does not dispute the promptness of Korea's actions. Rather, Japan
questions whether Korea's actions are sufficient to fulfil the other elements of Annex B(1). (Panel Report,
para. 7.458)

On the basis of relevant dictionary definitions 409 , the terms "to enable … to become
acquainted" can be understood as to give the means to become familiar. Thus, to enable interested
Members to become acquainted with an adopted SPS regulation, a publication must give the means
to interested Members to become familiar with it. In our view, this suggests that the publication of an
adopted SPS regulation must be accessible to interested Members and contain sufficient information
so as to give the means to interested Members to become familiar with it. A publication that is not
accessible to i nterested Members would not enable interested Members to become acquainted with
the adopted SPS regulation. Similarly, a publication that contains insufficient information regarding
the adopted SPS regulation would not enable interested Members to become a cquainted with that
SPS regulation. This reading of the publication requirement in Annex B(1) is also a prerequisite for
giving meaning to Annex B(2) to the SPS Agreement, which requires Members to provide a reasonable
interval between the publication of a n SPS regulation and its entry into force, in order to allow
producers time to adapt their products and methods of production. Annex B(2) thus provides relevant
context to the interpretation of the last phrase of Annex B(1). Annex B(2) provides:
Except in urgent circumstances, Members shall allow a reasonable interval between the
publication of a sanitary or phytosanitary regulation and its entry into force in order to
allow time for producers in exporting Members, and particularly in developing country
Members, to adapt their products and methods of production to the requirements of the
importing Member.
Annex B(2) refers to the publication under Annex B(1) when it provides that Members shall
allow a reasonable interval between the publication of an SPS reg ulation and the entry into force of
that regulation. As noted earlier, it is the publication pursuant to Annex B(1) that enables interested
Members to become acquainted with adopted SPS regulations. Producers in exporting Members will
be informed of adopte d SPS regulations in importing Members as a consequence of the Annex B(1)
publication. Thus, when interpreted in light of the context of Annex B(2), the final part of Annex B(1)
suggests that the publication under that annex must inform of the product scope and include adequate
information about the requirements contained in the adopted SPS regulation. This is because, as
specified in Annex B(2), the purpose of the interval between publication and entry into force of an SPS
regulation is to allow time for producers in exporting Members to adapt "their products and methods
of production" to the requirements of the importing Member.
In sum, to enable interested Members to become acquainted with an adopted SPS regulation,
an Annex B(1) publication must be acces sible to interested Members and contain sufficient
information, including the product scope and the requirements of the adopted SPS regulation, to give
the means to interested Members to become familiar with it. The precise content and amount of
information that must be included in an Annex B(1) publication to enable interested Members to
become acquainted with an adopted SPS regulation will depend on the particular SPS regulation at
issue.
5.6.1.4 Whether the Panel erred in its interpretation of Annex B(1) to the SPS Agreement
The Panel found that Annex B(1) to the SPS Agreement requires the publication of the content
of the SPS regulation, which can be achieved by publishing the actual regulation through a formal
legal instrument, such as in an official gazette, through decision, or by reproducing the content of the
regulation in a press release or on a webpage. 410 According to the Panel, in order to meet the
requirements in Annex B(1), the publication of an SPS regulation must make the measures generally
known and contain sufficient content that the exporting Member "will know the conditions (including
specific principles and methods) that apply to its goods".411
On appeal, Korea claims that the Panel erred in the interpretation of Annex B(1) to the
SPS Agreement in finding that this provision requires that the publication of an adopted SPS regulation
include sufficient content so that the interested Member will know the conditions, including specific
principles and methods, that apply to its goods. Korea argues that A nnex B(1) does not refer to
"conditions", "specific principles", or "methods" that must be published. To Korea, by finding that

409 The definition of "enable" includes "[m]ake able, give the means, to be or to do something". (Shorter
Oxford English Dictionary, 6th edn, A. Stephenson (ed.) (Oxford University Press, 2007), Vol. 1, p. 824) The
definition of "acquainted" includes "familiar through being known". (Ibid., p. 20)
410 Panel Report, para. 7.461.
411 Panel Report, para. 7.464.

Annex B(1) requires that detailed methodologies for compliance be included in the publication, the
Panel imposed additional obli gations not present in Annex B(1).412 Korea notes, however, that the
publication obligation of Annex B(1) requires only that the publication of SPS regulations enable
interested Members to become acquainted with them.413
Japan disagrees with Korea that the Panel erred in the interpretation of A nnex B(1) to the
SPS Agreement. To Japan, the Panel correctly found that the publication under Annex B(1) must
contain sufficient information, comprising the "conditions (including specific principles and methods)"
that apply to goods in order to allow pro ducers in exporting Members to "adapt their products and
production methods" to the importing Member's "requirements".414 Japan contends that the legitimate
commercial interests of traders and exporting Members would be frustrated if SPS regulations were
published in a manner that does not allow them to know how to comply with and adapt to the importing
Member's "requirements".415
The Panel began by noting that, in light of the goal of enabling Members to know what
conditions apply to their products and to give them time to adapt to the new requirements, "one would
also expect information on: the substantive and procedural requirements that an exporter must fulfil,
the date on which the regulation takes effect, the products affected by the SPS regulation, as well as,
in the case of regulations affecting specific Members or regions, the Members or regions the regulation
applies to."416 The Panel further stated that, in order to meet the requirements in Annex B(1) to the
SPS Agreement, the publication of an SPS regul ation must make the measures generally known and
contain sufficient content that the exporting Member "will know the conditions (including specific
principles and methods) that apply to its goods".417 To the extent the Panel's reference to "conditions"
means the requirements of the adopted SPS regulation, that aspect of the Panel's interpretation would
comport with our interpretation of Annex B(1) set out above. We read, however, the latter part of this
Panel statement as requiring that the publication of an SPS regulation under Annex B(1) always contain
conditions that apply to products, as well as "specific principles and methods". We disagree with the
Panel's reference to "specific principles and methods" to the extent the Panel suggested that this
undefined requirement must, in all cases, be met in the publication of an SPS regulation. As explained
above, to enable interested Members to become acquainted with an adopted SPS regulation, an
Annex B(1) publication must contain sufficient information, including the product scope and the
requirements of the adopted SPS regulation, to give the means to interested Members to become
familiar with it. That said, the precise content and amount of information, in particular any information
in addition to the product scope and requirements of the SPS regulation, that must be included in an
Annex B(1) publication to enable interested Members to become acquainted with an adopted
SPS regulation, will depend on the specific circumstances of each case, including the nature of the
SPS regulation at issue, the products covered, and the nature of the SPS risks involved. In particular
situations, Annex B(1) may require publication of the "specific principles and methods" relating to an
adopted SPS regulation so as to enable interested Members to become acquainted with that adopted
SPS regulation. We do not read, however, Annex B(1) as imposing such a requirement in all cases,
regardless of a consideration of the particular SPS regulation, the products covered, the SPS risk, and
other relevant circumstances at issue.
Japan submits that, in reaching its finding, the Panel drew on the context in Annex B(5)(b)
and Annex B(6)(a) to the SPS Agreement.418 Indeed, we note that the Panel appears to have found
support in these provisions for it s interpretation of Annex B(1). The Panel noted that Annex B(5)(b)
requires that a notification include information on the products covered, and the object ive and
rationale of a proposed regulation. The Panel also noted that Annex B(6)(a) requires the same
information, as well as the nature of the urgent problem. The Panel then concluded that it would be
"paradoxical if Annex B(1) required less information in the publication of an adopted regulation than
that required in the notification of a proposed regulation or one adopted on an emergency basis".419

412 Korea's appellant's submission, paras. 347, 357-358, and 363-364 (referring to Panel Report,
para. 7.464).
413 Korea's appellant's submission, para. 358.
414 Japan's appellee's submission, paras. 850-852 (referring to Panel Report, paras. 7.463-7.464).
415 Japan's appellee's submission, para. 854.
416 Panel Report, para. 7.463.
417 Panel Report, para. 7.464.
418 Japan's appellee's submission, paras. 855-856 (referring to Panel Report, para. 7.463).
419 Panel Report, para. 7.463.

We note that Annex B(5) to the SPS Agreement sets forth notification procedures for a
proposal to introduce an SPS regulation. Annex B(6) to the SPS Agreement concerns the notification
procedures in situations where urgent problems of health protection arise or threaten to arise for a
Member. In particular, Annex B(5)(b) requires Members to notify other Members, through the WTO,
of the products to be covered by the regulation together with a brief indication of the objective and
rationale of the proposed regulation. Annex B(6)(a) similarly requires a Member relying on that
provision to notify other Members, through the WTO, of the particular regulation and the products
covered, with a brief indication of the objective and the rationale of the regulation, including the nature
of the urgent problem(s). We observe that neither Annex B(5) nor Annex B(6) refers to the "specific
principles" or "methods" of SPS regulations. Therefore, we do not see how the Panel found contextual
support in Annex B(5) or Annex B(6) for the proposition that the publication of an SPS regulation
under Annex B(1) must always include such "specific principles and methods".420
For the reasons set out above, we consider that the publication of an adopted SPS regulation
must contain sufficient information, including the product scope and the requirements of the
SPS regulation, so as to enable Members to become acquainted with it. In this respect, we agree with
the Panel to the extent the Panel's reference to "conditions" means the requirements of the adopted
SPS regulation. We modify, however, the Panel's finding, in paragraph 7.464 of the Panel Report, to
the extent it considered that Annex B(1) requires, in all cases, that the publication of an SPS regulation
include the "specific principles and methods" applicable to the products. We instead find that whether
a publication of an adopted SPS regulation under Annex B(1) needs to include the "specific principles
and methods" applicable to the products may only be determined with reference to the specific
circumstances of each case, such as the nature of the SPS regulation at issue, the products covered,
and the nature of the SPS risks involved.
5.6.1.5 Whether the Panel erred in its application of Annex B(1) to the SPS Agreement and
acted inconsistently with Article 11 of the DSU
We turn to examine Korea's claims on appeal that the Panel erred in the application of
Annex B(1) to the SPS Agreement and acted inconsistently with Article 11 of the DSU in finding that
Korea had failed to publish all of its measures at issue in accordance with Annex B(1) to the
SPS Agreement. Before the Panel, the parties disagreed on whether Korea's publication of the pre ss
releases announcing its measures on certain websites was compliant with Annex B(1). 421 The Panel
found that Korea had not complied with Annex B(1) with respect to each measure at issue and provided
several bases for this finding.422
First, with respect to t he blanket import ban, the 2011 additional testing requirements, and
the 2013 additional testing requirements, the Panel found that the press releases announcing those
measures did not provide sufficient content to meet Korea's obligation under Annex B(1) to the
SPS Agreement.423 Korea separately appeals the Panel's findings with respect to each of these
measures.424
Second, with respect to the accessibility of all measures at issue, the Panel found that Korea
failed to publish the press releases announcing the measures in such a manner as to enable Japan to
become acquainted with the SPS regulations at issue. The Panel provided two reasons for this finding:
(i) Korea had not explained how interested Members would have known to look to the websites
indicated by Korea for information on SPS measures governing the products at issue; and (ii) the
Panel was unable to know whether the press releases announcing those measures were available on
the designated websites when Korea announced those measures. 425 Korea challenges both reasons
provided by the Panel, claiming that, in basing its finding on the first reason, the Panel erred in the
application of Annex B(1) to the SPS Agreement, and in basing its finding on the second reason, it
acted inconsistently with Article 11 of the DSU.426

420 Panel Report, para. 7.464.
421 Panel Report, para. 7.449.
422 Panel Report, paras. 7.476, 7.487, 7.498, and 7.500-7.503.
423 Panel Report, paras. 7.487, 7.492, and 7.496.
424 Korea's appellant's submission, paras. 366 and 368.
425 Panel Report, paras. 7.474, 7.485, 7.498, and 7.500.
426 Korea's appellant's submission, paras. 373 and 376.

