JAPAN – MEASURES AFFECTING THE IMPORTATION OF APPLES AB-2003-4
Document: Report of the Appellate Body
Date: 26 November 2003
Document codes: WT/DS245/AB/R
Complainant: U.S.
Respondent: Japan
Third parties: Australia, Brazil, China, Taiwan, EU, New Zealand
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. XI  GATT 1994Art. 2.2, 2.3, 5.1, 5.2, 5.3  Sanitary and Phytosanitary Measures (SPS)Art. 4.2  AgricultureArt. 5.5, 5.6, 6.1, 6.2, 7, Annex B  Sanitary and Phytosanitary Measures (SPS)

JAPAN – MEASURES AFFECTING THE IMPORTATION OF APPLES
AB-2003-4
Report of the Appellate Body

APPELLATE BODY
Japan – Measures Affecting the
Importation of Apples
Japan, Appellant/Appellee
United States, Appellant/Appellee
Australia, Third Participant
Brazil, Third Participant
European Communities, Third Participant
New Zealand, Third Participant
Separate Customs Territory of Taiwan,
Penghu, Kinmen, and Matsu, Third Participant
AB-2003-4
Present:
Lockhart, Presiding Member
Baptista, Member
Sacerdoti, Member
I. Introduction
1. Japan and the United States appeal certain issues of law and legal interpretations in the Panel
Report, Japan – Measures Affecting the Importation of Apples (the "Panel Report"). 1 The Panel was
established to consider a complaint by the United States concerning certain requirements and
prohibitions imposed by Japan with respect to the importation of apple fruit from the United States.
2. Following consultations that failed to resolve the dispute, the United States requested on
7 May 2002 that a panel be established to examine the matter on the basis of "measures" maintained
by Japan that "restrict[] the importation of US apples in connection with fire blight or the fire blight
disease-causing organism, Erwinia amylovora."
 2 On 3 June 2002, the Dispute Settlement Body (the
"DSB") established the Panel with the following terms of reference, in accordance with Article 7.1 of
the Understanding on Rules and Procedures Governing the Settlement of Disputes (the "DSU"):
… To examine, in the light of the relevant provisions of the covered
agreements cited by the United States in document , the
matter referred to the DSB by the United States in that document and
to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those
agreements.
 3

1WT/DS245/R, 15 July 2003.
2Request for the Establishment of a Panel by the United States, WT/DS245/2, 8 May 2002.
3Constitution of the Panel Established at the Request of the United States, WT/DS245/3, 17 July 2002,
para. 2.

Australia, Brazil, the European Communities, New Zealand, and the Separate Customs Territory of
Taiwan, Penghu, Kinmen, and Matsu reserved their right to participate before the Panel as third
parties.
3. Before the Panel, the United States claimed that Japan was acting inconsistently with
Articles 2.2, 5.1, 5.2, 5.6, 5.7, and 7 of the Agreement on the Application of Sanitary and
Phytosanitary Measures (the "SPS Agreement") and Annex B thereto; Article 4.2 of the Agreement
on Agriculture ; and Article XI of the General Agreement on Tariffs and Trade 1994
(the "GATT 1994").
 4 In the Panel Report, circulated to Members of the World Trade Organization
(the "WTO") on 15 July 2003, the Panel found that Japan's phytosanitary measure:
(i) is maintained "without sufficient scientif ic evidence", inconsistent with Japan's
obligation under Article 2.2 of the SPS Agreement;
(ii) does not qualify as a provisional measure under Article 5.7 of the SPS Agreement
because it was not imposed in respect of a situation "where relevant scientific
evidence [was] insufficient"; and
(iii) is not based on a "risk assessment" within the meaning of Article 5.1 of the
SPS Agreement. 5
4. As to the claims of inconsistency with Article 7 of the SPS Agreement and Annex B thereto,
the Panel found that the United States had failed to establish a prima facie case under those
provisions. Furthermore, having found the measure to be inconsistent with Japan's obligations under
Articles 2.2, 5.7, and 5.1 of the SPS Agreement, the Panel determined that resolution of several of the
remaining claims under other provisions was unnecessary, as such findings would not assist the DSB
in making its recommendations and rulings so as to allow for prompt compliance by Japan.
Therefore, in an exercise of judicial economy, the Panel declined to rule on the United States' claims
under Articles 5.2 and 5.6 of the SPS Agreement, Article 4.2 of the Agreement on Agriculture, and
Article XI of the GATT 1994.
 6 In the light of its findings, the Panel recommended that "the Dispute

4The United States had also raised claims under Articles 2.3, 5.3, 5.5, and 6.1-6.2 of the
SPS Agreement in its request for the establishment of a panel. The Panel observed, however, that the
United States did not pursue these claims in any of its submissions. Accordingly, the Panel concluded that the
United States had not made a prima facie case for any of these claims and therefore declined to make
5Ibid., para. 9.1(a)-(c).
6Ibid., paras. 8.292, 8.303, 8.328, and 8.332.

Settlement Body request Japan to bring the phytosani tary measure in dispute into conformity with its
obligations under the SPS Agreement." 7
5. On 28 August 2003, Japan notified the DSB of its intention to appeal certain issues of law
developed in the Panel Report and certain legal interpretations developed by the Panel, pursuant to
Article 16 of the DSU, and filed a Notice of Appeal pursuant to Rule 20 of the Working Procedures
for Appellate Review (the "Working Procedures"). 8 On 8 September 2003, Japan filed an appellant's
submission. 9 The United States filed an appellee's submission on 22 September 2003. 10 In addition
to Japan's appeal, the United States cross-appealed the Panel Report by filing an other appellant's
submission on 12 September 2003.
 11 With respect to this cross-appeal, Japan filed an appellee's
submission on 22 September 2003. 12 On that same day, Australia, Brazil, the European
Communities, and New Zealand filed third participants' submissions 13, and the Separate Customs
Territory of Taiwan, Penghu, Kinmen, and Matsu notified its intention to attend and make statements
at the oral hearing.
 14
6. The oral hearing in this appeal was held on 13 October 2003. The participants and third
participants presented oral statements (with the exception of the Separate Customs Territory of
Taiwan, Penghu, Kinmen, and Matsu) and responded to questions put to them by the Members of the
Division hearing the appeal.
7. Our analysis in this Report proceeds as follows:
• we begin with a brief factual background and an examination of the scope of the dispute,
including the nature and history of the plant disease at issue, the products addressed by
the Panel in its analysis, and the measure challenged by the United States
 15;
• we then set out the arguments of the participants and third participants on appeal;

7Panel Report, para. 9.3.
8Notification of an Appeal by Japan, WT/DS245/5, 28 August 2003, attached as Annex 1 to this
Report. Japan's Notice of Appeal challenges only certain findings made by the Panel in the course of its
analysis under the SPS Agreement; there are no issues on appeal related to the Agreement on Agriculture or to
the GATT 1994.
9Pursuant to Rule 21(1) of the Working Procedures.
10Pursuant to Rule 22(1) of the Working Procedures.
11Pursuant to Rule 23(1) of the Working Procedures.
12Pursuant to Rule 23(3) of the Working Procedures.
13Pursuant to Rule 24(1) of the Working Procedures.
14Pursuant to Rule 24(2) of the Working Procedures.
15Additional factual aspects of this dispute are set out in greater detail in paragraphs 2.1-2.32 of the
Panel Report.

• we next identify the issues raised before us on appeal and, in order to do so, consider the
United States' claim that one of the issues argued by Japan in its appellant's submission is
not properly before us because it was not identified in Japan's Notice of Appeal;
• we begin our assessment of the case by examining the United States' claim on appeal that
the Panel did not have the authority to issue findings with respect to apples other than
"mature, symptomless" apples. Because this claim raises the question of whether the
Panel was even permitted to pronounce on the subject of apples other than "mature,
symptomless" apples", we address this claim as a logical antecedent to Japan's claims on
the merits of the Panel's findings;
• next, we consider Japan's claims challenging the Panel's findings that Japan's
phytosanitary measure at issue is inconsistent with Japan's obligations under Articles 2.2,
5.7, and 5.1 of the SPS Agreement; and
• finally, we evaluate Japan's claims under Article 11 of the DSU that the Panel failed to
make an "objective assessment of the facts of the case" in the course of its analysis of the
United States' claims under the SPS Agreement.
II. Background
A. The Disease at Issue
8. The following summarizes "factual aspects" set out by the Panel in paragraphs 2.1–2.6 of the
Panel Report. The disease 16 targeted by Japan's phytosanitary measure in this dispute is called "fire
blight", often referred to by the scientific name for its bacterium, Erwinia amylovora or E. amylovora.
Fruits infected 17 by fire blight exude bacterial ooze, or inoculum 18, which is transmitted primarily
through wind and/or rain and by insects or birds to open flowers on the same or new host plants.
E. amylovora bacteria multiply externally on the stigmas of these open flowers and enter the plant by

16The Panel defined "disease" as "[a] disorder of structure or function in a plant of such a degree as to
produce or threaten to produce detectable illness or disorder … usually with specific signs or symptoms." (Panel
Report, para. 2.9)
17"Infection" was defined by the Panel as "[w]hen an organism (e.g., E. amylovora) has entered into a
host plant (or fruit) establishing a permanent or temporary pathogenic relationship with the host." ( Ibid.,
para. 2.12) In contrast, the Panel noted that the term "infestation" would "[r]efer[] to the presence of the
bacteria on the surface of a plant without any implication that infection has occurred ." ( Ibid., para. 2.13
(emphasis added))
18The Panel defined "inoculum" as "[m]aterial consisti ng of or containing bacteria to be introduced into
or transferred to a host or medium". The Panel explained that "[i]noculation is the introduction of inoculum into
a host or into a culture medium. Inoculum can also refer to potentially infective material available in soil, air or
water and which by chance results in the natural inoculation of a host." ( Ibid., para. 2.14)

various openings. 19 In addition to apple fruit, hosts of fire blight include pears, quince, and loquats,
as well as several garden plants. 20 Scientific evidence establishes, as the Panel found, that the risk of
introduction and spread of fire blight varies considerably according to the host plant. 21
9. The uncontested history of fire blight reveals significant trans-oceanic dissemination in
the 200-plus years since its discovery. 22 E. amylovora, first reported in New York State in the
United States in 1793, is believed to be native to North America. 23 By the early 1900s, fire blight had
been reported in Canada from Ontario to British Columbia, in northern Mexico, and in the
United States from the East Coast to California and the Pacific Northwest. Fire blight was reported in
New Zealand in 1919, in Great Britain in 1957, and in Egypt in 1964. The disease has spread across
much of Europe, to varying degrees depending on the country, and also through the Mediterranean
region. In 1997, Australia reported the presence of fire blight, but eradication efforts were successful
and no further outbreaks have been reported. With respect to the incidence of fire blight in Japan, the
parties disputed before the Panel whether fire blight had ever entered Japan; but the United States
assumed, for purposes of this dispute, that Japan was, as it claimed, free of fire blight and fire blight
bacteria.
 24
B. The Product at Issue
10. The United States argued before the Panel that the subject of the United States' challenge to
Japan's phytosanitary measure at issue is the sole apple product that the United States exports, that is,
"mature, symptomless" apples. The United States claimed that such apples constitute a separate,
identifiable category of apples and that its categorization is "scientifically supported".
 25 Japan did not
accept the United States' categorization, arguing that "mature" and "symptomless" are subjective
terms and that the distinction has no scientific basis.
 26 Furthermore, Japan argued, its phytosanitary
measure addressed the risk arising, not only from mature, symptomless apples that develop and spread
fire blight, but also from the accidental introduction of infected or infested apples within a shipment
of what are thought to be mature, symptomless apples destined for Japan.
 27

19Panel Report, para. 2.2.
20Ibid., para. 2.5.
21Ibid., para. 8.271.
22Ibid., para. 2.6.
23Ibid., paras. 2.1 and 2.6.
24Ibid., paras. 4.25-4.26.
25Ibid., para. 8.26.
26Ibid., paras. 4.99 and 8.26.
27Ibid., para. 8.28(b).

11. In the light of this disagreement about the product scope of the dispute, the Panel identified
the product that was subject to the measure at issue. The Panel observed that, if it were to consider
the "product" to be limited to mature, symptomless apple fruit, as claimed by the United States, "many
aspects of the measure at issue might, ipso facto , lose their raison d'être and may become
incompatible with the SPS Agreement."
 28 If, on the contrary, the Panel were to conclude that the
product at issue was "any apple" fruit exported to Japan from the United States, then it would need to
address the justification of all the requirements imposed by Japan as a whole.
 29 The Panel also noted
that it would be "illogical" to accept the United States' characterization because it would prevent the
Panel from examining certain aspects of the measure that could be relevant, even if not expressly
addressing mature, symptomless apples.
 30
12. In addition, the Panel stated that the request for the establishment of a panel submitted by the
United States referred only to "US apples", which is less specific than mature, symptomless apples.
The Panel said that the fact that the United Stat es intended to address "only" mature, symptomless
apples in its submission did not affect the Panel's mandate.
 31 Finally, the Panel observed that
scientific methods existed for distinguishing mature apples, and that an apple's susceptibility to fire
blight was related to its maturity.
13. Considering the parties' arguments, as well as the experts' views
 32, the Panel determined that
the scope of the dispute should not, at a preliminary stage, be limited to mature, symptomless apples.
The Panel considered it particularly inappropriate to limit the scope of the dispute before further
consideration of the merits of the case in the light of the two assumptions it found to underlie the
United States' characterization of the product at issue: (i) that mature, symptomless apple fruit is not a
"pathway"
 33 for fire blight and (ii) that shipments from the United States to Japan contain only
mature, symptomless apples. 34

28Panel Report, para. 8.30. As an example of aspects of the measure that might in this manner lose
their raison d'être, the Panel refers to the requirements covering pre-harvesting actions to be undertaken with
respect to apples. (Ibid.)
29Ibid.
30Ibid., para. 8.31. Aspects of the measure that the Panel thought might be relevant, notwithstanding
the fact that they did not focus on mature, symptomless apple fruit, included requirements related to apples that
 cannot be exported (that is, prohibitions). (Ibid.)
31Ibid., para. 8.32.
32The Panel engaged experts in consultation with the parties, as provided for in Article 11.2 of the
SPS Agreement . (Ibid., paras. 6.1-6.4)
33We understand the Panel to have used the term "pathway" to describe the steps through which a
disease must travel for successful transmission from one plant to a new host plant. We employ the term in this
Report in the same manner.
34Panel Report, para. 8.33.

C. The Measure at Issue
14. The United States argued before the Panel that, through the operation of various legal
instruments 35, Japan maintains nine prohibitions or requirements imposed with respect to apple fruit
imported from the United States. 36 With respect to the United States' description of the requirements
for importation of apple fruit from the United St ates, Japan claimed that two such requirements
amounted merely to "procedural steps" common to all phytosanitary measures 37, and that one of them
should actually have been identified as two separate requirements. 38

35The Panel identified the following means by which Japan imposed the prohibitions or requirements
relevant to this dispute: (i) the Plant Protection Law (Law No. 151; enacted 4 May 1950), as amended; (ii) the
Plant Protection Regulations (Ministry of Agriculture, Forestry, and Fisheries Ordinance No. 73, enacted 30
June 1950), as amended; (iii) Ministry of Agricultur e, Forestry and Fisheries Notification No. 354 (dated 10
March 1997); and (iv) related detailed rules and regulations, including Ministry of Agriculture, Forestry, and
36Panel Report, para. 8.5, citing Request for the Establishment of a Panel by the United States,
WT/DS245/2, 8 May 2002; United States' first written submission to the Panel, para. 19; United States'
answers to the Additional Questions posed by the Panel, 28 January 2003, para. 2. The nine requirements
identified by the United States are as follows:
(a) The prohibition of imported apples from US states other than
apples produced in designated areas in the states of Oregon or
Washington;
(b) the prohibition of imported apples from orchards in which any fire
blight is detected on plants or in which host plants of fire blight
(other than apple trees) are found, whether or not infected;
(c) the prohibition of imported apples from any orchard (whether or
not it is free of fire blight) should fire blight be detected within a
500-meter buffer zone surrounding such orchard;
(d) the requirement that export orchards be inspected three times
yearly (at blossom, fruitlet, and harvest stages) for the presence of
fire blight for purposes of applying the above-mentioned
prohibitions;
(e) a post-harvest surface treatment of apples for export with chlorine;
(f) production requirements, such as chlorine treatment of containers
for harvesting and chlorine treatment of the packing facility;
(g) post-harvest separation of apples for export to Japan from fruits
destined to other markets;
(h) certification by US plant protection officials that fruits are free of
fire blight and have been treated post harvest with chlorine; and
(i) confirmation by Japanese officials of the US officials' certification
and inspection by Japanese officials of disinfection and packaging
facilities.
(Panel Report, para. 8.5(a)-(i) (footnote omitted))
37The two requirements claimed to be "procedural" are items (h) and (i), supra, footnote 36.
38Panel Report, para. 8.6. Japan claimed that item (f), supra, footnote 36, should be regarded as two
separate requirements: one for the chlorine treatment of harvesting containers and one for the chlorine treatment
of packing facilities.

15. The Panel decided to regard the multiple requirements imposed on imported apple fruit from
the United States as a single measure to be reviewed under the SPS Agreement. 39 With regard to the
precise requirements to be considered as the elemen ts of the single measure, the Panel found that the
two requirements claimed by Japan to be "procedural" nevertheless constituted "phytosanitary
measures" within the definition of the SPS Agreement and formed part of the collective set of
conditions to be fulfilled for the importation of apple fruit from the United States. 40 The Panel also
appears to have agreed with Japan's claim that one of the requirements identified by the United States
should actually be understood as two separate requirements. Therefore, the Panel identified the focus
of this dispute to be a measure applied by Japan to the importation of apple fruit from the United
States, which measure consists of the following ten cumulatively-applied elements:
(a) Fruit must be produced in designated fire blight-free orchards.
Designation of a fire blight-free area as an export orchard is
made by the United States Department of Agriculture (USDA)
upon application by the orchard owner. Any detection of a
blighted tree in this area by inspection will disqualify the
orchard. For the time being, the designation is accepted only
for orchards in the states of Washington and Oregon;
(b) the export orchard must be free of plants infected with fire
blight and free of host plants of fire blight (other than apples),
whether or not infected;
(c) the fire blight-free orchard must be surrounded by a 500-meter
buffer zone. Detection of a blighted tree or plant in this zone
will disqualify the export orchard;
(d) the fire blight-free orchard and surrounding buffer zone must be
inspected at least three times annually. US officials will
visually inspect twice, at the blossom and the fruitlet stages, the
export area and the buffer zone for any symptom of fire blight.
Japanese and US officials will jointly conduct visual inspection
of these sites at harvest time. Additional inspections are
required following any strong storm (such as a hail storm);
(e) harvested apples must be treated with surface disinfection by
soaking in sodium hypochlorite solution;
(f) containers for harvesting must be disinfected by a chlorine
treatment;
(g) the interior of the packing facility must be disinfected by a
chlorine treatment;
(h) fruit destined for Japan must be kept separated post-harvest
from other fruit;

39Panel Report, para. 8.17.
40Ibid., para. 8.24.

(i) US plant protection officials must certify that fruits are free
from fire blight and have been treated post harvest with
chlorine; and
(j) Japanese officials must confirm the US officials' certification
and Japanese officials must inspect packaging facilities. 41
(footnote omitted)
16. At the oral hearing, neither participant disagreed that the measure identified by the Panel as
set out in the preceding paragraph, derived from the application of several legal instruments related to
quarantine and other restrictions placed by Japan on imported agricultural products, is the measure
before us on appeal.
 42
III. Arguments of the Participants and the Third Participants
A. Claims of Error by Japan – Appellant
1. Article 2.2 of the SPS Agreement
17. Japan argues that, when evaluating the United States' claim under Article 2.2 of the
SPS Agreement, the Panel erred in concluding that Japan's measure, as applied to infected apple fruit
and to mature, symptomless apples, is maintained without sufficient scientific evidence. In Japan's
view, the Panel failed to allocate properly the burd en of proof under Article 2.2 because it incorrectly
arrived at a conclusion on the United States' claim despite the fact that the United States had failed to
establish a prima facie case as to either infected apple fruit or mature, symptomless apples.
18. First, as to infected apple fruit, Japan claims that, to establish a prima facie case under
Article 2.2 with respect to the sufficiency of scientific evidence on the risk of completion of the
pathway for transmission of fire blight through infected apple fruit, the United States had to prove
either (i) that the pathway would not be completed even if infected apple fruit were exported to
Japan, or (ii) that Japan's scientific evidence on this risk would nonetheless be insufficient for the
measure in question. However, Japan argues, the United States limited its evidence on the issue of
pathways for fire blight to transmission of the disease through mature, symptomless apple fruit.
Therefore, according to Japan, the United States advanced no factual claim or evidence with respect to
infected apple fruit. Indeed, Japan claims, the United States "explicitly disavowed attempts or intent"
to establish a prima facie case of insufficient scientific evidence on the risk posed by infected apple

41Panel Report, para. 8.25(a)-(j).
42Japan's and the United States' responses to questioning at the oral hearing.

fruit. 43 In the absence of such a prima facie case, Japan argues, the Panel was required to find that
Japan had not acted inconsistently with its obligations under Article 2.2.
19. Japan submits that, the Panel's finding that Japan had acted inconsistently with respect to the
application of its measure to infected apple fruit was premised on the Panel's view that Japan bore the
burden of proof as regards the risk posed by infected apple fruit. Japan contends that, as the United
States had declined to assert and prove a prima facie case in respect of infected apple fruit, the
United States was not entitled to a presumption th at the measure is maintained without sufficient
scientific evidence. Citing the Appellate Body Report in EC – Hormones, Japan further argues that
the Panel's shifting of the burden of proof to Japan was "[p]remature" 44 because it occurred before
the demonstration of a prima facie case by the United States. Therefore, according to Japan, the
Panel erred in overlooking the absence of a prima facie case by the United States and thereby
shifting the burden of proof to Japan.
20. Japan refers to possible explanations that might justify a panel's finding made without the
establishment of a prima facie case. Japan contends that these possible explanations are inapplicable
to the present case or have no merit in law. First, Japan examines the possibility that a panel might
be allowed to find a particular fact—not specifically asserted by the complainant—if the complaining
party made a general factual assertion under the provision in question. Japan argues, however, that, in
the present case, the United States not only failed to address a particular factual claim on infected
apple fruit, but consciously declined to make that factual claim and requested that the Panel delete the
finding. Therefore, in Japan's view, there is no general factual argument of the complaining party
that could serve as an "umbrella" argument under which the Panel could have made a specific
finding.
 45
21. Japan also considers the possibility that a panel may be authorized to "distill" a generalized
case from the argumentation of the complaining party, regardless of whether that party in fact has
made a particular claim.
 46 However, according to Japan, the Appellate Body " implicitly rejected this
sort of arbitrary distillation of arguments" 47 in reversing the panel's finding under Article 5.6 of the
SPS Agreement in Japan – Agricultural Products II. 48

44Ibid., p. 7, subtitle ii.
45Ibid., para. 30.
46Ibid., para. 32.
47Ibid. (original italics)
48Appellate Body Report, para. 143(h).

