JAPAN - MEASURES AFFECTING THE IMPORTATION OF APPLES
Document: Appellate Body report
Date: 2 July 2004
Document codes: WT/DS245/10
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

Confirmed Procedures between Japan and the United States
under Articles 21 and 22 of the DSU

 The following communication, dated 30 June 2004, from the delegation of Japan and the
delegation of the United States to the Chairman of th e Dispute Settlement Body, is circulated at the
request of these delegations.

Confirmed Procedures
between Japan and the United States
under Articles 21 and 22
of the Dispute Settlement Understanding
in the follow-up to the dispute in
Japan – Measures Affecting the Importation of Apples
(WT/DS245)

 The Panel and Appellate Body reports in the WTO dispute Japan – Measures Affecting the
Importation of Apples ( and ) between Japan and the United States
were adopted by the Dispute Settlement Body (DSB) on 10 December 2003.

 On 30 January 2004, pursuant to Article 21.3(b) of the Understanding on Rules and
Procedures Governing the Settlement of Disputes (DSU), Japan and the United States agreed on the
reasonable period of time for implementation of the DSB's recommendations and rulings
() ("reasonable period of time"). A ccording to the terms of the 30 January 2004
agreement, the reasonable period of time expires on 30 June 2004.

 In response to the DSB’s recommendations and rulings, Japan has undertaken certain
measures replacing the measures found to be incons istent with Japan’s obligations under the WTO
Agreement.

 Japan and the United States (the "parties" ) have confirmed the following procedures:

1. After the expiration of the reasonable period of time, should the United States consider that
the situation described in DSU Article 21.5 exists , it is confirmed that the United States will
be entitled to request the establishment of a panel pursuant to DSU Article 21.5 (the
"Article 21.5 compliance panel").

2. At the first DSB meeting at which the Unite d States’ request for the establishment of an
Article 21.5 compliance panel appears as an item on the agenda, Japan will accept the
establishment of that panel.

3. The parties will cooperate to enable the Artic le 21.5 compliance panel to circulate its report
within 90 days of the panel's composition, ex cluding such time as the panel's work may be
suspended pursuant to DSU Article 12.12.

4. The United States may request authorization to suspend concessions or other obligations
pursuant to DSU Article 22.2 simultaneously with or after any United States request for the
establishment of a panel pursuant to paragraph 1.

5. Under DSU Article 22.6, Japan will object to the level of suspension of concessions or other
obligations and/or make a claim under DSU Artic le 22.3 before the date of the DSB meeting
considering the United States’ request and the matter will be referred to arbitration pursuant to
DSU Article 22.6. The United States will not pose any objection to the referral of the matter
to such arbitration.

6. Where the matter has been referred to Article 22.6 arbitration, the parties will request the
Article 22.6 arbitrator, at the earliest possible moment, to suspend its work until the adoption
of the Article 21.5 compliance panel report.

7. In the event that the DSB finds that the measures taken by Japan to comply with the
recommendations and rulings of the DSB are inc onsistent with the covered agreements as
referred to in the Article 21.5 compliance pa nel request, the Article 22.6 arbitrator will
automatically resume its work. The parti es will cooperate to enable the Article 22.6
arbitrator to circulate its report within 60 days of the resumption of its work.

8. In the event that the DSB finds that the measures taken by Japan to comply with the
recommendations and rulings of the DSB are not inconsistent with the covered agreements as
referred to in the Article 21.5 compliance pa nel request, the United States will withdraw its
request under DSU Article 22.2, thereby terminating the arbitration procedure.

9. The parties will cooperate to facilitate the pa rticipation of the original panelists in the
Article 21.5 compliance panel and the Article 22.6 arbitration.

10. If any of the original panelists are not availa ble for either the Article 21.5 compliance panel or
the Article 22.6 arbitration, or both, the parti es will request the Director-General of the WTO
to appoint, as soon as possible, a replacement for the proceeding or proceedings in which
such a replacement is required. If an original panelist is unavailable to serve in the either
proceeding, the parties will further request that in making this appointment, the
Director-General seek a person who will also be available to act in both proceedings.

11. Should the Article 21.5 compliance panel dete rmine that the participation of experts is
necessary, and should the panel consider the par ticipation of the original experts appropriate,
the parties will not object to the participation of the original experts.

12. The parties will continue to cooperate in all matters related to these confirmed procedures and
not to raise any procedural objection to any of the steps set out herein. If, during the
application of these procedures, the parties cons ider that a procedural aspect has not been
properly addressed, they will endeavour to find a solution within the shortest time possible that
will not affect the other aspects and steps herein confirmed.

13. These confirmed procedures do not prejudice either party's rights to take any action or
procedural step to protect its rights or inter ests, including the activation of any aspect of the
provisions of the DSU.

Geneva, 30 June 2004

 For Japan: For the United States:

 (signed) (signed)
 H.E. Mr. Shotaro Oshima H.E. Ms Linnet F. Deily
 Ambassador Ambassador
 Permanent Representative Permanent Representative
 Permanent Mission of Japan Permanent Mission of the United States