Below we address Korea's challenges on appeal in the following order. We begin with the
assessment of whether the Panel erred in the application of Annex B(1) to the SPS Agreement in
finding that Korea acted inconsistently with this provision by not publishing the full content of the
blanket import ban, the 2011 additional testing requirements, and the 2013 additional testing
requirements. Subsequently, we turn to examine whether the Panel erred in the application of
Annex B(1) in finding that Korea acted inconsistently with this provision by not demonstrating that
interested Members would have known to look to the websites indicated by Korea for information on
the SPS measures at issue. Lastly, we will consider whether the Panel acted inconsist ently with
Article 11 of the DSU in finding that it was unable to know whether the web addresses provided by
Korea were available on the day Korea announced each of the SPS measures at issue and what content
was available on that day.
Application of Annex B(1) to the SPS Agreement
5.6.1.5.1.1 Blanket import ban
In relation to the blanket import ban, the Panel first noted that it is undisputed that the press
release announcing this measure contains the origin of the products concerned and the conditions
applicable to t hem. Korea and Japan, however, disagreed on whether the reference to "all fishery
products" in the press release is sufficient to specify the products covered by the blanket import ban.427
After observing that Korea's press release does not refer to Chapter 3 of the HS nomenclature or to
the OIE Aquatic Animal Health Code428, the Panel highlighted that Korea, in its WTO notification of the
SPS measure at issue, included "aquatic animals" as well as products not included in Chapter 3 of the
HS, such as algae. The Panel considered that Korea used a vague term in its press release rather than
referring to common sources of definitions for the phrase "fishery products", and then included in the
scope of the blanket import ban, as described in its notificati on to the WTO, products that would
normally be considered in other categories. Given that the press release did not include the products
that would be subject to the ban, the Panel found that Korea did not publish the full content of the
regulation.429 The Panel thus found that Korea acted inconsistently with Annex B(1) and Article 7 of
the SPS Agreement by not publishing the blanket import ban in such a manner as to enable Japan to
become acquainted with it.430
On appeal, Korea claims that the Panel erred in its application of Annex B(1) by finding that
Korea had not published the full content of the blanket import ban. 431 Korea contends that the
reference to "all fishery products" in the press release is clear in relation to the scope of the
measure.432 Korea arg ues that Annex B(1) "does not require the publication of each and every
HS code, as long as the product scope is defined, as was done by Korea".433
Japan responds that Korea fails to engage with the Panel's specific reasons for finding that the
reference in the press release to "all fishery products" was inadequate to communicate the product
coverage of the blanket import ban. 434 Japan notes, in particular, that the Panel conducted its
assessment of whether the term "fishery products" described the product coverage of the measure on
the basis of commonly used sources of defining terms in international trade, such as the HS
nomenclature and the OIE Aquatic Animal Health Code.435
We recall that an Annex B(1) publication must contain sufficient information, includin g the
product scope and the requirements of the adopted SPS regulation, to enable interested Members to
become acquainted with an adopted SPS regulation. The question before us is thus whether the Panel
correctly found that the press release announcing the blanket import ban did not sufficiently specify
the product scope of that SPS measure.

427 Panel Report, para. 7.479.
428 Panel Report, para. 7.481. The OIE Aquatic Animal Health Code provides a common definition of
"aquatic animals". (Ibid.)
429 Panel Report, paras. 7.483 and 7.487.
430 Panel Report, para. 7.487.
431 Korea's appellant's submission, para. 366.
432 Korea's appellant's submission, para. 367.
433 Korea's appellant's submission, para. 367.
434 Japan's appellee's submission, para. 868.
435 Japan's appellee's submission, paras. 864-866.

We note that the press release announcing the blanket import ban refers to "all fishery
products".436 The Panel examined the documentation surrounding the adoption of th e blanket import
ban to verify whether the phrase "all fishery products" was based on commonly used sources for
defining terms in international trade in fishery or other aquatic products. In this respect, the Panel
noted that the press release does not ref er to Chapter 3 of the HS nomenclature, which is entitled
"Fish and crustaceans, molluscs and other aquatic invertebrates". 437 The Panel also noted that the
press release does not refer to the OIE Aquatic Animal Health Code, which provides a common
definition of "aquatic animals". 438 The Panel then noted that Korea's notification to the WTO of the
blanket import ban contains the following definition of fishery products: "Aquatic animals and algae …
being consumed as food".439 On appeal, Korea confirmed that its notification accurately describes the
product scope of the blanket import ban.440
We agree with the Panel that the press release announcing the blanket import ban does not
contain the full product scope of the blanket import ban. As observed by the Panel, Korea's notification
to the WTO of the blanket import ban includes algae. This is a product that falls outside Chapter 3 of
the HS nomenclature covering "[f]ish and crustaceans, molluscs and other aquatic invertebrates".
Given that the blanket import ban covers products that would normally be included in a category other
than "fishery products", we do not consider that the press release at issue published the blanket import
ban in such a manner as to enable Japan to become acquainted with this ban.
In view of the foregoing, we find that the Panel did not err in its application of Annex B(1) to
the SPS Agreement to the blanket import ban in relation to the product scope of this measure. Thus,
we uphold the Panel's finding, in paragraph 7.487 of the Panel Report, that Korea acted inconsistently
with Annex B(1) and Article 7 of the SPS Agreement by not publishing the full product scope of the
blanket import ban.
5.6.1.5.1.2 2011 and 2013 additional testing requirements
The Panel found that Korea did not publish the 2011 addi tional testing requirements and the
2013 additional testing requirements in accordance with Annex B(1) to the SPS Agreement because
the press releases announcing those measures did not provide the full content of the measures. 441
The Panel considered that th e press releases did not include the following information: (i) the levels
of caesium (and iodine in the 2011 press release) that would trigger the additional testing; (ii) the
specific radionuclides to be tested; (iii) the maximum levels for those radionuclides that would result
in products being rejected; and (iv) in relation to the 2013 press release only, the procedure and
location of the testing required for the additional radionuclides.442
On appeal, Korea claims that the Panel erred in its application of Annex B(1) by finding that
the press releases announcing the 2011 additional testing requirements and the 2013 additional
testing requirements did not contain sufficient information to enable an interested Member to know
the conditions that would apply to its goods.443 Korea argues that the Panel's application goes beyond
what is required under Annex B(1).444 Korea submits that "both the 2011 and 2013 press releases
state that if caesium (and iodine in the 2011 press release) was detected, certificates of ot her
radionuclides, such as strontium and plutonium, would be required."445 Korea contends that this would
allow interested Members to become acquainted with the measures and their requirements.446
Japan disagrees with Korea's claim of error on appeal. Japan su bmits that Korea's claim is
based on Korea's view that the Panel erred in interpreting Annex B(1) to the SPS Agreement to require

436 Panel Report, para. 7.477; Korea Prime Minister's Office, Press Release, "Government Bans Import of
All Fishery Products from 8 ken near Fukushima" (6 September 2013) (PMO blanket import ban and additional
testing requirements press release) (Panel Exhibit JPN-3.b).
437 Panel Report, para. 7.481.
438 Panel Report, para. 7.481.
439 Panel Report, para. 7.481 (quoting Korea's Addendum to Notification of Emergency Measures,
G/SPS/N/KOR/454/Add.1).
440 Korea's response to questioning at the oral hearing.
441 Panel Report, paras. 7.492, 7.496, and 7.501-7.502.
442 Panel Report, paras. 7.492, 7.494, and 7.496.
443 Korea's appellant's submission, para. 368 (referring to Panel Report, paras. 7.500-7.501).
444 Korea's appellant's submission, para. 368.
445 Korea's appellant's submission, para. 370 (referring to Panel Report, paras. 7.491 and 7.493).
446 Korea's appellant's submission, para. 370.

the publication to include the "conditions (including specific principles and methods) that apply to its
goods".447 Japan reiter ates that the publication under Annex B(1) should communicate enough
information to enable traders and interested Members to know how to comply with the importing
Member's requirements.448
As explained earlier, an Annex B(1) publication must contain sufficient information, including
the requirements of the adopted SPS regulation, to enable interested Members to become acquainted
with an adopted SPS regulation. In the present case, the Panel found that the press releases
announcing the 2011 additional testing requirements and the 2013 additional testing requirements
did not include the full content of the measures. The Panel considered that the elements of the
measures that were missing included the levels of caesium (and iodine in the 2011 press release) that
would trigger the additional testing; the specific radionuclides to be tested; the maximum levels for
those radionuclides that would result in products being rejected; and, in relation to the 2013 press
release only, the procedure and location of the testing required for the additional radionuclides.449 We
agree with the Panel that, in light of the SPS regulations at issue, the press releases announcing the
2011 additional testing requirements and the 2013 additional testing requirements should have
contained these elements to meet the publication requirements in Annex B(1). In our view, without
these elements, the press releases do not enable interested Members to become acquainted with the
2011 additional testing requirements and the 2013 additional testing requirements.450
 In view of the foregoing, we find that the Panel did not err in its application of Annex B(1) to
the SPS Agreement to the 2011 additional testing requirements and the 2013 additional testing
requirements in relation to the requirements of these measures. Thus, we uphold the Panel's findings,
in paragraphs 7.501-7.502 of the Panel Report, that Korea acted inconsistently with Annex B(1) and
Article 7 of the SPS Agreement by not publishing sufficient information to enable Japan to become
acquainted with the requirements of the 2011 additional testing requirements and the 2013 additional
testing requirements.
5.6.1.5.1.3 All measures – accessibility of the press releases
With respect to all SPS measures at issue, the Panel found that Korea had not show n that
interested Members would have known to look to the websites indicated by Korea for information on
these measures.451
On appeal, Korea claims that the Panel erred in applying Annex B(1) of the SPS Agreement to
the measures at issue because, in reachin g these findings, the Panel set a standard of certainty not
called for under this provision.452 Japan does not specifically respond to this aspect of Korea's appeal,
and contends in general that the Panel properly found that Korea did not satisfy the Annex B(1)
publication requirements with respect to all of its measures.453
As noted above, the requirement in Annex B(1) to publish adopted SPS regulations "in such a
manner as to enable interested Members to become acquainted with them" concerns not only the
content of publication but also its accessibility. In order to comply with Annex B(1), the publication of
an adopted SPS regulation must be accessible to interested Members. Where an adopted
SPS regulation is published in a manner that prevents interested Members from locating and accessing
it, we do not consider that such publication could be said to enable interested Members to become
acquainted with the SPS regulation.
In the present case, Korea published its measures on certain government websites.454 Before
the Panel, Korea submitted a table indicating that its measures were published on the following
government websites: the blanket import ban and the 2013 additional testing requirements on the
websites of the Ministry of Food and Drug Safety (MFDS) and the Prime Minister's Office; the product-

447 Japan's appellee's submission, para. 871 (referring to Korea's appellant's submission, para. 357, in
448 Japan's appellee's submission, para. 871.
449 Panel Report, paras. 7.492, 7.494, and 7.496.
450 Panel Report, paras. 7.492, 7.494, and 7.496.
451 Panel Report, paras. 7.474, 7.485, 7.498, and 7.500.
452 Korea's appellant's submission, para. 373.
453 Japan's appellee's submission, paras. 821 and 925.
454 Panel Report, paras. 7.473, 7.484, 7.497-7.498, and 7.500.

specific import bans on the website of the Ministry of Food, Agriculture, Forestry and Fisheries (later
changed to the Ministry of Agriculture, Food and Rural Affairs); and the 2011 additional testing
requirements on the website of Korea's Food and Drug Administration (later changed to MFDS). 455
There were thus websites of three different governmental entities where Korea posted the press
releases announcing the SPS measures at issue.
We note that, before the Panel and, on appeal, Japan argued that it is not for Members and
their economic operators to "search for scattered information on government websites, and … piece
together the information [they] might discover by chance on different websites, in hopes of becoming
acquainted with the measure".456 In this respect, Japan submitted that the press releases announcing
the measures at issue were not generally known and Japan's ability to become acquainted with the
measures was inhibited by the location of the websites where the press releases were posted. 457 In
light of the case presented by Japan, it was for Korea to provide some evidence or explanation that
interested Members would have known to look to the websites indicated by Korea for information on
the SPS measures at issue. In our view, this could have included a showing that these websites were
the customary locations in Korea to publish SPS regulations on certain products. 458 Korea, however,
did not provide a clear explanation concerning whether interested Members would have been able to
locate and access these press releases. In particular, it remains unclear to us why certain of
Korea's SPS measures were published on the website of the Prime Minister's Office, some were
published on the website of the Ministry of Food, Agriculture, Forestry and Fisheries (later changed to
the Ministry of Agriculture, Food and Rural Affairs), and others were published on the website of
Korea's Food and Drug Administration (later changed to MFDS). In addition, as noted by the Panel,
Korea did not explain how Japan would have been aware that it would have had to access the prime
minister's website to find the publication of an SPS measure relating to food imports, "especially given
that the Prime Minister is not the authority that is directly in charge of regulating the items subject to
the blanket import ban".459
In view of the foregoing, we find that the Panel did not err in its application of Annex B(1) to
the SPS Agreement to the SPS measures at issue in relation to the accessibility of the publications.
Thus, we uphold the Panel's findings, in paragraphs 7.474, 7.485, 7.498, and 7.500 of the Pa nel
Report, that Korea did not show that interested Members would have known to look to the websites
indicated by Korea for information on the SPS measures at issue.
Article 11 of the DSU
The Panel found that Korea did not publish all measures at issue in accordance with Annex B(1)
to the SPS Agreement because, inter alia, it could not know whether the web addresses provided by
Korea were available on the day Korea announced each of the SPS measures at issue and what content
was available on that day. The Panel reasoned that it could not do so because Korea did not provide
the archived versions of those websites from the appropriate time period.460
On appeal, Korea claims that, in reaching this finding, the Panel acted inconsistently with
Article 11 of the DSU. According to Korea, there was no question before the Panel regarding the dates
of publication of the press releases, or whether they were available on the websites on those dates.
Korea further submits that Japan expressly acknowledged the dates of pu blication of several of the
press releases in its panel request.461 Korea thus considers that it was inappropriate for the Panel to

