AUSTRALIA – MEASURES AFFECTING IMPORTATION OF SALMON
Document: Notification of an Appeal by Australia under paragraph 4 of Article 16 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU)
Date: 22 July 1998
Document codes: WT/DS18/5
Complainant: Canada
Respondent: Australia
Third parties: EU, India, Norway, U.S.
Dispute stage: Implementation & Compliance
Agreements cited: Art. 2, 3, 5  Sanitary and Phytosanitary Measures (SPS)Art. XI, XIII  GATT 1994

AUSTRALIA – MEASURES AFFECTING IMPORTATION OF SALMON
Notification of an Appeal by Australia under
paragraph 4 of Article 16 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU)
The following notification, dated 22 July 1998, sent by Australia to the Dispute Settlement
Body (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 paragraph 4 of Article 16 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes (DSU) and Ru le 20 of the Working Procedures for Appellate
Review, Australia hereby notifies its decision to appeal to the Appellate Body certain findings and the
conclusions of the Panel on ().
Australia requests that the Appellate Body review the following errors of law made by the
Panel:
1. The Panel failed to accord Australia due process and failed to properly interpret its terms of
reference in relation to identification of the measure at issue.
2. The Panel exceeded its terms of reference by extending the coverage of the dispute to
products and to sanitary measures for other than fresh chilled or frozen salmon.
3. The Panel exceeded its terms of reference by extending the scope of its examination of
Article 5 of the SPS Agreement to include Article 6 of that Agreement.
4. The Panel erred in its allocation and application of the burden of proof under Articles 2 and 5
of the SPS Agreement.
5. The Panel failed to make an objective as sessment of the matter before it and apply the
appropriate standard of review under Article 11 of the DSU and the provisions of the SPS
Agreement in regard to the ascertainment and a pplication of facts and in regard to the legal
characterization of the matters in dispute; in failing to accord due deference to Australia's
evidence in regard to the relevant facts and circumstances in the context of the matters in
dispute; and in undertaking a de novo examination of the matters before it.
6. The Panel failed to accord due process to Aust ralia in regard to the right to make a formal
written submission in an appropriate period of time in rebuttal to the substantial new matters
raised by Canada, and in determining that written comment made by Australia on due process
matters had the status of a formal written rebuttal submission.

7. The Panel failed to accord due process to Australia by not applying the appropriate procedural
standards concerning submission and acceptance of evidence.
8. The Panel erred in law in finding that Australia had acted inconsistently with the requirements
of Article 5.1 of the SPS Agreement and by association SPS Article 2.2, in particular, with
regard to:
(i) application of its terms of reference;
(ii) failure to interpret and apply the provisions of Article 5.1 in accordance with the
customary rules of interpretation of public international law as provided by Article
3.2 of the DSU;
(iii) application of the burden of proof for establishing a prima facie case; and
(iv) failure to make an objective assessment of the matter before it and apply the
appropriate standard of review in accordance with Article 11 of the DSU and the
provisions of the SPS Agreement.
9. The Panel erred in law in finding that Australia had acted inconsistently with the requirements
of Article 5.5 of the SPS Agreement and by association Article 2.3, in regard to:
(i) application of its terms of reference;
(ii) the way in which the Panel applied the test s for determining the existence of arbitrary
or unjustifiable distinctions in levels of protection in different situations and in
determining that these distinctions resulted in discrimination or a disguised restriction
on trade;
(iii) failure to interpret and apply the provisions of Article 5.5 in accordance with
customary rules of interpretation of public international law as provided by Article
3.2 of the DSU;
(iv) application of the burden of proof for establishing a prima facie case; and
(v) failure to make an objective assessment of the matter before it and apply the
appropriate standard of review in accordance with Article 11 of the DSU and the
provisions of the SPS Agreement.
10. The Panel erred in law in finding that Australia had acted inconsistently with the requirements
of Article 5.6 of the SPS Agreement in regard to:
(i) application of its terms of reference;
(ii) the way in which the Panel applied the test s for identifying the existence of less trade
restrictive alternative measures;
(iii) failure to interpret and apply the provisions of Article 5.6 in accordance with
customary rules of interpretation of public international law as provided by Article
3.2 of the DSU;
(iv) application of the burden of proof for establishing a prima facie case; and

(v) failure to make an objective assessment of the matter before it and apply the
appropriate standard of review in accordance with Article 11 of the DSU and the
provisions of the SPS Agreement.