22. Finally, Japan claims that the Panel's conclusion as to infected apple fruit could be
understandable if the risk of the spread of fire blight through infected apple fruit were a " defensive
plea", for which the defendant normally bears the burden of proof. 49 However, Japan argues,
Article 2.2 does not impose any requirement of proof on the importing Member. As a result, in
Japan's view, it is the complainant's burden to prove th at there is not sufficient scientific evidence for
the measure in respect of a particular pathway, and not the respondent's burden to establish that such
evidence exists.
23. For Japan, the Panel's finding of inconsistency with Article 2.2 is based, in part, on the
erroneous finding of a prima facie case made with respect to infected apple fruit. Therefore, Japan
requests the Appellate Body to reverse the Panel's finding that the measure at issue is maintained
"without sufficient scientific evidence" within the meaning of Article 2.2 of the SPS Agreement.
24. Turning to Japan's claim as it relates to matu re, symptomless apple fruit, Japan claims the
Panel did not respect the discretion conferred by Article 2.2 on an importing Member in the
evaluation of the relevant scientific evidence. Japan submits that misinterpretation of Article 2.2 led
the Panel to conclude, erroneously, that the United States had established a prima facie case under
Article 2.2 with respect to mature, symptomless apple fruit.
25. Japan asserts that Article 2.2 does not mandate any specific method for a Member to evaluate
scientific evidence. Therefore, in Japan's submission, the provision should be interpreted and applied
to allow a "certain degree of discretion" on the part of the importing Member to determine how to
choose, weigh, and evaluate such scientific evidence.
 50 Japan argues that the Panel failed to accord
such discretion when considering the scientific evidence submitted by Japan, because "the Panel
evaluated the scientific evidence in accordance with the experts' view, despite the contrary view of an
importing Member (Japan)." 51 As an example of the Panel's improper approach, Japan notes that the
Panel found that "mature apples are unlikely to be infected by fire blight if they do not show any
symptoms", despite the fact that Japan had subm itted evidence of an experiment suggesting the
contrary. 52
26. Japan points out that the Panel's risk analysis differed from the risk assessment undertaken by
Japan. According to Japan, the Panel: divided the overall risk of apple fruit serving as a pathway for
entry, establishment and spread of fire blight into individual components; identified the level of risk

49Japan's appellant's submission, para. 38. (original italics)
50Ibid., para. 76.
51Ibid., para. 78.
52Ibid., quoting Panel Report, para. 8.139. (original italics)

for each component; and reviewed whether the corresponding risk for each component was
established with sufficient scientific evidence. 53 In contrast, Japan argues, Japan's assessment of the
risk reflects the historical facts of trans-oceanic spread of the bacteria, the rapid growth of
international trade, and the lack of knowledge on the pathways of transmission of fire blight. Japan
contends that the Panel should not have discarded Japan's approach to risk assessment, which was
"reasonable as well as scientific" and derived from "prudence and precaution".
 54 Therefore,
according to Japan, the Panel's improper analysis of the scientific evidence underlying Japan's
measure, failed to recognize the discretion conferred on an importing Member by Article 2.2.
27. Japan asserts that the Panel, as a result of its misinterpretation of Article 2.2, erroneously
found that the United States had established a prima facie case regarding mature, symptomless
apples. Japan submits that the United States failed to "raise a presumption that there [were] no
relevant scientific studies or reports"
 55 supporting the measure at issue because it did not rebut the
following points established by Japan: (i) the unknown cause of the trans-oceanic dissemination of
fire blight and (ii) the possibility of a physiologically mature apple being infected and shipped to
Japan before showing noticeable symptoms. As a result, in Japan's view, the Panel could not have
concluded properly that the measure was inconsistent with Japan's obligations under Article 2.2.
28. Accordingly, Japan requests the Appellate B ody to reverse the Panel's finding that the
measure at issue is maintained "without sufficie nt scientific evidence" within the meaning of
Article 2.2 of the SPS Agreement.
2. Article 5.7 of the SPS Agreement
29. Japan challenges the Panel's overly "narrow" 56 interpretation of Article 5.7 of the
SPS Agreement and its consequent finding that the risk of transmission of fire blight from United
States apples to plants in Japan does not constitute a "case[] where relevant scientific evidence is
insufficient", as required by Article 5.7.
30. Japan asserts that, according to the Panel, Article 5.7 does not apply to the present situation of
fire blight disease, where scientific studies as well as practical experience exist, because Article 5.7
was designed for situations "where little, or no, reliable evidence was available on the subject matter

53Japan's appellant's submission, pa ra. 72, citing Panel Report, paras. 8.89, 8.122, 8.139, 8.153, 8.157,
and 8.161.
54Japan's appellant's submission, paras. 81-82.

at issue ." 57 In Japan's view, this reading of the provision is "far too narrow" because Article 5.7
should also be applied to a situation where, although much literature is found concerning a "certain
phytosanitary phenomenon"
 58, there are particular aspects of that phenomenon as to which evidence is
not available, or questions remain unanswered. 59
31. Japan contends that the Panel's reliance on Japan – Agricultural Products II for its reading
of Article 5.7 is misplaced because the Appellate Body's decision in that case does not a priori
exclude the application of Article 5.7 even where relevant scientific evidence is sufficient
"in general
 ". 60 Japan asserts that the phrase "[w]here relevant scientific evidence is insufficient", in
Article 5.7, should be interpreted to relate to a " particular situation" in relation to a " particular
measure" or a " particular risk". 61 Therefore, Japan argues, different situations concerning the same
disease should be considered separately, not in general, for purposes of Article 5.7, because they
might involve "two separate sets of evidence or information that are materially different from each
other."
 62
32. Japan submits that the conclusion of the Panel in its analysis under Article 5.7 is premised on
its assessment that, as regards fire blight, "scientific studies as well as practical experience have
accumulated for the past 200 years".
 63 Japan contends that the Panel was not authorized to base its
conclusion on the "history" of 200 years of studies and practical experience because the United States
did not claim that such "history" undermined Japan's adoption of the provisional measure pursuant to
Article 5.7.
 64 According to Japan, because the United States had itself not raised such an objection
based on the "history" of evidence and experience related to fire blight, the Panel could not draw a
conclusion regarding Article 5.7 on the basis of this "history".
33. Japan further argues that the Panel's interpretation of Article 5.7 implicitly draws an
inappropriate distinction between what Japan identifies as "unresolved uncertainty" and "new
uncertainty", and that such a distinction is inconsistent with the text of the SPS Agreement. Japan
employs the term "unresolved uncertainty" to refer to uncertainty that the existing scientific evidence

57Japan's appellant's submission, para. 93, quoting Panel Report, para. 8.219. (emphasis added by
Japan)
59Ibid.
61Japan's appellant's submission, para. 96. (emphasis added)
62Ibid., para. 96.

is not able to resolve despite its accumulation over a long period of time. 65 "New uncertainty",
according to Japan, refers to cases where a new risk has been identified and little or no reliable
scientific evidence is available on it.
 66
34. Japan claims that the Panel's interpretation of Article 5.7 would deny its applicability as long
as there had accumulated, over the years, scientific studies as well as practical experience on the risk
in general. According to Japan, this implies that cases of "unresolved uncertainty" would not be
covered by Article 5.7; Japan submits that such "inflexibility" is not based on the text or a proper
interpretation of the provision.
 67 For Japan, Article 5.7 makes no distinction between "new
uncertainty" and "unresolved uncertainty", and thereby encompasses both types of uncertainty.
35. Japan asserts that the standard in Article 2.2 of "sufficient scientific evidence" requires a
rational relationship between the evidence and a particular measure. Japan also notes the Appellate
Body's characterization in Japan – Agricultural Products II of Article 5.7 as a " qualified
exemption" 68 from the requirement of "sufficient scientific evidence" in Article 2.2. Thus, Japan
claims, in the context of Article 2.2, the phrase "cases where relevant scientific evidence is
insufficient" in Article 5.7 should properly be understood as referring to "a particular situation in
respect of a particular measure to which Article 2.2 applies (or a particular risk), but not to a
particular subject matter in general, which Article 2.2 does not address."
 69
36. Because Article 5.7 is intended to cover situations of "unresolved uncertainty" as well as
"new uncertainty", Japan argues that the "unresolved uncertainty" in this case was improperly
discounted by the Panel. Japan asserts that, in the present case, the Panel found that "unresolved,
scientific uncertainty" still remained as to the risk of shipment of infected apple fruit, notwithstanding
200 years of experience of fire blight.
 70 According to Japan, the experts themselves expressed the
need for caution with respect to unresolved uncertain ty, as they considered reasonable the continuing
requirement of a fire blight-free orchard, and as they voiced strong reservations about the possibility
of removing all elements of Japan's phytosanitary measure at once. Japan further argues that a novel
experiment it introduced during the Panel proceedings to show the possibility of infection of the
inside of apple fruit via pedicel was not challenged by any of the experts consulted by the Panel. For

66Ibid., and footnote 76 thereto.
67Ibid., para. 100.
69Japan's appellant's submission, para. 102. (original italics)
70Ibid., para. 106.

Japan, the results of the experiment indicate that the available information on fruit infection is far
from conclusive, contrary to the assertions of the United States. Japan adds that the fact that other
countries do not impose phytosanitary measures in response to "unresolved uncertainty" regarding fire
blight does not necessarily mean that such uncertainty does not exist or is negligible. Instead,
according to Japan, it is the prerogative of each importing Member, corresponding to its appropriate
level of protection, to determine if it will accept such uncertainty.
37. Japan further contends that this case involves "new uncertainty" as well as "unresolved
uncertainty". Referring to the testimony of the experts, Japan argues that if it has to remove or modify
its phytosanitary measure to bring it into conformity with Article 2.2, the impact of this action will
create "new uncertainty", as the change to the phytosanitary requirements will result in a new situation
of risk, for which little, or no, reliable evidence is available. Therefore, in Japan's view, even under
the Panel's unduly narrow interpretation of Article 5.7, this provision should be considered applicable
to the present case.
38. Japan states that the Panel erred by concluding that the first of the four prerequisites for a
provisional measure under Article 5.7 (that is, the existence of a case where relevant scientific
evidence is insufficient), as articulated by the Appellate Body in Japan – Agricultural Products II ,
was not met. Japan further asserts that the Panel should have examined whether Japan's measure
satisfied the remaining three requirements for a provisional measure. Accordingly, Japan requests
that the Appellate Body complete the legal analysis with respect to the remaining three prerequisites
identified in Japan – Agricultural Products II for a provisional measure.
 71 In this respect, Japan
submits that it satisfies these three remaining requirements.
39. Japan therefore requests the Appellate Body to reverse the Panel's finding under Article 5.7,
to complete the legal analysis, and to find that Japan's measure constitutes a provisional measure
pursuant to Article 5.7 of the SPS Agreement.
 72
3. Article 5.1 of the SPS Agreement
40. Japan appeals the Panel's legal interpretation of Article 5.1 of the SPS Agreement. Japan
claims that the Panel's finding that Japan has acted inconsistently with Article 5.1 is premised on this
erroneous interpretation, in particular, on three legal errors perpetrated by the Panel when applying

71See infra, para. 60.

Article 5.1 in its examination of Japan's risk assessment (referred to by the Panel as the "1999
PRA"). 73
41. First, Japan claims that the Panel improperly interpreted Article 5.1 as requiring the risk
assessment to be "specific" to apple fruit. In Japan's view, Article 5.1 requires a "risk assessment";
but does not speak to the precise manner in which that risk assessment must be conducted. As such,
according to Japan, the requirement of "specificity", identified in EC – Hormones , should be
understood as referring to the "[specificity of] th e risk" rather than to "how a risk assessment is
done". 74 On the basis of this understanding, Japan does not find legally significant the Panel's
observation that Japan's risk assessment was "conducted on the basis of a general assessment of
possibilities of introduction of fire blight into Japan, through a variety of hosts, including - but not
exclusively - apple fruit ". 75 Japan emphasizes the fact that it conducted the pest risk assessment for
fire blight in accordance with its own "methodolo gy", namely, one that considers "all importation of
plants and fruits which could be potential vectors of the bacteria". 76 Selection of such a methodology,
according to Japan, is well within the discretion accorded each importing Member by Article 5.1 in
the conduct of its risk assessment. Therefore, Japan argues, it would be "erroneous to find the
1999 PRA not specific enough".
 77
42. Secondly, Japan contends that the Panel read Article 5.1 improperly as requiring Japan to
"consider[] any alternative measures other than the[] existing measures." 78 Japan submits that the
consideration of alternative phytosanitary measures relates to the " methodology" of the risk
assessment, which is not addressed by Article 5.1. 79 Japan notes that under its risk assessment
methodology, when an exporting Member makes "a specific request and a proposal [for the lifting of
the default import prohibition], a risk assessment would have to be made in connection with that

73The "1999 PRA" refers to the "Report on Pest Risk Analysis concerning Fire Blight Pathogen
(Erwinia amylovora ) - Fresh apples produced in the United States of America", Ministry of Agriculture,
Forestry and Fisheries, Plant Protection Division (August 1999); Exhibit JPN-32, submitted by Japan to the
Panel. This pest risk analysis follows an earlier such analysis deemed by the Panel to be relevant to the entry
and spread of fire blight (Panel Report, para. 8.246) and identified by Japan as the "Pest Risk Analysis
concerning Fire Blight Pathogen ( Erwinia amylovora )" (1996); Exhibit JPN-31, submitted by Japan to the
Panel. The Panel observed that "the parties agree that the 1999 PRA is the main relevant document" to be
evaluated as Japan's risk assessment under Article 5.1 of the SPS Agreement. (Panel Report, para. 8.247) At
the oral hearing, both participants reaffirmed the focus of the Panel's Article 5.1 analysis to be the 1999 PRA.
75Panel Report, para. 8.270. (emphasis added)
77Ibid., para. 129.
79Japan's appellant's submission, para. 133. (emphasis added)

particular proposal." 80 Japan argues that its reliance on "cumulative measures" reflects not the
inadequacy of its risk assessment, as the Panel suggests, but the "high level of protection" sought to be
achieved by Japan.
 81 Therefore, in Japan's view, Article 5.1 does not require Japan to have
considered alternative measures in its risk assessment.
43. Finally, Japan argues that the Panel improperly evaluated Japan's risk assessment in the
light of information that became available only subsequent to the risk assessment. Japan draws a
distinction between (i) compliance with Article 5.1 at the time of the "initial" risk assessment and
(ii) "continu[ing]" compliance with Article 5.1 in the light of subsequent information.
 82 Japan argues
that, in the first case, the importing Member should "fully complete[]" a risk assessment, consistent
with the SPS Agreement, and on the basis of "information available at [that] time".
 83 In the second
case, the requirement of a "full, formal risk assessment" 84 immediately after the discovery of
new evidence would be "unreasonable" 85 and, therefore, recently discovered evidence should be
considered only "in the context of investigating whether … the party continues to comply with
Article 5.1". 86
44. With regard to subsequent information, Japan advances three grounds for considering as
"unreasonable" the requirement of a "full" risk assessment. First, Japan argues that the importing
Member should be given an opportunity to consider whether the recent information necessarily
warrants a new risk assessment. Secondly, as there is no requirement under the SPS Agreement that
a risk assessment be a formal process, and as Japan has already taken into account recent evidence
filed by the United States and New Zealand during the Panel proceeding, Japan submits that it has
already "substantively fulfilled the risk assessment requirements" of Article 5.1.
 87 Finally, Japan
notes that a formal risk assessment process takes time to complete and that the review of newly
available information is an "on-going process". 88 Because such information comes to an importing
Member's knowledge in "piecemeal" fashion, Japan argues, that Member cannot be expected to
conduct a "full risk assessment" for every new piece of evidence.
 89 Therefore, in Japan's view, "the

81Ibid., para. 134.
82Ibid., para. 136.
83Ibid., para. 135.
84Ibid., para. 136.
85Ibid., para. 138.
86Ibid., para. 136. (emphasis added)
87Ibid., para. 137.
88Ibid., para. 138.
89Ibid.

requirement of a formal risk assessment should mean that the assessment be performed in due
course." 90
45. Japan therefore requests the Appellate Body to reverse the Panel's findings with respect to
Article 5.1 of the SPS Agreement.
4. Article 11 of the DSU
(a) The Panel's objective assessment under Article 2.2 of the
SPS Agreement
46. Japan challenges on appeal the Panel's analysis of the completion of the last stage of the
pathway for transmission of fire blight from "infected" apple fruit. According to Japan, the errors of
the Panel in this analysis constitute a failure to make an "objective assessment of the facts of the case"
in accordance with Article 11 of the DSU.
47. First, referring to the Panel's reasoning in paragraph 8.166 of the Panel Report, Japan argues
that the evidence and experts' opinions relied upon by the Panel were focused on the pathway of
transmission of fire blight from mature, symptomless apples and did not take into consideration the
pathway from infected apple fruit. Japan contends that the Panel failed to present how the evidence
related to mature, symptomless apple fruit should be applied to the issue of infected apples, and
therefore, the Panel erroneously relied on such evidence in arriving at a conclusion for all kinds of
apple fruit.
48. Secondly, Japan asserts that, in the same paragraph of the Panel Report, the Panel, when
considering evidence of experiments of inoculated apples, made a "factual error"
 91 in declaring that
"discarded apples have not led to any visible contamination, even when ooze was reported to exist". 92
According to Japan, this declaration is a mischaracterization of the underlying scientific studies,
which actually reported that no ooze was observed, and is inconsistent with other evidence in the
Panel record. Such a "material error" in this finding, in Japan's view, "implies that this key paragraph
on completion of the pathway was not given careful thought", and is therefore inconsistent with the
standard of review in Article 11 of the DSU.
 93
49. Thirdly, Japan notes that the Panel rejected the United States' argument that the caution
emphasized by the experts with respect to changes in Japan's measure should be equated to a

91Ibid., para. 52.
92Ibid., quoting Panel Report, para. 8.166. (emphasis added by Japan)

"theoretical risk", as such risk was described by the Appellate Body in EC – Hormones. 94 In
rejecting this characterization, Japan argues, the Panel necessarily viewed the risk from infected
apples to be "real" and implicitly recognized that the pathway from infected apples could, in fact, be
completed.
 95 In Japan's view, the Panel's determination that the risk of transmission of fire blight
from infected apples was not "theoretical", cannot be reconciled with its finding on the likelihood of
completion of the pathway.
50. Fourthly, Japan contends that the Panel failed in its analysis to take into account properly the
"precautionary principle" and the need for caution that was expressed by the experts. Japan claims
that, although the expressions of caution by the experts "do not identify a concrete path of the
dissemination of the disease"
 96, the Panel's failure to accord them "greater weight" 97 in its evaluation
of the evidence is inconsistent with the Panel's dut y to make an "objective assessment of the facts of
the case" under Article 11 of the DSU.
51. In the light of these errors in the Panel's assessment of the facts of the case, Japan requests the
Appellate Body to find that the Panel failed to discharge its functions under Article 11 of the DSU
with respect to is evaluation of the United States' claim under Article 2.2 of the SPS Agreement.
(b) The Panel's objective assessment under Article 5.1 of the
SPS Agreement
52. Japan claims that the Panel failed to fulfill its obligations under Article 11 of the DSU when
evaluating the United States' claim under Article 5.1 of the SPS Agreement. In particular, Japan
contests the Panel's conclusions that Japan's risk assessment (the 1999 PRA) insufficiently analyzed
the "probability" and "pathways" when considering the likelihood of entry, establishment or spread of
fire blight.
53. Concerning the "probability" considered in the risk assessment, Japan challenges the Panel's
finding that the 1999 PRA does not provide any "quantitative or qualitative" assessment of the
"probability" of entry, establishment or spread of fire blight in Japan.
 98 According to Japan, the Panel
reached this erroneous conclusion by "ignoring the clarifying material supplied by Japan" and relying
solely on its own understanding and interpretation of the risk assessment contained in the

94Appellate Body Report, para. 186.
96Ibid., para. 68.
97Ibid., para. 69.

1999 PRA. 99 With regard to the risk assessment's examination of "pathways" of transmission, Japan
claims that the Panel again focused exclusively on the text of the 1999 PRA and overlooked Japan's
submissions and other explanatory material on the subject. Such a "clear aversion" to considering the
additional evidence and explanations submitted by Japan, in Japan's view, constitutes a failure to
make an "objective assessment of the facts of the case".
 100
54. Japan therefore requests the Appellate Body to find that the Panel acted inconsistently with its
obligations under Article 11 of the DSU when evaluating the United States' claim under Article 5.1 of
the SPS Agreement.
B. Arguments of the United States – Appellee
1. Article 2.2 of the SPS Agreement
55. Because the United States agrees with Japan that the Panel erred in making findings as to
immature apples 101, the United States limits its discussion under Article 2.2 of the SPS Agreement to
"mature, symptomless" apples. In this respect, the United States argues that Japan's arguments in
favour of reversing the Panel's findings are based either on the re-weighing of evidence before the
Panel, or on the imposition of legal standards that are "not found in the SPS Agreement".
 102
56. The United States first claims that Japan's allegations under Article 2.2 constitute a challenge
to the Panel's fact-finding. These allegations, according to the United States, cover the Panel's
weighing of the significance of the 1990 van der Zwet study 103 and of the history of trans-oceanic
dissemination of fire blight, as well as the Panel's factual conclusions with respect to the possibility of
infection of mature, symptomless apples. The United States submits that such a challenge to the
Panel's fact-finding may be raised on appeal only in the context of a claim under Article 11 of the
DSU. The United States notes that Japan does not allege a violation of Article 11 with respect to
these issues. Therefore, in the view of the United States, Japan's allegations under Article 2.2 should
be rejected by the Appellate Body and the Panel's finding that Japan acted inconsistently with
Article 2.2 of the SPS Agreement should be upheld.

100Ibid., para. 132.
101United States' appellee's submission, para 5. See also, infra, paras. 82 ff.
103T. van der Zwet et al., "Population of Erwinia amylovora on External and Internal Apple Fruit
Tissues", Plant Disease (1990), Vol. 74, pp. 711-716; Exhibit JPN-7, submitted by Japan to the Panel.

57. The United States rejects Japan's arguments that the Panel failed to give appropriate weight to
Japan's interpretation of the evidence, and hence failed to accord the appropriate "discretion" to the
importing Member in the evaluation of scientific evidence and the consequent establishment of a
phytosanitary measure.
 104 According to the United States, the "discretion" enjoyed by importing
Members should not prevent a panel from finding that a Members' judgement is unsupported by
scientific evidence. In the United States' view, Japan's position is inconsistent with the Appellate
Body's statement in Australia – Salmon that panels "are not required to accord to factual evidence of
the parties the same meaning and weight as do the parties."
 105 The United States submits that Japan's
position also "echoes" the interpretation proffered by Japan and rejected by the Appellate Body in
Japan – Agricultural Products II.
 106
58. The United States contests Japan's argument that the United States failed to prove the absence
of scientific evidence concerning "mature, symptomless" apples serving as a pathway. The United
States asserts that Japan "distorts the applicable burden [of proof]": it transforms the requirement of
"rais[ing] a presumption" that there was no relevant scientific evidence supporting the measure, into
an obligation of "prov[ing] the absence of scientific evidence".
 107 The United States contends that the
SPS Agreement cannot be interpreted as imposing upon the complaining Member the burden of either
proving a "negative" 108, or disproving "all speculation on hypothetical risks". 109 According to the
United States, Japan itself acknowledged that meeting this burden of proof would be an "impossible"
task.
 110 In contrast to this impossibility, the United States argues, a complaining party must be given
the possibility of raising a presumption of the absence of relevant scientific evidence.
59. The United States recalls that Article 2.2 requires that a measure not be maintained "without
sufficient scientific evidence". According to th e United States, this requirement does not mean that
"uncertainty" will be completely eradicated because "uncertainty" is an inherent characteristic of
science, which cannot provide absolute certainty, as explained by the Appellate Body in
EC – Hormones .
 111 In the light of this uncertainty that can never be eliminated, the United States
rejects as speculative Japan's suggestion that "apple fruit may have been the means by which trans-
oceanic dissemination of fire blight occurred in the past" or that " E. amylovora bacteria may be

104United States' appellee's submission, para. 19, quoting Japan's appellant's submission, para. 76.
105Appellate Body Report, para. 267.
108Ibid., para. 22.
109Ibid., para. 20.

present in physiologically mature apples". 112 These propositions, the United States claims, are based
respectively on allegations that the causes of trans-oceanic dissemination are still unknown, and that
the moment of maturity is not precise. Such "speculation", in the view of the United States, cannot
constitute "sufficient scientific evidence" in the face of research establishing that mature apples do not
serve as a pathway for transmission of fire blight.
60. Therefore, the United States requests the Appellate Body to uphold the Panel's finding that
Japan's measure, as applied to mature, symptomless apples, is maintained "without sufficient
scientific evidence" and is therefore inconsistent with Japan's obligations under Article 2.2 of the
SPS Agreement.
2. Article 5.7 of the SPS Agreement
61. The United States supports the Panel's interpretation and application of Article 5.7 of the
SPS Agreement. It requests the Appellate Body to reject Japan's appeal in this regard and uphold the
Panel's findings accordingly.
62. The United States contends that the mere fact that some uncertainty exists in the evidence
before a panel, whether "unresolved" or "new", cannot justify the conclusion that relevant scientific
evidence is insufficient. According to the United States, such a conclusion must be based on an
assessment of the evidence itself. The United States adds, to illustrate its point, that the uncertainty as
to the means by which trans-oceanic dissemination of fire blight occurred is not relevant to the issue
of transmission of fire blight by mature apples in the face of "specific, direct, and voluminous"
evidence that mature apple fruit does not transmit fire blight.
 113
63. The United States further contends that the context of Article 5.7 clarifies the concept of
"sufficiency" under Article 5.7. The United States notes that the second sentence of Article 5.7
requires Members imposing provisional phytosanitary measures to "obtain additional information
necessary for a more objective assessment of risk."
 114 According to the United States, this provision
implies that information necessary for an objec tive risk assessment is lacking at the time the
provisional measure is adopted. The United States finds this implication "logical" because, if
sufficient information existed for an objective risk assessment, a provisional measure would be
unnecessary.
 115 As such, in the view of the United States, the "sufficiency" of evidence relevant to

112United States' appellee's submission, para. 24. (original italics)
113Ibid., para. 29.
114Ibid., para. 30, quoting Article 5.7 of the SPS Agreement. (emphasis added by the United States)

Article 5.7 should be defined in relation to the sufficiency of evidence for an objective risk
assessment.
64. With respect to the concept of "unresolved uncertainty", the United States claims that the
examples of "unresolved uncertainty" cited by Japan "do not even constitute relevant scientific
evidence." 116 The statements of caution by the experts, according to the United States, were based on
policy judgements rather than scientific considerations, as the experts themselves acknowledged. In
the view of the United States, these statements cannot be considered scientific evidence within the
meaning given by the Panel to this term.
 117 The United States also argues that the unpublished study
cited by Japan cannot constitute uncertainty that leads to a conclusion of insufficient relevant
scientific evidence, because the experts did not agree with Japan as to the uncertainty identified by the
study. Thus, according to the United States, Japan's purported uncertainties cannot overcome the
extensive studies on fire blight on which the Panel relied to determine that relevant scientific evidence
was not insufficient.
65. The United States contests Japan's attempt to identify "new uncertainty" that would justify the
measure under Article 5.7. The United States claims that uncertainties related to the possible removal
of Japan's measure do not render the relevant scientific evidence "insufficient" within the meaning of
Article 5.7. Such uncertainties, in the view of the United States, constitute "[h]ypothetical
speculation" that does not meet the requirements of Article 5.7, just as speculation cannot satisfy the
requirements of Article 5.1.
 118 If Japan's interpretation were accepted, the United States contends,
"the exception in Article 5.7 would swallow the whole of the SPS Agreement." 119
66. The United States argues that, in any event, Japan does not meet the remaining three
requirements of Article 5.7 set out by the Appellate Body in Japan – Agricultural Products II . 120
The United States claims that Japan's measure cannot be based on "available pertinent information",
as stated in Article 5.7, because Japan has not cited such information, nor does such information exist
given the evidence establishing that the pathway cannot be completed for mature apple fruit. In
addition, the United States argues, Japan has not sought to obtain additional information for a more
objective risk assessment, as Japan has "disregarded" the evidence on the lack of susceptibility of

117The Panel stated that scientific evidence is "evi dence gathered through scientific methods" and that
it "excludes in essence not only insufficiently substantiated information, but also such things as a non-
demonstrated hypothesis." (Ibid., para. 38, quoting Panel Report, paras. 8.92-8.93)
118United States' appellee's submission, para. 42, citing Appellate Body Report, EC – Hormones ,
para. 186.
120Appellate Body Report, para. 89.

mature apples to fire blight infection and bacterial presence. 121 According to the United States, Japan
has also not reviewed the measure within a reasonable period of time, as Japan "has not examined, let
alone sought, information" concerning the critical elements of the pathway for transmission of fire
blight.
 122 Thus, in the view of the United States, Japan meets none of the requirements set forth under
Article 5.7.
67. Therefore, the United States requests the Appellate Body to uphold the Panel's finding that
Japan acted inconsistently with its obligations under Article 5.7 of the SPS Agreement.
3. Article 5.1 of the SPS Agreement
68. The United States supports the Panel's interpretation of and analysis under Article 5.1 of the
SPS Agreement, and therefore requests the Appellate Body to reject Japan's appeal on this issue.
69. The United States argues first that the Panel properly applied the requirement of "specificity"
when evaluating Japan's risk assessment (the 1999 PRA). The United States observes that Japan
acknowledges that the 1999 PRA "did not specifically focus on a particular commodity" (in particular,
on apple fruit).
 123 The United States contests Japan's claim, however, that the lack of a product-
specific focus in the risk assessment was only a matter of "methodology" in order to assess the risk of
multiple vectors, including that from apple fruit. According to the United States, the Panel's
interpretation properly required the assessment under Ar ticle 5.1 to be sufficiently specific to the risk
at issue. The United States submits that, in order for a measure imposed on a particular product to be
"rationally" related to, or based on, an assessment of risks, that measure must "specifically" focus on a
"product".
 124 That Japan characterizes the lack of such focus in the 1999 PRA as a "methodology"
does not, according to the United States, exempt the risk assessment from this specificity requirement.
The United States asserts that Japan's risk assessment evaluated the risk related to several hosts but
did not sufficiently consider the risks "specifically associated with the commodity at issue: US apple
fruit exported to Japan."
 125 Therefore, the United States contends, the 1999 PRA failed to meet the
requirement of specificity under Article 5.1, as correctly found by the Panel.