455 Korea's response to Panel question No. 114.
456 Japan's second written submission to the Panel, para. 344. See also Japan's response to Panel question
No. 81; comments to Korea's responses to Panel question No. 114; appellee's submission, para. 882.
457 Panel Report, paras. 7.465 and 7.497 (referring to Japan's second written submission to the Panel,
paras. 317 and 349; response to Panel question No. 81).
458 Our understanding is not meant to imply that SPS regulations must be published on the website of a
particular governmental entity. Provided that the publication meets the requirements in Annex B(1) to the
SPS Agreement, including that the publication be accessible to interested Members, Members are, in principle,
free to publish them in the location they deem appropriate. We note that accessibility is particularly important in
the case of perishable goods, such as those at issue in the present dispute.
459 Panel Report, para. 7.485 (referring to Korea's response to Panel question No. 114).
460 Panel Report, paras. 7.474, 7.485, 7.498, and 7.500.
461 Korea's appellant's submission, para. 377 (referring to Japan's panel request).

require Korea to bring evidence on an uncontested matter, especially given that the Panel never
requested Korea to provide archived versions of the webpages.462
Japan disagrees with Korea's assertion and submits that Korea is incorrect to suggest that the
publication dates of the press releases were uncontested before the Panel. This is because, according
to Japan, the Panel's asse ssment at issue related to a question that was contested, namely, the
accessibility of Korea's press releases.463
We recall that Article 11 of the DSU imposes on panels a comprehensive obligation to make
an "objective assessment of the matter", an obligatio n that embraces all aspects of a panel's
examination of the "matter", both factual and legal. 464 A panel's duty as the trier of facts requires it
to consider all the evidence presented to it, assess its credibility, determine its weight, and ensure
that the panel's factual findings have a proper basis in that evidence. 465 As an initial trier of facts, a
panel must also provide reasoned and adequate explanations, and coherent reasoning 466, and not
reveal a lack of even-handedness in the treatment of the evidence.467 Moreover, a panel must ensure
that the due process rights of parties to a dispute are respected.468 Within these parameters, however,
it is generally within the discretion of a panel to decide which evidence it chooses to utilize in making
its findings469, and to determine how much weight to attach to the various items of evidence placed
before it by the parties.470 A panel does not err simply because it declines to accord to the evidence
the weight that one of the parties believes should be accorded to it.471
In support of its claim that the Panel acted inconsistently with Article 11 of the DSU,
Korea argues that it was inappropriate for the Panel to require Korea to bring evidence on an
uncontested factual issue that was not the subject of a claim before the Pan el.472 We observe that,
before the Panel, Japan did not develop arguments regarding the dates of publication of the press
releases announcing Korea's measures on the websites provided by Korea. In our view, however, this
does not mean that the Panel was obliged simply to accept, on this basis alone, that the press releases
were available on those websites on the dates Korea's measures were announced. Rather, as indicated
above, Article 11 of the DSU required the Panel to base its factual conclusions on the evidence on the
record, or at least on the basis of a clear statement on the record that a party admits a certain fact.473
Thus, a panel is not precluded from objectively determining the accuracy of a factual assertion even
when it is not disputed between the parties.
Korea argues that Japan expressly acknowledged the dates of publication of several of the
press releases in its panel request.474 We note that Japan's panel request lists Korea's press releases
accompanied by certain dates.475 In our view, however, this is not necessarily an admission that the
press releases were available on the websites on those specific dates. Rather, the list with dates
presented by Japan in its panel request can be understood as a way of specifying that those were the
press releases at issue in this dispute. We thus do not share Korea's view that Japan's inclusion of a

462 Korea's appellant's submission, paras. 377-378.
463 Japan's appellee's submission, para. 879 (referring to Korea's appellant's submission, para. 377).
464 Appellate Body Report, US – Hot-Rolled Steel, para. 54.
465 Appellate Body Report, US – Large Civil Aircraft (2nd complaint), para. 992 (quoting Appellate Body
Report, Brazil – Retreaded Tyres, para. 185, in turn referring to Appellate Body Report, EC – Hormones,
paras. 132-133; referring to Appellate Body Reports, Australia – Salmon, para. 266; EC – Asbestos, para. 161;
EC – Bed Linen (Article 21.5 – India), paras. 170, 177, and 181; EC – Sardines, para. 299;
EC – Tube or Pipe Fittings, para. 125; Japan – Apples, para. 221; Japan – Agricultural Products II,
paras. 141-142; Korea ‒ Alcoholic Beverages, paras. 161-162; Korea – Dairy, para. 138; US – Carbon Steel,
Customs Matters, para. 258).
466 Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), fn 618 to para. 293.
467 Appellate Body Report, US – Upland Cotton (Article 21.5 – Brazil), para. 292.
468 Appellate Body Reports, Canada – Continued Suspension, para. 482; US – Continued Suspension,
469 Appellate Body Report, EC – Hormones, para. 135.
470 Appellate Body Report, Korea – Dairy, para. 137.
471 Appellate Body Reports, Australia – Salmon, para. 267; Japan – Apples, para. 221; Korea – Alcoholic
Beverages, para. 164.
472 Korea's appellant's submission, paras. 377-378.
473 See e.g. Panel Report, US – Shrimp, para. 7.15. In the context of anti-dumping investigations, see
Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina), para. 112.
474 Korea's appellant's submission, para. 377 (referring to Japan's panel request).
475 See e.g. Japan's panel request, paras. 13-14 (such as "Press release by MIFAFF, dated
13 November 2012, 'Temporary ban on import of cod from Ibaraki-ken'" (emphasis added)).

list of press releases with dates in its panel request amounts to a clear statement that Japan admits
the publication dates of those press releases.
We note, at the same time, that the press releases themselves contain certain dates in their
texts. More precisely, the English translation of the press release announcing the 2011 additional
testing requirements submitted by Japan states that it was "[d]istributed on A pril 14, 2011" and
"[r]eported on April 14, 2011", while the English translation submitted by Korea states that
14 April 2011 is its "[r]elease" and "[p]ublish" date. 476 Similarly, each of the press releases
announcing the product -specific import bans contai ns a date on which it was "provided", and from
which it may be "reported".477 Likewise, the press release announcing the blanket import ban and the
2013 additional testing requirements indicates, in its header, the date of 6 September 2013 and states
"[p]lease use after 09:30, September 6 (Friday)."478
In our view, these exhibits submitted to the Panel could be indicative of the publication dates
of the press releases on the government websites. This evidence, however, was not addressed by the
Panel and is absent from its analysis. We recall that a panel's duty as the trier of facts requires it to
consider all the evidence presented to it, assess its credibility, determine its weight, and ensure that
the panel's factual findings have a proper basis in that evid ence.479 In the present case, the Panel
offered no explanation of whether and how it took the evidence on record concerning the press
releases into account in reaching its conclusion that it could not verify the publication dates of the
press releases on the government websites. We do not believe that, by disregarding pertinent evidence
on the record, the Panel could have complied with its duty under Article 11 of the DSU to conduct an
objective assessment of the matter.
Furthermore, at no point during the pa nel proceedings did the Panel indicate that it required
the archived versions of the webpages, in order to confirm the publication dates of the press releases,
or request Korea to submit such evidence. We note that the Panel requested Korea to provide certain
information about the publication of its measures on government websites. 480 Korea provided a

476 Korea Food and Drug Administration, Press Release, "Status of KFDA's Response and Management
Measures Regarding the Japanese Nuclear Crisis (5)" / "KFDA's Response to the Fukushima Nuclear Power Plant
Accident and Management Status" (14 April 2011) (KFDA 14 April 2011 press release) (Panel Exhibits JPN-55.b
(revised) and KOR-72 (revised)).
477 The press release announcing the ban on cod from Miyagi and Iwate states, in its header, "[p]rovided
on: May 3, 2012" and "[p]lease report this material from its distribution on May 3, 2012". (Korea Ministry of
Food, Agriculture, Forestry and Fisheries, Press Release, "Temporary Import Suspension on Cod from Miyagi-ken
and Iwate-ken, Japan" (3 May 2012) (Panel Exhibit JPN-76.b)) The press release announcing the ban on 35
fishery products, including yellowfish, states "[p]rovided on: June 26, 2012" and "[p]lease report this material
from its distribution on June 27, 2012". (Korea Ministry of Food, Agriculture, Forestry and Fisheries, Press
Release, "Temporary Import Suspension on 35 Fishery Products, including Yellowfish from Fukushima-ken,
Japan" (26 June 2012) (Panel Exhibit JPN-77.b)) The press release announcing the ban on cod from Aomori also
states "[p]rovided on: Aug. 29, 2012" and "[p]lease report this material from its distribution on Aug. 29, 2012".
(Korea Ministry of Food, Agriculture, Forestry and Fisheries, Press Release, "Temporary Import Suspension on
Cod from Aomori-ken, Japan" (29 August 2012) (Panel Exhibit JPN-78.b))
478 PMO blanket import ban and additional testing requirements press release (Panel Exhibit JPN-3.b). We
also note that the MFDS document containing the administrative instructions sent to the relevant Korean
enforcement agencies after the announcement of the blanket import ban contains the following information in its
last page: "[a]pproved on September 6, 2013", "[r]eceived by International Cooperation Officer–3066
(September 6, 2013)", and "[d]isclosed to public". (See Korea Ministry of Food and Drug Safety, "Notice of
Temporary Special Measure for Safety for Food Imported from Japan" (6 September 2013) (MFDS 2013 blanket
import ban and additional testing requirements notice) (Panel Exhibit JPN-75.b))
479 Appellate Body Report, US – Large Civil Aircraft (2nd complaint), para. 992 (quoting Appellate Body
Report, Brazil – Retreaded Tyres, para. 185, in turn referring to Appellate Body Report, EC – Hormones,
paras. 132-133; referring to Appellate Body Reports, Australia – Salmon, para. 266; EC – Asbestos, para. 161;
EC – Bed Linen (Article 21.5 – India), paras. 170, 177, and 181; EC – Sardines, para. 299;
EC – Tube or Pipe Fittings, para. 125; Japan – Apples, para. 221; Japan – Agricultural Products II,
paras. 141-142; Korea ‒ Alcoholic Beverages, paras. 161-162; Korea – Dairy, para. 138; US – Carbon Steel,
Customs Matters, para. 258).
480 At the second meeting with the parties, the Panel asked Korea the following question: "To help the
Panel gain a better understanding of the posting of the press releases on government websites, please fill out the
following table". The table in the Panel question at issue contained the following columns to be completed by
Korea: exhibit number; date; title; "Agency website where it was posted"; "Address of agency's website where
the press release appears"; "Is this authority in charge of regulating the relevant products?"; "Other SPS
measures posted on this website?"; "Is there an official document (e.g. Official Gazette) that indicates where

response to that request from the Panel. 481 Despite Korea's response and without asking for
information on the publication dates, the Panel based its finding on the absence of further evidence
pertaining to the publication dates of the press releases. Thus, even in the absence of a contestation
or refutation of the publication dates of the press releases by Japan, the Panel implicitly placed the
burden of further confirming the publication dates of the press releases on Korea, and then found that
Korea acted inconsistently with Annex B(1) because it had not met that burden.
As observed by the Appellate Body, "it is not enough for a panel to leave it to the parties to
guess what proof it will require."482 While a panel cannot make the case for a party, Article 11 requires
a panel to "test evidence with the parties, and to seek further information if necessary, in order to
determine whether the evidence satisfies a party's burden of proof".483 Thus, in the present case, the
Panel should not have left it to Korea to anticipate, in the absence of a contestation of the publication
dates by Japan, that it would be required to submit the archived versions of the webpages to prove
the publication dates of the press releases on government websites. Rather, to the extent the Panel
considered it was necessary for it to have such evidence, it should have sought it from both parties to
the dispute and should only then have drawn appropriate inferences.
Therefore, on account of the Panel's failure to engage with the pertinent evidence on the
record and to seek information on the publication dates of the press releases at issue that the Panel
considered necessary for its finding, we consider that the Panel failed to make an objective assessment
of the matter. Consequently, we find that the Panel acted inconsistently with Article 11 of the DSU in
finding that it was unable to know whether the web addresses provided by Korea wer e available on
the day Korea announced each of the SPS measures at issue and what content was available on that
day.
As explained above, the Panel's findings that Korea acted inconsistently with Annex B(1) and
Article 7 of the SPS Agreement rest on several grounds. With respect to the blanket import ban, the
2011 additional testing requirements, and the 2013 additional testing requirements, the Panel's
findings are based on the following reasons: (i) the insufficient content of the publications484; (ii) Korea
had not explained how interested Members would have known to look to the website indicated by
Korea for information on SPS measures governing the products at issue 485; and (iii) the Panel's view
that it was unable to know whether the web addresses provided by Korea were available on the day
Korea announced each of the SPS measures at issue and what content was available on that day .486
With respect to the product-specific import bans, the Panel's findings are based on the reasons listed
in items (ii) and (iii ) above.487 Our finding that the Panel acted inconsistently with Article 11 of the
DSU concerns only the Panel's finding that it was unable to know whether the web addresses provided
by Korea were available on the day Korea announced each of the SPS measures at issue and what
content was available on that day. We note that the remaining grounds for the Panel's ultimate finding
regarding the SPS measures at issue are left undisturbed, and that each of these reasons would justify
the Panel's ultimate finding. T hus, the Panel's ultimate finding that Korea failed to publish its
SPS measures at issue in accordance with Annex B(1) and Article 7 of the SPS Agreement stands.488
5.6.1.6 Conclusion
Annex B(1) to the SPS Agreement requires Members to ensure that adopted SPS regul ations
are published promptly "in such a manner as to enable interested Members to become acquainted
with them". An Annex B(1) publication must be accessible to interested Members and contain sufficient
information, including the product scope and the requirements of the adopted SPS regulation, in order
to enable interested Members to become acquainted with that adopted SPS regulation. The precise
content and amount of information that must be included in an Annex B(1) publication to enable

these measures can be found? Please provide specific reference"; and "Information filters available (e.g. origin,
product)". (Panel question No. 114)
481 In its response, Korea filled out the table sent by the Panel. (Korea's response to Panel question
No. 114)
482 Appellate Body Report, US – Continued Zeroing, para. 347.
483 Appellate Body Report, US – Continued Zeroing, para. 347.
484 Panel Report, paras. 7.487, 7.492, and 7.496.
485 Panel Report, paras. 7.485, 7.498, and 7.500.
486 Panel Report, paras. 7.485, 7.498, and 7.500.
487 Panel Report, para. 7.474.
488 Panel Report, paras. 7.503 and 8.5.a.

interested Membe rs to become acquainted with an adopted SPS regulation will depend on the
particular SPS regulation at issue.
Therefore, we agree with the Panel to the extent the Panel's reference to "conditions" means
the requirements of the adopted SPS regulation. We modify, however, the Panel's finding , in
paragraph 7.464 of the Panel Report, to the extent it considered that Annex B(1) requires, in all cases,
that the publication of an SPS regulation include the "specific principles and methods" applicable to
the produ cts. We instead find that whether the publication of an adopted SPS regulation under
Annex B(1) needs to include the "specific principles and methods" applicable to the products may be
determined only with reference to the specific circumstances of each ca se, such as the nature of the
SPS regulation at issue, the products covered, and the nature of the SPS risks involved.
In relation to the product scope of the blanket import ban, we agree with the Panel that the
reference to "all fishery products" in the p ress release announcing this measure is not sufficient to
comply with Annex B(1) to the SPS Agreement. The blanket import ban covers products that would
normally be included in a category other than "fishery products". For this reason, we do not consider
that the press release at issue published the blanket import ban in such a manner as to enable Japan
to become acquainted with this ban.
Therefore, we find that the Panel did not err in its application of Annex B(1) to the
SPS Agreement to the blanket impo rt ban in relation to the product scope of this measure.
Consequently, we uphold the Panel's finding, in paragraph 7.487 of the Panel Report, that Korea acted
inconsistently with Annex B(1) and Article 7 of the SPS Agreement by not publishing the full prod uct
scope of the blanket import ban.
In relation to the publication of the additional testing requirements, we agree with the Panel
that, in light of the SPS regulations at issue, the press releases announcing the 2011 additional testing
requirements and t he 2013 additional testing requirements should have contained the levels of
caesium (and iodine in the 2011 press release) that would trigger the additional testing; the specific
radionuclides to be tested; the maximum levels for those radionuclides that w ould result in products
being rejected; and, in relation to the 2013 press release only, the procedure and location of the
testing required for the additional radionuclides. In our view, without these elements, the press
releases do not enable interested M embers to become acquainted with the 2011 additional testing
requirements and the 2013 additional testing requirements.
We therefore find that the Panel did not err in its application of Annex B(1) to the
SPS Agreement to the 2011 additional testing requir ements and the 2013 additional testing
requirements in relation to the requirements of these measures. Consequently, we uphold the Panel's
findings, in paragraphs 7.501 -7.502 of the Panel Report, that Korea acted inconsistently with
Annex B(1) and Article 7 of the SPS Agreement by not publishing sufficient information to enable
Japan to become acquainted with the requirements of the 2011 additional testing requirements and
the 2013 additional testing requirements.
In relation to the accessibility of the pub lication of all the SPS measures at issue, we agree
with the Panel that, in light of the case presented by Japan, it was for Korea to provide some evidence
or explanation that interested Members would have known to look to the websites indicated by Korea
for information on the SPS measures at issue. Korea, however, did not provide a clear explanation
concerning whether interested Members would have been able to locate and access the press releases
announcing those measures.
We therefore find that the Panel did not err in its application of Annex B(1) to the
SPS Agreement to the SPS measures at issue in relation to the accessibility of the publications.
Consequently, we uphold the Panel's findings, in paragraphs 7.474, 7.485, 7.498, and 7.500 of the
Panel Report, that Korea did not show that interested Members would have known to look to the
websites indicated by Korea for information on the SPS measures at issue.
In relation to Korea's claim of error under Article 11 of the DSU, we consider that the Panel
failed to engage with the pertinent evidence on the record. Moreover, the Panel should not have left
it to Korea to anticipate, in the absence of a contestation of the publica tion dates by Japan, that it
would be required to submit the archived versions of the webpages to prove the publication dates of
the press releases on government websites. Rather, to the extent the Panel considered it was

necessary for it to have such evidence, it should have sought it from both parties to the dispute and
should only then have drawn appropriate inferences.
We therefore find that the Panel acted inconsistently with Article 11 of the DSU in concluding
that it was unable to know whether the we b addresses provided by Korea were available on the day
Korea announced each of the SPS measures at issue and what content was available on that day.
Given that the remaining grounds for the Panel's ultimate finding regarding the SPS measures
at issue are left undisturbed, and that each of these reasons would justify that finding, the Panel's
ultimate finding in paragraphs 7.503 and 8.5.a of the Panel Report, that Korea acted inconsistently
with Annex B(1) and, as a consequence, Article 7 of the SPS Agreement, stands.
5.6.2 Annex B(3) to the SPS Agreement
5.6.2.1 Introduction
Korea appeals the Panel's finding that Korea acted inconsistently with Annex B(3) to the
SPS Agreement because Korea's SPS enquiry point did not respond to Japan's second query after it
had responded in August 2014 to Japan's first query. 489 Korea claims that the Panel erred in its
interpretation and application of Annex B(3) in finding that Korea acted inconsistently with Annex B(3)
and, as a consequence, Article 7 of the SPS Agreement, because of Korea's SPS enquiry point's failure
to respond to Japan's second request and its earlier failure to enable Japan to relate the documents
provided to their relevance for the questions Japan had posed in its first request.490 Korea requests us
to reverse the Panel's finding that Korea acted inconsistently with Annex B(3), and, as a consequence,
Article 7 of the SPS Agreement.491 Japan, for its part, requests us to uphold the Panel's finding.492
At the outset, we briefly summarize the relevant Panel findings. We then examine the merits
of Korea's claims of error on appeal that the Panel erred in its interpretation and application of
Annex B(3) to the SPS Agreement.
5.6.2.2 The Panel's findings
Before the Panel, Japan argued that Korea acted inconsistently with Annex B(3 ) to the
SPS Agreement because Korea's SPS enquiry point failed to respond adequately to Japan's request of
24 June 2014 and failed to respond to its request of 13 November 2014.493 Also before the Panel,
Korea responded that, as acknowledged by Japan, Korea's SPS enquiry point replied to Japan's earlier
request of 24 June 2014, which, in Korea's view, means that it fulfilled its obligations under
Annex B(3). Korea did not contest the enquiry point's failure to respond to Japan's follow -up request
of 13 November 2014.494 Korea, however, argued that a single instance of no response by an enquiry
point does not give rise to a violation of Annex B(3).495
The Panel explained that, pursuant to Annex B(3) to the SPS Agreement, Members must
ensure the existence of one enquiry point which is responsible for providing answers to all reasonable
questions and relevant documents. The Panel noted that the correspondence with an enquiry point is
an iterative process, and that an enquiry point must not be held to the "standard of perfection".496 To
the Panel, the incompleteness of a single answer or failure to provide a particular document as part
of a response will not necessarily give rise to an inconsistency with Annex B(3). That said, the Panel
explained that "failure to respon d at all would result in an inconsistency with the obligation in
Annex B(3)."497 The Panel concluded that compliance with Annex B(3) is achieved not only through
the formality of creating an enquiry point, but also through the actual provision of information and

489 Korea's appellant's submission, para. 380. See also Panel Report, para. 7.519.
490 Korea's appellant's submission, paras. 383 and 385-386.
491 Korea's appellant's submission, paras. 386 and 387.u (referring to Panel Report, paras. 7.506-7.507,
7.509, 7.518-7.519, and 8.5.b).
492 Japan's appellee's submission, paras. 924-925.
493 Panel Report, para. 7.504 (referring to Japan's second written submission to the Panel, para. 362).
494 Panel Report, para. 7.505.
495 Panel Report, para. 7.506 (referring to Korea's first written submission to the Panel, para. 394).
496 Panel Report, para. 7.507.

answers to reasonable questions. 498 The Panel reasoned that it would be "incongruous" to conclude
that the drafters of the SPS Agreement would establish an obligation for Members to set up an enquiry
point, endow it with responsibility, and then not req uire that the concomitant benefit to interested
Members of receiving the answers and documents be provided.499
Turning to examine whether Korea acted inconsistently with Annex B(3) to the
SPS Agreement, the Panel found that Korea's SPS enquiry point provided a response to
Japan's request of 24 June 2014. The Panel noted that Korea's response to this request was not
complete and was not done in a manner that would easily enable Japan to relate the documents
provided to the questions Japan had posed.500 That said, the Panel considered that Korea's response,
on its own, did not rise to the level of an inconsistency with Annex B(3).501
The Panel then noted that Korea did not provide any response to Japan's request of
13 November 2014. 502 The Panel considered that, even though Korea's response to Japan's first
request was not sufficient on its own to establish an inconsistency with Annex B(3), Korea failed to
comply with its obligations under Annex B(3) because Korea's SPS enquiry point did not respond to
Japan's second r equest.503 The Panel clarified that it based its finding of inconsistency on the
SPS enquiry point's failure both to respond to Japan's second request and to relate the answers and
documents provided to their relevance for the questions Japan had posed in its first request.504
5.6.2.3 Whether the Panel erred in finding that Korea acted inconsistently with Annex B(3)
to the SPS Agreement
On appeal, Korea claims that the Panel erred in its interpretation and application of Annex B(3)
to the SPS Agreement in finding that a single omission of Korea's SPS enquiry point to respond to a
request from Japan constitutes an inconsistency with this provision.505 In Korea's view, the obligation
contained in Annex B(3) is for a Member to ensure that one enquiry point exists and that it is given
the responsibilities described in this provision. Korea argues that there is nothing in Annex B(3)
suggesting that an indi vidual failure to respond to a question would necessarily result in an
inconsistency with this provision. 506 Korea agrees that a persistent or repeated failure to respond to
requests may constitute an inconsistency with Annex B(3), because, despite its existence "on paper",
the enquiry point could not be said to have the responsibilities set out in Annex B(3). 507
Thus, Korea submits that a claim of inconsistency with Annex B(3) must be based on allegations and
evidence that the Member has failed to ensure that one enquiry point exists which is responsible for
the provision of answers to reasonable questions and relevant documents.508 Korea contends that, in
the present case, Japan failed to demonstrate that the failure of Korea's SPS enquiry point to respond
to one query makes it "non-responsive" such that it exists only "on paper".509
Japan considers that Korea's arguments on appeal take issue with "where the Panel drew the
line … between acceptable and unacceptable failures to respond to reasonable questions" 510 in the
application of Annex B(3) to the SPS Agreement, rather than with the interpretation of this
provision.511 Japan contends that the Panel did not base its conclusion of an inconsistency with
Annex B(3) on a single failure of Korea's SPS enquiry point to respond to Japan's request.512 According
to Japan, the Panel rather reached its conclusion in light of both: (i) Korea's SPS enquiry point's failure
to respond to Japan's first request in a manner that would have enabled Japan to relate the documents