122Ibid., para. 47.
125Ibid., quoting Panel Report, para. 7.14.

70. Secondly, the United States challenges Japan's argument that, because its "methodology"
required a risk assessment in connection with a proposal from an exporting Member, Japan was not
bound to consider in the 1999 PRA any alternative measures to those already applied. The United
States claims that, as the Panel noted, "nothing in the text of Article 5.1 and Annex A, paragraph 4
suggests that alternative options have to be proposed by the exporting Member."
 126 Instead, the
United States notes, paragraph 4 of Annex A refers to "SPS measures which might be applied". In the
view of the United States, this text makes clear that it is the importing Member's obligation to
consider alternative measures to those that it actually applies. In this regard, the United States draws
attention to the observations by Dr. Chris Hale and Dr. Ian Smith that the 1999 PRA "appeared to
prejudge the outcome of its risk assessment" and that the 1999 PRA seemed to be primarily concerned
with showing that "each of the measures already in place was effective in some respect" in order to
conclude that all were necessary.
 127
71. Finally, the United States takes issue with Japan's claim that it has satisfied the requirements
of Article 5.1 by conducting an "informal risk assessment" on mature, symptomless apples in the
course of the dispute settlement proceedings and has reached the conclusion that the latest data
presented by the United States and New Zealand are "not yet sufficient" to justify a modification of
the current measure.
 128 Such a claim, the United States argues, reflects Japan's intention to maintain
its measure even in the face of an adverse ruling and, therefore, highlights the need for the Appellate
Body to make clear legal findings rejecting Japan's "spurious legal theories".
 129 In this regard, the
United States submits that, although the Panel correctly found that Japan failed to meet the
requirements of Article 5.1, this conclusion could have been reached on a "more fundamental basis":
in the United States' view, given the "close rela tionship" between Articles 5.1 and 2.2, and in the
absence of "sufficient scientific evidence" under Article 2.2, the relationship between the measure and
the risk assessment lacks the "rational" basis requir ed in order for the former to be "based on" the
latter.
 130
72. The United States therefore requests the Appellate Body to uphold the Panel's finding that
Japan's measure, with respect to mature, symptomless apples, is inconsistent with Japan's obligations
under Article 5.1 of the SPS Agreement.

127United States' appellee's submission, para. 55, quoting Panel Report, para. 8.289, in turn quoting
ibid., paras. 6.177 (Dr. Hale) and 6.180 (Dr. Smith).
128United States' appellee's submission, para. 56, qu oting Japan's appellant's submission, paras. 124
and 137.
130Ibid., para. 60.

4. Article 11 of the DSU
(a) The Panel's objective assessment under Article 2.2 of the
SPS Agreement
73. The United States understands Japan's argument under Article 11 of the DSU, with respect to
the Panel's fact-finding in paragraph 8.166 of the Panel Report, to challenge those conclusions only as
they apply to "immature apples". 131 The United States agrees with Japan that paragraph 8.166 of the
Panel Report should not be read to apply to "infected" apple fruit, but for reasons different from those
proffered by Japan.
 132 The United States submits that the Panel was without authority to make any
finding on "immature apples" because the United States' claims and arguments were expressly limited
to "mature, symptomless" apples.
 133 Nevertheless, to the extent that Japan contests the Panel's
conclusions in paragraphs 8.166 and 8.168 in relation to mature apples, the United States contends
that this claim is without merit.
74. The United States emphasizes that claims under Article 11 require a showing that the Panel
evinced "deliberate disregard" for evidence or "refuse[d] to consider", "willfully distort[ed]", or
"misrepresent[ed]" evidence.
 134 In the view of the United States, Japan has failed to meet this "high
standard". 135
75. First, the United States argues that the Panel had sufficient evidentiary basis for its fact-
finding in paragraph 8.166 of the Panel Report as to mature, symptomless apples. According to the
United States, the Panel cited studies that had found no vector for "calyx-infested discarded apples",
in addition to the experts' statements that other means of completing the pathway were unsupported
by the available scientific evidence.
 136 In this regard, the United States submits that Japan's allegation
of a factual error in the Panel's reference to the existence of ooze as found by these studies, is
"irrelevant" to the Panel's finding as to mature, symptomless apples, because ooze can occur only in
"immature, infected" apples. 137

132Ibid., para. 14.
133Ibid., para. 5. See also, infra, paras. 82 ff.
134United States' appellee's submission, para. 10, citing Appellate Body Report, EC – Hormones ,
para. 133.
136Ibid.
137Ibid., footnote 9 to para. 10.

76. Secondly, the United States argues that Japan's arguments regarding the "precautionary
principle" have already been rejected by the Appellate Body in Japan – Agricultural Products II .
According to the United States, neither the text of the SPS Agreement nor the "precautionary
principle" compels a panel to find that a pathway for transmission of a disease exists where none of
the scientific evidence on record supports that conclusion. This view, the United States claims, is
supported by the Appellate Body's discussion in EC – Hormones of the "precautionary principle".
Furthermore, the United States observes, Japan refers to the experts' statements of caution but
acknowledges that "these expressions do not identify a concrete path of the dissemination of the
disease".
 138 Therefore, the United States concludes, the Panel properly refused to assume, on the
basis of generalized statements of "caution", that the pathway could be completed where no evidence
attests to that fact.
77. Finally, the United States challenges Japan's claim that the Panel considered the risk of
completion of the pathway to be more than theoretical. The United States observes that the Panel
employed the term "unlikely" when characterizing the experts' views on the likelihood of completion
of the pathway, but claims that, in doing so, the Panel reflected the reality that science can never state
with certainty that an event will never occur. In the view of the United States, this proper approach to
risk analysis by the Panel should not be understood to suggest more than a theoretical risk of
transmission of fire blight from apple fruit.
78. The United States therefore requests the Appellate Body to find that the Panel properly
discharged its obligations under Article 11 of the DSU when finding that the last stage of the pathway
for transmission of fire blight from mature, symptomless apples would not be completed.
(b) The Panel's objective assessment under Article 5.1 of the
SPS Agreement
79. The United States claims that Japan's challenges to the Panel's fact-finding in the course of its
Article 5.1 analysis are not properly before the Appellate Body. The United States argues that, in
US – Countervailing Measures on Certain EC Products , the Appellate Body found that an appellant
raising an Article 11 claim must indicate such a claim in its Notice of Appeal.
 139 In the United States'
view, because Japan did not identify, in its Notice of Appeal, its Article 11 claim with respect to the
Panel's findings under Article 5.1, Japan has not appealed this issue in accordance with Rule 20(2)(d)
of the Working Procedures . Therefore, the United States contends, the Appellate Body should
decline to address this aspect of Japan's appeal.

138United States' appellee's submission, para. 12, quoting Japan's appellant's submission, para. 67.
139United States' appellee's submission, footnote 88 to para. 53.

80. Should the Appellate Body proceed to consider Japan's Article 11 claim with respect to the
Panel's analysis under Article 5.1, the United States argues, the Appellate Body should find that Japan
has not established the sort of "egregious errors" required to find that the Panel has not fulfilled the
requirements under Article 11.
 140 In addition, according to the United States, Japan has not contested
other "deficiencies" identified in Japan's risk assessment by the experts and accepted by the Panel. 141
81. The United States thus requests the Appellate Body to dismiss Japan's claim that the Panel
failed to satisfy its obligations under Article 11 of the DSU in the course of evaluating the United
States' claim under Article 5.1 of the SPS Agreement. Alternatively, the United States requests the
Appellate Body to find that these obligations were discharged properly by the Panel when it found
that Japan's risk assessment did not evaluate adequately the likelihood of entry, establishment or
spread of fire blight from apple fruit.
C. Claim of Error by the United States – Appellant
Claim on the "Authority" of the Panel
82. The United States argues that, because it presented claims relating only to "mature,
symptomless" apples, the Panel erred in analyzing the measure with respect to products other than
those identified. In particular, according to the United States, the Panel exceeded its authority by
making findings related to immature apples and to United States export control procedures. The
United States requests the Appellate Body to "reverse the Panel's legal findings and declare the
Panel's statements derived from those findings to be without legal effect."
 142
83. The United States asserts that the issue presented to the Panel was "whether Japan's
restrictions on mature, symptomless apples are consistent with the SPS Agreement, and not whether
Japan could maintain restrictions on any other product."
 143 The United States contends that it pursued
this approach because it was seeking to export only mature, symptomless apples to Japan, and that it
has laws and "extensive measures" to limit apple exports to apples with these characteristics.
 144
84. The United States notes that, although its claims were limited to mature apples, the Panel
concluded that the measure at issue should be evaluated in the light of its applicability to all apple
fruit, including immature apples. As a result, according to the United States, the Panel also

140United States' appellee's submission, para. 53, quoting Appellate Body Report, Japan – Agricultural
Products II, para. 141.
142United States' other appellant's submission, para. 3.
143Ibid., para. 6.
144Ibid., para. 7.

considered it appropriate to examine those issues related to "control procedures" and requirements for
the exportation of apples, because such measures affect whether apples exported to Japan could
include immature infected apples.
 145 The United States considers as flawed the rationale provided by
the Panel to justify its consideration of all apple fruit, and of United States export control procedures.
85. First, the United States contests the Panel's understanding that the reference in the United
States' request for the establishment of a panel to "apples" authorizes the Panel to make findings on
apples other than "mature, symptomless" apples. In particular, the United States challenges the
Panel's reasoning that a request for the establishment of a panel "is not exclusively a limitation to [a
panel's] jurisdiction, it defines it positively too."
 146 According to this logic, the United States argues,
panels may offer analysis and findings on any claims identified in the request for the establishment
of a panel, including those not pursued by the complaining party. In the view of the United States,
however, it is not the function of dispute settlement panels to conduct a de novo review and make
findings on claims not pursued, nor is it their function to "theorize" about arguments and evidence that
a complaining party might have advanced.
 147 Moreover, the United States contends that the Panel
ignored the limits of its investigative author ity recognized by the Appellate Body in Japan –
Agricultural Products II, wherein the Appellate Body explained that "this authority cannot be used by
a panel to rule in favour of a complaining party which has not established a prima facie case based
on specific legal claims asserted by it." 148 The United States asserts that it made no prima facie case
with respect to immature apples, and that Japan offered no evidence that United States export control
procedures would fail to ensure that only "mature, symptomless" apples were exported. In the view
of the United States, therefore, the Panel had no basis to make findings not related to mature,
symptomless apples.
86. The United States also observes that the Panel's decision to make a finding based solely on
the wording of the claim in the United States' reque st for the establishment of a panel is inconsistent
with panel practice under the current dispute settlement mechanism. The United States argues that,
because panels have not made findings on abandoned claims, parties have been able to reasonably
assume that claims may be abandoned through lack of argumentation. The Panel's reasoning in this
case, according to the United States, "risks prejudicing one or both parties" because it "contravene[s]
that assumption".
 149

145United States' other appellant's submission, para. 8.
147United States' other appellant's submission, para. 10.
148Ibid., para. 11, quoting Appellate Body Report, para. 129. (emphasis added by the United States)
149United States' other appellant's submission, para. 13.

87. Secondly, the United States challenges the Panel's claim that it had authority to make findings
related to immature apples on the basis of (i) the United States' evidence on its export control
procedures and (ii) Japan's argument that the measure at issue would also address the entry of
immature or infected apples due to possible lapses in those procedures. The United States contends,
however, that it had made no claim with respect to immature apples and, as a result, the Panel had no
basis to review the measure in relation to immature apples. Furthermore, in the view of the United
States, Japan's concerns regarding the possible failure of United States export control procedures
could not justify the Panel's finding on immature apples because the sole question before the Panel
related to the consistency of Japan's measure, as applied to "mature, symptomless" apples, with
Article 2.2.
88. Thirdly, the United States contends that the Panel erroneously asserted that the definition of
"sanitary measure" in paragraph 1 of Annex A to the SPS Agreement "does not limit the scope of
application of phytosanitary measures to the product that the exporting country claims to export. In
order to be effective, a phytosanitary measure should cover all forms of a product that may actually be
imported."
 150 According to the United States, it is impossible to decide in the abstract what the
requirements may be for all phytosanitary measures that a Member might maintain on any product. In
any event, the United States argues, the fact that a phytosanitary measure may address risks associated
with certain types of a product does not mean that the measure conforms to a Member's obligations
under the SPS Agreement with respect to all types of a product.
89. Finally, because Japan's measure does not relate to export control procedure failures, the
United States claims that the Panel's findings on immature apples cannot be justified by reference to
the Appellate Body's acknowledgement in EC – Hormones that a risk assessment underlying a
measure may consider all scientific risks, whatever their origin, including risks from export control
procedure failures.
90. Therefore, as the Panel exceeded its authority , in the view of the United States, in ruling on
matters beyond the scope of the dispute, the United States requests the Appellate Body to reverse the
Panel's findings with respect to products other than "mature, symptomless" apples and to export
control procedures, and to "declare the Panel's statements derived from those findings to be without
legal effect."
 151

151United States' other appellant's submission, para. 3.

D. Arguments of Japan – Appellee
Claim on the "Authority" of the Panel
91. Japan claims that the Panel was, not only permitted to address the issue of "infected apple
fruit" on the basis of the scope of the Panel's terms of reference that cover Article 2.2 of the
SPS Agreement and United States apples "in general", but was also obligated to do so because the
issue of infected apple fruit was part of the prima facie case to be established by the United States.
 152
92. First, Japan disagrees with the United States' assertion that the Panel should not have
addressed the issue of "immature apples" based on the fact that a panel has authority to rule only on
specific claims made by the complainant. 153 Japan claims that this erroneous assertion involves two
legal principles that should not be confused. The first principle, according to Japan, relates to the
"scope of the dispute".
 154 Japan submits that the scope of the dispute is determined by the terms of
reference in the request for the establishment of a panel, such that a panel should not rule on matters
not included in its terms of reference. The second principle, in Japan's view, dictates the onus on the
complaining party to establish a prima facie case within that scope of the dispute.
93. Regarding the "scope of the dispute" in the current case, Japan observes that Article 2.2 of the
SPS Agreement is included in the Panel's terms of reference, and the United States' request for the
establishment of a panel makes reference to "US apples" generally, rather than specifically to "mature,
symptomless" apple fruit. Japan submits that the Panel's discussion of infected apples under
Article 2.2 thus falls well within the scope of the dispute as defined by the request for the
establishment of a panel and the terms of reference. According to Japan, addressing infected apples
was necessary in order for the Panel to achieve a "satisfactory settlement of the matter", as required in
Article 3.4 of the DSU; the fact that the United States did not specifically mention "infected apples"
does not deprive the Panel of its right to address this issue.
94. Concerning the second "principle", Japan asserts that the fact-finding authority of a panel
should not be confused with the requirement of establishing a prima facie case. In Japan's view,
establishing a prima facie case is a "requirement of proof" imposed on the complaining party that
prevents a panel from finding facts in favour of the complaining party when that party has not asserted
those facts.
 155 Nevertheless, Japan argues, a panel may find facts not "asserted" by the complaining

153Ibid., para. 3.
154Ibid., para. 4.
155Ibid., para. 8.

party if those facts are "asserted" by the respondent. 156 Japan alleges that the assertion of a particular
factual claim, even if proven, may not be sufficient to establish a prima facie case under the relevant
provisions. More specifically, Japan claims, "in order to establish a prima facie case of insufficient
scientific evidence under Article 2.2 of the SPS Agreement, the complaining party must establish that
there is not sufficient scientific evidence for any of the perceived risks underlying the measure, or
that the measure is otherwise not supported by sufficient scientific evidence." 157 Thus, in the present
case, Japan argues, because the issue of "infected apples" is related to the risk addressed in Japan's
phytosanitary measure, the United States should have established a prima facie case covering
infected apples in addition to mature, symptomless apples.
95. Japan further argues that, although the Panel acted properly in addressing infected apple fruit,
the Panel erred in shifting to Japan the burden of proof on the establishment of the risk of completion
of the pathway through infected apple fruit. In Japan's view, it was the United States' burden to
establish that it would ship only "mature, symptomless" apples.
 158 Japan contends that, because the
United States failed to discharge this burden, the only way for the United States to establish a prima
facie case would be to prove the insufficiency of scientific evidence supporting the view that the
pathway could be completed for infected apple fruit. According to Japan, this had not been
demonstrated by the United States, and, therefore, the burden of proof should not have been shifted.
96. Japan contests the United States' claim that Japan failed to submit evidence on the
inappropriateness of the "U.S. [export] control procedures". 159 Japan submits that the United States,
not Japan, bore the obligation of proving the efficacy of United States export control procedures for
apples. Moreover, Japan observes, it did submit evidence on the failure of United States export
control procedures in one specific case, where apple fruit harbouring codling moth larvae was shipped
to the Separate Customs Territory of Taiwan, Pe nghu, Kinmen, and Matsu. Japan submits that this
case is "[i]ndisputable evidence that the U.S. [export] control procedures are prone to failure and that
they did fail."
 160 This evidence was not contested by the experts, nor was it rebutted by the United
States, even though it had "ample opportunities" to do so. 161 Notwithstanding these points, Japan
argues that the United States' claim regarding the adequacy of its export control procedures raises an
issue of fact already decided by the Panel, and the claim should therefore be dismissed by the
Appellate Body.

157Ibid., para. 9. (original italics)
158Ibid., para. 12.
161Ibid., paras. 21-22.

97. Japan therefore requests the Appellate Body to reject the United States' appeal on the findings
of the Panel under Article 2.2 of the SPS Agreement.
E. Arguments of the Third Participants
1. Australia
98. Australia agrees with Japan that the Panel misinterpreted and misapplied Article 2.2 of the
SPS Agreement and, in doing so, erred in law in finding that Japan acted inconsistently with its
obligations thereunder. Concerning the interpretation of Article 2.2, Australia considers that the Panel
erred by introducing a requirement under this provision for a phytosanitary measure to be "justified"
by the relevant scientific evidence, and not to be "disproportionate" to the identified risk. In
Australia's view, this requirement is not supported by the text of Article 2.2 and suggests that the
Panel incorporated improperly into that provision the substantive obligations set forth separately in
Articles 5.1, 5.3, and 5.6. In doing so, according to Australia, the Panel undermined the negotiated
balance of rights and obligations in the SPS Agreement.
99. Australia submits that "Article 2.2 operates to ensure that the body of available scientific
evidence related to the risk addressed by the measure is adequate for an assessment of risk required
under Article 5.1, but does not include a requirement for the actual measure applied by the Member to
be justified by the scientifically identified risk."
 162 According to Australia, to read Article 2.2 as
requiring a phytosanitary measure to be "justified" by sufficient scientific evidence, as the Panel did,
converts impermissibly the phrase "not maintain ed without sufficient scientific evidence" in
Article 2.2 to the phrase "not supported by sufficient scientific evidence".
 163 Instead, Australia
argues, the issue of whether a phytosanitary measure is "justified" by scientific evidence should be
evaluated under Articles 3 and 5 of the SPS Agreement.
100. Regarding the application of Article 2.2, assuming the Panel's interpretation were correct,
Australia agrees with Japan that the Panel held implicitly that Japan should bear the burden of proof in
establishing that the last stage of the pathway through infected fruit would be completed. Citing the
Appellate Body Reports in US – Wool Shirts and Blouses and Japan – Agricultural Products II ,
Australia submits that the complaining party has the burden of establishing a prima facie case of
inconsistency with Article 2.2. Although the United States could have satisfied this burden by
establishing a presumption that sufficient scientific evidence did not exist, according to Australia, the
Panel failed to make any assessment of whether the United States had raised the necessary

162Australia's third participant's submission, para. 28.
163Ibid., para. 30.

presumption with respect to the risk from infected apple fruit. Australia notes that the United States
made no assertion and presented no evidence on infected apple fruit. Therefore, Australia argues,
the Panel erred in law by making findings on claims concerning apples other than mature,
symptomless apples in the absence of any legal arguments or evidence brought by the United States in
support of these claims. In Australia's view, "the legal effect of a reversal of the Panel’s findings on
apples other than mature symptomless apples must lead to the conclusion that the United States failed
to make a prima facie case in relation to the specific legal claim on the consistency of Japan’s
measures under Article 2.2."
 164
101. Australia also agrees with Japan that the Panel made errors of law and interpretation with
respect to Article 5.7 of the SPS Agreement, but "does not share Japan's views on the interpretation
of Article 5.7." 165 Recalling the findings of the Appellate Body in US – Wool Shirts and Blouses ,
EC – Hormones, and EC – Sardines, Australia argues that a complaining Member bears the burden
of proof in establishing a measure's inconsistency with any provision that is a "fundamental part of the
rights and obligations of WTO Members". 166 In Australia's view, these cases also make clear that this
burden cannot be discharged merely by characterizing the relevant provision as an "exception"
because certain exceptions may nevertheless constitute a "fundamental part of the rights and
obligations of WTO Members". In Australia's view, Article 5.7 of the SPS Agreement is such an
exception because the provision establishes an importing Member's right to impose provisional
phytosanitary measures, subject to certain conditions found by the Appellate Body in Japan –
Agricultural Products II.
 167 Therefore, according to Australia, Article 5.7 does not stand in a "general
rule-exception" relationship with Article 2.2 that would warrant reversing the burden of proof
normally placed on the complaining Member. 168
102. Australia further submits that the Panel made several errors in its legal interpretation of
Article 5.1 of the SPS Agreement. First, Australia agrees with Japan that the Panel erred in its
interpretation of the definition of a risk assessment under Article 5.1 of the SPS Agreement. Australia
submits that the Panel misinterpreted the requirement of "specificity" as applying to the "product at
issue" in the context of the risk assessment
 169, erroneously introducing a "new standard" 170 of

164Australia's third participant's submission, para. 47.
165Ibid., para. 48.
166Ibid., para. 55, quoting Appellate Body Report, US – Wool Shirts and Blouses , p. 16, DSR 1997:I,
323, at 337.
167Australia's third participant's submission, para. 66, referring to Appellate Body Report, para. 89.
168Australia's third participant's submission, paras. 65 and 68, citing Appellate Body Report,
169Australia's third participant's submission, para. 78.
170Ibid., para. 76.

"specificity" that is not warranted by the text of the SPS Agreement. In Australia's view, the
Appellate Body findings in EC – Hormones , consequently applied by the panel in Australia –
Salmon, discussed "specificity" in the context of requiring a risk assessment to be related to the "risk
at issue", not to the "product at issue". 171 Therefore, Australia agrees with Japan that the fact that the
1999 PRA assessed the probability of transmission by more than one vector is not a sufficient basis
alone for determining that Japan did not assess properly the probability of transmission of fire blight
through apple fruit.
103. Secondly, Australia submits that the Panel "mistakenly" 172 relied on the phrase "as
appropriate to the circumstances" in Article 5.1 as context when interpreting "measures which might
be applied" in paragraph 4 of Annex A to the SPS Agreement. According to Australia, whatever
flexibility may be afforded an importing Member in the conduct of its risk assessment by the phrase
"as appropriate to the circumstances", such flexibility cannot be interpreted to "annul or supersede the
substantive requirements for a valid risk assessment."
 173
104. Thirdly, Australia submits that there is no legal or textual basis to impose a requirement on a
Member to update its completed risk assessment every time new scientific evidence becomes
available or existing evidence is challenged. In Australia's view, the obligation under Article 5.1 for a
Member to ensure that its "measures are based on an assessment … of risks" is a constant and
objective requirement, which may be assessed by the Panel at the time of its inquiry. However,
concerning the conditions for a "risk assessment" under the SPS Agreement, as identified by the
Appellate Body in Australia – Salmon , Australia argues that once a risk assessment has met these
conditions, its validity is not subject to ongoing review.
 174 Thus, in Australia's view, new scientific
evidence is relevant under Article 5.1 for the purpose of determining whether a rational relationship
exists between the measure and the risk assessment, but not for determining whether a particular risk
assessment continues to satisfy the definition of a "risk assessment" in Annex A to the
SPS Agreement. In the light of the Panel's errors in interpreting Article 5.1, Australia supports Japan's
request to reverse the Panel's findings accordingly.
105. Australia additionally claims that, with respect to the Panel's failure to make an "objective
assessment of the matter" before it, as required under Article 11 of the DSU, Japan's allegations "have
merit and deserve close attention".
 175 In particular, Australia agrees with Japan's allegation that the

171Australia's third participant's submission, para. 77.
172Ibid., para. 82.
173Ibid., para. 83.
174Ibid., para. 86.
175Ibid., para. 92.

Panel failed to make an objective assessment in its analysis under Article 5.1 because it failed to
consider all relevant evidence before it. In Australia's view, despite the fact that the Panel indicated
that it would consider other materials in addition to the 1999 PRA, the Panel does not appear to have
gone beyond the 1999 PRA in its examination of evidence. Australia submits that the "Panel’s
decision to rely heavily on one piece of evidence in its Report, and not to refer to all relevant evidence
in its analysis, is a violation of Article 11."
 176 Moreover, Australia asserts, the Panel failed to meet
the criteria for an objective assessment described in previous Appellate Body Reports because of its
failure to provide "adequate reasoning" to support its findings.
 177
2. Brazil
106. Brazil agrees with the interpretation given by th e Panel to Article 5.7 and its conclusion that
the measure at issue did not satisfy the first requirement of Article 5.7, namely that this be a case
"where relevant scientific evidence is insufficient".
3. European Communities
107. The European Communities agrees with the United States that the Panel should have
refrained from making findings with respect to "immature, possibly infected apples" 178, on which the
United States had not made any claim. The European Communities asserts, however, that the Panel's
error should not affect merely the scope of the Panel's findings, but rather the Panel's findings on the
merits of the case. The European Communities contends that, in the absence of a prima facie case
made out by the United States, which required the production of evidence related to all apples, the
Panel should have reached the conclusion that the United States had failed to prove the
incompatibility of the measure at issue with the SPS Agreement.
108. The European Communities argues that the Panel should have begun its analysis by focusing
on the risk sought to be addressed by the measure at issue. Instead, in the European Communities'
view, the Panel erroneously concluded that it was relevant to differentiate between the risks related to
mature and apparently healthy apple fruit, and those related to other apples. By drawing this
distinction and analyzing separately the case of apples other than mature, symptomless apples, the
European Communities submits, the Panel "made a case for the complainant".
 179 According to the
European Communities, the United States had argued that mature, symptomless apple fruit represents
no risk of fire blight transmission and hence presented a prima facie case only for this particular type

176Australia's third participant's submission, para. 98. (footnotes omitted)
177Ibid., para. 98.
178European Communities' third participant's submission, para. 4.
179Ibid., para. 10.

of apple, not for any other. The European Co mmunities emphasizes that if the premise assumed in
any analysis of a phytosanitary measure is that only "hazard-free goods" are exported, then no
domestic measure will ever be found to be consistent with the SPS Agreement.
 180 The European
Communities argues that if a complainant desires to base its claim on the fact that it exports solely
"hazard-free goods", it should bear the burden of presenting "convincing evidence showing that there
is no possibility of fraud or negligence or accident", particularly when there are large volumes of
exports of that commodity.
 181
109. Therefore, the European Communities submits that the United States should have established
a prima facie case showing that Japan's measure was not necessary or was disproportionate,
including with respect to the importation of infected fruit. Alternatively, the European Communities
contends, the United States should have provided evidence establishing that only non-infected fruit
would be exported. Because the United States failed to make any claim or submit any evidence in this
respect, and as the Panel found on the basis of the experts' advice that there may be errors of handling
or illegal actions, the European Communities agrees with Japan that the Panel should have concluded
that the United States failed to make a prima facie case on the inconsistency of the measure at issue
with the SPS Agreement.
110. The European Communities further disagrees wi th the Panel's allocation of the burden of
proof under Article 2.2. In the European Communities' view, once the Panel found that the scientific
evidence was not sufficient to justify the measure as applied to "mature, symptomless apples"
 182, it
allocated improperly to Japan the burden of proof as regards the risk of completion of the pathway in
immature, infected apple fruit, for which the United States had submitted no evidence at all. Because
the United States had not made a prima facie case with respect to apples other than mature,
symptomless apples, according to the European Communities, the Panel erred in prematurely shifting
the burden of proof to Japan.
111. With respect to the Panel's analysis under Article 5.7 of the SPS Agreement, the European
Communities argues that the Panel erred in treating Article 5.7 as an "affirmative defence to a
violation of Article 2.2" and in its interpretation of the term "insufficient".
 183 Citing the Appellate
Body Report in EC – Hormones , the European Communities argues that Article 5.7 is not, by
its nature, an exception, despite the phrase "except as provided in Article 5.7 " at the end of

180European Communities' third participant's submission, para. 11.
181Ibid.
182Ibid., para. 16.
183Ibid., paras. 14 and 21.

Article 2.2. 184 The European Communities submits that Article 5.7 contains its own set of obligations
and that it creates an "autonomous right" to take provisional measures. 185 The European
Communities claims that the autonomous nature of this right is confirmed in Japan – Agricultural
Products II , wherein the Appellate Body explained how a measure may be inconsistent with
Article 5.7 in and of itself. Accordingly, in the European Communities' view, it is for the
complaining party to demonstrate an inconsistency with Article 5.7. Therefore, the European
Communities contends that the Panel erred with respect to the allocation of the burden of proof under
Article 5.7.
112. As to the Panel's interpretation of Article 5.7, the European Communities argues that the
phrase "[i]n cases where relevant scientific evidence is insufficient" refers to precise occurrences
rather than general phenomena. As a result, the European Communities submits that the application
of provisional measures under Article 5.7 is permissible in situations where there is insufficient
scientific evidence on a "specific issue" that is "key" to defining the nature or extent of a risk, despite
the existence of "general information on a given subject".
 186 Moreover, the European Communities
contends, the term "insufficient evidence" can cover evidence that is "incomplete" or "unconvincing",
even if there is a large volume of such evidence.
 187 In this regard, the European Communities argues,
the sufficiency of the evidence may change over time, for example, as new research casts doubt on the
correctness of previously sufficient studies. Thus, according to the European Communities, the Panel
erred by interpreting "insufficient evidence" narrowly so as to examine the sufficiency of existing
evidence solely on a quantitative rather than a qualitative basis.
4. New Zealand
113. New Zealand agrees with the United States that the Panel should not have made findings with
respect to immature apples. In New Zealand's view, the United States' claims were related to the
WTO-consistency of Japan's measure as that measure applied to mature apples, not to other
products, such as immature apples. New Zealand asserts that the Panel acted contrary to "established
WTO jurisprudence regarding the burden of proof" because it made findings as to issues on which a
prima facie case was not established by the complaining party.
 188 Accordingly, New Zealand

184See European Communities' third participant's submission, para. 22, citing Appellate Body Report,
para. 104.
185European Communities' third participant's submission, para. 24.
186Ibid., para. 32.
187Ibid., para. 33.
188New Zealand's third participant's submission, para. 3.35.

submits that the Appellate Body should reverse the Panel's legal findings in respect of immature apple
fruit and "declare the Panel's statements derived from those findings to be without legal effect." 189
114. As to the interpretation of Article 2.2, New Zealand contests Japan's claim that Article 2.2
should be understood to "allow a certain degree of discretion ... on the part of an importing member to
determine the value of the evidence to it and to introduce a particular measure thereon." 190 N e w
Zealand argues that Article 2.2 provides no basis for such a "certain degree of discretion". Instead,
according to New Zealand, Article 2.2 requires a rational or objective relationship between the
phytosanitary measure and the scientific evidence, and an importing Member's method of evaluating
scientific evidence must necessarily be consistent with this requirement of rationality. In New
Zealand's view, the "logical conclusion" of Japa n's argument is that importing Members would be
permitted to accord little weight to relevant scientific evidence and thereby impose phytosanitary
measures that have no rational relationship with such evidence.
 191
115. With respect to the United States' prima facie case under Article 2.2 for mature apples, New
Zealand argues that Japan has failed to establish an error in the Panel's analysis. First, New Zealand
rejects as a basis for error Japan's claim that the Panel evaluated improperly the scientific evidence on
the basis of the experts' statements rather than of the views of the importing Member in this case. Not
only did the Panel discount the value of the evidence cited by Japan, New Zealand claims, but Japan's
reasoning would preclude panels from ever considering scientific evidence that contradicts the views
of the importing Member. Such subjectivity accorded an importing Member, in the view of New
Zealand, is inconsistent with the objective relationship that must exist between the phytosanitary
measure and the scientific evidence under Article 2.2.
116. Secondly, New Zealand disagrees with Japan's claim that the United States failed to establish
the absence of scientific evidence on material aspects of the risk sought to be addressed by Japan.
New Zealand claims that Japan "mischaracterises" the criteria set out by the Panel for a prima facie
case to be made by the United States.
 192 New Zealand states that the Panel, after rejecting Japan's
claim that the United States was required to prove positively the insufficiency of the scientific
evidence, relied on the Appellate Body Report in Japan – Agricultural Products II to find that a
prima facie case would be made where the United States had raised a presumption that sufficient
scientific evidence did not exist. Once the Panel found that the presumption had been raised,

189New Zealand's third participant's submission, para. 3.36.
191New Zealand's third participant's submission, para. 3.10.
192Ibid., para. 3.16.

New Zealand argues, the Panel weighed the evidence before it and found that Japan had not rebutted
the presumption. Therefore, in New Zealand's view, the Panel properly found that a prima facie case
had been made by the United States on its claim in respect of mature apples under Article 2.2.
117. New Zealand agrees with the Panel's analysis relating to Article 5.7 of the SPS Agreement,
because the Panel found that the "wealth of scientific evidence"—either "in general" or in relation to
specific aspects of the risk—demonstrates that the issue of the risk of transmission of fire blight
through mature apple fruit is not one upon which there is insufficient relevant scientific evidence as
required under Article 5.7.
 193 In New Zealand's view, therefore, Japan is incorrect to suggest that the
Panel failed to consider the sufficiency of scientific evidence as to the particular elements of the risk
at issue. Moreover, concerning Japan's argument that the elimination of the measure would create
"new uncertainty", New Zealand submits that this dispute is concerned with the measure at issue, not
with measures that may be in place in hypothetica l circumstances at some point in the future. As
such, the possible uncertainty created by the development of a new phytosanitary measure cannot be
relied upon to cure the WTO-inconsistency of the existing measure.
118. New Zealand further submits that the Panel's findings in relation to Article 5.1 of the
SPS Agreement are correct and should be upheld. New Zealand agrees with the Panel that Japan's
risk assessment was not sufficiently specific to the matter at issue. In New Zealand's view, the
evaluation of the likelihood of entry, establishment and spread of the disease specifically from mature
apple fruit is more than an issue of procedure or methodology, as Japan alleges, but a "substantive
requirement" of Article 5.1.
 194 This requirement, according to New Zealand, does not prevent an
importing Member's selection of methodology for conducting its risk assessment, nor does it prevent
importing Members from considering several possible hosts simultaneously, provided that a
conclusion as to the risk is drawn with respect to the particular commodity at issue.
119. New Zealand also contests Japan's claim that it has conducted an appropriate risk assessment
"in the course of this proceeding".
 195 New Zealand finds it "astonishing" that Japan "essentially" asks
the Appellate Body to find that, on the basis of evidence and arguments advanced by Japan in this
dispute, Japan has conducted an "informal" risk assessment that satisfies the standard required by the
SPS Agreement.
 196 In New Zealand's view, the requirement under Article 5.1 of basing measures on a

193New Zealand's third participant's submission, para. 3.19.
194Ibid., para. 3.30.
196New Zealand's third participant's submission, para. 3.27.

risk assessment would be rendered "devoid of any meaning" because, according to Japan's rationale,
an importing Member could avoid conducting a risk assessment until challenged in a dispute
settlement proceeding, at which point a " post facto risk assessment" would be found to satisfy
Article 5.1.
 197 Accordingly, New Zealand requests the Appellate Body to uphold the Panel's findings
under Article 5.1 of the SPS Agreement.
IV. Preliminary Issue: Sufficiency of the Notice of Appeal
120. We begin our analysis of this appeal with a preliminary issue related to the sufficiency of the
Notice of Appeal filed by Japan. 198 In its appellee's submission, the United States argues that Japan's
claim under Article 11 of the DSU, as it relates to the Panel's findings under Article 5.1 of the
SPS Agreement, is not properly before us and requests that we dismiss this aspect of the appeal.
 199
According to the United States, Japan did not properly raise this Article 11 claim in its Notice of
Appeal, as required by Rule 20(2)(d) of the Working Procedures and in the light of the Appellate
Body's decision in US – Countervailing Measures on Certain EC Products . As a result, the United
States asserts, it did not receive the requisite notice of this issue on appeal.
121. Rule 20(2) of the Working Procedures sets forth the "information" that must be contained in
a Notice of Appeal:
Commencement of Appeal
…
A Notice of Appeal shall include the following information:
(a) the title of the panel report under appeal;
(b) the name of the party to the dispute filing the Notice
of Appeal;
(c) the service address, telephone and facsimile numbers
of the party to the dispute; and
(d) a brief statement of the nature of the appeal,
including the allegations of errors in the issues of law
covered in the panel report and legal interpretations
developed by the panel.

197New Zealand's third participant's submission, para. 3.28.
198WT/DS245/5, supra, footnote 8, attached as Annex 1 to this Report.
199United States' appellee's submission, para. 53 and footnote 88 thereto.

The Appellate Body recognized, in US – Countervailing Measures on Certain EC Products:
… the important balance that must be maintained between the right
of Members to exercise the right of appeal meaningfully and
effectively, and the right of appellees to receive notice through the
Notice of Appeal of the findings under appeal, so that they may
exercise their right of defence effectively.
 200
The Appellate Body observed in that case that the requirements identified in Rule 20(2) for inclusion
in a Notice of Appeal "serve to ensure that the appellee also receives notice, albeit brief, of the 'nature
of the appeal' and the 'allegations of errors' by the panel." 201 Thus, an evaluation of the sufficiency of
a Notice of Appeal must examine whether the appellee received notice therein of the issues to be
argued on appeal.
122. In US – Countervailing Measures on Certain EC Products , the Appellate Body considered
an appellee's challenge to the sufficiency of a Notice of Appeal on the basis that, inter alia , the
Notice of Appeal had not provided the appellee with the requisite notice of the appellant's claim under
Article 11 of the DSU. The appellant had alleged in its written and oral submissions that the Panel
had failed to make an "objective assessment of the matter before it", as required by Article 11.
 202
When considering whether the appellee had been given notice of the Article 11 challenge, the
Appellate Body reviewed the Notice of Appeal and observed as follows:
We do not find any explicit reference to Article 11 of the DSU, or to
the language of Article 11 in the Notice of Appeal, or in the
attachment to the letter of 13 September 2002. Nor can we discern in
either of them any suggestion that the United States was alleging that
the Panel failed to make an objective assessment of the matter before
it, or an objective assessment of the facts of the case. 203
123. The Appellate Body rejected in that case the appellant's submission that its Article 11
challenge was merely an argument supporting the broader claim raised on appeal with respect to
other WTO provisions and that, therefore, no further clarification was required in the Notice of
Appeal.
204 In doing so, the Appellate Body acknowledged that claims on appeal under Article 11 of
the DSU are unique when compared with other claims of legal error committed by a panel:

200Appellate Body Report, para. 62.
201Appellate Body Report, US – Countervailing Measures on Certain EC Products, para. 62.
202Ibid., paras. 27 and 73.
203Ibid., para. 72.
204Ibid., paras. 73-74.

A claim of error by a panel under Article 11 of the DSU is possible
only in the context of an appeal. By definition, this claim will not
be found in requests for establishment of a panel, and panels
therefore will not have referred to it in panel reports. Accordingly, if
appellants intend to argue that issue on appeal, they must refer to it in
Notices of Appeal in a way that will enable appellees to discern it
and know the case they have to meet.
205 (original italics)
Therefore, the Appellate Body concluded that the appellee could not have had notice that the
appellant intended to challenge the consistency of the panel's evaluation with its obligations under
Article 11, and that the appellant sought to have the Appellate Body rule on that matter.
 206
124. We likewise examine in this case the Notice of Appeal filed by Japan to evaluate whether the
United States was on notice that Japan would make claims on appeal unde r Article 11 of the DSU.
Japan claims to have raised on appeal two separate challenges under Article 11 of the DSU: one with
respect to the Panel's evaluation of the United States' claim under Article 2.2 of the SPS Agreement,
and one with respect to the Panel's evaluation of the United States' claim under Article 5.1 of that
agreement.
 207 Japan's Notice of Appeal identifies, in relevant part, the following alleged legal errors
as issues on appeal:
1. The Panel erred in law in finding that Japan acted
inconsistently with its obligations under Article 2.2 of the SPS
Agreement. This finding reflects the Panel's erroneous interpretation
of the rule of burden of proof, and the Panel's failure to make an
objective assessment of the matter before it under Article 11 of the
DSU.
…
3. The Panel erred in law in finding that Japan's phytosanitary
measure was not based on a risk assessment within the meaning of
Article 5.1 of the SPS Agreement. This finding is based on an
erroneous interpretation of the requirements of a risk assessment
under Article 5.1.
125. Japan's intention to contest the Panel's analysis under Article 2.2 as inconsistent with the
requirements of Article 11 of the DSU is set out clearly and unambiguously. As to the Panel's
analysis under Article 5.1, however, we note the conspicuous absence of any reference to Article 11
of the DSU, or to the standard of "objective assessment" established in that provision. Indeed, we
find in the Notice of Appeal no reference to Article 11 or to the "objective assessment" standard set
out therein other than in the context of Article 2.2, quoted above.

205Appellate Body Report, US – Countervailing Measures on Certain EC Products, para. 74.
206Ibid., para. 75.
207Japan's appellant's submission, paras. 47-70 (Article 2.2) and paras. 130-132 (Article 5.1).

126. By referring to the Panel's alleged failure to comply with Article 11 of the DSU only in the
context of Article 2.2, Japan did not enable the United States to "know the case [it had] to meet" 208 as
to the Article 11 claim related to Article 5.1 of the SPS Agreement. The Appellate Body has
consistently emphasized that due process requires that a Notice of Appeal place an appellee on notice
of the issues raised on appeal. 209 It is this concern with due process, reflected in Rule 20 of the
Working Procedures, that underlay the Appellate Body's ruling on the sufficiency of the Notice of
Appeal in US – Countervailing Measures on Certain EC Products.
127. Japan acknowledged during the oral hearing that it did not give the United States notice of its
Article 11 claim specifically with respect to the Panel's analysis under Article 5.1 of the
SPS Agreement.
 210 Japan claimed, however, that "since we raised the claim under Article 5.1 of the
SPS Agreement, this naturally involved some factual issues and ... we can assume that the United
States was notified" as to the related Article 11 claim. 211 We disagree. As noted above 212, the
Appellate Body determined in US – Countervailing Measures on Certain EC Products that
Article 11 claims are distinct from those raised under substantive provisions of other covered
agreements. It follows from this distinction that notice of an Article 11 challenge cannot be
"assumed" merely because there is a challenge to a panel's analysis of a substantive provision of a
WTO agreement. Rather, an Article 11 claim constitutes a "separate 'allegation of error'
 " 213 that must
be included in a Notice of Appeal. We therefore reject Japan's assertion that an Article 11 challenge
is only a "legal argument" underlying the issues raised on appeal.
 214

208Appellate Body Report, US – Countervailing Measures on Certain EC Products, para. 74.
209For example, Appellate Body Report, US – Offset Act (Byrd Amendment ), para. 195; Appellate Body
Report, US – Countervailing Measures on Certain EC Products , para. 62; Appellate Body Report,
EC – Bananas III, para. 152; and Appellate Body Report, US – Shrimp, para. 97.
210Japan's response to questioning at the oral hearing.
211Ibid.
212Supra, para. 123, quoting Appellate Body Report, US – Countervailing Measures on Certain EC
Products, para. 74.
213Appellate Body Report, Chile – Price Band System, para. 182, quoting Rule 20(2)(d) of the Working
Procedures. In this respect, we note the distinction between claims and arguments in the context of
determining whether claims have been properly identified in the request for the establishment of a panel
(Appellate Body Report, EC – Bananas III, paras. 141-143; Appellate Body Report, EC – Hormones,
para. 156), and we affirm the Appellate Body's observation in Chile – Price Band System that "this distinction
between claims and legal arguments under Article 6.2 of the DSU is also relevant to the distinction between
'allegations of error' and legal arguments as contemplated by Rule 20 of the Working Procedures." (Appellate
Body Report, para. 182)
214Japan's response to questioning at the oral hearing. As discussed, supra, at paragraph 123, the
Appellate Body rejected a similar contention by the appellant in US – Countervailing Measures on Certain EC
Products. (Appellate Body Report, paras. 73-74) The Appellate Body made a similar observation in US – Steel

128. Under these circumstances, we agree with the United States that it could not have been on
notice that Japan intended to raise an Article 11 challenge to the Panel's evaluation of the United
States' Article 5.1 claim. Accordingly, we find that the issue of the Panel's compliance with
Article 11 of the DSU, with respect to its analysis of the United States' claim under Article 5.1 of the
SPS Agreement , is not properly before us in this appeal. Consequently, we do not rule on this
issue.
 215
V. Issues Raised in This Appeal
129. Japan raises the following four claims, namely, that the Panel:
(i) erred in finding that Japan's phytosanitary measure is "maintained without sufficient
scientific evidence" and is therefore inconsistent with Japan's obligations under
Article 2.2 of the SPS Agreement;
(ii) erred in finding that Japan's phytosanitary measure is not a provisional measure under
Article 5.7 because the measure was not imposed in respect of a situation where
"relevant scientific evidence is insufficient";
(iii) erred in finding that Japan's phytosanitary measure was not based on a risk
assessment, as defined in Annex A to the SPS Agreement, and as required by
Article 5.1 thereof; and
(iv) failed to comply with its duty under Article 11 of the DSU because it did not conduct
an "objective assessment of the facts of the case".
130. In addition to Japan's claims on appeal, the United States cross-appeals the Panel Report,
claiming that the Panel did not have the "authority" to make findings and draw conclusions with
respect to immature apples because the United States had limited its claims before the Panel to
mature apples.

215Japan's allegations under Article 11 of the DSU, as they relate to the Panel's analysis of Article 2.2 of
the SPS Agreement, are addressed infra, at paragraphs 217-242.

VI. Claim on the "Authority" of the Panel
131. It is convenient to begin our analysis of the issues raised on appeal with the question of the
"authority" of the Panel raised by the United States. 216 In the course of its analysis of whether Japan's
measure is "maintained without sufficient scientific evidence" within the meaning of Article 2.2 of the
SPS Agreement, the Panel sought to evaluate the risk that apple fruit exported by the United States
would serve as a pathway for the entry, establishment and spread of fire blight in Japan. Although the
United States claims that it exports only mature, symptomless apples to Japan, the Panel did not limit
its examination to the risk related to mature, sy mptomless apples; it also considered the risk
associated with apples other than mature, symptomless apple fruit. It did so because Japan had argued
that apples other than mature, symptomless apples could be imported as a result of human or technical
error, or illegal actions, and the Panel thought that such risks could be "legitimately considered" by
Japan.
 217 Thus, the Panel concluded that it was entitled to address Japan's assertion that a risk of
introduction of fire blight in Japan "could result from a malfunction in the sorting of apples or [from]
illegal action in the country of exportation",
 218 and rejected the proposition that it should limit its
findings to mature, symptomless apples simply because "the United States apparently limits its
claims, arguments and evidence to [such apples]."
 219
132. The United States contends on appeal that the Panel had no authority to make findings and
draw conclusions with respect to "immature apples" because the United States advanced no claim
regarding such apples.
 220 In support of its assertion that a panel cannot rule on a claim that has not
been put forward by the complainant, the United States relies on the Appellate Body Report in Japan
– Agricultural Products II , where the Appellate Body stated that a panel cannot use its investigative
authority "to rule in favour of a complaining party which has not established a prima facie case [of
inconsistency] based on specific legal claims asserted by it ." 221 The United States explains that it

216We note that the United States argues that a panel cannot "offer analysis and findings" on a claim
that was not pursued by the complainant, even though the claim was initially raised in a panel request. (United
States' other appellant's submission, para. 10) In other words, the United States contends that a panel does not
have the "authority" to make findings and draw conclusions on such a claim. ( Ibid.) In response to questioning
at the oral hearing, the United States indicated that it had not specifically made a "terms of reference claim".
We understand from the submissions of the United States that it does not challenge on appeal the "jurisdiction"
of the Panel, as defined by the terms of reference, to make findings and draw conclusions on apples exported
from the United States to Japan; rather, the United States contends that the Panel did not have the "authority" to
make findings and draw conclusions with respect to a claim that the United States did not pursue, that is, a claim
relating to apples other than mature, symptomless ones.
217Panel Report, paras. 8.85, 8.121, and 8.174.
218Ibid., para. 7.31.
219Ibid.
220United States' other appellant's submission, paras. 3 and 15.
221Ibid., para. 11, quoting Appellate Body Report, para. 129. (emphasis added by the United States)

exports only mature, symptomless apples to Japan and that it has both laws and extensive measures in
place to limit apple exports to mature, symptomless apple fruit. 222 The United States observes that
Japan offered no evidence, nor did the record otherwise contain any evidence, of the failure or
likelihood of failure of United States procedures to ensure compliance with United States control
requirements prohibiting the exportation of apples other than mature, symptomless apple fruit. The
United States further notes that the measure under challenge in this appeal includes no such control
requirements.
 223
133. In evaluating the "authority" of the Panel to make findings and draw conclusions with respect
to all apple fruit, including immature apples, we turn first to the Panel's terms of reference. A panel's
terms of reference perform a fundamental function as they "establish the jurisdiction of the panel" 224
and "define the scope of the dispute". 225 In the present case, the terms of reference of the Panel
include the following :
In accordance with Article 7.1 of the DSU, the terms of reference of
the Panel are the following:
"To examine, in the light of the relevant provisions of the covered
agreements cited by the United States in document WT/DS245/2, the
matter referred to the DSB by the United States in that document and
to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those
agreements."
 226
Document WT/DS245/2, referred to therein, is the request of the United States for the establishment
of a panel. That request refers to "measures restricting the importation of US apples in connection
with fire blight or the fire blight disease-causing organism, Erwinia amylovora". The request then
lists the restrictions with which the United States is concerned. We note, first, that those restrictions
are applicable to apple fruit produced in the United States for exportation to Japan; their scope is not
restricted to mature, symptomless apples. Secondly, the United States' request refers to "US apples",
an expression that in our opinion is broader than mature, symptomless apples. For these two reasons,
we are of the view that the terms of reference did not limit the Panel to making findings and drawing
conclusions with respect to mature, symptomless apples.

222United States' other appellant's submission, para. 7.
223Ibid., para. 12.
224Appellate Body Report, Brazil – Desiccated Coconut, p. 22, DSR 1997:I, 167, at 186.
225Appellate Body Report, US – Carbon Steel, para. 126.
226WT/DS245/3, supra, footnote 3, para. 2.

134. We examine next the United States' argument that the Panel had no authority to make findings
and draw conclusions with respect to immature apples, because the United States had made no claim
regarding immature apples. We are not persuaded by this argument. Before the Panel, the
United States claimed that Japan maintains "measures restricting the importation of US apples in
connection with fire blight or the fire blight disease-causing organism, Erwinia amylovora", and that
"[t]hese measures appear to be inconsistent with the commitments and obligations of Japan under
Article[] 2.2 … of the Agreement on the Application of Sanitary and Phytosanitary Measures
(SPS Agreement)."
 227 In seeking to establish its claim, the United States put forward arguments and
allegations of fact only with respect to mature, symptomless apples. For its part, Japan argued, among
other things, that despite controls established by exporting countries, apples other than mature,
symptomless apples could be exported to Japan as a result of human or technical errors or illegal
actions, and that such apples could serve as a pathway for fire blight.
 228 In other words, even though
a country seeks to export only mature, symptomless apples, there is a risk that apples other than
mature, symptomless apples will be exported to Japan, be infected, and transmit fire blight to
Japanese host plants.
135. The Panel determined that it was "legitimate to consider" 229 the arguments and allegations of
fact regarding apples other than mature, symptomless apples put forward by Japan in response to the
claim pursued by the United States under Article 2.2. We agree with the Panel. A panel has the
authority to make findings and draw conclusions on arguments and allegations of fact that are made
by the respondent and relevant to a claim pursued by the complainant. The Panel's findings and
conclusions with respect to apples other than matu re, symptomless apples were in response to the
arguments and allegations of fact that were "legitimately" raised by Japan. Therefore, when the Panel
made findings and drew conclusions on apples other than mature, symptomless apple fruit, it duly
acted within the limits of its authority.
 230

227WT/DS245/2, supra, footnote 2.
228Panel Report, para. 8.28.
229Ibid., para. 8.121.
230In support of the argument that the Panel had no authority to make findings and draw conclusions
with respect to immature apples, the United States relies on the finding of the Appellate Body in Japan –
Agricultural Products II that a panel should not use its investigative authority "to rule in favour of a
complaining party which has not established a prima facie case of inconsistency based on specific legal claims
asserted by it." (Appellate Body Report, para. 129) The United States' reliance on Japan – Agricultural
Products II is misplaced, for the facts and circumstances that led to the Appellate Body's finding are not the
same as those present here. In Japan – Agricultural Products II , the Appellate Body found fault with the
panel's reliance on expert evidence to rule in favour of the complainant in the absence of a case established by
the complainant itself. The circumstances in the present case differ from those present in Japan – Agricultural
Products II. Indeed, in the present case, the Panel made findings and drew conclusions on apples other than
mature, symptomless apples in response to Japan's case.

136. In making this finding, we do not suggest that a panel should rule on claims that are not
before it; nor do we disagree with the United States that a party may abandon claims in the course of
dispute settlement proceedings. In other words, we see nothing wrong with the United States
restricting the scope of its claim subsequent to the issuance of the terms of reference or at any other
stage of the proceedings. Undoubtedly, a party has the prerogative to pursue whatever legal strategy
it wishes in conducting its case. However, that strategy must not curtail the right of other parties to
pursue strategies of their own; nor can the strategic choices of the parties impose a straightjacket on a
panel. A respondent is entitled to answer the complainant's case and is not confined to addressing the
specific facts and arguments put forward by the complainant, provided that the response is relevant
to the issues in dispute. Also, a panel is entitled to consider such facts and arguments, provided that it
does not exceed its terms of reference. The Panel in this case considered relevant Japan's arguments
relating to apples other than mature, symptomless apples, and nothing in the terms of reference
prevented the Panel from addressing them. In doing so, the Panel did not rule on a claim that was not
before it; rather, it ruled on the very claim it was mandated to address.
137. The United States points to the absence of evidence on the failure or likelihood of failure of
United States' procedures to ensure compliance with United States control requirements prohibiting
the exportation of apples other than mature, symptomless apple fruit.
 231 According to the United
States, the Panel "undertook an analysis of U.S. procedures … based on a record devoid of evidence
on those procedures."
 232 The United States also appears to suggest that, in the absence of evidence on
United States' export control procedures, the Panel was not entitled to conclude that it was legitimate
to consider the risks inherent in errors in sorting apples, or of illegal actions, which might lead to the
importation into Japan of contaminated apples.
 233
138. We are not persuaded by this argument. We point out first that, contrary to what the United
States contends, the Panel did not "undert[ake] an analysis" of the United States' export control
procedures. The subject matter of the Panel's analysis was the risk of transmission of fire blight
through apple fruit. The Panel carried out this analysis in order to evaluate whether Japan's measure
is "maintained without sufficient scientific evidence" within the meaning of Article 2.2 of the
SPS Agreement. Japan had argued, in connection with the question of risk of transmission of fire
blight through apple fruit, that it must protect itself against failures in control systems of exporting
countries that could lead to the introduction of contaminated apples.
 234 In making this argument,

231United States' other appellant's submission, para. 12.
232Ibid.
234Panel Report, para. 8.85(d).

Japan referred to export control systems in general, not the specific export control system of the
United States. To substantiate the argument, Japan referred to opinions of the experts and to a case of
export control failure that occurred in November 2002, involving codling moth larvae found in apples
shipped from the state of Washington to the Separate Customs Territory of Taiwan, Penghu, Kinmen,
and Matsu.
 235 After reviewing Japan's argument, the Panel found that errors of handling or illegal
actions were risks that could, in principle, legitimately be considered by Japan 236 and, consequently,
the Panel included these risks in the scope of the analysis. 237
139. Secondly, we note that, in justifying the finding that errors of handling or illegal actions may
legitimately be considered, the Panel also referred to opinions of the experts. 238 Therefore, the United
States' allegation that the Panel made its finding in the absence of evidence is incorrect.
140. Furthermore, contrary to what the United States suggests, we consider that, in any event, the
Panel did not need specific evidence of failure or likelihood of failure of United States export control
procedures to conclude that errors of handling or illegal actions are risks that may legitimately be
considered. The Panel's determination does not relate to the specific export control procedures of the
United States and does not stem from an assessment by the Panel of such specific procedures.
Instead, the Panel's conclusion applies in general to errors of handling and illegal actions; it is based
on views on the nature of these risks and, in particular, on the opinion of one of the experts that, in
plant quarantine, inspections are rarely 100 percent efficient.
 239
141. Finally, we note that the Panel did not examine the risk of errors of handling or illegal actions
in general for the purpose of assessing the reliability of the United States' export control procedures
or of determining whether apples other than mature, symptomless apple fruit were actually exported
from the United States to Japan. The examination by the Panel of the risk of errors of handling or
illegal actions in general had a more limited objective—that of appreciating the relevance of Japan's
allegations on apples other than mature, symptomless apple fruit.

235Panel Report, para. 4.191.
236Ibid., para. 8.161.
237Ibid., para. 8.121.
238Ibid., paras. 8.160-8.161, citing ibid., paras. 6.15 and 6.71, and paras. 263, 266, 303, 327, 398, and
431 of Annex 3 thereto.
239Ibid., para. 8.160. The Panel refers to a comment made by Dr. Ian Smith, one of the experts retained
by the Panel. We note that, in response to questioning at the oral hearing, the United States acknowledged that
the conclusion in paragraph 8.161 of the Panel Report that errors of handling or illegal actions are risks that may
be legitimately considered is a "general statement" whic h refers to the efficiency of export control procedures in
general, not to the specific export control procedures of the United States.

142. In the light of these considerations, we find that, contrary to the United States' claim, the
Panel had the "authority" to make findings and draw conclusions with respect to all apple fruit from
the United States, including immature apples.
VII. Article 2.2 of the SPS Agreement
143. We proceed next to Japan's claim that the Panel erred in finding that the measure is
maintained "without sufficient scientific eviden ce" within the meaning of Article 2.2 of the
SPS Agreement.
144. As explained in the previous section of this Report, the Panel decided that it would not limit
its analysis to the risk of transmission of fire blight inherent in mature, symptomless apple fruit.
 240
Thus, the Panel also considered the risk associated with other apples (that is, immature apples, or
mature but damaged apples)
 241 that might enter Japanese territory as a result of human or technical
errors, or of illegal actions.
145. In the course of its analysis as to whether Japan's measure is maintained without sufficient
scientific evidence within the meaning of Article 2.2 of the SPS Agreement, the Panel, on the basis
of the information before it, made the following findings of fact:
• Infection 242 of mature, symptomless apples has not been established. Mature apples are
unlikely to be infected by fire blight if they do not show any symptoms 243;
• The possible presence of endophytic 244 bacteria in mature, symptomless apples is not
generally established. Scientific evidence does not support the conclusion that mature,
symptomless apples could harbour endophytic populations of bacteria
 245;

240See supra, para. 131.
241Panel Report, paras. 8.122 and 8.174.
242For the Panel's definition of the term "infection", see supra, footnote 17.
243Panel Report, paras. 8.139 and 8.171.
244The Panel defined "endophytic" as follows: "With respect to E. amylovora, the term endophytic is
used when the bacterium occurs inside a plant or apple fruit in a non-pathogenic relationship." ( Ibid., para. 2.10
(original boldface))
245Ibid., paras. 8.128 and 8.171.

• The presence of epiphytic 246 bacteria in mature, symptomless apples is considered to be
very rare 247;
• It is not contested that immature apple fruit can be infected or infested 248 by Erwinia
amylovora 249;
• Infected apples are capable of harbouring populations of bacteria that could survive
through the various stages of commercial handling, storage, and transportation 250;
• Scientific evidence does not support the conclusion that infested or infected cargo crates
could operate as a vector for fire blight transmission; rather, the evidence shows that
Erwinia amylovora is not likely to survive on crates
 251; and
• Even if infected or infested apples were exported to Japan, and populations of bacteria
survived through the various stages of commercial handling, storage, and transportation,
the introduction of fire blight would require the transmission of fire blight from imported
apples to a host plant through an additional sequence of events that is deemed unlikely,
and that has not been experimentally established to date.
 252
146. On the basis of these findings of fact, the Panel concluded that scientific evidence suggests a
negligible risk of possible transmission of fire blight through apple fruit 253, and that scientific
evidence does not support the view that apples are likely to serve as a pathway for the entry,
establishment or spread of fire blight within Japan. 254
147. For the Panel, a measure is maintained "without sufficient scientific evidence" within the
meaning of Article 2.2 of the SPS Agreement if there is no "rational or objective relationship"
between the measure and the relevant scientific evidence. 255 Given the negligible risk identified on

246The Panel defined "epiphytic" as follows: "With respect to E. amylovora, the term epiphytic is used
when the bacterium occurs on the outer surface of a plant or fruit in a non-pathogenic relationship." (Panel
Report, para. 2.10 (original boldface))
247Ibid., paras. 8.142 and 8.171.
248For the Panel's definition of the terms "infection" and "infestation", see supra, footnote 17.
249Panel Report, para. 8.171.
250Ibid., para. 8.157.
251Ibid., para. 8.143.
252Ibid., paras. 8.168 and 8.171.
253Ibid., para. 8.169.
254Ibid., para. 8.176.
255Ibid., paras. 8.101-8.103 and 8.180, relying on Appellate Body Report, Japan – Agricultural
Products II, paras. 73-74, 82, and 84.

the basis of the scientific evidence and the nature of the elements composing the measure, the Panel
concluded that Japan's measure is "clearly disproportionate" to that risk. 256 The Panel reasoned that
such disproportion implies that a rational or objective relationship does not exist between the measure
and the relevant scientific evidence and, therefore, the Panel concluded that Japan's measure is
maintained "without sufficient scientific evid ence" within the meaning of Article 2.2 of the
SPS Agreement. 257
148. Japan challenges the Panel's conclusion, arguing that a prima facie case that infected apples
would not act as a pathway for fire blight was not made by the United States. Japan contends that, in
the absence of such a prima facie case, it was not open to the Panel to find a violation of Article 2.2.
In addition, Japan argues that the Panel erroneously found that the United States had made a
prima facie case in respect of mature, symptomless apples. According to Japan, this error resulted
from the Panel's improper approach to Japan's risk evaluation, based on a misinterpretation of
Article 2.2 of the SPS Agreement.
 258
149. With respect to infected apples, Japan submits that it was for the United States to establish a
prima facie case that there was no risk that infected apples could serve as a vector for the introduction
of fire blight within Japan. The United States did not do so, because it presented arguments and
evidence relating only to mature, symptomless apples
 259, acknowledging explicitly during the Interim
Review that "there is no factual claim or evidence submitted by the United States" relating to the risk
associated with infected apple fruit.
 260 Absent a prima facie case by the United States that there was
insufficient scientific evidence on the risk posed by infected apples, the Panel, according to Japan,
should have ruled in favour of Japan and found that infected apples could act as a pathway for fire
blight.
 261 In addition, Japan submits that, by finding that "Japan did not submit sufficient scientific
evidence in support of its allegation that the last step of the pathway had been completed or was likely
to be completed"
 262, the Panel shifted the burden of proof to Japan; and that such a shift constituted
an error of law as it was made prematurely, before the demonstration of a prima facie case by the
United States. 263 Finally, Japan argues that the Panel was not entitled to use its investigative authority

256Panel Report, para. 8.198.
257Ibid., para. 8.199.
259Ibid., para. 22.
260Ibid., para. 23.
261Ibid., paras. 26, quoting Panel Report, paras. 7.31 and 8.154; and para. 27.
262Panel Report, para. 8.167.

to make findings of fact on the risk relating to infected apples because the United States declined to
establish a prima facie case with respect to this issue. 264
150. Regarding mature, symptomless apples, Japan advances a distinct argument, namely, that the
Panel should have interpreted Article 2.2 in such a way that a "certain degree of discretion" 265 be
accorded to the importing Member as to the manner it chooses, weighs, and evaluates scientific
evidence. 266 Japan argues that the Panel denied such discretion, as it "evaluated the scientific
evidence in accordance with the experts' view, despite the contrary view of an importing Member". 267
Japan contends that its own approach to the risk relating to mature, symptomless apples—an approach
that reflects "the historical facts of trans-oceanic expansion of the bacteria" and the rapid growth of
international trade, and which is premised on "the fact that the pathways of … transmission of the
bacteria are still unknown in spite of several efforts to trace them"
 268—is reasonable as well as
scientific because it is derived from "perspectives of prudence and precaution". 269 Consequently, the
Panel should have accorded deference to Japan's approach and should have assessed whether the
United States had established a prima facie case in the light of it. Japan argues that the United
States did not establish a prima facie case in respect of mature, symptomless apples that reflected
Japan's approach. In particular, Japan submits that the United States failed to prove that both the
history of trans-oceanic dissemination of fire blight and, the fact that the cause of trans-oceanic
dissemination is unknown, are irrelevant.
 270
151. We will examine successively these two arguments of Japan: first, Japan's case relating to
apples other than mature, symptomless apples, and secondly, that regarding mature, symptomless
apples.
A. Apples Other Than Mature, Symptomless Apples
152. It is well settled that, in principle, it rests upon the complaining party to "establish a
prima facie c a s e o f inconsistency with a particular provision of the SPS Agreement
 ". 271 A s t h e
Appellate Body said in EC – Hormones:

264Japan's appellant's submission, paras. 18, quoting Appellate Body Report, Japan – Agricultural
266Ibid., para. 75.
267Ibid., para. 78.
268Ibid., para. 73.
271Appellate Body Report, EC – Hormones, para. 98. (emphasis added)

The initial burden lies on the complaining party, which must
establish a prima facie case of inconsistency with a particular
provision of the SPS Agreement on the part of the defending party,
or more precisely, of its SPS measure or measures complained about.
When that prima facie case is made, the burden of proof moves to
the defending party, which must in turn counter or refute the claimed
inconsistency. 272
153. In this case, the United States seeks a finding that Japan's measure is inconsistent with
Article 2.2 of the SPS Agreement. Therefore, the initial burden lies with the United States to
establish a prima facie case that the measure is inconsistent with Article 2.2. In particular, the
United States must establish a prima facie case that the measure is "maintained without sufficient
scientific evidence" within the meaning of Arti cle 2.2. Following the Appellate Body's ruling in
EC – Hormones, if this prima facie case is made, it would be for Japan to counter or refute the claim
that the measure is "maintained without sufficient scientific evidence".
154. That said, the Appellate Body's statement in EC – Hormones does not imply that the
complaining party is responsible for providing proof of all facts raised in relation to the issue of
determining whether a measure is consistent with a given provision of a covered agreement. In other
words, although the complaining party bears the burden of proving its case, the responding party must
prove the case it seeks to make in response. In US – Wool Shirts and Blouses , the Appellate Body
stated:
… we find it difficult, indeed, to see how any system of judicial
settlement could work if it incorporated the proposition that the mere
assertion of a claim might amount to proof. It is, thus, hardly
surprising that various international tribunals, including the
International Court of Justice, have generally and consistently
accepted and applied the rule that the party who asserts a fact,
whether the claimant or the respondent, is responsible for providing
proof thereof.
273 (footnote omitted, emphasis added)
155. In this case, the United States made a series of allegations of fact relating to mature,
symptomless apples as a possible pathway for fire blight, and sought to substantiate these allegations.
Japan sought to counter the case made by the United States, arguing that:

272Appellate Body Report, para. 98.
273Appellate Body Report, p. 14, DSR 1997:I, 323, at 335.

• Japan must protect itself against failures in the control systems of exporting countries
that might result in the introduction of apples other than mature, symptomless apples 274;
• it is possible that apples other than mature, symptomless apples (namely, immature
apples or mature but damaged apples) could be infected by fire blight; and
• infected apple fruit has the capacity to serve as a pathway for fire blight. 275
156. Japan was thus responsible for providing proof of the allegations of fact it advanced in
relation to apples other than mature, symptomless apples being exported to Japan as a result of errors
of handling or illegal actions. We therefore disagree with Japan's contention that the Panel erred
because it "shifted the burden of proof to Japan in respect of a factual point that the complainant
explicitly declined to prove"
 276 or that "the shift of the burden of proof to Japan was made
prematurely before the demonstration of a prima facie case by the United States." 277
157. It is important to distinguish, on the one hand, the principle that the complainant must
establish a prima facie case of inconsistency with a provision of a covered agreement 278 from, on the
other hand, the principle that the party that asserts a fact is responsible for providing proof thereof. 279
In fact, the two principles are distinct. In the present case, the burden of demonstrating a prima facie
case that Japan's measure is maintained without sufficient scientific evidence, rested on the United
States. Japan sought to counter the case put forw ard by the United States by putting arguments in
respect of apples other than mature, symptomless apples being exported to Japan as a result of errors
of handling or illegal actions. It was thus for Japan to substantiate those allegations; it was not for the
United States to provide proof of the facts asserted by Japan. Thus, we disagree with Japan's assertion
that "the shift of the burden of proof to Japan was made prematurely before the demonstration of a
prima facie case by the United States."
 280 There was no "shift of the burden of proof " with respect to
allegations of fact relating to apples other than mature, symptomless apples, for Japan was solely
responsible for providing proof of the facts it had asserted. Moreover, it was only after the United
States had established a prima facie case that Japan's measure is maintained without sufficient
scientific evidence, that the Panel had to turn to Japan's attempts to counter that case.

274Panel Report, para. 8.85(d).
275Ibid., para. 8.154.
277Ibid., para. 33. (original italics)
279Appellate Body Report, US – Wool Shirts and Blouses, p. 14, DSR 1997:I, 323, at 335.
280Japan's appellant's submission, para. 33. (original italics)

158. Japan also contends that the Panel did not have the authority to make certain findings of
fact 281 and, in support of this contention, refers to the Appellate Body's statement in Japan –
Agricultural Products II :
Article 13 of the DSU and Article 11.2 of the SPS Agreement
suggest that panels have a significant investigative authority.
However, this authority cannot be used by a panel to rule in favour of
a complaining party which has not established a prima facie case of
inconsistency based on specific legal claims asserted by it. 282
We disagree with Japan. We note first that we are not persuaded that the findings of the Panel,
identified by Japan in relation to this argument, re late specifically to, or address apples other than
mature, symptomless apples, as Japan seems to assume. Also, the Appellate Body's finding in Japan
– Agricultural Products II does not support Japan's argument that the Panel was barred from making
findings of fact in connection with apples othe r than mature, symptomless apples. Those findings
were relevant to the claim pursued by the United States under Article 2.2 of the SPS Agreement, and
were responsive to relevant allegations of fact advanced by Japan in the context of its rebuttal of the
United States' claim. The Panel acted within the limits of its investigative authority because it did
nothing more than assess relevant allegations of fact asserted by Japan, in the light of the evidence
submitted by the parties and the opinions of the experts.
159. Japan also submits that, "in order to establish a prima facie case of insufficient scientific
evidence under Article 2.2 of the SPS Agreement, the complaining party must establish that there is
not sufficient scientific evidence for any of the perceived risks underlying the measure".
 283
According to Japan, the Panel should not have concluded that this prima facie case had been
established unless the United States had first addressed all the possible hypotheses—including those
for which the likelihood of occurrence is low or rests upon theoretical reasonings—and had shown for
each of them that the risk of transmission of fire blight is negligible. We find no basis for the
approach advocated by Japan. As the Appellate Body stated in EC – Hormones, "a prima facie case

281Japan refers to the following findings of the Panel:
[W]e are of the opinion that the prohibition of imported apples from any
orchard (whether or not it is free of fire blight) should fire blight be detected
within a 500-meter buffer zone surrounding such orchard is not supported
by sufficient scientific evidence; [and]
[W]e are of the opinion that the requirement that export orchards be
inspected at least three times yearly (at blossom, fruitlet, and harvest stages)
for the presence of fire blight is not supported by sufficient scientific
evidence. (footnotes omitted)
(Japan's appellant's submission, para. 35, quoting Panel Report, paras. 8.185 and 8.195)
282Appellate Body Report, para. 129; Japan's appellant's submission, paras. 18 and 44.
283Japan's appellee's submission, para. 9. (original italics)

is one which, in the absence of effective refutation by the defending party, requires a panel, as a matter
of law, to rule in favour of the complaining party presenting the prima facie case." 284 In US – Wool
Shirts and Blouses , the Appellate Body stated that the nature and scope of evidence required to
establish a prima facie case "will necessarily vary from measure to measure, provision to provision,
and case to case." 285 In the present case, the Panel appears to have concluded that in order to
demonstrate a prima facie case that Japan's measure is maintained without sufficient scientific
evidence, it sufficed for the United States to address only the question of whether mature, symptomless
apples could serve as a pathway for fire blight.
160. The Panel's conclusion seems appropriate to us for the following reasons. First, the claim
pursued by the United States was that Japan's m easure is maintained without sufficient scientific
evidence to the extent that it applies to mature, symptomless apples exported from the United States to
Japan. What is required to demonstrate a prima facie case is necessarily influenced by the nature and
the scope of the claim pursued by the complainant. A complainant should not be required to prove a
claim it does not seek to make. Secondly, the Panel found that mature, symptomless apple fruit is the
commodity "normally exported" by the United States to Japan. 286 The Panel indicated that the risk that
apple fruit other than mature, symptomless apples may actually be imported into Japan would seem to
arise primarily as a result of human or technical error, or illegal actions 287, and noted that the experts
characterized errors of handling and illega l actions as "small" or "debatable" risks. 288 G i v e n t h e
characterization of these risks, in our opinion it was legitimate for the Panel to consider that the United
States could demonstrate a prima facie case of inconsistency with Article 2.2 of the SPS Agreement
through argument based solely on mature, symptoml ess apples. Thirdly, the record contains no
evidence to suggest that apples other than mature, symptomless ones have ever been exported to Japan
from the United States as a result of errors of handling or illegal actions. 289 Thus, we find no error in
the Panel's approach that the United States could establish a prima facie case of inconsistency with
Article 2.2 of the SPS Agreement in relation to apples exported from the United States to Japan, even
though the United States confined its arguments to mature, symptomless apples.

284Appellate Body Report, para. 104.
285Appellate Body Report, p. 14, DSR 1997:I, 323, at 335.
286Panel Report, para. 8.141. The Panel also found that "the importation of immature, infected apples
may only occur as a result of a handling error or an illegal action". (Ibid., footnote 275 to para. 8.121)
287Ibid., para. 8.174.
288Ibid., para. 8.161.
289In response to questioning at the oral hearing, Japan indicated that the only evidence relating to the
export control procedures of the United States that it submitted to the Panel related to a case of codling moth
larvae found in apples shipped from the United States to the Separate Customs Territory of Taiwan, Penghu,
Kinmen, and Matsu. In our view, there was no reason for the Panel to infer from this that apples other than
mature, symptomless ones have ever been exported from the United States to Japan.

B. Mature, Symptomless Apples
161. We turn now to Japan's arguments in respect of mature, symptomless apples. As we indicated
above, Japan contends that the Panel erred in interpreting Article 2.2 of the SPS Agreement because
the Panel failed to accord a "certain degree of discretion" 290 to the importing Member in the manner
in which it chooses, weighs, and evaluates scientific evidence. 291 Japan submitted that, had the Panel
accorded such discretion to Japan as the importing Member, the Panel would not have focused on the
experts' views. Rather, the Panel would have evalua ted the scientific evidence in the light of Japan's
approach, which reflects "the historical facts of trans-oceanic expansion of the bacteria" and the rapid
growth of international trade, and which is premised on "the fact that the pathways of … transmission
of the bacteria are still unknown in spite of several efforts to trace them."
 292 Japan thus argues that
the Panel erred in the application of Article 2.2 of the SPS Agreement, a s i t s h o u l d h a v e a s s e s s e d
whether the United States had established a prima facie case regarding the sufficiency of scientific
evidence, not from the perspective of the experts' views, but, rather, in the light of Japan's approach to
scientific evidence. According to Japan, had the Panel made such an assessment, it would have been
bound to conclude that the United States had not established a prima facie case that Japan's measure
is maintained without sufficient scientific evidence.
162. We disagree with Japan. As the Panel correctly noted, the Appellate Body addressed, in
Japan – Agricultural Products II , the meaning of the term "sufficient", in the context of the
expression "sufficient scientific evidence" as found in Article 2.2.
 293 The Panel stated that the term
"sufficient" implies a "rational or objective relationship" 294 and referred to the Appellate Body's
statement there that:
Whether there is a rational relationship between an SPS measure and
the scientific evidence is to be determined on a case-by-case basis
and will depend upon the particular circumstances of the case,
including the characteristics of the measure at issue and the quality
and quantity of the scientific evidence.
 295
The Panel did not err in relying on this interpretation of Article 2.2 and in conducting its assessment
of the scientific evidence on this basis.

291Ibid., paras. 75-76.
292Ibid., para. 73.
293Panel Report, paras. 8.101-8.103 and 8.180.
294Ibid., paras. 8.103 and 8.180.

163. As we see it, the Panel examined the evidence adduced by the parties and considered the
opinions of the experts. It concluded as a matter of fact that it is not likely that apple fruit would
serve as a pathway for the entry, establishment or spread of fire blight in Japan.
 296 The Panel then
contrasted the extent of the risk and the nature of the elements composing the measure, and concluded
that the measure was "clearly disproportionate to the risk identified on the basis of the scientific
evidence available." 297 For the Panel, such "clear disproportion" implies that a "rational or objective
relationship" does not exist between the measure and the relevant scientific evidence, and, therefore,
the Panel concluded that the measure is maintained "without sufficient scientific evidence" within the
meaning of Article 2.2 of the SPS Agreement.
 298 We note that the "clear disproportion" to which the
Panel refers, relates to the application in this case of the requirement of a "rational or objective
relationship between an SPS measure and the scientific evidence".
164. We emphasize, following the Appe llate Body's statement in Japan – Agricultural
Products II, that whether a given approach or methodology is appropriate in order to assess whether a
measure is maintained "without sufficient scientif ic evidence", within the meaning of Article 2.2,
depends on the "particular circumstances of the case", and must be "determined on a case-by-case
basis".
 299 Thus, the approach followed by the Panel in this case—disassembling the sequence of
events to identify the risk and comparing it with the measure—does not exhaust the range of
methodologies available to determine whether a meas ure is maintained "without sufficient scientific
evidence" within the meaning of Article 2.2. Approaches different from that followed by the Panel in
this case could also prove appropriate to evaluate whether a measure is maintained without sufficient
scientific evidence within the meaning of Article 2.2. Whether or not a particular approach is
appropriate will depend on the "particular circumstances of the case".
 300 The methodology adopted
by the Panel was appropriate to the particular circumstances of the case before it and, therefore, we
see no error in the Panel's reliance on it.
165. Regarding Japan's contention that the Panel should have made its assessment under
Article 2.2 in the light of Japan's approach to risk and scientific evidence, we recall that, in
EC – Hormones , the Appellate Body addressed the question of the standard of review that a panel
should apply in the assessment of scientific evidence submitted in proceedings under the
SPS Agreement. It stated that Article 11 of the DSU sets out the applicable standard, requiring panels

296Panel Report, para. 8.176.
297Ibid., para. 8.198.
298Ibid., para. 8.199.
299Appellate Body Report, para. 84.
300Ibid.

to make an "objective assessment of the facts". It added that, as regards fact-finding by panels and the
appreciation of scientific evidence, total deference to the findings of the national authorities would not
ensure an objective assessment as required by Article 11 of the DSU.
 301 In our view, Japan's
submission that the Panel was obliged to favour Japan's approach to risk and scientific evidence over
the views of the experts conflicts with the Appellate Body's articulation of the standard of "objective
assessment of the facts".
166. In order to assess whether the United States had established a prima facie case, the
Panel was entitled to take into account the views of the experts. Indeed, in India – Quantitative
Restrictions, the Appellate Body indicated that it may be useful for a panel to consider the views of
the experts it consults in order to determine whether a prima facie case has been made. 302 Moreover,
on several occasions, including disputes involving the evaluation of scientific evidence, the Appellate
Body has stated that panels enjoy discretion as the trier of facts
 303; they enjoy "a margin of discretion
in assessing the value of the evidence, and th e weight to be ascribed to that evidence." 304 Requiring
panels, in their assessment of the evidence before them, to give precedence to the importing Member's
evaluation of scientific evidence and risk is not compatible with this well-established principle.
167. For these reasons, we reject the contention that, under Article 2.2, a panel is obliged to give
precedence to the importing Member's approach to scientific evidence and risk when analyzing and
assessing scientific evidence. Consequently, we disagree with Japan that the Panel erred in assessing
whether the United States had established a prima facie case when it did so from a perspective
different from that inherent in Japan's approach to scientific evidence and risk. Thus, we are not
persuaded that we should revisit the Panel's conclusion that the United States established a
prima facie case that Japan's measure is maintained without sufficient scientific evidence.
168. In the light of these considerations, we uphold the Panel's findings, in paragraphs 8.199
and 9.1(a) of the Panel Report, that Japan's phytosanitary measure at issue is maintained "without
sufficient scientific evidence" within the meaning of Article 2.2 of the SPS Agreement.

302Appellate Body Report, para. 142.
303Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , paras. 170, 177, and 181; Appellate
Body Report, EC – Sardines , para. 299; Appellate Body Report, Korea – Alcoholic Beverages, paras. 161-162;
Appellate Body Report, EC – Hormones, para. 132; and Appellate Body Report, US – Wheat Gluten, para. 151.
See also, Appellate Body Report, Australia – Salmon , paras. 262-267; Appellate Body Report, Japan –
Agricultural Products II, paras. 140-142; and Appellate Body Report, Korea – Dairy, paras. 137-138.

VIII. Article 5.7 of the SPS Agreement
169. We turn to the issue whether the Panel erred in finding that Japan's phytosanitary measure
was not imposed in respect of a situation where "relevant scientific evidence is insufficient" within the
meaning of Article 5.7 of the SPS Agreement.
170. Article 2.2 of the SPS Agreement stipulates that Members shall not maintain sanitary or
phytosanitary measures without sufficient scientific evidence "except as provided for in paragraph 7
of Article 5". Before the Panel, Japan contested that its phytosanitary measure is "maintained without
sufficient scientific evidence" within the meaning of Article 2.2. Japan claimed, in the alternative,
that its measure is a provisional measure consistent with Article 5.7.
171. Article 5.7 of the SPS Agreement reads as follows:
Assessment of Risk and Determination of the Appropriate Level of
Sanitary or Phytosanitary Protection
…
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 necessary for a more objective assessment of risk and
review the sanitary or phytosanitary measure accordingly within a
reasonable period of time.
172. The Panel found that Japan's measure is not a provisional measure justified under Article 5.7
of the SPS Agreement because the measure was not imposed in respect of a situation where "relevant
scientific evidence is insufficient".
 305
173. The Panel identified the "phytosanitary question at issue" as the risk of transmission of fire
blight through apple fruit. 306 It observed that "scientific studies as well as practical experience have
accumulated for the past 200 years" 307 on this question and that, in the course of its analysis under
Article 2.2, it had come across an "important amount of relevant evidence". 308 The Panel observed
that a large quantity of high quality scientific evidence on the risk of transmission of fire blight
through apple fruit had been produced over the years, and noted that the experts had expressed strong

305Panel Report, paras. 8.221-8.222.
306Ibid., para. 8.218.
307Ibid., para. 8.219.
308Ibid., para. 8.216.

and increasing confidence in this evidence. Statin g that Article 5.7 was "designed to be invoked in
situations where little, or no, reliable evidence was available on the subject matter at issue" 309, the
Panel concluded that the measure was not imposed in respect of a situation where relevant scientific
evidence is insufficient.
 310 The Panel added that, even if the term "relevant scientific evidence" in
Article 5.7 referred to a specific aspect of a phytosanitary problem, as Japan claimed, its conclusion
would remain the same. The Panel justified its vi ew on the basis of the experts' indication that, not
only is there a large volume of general evidence, but there is also a large volume of relevant scientific
evidence on the specific scientific questions raised by Japan. 311
174. Japan challenges the Panel's finding that the measure is not imposed in respect of a situation
where "relevant scientific evidence is insufficient" within the meaning of Article 5.7 of the
SPS Agreement.
 312 Moreover, Japan submits that its measure meets all the other requirements of
Article 5.7. 313 Accordingly, Japan requests us to reve rse the Panel's finding and to complete the
analysis regarding the consistency of its measure with the other requirements set out in Article 5.7. 314
A. The Insufficiency of Relevant Scientific Evidence
175. As noted above, Japan's claim under Article 5.7 was argued before the Panel in the
alternative. 315 Japan relied on Article 5.7 only in the event that the Panel rejected Japan's view that
"sufficient scientific evidence" exists to maintain the measure within the meaning of Article 2.2. It is
in this particular context that the Panel assigned the burden of proof to Japan to make a prima facie
case in support of its position under Article 5.7. 316
176. In Japan – Agricultural Products II, the Appellate Body stated that Article 5.7 sets out four
requirements that must be satisfied in order to adopt and maintain a provisional phytosanitary
measure.
 317 These requirements are:

309Panel Report, para. 8.219.
310Ibid.
311Ibid., para. 8.220.
312We note that Japan does not challenge the Panel's conclusion that in order to assess whether the
measure was imposed in respect of a situation where "relevant scientific evidence is insufficient", the Panel had
to consider "not only evidence supporting Japan's position, but also evidence supporting other views." ( Ibid.,
para.8.216)
313Japan's appellant's submission, paras. 117-120.
314Ibid., paras. 120-121.
315Panel Report, para. 4.202.
316The Panel's assignment of the burden of proof to Japan to make a prima facie case of consistency
with Article 5.7 is not challenged on appeal.
317Appellate Body Report, para. 89.

(i) the measure is imposed in respect of a situation where "relevant scientific evidence is
insufficient";
(ii) the measure is adopted "on the basis of available pertinent information";
(iii) the Member which adopted the measure "seek[s] to obtain the additional information
necessary for a more objective assessment of risk"; and
(iv) the Member which adopted the measure "review[s] the … measure accordingly
within a reasonable period of time".
 318
These four requirements are "clearly cumulative in nature" 319; as the Appellate Body said in Japan –
Agricultural Products II , "[w]henever one of these four requirements is not met, the measure at
issue is inconsistent with Article 5.7." 320
177. The Panel's findings address exclusively the first requirement, which the Panel found Japan
had not met. 321 The requirements being cumulative, the Panel found it unnecessary to address the
other requirements to find an inconsistency with Article 5.7.
178. Japan's appeal also focuses on the first requirement of Article 5.7. Japan contends that the
assessment as to whether relevant scientific evidence is insufficient should not be restricted to
evidence "in general" on the phytosanitary question at issue, but should also cover a "particular
situation" in relation to a "particular measure" or a "particular risk".
 322 Hence, Japan submits that the
phrase "[w]here relevant scientific evidence is insu fficient", in Article 5.7, "should be interpreted to
relate to a particular situation in respect of a particular measure to which Article 2.2 applies (or a
particular risk), but not to a particular subject matter in general, which Article 2.2 does not
address." 323 According to Japan, the Panel "erred by interpreting the applicability of [Article 5.7] too
narrowly" 324 and too "rigid[ly]". 325

318Appellate Body Report, Japan – Agricultural Products II , para. 89. The third and fourth
requirements relate to the maintenance of a provisional phytosanitary measure and highlight the provisional
nature of measures adopted pursuant to Article 5.7.
319Appellate Body Report, Japan – Agricultural Products II, para. 89.
320Ibid. (original italics)
321Panel Report, para. 8.222.
323Ibid. (original italics)
324Ibid., para. 96.
325Ibid., paras. 100-101.

179. It seems to us that Japan's reliance on the opposition between evidence "in general" and
evidence relating to specific aspects of a particular subject matter is misplaced. The first requirement
of Article 5.7 is that there must be insufficient scientific evidence. When a panel reviews a measure
claimed by a Member to be provisional, that panel must assess whether "relevant scientific evidence is
insufficient". This evaluation must be carried out, not in the abstract, but in the light of a particular
inquiry. The notions of "relevance" and "insufficiency" in the introductory phrase of Article 5.7
imply a relationship between the scientific eviden ce and something else. Reading this introductory
phrase in the broader context of Article 5 of the SPS Agreement, which is entitled "Assessment of
Risk and Determination of the Appropriate Level of Sanitary or Phytosanitary Protection", is
instructive in ascertaining the nature of the relationship to be established. Article 5.1 sets out a key
discipline under Article 5, namely that "Members shall ensure that their sanitary or phytosanitary
measures are based on an assessment … of the risks to human, animal or plant life or health".
 326 This
discipline informs the other provisions of Article 5, including Article 5.7. We note, as well, that the
second sentence of Article 5.7 refers to a "more objective assessment of risks". These contextual
elements militate in favour of a link or relationship between the first requirement under Article 5.7
and the obligation to perform a risk assessment under Article 5.1: "relevant scientific evidence" will
be "insufficient" within the meaning 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. Thus, the question is
not whether there is sufficient evidence of a general nature or whether there is sufficient evidence
related to a specific aspect of a phytosanitary problem, or a specific risk. The question is whether the
relevant evidence, be it "general" or "specific", in the Panel's parlance, is sufficient to permit the
evaluation of the likelihood of entry, establishment or spread of, in this case, fire blight in Japan.
180. The Panel found that, with regard to the risk of transmission of fire blight through apples
exported from the United States—"normally"
 327, mature, symptomless apples—"not only a large
quantity but a high quality of scientific evidence has been produced over the years that describes the
risk of transmission of fire blight through apple fruit as negligible", and that "this is evidence in which
the experts have expressed strong and increasing confidence."
 328

326The risk assessment referred to in Article 5.1 is defined in Annex A to the SPS Agreement.
327Panel Report, paras. 8.87 and 8.141.
328Ibid., para. 8.219.

181. Japan also raised specific questions related to endophytic bacteria in mature apple fruit and
regarding the completion of contamination pathways. 329 In relation to these specific questions, the
Panel made the finding of fact, based on indications of the experts retained by the Panel, that there is a
large volume of relevant scientific evidence regarding these questions as well.
 330 Moreover, Japan
did not persuade the Panel that this scientific evidence is not conclusive or has not produced reliable
results. 331
182. These findings of fact by the Panel suggest that the body of available scientific evidence
permitted, in quantitative and qualitative terms, the performance of an assessment of risks, as required
under Article 5.1 and as defined in Annex A to the SPS Agreement, with respect to the risk of
transmission of fire blight through apple fruit exported from the United States to Japan. In particular,
according to these findings of fact by the Panel, the body of available scientific evidence would allow
"[t]he evaluation of the likelihood of entry, establishment or spread"
 332 of fire blight in Japan through
apples exported from the United States. Accordingly, in the light of the findings of fact made by the
Panel, we conclude that, with respect to the risk of transmission of fire blight through apple fruit
exported from the United States to Japan ("normally", mature, symptomless apples), the "relevant
scientific evidence" is not "insufficient" within the meaning of Article 5.7.
B. Japan's Argument on "Scientific Uncertainty"
183. Japan challenges the Panel's statement that Article 5.7 is intended to address only "situations
where little, or no, reliable evidence was available on the subject matter at issue"
 333 because this does
not provide for situations of "unresolved uncerta inty". Japan draws a distinction between "new
uncertainty" and "unresolved uncertainty" 334, arguing that both fall within Article 5.7. According to
Japan, "new uncertainty" arises when a new risk is identified; Japan argues that the Panel's
characterization that "little, or no, reliable evidence was available on the subject matter at issue" is
relevant to a situation of "new uncertainty".
 335 We understand that Japan defines "unresolved
uncertainty" as uncertainty that the scientific evid ence is not able to resolve, despite accumulated
scientific evidence. 336 According to Japan, the risk of transmission of fire blight through apple fruit

329Panel Report, para. 8.220.
330Ibid.,
331Ibid., para. 7.9. See also the Panel's findings of fact in paragraphs 8.128, 8.168, and 8.171 of the
Panel Report, made in the context of the Panel's analysis under Article 2.2 of the SPS Agreement.
332Annex A to the SPS Agreement, para. 4.
333Panel Report, para. 8.219.
335Ibid., footnote 76 to para. 98.
336Ibid., para. 98.

relates essentially to a situation of "unresolved uncertainty". 337 Thus, Japan maintains that, despite
considerable scientific evidence regarding fire blight, there is still uncertainty about certain aspects of
transmission of fire blight. Japan contends that the reasoning of the Panel is tantamount to restricting
the applicability of Article 5.7 to situations of "new uncertainty" and to excluding situations of
"unresolved uncertainty"; and that, by doing so, the Panel erred in law.
 338
184. We disagree with Japan. The application of Article 5.7 is triggered not by the existence of
scientific uncertainty, but rather by the insufficiency of scientific evidence. The text of Article 5.7 is
clear: it refers to "cases where relevant scient ific evidence is insufficient", not to "scientific
uncertainty". The two concepts are not interchangeable. Therefore, we are unable to endorse Japan's
approach of interpreting Article 5.7 through the prism of "scientific uncertainty".
185. We also find no basis for Japan's argument that the Panel's interpretation of Article 5.7 is too
narrow for the reason that it excludes cases where the quantity of evidence on a phytosanitary
question is "more than little"
 339, but the available scientific evidence has not resolved the question.
The Panel's statement that Article 5.7 is intended to address "situations where little, or no, reliable
evidence was available on the subject matter at issue", refers to the availability of reliable evidence.
We do not read the Panel's interpretation as excluding cases where the available evidence is more than
minimal in quantity, but has not led to reliable or conclusive results. Indeed, the Panel explicitly
recognized that such cases fall within the scope of Article 5.7 when it observed, in the Interim Review
section of its Report, that under its approach, Article 5.7 would be applicable to a situation where a lot
of scientific research has been carried out on a particular issue without yielding reliable evidence.
 340
C. The Panel's Reliance on a "History of 200 Years of Studies and Practical Experience"
186. Japan contends that the conclusion of the Panel regarding Article 5.7 is based on its
assessment that, as regards fire blight, "scientific studies as well as practical experience have
accumulated for the past 200 years".
 341 Japan submits that the Panel was not authorized to rule on the
basis of a " 'history' of 200 year[s] of studies and practical experience" 342 because "the United States
did not raise any objection to application of Article 5.7 on the basis of [a] 'history' of 200 year[s] of
studies and practical experience."
 343 In other words, according to Japan, the Panel was not entitled to

337Japan's appellant's submission, paras. 105-110.
338Ibid., para. 110.
339Panel Report, para. 7.8.
340Ibid., para. 7.9.
341Ibid., para. 8.219; Japan's appellant's submission, paras. 93 and 97.
343Ibid.

draw a conclusion regarding Article 5.7 on the basis of such "history" unless the United States had
raised an objection based on "history", something that the United States had not done. 344
187. In the course of its reasoning, the Panel mentioned that, as regards the risk of transmission of
fire blight through apple fruit, "scientific studies as well as practical experience have accumulated for
the past 200 years". 345 This statement was relevant to the debate under Article 5.7 and was based on
the evidence before the Panel. 346 Accordingly, it was appropriate for the Panel to make such a
statement irrespective of whether the United States had explicitly advanced an argument based on
"history".
188. In the light of these considerations, we uphold the findings of the Panel, in paragraphs 8.222
and 9.1(b) of the Panel Report, that Japan's phytosanitary measure at issue was not imposed in respect
of a situation "where relevant scientific evidence is insufficient", and, therefore, that it is not a
provisional measure justified under Article 5.7 of the SPS Agreement. We note that Japan requested
us, in the event we were to reverse the Panel's finding on Article 5.7, to complete the analysis in
respect of the other requirements set out in Article 5.7 of the SPS Agreement. Given our conclusion,
there is no need to do so.
IX. Article 5.1 of the SPS Agreement
189. We turn now to Japan's allegations of error with respect to Article 5.1 of the SPS Agreement.
The Panel began its evaluation of the United States' claim under Article 5.1 by noting that both parties
effectively identified a document referred to as the "1999 PRA" as the risk assessment to be analyzed
in this evaluation.
 347 Japan, however, objected to the Panel's consideration of evidence arising
subsequent to the 1999 PRA when assessing the 1999 PRA's conformity with the requirements of
Article 5.1. Despite this objection, the Panel concluded that it would "consider principally the
1999 PRA as the relevant risk assessment in this case, but we do not exclude that other elements,
including subsequent information, could also be of relevance."
 348

345Panel Report, para. 8.219.
346We note that Dr. Chris Hale, one of the experts consulted by the Panel, referred to a historical
perspective when he stated that "fire blight had taken 220 years to spread from New York State, USA in 1780,
to its latest geographic locations". (Ibid., para. 6.28)
347Ibid., para. 8.247. In response to questioning at the oral hearing, both participants reaffirmed the
focus of the Panel's Article 5.1 analysis to be the 1999 PRA.
348Panel Report, para. 8.248.

190. On the substance of the claim, the Panel noted first that the United States did not contest the
fact that the 1999 PRA properly identified fire blight as the disease of concern. 349 The focus of the
United States' claim was that (i) the risk assessment did not sufficiently evaluate the likelihood of
entry, establishment or spread of fire blight, and (ii) this evaluation was not performed "according to
the SPS measures which might be applied".
 350
191. As to the first element of the claim, the Panel said that a risk assessment must be sufficiently
specific to the risk at issue. In this regard, the Panel observed that the 1999 PRA studied several
possible hosts of fire blight, including apple fruit. Recognizing that the risk of transmission of fire
blight could vary significantly from plant to plant, the Panel found that the risk assessment was not
"sufficiently specific" because "the conclusion of the [1999] PRA [did] not purport to relate
exclusively to the introduction of the disease through apple fruit, but rather more generally,
apparently, through any susceptible host/vector."
 351
192. The Panel similarly found the discussion of possible pathways to have "intertwined" the risk
of entry through apple fruit with that of other possible vectors, including vectors considered more
likely to be potential sources of contamination than apple fruit. 352 The Panel also determined that
those parts of the 1999 PRA that specifically addressed apple fruit, although noting the possibility of
entry, establishment or spread of fire blight through this vector, did not properly evaluate the
probability of the occurrence of such events. Finally, the Panel recalled the testimony of certain
experts, identifying several steps in the evaluation of the probability of entry that had been
"overlooked" by the 1999 PRA.
 353 In the light of these shortcomings, the Panel concluded that
Japan's risk assessment did not properly evaluate the likelihood of entry, establishment or spread of
fire blight through apple fruit.
193. With respect to the second element of the United States' claim, the Panel observed that a risk
assessment, according to Annex A to the SPS Agreement, requires an evaluation "according to the
sanitary or phytosanitary measures which might be applied". From this language, the Panel
determined that a risk assessment must not only consider the particular measure already in place, but
also other measures that " might" be applied.
 354 Because the 1999 PRA did not consider other risk-
mitigating measures, the Panel found the risk assessment inadequate for purposes of Article 5.1.

349Panel Report, para. 8.252.
350Ibid., para. 8.253.
351Ibid., para. 8.271.
352Ibid., para. 8.278.
353Ibid., para. 8.279.
354Ibid., para. 8.283. (original italics)

194. Reviewing Japan's evaluation of the measure that was already in place, the Panel
acknowledged that the 1999 PRA could be considered to have provided "some" evaluation of the
likelihood of entry of the disease and possible miti gation through the existing measure. The Panel
noted, however, that, in Australia – Salmon , the Appellate Body found that "some" evaluation was
insufficient for purposes of Article 5.1 and that a comparison between Japan's evaluation and that of
the importing Member in that case reveals the 1999 PRA to be "considerably less substantial". 355 The
Panel also noted that the 1999 PRA assumes that the individual components of Japan's measure would
be applied cumulatively, without consideration as to their individual effectiveness. The Panel found
that the required consideration of alternative measures included an obligation to evaluate whether the
independent elements needed to be applied cumulatively and to provide an explanation therefor.
 356
As a result, the Panel concluded that, in the 1999 PRA, Japan did not sufficiently conduct its
evaluation "according to the sanitary or phytosanitary measures which might be applied".
195. Japan challenges three specific aspects of the Panel's analysis of the 1999 PRA under
Article 5.1. First, Japan contests the Panel's finding that the 1999 PRA is inconsistent with the
requirements of Article 5.1 because it did not focus its analysis on the risk of fire blight entering
through apple fruit , in particular. Japan contends that the Panel misinterpreted Article 5.1 and
misunderstood the Appellate Body's decision in EC – Hormones with respect to the requirement of
"specificity" of a risk assessment.
 357 Secondly, Japan argues that Article 5.1, contrary to the Panel's
interpretation, does not require a consideration of "alternative measures other than [the] existing
measures."
 358 Finally, Japan claims that its risk assessment should be assessed in the light of
evidence available at the time of the assessment, not against evidence that has become available
subsequently. 359
196. We begin our analysis with the text of the relevant provision at issue, Article 5.1 of the
SPS Agreement:
Members shall ensure that their sanitary or phytosanitary measures
are based on an assessment, as appropriate to the circumstances, of
the risks to human, animal or plant life or health, taking into account
risk assessment techniques developed by the relevant international
organizations.

355Panel Report, para. 8.287.
356Ibid., para. 8.288.
357Japan's appellant's submission, paras. 127-129.
359Japan's appellant's submission, paras. 135-138.

The first clause of paragraph 4 of Annex A to the SPS Agreement defines the "risk assessment" for a
measure designed to protect plant life or health from risks arising from the entry, establishment or
spread of diseases as follows:
Risk assessment - The evaluation of the likelihood of entry,
establishment or spread of a pest or disease within the territory of an
importing Member according to the sanitary or phytosanitary
measures which might be applied, and of the associated potential
biological and economic consequences … .
 360
Based on this definition, the Appellate Body determined in Australia – Salmon that:
… a risk assessment within the meaning of Article 5.1 must:
(1) identify the diseases whose entry, establishment or spread a
Member wants to prevent within its territory, as well as the
potential biological and economic consequences associated
with the entry, establishment or spread of these diseases;
(2) evaluate the likelihood of entry, establishment or spread of
these diseases, as well as the associated potential biological
and economic consequences; and
(3) evaluate the likelihood of entry, establishment or spread of
these diseases according to the SPS measures which might
be applied. 361 (original italics)
197. As the Panel noted, the United States does not claim that Japan's risk assessment failed to
meet the first of these conditions. 362 The Panel therefore limited its analysis of Japan's risk
assessment to the second and third conditions. The Panel found that the 1999 PRA did not constitute
a "risk assessment", as that term is defined in the SPS Agreement, because it did not satisfy either of
those conditions. Japan challenges aspects of the Panel's analysis with respect to both of these
conditions. We consider each of these conditions before turning to Japan's argument regarding the
evidence that may be relied upon by a panel when evaluating a risk assessment.
A. Evaluating the Likelihood of Entry, Establishment or Spread of Fire Blight
198. Japan challenges first the Panel's finding that the 1999 PRA was not sufficiently specific to
constitute a risk assessment under the SPS Agreement because it did not evaluate the risk in relation

360The second clause in paragraph 4 of Annex A to the SPS Agreement addresses risk assessments
evaluating the "potential for adverse effects on human or animal health arising from the presence of additives,
contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs." As such, the second clause
does not define the type of risk assessment relevant to this dispute involving the possibility of transmission of
fire blight to plants in Japan. (See Appellate Body Report, Australia – Salmon, footnote 67 to para. 120)
361Ibid., para. 121.
362Panel Report, para. 8.252.

to apple fruit, in particular. In EC – Hormones, in the context of evaluating whether a measure was
"based on" a risk assessment, the Appellate Body examined the specificity of the risk assessment
relied upon by the importing Member. In that case, the importing Member had referred to certain
scientific studies and articles as the risk assessment underlying its measures. In its Report, the
Appellate Body described the panel's finding that these materials:
… relate[d] to the carcinogenic potential of entire categories of
hormones, or of the hormones at issue in general. … [They did] not
evaluate[] the carcinogenic potential of those hormones when used
specifically for growth promotion purposes . Moreover, they [did]
not evaluate the specific potential for carcinogenic effects arising
from the presence in "food" , more specifically, "meat or meat
products" of residues of the hormones in dispute.
 363 (original italics)
199. The panel in EC – Hormones concluded, as a result, that the studies cited by the importing
Member were insufficient to support the measures at issue. The Appellate Body upheld these
findings, stating that, although the studies cited by the importing Member:
… [did] indeed show the existence of a general risk of cancer … they
[did] not focus on and [did] not address the particular kind of risk
[t]here at stake - the carcinogenic or genotoxic potential of the
residues of those hormones found in meat derived from cattle to
which the hormones had been administered for growth promotion
purposes -- as is required by paragraph 4 of Annex A of the
SPS Agreement.
 364
The Appellate Body therefore concluded that the risk assessment was not "sufficiently specific to the
case at hand." 365
200. In this case, the Panel, relying on the Appellate Body's finding in EC – Hormones,
concluded that the 1999 PRA was not sufficiently specific to constitute a "risk assessment" in
accordance with the SPS Agreement.
 366 The Panel based this conclusion on its finding that, although
the 1999 PRA makes determinations as to the entry, establishment and spread of fire blight through a
collection of various hosts (including apple fruit), it failed to evaluate the entry, establishment or
spread of fire blight through apple fruit as a separate and distinct vector.
 367 As the Panel stated in
response to Japan's comments during the Interim Review, "Japan evaluated the risks associated with

364Ibid., para. 200.
365Ibid.
366Panel Report, paras. 8.267 and 8.271.
367Ibid., paras. 8.268-8.271.

all possible hosts taken together, not sufficiently considering the risks specifically associated with the
commodity at issue: US apple fruit exported to Japan." 368
201. Japan does not contest the Panel's characterization of the risk assessment as one that did not
analyze the risks of apple fruit separately from risks posed by other hosts. 369 Rather, Japan claims
that the Panel's reasoning relates to a "matter of methodology", which lies within the discretion of
the importing Member. 370 Japan contends that the requirement of "specificity" explained in
EC – Hormones refers to the specificity of the risk and not to the methodology of the risk
assessment. 371
202. We disagree with Japan. Under the SPS Agreement, the obligation to conduct an assessment
of "risk" is not satisfied merely by a general discussion of the disease sought to be avoided by the
imposition of a phytosanitary measure.
 372 The Appellate Body found the risk assessment at issue in
EC – Hormones not to be "sufficiently specific" even though the scientific articles cited by the
importing Member had evaluated the "carcinogenic potential of entire categories of hormones, or of
the hormones at issue in general." 373 In order to constitute a "risk assessment" as defined in the
SPS Agreement, the Appellate Body concluded, the risk assessment should have reviewed the
carcinogenic potential, not of the relevant hormones in general, but of "residues of those hormones
found in meat derived from cattle to which the hormones had been administered for growth promotion
purposes".
 374 Therefore, when discussing the risk to be specified in the risk assessment in
EC – Hormones , the Appellate Body referred in general to the harm concerned (cancer or genetic
damage) as well as to the precise agent that may possibly cause the harm (that is, the specific
hormones when used in a specific manner and for specific purposes).
203. In this case, the Panel found that the conclusion of the 1999 PRA with respect to fire blight
was "based on an overall assessment of possible modes of contamination, where apple fruit is only

368Panel Report, para. 7.14.
369Japan's appellant's submission, para. 128; Japan's response to questioning at the oral hearing.
371Ibid., para. 129.
372Indeed, we are of the view that, as a general matter, "risk" cannot usually be understood only in
terms of the disease or adverse effects that may result. Rather, an evaluation of risk must connect the possibility
of adverse effects with an antecedent or cause. For example, the abstract reference to the "risk of cancer" has no
significance, in and of itself, under the SPS Agreement; but when one refers to the "risk of cancer from
smoking cigarettes", the particular risk is given content.
373Appellate Body Report, para. 199. (original italics) In other words, the risk assessment proffered
by the importing Member in EC – Hormones considered the relationship between the broad grouping of
hormones that were the subject of the measure and cancer.
374Ibid., para. 200.

one of the possible hosts/vectors considered." 375 The Panel further found, on the basis of the
scientific evidence, that the risk of entry, establishment or spread of the disease varies significantly
depending on the vector, or specific host plant, being evaluated.
 376 Given that the measure at issue
relates to the risk of transmission of fire blight through apple fruit, in an evaluation of whether the risk
assessment is "sufficiently specific to the case at hand" 377, the nature of the risk addressed by the
measure at issue is a factor to be taken into account. In the light of these considerations, we are of the
view that the Panel properly determined that the 1999 PRA "evaluat[ion of] the risks associated with
all possible hosts taken together"
 378 was not sufficiently specific to qualify as a "risk assessment"
under the SPS Agreement for the evaluation of the likelihood of entry, establishment or spread of fire
blight in Japan through apple fruit. 379
204. Japan contends that the "methodology" of the risk assessment is not directly addressed by the
SPS Agreement. In particular, Japan suggests that, whether to analyze the risk on the basis of the
particular pest or disease, or on the basis of a particular commodity, is a "matter of methodology" not
directly addressed by the SPS Agreement. 380 We agree. Contrary to Japan's submission, however,
the Panel's reading of EC – Hormones does not suggest that there is an obligation to follow any
particular methodology for conducting a risk assessment. In other words, even though, in a given
context, a risk assessment must consider a specif ic agent or pathway through which contamination
might occur, Members are not precluded from organizing their risk assessments along the lines of the
disease or pest at issue, or of the commodity to be imported. Thus, Members are free to consider in
their risk analysis multiple agents in relation to one disease, provided that the risk assessment attribute
a likelihood of entry, establishment or spread of the disease to each agent specifically. Members are
also free to follow the other "methodology" identifi ed by Japan and focus on a particular commodity,
subject to the same proviso.

375Panel Report, para. 8.270.
376Ibid., reads, in relevant part:
The scientific evidence submitted by both parties leaves no doubt that the
risk of introduction and spread of th e disease varies considerably according
to the host plant, with nursery stock and budding material identified as
known sources for the spread of fire blight in some cases.
378Panel Report, para. 7.14.
379We note our understanding that the Panel did not base its finding on, nor make any reference to,
whether the SPS Agreement requires a risk assessment to analyze the importation of products on a country-
specific basis. Neither participant in this appeal has asked us to find that the definition of "risk assessment" in
the SPS Agreement mandates an analysis of risk specific to each country of exportation. As a result, we make
no findings with respect to whether such a country-specific analysis is required in order to satisfy a Member's
obligations under Article 5.1 of the SPS Agreement.
380Japan's appellant's submission, paras. 127-128.

205. Indeed, the relevant international standards, which, Japan claims, "adopt both
methodologies" 381, expressly contemplate examining risk in relation to particular pathways. 382 Those
standards call for that specific examination even when the risk analysis is initiated on the basis of the
particular pest or disease at issue 383, as was the 1999 PRA. Therefore, our conclusion that the Panel
properly found Japan's risk assessment not to be sufficiently specific, does not limit an importing
Member's right to adopt any appropriate "methodology", consistent with the definition of "risk
assessment" in paragraph 4 of Annex A to the SPS Agreement.

381Japan's appellant's submission, para. 128, quo ting "Guidelines for Pest Risk Analysis", International
Standard for Phytosanitary Measures , No.2 (Rome 1996), Food and Agriculture Organization of the United
Nations; Exhibit JPN-30, submitted by Japan to the Panel; and "Pest Risk Analysis for Quarantine Pests",
International Standard for Phytosanitary Measures , No.11 (Rome 2001), Food and Agriculture Organization of
the United Nations; Exhibit USA-15, submitted by the United States to the Panel.
382For example, the International Standard for Phytosanitary Measures, No.2, states at page 14:
The final stage of assessment concerns the introduction potential which
depends on the pathways from the exporting country to the destination, and
the frequency and quantity of pests associated with them. …
The following is a partial checklist that may be used to estimate the
introduction potential divided into those factors which may affect the
likelihood of entry and those factors which may affect the likelihood of
establishment.
Entry:
- opportunity for contamination of commodities or conveyances by the pest
…
Establishment:
- number and frequency of consignments of the commodity
…
- intended use of the commodity
…
(Exhibit JPN-30, submitted by Japan to the Panel, supra, footnote 381)
Similarly, the International Standard for Phytosanitary Measures, No.11, provides at pages 13-14:
All relevant pathways should be considered. … Consignments of plants and
plant products moving in international trade are the principal pathways of
concern and existing patterns of such trade will, to a substantial extent,
determine which pathways are relevant. Other pathways such as other types
of commodities … should be considered where appropriate. …
…
Factors to consider are:
- dispersal mechanisms, including vectors to allow movement from the
pathway to a suitable host
- whether the imported commodity is to be sent to a few or many
destination points in the [pest risk analysis] area
…
- intended use of the commodity
…
(Exhibit USA-15, submitted by the United States to the Panel, supra, footnote 381)
383See supra, footnote 382.

206. We therefore uphold the Panel's finding, in paragraph 8.271 of the Panel Report, that Japan's
1999 Pest Risk Analysis does not satisfy the definition of "risk assessment" in paragraph 4 of
Annex A to the SPS Agreement, because it fails to evaluate the likelihood of entry, establishment or
spread of fire blight specifically through apple fruit.
B. Evaluating the Likelihood of Entry, Establishment or Spread of Fire Blight
"According to the Sanitary or Phytosanitary Measures Which Might Be Applied"
207. Japan also challenges the Panel's finding that Japan "has not … properly evaluated the
likelihood of entry 'according to the SPS measures that might be applied'."
 384 According to the Panel,
the terms in the definition of "risk assessment" set out in paragraph 4 of Annex A to the
SPS Agreement—more specifically, the phrase "according to the sanitary or phytosanitary measures
which might be applied"—suggest that "consideration should be given not just to those specific
measures which are currently in application, but at least to a potential range of relevant measures."
 385
Japan acknowledged that it did not consider policies other than the measure already applied. 386
However, according to Japan, this "again relates to the matter of methodology", which is left to the
discretion of the importing Member. 387
208. The definition of "risk assessment" in the SPS Agreement requires that the evaluation of the
entry, establishment or spread of a disease be conducted "according to the sanitary or phytosanitary
measures which might be applied". 388 We agree with the Panel that this phrase "refers to the
measures which might be applied, not merely to the measures which are being applied." 389 Th e
phrase "which might be applied" is used in the conditional tense. In this sense, "might" means: "were
or would be or have been able to, were or wo uld be or have been allowed to, were or would
perhaps". 390 We understand this phrase to imply that a risk assessment should not be limited to an
examination of the measure already in place or favoured by the importing Member. In other words,
the evaluation contemplated in paragraph 4 of Annex A to the SPS Agreement should not be
distorted by preconceived views on the nature and the content of the measure to be taken; nor should
it develop into an exercise tailored to and carried out for the purpose of justifying decisions ex post
facto.

385Panel Report, para. 8.285.
386Japan's response to questioning at the oral hearing.
388Annex A to the SPS Agreement, para. 4.
389Panel Report, para. 8.283. (original italics)
390Shorter Oxford English Dictionary , 5th ed., W.R. Trumble, A. Stevenson (eds.) (Oxford University
Press, 2002), Vol. I, p. 1725.

209. In this case, the Panel found that the 1999 PRA dealt exclusively with the " 'plant quarantine
measures against E. amylovora concerning US fresh apple fruit', which have been taken by Japan
based on the proposal by the US government since 1994". 391 The Panel also found that, in the
1999 PRA, no attempts were made "to assess the 'relative effectiveness' of the various individual
requirements applied, [that] the assessment appears to be based on the assumption from the outset that
all these measures would apply cumulatively" 392, and that no analysis was made "of their relative
effectiveness and whether and why all of them in combination are required in order to reduce or
eliminate the possibility of entry, establishment or spread of the disease."
 393 Moreover, the Panel
referred to "the opinions of Dr Hale and Dr Smith that the 1999 PRA 'appeared to prejudge the
outcome of its risk assessment' and that 'it was principally concerned to show that each of the
measures already in place was effective in some respect, and concluded that all should therefore be
applied'."
 394 In our opinion, these findings of fact of the Panel leave no room for doubt that the
1999 PRA was designed and conducted in such a manner that no phytosanitary policy other than the
regulatory scheme already in place was considered. Accordingly, we uphold the Panel's finding, in
paragraph 8.285 of the Panel Report, that "Japan has not … properly evaluated the likelihood of entry
'according to the SPS measures that might be applied'."
C. Consideration of Scientific Evidence Arising Subsequent to the Risk Assessment at
Issue
210. Finally, Japan argues that "Japan’s PRA was consistent with Article 5.1 of the SPS
Agreement at the time of the analysis, because conformity of a risk assessment with Article 5.1
should be assessed against the information available at the time of the risk assessment."
 395 According
to Japan, a risk assessment should be evaluated solely against the evidence available at the time of the
risk assessment, such that a Member that fulfils the requirement of a risk assessment when adopting a
measure is not held to have acted inconsistently with Article 5.1 upon the discovery of subsequently-
published scientific evidence.
 396
211. During the oral hearing, we invited Japan to identify what evidence, arising subsequent to the
1999 PRA, had been relied upon by the Panel in evaluating Japan's risk assessment under Article 5.1.
Japan was unable to point to any such evidence. We also asked the participants what the legal

391Panel Report, para. 8.284, quoting 1999 PRA, § 3-1. Japan confirmed, in response to questioning at
the oral hearing, that the 1999 PRA considered no phytosanitary measure other than the one in place.
392Panel Report, para. 8.288.
393Ibid.
394Ibid., para. 8.289. (footnotes omitted)
395Japan's appellant's submission, para. 135. (original italics)
396Ibid., para. 135.

consequence would be for the Panel's finding under Article 5.1 if we found, as Japan requests, that the
Panel was not permitted to examine evidence post-dating the 1999 PRA. The United States suggested
that there would be no consequence for this dispute because the risk assessment was "inadequate" at
the time it was completed.
 397 Nor did Japan identify any consequence of such a finding on our part.
212. The Panel concluded that Japan's measure could not be "based on" a risk assessment, as
required by Article 5.1, because the 1999 PRA did not satisfy the definition of "risk assessment" set
out in paragraph 4 of Annex A to the SPS Agreement.
 398 The Panel determined that the definition of
"risk assessment" was not satisfied because the 1999 PR A failed to meet the two elements discussed
above, namely, that a risk assessment (i) "evaluate the likelihood of entry, establishment or spread of "
the plant disease at issue, and (ii) conduct such evaluation "according to the SPS measures which
might be applied".
 399
213. As we see it, Japan was unable to identify any scientific evidence relied upon by the Panel,
but published after the issuance of the 1999 risk assessment, because the Panel did not, in fact, base its
finding on such evidence. The Panel's analysis focused almost exclusively on the risk assessment
itself to determine whether the 1999 PRA satisfied the legal requirements the Panel found in the
SPS Agreement. The Panel identified those requirements as the need to assess a risk with a certain
degree of "specificity", to evaluate probability rather than possibilities, and to evaluate the likelihood
of entry "according to the sanitary or phytosanitary measures which might be applied".
 400 Beyond the
text of the 1999 PRA, the only scientific information relied upon by the Panel relates to its finding on
"specificity": on this point, the Panel determined that "scientific evidence submitted by both parties
leaves no doubt that the risk of introduction and spread of the disease varies considerably according to
the host plant".
 401 From this finding of fact, the Panel concluded that Japan's risk assessment was not
"sufficiently specific to the matter at issue" because it did not examine the risk in relation to apple
fruit in particular.
 402
214. In stating that its finding of fact was based on "scientific evidence submitted by both parties",
the Panel did not cite those studies or provide any indication of whether those studies dated from
before or after Japan's risk assessment. Japan does not assert that this scientific evidence, or any other
scientific evidence underlying the Panel's conclusion with respect to Article 5.1, was not available to

397The United States' response to questioning at the oral hearing.
398Panel Report, paras. 8.290-8.291.
399Ibid., paras. 8.280, 8.285, and 8.288.
400See, for example, ibid., paras. 8.268, 8.270-8.271, 8.274-8.278, 8.284, and 8.287-8.288.
401Ibid., para. 8.271.
402Ibid.

Japan at the time of the risk assessment. We also note that the Panel record includes relevant
scientific evidence adduced by both parties that arose before Japan's risk assessment. 403 S u c h
evidence could have reasonably formed the basis for the Panel's conclusion that the risk from fire
blight varies according to the host plant. Under these circumstances, we are not persuaded that, when
analyzing the conformity of the 1999 PRA with Japan's obligations under Article 5.1, the Panel relied
on scientific evidence that was not available to Japan at the time it conducted its risk assessment.
215. As Japan failed to establish that the Panel utilized subsequent scientific evidence in evaluating
the risk assessment at issue, it is not necessary for us to express views on the question whether the
conformity of a risk assessment with Article 5.1 should be evaluated solely against the scientific
evidence available at the time of the risk assessment, to the exclusion of subsequent information.
Resolution of such hypothetical claims would not serve "to secure a positive solution" to this
dispute.
 404
216. Accordingly, we uphold the Panel's finding, in paragraph 8.290 of the Panel Report, that
Japan's 1999 Pest Risk Analysis does not satisfy the definition of "risk assessment" set out in
paragraph 4 of Annex A to the SPS Agreement because it (i) fails to "evaluate the likelihood of entry,
establishment or spread of " the plant disease at issue, and (ii) fails to conduct such an evaluation
"according to the SPS measures which might be applied". Furthermore, as the 1999 PRA is not a
"risk assessment" within the meaning of the SPS Agreement, it follows, as the Panel found, in
paragraphs 8.291 and 9.1(c) of the Panel Report, that Japan's phytosanitary measure at issue is not
"based on" a risk assessment, as required by Article 5.1 of the SPS Agreement.
X. Article 11 of the DSU
217. Japan raises two challenges under Article 11 of the DSU related to the Panel's fact-finding:
one relates to the Panel's analysis under Article 2.2 of the SPS Agreement, and the other relates to the
Panel's analysis under Article 5.1 of that Agreement. In Section IV of this Report, we found that the
Article 11 challenge relating to the Panel's analysis under Article 5.1 was not sufficiently identified in

403See, for example, R.G. Roberts et al ., "The potential for spread of Erwinia amylovora and fire
blight via commercial apple fruit; a critical review and risk assessment", Crop Protection (1998), Vol. 17, No. 1,
pp. 19-28, at p. 24; Exhibit JPN-5, submitted by Japan to the Panel and Exhibit USA-4, submitted by the United
States to the Panel; T. van der Zwet et al., "Population of Erwinia amylovora on External and Internal Apple
Fruit Tissues", Plant Disease (1990), Vol. 74, No. 9, pp. 711-716, at p. 711; Exhibit JPN-7, submitted by Japan
to the Panel; and S.V. Thomson, "Fire blight of apple and pear", Diseases of Fruit Crops (J. Kumar et al .,
eds.), Vol. 3, pp. 32-65, § 2-1 at p. 32 and § 2-9-2 at p. 49; Exhibit USA-44, submitted by the United States to
the Panel.
404Article 3.7 of the DSU.

Japan's Notice of Appeal to place the United States on notice thereof. 405 We found that the challenge
relating to Article 5.1 was not properly before us, and we therefore declined to rule on it. We thus
examine below only Japan's challenge to the Panel's fact-finding under Article 2.2 of the
SPS Agreement.
218. With respect to Article 2.2 of the SPS Agreement, Japan challenges the Panel's analysis of
the likelihood that the pathway of transmission for fire blight from apple fruit to other plants would be
completed. In particular, Japan contests the Panel's finding that "it has not been established with
sufficient scientific evidence that the last stage of the pathway (i.e. the transmission of fire blight to a
host plant) would likely be completed."
 406 The Panel made this finding of fact on the last stage of the
pathway with respect to apple fruit, which includes mature, symptomless apples as well as apples that
are not mature and symptomless. According to Japan, the Panel, in its analysis, made certain errors
when evaluating the relevant scientific evidence, each of which constitutes a failure on the part of the
Panel to "make an objective assessment of the facts of the case" under Article 11 of the DSU. The
errors alleged by Japan are the following:
(i) that the Panel made a "material" factual error in its characterization of the
experimental evidence underlying the Panel's conclusion that fire blight was not likely
to be transmitted to other plants
 407;
(ii) that the Panel arrived at a conclusion that covered infected apple fruit, when the
evidence before it "centered around" mature, symptomless apple fruit 408;
(iii) that the Panel failed to take into account the "precautionary principle", or the caution
emphasized by the Panel's experts, in arriving at its conclusion on the likelihood of
completion of the pathway 409; and
(iv) that the Panel's conclusion on the likelihood of completion of the pathway is
inconsistent with the Panel's recognition that the risk identified by the experts was not
merely a "theoretical risk".
 410

405See supra, paras. 127-128.
406Panel Report, para. 8.168.
407Japan's appellant's submission, paras. 52-54.
408Ibid., para. 51.
409Ibid., paras. 64-70.
410Ibid., paras. 60-63.

219. The United States disagrees with Japan's Article 11 challenge to the extent that it applies to
mature, symptomless apples, and contends that the Panel had no authority to make findings on apple
fruit other than mature, symptomless apples. The United States argues that Japan essentially
challenges the Panel's characterization and weighing of the evidence, effectively seeking to compel a
Panel finding on completion of the pathway where the record contains no evidence to support such a
finding. In the light of the "high standard" that must be met to succeed on a claim under Article 11,
the United States submits that Japan's claim should be rejected with respect to mature, symptomless
apples.
 411
220. We begin by noting that Article 11 of the DSU requires that a panel, inter alia:
… 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, and make such
other findings as will assist the DSB in making the recommendations
or in giving the rulings provided for in the covered agreements.
221. In the first appeal presenting an Article 11 challenge to a Panel's fact-finding 412,
EC – Hormones, the Appellate Body identified the "duty to make an objective assessment of the facts
[as], among other things, an obligation to consider the evidence presented to a panel and to make
factual findings on the basis of that evidence." 413 In EC – Hormones, the Appellate Body observed
further that the:
[d]etermination of the credibility and weight properly to be ascribed
to (that is, the appreciation of) a given piece of evidence is part and
parcel of the fact finding process and is, in principle, left to the
discretion of a panel as the trier of facts. 414
Since EC – Hormones , the Appellate Body has consistently emphasized that, within the bounds of
their obligation under Article 11 to make an objective assessment of the facts of the case, panels enjoy

412Prior to EC – Hormones, an Article 11 claim was raised on appeal in US – Wool Shirts and Blouses,
but that claim addressed solely "whether Article 11 of the DSU entitles a complaining party to a finding on each
of the legal claims it makes to a panel". (Appellate Body Report, p. 17, DSR 1997:I, 323, at 338) As such, the
claim did not challenge the panel's "assessment of the facts of the case". In addition, in Canada – Periodicals,
the appellant raised Article 11 when challenging the panel's reliance on a "hypothetical example" to make a
determination of "like products" under Article III:2 of the GATT 1994. (Appellate Body Report, p. 5, DSR
1997:I, 449, at 452) The Appellate Body, however, made no ruling as to Article 11. ( Ibid., pp. 20-23, DSR
1997:I, 449, at 465-468)
413Appellate Body Report, para. 133.
414Ibid., para. 132.

a "margin of discretion" as triers of fact. 415 Panels are thus "not required to accord to factual evidence
of the parties the same meaning and weight as do the parties" 416 and may properly "determine that
certain elements of evidence should be accorded more weight than other elements". 417
222. Consistent with this margin of discretion, the Appellate Body has recognized that "not every
error in the appreciation of the evidence (although it may give rise to a question of law) may be
characterized as a failure to make an objective assessment of the facts." 418 When addressing claims
under Article 11 of the DSU, the Appellate Body does not "second-guess the Panel in appreciating
either the evidentiary value of … studies or the consequences, if any, of alleged defects in [the
evidence]".
 419 Indeed:
[i]n assessing the panel's appreciation of the evidence, we cannot
base a finding of inconsistency under Article 11 simply on the
conclusion that we might have reached a different factual finding
from the one the panel reached. Rather, we must be satisfied that the
panel has exceeded the bounds of its discretion, as the trier of facts,
in its appreciation of the evidence.
 420
Where parties challenging a panel's fact-finding under Article 11 have failed to establish that a panel
exceeded the bounds of its discretion as the trier of facts, the Appellate Body has not "interfere[d]"
with the findings of the panel. 421

415Appellate Body Report, EC – Asbestos , para. 161. See also, for example, Appellate Body Report,
EC – Tube or Pipe Fittings, para. 125; Appellate Body Report, EC – Bed Linen (Article 21.5 – India), paras. 170,
177, and 181; Appellate Body Report, EC – Sardines , para. 299; Appellate Body Report, Korea – Alcoholic
Beverages, paras. 161-162; Appellate Body Report, Japan – Agricultural Products II , paras. 141-142; Appellate
Body Report, US – Wheat Gluten , para. 151; Appellate Body Report, Australia – Salmon , para. 266; and
Appellate Body Report, Korea – Dairy, para. 138.
419Appellate Body Report, EC – Asbestos , para. 177, quoting Appellate Body Report, Korea –
Alcoholic Beverages, para. 161.
420Appellate Body Report, EC – Asbestos , para. 159, quoting Appellate Body Report, US – Wheat
Gluten, para. 151.
421Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , para. 170; Appellate Body Report,
US – Carbon Steel, para. 142, quoting Appellate Body Report, US – Wheat Gluten, para. 151.

A. The Panel's Characterization of Experimental Evidence
223. Japan first challenges a "factual error" in one of the statements offered as support for the
Panel's finding on the completion of the last stage of the pathway for apple fruit. 422 Japan points to
the following statement of the Panel:
We note that experiments trying to reproduce the conditions
applicable to discarded apples have not led to any visible
contamination, even when ooze was reported to exist. 423 (footnote
omitted)
According to Japan, the experiments referred to by the Panel used inoculated apples, not naturally
infected apples. Japan advances that ooze has not been reported in inoculated apples. 424 In Japan's
submission, therefore, the above statement is an erroneous characterization of the underlying
scientific studies.
 425
224. We observe that the Panel made this statement in support of its finding of fact that it has not
been established with sufficient scientific evidence that the last stage of the pathway (that is, the
transmission of fire blight from imported apples to a host plant) would likely be completed.
 426 The
Panel also formulated this finding of fact in these terms:
[A]ssuming that [a situation of infected apples or infested apples]
would arise, the entry, establishment or spread of the disease as a
result of the presence of these bacteria in or on apple fruit would
require the completion of an additional sequence of events which is
deemed unlikely, and which has not even been experimentally
established to date.
 427
In addition to the studies cited by the Panel, the characterization of which Japan contests, the Panel
referenced the following evidence to substantiate th is finding of fact: (i) the "number of cumulative
conditions" identified by the experts for a successful completion of the pathway 428; (ii) the
observation by the experts that contamination by birds had not been established 429; (iii) to the extent
that the experts found "short distance communication" to be possible through rain or bees, this finding

423Panel Report, para. 8.166.
425Ibid.
426Panel Report, para. 8.168.
427Ibid., para. 8.171(d).
428Ibid., para. 8.166, quoting ibid., paras. 6.70 (Dr. Hayward) and 6.71 (Dr. Smith).
429Ibid., para. 8.166, citing paras. 241 (Dr. Smith) and 263 (Dr. Geider) of Annex 3 thereto.

"related to contamination at the flowering stage, not to contamination from apple fruit" 430; and
(iv) "[t]he evidence submitted by Japan was essentially circumstantial or deemed unconvincing by the
experts."
 431 In the light of the other factual material relied upon by the Panel, including its express
consideration and discounting of scientific evidence submitted by Japan, we cannot find that the Panel
has exceeded its "margin of discretion" 432 in evaluating the relevant evidence before it, to call into
question the Panel's finding in relation to the last stage of the pathway. Accordingly, Japan has failed
to establish that the Panel did not satisfy the obligations of Article 11 so as to justify our interference
with a panel's finding of fact.
B. Evidence "Centered Around" Mature, Symptomless Apple Fruit
225. We turn now to the next aspect of Japan's claim under Article 11 of the DSU—that the Panel
acted inconsistently with its obligations thereunder in making findings that covered the completion of
the pathway for transmission of fire blight by "infected" apple fruit, because the evidence before the
Panel "centered around" the pathway with respect to mature, symptomless fruit.
 433 In other words,
Japan submits that there is a lack of connection between the evidence considered by the Panel and its
findings on the completion of the last stage of the pathway for transmission of fire blight.
226. As we have just observed, the Panel found that the additional sequence of steps required for
completion of the pathway from apple fruit to ot her host plants would be unlikely to occur.
 434 The
finding of the Panel covered both the pathway for mature, symptomless apples and that for apples
other than mature, symptomless apple fruit. In our view, the Panel did not err in making this finding.
However, the Panel's reasoning was perhaps not sufficiently explicit, with the result that Japan
deduced that the Panel had failed to make an objective assessment of the facts before it on completion
of the last stage of the pathway.
227. Specifically, it might have been helpful had the Panel been more precise about the scope of its
factual analysis. We recall that the Panel made the following findings: (i) infection of mature,
symptomless apples has not been established; (ii) the presence of endophytic bacteria in mature,
symptomless apples is not generally established; (iii) the presence of epiphytic bacteria in mature,
symptomless apples is not excluded, but is considered to be extremely rare; and (iv) infection or

430Panel Report, para. 8.166.
431Ibid., para. 8.167.
432Appellate Body Report, EC – Sardines , para. 299, quoting Appellate Body Report, EC – Asbestos ,
para. 161.

infestation of apples other than mature, symptomless apple fruit is not contested. 435 These findings
imply that the factual analysis as regards the comple tion of the last stage of the pathway with respect
to mature, symptomless apples does not need to include the hypothesis of the importation of infected
apples to Japan, as, according to the Panel, "infection of mature, symptomless apples has not been
established".
 436 By contrast, the factual analysis concerning the completion of the last stage of the
pathway with respect to apples other than mature, symptomless apple fruit, is required to address the
hypothesis of the importation of infected apples to Japan, as, in the view of the Panel, infection of
immature apple fruit is not contested.
228. The Panel could also have been more precise about the respective responsibilities of the
parties for providing proof of a fact. In connection with the prima facie case it had to establish, the
United States made allegations of fact that the last stage of the pathway would not be completed as
regards mature, symptomless apples.
 437 The United States was responsible for proving these
allegations of fact by reason of the principle set out in US – Wool Shirts and Blouses that the party
"who asserts a fact … is responsible for providing proof thereof." 438 For its part, Japan, in the context
of its attempts to counter the case put forward by the United States, made allegations of fact relating
to the completion of the last stage of the pathway with respect to infected apples.
 439 Given the Panel's
finding of fact that it is unlikely that mature, symptomless apples would be infected, it can be
reasonably assumed that any infected apples exported to Japan would be apples other than mature,
symptomless apple fruit. Under the principle set out in US – Wool Shirts and Blouses, it was thus for
Japan, and not the United States, to provide proof of these allegations of fact relating to infected
apples.
229. Having said that the Panel could have been clearer on these two aspects of its reasoning, we
nevertheless disagree with Japan that the Panel acted inconsistently with its obligations under
Article 11 of the DSU in making a finding that covered the completion of the pathway for
transmission of fire blight by "infected" apple fruit, even though the evidence before the Panel
"centered around" the pathway with respect to mature, symptomless apple fruit.

435Panel Report, para 8.171.
436Ibid., para 8.171(a).
437See, for example, Panel Report, paras. 4.82(d) and 4.83.
438Appellate Body Report, p. 14, DSR 1997:I, 323, at 335.

230. The Panel agreed with the United States that, as regards mature, symptomless apples, the
completion of the last stage of the transmission of fire blight is unlikely. 440 The Panel referred to
various pieces of evidence in support of this conclusion. 441 The evidence identified focused on
mature, symptomless apples and, therefore, supported the finding that completion of the last stage of
the transmission of fire blight was unlikely, to the extent that this finding concerns mature,
symptomless apples.
231. As regards apples other than mature, symptomless apple fruit, the Panel assumed, correctly,
that Japan had the responsibility of providing proof of its allegations of fact, namely that fire blight
could be transmitted from an infected apple to a host plant. We understand the Panel to have dealt
with these allegations of fact from Japan when it said that "[t]he evidence submitted by Japan was
essentially circumstantial or deemed unconvincing by the experts", and that "Japan did not submit
sufficient scientific evidence in support of its allegation that the last step of the pathway had been
completed or was likely to be completed."
 442 We understand the Panel's conclusions to cover infected
apples, as Japan made allegations of fact and brought evidence on such apples. 443 Accordingly, we
see no lack of connection between the overall evidence that the Panel considered and the findings it
made with respect to the last stage of the pathway for transmission of fire blight. Therefore, we are of
the view that the Panel did not act inconsistently with its obligations under Article 11 of the DSU.
C. Experts' Statements of Caution
232. Japan's third challenge under Article 11 of the DSU is premised on the Panel's alleged failure
to take into account adequately the "precautionary principle". Japan bases this challenge on the fact
that the Panel did not take into account "the need of caution emphasized by the experts" with respect
to the phytosanitary measure aimed at preventing the entry of fire blight into Japan.
 444 Based on what
Japan understands to be the experts' recognition that the risk of harm from the introduction of fire
blight results in a "general need [for] prudence", Japan argues that the Panel "should have recognized
the risk of completion of the pathway from infected apple fruit."
 445
233. In EC – Hormones, the Appellate Body noted that the "precautionary principle" had not yet
attained "authoritative formulation" outside the field of international environmental law 446, but that it

440Panel Report, para. 8.171.
441Ibid., para. 8.166.
442Ibid., para. 8.167.
443Ibid., para. 4.84.
444Japan's appellant's submission, paras. 64 and 70.
445Ibid., paras. 68-69.
446Appellate Body Report, para. 123.

remained relevant in the context of the SPS Agreement, particularly as recognized in certain
provisions of that Agreement. 447 However, the Appellate Body found that the "precautionary
principle" did not release Members from their WTO obligations and, as such, did not "override the
provisions of Articles 5.1 and 5.2 of the SPS Agreement."
 448
234. Japan does not argue that the Panel should have applied the "precautionary principle" as a
principle separate and distinct from the provisions of the SPS Agreement. Nor does Japan argue that
the "precautionary principle" should have been employed by the Panel as part of its interpretive
analysis of the requirements of the SPS Agreement. Rather, we understand Japan to contend that the
"precautionary principle" was embodied in the opinions of the experts cautioning against elimination
of phytosanitary measures protecting Japan from fire blight; and that, accordingly, such caution
"should have been given greater weight in the conclusion of the Panel on completion of the
pathway."
 449 Japan's argument, therefore, is aimed solely at the Panel's consideration of the evidence
before it.
235. As an initial matter, we note that Japan relies primarily on statements from two experts and on
the fact that the other experts did not object to these views. 450 The first expert cited by Japan
observed that:
… when the phytosanitary system is changed it should be changed
under circumstances that retain some degree of control on what is
happening and not in a single step that removes control
altogether. 451 (emphasis added)
The second expert cited by Japan observed as follows:
[A] decision to remove most restrictions for importation of apples
from fire blight countries should consider that the Japanese apple
production is highly sophisticated following a demand for high
quality apples. Import of any grade of apple quality to Japan such as
low quality at a cheap price could undermine the control of disease
problems regardless to the low risk to distribute fire blight with
apples.
 452 (emphasis added)

447Appellate Body Report, para. 124.
448Ibid., para. 125.
450Ibid., paras. 67-68.
452Japan's appellant's submission, para . 67, quoting Dr. Geider's written response to questions posed by
the Panel, 10 December 2002, p. 8. See also, Panel Report, para. 6.175.

236. The concerns articulated by these experts thus address the consequences associated with
eliminating all or most controls over imports, combined with the importation of poor-grade apples.
These concerns do not speak about whether the pathway for transmission of fire blight could be
completed. Indeed, the same experts cited by Japan as promoting a cautious approach 453,
Dr. Ian Smith and Dr. Klaus Geider, also expressed the opinion before the Panel that the completion
of the pathway was unlikely. 454 It is therefore difficult to see how the Panel's conclusion that
completion of the last stage of the pathway for apple fruit (whether "mature, symptomless" or
otherwise) would be unlikely, is necessarily inconsistent with or undermined by the caution expressed
by the experts.
237. Furthermore, the Panel itself made reference to the experts' note of caution:
[W]e note that even if the scientific evidence before us demonstrates
that apple fruit is highly unlikely to be a pathway for entry,
establishment and spread of fire blight within Japan, it does
suggest that some slight risk of contamination cannot be totally
excluded. … [N]one of the experts were comfortable with the
notion of eliminating "in one step" all phytosanitary controls, taking
into account Japan's island environment and climate.
 455 (footnote
omitted)
As such, contrary to Japan's assertion, the Panel did explicitly "tak[e] into account" 456 the experts'
cautionary statements, but understood properly that those statements focused on an issue different
from the likelihood of completion of the last stage of the pathway for transmission of fire blight from
apple fruit. Accordingly, the Panel did not err in refusing to "recognize[] the risk of completion of the
pathway from infected apple fruit"
 457 on the basis of the experts' statements of caution.
238. In any event, we note that Japan essentially disagrees with the Panel's appreciation of the
evidence, and in particular, its appreciation of the experts' expressions of caution. As Japan states in
its appellant's submission, "[t]he impact of these expressions of scientific caution, clearly on the
record, should have been given greater weight in the conclusion of the Panel on completion of the
pathway."
 458 In EC – Sardines and in EC – Hormones, the Appellate Body said that:

454Panel Report, para. 6.71, and paras. 241 (Dr. Smith) and 263 (Dr. Geider) of Annex 3 thereto.
455Ibid., para. 8.173, citing paras. 386, 389, 409, 411, 413-414, 419, 423-424, 426, and 429 of Annex 3
thereto.
457Ibid., para. 69.
458Ibid. (emphasis added; footnote omitted)

[d]etermination of the credibility and weight properly to be ascribed
to (that is, the appreciation of) a given piece of evidence is part and
parcel of the fact finding process and is, in principle, left to the
discretion of a panel as the trier of facts. 459
Although a panel's discretion is necessarily circumscribed by its duty to render an objective
assessment of the facts of the case, Japan has proffered no argument challenging the objectivity of the
Panel's assessment. Therefore, in our view, even if the Panel did not give as much weight as Japan
would have liked to the experts' statements of caution with respect to modifications to Japan's
phytosanitary measure, Japan has failed to establish that, in doing so, the Panel exceeded the bounds
of its discretion as the trier of facts.
D. Completion of the Pathway and "Theoretical Risk"
239. Japan's final Article 11 claim alleges an inconsistency in the Panel's fact-finding that renders
its analysis of the pathway for transmission of fire blight through apple fruit inconsistent with its
obligation to make an "objective assessment of the facts of the case". The Panel noted that "none of
the experts were comfortable with the notion of eliminating 'in one step' all phytosanitary controls,
taking into account Japan's island environment and climate."
 460 The United States had argued that the
experts' prudence in this regard amounted to a "theoretical risk", which, as the Appellate Body
observed in EC – Hormones , was not intended to be the subject of a risk assessment under the
SPS Agreement. 461 The Panel disagreed with the United States, saying:
We do not agree with the United States that the scientific prudence
displayed by the experts should be completely assimilated to a
"theoretical risk" within the meaning given to that terms by the
Appellate Body in EC – Hormones. On the other hand, we can only
note that Japan did not submit "sufficient scientific evidence" in
support of its allegation that the pathway could be completed. 462
Japan contends that the Panel's rejection of the United States' argument that the experts' prudence
constituted a " 'theoretical risk' implies that the risk from infected apple fruit is real, and that the

459Appellate Body Report, EC – Sardines , para. 300; Appellate Body Report, EC – Hormones ,
para. 132.
413-414, 423-424, 426 and 429 thereof.
461Ibid., para. 8.175.
462Ibid.

entire pathway could be completed". 463 As such, in Japan's view, this implicit finding is incompatible
with the Panel's ultimate finding that the pathway from apple fruit was unlikely to be completed. 464
240. The Panel made the finding of fact that "scientific evidence suggests a negligible risk of
possible transmission of fire blight through apple fruit." 465 On the basis of this finding of fact, the
Panel concluded that the measure is "clearly disproportionate to the risk identified" 466 and,
consequently, that the measure is maintained without sufficient scientific evidence. The conclusion of
the Panel that the measure is maintained without sufficient scientific evidence rests on the finding of
fact of "a negligible risk of possible transmission of fire blight through apple fruit"
 467; it has no
relation to the Panel's rejection of the United States' argument that the experts' prudence constituted a
"theoretical risk".
241. The comments of the Panel in response to the argument of the United States on "theoretical
risk" should be viewed in their appropriate context. In EC – Hormones, the Appellate Body referred
to the notion of "theoretical uncertainty" in the context of Article 5.1 of the SPS Agreement. The
Appellate Body indicated that Article 5.1 does not address theoretical uncertainty, that is to say,
"uncertainty that theoretically always remains since science can never provide absolute certainty
that a given substance will not ever have adverse health effects."
 468 We understand that the
"scientific prudence" displayed by the experts in this case related to the risks that might arise from
radical changes in Japan's current system of phytosanitary controls, taking into account Japan's island
environment and climate.
 469 The scientific prudence displayed by the experts did not relate to the
"theoretical uncertainty" that is inherent in the scientific method and which stems from the intrinsic
limits of experiments, methodologies, or instruments deployed by scientists to explain a given
phenomenon. Therefore, we agree with the Panel that the scientific prudence displayed by the experts
should not be "completely assimilated" to the "theoretical uncertainty" that the Appellate Body
discussed in EC – Hormones as being beyond the purview of risks to be addressed by measures
subject to the SPS Agreement. Nevertheless, contrary to Japan's understanding, that scientific

463Japan's appellant's submission, para. 61 (original italics), quoting Panel Report, para. 8.175.
464Japan's appellant's submission, paras. 60-61.
465Panel Report, para. 8.169.
466Ibid., para. 8.198.
467Ibid., para. 8.169.
468Appellate Body Report, EC – Hormones, para. 186. (original italics)
469We find support for this understanding of "scientific prudence" in the Panel's references to the
experts' views on the removal of controls, which references immediately precede the Panel's finding that the
experts' "scientific prudence" could not be "completely assimilated" to a "theoretical risk". (See Panel Report,
paras. 8.173-8.174) These statements of the experts, therefore, are the same as those emphasized by Japan in
our earlier discussion as statements of caution that should have been given greater weight in the Panel's analysis.
(See supra, paras. 235-236)

prudence does not undermine the finding of negligibility of the risk of possible transmission of fire
blight through apple fruit: indeed, the experts' scientific prudence is related to a different question,
namely, the hypothetical scenario of future changes in Japan's regulatory environment.
 470
Accordingly, we disagree with Japan that the Panel's rejection of the United States' argument on
" 'theoretical risk' implies that the risk from infected apple fruit is real, and that the entire pathway
could be completed". 471 In our view, the Panel, in rejecting the United States' argument on
"theoretical risk", while at the same time finding that the risk of transmission of fire blight through
apple fruit is "negligible"
 472, did not act inconsistently with Article 11 of the DSU.
242. We therefore find that the Panel did not act inconsistently with Article 11 of the DSU, with
respect to its analysis of the United States' claim under Article 2.2 of the SPS Agreement.
XI. Findings and Conclusions
243. For the reasons set out in this Report, the Appellate Body:
(a) finds that the Panel had the "authority" to make findings and draw conclusions with
respect to all apple fruit from the United States, including immature apples;
(b) upholds the Panel's findings, in paragraphs 8.199 and 9.1(a) of the Panel Report, that
Japan's phytosanitary measure at issue is maintained "without sufficient scientific
evidence" within the meaning of Article 2.2 of the SPS Agreement;
(c) upholds the Panel's findings, in paragraphs 8.222 and 9.1(b) of the Panel Report, that
Japan's phytosanitary measure at issue was not imposed in respect of a situation
"where relevant scientific evidence is insu fficient", and, therefore, that it is not a
provisional measure justified under Article 5.7 of the SPS Agreement;
(d) upholds the Panel's findings, in paragraphs 8.271, 8.285, and 8.290 of the Panel
Report, that Japan's 1999 Pest Risk Analysis does not satisfy the definition of "risk
assessment" set out in paragraph 4 of Annex A to the SPS Agreement because it
(i) fails to "evaluate the likelihood of entry, establishment or spread of " the plant
disease at issue, and (ii) fails to conduct such an evaluation "according to the SPS

470We express no view on the changes to Japan's phytosanitary measure that might be required to bring
it into conformity with Japan's WTO obligations, nor do we speak to any other issue related to the means of
implementation of the possible rulings and recommendations of the DSB in this dispute.
471Japan's appellant's submission, para. 61. (original italics)
472Panel Report, para. 8.169.

measures which might be applied". Consequently, the Appellate Body upholds the
Panel's findings, in paragraphs 8.291 and 9.1(c) of the Panel Report, that Japan's
phytosanitary measure at issue is not "based on" a risk assessment, as required by
Article 5.1 of the SPS Agreement;
(e) finds that the Panel did not act inconsistently with Article 11 of the DSU, with respect
to its analysis of the United States' claim under Article 2.2 of the SPS Agreement;
and
(f) finds that the issue of the Panel's compliance with Article 11 of the DSU, with respect
to its analysis of the United States' claim under Article 5.1 of the SPS Agreement,
was not raised by Japan in its Notice of Appeal and therefore is not properly before
the Appellate Body in this appeal. Consequently, the Appellate Body does not rule on
this issue.
244. The Appellate Body therefore recommends that the Dispute Settlement Body request Japan to
bring its measure, found in this Report, and in the Panel Report as upheld by this Report, to be
inconsistent with its obligations under the SPS Agreement, into conformity with that Agreement.

Signed in the original at Geneva this 12th day of November 2003 by:
John Lockhart
Presiding Member
_________________________ _________________________
Luiz Olavo Baptista Giorgio Sacerdoti
Member Member

ANNEX A

28 August 2003
(03-4543)
Original: English
JAPAN – MEASURES AFFECTING THE IMPORTATION OF APPLES
Notification of an Appeal by Japan
under paragraph 4 of Article 16 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU)
The following notification, dated 28 August 2003, sent by Japan to the Dispute Settlement
Body (the "DSB"), is circulated to Members. This notification also constitutes the Notice of Appeal,
filed on the same day with the Appellate Body, pursuant to the Working Procedures for Appellate
Review.
Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review, Japan
hereby notifies its decision to appeal to the Appellate Body certain issues of law covered in the Panel
Report on Japan-Measures Affecting the Impor tation of Apples (WT/DS245/R, dated 15 th July 2003)
and certain legal interpretations developed by the Panel.
Japan seeks review by the Appellate Body of the conclusions of the Panel that Japan’s
phytosanitary measure on the United States apples is inconsistent with the Agreement on the
Application of Sanitary and Phytosanitary Measures ("SPS Agreement"). These findings are in error,
and are based on erroneous findings on issues of law and related legal interpretations. The Appeal
relates to the following issues:
1. The Panel erred in law in finding that Japan acted inconsistently with its
obligations under Article 2.2 of the SPS Agreement. This finding reflects the Panel’s
erroneous interpretation of the rule of burden of proof, and the Panel’s failure to make
an objective assessment of the matter before it under Article 11 of the DSU.
2. The Panel erred in law in finding that Japan’s phytosanitary measure was
inconsistent with the requirements under Article 5.7 of the SPS Agreement. This
finding is based on an erroneous interpretation of the requirements under Article 5.7.
3. The Panel erred in law in finding that Japan’s phytosanitary measure was not
based on a risk assessment within the meaning of Article 5.1 of the SPS Agreement.
This finding is based on an erroneous interpretation of the requirements of a risk
assessment under Article 5.1.