498 Panel Report, paras. 7.510 and 7.520.
499 Panel Report, para. 7.508.
500 Panel Report, para. 7.516.
501 Panel Report, paras. 7.516 and 7.519-7.520.
502 Panel Report, para. 7.517.
503 Panel Report, paras. 7.518-7.519.
504 Panel Report, para. 7.520.
505 Korea's appellant's submission, paras. 383 and 385-386 (referring to Panel Report, para. 7.518).
506 Korea's appellant's submission, para. 383.
507 Korea's appellant's submission, paras. 383-384.
508 Korea's appellant's submission, para. 383.
509 Korea's appellant's submission, para. 384.
510 Japan's appellee's submission, para. 916. (emphasis omitted)
511 Japan's appellee's submission, paras. 915-916.
512 Japan's appellee's submission, paras. 919 and 922.

provided to their relevance for the questions Japan had posed; and (ii) Korea's SPS enquiry point's
failure to respond to Japan's second request.513
We note that the introductory clause of Annex B(3) to the SPS Agreement provides that each
Member "shall ensure that one enquiry point exists which is responsible for the provision of answers
to all reasonable questions from interested Members as well as for the provision of relevant
documents". Subparagraphs (a) through (d) of Annex B(3) detail the matters regarding whic h an
enquiry point provides answers to reasonable questions and relevant documents.514
In its interpretation of Annex B(3) to the SPS Agreement, the Panel considered that the
incompleteness of an answer or failure to provide a particular document as part of a response will not
necessarily give rise to an inconsistency with Annex B(3).515 The Panel then clarified, however, that
"failure to respond at all would result in an inconsistency with the obligation in Annex B(3)."516
Therefore, the Panel considered that, while an incomplete answer would not necessarily lead to an
inconsistency with Annex B(3), a failure to respond would result in an inconsistency with this provision.
We understand the Panel's interpretation to imply that a single failure of an enquiry point to answer a
reasonable question or to provide relevant documents necessarily leads to an inconsistency with
Annex B(3).
In its appeal, Korea challenges the Panel's interpretation, arguing that a single failure of an
enquiry point to respond to a request is not sufficient to establish an inconsistency with Annex B(3)
to the SPS Agreement. We do not consider that a single failure of an enquiry point to respond in and
of itself would automatically result in an inconsistency with the obligation provided for i n Annex B(3)
to ensure the existence of an enquiry point with the responsibilities set out in this provision. As
explained above, Annex B(3) requires Members to ensure the existence of one enquiry point which is
responsible for the provision of answers to all reasonable questions and for the provision of relevant
documents. In our view, this means that the obligation under Annex B(3) concerns ensuring the
existence of an enquiry point which is responsible for providing answers and documents.
We emphasize t hat whether and the extent to which a particular enquiry point answers all
reasonable questions and provides relevant documents are not irrelevant for the assessment under
Annex B(3). Rather, it informs an assessment of whether "one enquiry point exists which is responsible
for the provision of answers to all reasonable questions from interested Members as well as for the
provision of relevant documents" within the meaning of Annex B(3). In our view, this assessment
requires an examination of all the releva nt factors, including the total number of questions received
by the enquiry point and the proportion of and the extent to which questions were answered, the
nature and scope of the information sought and received, and whether the enquiry point repeatedly
failed to respond. Thus, we agree with the Panel that compliance with Annex B(3) is not a mere
formality of establishing an enquiry point.517 We disagree, however, with the Panel that a single failure
of an enquiry point to respond to a request would result in an inconsistency with the obligation under
Annex B(3).518
In view of the foregoing, we find that the Panel erred in its interpretation of Annex B(3) to the
SPS Agreement in finding that a single failure of an enquiry point to respond to a request would result

513 Japan's appellee's submission, paras. 922-923 (quoting Panel Report, para. 7.520).
514 Annex B(3) of the SPS Agreement provides:
Each Member shall ensure that one enquiry point exists which is responsible for the provision of
answers to all reasonable questions from interested Members as well as for the provision of
relevant documents regarding:
(a) any sanitary or phytosanitary regulations adopted or proposed within its territory;
(b) any control and inspection procedures, production and quarantine treatment, pesticide
tolerance and food additive approval procedures, which are operated within its territory;
(c) risk assessment procedures, factors taken into consideration, as well as the determination
of the appropriate level of sanitary or phytosanitary protection;
(d) the membership and participation of the Member, or of relevant bodies within its territory,
in international and regional sanitary and phytosanitary organizations and systems, as
well as in bilateral and multilateral agreements and arrangements within the scope of this
Agreement, and the texts of such agreements and arrangements.
515 Panel Report, paras. 7.507 and 7.520.
516 Panel Report, para. 7.507.
517 Panel Report, paras. 7.510 and 7.520.
518 Panel Report, para. 7.507.

in an inconsistency with Annex B(3). We thus reverse the Panel's findings in paragraphs 7.507-7.510
of the Panel Report.
With respect to the Panel's application of Annex B(3) to the SPS Agreement, Japan's
arguments before the Panel focused on the resp onses provided by Korea's enquiry point to
two requests by Japan, and the Panel structured its analysis accordingly.519 Having found that (i) the
response provided to Japan's first request was not complete and did not easily enable Japan to relate
the docume nts provided to their relevance for the questions Japan had posed 520, and (ii) that no
response was provided to Japan's second request521, the Panel found that Korea acted inconsistently
with Annex B(3) to the SPS Agreement.522
In applying Annex B(3) to the fact s of the case, the Panel thus limited its analysis to the
responsiveness of Korea's enquiry point only vis -à-vis the two requests submitted by Japan, one of
which was partially answered. In our view, this does not constitute a sufficient examination of all
relevant factors necessary to determine whether Korea acted consistently with Annex B(3). While the
Panel did assess the scope and nature of the information sought through Japan's first request, it did
not do so for Japan's second request. Furthermore, the Panel did not examine how many requests had
been received by Korea's enquiry point in total over a period of time and the proportion of questions
that had been answered. The Panel also failed to examine whether Korea's enquiry point repeatedly
failed to respond. Without assessing those factors, the Panel was not in a position to reach a conclusion
as to whether Korea ensured that "one enquiry point exists which is responsible for the provision of
answers to all reasonable questions from interested Members as well as for the provision of relevant
documents", and, consequently, whether Korea acted inconsistently with Annex B(3).
In view of the foregoing, we find therefore that the Panel erred in its application of Annex B(3)
to the SPS Agreement in finding, based only on two specific instances – Korea's SPS enquiry point's
incomplete response to Japan's first request and its failure to respond to Japan's second request –
that Korea acted inconsistently with Annex B(3) and, as a consequence, Article 7 of the
SPS Agreement. We thus reverse the Panel's finding in paragraphs 7.520 and 8.5.b of the Panel
Report.
5.6.2.4 Conclusion
The introductory clause of Annex B(3) to the SPS Agreement requires Members to ensure that
one enquiry point exists which is responsible for th e provision of answers to all reasonable questions
and for the provision of relevant documents. We do not consider that a single failure of an enquiry
point to respond in and of itself would automatically result in an inconsistency with Annex B(3). In our
view, however, whether and the extent to which an enquiry point actually provides answers to all
reasonable questions and provides documents are not irrelevant for the assessment under Annex B(3).
Rather, it informs an assessment of whether "one enquiry po int exists which is responsible for the
provision of answers to all reasonable questions from interested Members as well as for the provision
of relevant documents" within the meaning of Annex B(3). This assessment requires an examination
of all the relevant factors, including the total number of questions received by the enquiry point and
the proportion of and the extent to which questions were answered, the nature and scope of the
information sought and received, and whether the enquiry point repeatedly f ailed to respond. For
these reasons, we disagree with the Panel's view that a single failure to respond would result in an
inconsistency with the obligation under Annex B(3).
We therefore find that the Panel erred in its interpretation of Annex B(3) to the SPS Agreement
in finding that a single failure of an enquiry point to respond to a request would result in an
inconsistency with Annex B(3). Consequently, we reverse the Panel's findings in
paragraphs 7.507-7.510 of the Panel Report.
With respect to the Panel's application of Annex B(3) to the SPS Agreement, the Panel limited
its analysis to the responsiveness of Korea's enquiry point only vis -à-vis the two requests submitted
by Japan. In our view, this does not constitute a sufficient examination of all relevant factors necessary

519 Panel Report, paras. 7.504 and 7.511-7.519. The Panel assessment concerns Japan's requests of
24 June 2014 and of 13 November 2014.
520 Panel Report, paras. 7.516 and 7.520.
521 Panel Report, paras. 7.517 and 7.520.
522 Panel Report, para. 7.520.

to determine whether Korea acted inconsistently with Annex B(3). The Panel did not assess: (i) the
scope and nature of the information sought through Japan's second request; (ii) how many requests
had been received by Korea's enqu iry point in total over a period of time and the proportion of
questions that had been answered; and (iii) whether the enquiry point repeatedly failed to respond.
Without assessing those factors, the Panel was not in a position to reach a conclusion about whether
Korea ensured that "one enquiry point exists which is responsible for the provision of answers to all
reasonable questions from interested Members as well as for the provision of relevant documents",
and, consequently, whether Korea acted inconsistently with Annex B(3).
We therefore find that the Panel erred in its application of Annex B(3) to the SPS Agreement
in finding, based only on two specific instances – Korea's SPS enquiry point's incomplete response to
Japan's first request and its failure to respond to Japan's second request – that Korea acted
inconsistently with Annex B(3) and, as a consequence, Article 7 of the SPS Agreement. Consequently,
we reverse the Panel's finding, in paragraphs 7.520 and 8.5.b of the Panel Report, that Korea acted
inconsistently with Annex B(3) and, as a consequence, Article 7 of the SPS Agreement.
5.7 Article 8 and Annex C(1)(a) to the SPS Agreement
5.7.1 Introduction
In this section of the Report, we address Japan's claim of error on appeal under Annex C(1)(a)
to the SPS Agreement. Japan appeals the Panel's finding that Japan failed to establish that imported
and domestic products can be presumed to be "like" for the purposes of its claim under Annex C(1)(a).
In Japan's view, the Panel erred in its interpretation and application of Annex C(1)(a) in articulating
the conditions for presuming likeness under that provision and in finding that Japanese imported
products subject to the 2011 and 2013 additional testing requirements and Korean domestic products
could not be presumed to be "like". 523 Japan requests us to reverse the Panel's findings and
conclusions pertaining to the presumption of likeness. Japan also requests us t o reverse the Panel's
finding that, as Japan had not demonstrated that Japanese and Korean products can be regarded as
like products, it had also failed to establish that Korea acted inconsistently with Annex C(1)(a) and,
as a consequence, Article 8 of the SPS Agreement by adopting or maintaining the 2011 and 2013
additional testing requirements.524 By contrast, Korea requests us to uphold these Panel findings.525
Japan's claim on appeal under Annex C(1)(a) focuses on the Panel's decision not to presume
that Japanese imported products and Korean domestic products are "like".526 In this section, we
therefore first summarize the relevant Panel findings with respect to the presumption of likeness. We
then turn to examine the merits of Japan's claim that the Panel erred in its interpretation and
application of Annex C(1)(a) in declining to presume that Japanese imported products and
Korean domestic products are "like".
5.7.2 The Panel's findings
Before the Panel, Japan raised a claim of inconsistency under Article 8 and Annex C(1)(a) to
the SPS Agreement in relation to two of Korea's measures, namely, the 2011 additional testing
requirements and the 2013 additional testing requirements.527 Having found that the 2011 and 2013
additional testing requirements constitute "procedures to check and ensure the fulfilment of Korea's
SPS measures" falling within the scope of Article 8 and Annex C528, the Panel recalled that the second
clause o f Annex C(1)(a) requires that such procedures be undertaken and completed in no less
favourable manner for imported products than for "like" domestic products. 529 In assessing whether
Japanese imported products and Korean domestic products are "like" under that provision, the Panel
recalled the Appellate Body's statement made in the context of the General Agreement on Trade in

523 Japan's other appellant's submission, paras. 362-365 and 384.
524 Japan's other appellant's submission, para. 486 (referring to Panel Report, paras. 7.394-7.403, 7.409,
7.447, and 8.4).
525 Korea's appellee's submission, paras. 126 and 136-137.
526 Japan's other appellant's submission, paras. 358 and 395. On appeal, Japan does not challenge the
Panel's subsequent analysis of whether Japanese and Korean products are "like" under Annex C(1)(a) to the
SPS Agreement.
527 Panel Report, paras. 7.363-7.364.
528 Panel Report, para. 7.384.
529 Panel Report, para. 7.385.

Services (GATS) that, for likeness to be presumed, a complainant must make a prima facie case that
a measure draws a distinction based solely on origin.530
Turning to the procedures at issue, the Panel acknowledged that the 2011 and 2013 additional
testing requirements apply only to Japanese products and that origin is a criterion that Korea uses to
distinguish between domestic and Japanese products. To the Panel, however, a panel must not assume
that, simply because origin is a criterion for distinguishing between products, the measures satisfy the
test to apply the presumption. Rather, a panel must address the parties' arguments with res pect to
whether the distinction is based on grounds in addition to origin.531
The Panel relied on the press releases announcing the 2011 and 2013 additional testing
requirements and a related document on the Panel record, noting that these documents refer t o the
FDNPP accident and health -related concerns.532 In addition, the Panel observed that Japan did not
deny that concerns other than origin underpin the 2011 and 2013 additional testing requirements.
Rather, as the Panel recalled, Japan argued that such con cerns are not based on science, given the
allegedly similar risk profile of Japanese and Korean products. 533 To the Panel, however, this is an
issue more properly addressed under Articles 2.2, 2.3, 5.1, and 5.6 of the SPS Agreement. The Panel
added that, even if the 2011 and 2013 additional testing requirements are applied more than to the
extent necessary, "the distinction of applying them only to Japan cannot be separated from the public
health concern and the fact that it was Japan that experienced the FDNPP accident."534 Moreover, the
Panel looked at "Korea's SPS regime" and considered that it takes into account health risks posed by
contaminated products from origins other than Japan. In particular, the Panel observed that Korea
"closely monitors imports of food products from Ukraine, Belarus and other neighbouring countries
affected by the fallout following the Chernobyl accident" and undertakes caesium testing, twice weekly,
for "six fishery species caught in the Pacific region". 535 In the Panel's view, Korea has thus "a varied
regime that is not based only on origin, but takes into consideration the potential of contamination of
food by radionuclides". 536 For all of these reasons, the Panel found that Japan had failed to
demonstrate that Japanese imported products and Korean domestic products can be presumed to be
"like".537
The Panel further found that, even if Japan had established a prima facie case that the
presumption of likeness applies, Korea had succeeded in rebutting that presumption. In reaching this
conclusion, the Panel considered that Korea introduced arguments to support its contention that the
distinction drawn by the 2011 and 2013 additional testing requirements is not solely based on origin.538
The Panel emphasized that "the documents anno uncing the 2011 and 2013 additional testing
requirements refer to health risks related to the contamination of Japanese food by radionuclides as
the rationale for adopting the measures" and, as such, "they provide contemporaneous corroboration
for Korea's contention that public health concerns constituted one of the grounds for drawing a
distinction between domestic and imported products."539
Having concluded that likeness could not be presumed for the purposes of Japan's claim under
Annex C(1)(a), the Panel turned to assess whether Japanese imported products and Korean domestic
products are in fact "like".540 Given that Japan did not elaborate further why imported and domestic
products should be considered "like", the Panel found that Japan had failed to demon strate that

530 Panel Report, para. 7.394 (referring to Appellate Body Report, Argentina – Financial Services,
para. 6.42).
531 Panel Report, para. 7.397 (referring to Appellate Body Report, Argentina – Financial Services,
paras. 6.60-6.61).
532 Panel Report, para. 7.398 (referring to KFDA 14 April 2011 press release (Panel Exhibits JPN-55.b
(revised) and KOR-72 (revised)); PMO blanket import ban and additional testing requirements press release
(Panel Exhibit JPN-3.b); MFDS 2013 blanket import ban and additional testing requirements notice (Panel Exhibit
JPN-75.b)).
533 Panel Report, para. 7.399 (referring to Japan's second written submission to the Panel, para. 434).
534 Panel Report, para. 7.399.
536 Panel Report, para. 7.400.
537 Panel Report, para. 7.400.
538 Panel Report, para. 7.401.
539 Panel Report, para. 7.401. In this context, the Panel observed that "assessing whether a presumption
of likeness has been established does not imply an in-depth inquiry into the nature of the distinction, as long as
the reasons given by the respondent to rebut it are genuine and corroborated by evidence." (Panel Report,
para. 7.402 (referring to Panel Report, China – Publications and Audiovisual Products, para. 7.1496))
540 Panel Report, para. 7.403.

domestic and imported products are "like" under Annex C(1)(a).541 The Panel therefore found that
Japan had failed to establish that Korea acted inconsistently with Annex C(1)(a) and, as a
consequence, Article 8 of the SPS Agreement by adopting or maintaining the 2011 and 2013 additional
testing requirements.542
5.7.3 Whether the Panel erred under Annex C(1)(a) to the SPS Agreement in declining to
presume likeness
Japan claims that the Panel erred in its interpretation and application of Annex C(1)(a) to the
SPS Agreement in declining to presume that Japanese imported products and Korean domestic
products are "like".543 According to Japan, the pertinent considerations for a panel when deciding
whether to presume likeness are "the terms of the measure itself, and whether the measure expresses
origin as the sole criterion of distinction" between imported and domestic products.544 In Japan's view,
whether the regulator considered grounds other than origin when adopting the measure should not
be taken into consider ation in the analysis. 545 Japan thus takes issue with the Panel's reliance on
health concerns considered by Korea, which were allegedly not expressed as a criterion for the
distinction between Japanese and Korean products in the 2011 and 2013 additional test ing
requirements themselves.546 Japan submits that, in giving weight to such health concerns, the Panel
looked beyond whether the 2011 and 2013 additional testing requirements express origin as the sole
criterion of distinction.547 Japan concludes that the Panel should have presumed likeness on the basis
that Japan established a prima facie case that the 2011 and 2013 additional testing requirements draw
a distinction exclusively on the basis of origin548, and that Korea did not successfully rebut that prima
facie case.549
Korea argues that, in determining whether a distinction is based exclusively on origin, a panel
may examine "factors outside of the terms of the measure, including the objectives, rationale, and
effect of the measure".550 Korea also argues that there is no obligation for panels to presume likeness
even where the measure at issue distinguishes between products solely based on origin. Therefore, to
Korea, even if the presumption had been applicable, the Panel was free not to presume likeness and
then turn to examine whether the products at issue were "like" under Annex C(1)(a).551
Annex C(1)(a) to the SPS Agreement requires Members to ensure, with respect to any
procedure to check and ensure the fulfilment of SPS measures, that "such procedures are undertaken
and completed without undue delay and in no less favourable manner for imported products than for
like domestic products."
Japan's appeal focuses on the likeness requirement in the second clause of Annex C(1)(a) and,
more particularly, on the Panel's decision not to presume the likeness of Japanese imported products
and Korean domestic products for the purposes of Japan's claim of inconsistency under that clause.
We therefore examine whether the Panel erred in its interpretation and application of Ann ex C(1)(a)
in declining to presume likeness for Japanese imported products and Korean domestic products when
assessing the consistency of the 2011 and 2013 additional testing requirements with that provision.
Several panels have found, under the GATT 1994 and the GATS, that, when a measure makes
a distinction between products (or between services and service suppliers) based exclusively on the
origin of the product s (or the service s and the service supplier s), a complainant is not necessarily
required to e stablish likeness based on the criteria traditionally employed as analytical tools for

541 Panel Report, paras. 7.407-7.408.
542 Panel Report, paras. 7.409, 7.447, and 8.4.
543 Japan's other appellant's submission, paras. 362-365 and 384.
544 Japan's other appellant's submission, paras. 363 and 416. (emphasis original) See also ibid.,
para. 421.
545 Japan's other appellant's submission, paras. 364, 416, and 424.
546 At the oral hearing, Japan clarified that health concerns could have been relevant, had they been
expressed as a criterion for the distinction in the 2011 and 2013 additional testing requirements themselves.
(Japan's response to questioning at the oral hearing)
547 Japan's other appellant's submission, para. 380. See also ibid., paras. 384 and 446.
548 Japan's other appellant's submission, para. 437.
549 Japan's other appellant's submission, paras. 460-461 and 469.
550 Korea's appellee's submission, para. 119.
551 Korea's appellee's submission, paras. 106-107 and 112.

assessing likeness.552 Instead, those panels found that, in such cases, likeness can be presumed. 553
This approach of presuming likeness was endorsed by the Appellate Body in Argentina – Financial
Services in the context of Articles II:1 and XVII:1 of the GATS.554 The Appellate Body considered that
"where a measure provides for a distinction based exclusively on origin, there will or can be services
and service suppliers that are the same in all respects except for origin" and that, as a result, likeness
can be presumed.555
This dispute is the first in which a panel addressed the presumption of likeness in the context
of the SPS Agreement. Unlike the non -discrimination provisions in the GATT 1994, the
non-discrimination obligations set out in Articles 2.3 and 5.5 of the SPS Agreement do not refer to like
products. In the SPS Agreement, the reference to like products is found only in Annex C(1). The Panel
considered that the same likeness criteria as under Article III:4 of the GATT 1994 are appropriate for
an analysis under Annex C(1)(a) to the SPS Agreement.556 As set out above, the Panel then addressed
whether likeness might be presumed and found that Japan had not made a prima facie case that origin
is the sole basis for a distinction between Japanese and Korean products and that, to the extent Japan
made such a prima facie case, Korea had successfully rebutted it. It is on this basis that the Panel
declined to presume that Japanese imported products and Korean domestic products are "like".557
The Panel appears to have accepted that, in principle, likeness may be presumed for purposes
of Annex C(1)(a) if a procedure distinguishes between products based exclusively on their origin. We
are not convinced that the Panel could have done so under the SPS Agreement without further
analysis. SPS measures are defined in Annex A(1) to the SPS Agreement as measures applied to
protect human, animal, or plant life or health from a certain risk or to prevent or limit certain damage
from pests. In our view, in light of Annex A(1), the question arises whether a procedure to check and
ensure the fulfilment of SPS measures is at all capable of making a distinction between products based
exclusively on their origin and thus whether likeness may be presumed in the context of
Annex C(1)(a). The Panel did not explore that question and appears to have simply assumed that
likeness may be presumed under Annex C(1)(a).
We consider it unnecessary, however, to reach a conclusion regarding the Panel's view that
likeness may be presumed under Annex C(1)(a). We agree with the Panel that the 2011 and 2013
additional testing requirements do not draw a distinction between Japanese and Korean products

552 In the context of the GATT 1994, the criteria traditionally employed for assessing likeness are those
outlined in the Working Party Report on Border Tax Adjustments and further developed by the Appellate Body in
Japan – Alcoholic Beverages II. (GATT Working Party Report, Border Tax Adjustments, L/3464, adopted
2 December 1970, BISD 18S, para. 18; Appellate Body Report, Japan – Alcoholic Beverages II, pp. 21-22;
DSR 1996:I, pp. 114-115)
553 See e.g. Panel Reports, Indonesia – Autos, paras. 14.112-14.113; China – Publications and Audiovisual
Products, paras. 7.975 and 7.1447; US – Poultry (China), paras. 7.426-7.429; Argentina – Import Measures,
paras. 6.275-6.276; Brazil – Taxation, para. 7.125.
554 This was the first dispute in which the Appellate Body had to examine the presumption of likeness.
555 Appellate Body Report, Argentina – Financial Services, para. 6.38. The Appellate Body stated that,
compared to trade in goods, the scope for such a presumption under the GATS would be more limited, and
establishing likeness based on the presumption may often involve greater complexity in trade in services. (Ibid.,
para. 6.38) The Appellate Body further stated that "[w]hether and to what extent such complexities have an
impact on the determination of whether a distinction is based exclusively on origin in a particular case will
depend on the nature, configuration, and operation of the measure at issue and the particular claims raised."
(Ibid., para. 6.41) The Appellate Body said that it is for the complainant to make a prima facie case that a
measure draws a distinction based exclusively on origin. The respondent may rebut such a prima facie case by
demonstrating that origin is not the exclusive basis for the distinction drawn by the measure, or by introducing
arguments and evidence relating to the criteria for determining likeness under the relevant provisions of the
GATS. (Ibid., paras. 6.42 and 6.45) The measures at issue in that dispute distinguished between "cooperative"
countries and "non-cooperative" countries for tax transparency purposes. In the context of that particular
dispute, the Appellate Body disagreed with the panel's decision to presume likeness. The panel had noted that
the distinction operated by the measures was not based on "origin per se", but on "the regulatory framework
inextricably linked to such origin". To the Appellate Body, in light of that observation, the panel could not have
concluded that the distinction drawn by the measures at issue was based exclusively on origin. (Ibid., paras. 5.3
and 6.56-6.61)
556 Panel Report, para. 7.393. We recall that, in this appeal, we are not requested to examine whether the
Panel erred in employing, under Annex C(1)(a) to the SPS Agreement, the criteria for assessing likeness
traditionally employed as analytical tools in the context of the GATT 1994.
557 Panel Report, paras. 7.400 and 7.402.

based solely on origin. 558 Thus, it is inconsequential whether likeness may be presumed under
Annex C(1)(a), because, in the particular circumstances of this case, the Panel, in any event, would
not have been in a position to presume that Japanese and Korean products are "like" in relation to the
procedures at issue. In the following paragraphs, we examine whether our preliminary assessment
should be maintained in light of Japan's arguments on appeal that challenge the Panel's view that the
measures at issue do not draw a distinction between Japanese and Korean products based solely on
origin.
On appeal, Japan notes that, under Articles 2.3 and 5.6 of the SPS Agreement, the Panel found
that Japanese products do not differ in terms of "health risks". Specifically, Japan notes that the Panel
examined in detail Korea's alleged public health "rationale for adopting the measures", and rejected
Korea's argument that Japanese food products raise particular health concerns that would justify
distinguishing Japanese products from Korean food products.559 In Japan's view, the Panel could not
decline to presume likeness because of alleged public health concerns underpinning the 2011 and
2013 additional testing requirements when the Panel had already found that those public healt h
concerns are not warranted as they do not support the distinction drawn between Japanese and Korean
food products.560
We are not convinced by Japan's argument. In arguing that both domestic and imported
products present similar "health risks", Japan in ef fect appears to acknowledge that the 2011 and
2013 additional testing requirements were adopted to address certain health risks. We agree with the
Panel that, regardless of whether Korea's measures are consistent with Articles 2.3 and 5.6, the
distinction of applying the 2011 and 2013 additional testing requirements only to Japan cannot be
separated "from the public health concern and the fact that it was Japan that experienced the FDNPP
accident".561 Moreover, the fact that a measure does not distinguish products based exclusively on the
origin of those products does not prevent domestic and imported products that pose similar health
risks from being considered "like" under the likeness analysis in Annex C(1)(a).
Japan also takes issue with the Panel's relia nce on health concerns considered by Korea
because they were allegedly not expressed as a criterion for the distinction between Japanese and
Korean products in the 2011 and 2013 additional testing requirements themselves. 562 In the same
vein, Japan faults the Panel for having examined other measures in Korea's SPS regime in its analysis
of the presumption. 563 Korea in turn argues that, in determining whether a distinction is based
exclusively on origin, a panel may examine the objectives, rationale, and effect of the measure.564 We
note that the Panel focused its analysis on the documents announcing the 2011 and 2013 additional
testing requirements. 565 In addition, the Panel examined the 2011 and 2013 additional testing
requirements against Korea's SPS regime. 566 As n oted above, we agree with the Panel that the
documents announcing the 2011 and 2013 additional testing requirements refer to the FDNPP accident
and certain health-related concerns.567 Thus, we are not convinced by Japan's argument that the Panel
erred by taking into account the health-related concerns underpinning the 2011 and 2013 additional
testing requirements reflected in the documents announcing those measures.

558 The Panel found that the documents announcing the 2011 and 2013 additional testing requirements
refer to the FDNPP accident and health-related concerns. (Panel Report, para. 7.398) Specifically, these
documents refer to the FDNPP accident, "the recent level-up in nuclear incident rating", "nuclear event scale of
FDNPP that has been revised upward", "imports of fishery products that have been contaminated with radiation",
and measures taken "for safety management of imported fishery products" with respect to the FDNPP accident.
(KFDA 14 April 2011 press release (Panel Exhibits JPN-55.b (revised) and KOR-72 (revised)); PMO blanket import
ban and additional testing requirements press release (Panel Exhibit JPN-3.b); MFDS 2013 blanket import ban
and additional testing requirements notice (Panel Exhibit JPN-75.b)) We agree with the Panel that "the distinction
of applying [the 2011 and 2013 additional testing requirements] only to Japan cannot be separated from the
public health concern and the fact that it was Japan that experienced the FDNPP accident." (Panel Report,
para. 7.399) Finally, we note that Japan acknowledged that health concerns are a factor in Korea's adoption of its
measures. (Panel Report, para. 7.399 (referring to Japan's second written submission to the Panel, para. 434))
559 Japan's other appellant's submission, para. 450 (referring to Panel Report, paras. 7.355 and 7.359).
560 Japan's other appellant's submission, paras. 450 and 463-468.
561 Panel Report, para. 7.399.
562 Japan's other appellant's submission, paras. 363-364, 416, 421, 448-449, and 453.
563 Japan's other appellant's submission, para. 452.
564 Korea's appellee's submission, para. 119.
565 Panel Report, para. 7.398.
566 Panel Report, para. 7.400.
567 Panel Report, para. 7.398.

Finally, Japan submits that, while the Panel states that it relied on "the text of the measure
[at issue] or other documents on the record", the Panel merely relied on one internal unpublished
document and two press releases announcing the 2011 and 2013 additional testing requirements. 568
Japan contends that these documents did not include the entire content of the regulations. 569 In its
analysis, the Panel indeed relied on the documents announcing the 2011 and 2013 additional testing
requirements as well as a related document on the Panel record, namely, an MFDS communication to
a number of Korean agencies.570 Before the Panel, Korea confirmed that this latter document contains
the administrative instructions sent to the relevant enforcement agencies after the announcement of
the 2013 additional testing requirements.571 In our view, the documents on the Panel record examined
by the Panel were relevant to the analysis under Annex C(1)(a). Japan has neither identified other
documents that the Panel should have considered, nor explained how such other documents would
have affected the Panel's analysis. Thus, we are not convinced by Japan's argument.
For all of these reasons, in relation to this dispute, we see no error in the Panel's decision to
decline to presume that Japanese imported products and Korean domestic products are "like" for
purposes of Anne x C(1)(a) to the SPS Agreement. We therefore confirm our view that it is not
necessary for the purposes of Japan's claim of error on appeal to consider whether the presumption
of likeness may at all be used in the context of Annex C(1)(a).
5.7.4 Conclusion
Annex C(1)(a) to the SPS Agreement requires Members to ensure, with respect to any
procedure to check and ensure the fulfilment of SPS measures, that such procedures are undertaken
and completed in no less favourable manner for imported products than for "like domestic products".
In our view, in light of the definitions of SPS measures in Annex A(1) to the SPS Agreement, the
question arises whether a procedure to check and ensure the fulfilment of SPS measures is at all
capable of making a distinction between products based exclusively on their origin and thus whether
likeness may be presumed in the context of Annex C(1)(a). The Panel did not explore that question
and appears to have simply assumed that likeness may be presumed under Annex C(1)(a). That said,
for the purposes of Japan's claim of error on appeal, it is inconsequential whether likeness may be
presumed under Annex C(1)(a), because, in the particular circumstances of this case, the Panel, in
any event, would not have been in a position to presume that Japanese and Korean products are "like"
in relation to the procedures at issue. This is because we agree with the Panel's statement, in
paragraph 7.399 of its Report, that the distinction of applying the 2011 and 2013 additional testing
requirements only to Japan "cannot be separated from the public health concern and the fact that it
was Japan that experienced the FDNPP accident". On this basis, the Panel was correct to conclude that
the 2011 and 2013 additional testing requirements do not distinguish be tween Japanese and Korean
products solely based on origin.
We therefore find that the Panel did not err in declining to presume that Japanese imported
products and Korean domestic products are "like" for purposes of Annex C(1)(a) to the
SPS Agreement. Consequently, we uphold the Panel's finding, in paragraph 7.403 of the Panel Report,
that Japan has failed to establish that imported and domestic products can be presumed to be "like".
Therefore, the Panel's finding, in paragraph 8.4 of the Panel Report, that Japan has failed to establish
that Korea acted inconsistently with Annex C(1)(a) and Article 8 of the SPS Agreement stands.
6 FINDINGS AND CONCLUSIONS
For the reasons set out in this Report, the Appellate Body makes the following findings and
conclusions.

568 Japan's other appellant's submission, para. 442 (referring to Panel Report, paras. 7.398 and
7.490-7.494).
569 Japan's other appellant's submission, para. 442.
570 Panel Report, para. 7.398 (referring to KFDA 14 April 2011 press release (Panel Exhibits JPN-55.b
(revised) and KOR-72 (revised)); PMO blanket import ban and additional testing requirements press release
(Panel Exhibit JPN-3.b); MFDS 2013 blanket import ban and additional testing requirements notice (Panel Exhibit
JPN-75.b)).
571 Panel Report, para. 7.477 (referring to Korea's responses to Panel questions Nos. 72 and 130). See
also ibid., para. 2.101.

6.1 Article 5.6 of the SPS Agreement
A panel examining a claim under Article 5.6 of the SPS Agreement is charged with, inter alia,
ascertaining the respondent's ALOP on the basis of the totality of the arguments and evidence on the
Panel record. A panel is also required to identify the level of protection that would be achieved by the
alternative measure proposed by the complainant. The Panel in this dispute accepted Korea's own
articulation of the relevant ALOP as one containing the following elements concerning radioactivity
levels in food consumed by Korean consumers: (i) the levels that exist in the ordinary environme nt;
(ii) exposure "as low as reasonably achievable"; and (iii) the quantitative dose exposure of
1 mSv/year. While the Panel accepted Korea's articulation of this multi -faceted ALOP, its analysis
focuses on the quantitative element of 1 mSv/year. The Panel reached conclusions with respect to
Japan's alternative measure that leave unclear whether it considered the alternative measure to satisfy
all of the elements of Korea's ALOP it had identified. The Panel's findings effectively subordinated the
elements of ALARA and radioactivity levels "in the ordinary environment" to the quantitative element
of exposure below 1 mSv/year. This is at odds with the articulation of the ALOP explicitly accepted by
the Panel at the outset of its analysis.
a. We therefore find that the Panel erred in its application of Article 5.6 of the SPS Agreement
in finding that Japan's proposed alternative measure achieves Korea's ALOP.
b. Consequently, we reverse the Panel's findings of inconsistency with Article 5.6 with respect
to: (i) the adoption of the blanket import ban (except for the ban on Pacific cod from
Fukushima and Ibaraki) and the 2013 additional testing requirements; and (ii) the
maintenance of all of Korea's measures.
6.2 Article 2.3 of the SPS Agreement
Under the first sentence o f Article 2.3 of the SPS Agreement, a complainant must show that a
measure arbitrarily or unjustifiably discriminates between Members where identical or similar
conditions prevail, including between their own territory and that of other Members. Article 2.3
therefore requires demonstrating as a threshold matter that "identical or similar conditions prevail"
between Members. While the analysis under Article 2.3 may include consideration of conditions that
can be characterized as being present in the products from different Members, a proper interpretation
of Article 2.3 includes consideration of other relevant conditions, such as territorial conditions, to the
extent that they have the potential to affect the products at issue. The analysis under Article 2.3 thus
entails consideration of all relevant conditions in different Members, including territorial conditions
that may not yet have manifested in products but are relevant in light of the regulatory objective and
specific SPS risks at issue. We find that th e Panel erred in its interpretation of Article 2.3 when it
concluded that this provision permits consideration of the "risk present in products in international
trade as the relevant condition" because we understand the Panel to have concluded that the sco pe
of relevant "conditions" under Article 2.3 may be exclusively limited to "the risk present in products".
In its application of Article 2.3, the Panel effectively relied on actual contamination levels in food
without reconciling its findings as to other pertinent territorial conditions affecting the potential for
contamination of food. Such findings include the Panel's recognition of greater potential for
contamination near the source and its indications that specific release events could result in a localized
and incremental increase in the potential for contamination of food. The Panel's findings under
Article 2.3 on the sole basis of actual measurement levels in product samples ultimately fail to account
for the potential for contamination in light of relevant conditions prevailing in the territories of different
Members.
a. We therefore find that the Panel erred in its interpretation and application of Article 2.3
of the SPS Agreement in finding that similar conditions prevail between Japan and other
Members.
b. Consequently, we reverse the Panel's findings of inconsistency with Article 2.3 with
respect to: (i) the adoption of the blanket import ban (except for the ban on Pacific cod
from Fukushima and Ibaraki) and the 2013 additional testing requirements; a nd (ii) the
maintenance of all of Korea's measures.

c. In light of the reversal of the Panel's findings regarding the existence of "similar
conditions" within the meaning of Article 2.3, it is not necessary to address Korea's
additional claims of error regarding arbitrary or unjustifiable discrimination, and whether
Korea's measures constitute disguised restrictions on international trade.
6.3 Article 5.7 of the SPS Agreement
A panel's mandate, as reflected in Articles 7.1 and 11 of the DSU, is to examine the "ma tter"
before it in light to the relevant provisions of the covered agreements cited by the parties and to make
such findings as will assist the DSB in making the recommendations or in giving the ruling s provided
for in the covered agreements. Japan did not make a claim under Article 5.7 of the SPS Agreement in
its panel request. While Korea raised arguments in relation to Article 5.7 as part of its rebuttal
arguments, Korea did not allege that its measures would be justified or exempted from the obligations
contained in Articles 2.3, 5.6, 7, and 8 and Annexes B and C to the SPS Agreement by virtue of their
provisional nature under Article 5.7. Rather, Korea relied on Article 5.7 to serve as relevant context
to the interpretation of certain other provisions o f the SPS Agreement, which were the subject of
Japan's claims of inconsistency. Korea also referred to Article 5.7 when relying on the alleged
insufficiency of evidence in this case as a relevant factor to the Panel's assessment of Japan's claims
of incons istency, in particular those under Articles 2.3 and 5.6. By making findings as to the
consistency of Korea's measures with Article 5.7, the Panel exceeded its mandate, thereby acting
inconsistently with Articles 7.1 and 11 of the DSU.
a. For this reason, we declare the Panel's findings under Article 5.7 of the SPS Agreement
moot and of no legal effect.
b. Consequently, it is not necessary for us to consider further Korea's other claims of error
in relation to those same Panel findings under Article 5.7.
6.4 The Panel's treatment of evidence
Korea's and Japan's claims of error on appeal concerning the Panel's treatment of evidence relate
to the Panel's application of Articles 2.3 and 5.6 of the SPS Agreement. We have found that the Panel
erred in its application of Article 5.6 with regard to Korea's ALOP. We have also found that the Panel
erred in its interpretation and application of Article 2.3 with regard to whether identical or similar
conditions prevail between Japan and other Members. Accordingly, we have reverse d the Panel's
findings of inconsistency under Articles 2.3 and 5.6.
a. Given that the participants' claims of error in relation to evidence concern Panel findings
that have already been reversed, we do not consider it necessary to examine further these
claims of error.
6.5 The Panel's expert selection
Korea's claim of error concerning the Panel's expert selection is connected with the Panel's
application of Articles 2.3, 5.6, and 5.7 of the SPS Agreement. The two experts at issue provided
responses to the majority of the questions posed by the Panel, and the Panel relied on these responses
in its assessment of the consistency of Korea's measures with Articles 2.3, 5.6, and 5.7. We have
found above that the Panel erred in its findings under Articles 2.3 and 5.6, and in making findings
under Article 5.7. We have reversed the Panel's findings of inconsistency under Articles 2.3 and 5.6,
and declared the Panel's findings under Article 5.7 moot and of no legal effect. Consequently, Korea's
claim of error under Article 11 of the DSU and request on appeal in relation t o the Panel's expert
selection concern Panel findings that have been reversed or declared moot and of no legal effect.
a. For this reason, we do not consider it necessary to examine further Korea's claim that the
Panel erred under Article 11 of the DSU by appointing the two experts that Korea challenges
on appeal.
6.6 Article 7 and Annex B(1) to the SPS Agreement
Annex B(1) to the SPS Agreement requires Members to ensure that adopted SPS regulations are
published promptly "in such a manner as to enable interested Members to become acquainted with

them". An Annex B(1) publication must be accessible to interested Members and contain sufficient
information, including the product scope and the requirements of the adopted SPS regulation, in order
to enable interested M embers to become acquainted with that adopted SPS regulation. The precise
content and amount of information that must be included in an Annex B(1) publication to enable
interested Members to become acquainted with an adopted SPS regulation will depend on t he
particular SPS regulation at issue.
a. Therefore, we agree with the Panel to the extent the Panel's reference to "conditions" means
the requirements of the adopted SPS regulation. We modify, however, the Panel's finding,
in paragraph 7.464 of the Panel Report, to the extent it considered that Annex B(1) requires,
in all cases, that the publication of an SPS regulation include the "specific principles and
methods" applicable to the products. We instead find that whether the publication of an
adopted SPS reg ulation under Annex B(1) needs to include the "specific principles and
methods" applicable to the products may be determined only with reference to the specific
circumstances of each case, such as the nature of the SPS regulation at issue, the products
covered, and the nature of the SPS risks involved.
In relation to the product scope of the blanket import ban, we agree with the Panel that the
reference to "all fishery products" in the press release announcing this measure is not sufficient to
comply with Annex B(1) to the SPS Agreement. The blanket import ban covers products that would
normally be included in a category other than "fishery products". For this reason, we do not consider
that the press release at issue published the blanket import ban in such a manner as to enable Japan
to become acquainted with this ban.
a. Therefore, we find that the Panel did not err in its application of Annex B(1) to th e
SPS Agreement to the blanket import ban in relation to the product scope of this measure.
b. Consequently, we uphold the Panel's finding, in paragraph 7.487 of the Panel Report, that
Korea acted inconsistently with Annex B(1) and Article 7 of the SPS Agreement by not
publishing the full product scope of the blanket import ban.
In relation to the publication of the additional testing requirements, we agree with the Panel
that, in light of the SPS regulations at issue, the press releases announcing the 2011 additional testing
requirements and the 2013 additional testing requirements should have contained the levels of
caesium (and iodine in the 2011 press release) that would trigger the additional testing; the specific
radionuclides to be tested; the maximum l evels for those radionuclides that would result in products
being rejected; and, in relation to the 2013 press release only, the procedure and location of the
testing required for the additional radionuclides. In our view, without these elements, the press
releases do not enable interested Members to become acquainted with the 2011 additional testing
requirements and the 2013 additional testing requirements.
a. We therefore find that the Panel did not err in its application of Annex B(1) to the
SPS Agreement to the 2011 additional testing requirements and the 2013 additional testing
requirements in relation to the requirements of these measures.
b. Consequently, we uphold the Panel's findings, in paragraphs 7.501 -7.502 of the Panel
Report, that Korea acted inconsistently with Annex B(1) and Article 7 of the SPS Agreement
by not publishing sufficient information to enable Japan to become acquainted with the
requirements of the 2011 additional testing requirements and the 2013 additional testing
requirements.
In relation to the accessibility of the publication of all the SPS measures at issue, we agree with
the Panel that, in light of the case presented by Japan, it was for Korea to provide some evidence or
explanation that interested Members would have known to look to the websites indicated by Korea for
information on the SPS measures at issue. Korea, however, did not provide a clear explanation
concerning whether interested Members would have been able to locate and access the press releases
announcing those measures.
a. We therefore find that the Panel did not err in its application of Annex B(1) to the
SPS Agreement to the SPS measures at issue in relation to the accessibility of the
publications.

b. Consequently, we uphold the Panel's findings, in paragraphs 7.474, 7.485, 7.498, and 7.500
of the Panel Report, that Korea did not show that interested Members would have known to
look to the websites indicated by Korea for information on the SPS measures at issue.
In relation to Korea's claim of error under Article 11 of the DSU, we consider that the Panel
failed to engage with the pertinent evidence on the record. Moreover, the Panel should not have left
it to Korea to anticipate, in the absence of a contestation of the publication dates by Japan, that it
would be required to submit the archived versions of the webpages to prove the publication dates of
the press releases on government websites. Rather, to the extent the Panel considered it was
necessary for it to have such evidence, it should have sought it from both part ies to the dispute and
should only then have drawn appropriate inferences.
a. We therefore find that the Panel acted inconsistently with Article 11 of the DSU in concluding
that it was unable to know whether the web addresses provided by Korea were available on
the day Korea announced each of the SPS measures at issue and what content was available
on that day.
Given that the remaining grounds for the Panel's ultimate finding regarding the SPS measures
at issue are left undisturbed, and that each of these rea sons would justify that finding, the Panel's
ultimate finding, in paragraphs 7.503 and 8.5.a of the Panel Report, that Korea acted inconsistently
with Annex B(1) and, as a consequence, Article 7 of the SPS Agreement, stands.
6.7 Article 7 and Annex B(3) to the SPS Agreement
The introductory clause of Annex B(3) to the SPS Agreement requires Members to ensure that
one enquiry point exists which is responsible for the provision of answers to all reasonable questions
and for the provision of relevant documents. We do not consider that a single failure of an enquiry
point to respond in and of itself would automatically result in an inconsistency with Annex B(3). In our
view, however, whether and the extent to which an enquiry point actually provides answers to al l
reasonable questions and provides documents are not irrelevant for the assessment under Annex B(3).
Rather, it informs an assessment of whether " one enquiry point exists which is responsible for the
provision of answers to all reasonable questions from interested Members as well as for the provision
of relevant documents" within the meaning of Annex B(3). This assessment requires an examination
of all the relevant factors, including the total number of questions received by the enquiry point and
the proportion of and the extent to which questions were answered, the nature and scope of the
information sought and received, and whether the enquiry point repeatedly failed to respond. For
these reasons, we disagree with the Panel's view that a single failure to respond would result in an
inconsistency with the obligation under Annex B(3).
a. We therefore find that the Panel erred in its interpretation of Annex B(3) to the
SPS Agreement in finding that a single failure of an enquiry point to respond to a request
would result in an inconsistency with Annex B(3).
b. Consequently, we reverse the Panel's finding in paragraphs 7.507-7.510 of the Panel Report.
With respect to the Panel's application of Annex B(3) to the SPS Agreement, the Panel limited
its analysis to the responsiveness of Korea's enquiry point only vis -à-vis the two requests submitted
by Japan. In our view, this does not constitute a sufficient examination of all relevant factors necessary
to determine whether Korea acted inconsistently with Annex B(3). The Panel did not assess: (i) the
scope and nature of the information sought through Japan's second request; (ii) how many requests
had been received by Korea's enquiry point in total over a period of time and the proportion of
questions that had been answered ; and (iii) whether the enquiry point repeatedly failed to respond.
Without assessing those factors, the Panel was not in a position to reach a conclusion about whether
Korea ensured that "one enquiry point exists which is responsible for the provision of answers to all
reasonable questions from interested Members as well as for the provision of relevant documents",
and, consequently, whether Korea acted inconsistently with Annex B(3).
a. We therefore find that the Panel erred in its application of Annex B(3) to the SPS Agreement
in finding, based only on two specific instances – Korea's SPS enquiry point's incomplete
response to Japan's first request and its failure to respond to Japan's second request – that

Korea acted inconsistently with Annex B(3) and, as a consequence, Article 7 of the
SPS Agreement.
b. Consequently, we reverse the Panel's finding, in paragraphs 7.520 and 8.5.b of the Panel
Report, that Korea acted inconsistently with Annex B(3) and, as a consequence, Article 7 of
the SPS Agreement.
6.8 Article 8 and Annex C(1)(a) to the SPS Agreement
Annex C(1)(a) to the SPS Agreement requires Members to ensure, with respect to any
procedure to check and ensure the fulfilment of SPS measures, that such procedures are undertaken
and completed in no less favourable manner for imported products than for "like domestic products".
In our view, in light of the definitions of SPS me asures in Annex A(1) to the SPS Agreement, the
question arises whether a procedure to check and ensure the fulfilment of SPS measures is at all
capable of making a distinction between products based exclusively on their origin and thus whether
likeness may be presumed in the context of Annex C(1)(a). The Panel did not explore that question
and appears to have simply assumed that likeness may be presumed under Annex C(1)(a). That said,
for the purposes of Japan's claim of error on appe al, it is inconsequentia l whether likeness may be
presumed under Annex C(1)(a), because, in the particular circumstances of this case, the Panel, in
any event, would not have been in a position to presume that Japanese and Korean products are "like"
in relation to the procedures at issue. This is because we agree with the Panel's statement, in
paragraph 7.399 of its Report, that the distinction of applying the 2011 and 2013 additional testing
requirements only to Japan "cannot be separated from the public health concern and the fact that it
was Japan that experienced the FDNPP accident". On this basis, the Panel was correct to conclude that
the 2011 and 2013 additional testing requirements do not distinguish between Japanese and Korean
products solely based on origin.
a. We therefore find that the Panel did not err in declining to presume that Japanese imported
products and Korean domestic products are "like" for purposes of Annex C(1)(a) to the
SPS Agreement.
b. Consequently, we uphold the Pa nel's finding, in paragraph 7.403 of the Panel Report, that
Japan has failed to establish that imported and domestic products can be presumed to be
"like".
c. Therefore, the Panel's finding, in paragraph 8.4 of the Panel Report, that Japan has failed to
establish that Korea acted inconsistently with Annex C(1)(a) and Article 8 of the
SPS Agreement stands.
6.9 Recommendation
The Appellate Body recommends that the DSB request Korea to bring its measures found in this
Report, and in the Panel Report as modified by this Report, to be inconsistent with the SPS Agreement,
into conformity with its obligations under that Agreement.
Signed in the original in Geneva this 28th day of February 2019 by: