KOREA – IMPORT BANS, AND TESTING AND CERTIFICATION REQUIREMENTS FOR RADIONUCLIDES REPORT OF THE PANEL
Document: Addendum
Date: 22 February 2018
Document codes: WT/DS495/R/Add.1; WT/DS495/R.
Complainant: Japan
Respondent: South Korea
Third parties: U.S., EU, Norway, New Zealand, India, Russia, Taiwan, China, Guatemala, Canada, Brazil
Dispute stage: Appellate Body
Agreements cited: Art. 7, Annex B, 5.8, 2.3, 5.5, 5.6, 8, Annex C  Sanitary and Phytosanitary Measures (SPS)Art. XXIII:1  GATT 1994

KOREA – IMPORT BANS, AND TESTING AND CERTIFICATION
REQUIREMENTS FOR RADIONUCLIDES
REPORT OF THE PANEL
Addendum
This addendum contains Annexes A to D to the Report of the Panel to be found in document

LIST OF ANNEXES
ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Adopted Working Procedures of the Panel A-2
Annex A-2 Panel Working Procedures for Consultations with Experts A-7
ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of Japan B-2
Annex B-2 Integrated executive summary of the arguments of Korea B-28
ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Brazil C-2
Annex C-2 Integrated executive summary of the arguments of Canada C-3
Annex C-3 Integrated executive summary of the arguments of the European Union C-7
Annex C-4 Executive summary of the arguments of New Zealand C-11
Annex C-5 Executive summary of the arguments of Norway C-14
Annex C-6 Executive summary of the arguments of the United States C-18
ANNEX D
CERTAIN PROCEDURAL RULINGS MADE BY THE PANEL
Contents Page
Annex D-1 Decision of Panel on request for enhanced third-party rights D-2
Annex D-2 Decision of Panel on selection of experts D-5
Annex D-3 Decision on redacting submissions to be sent to experts D-8
Annex D-4 Decision of Panel on request to comment on exhibits D-10

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ANNEX A
WORKING PROCEDURES OF THE PANEL
Contents Page
Annex A-1 Adopted Working Procedures of the Panel A-2
Annex A-2 Panel Working Procedures for Consultations with Experts A-7

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ANNEX A-1
ADOPTED WORKING PROCEDURES OF THE PANEL

1. In its proceedings, the Panel shall follow the relevant provisions of the Understanding on
Rules and Procedures Governing the Settlement of Disputes (DSU). In addition, the following
Working Procedures shall apply.
General

2. The deliberations of the Panel and the documents submitted to it shall be kept confidential.
Nothing in the DSU or in these Working Procedures shall preclude a party to the dispute (hereafter
"party") from disclosing statem ents of its own positions to the public. Members shall treat as
confidential information submitted to the Panel by another Member which the submitting Member
has designated as confidential. Where a party submits a confidential version of its written
submissions to the Panel, it shall also, upon request of a Member, provide a non -confidential
summary of the information contained in its submissions that could be disclosed to the public.
3. Upon indication from any party, at the latest on the first substantive m eeting, that it shall
provide information that requires protection additional to that provided for under these Working
Procedures, the Panel shall, after consultation with the parties, decide whether to adopt
appropriate additional procedures. Exceptions to this procedure shall be granted upon a showing of
good cause.
4. Consistent with Article 13 of the DSU and Article 11.2 of the SPS Agreement, the Panel may
seek expert advice from experts and from international organizations and adopt additional
procedures to this end, as appropriate.
5. The Panel shall meet in closed session. The parties, and Members having notified their
interest in the dispute to the Dispute Settlement Body in accordance with Article 10 of the DSU
(hereafter "third parties"), shall be present at the meetings only when invited by the Panel to
appear before it.
6. Each party and third party has the right to determine the composition of its own delegation
when meeting with the Panel. Each party and thir d party shall have the responsibility for all
members of its own delegation and shall ensure that each member of such delegation acts in
accordance with the DSU and these Working Procedures, particularly with regard to the
confidentiality of the proceedings.
Submissions

7. Before the first substantive meeting of the Panel with the parties, each party shall submit a
written submission in which it presents the facts of the case and its arguments, in accordance with
the timetable adopted by the Panel. Each part y shall also submit to the Panel, prior to the second
substantive meeting of the Panel, a written rebuttal, in accordance with the timetable adopted by
the Panel.
8. A party shall submit any request for a preliminary ruling at the earliest possible opportuni ty
and in any event no later than in its first written submission to the Panel. Based on the nature of
the request the Panel will consider whether additional briefing is required and make changes to the
timetable as necessary. This is without prejudice to any requests for rulings based on
circumstances that arise later in the process. Requests for such rulings should be made as soon as
possible after a party becomes aware of a potential issue.
9. Each party shall submit all factual evidence to the Panel no l ater than during the first
substantive meeting, except with respect to evidence necessary for purposes of rebuttal, answers

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to questions or comments on answers provided by the other party. Exceptions to this procedure
shall be granted upon a showing of good cause. Where such exception has been granted, the Panel
shall accord the other party a period of time for comment, as appropriate, on any new factual
evidence submitted after the first substantive meeting.
10. Where the original language of exhibits is not a WTO working language, the submitting party
or third party shall submit a translation into the WTO working language of the submission at the
same time. Translations should include all germane portions of documents that the party seeks to
rely upon. German e portions include not only specific provisions of measures, but also relevant
context. The Panel may grant reasonable extensions of time for the translation of such exhibits
upon a showing of good cause. It is expected that Japan, as the complainant, wil l submit
translations into English of the relevant measures with its first written submission. Should Korea
have any objections to the translations provided by Japan, it shall identify those objections in
writing no later than at the time of Korea's first written submission. Any objection as to the
accuracy of a translation submitted by either party subsequent to the first written submissions
should be raised promptly in writing, no later than the next filing or meeting (whichever occurs
earlier) following the submission which contains the translation in question. Any objection shall be
accompanied by a detailed explanation of the grounds of the objection and an alternative
translation. The Panel may make an exception to these deadlines upon a showing of good cause.
11. In order to facilitate the work of the Panel, each party and third party is invited to make its
submissions in accordance with the WTO Editorial Guide for Panel Submissions attached as
Annex 1, to the extent that it is practical to do so.
12. To fac ilitate the maintenance of the record of the dispute and maximize the clarity of
submissions, each party and third party shall sequentially number its exhibits throughout the
course of the dispute. For example, exhibits submitted by Japan could be numbered JPN-1, JPN-2,
etc. If the last exhibit in connection with the first submission was numbered JPN-5, the first exhibit
of the next submission thus would be numbered JPN-6.
Questions

13. The Panel may at any time pose questions to the parties and third parties, orally or in
writing, including prior or subsequent to each substantive meeting.
Substantive meetings

14. Each party shall provide to the Panel the list of members of its delegation in advance of each
meeting with the Panel and no later than 5. 00 p.m. Geneva time three working days prior to the
Panel meeting.
15. The first substantive meeting of the Panel with the parties shall be conducted as follows:
a. The Panel shall invite Japan to make an opening statement to present its case first.
Subsequently, the Panel shall invite Korea to present its point of view. Before each party
takes the floor, it shall provide the Panel and other participants at the meeting with a
provisional written version of its statement. In the event that interpretation is needed,
each part y shall provide additional copies for the interpreters through the Panel
Secretary. Each party shall make available to the Panel and the other party the final
version of its statement, preferably at the end of the meeting, and in any event no later
than 5.00 p.m. on the first working day following the meeting.
b. After the conclusion of the statements, the Panel shall give each party the opportunity to
ask each other questions or make comments, through the Panel. Each party shall have
an opportunity to orally answer these questions. Each party shall send in writing, within
a timeframe to be determined by the Panel, any questions to the other party to which it
wishes to receive a response in writing. Each party shall be invited to respond in writing
to the other party's questions within a deadline to be determined by the Panel.
c. The Panel may subsequently pose questions to the parties. Each party shall then have an
opportunity to answer these questions orally. The Panel shall send in writing, within a

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timeframe to be determined by it, any questions to the parties to which it wishes to
receive a response in writing. Each party shall be invited to respond in writing to such
questions within a deadline to be determined by the Panel.
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to
present a brief closing statement, with Japan presenting its statement first.
e. The Panel may, after consultation with the parties, set time limits for the opening
statements; such time limits would be informed to the parties before the first
substantive meeting.
16. The second substantive meeting of the Panel with the parties shall be conducted as follows:
a. The Panel shall ask Korea if it wishes to avail itself of the right to present its case first. If
so, the Panel shall invite Korea to present its opening statement, followed by Japan. If
Korea chooses not to avail itself of that right, the Panel shall invite Japan to present its
opening statement first. Before each party ta kes the floor, it shall provide the Panel and
other participants at the meeting with a provisional written version of its statement. In
the event that interpretation is needed, each party shall provide additional copies for the
interpreters through the Pan el Secretary. Each party shall make available to the Panel
and the other party the final version of its statement, preferably at the end of the
meeting, and in any event no later than 5.00 p.m. Geneva time of the first working day
following the meeting.
b. After the conclusion of the statements, the Panel shall give each party the opportunity to
ask questions or make comments, through the Panel. Each party shall then have an
opportunity to answer these questions orally. Each party shall send in writing, within a
timeframe to be determined by the Panel, any questions to the other party to which it
wishes to receive a response in writing. Each party shall be invited to respond in writing
to the other party's questions within a deadline to be determined by the Panel.
c. The Panel may subsequently pose questions to the parties. Each party shall then have an
opportunity to answer these questions orally. The Panel shall send in writing, within a
timeframe to be determined by it, any questions to the parties to which it w ishes to
receive a response in writing. Each party shall be invited to respond in writing to such
questions within a deadline to be determined by the Panel.
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to
present a b rief closing statement, with the party that presented its opening statement
first, presenting its closing statement first.
Third parties

17. The Panel shall invite each third party to transmit to the Panel a written submission prior to
the first substantive meeting of the Panel with the parties, in accordance with the timetable
adopted by the Panel.
18. Each third party shall also be invited to present its views orally during a session of this first
substantive meeting, set aside for that purpose. Each third par ty shall provide to the Panel the list
of members of its delegation and whether it will be making an oral statement in advance of this
session and no later than 5.00 p.m. (Geneva time) the previous working day.
19. The third-party session shall be conducted as follows:
a. All third parties may be present during the entirety of this session.
b. The Panel shall first hear the arguments of the third parties in alphabetical order. Third
parties present at the third -party session and intending to present their views ora lly at
that session, shall provide the Panel, the parties and other third parties with provisional
written versions of their statements before they take the floor. In the event that
interpretation is needed, each third party shall provide additional copies for the

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interpreters through the Panel Secretary. Third parties shall make available to the Panel,
the parties and other third parties the final versions of their statements, preferably at
the end of the session, and in any event no later than 5.00 p.m. (Geneva time) of the
first working day following the session.
c. After the third parties have made their statements, the parties may be given the
opportunity, through the Panel, to ask the third parties questions for clarification on any
matter raised in the third parties' submissions or statements. Each party shall send in
writing, within a timeframe to be determined by the Panel, any questions to a third party
to which it wishes to receive a response in writing. Each third party shall be invited to
respond in writing to these questions within a deadline to be determined by the Panel.
d. The Panel may subsequently pose questions to the third parties. Each third party shall
then have an opportunity to answer these questions orally. The Panel shall send in
writing, within a timeframe to be determined by it, any questions to the third parties to
which it wishes to receive a response in writing. Each third party shall be invited to
respond in writing to such questions within a deadline to be determined by the Panel.
Descriptive part

20. The description of the arguments of the parties and third parties in the descriptive part of
the Panel report shall consist of the executive summaries provided by the parties and third parties,
which shall be annexed as addenda to the rep ort. The Panel will not summarize in the descriptive
part of its report, or annex to its report, the facts and arguments as presented to the Panel by the
parties in the course of the proceedings. These executive summaries shall not in any way serve as
a substitute for the submissions of the parties and third parties in the Panel's examination of the
case.
21. Each party shall submit an executive summary of the facts and arguments as presented to
the Panel in its written submissions and oral statements, in accordance with the timetable adopted
by the Panel. This summary may also include a summary of responses to questions . The executive
summary shall not exceed 30 pages.
22. Each third party shall submit an executive summary of its arguments as presented in its
written submission and statement in accordance with the timetable adopted by the Panel. This
summary may also include a summary of responses to questions, where relevant. The executive
summary to be provided by each third party shall not exceed 6 pages.
Interim review

23. Following issuance of the interim report, each party may submit a written request to review
precise aspects of the interim report and request a further meeting with the Panel, in accordance
with the timetable adopted by the Panel. The right to request such a meeting shall be exercised no
later than at the time the written request for review is submitted.
24. In the event that no further meeting with the Panel is requested, each party may submit
written comments on the other party's written request for review, in accordance with the timetable
adopted by the Panel. Such comments shall be limited to commenting on the other party's written
request for review.
25. The interim report , as well as the final report prior to its official circulation, shall be kept
strictly confidential and shall not be disclosed.
Service of documents

26. The following procedures regarding service of documents shall apply:
a. Each party and third party shall submit all documents to the Panel by filing them with
the DS Registry (office No. 2047).

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b. Each party and third party shall file 3 paper copies of all documents it submits to the
Panel. Exhibits may be filed in 3 copies on CD -ROM or DVD and 2 paper copies. The
DS Registrar shall stamp the documents with the date and time of the filing. The paper
version shall constitute the official version for the purposes of the record of the dispute.
However, any Excel format documents contained in exhibits which a re not suitable for a
printed version may be filed in an electronic form only an d in that event the electronic
version of such documents filed to the Panel shall constitute the official version for the
purposes of the record of the dispute.
c. Each party and third party shall also provide an electronic copy of all documents it
submits to the Panel at the same time as the paper versions, preferably in Microsoft
Word format, either on a CD -ROM, a DVD or as an e -mail attachment. If the electronic
copy is provide d by e-mail, it should be addressed to DSRegistry@wto.org, with a copy
to ****.****@wto.org, ****.****@wto.org, ****.****@wto.org, ****.****@wto.org,
and ****.****@wto.org. If a CD -ROM or DVD is provided, it shall be filed with the
DS Registry.
d. Each party shall serve any document sub mitted to the Panel directly on the other party
and third parties. Each party shall be required to serve on all third parties only those of
its written submissions made in advance of the first substantive meeting with the Panel.
Each third party shall serv e any document submitted to the Panel directly on the parties
and all other third parties. Each party and third party shall confirm, in writing, that
copies have been served as required at the time it provides each document to the Panel.
e. Each party and third party shall file its documents with the DS Registry and serve copies
on the other party (and third parties where appropriate) by 5.00 p.m. (Geneva time) on
the due dates established by the Panel. A party or third party may submit its documents
to another party or third party in electronic format only, provided that the recipient party
or third party has indicated its prior consent in writing to the submitting party or third
party and the Panel Secretary is so notified.
f. The Panel shall provide the parties with an electronic version of the descriptive part, the
interim report and the final report, as well as of other documents as appropriate. When
the Panel transmits to the parties or third parties both paper and electronic versions of a
document, the paper version shall constitute the official version for the purposes of the
record of the dispute.
27. The Panel reserves the right to modify these procedures as necessary, after consultation
with the parties. The Panel will annex these procedures to its report.

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ANNEX A-2
PANEL WORKING PROCEDURES FOR CONSULTATIONS WITH EXPERTS1
24 February 2016

28. In accordance with paragraph 4 of the Working Procedures, if in the course of the
proceedings, the Panel shall determine that there is a need to seek expert advice 2 the procedures
described below shall apply. In addressing matters concerning scientific and/or technical advice
from experts, the Panel shall have regard to th e provisions of the DSU and, inter alia , to the
objective of conduct ing these proceedings in an efficient and timely manner and at a reasonable
cost.
29. After consultation with the parties, t he Panel may ask any relevant institutions, as well as
the parties, for suggestions of possible experts . Parties shall not engage in direct contact with the
individuals suggested (whether by the parties or the international organizations) on any matter
related to this dispute.
30. The Panel shall provide the parties with a li st of possible experts, their curricula vitae and
declarations of potential conflicts of interest . In this declaration, each potential expert will be
instructed to disclose information which may include the following:
a. financial interests (e.g. investments, loans, shares, interests, other debts); business
interests (e.g. directorship or other contractual interests); and property interests
relevant to the dispute in question;
b. professional interests (e.g. a past or present relationship with private clients or relevant
industry, or any interests the person may have in domestic or international proceedings,
and their implications, where these involve issues similar to those addressed in the
dispute in question);
c. other active interests (e.g. active participation i n public interest groups or other
organisations which may have a declared agenda relevant to the dispute in question);
d. considered statements of personal opinion on issues relevant to the dispute in question
(e.g. publications, public statements);
e. employment or family interests (e.g. the possibility of any indirect advantage or any
likelihood of pressure which could arise from their employer, business associates or
immediate family members); and
f. any other relevant information.
31. Parties shall have the opportu nity to comment and to make known any compelling
objections to any particular expert.
32. The Panel shall select the experts on the basis of their qualifications and the need for
specialized scientific expertise , and shall not select experts whom the Panel considers to have a
conflict of interest either after self -disclosure or otherwise. The Panel shall decide the number of
experts in light of the number and type of issues on which advice shall be sought, as wel l as of the
different areas on which each expert can provide expertise.
33. The Panel shall inform the parties of the experts and international organizations it has
decided to consult , in accordance with the timetable adopted by the Panel. Experts shall act i n

1 These procedures are adopted in accordance with paragraph 4 of the Panel’s Working Procedures
adopted on 24 February 2016.
2 For the purpose of these Working Procedures, the term "expert" may be used to refer to individuals,
institutions, research bodies, or international organizations.

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their personal capacities and not as representatives of any entity . However, should the Panel seek
advice from an international organization, the advice received shall be deemed to be received from
the international organization and not the individual st aff members or representatives of the
international organization. Moreover, any staff members of such international organization that
attend a meeting with the Panel, shall be deemed to do so in a representative capacity, on behalf
of the respective international organization.
34. The experts shall be subject to the DSB's Rules of Conduct for the Understanding on Rules
and Procedures Governing the Settlement of Disputes (WT/DSB/RC/1) , a copy of which shall be
provided to them by the Panel.
35. The Panel shall prep are written questions for the experts. The parties will be invited to
suggest a limited number of questions that the Panel could include in its questions to the experts.
The experts shall be requested to provide responses in writing to the Panel's question s within a
time-period specified by the Panel. The experts shall be requested to respond only to questions on
which they have sufficient knowledge . The responses of experts shall be part of the Panel's record
but shall not be attached to the Panel report a s annexes. The Panel shall provide the parties with
copies of the responses , in accordance with the adopted timetable. The parties shall have the
opportunity to comment in writing on the responses from the experts . The parties shall also have
the opportunity to pose written questions to the experts in advance of the meeting, to assist the
experts in their preparation for the meeting. The parties are invited to pose these questions or any
others at the meeting.
36. The Panel may provide the experts, on a confid ential basis, with relevant parts of the
parties' submissions, including exhibits, as well as with any additional information deemed
necessary. The experts shall have the opportunity to request, through the Panel, additional factual
information or clarifications from the parties, if it shall aid them in answering the Panel’s questions.
37. The Panel may schedule a meeting with the experts, in conjunction with t he second
substantive meeting with the parties. Prior to the Panel's meeting with the experts, the Panel shall
ensure that:
g. the parties' comments on the experts' responses are provided to all experts;
h. each expert is provided with the other experts' responses to the Panel's questions; and
i. each expert is provided with any advance questions from the parties to the experts.
38. The Panel's meeting with the experts would be conducted as follows:
j. The Panel shall invite each expert to make an opening statement. This statement may
include, but is not limited to, any clarification of their written responses to the Panel
questions requested by the Panel or the parties, or information complementary to these
responses. The experts that intend to make an opening statement shall provide the
Panel and the parties with written versions of their statements, before they take the
floor. The Panel shall make available, to the other experts, and to the parties, a final "as
delivered" version of each expert's written statement, no later than 5.00 p.m. on the
first working day following the meeting.
k. After the conclusion of the statements, the Panel shall give each party the opportunity to
ask the experts questions or make comments through the Panel. To facilitate this, each
party may send in writing in advance of the meeting, within a timeframe to be
determined by the Panel, any q uestions to the experts to which it wishes to receive an
oral response at the Panel's meeting with the experts. Each expert shall be invited to
respond orally to the parties' questions, whether posed in advance or for the first time at
the meeting, and to react to the parties' comments.
l. The Panel may subsequently pose questions to the experts. The expert to whom the
question is addressed shall be invited to respond orally to the Panel's questions. The
Panel may also give the other experts the opportunity to address any question or
comment.

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m. Once the questioning has concluded, the Panel shall afford each expert an opportunity to
present a brief closing statement.
n. The Panel may pose additional written questions or schedule additional meetings with
the experts if necessary.
39. The Secretariat shall prepare a compilation of the experts' written replies to the Panel's
questions, as well as a full transcript of any meeting with the experts for inclusion in the record of
the Panel proceeding. This transcript shall not be annexed to the Panel report. The experts shall be
given an opportunity to verify , before the texts are finalized , the drafts of these texts to ensure
that they accurately reflect the information they provided . The parties sha ll likewise be given an
opportunity to verify that the transcript of any meeting with the experts accurately reflects the
parties' own interventions.

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ANNEX B
ARGUMENTS OF THE PARTIES
Contents Page
Annex B-1 Integrated executive summary of the arguments of Japan B-2
Annex B-2 Integrated executive summary of the arguments of Korea B-28

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ANNEX B-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF JAPAN
I. INTRODUCTION
1. In March 2011, a major earthquake and tsunami resulted in an accident at the Fukushima
Dai-ichi nuclear power plant ( "FDNPP"). The personal, societal, physical and emotional
consequences of the earthquake, tsunami and FDNPP accident have been immense for J apanese
society. The loss of life and severe injury caused by the earthquake and tsunami were devastating,
and the consequences to Japanese society enduring.
2. One of the consequences of the FDNPP accident was the release of radioactive nuclides
("radionuclides") into the environment, and ultimately into food for human consumption. The
ingestion of food containing radionuclides may have adverse health consequences. Japan fully
recognizes Members ' rights to take measures to protect their people from adver se health
consequences. Indeed, Japan shares the same goal. In pursuit of that goal, Japan and other
countries have taken measures to limit exposure to radionuclides in food, including the adoption of
maximum threshold levels for radionuclides in food.
3. At the heart of this dispute, however, is the fact that the Republic of Korea ( "Korea") has
adopted measures that do not respond appropriately to concerns raised by the FDNPP accident.
Instead, Korea 's measures discriminate arbitrarily or unjustifiably between similarly situated
Members, and are more trade restrictive than necessary to achieve Korea 's desired level of
protection of public health, in violation of Articles 2.3 and 5.6 of the Agreement on Sanitary and
Phytosanitary Measures ("SPS Agreement "). Korea has also failed to observe the transparency
obligations under Annex B to the SPS Agreement, and further disciplines under Annex C to the
Agreement.
4. Korea's discriminatory and unnecessary measures include import bans for certain food
products from Japan, and additional testing requirements on other food products from Japan that
each contain radionuclides at levels well below the thresholds adopted by Korea. Korea itself
described its import bans as preventing imports of Japanese fisheries products "regardless of their
radioactive contamination". Korea also described its additional testing requirements as, "in effect",
"a total import ban ". Moreover, explaining the reasons for its measures, Korea cited, among
others, the dismal economic condition of Korean fishermen, who, it said, were suffering losses.1
5. To assist with questions of a scientific nature, Japan submitted expert analyses prepared by
Professor Brenner and Dr. Buesseler, two eminent experts in the scientif ic fields at issue in these
proceedings. Similarly, to assist with questions concerning the scientific evidence of record in
these proceedings, the Panel appointed five independent experts, each of which overwhelmingly
supported the key factual propositio ns underlying Japan 's claims. Japan will recall the experts '
views throughout this executive summary.
II. MEASURES AT ISSUE
A. Korea's import bans on Japanese food products
6. Korea maintains two sets of import bans applic able to Japanese food products: (i) product-
specific bans applicable to fisheries products and agricultural products from certain Japanese
prefectures; and, (ii) a blanket import ban on all fisheries products from eight Japanese
prefectures.2 The product-specific bans were introduced incre mentally by Korea after the FDNPP
accident. The blanket import ban was introduced in September 2013. Japan 's claims concern the
import bans, as they apply to 28 species of fisheries products from the eight prefectures subject to

1 Japan's FWS, paras. 1-8. Japan's references to its submissions include references to the exhibits cited
therein.
2 Japan's SWS, para. 19. See also Japan's FWS, paras. 115-120.

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the blanket import ban. In each instance, Korea asserts that the measures take the form of a
press release. These press releases do not contain all relevant details regarding these measures.
B. Korea's pre-market additional testing requirements for food products from
Japan
7. Korea applies different pre-market testing requirements to Japanese food and food imported
from other countries. Specifically, Korean pre-export testing requirements apply solely to Japanese
food products, and do not apply to food product from other countries. 3 For Japanese food
products, pre -export testing for cesium is required; and, if more than 0.5 Bq/kg of cesium is
detected, additional testing for 17 other radionuclides is also required. Although at-the-border
testing in Korea applies to imports from all c ountries, the requirements differ for Japanese food
products and for food products from other countries.
8. First, with respect to at-the-border cesium testing , Korea subjects every consignment of
Japanese food to cesium testing.4 At-the-border cesium testing applies to Japanese food products
irrespective of whether the consignment has already undergone pre -export cesium testing. For
food products imported from countries other than Japan , at -the-border cesium testing is
conducted based on a random selection of consignments for testing.
9. Second, if cesium is detected in Japanese food imports, the consignment is subject to at-
the-border additional testing for 17 other radionuclides. 5 Like pre-export additional testing, non-
Japanese food imports are not subject to at-the-border additional testing.
10. Korea asserts that its measures take the form of press releases. The press releases
announcing the introduction of Korea 's pre-export cesium testing and additional testing
requirements, which apply solely to Japan, and the press releases announcing the introduction of
Korea's at-the-border cesium testing and additional testing requirements , do not specify all
relevant detail regarding these measures.6
C. Korea's point -of-sale testing scheme, which is not at issue in these
proceedings
11. Korea also conducts random point-of-sale testing on "the 150 most frequently -consumed
food products distributed in the Korean market ".7 Point-of-sale testing, which is conducted by
taking samples from shops at the retail level, applies to products of all origins. Point-of-sale testing
involves cesium testing and, if cesium is detected, additional testing f or certain other
radionuclides. Thus, point -of-sale testing applies to randomly -selected food products that are
already in free circulation in the Korean market.
12. Point-of-sale testing allows Korea to verify the assumptions on which its approach to
regulating SPS risks arising from the presence of man -made radionuclides in food is based, in a
manner that is neither discri minatory nor trade restrictive. Japan does not challenge Korea 's
point-of-sale testing in these proceedings.
III. FACTUAL BACKGROUND TO THE DISPUTE
A. Japan's approach to regulating exposure to radionuclides in food
13. Since the FDNPP accident, Japan ha s put in place comprehensive food safety measures
covering food production, distribution and export. T o secure compliance with its appropriate level
of protection ( "ALOP") for radionuclides in food of 1 mSv/year – a measure that represents the
maximum annual dose exposure for consumers from radionuclides in food – Japan has adopted:
(i) Bq/kg thresholds for cesium in food products; (ii) a regime for the monitoring of radionuclides
in food products; and (iii) area -specific distribution restrictions on certa in food products, where
thresholds are exceeded. The effectiveness of Japan 's measures is illustrated by the fact that, in

3 Japan's SWS, para. 28.
4 Japan's FWS, paras. 127-137; Japan's SWS, para. 30.
6 Japan's FWS, paras. 165-178; Japan's SWS, paras. 32-38.
7 Japan's SWS, para. 45.

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more than 233,000 consignments of Japanese food products imported into Korea, each tested for
cesium, Korea has not found a single c onsignment with cesium in excess of its 100 Bq/kg
threshold.8 The IAEA and FAO found "that the measures taken to monitor and respond to issues
regarding radionuclide contamination of food are appropriate, and that the food supply chain is
under control ".9 Similarly, the Panel -appointed experts confirmed the adequacy of Japan 's
regulatory approach and its sampling practices.10
14. Central to Japan's regulatory regime is its derivation of a cesium threshold that takes into
account dose contributions from oth er radionuclides. Japan 's adoption of a cesium threshold
reflects the dominant role of cesium in releases and contamination from the FDNPP accident, both
in terms of activity levels and dose contribution. Based on measurements of the relationship
between cesium and the other radionuclides, Japan calculated a cesium threshold that ensures
that the combined exposure from cesium and the additional radionuclides does not exceed
1 mSv/year, in accordance with Codex Stan 193 -1995. In deriving the cesium thresh old, Japan
started with (i) its 1 mSv/year ALOP, and (ii) an assumption of the percentage of food that would
be contaminated. Japan then took into account, (iii) for various population subgroups, (iv) the
types and quantities of food consumed per year, an d (v) the ingestion -dose coefficient for each
radionuclide.
15. In undertaking its calculation, Japan used a formula provided by Codex, with the addition of
a number of assumptions that are far more conservative than dictated by Codex. First, it assumed
that 50 percent of food contains the relevant radionuclides at the threshold level, whereas Codex
assumes just 10 percent; second, compared to Codex 's assumption, Japan assumed that larger
amounts of foods are consumed per year; and, third, rather than re gulating groups of
radionuclides in isolation, Japan took into account the quantitative relationships ( or ratios)
between the relevant radionuclides. Japan thereby calculated a threshold for cesium that ensures
that the combined exposure from all relevant radionuclides does not exceed 1 mSv/year. Whereas
Codex's cesium threshold is 1000 Bq/kg, Japan calculated a 100 Bq/kg cesium threshold. 11 The
Panel-appointed experts unequivocally confirmed the appropriateness and conservativeness of
Japan's calculations.12
16. Contrary to Korea 's assertions, Japan 's calculations of its 100 Bq/kg cesium threshold take
into account the contribution from cesium and other relevant radionuclides . The calculations
estimated that cesium and these other radionuclides would contribute to the overall radiation dose
in an annual average ratio of 88:12 (50:50, in the case of marine products). Korea characterizes
the use of this ratio as involving an assumption of a "scaling factor" between cesium and the other
radionuclides that is fixed and unchanging. This is wrong; the estimated relationship is simply an
average spread over an entire year 's worth of food , during which each meal could have a very
different Cs:Sr ratio, without that variability calling into question Japan's conservative calculations.
17. This conclusion is confirmed by actual test results under Japan 's monitoring schemes,13 and
was confirmed by the Panel-appointed experts.14
B. Japan's food monitoring program and testing schemes for radionuclides
18. Following the FDNPP accident, Japan implemented a comprehensive monitoring program for
the environment and food, and has taken regulatory decisions, including food distribution

8 Japan's FWS, para. 359; Japan's response to Panel Question 8, para. 37; Japan's comment on Korea's
response to Panel Question 120, para. 162; Korea's response to Panel Question 120, para. 51.
9 Japan's FWS, paras. 57-60.
10 Transcript of Panel meeting with the experts, para. 3.70. See also Id., paras. 1.199, 1.201, 3.88,
3.89, 3.91, 3.138, 3.152, 3.155, 3.186, 3.219, 4.136; Japan's response to Panel Question 123, paras. 187,
188.
11 Japan's FWS, para. 346-375; Japan's SWS, paras. 238-240; Japan's comments on experts'
responses, para. 36; Japan's comments on Korea's comments on experts' responses, paras. 93-106; Japan's
response to Panel Questions 123 and 148, paras. 179-183, 322-331.
12 Transcript of Panel meeting with the experts, paras. 1.129, 1.136, 1.137, 1.147, 1.240, 3.15, 3.55,
4.1, 4.2; Compilation of experts' replies, experts' responses to Panel Questions 77, 78 and 81.
13 Japan's FWS, paras. 376-394; Japan's SWS, paras. 241-244, 253-289; Japan's response to Panel
Question 148, paras. 332-342.
14 Transcript of Panel meeting with the experts, paras. 4.58-4.59; Compilation of experts' replies,
experts' responses to Panel Questions 82 and 83.

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restrictions, based on information gathered throu gh that program. Japan 's monitoring program
ensures that the overall committed dose exposure of Japan 's population from the ingestion of food
remains below 1 mSv/year, by ensuring that levels of cesium in sampled food products do not
exceed 100 Bq/kg. Be tween April 2012 and March 2016, more than 1.2 million samples were
tested for cesium under this program.
19. Japan has designated 17 of its 47 prefectures for mandatory monitoring, and monitoring
extends to food products from all categories of food. 15 Japan targets food products that are
expected, based on scientific understanding and available information, to contribute the highest
committed dose level from radionuclides in food. Such products are subjected to increased testing.
Monitoring activities are continuously informed and refined on the basis of past results. 16 The
Panel-appointed experts confirmed that Japan's approach represents a widely-accepted food safety
sampling technique.17
20. On the basis of cesium test results under Japan 's monitoring program, Japan has also
imposed (and, where warranted by testing results, lifted) distribution restrictions for various food
products.18
21. In addition to its cesium monitoring program, Japan maintains a number of testing schemes
that cover cesium and ad ditional radionuclides. These schemes include: nationwide market -
basket surveys; nationwide and Fukushima prefecture duplicate diet surveys; strontium testing of
fisheries products; testing of fish and shellfish by Japan 's Ministry of the Environment; te sting of
fisheries products close to the FDNPP site by TEPCO; joint testing by Japan and Korea; test results
included in the Environmental Radioactivity database, for both fisheries and non -fisheries
products; and a FY 2014 study of various fisheries and non-fisheries products.19
22. Test results under these programs reveal that contamination levels for fisheries and non -
fisheries products from Japan are, with rare exceptions, significantly below Japan 's (and Korea 's)
cesium threshold of 100 Bq/kg, such th at there is no risk that dose exposures for Japanese
consumers from radionuclides in food will exceed 1 mSv/year. For the additional radionuclides,
contamination levels of Japanese fisheries and non -fisheries products are also significantly below
the Codex thresholds adopted by Korea. Since Japanese products represent only 0.37 percent of
the Korean diet, there is no risk that consumption of Japanese food products results in dose
exposure for Korean consumers in excess of 1 mSv/year.20
23. The Panel-appointed experts have confirmed the adequacy of Japan 's test results, and in
particular that there are sufficient test results to support the above conclusions. 21 With respect to
the number of test results for each of the 28 species at issue, specifically, th ere are a sufficient
number of cesium test results for each species across the prefectures at issue; with respect to
strontium test results, there are test results for each of the 28 species at issue, and additional test
results from representative species . In light of the low contamination levels, in particular for
strontium, these test results are representative, and sufficient to support Japan 's factual
propositions, as the Panel-appointed experts have, once again, confirmed.
C. Korea's references to subsequent releases at the FDNPP site
24. Korea asserts that its measures are justified by the release of contaminated water from the
FDNPP site subsequent to the accident. To begin, any post -accident release events that have
occurred are 1000 times smaller than the initial releases, such that they have no impact on the
factual propositions advanced by Japan. Moreover, monitoring around the FDNPP site continues on
a daily and even hourly basis, including through a real -time radioactivity detection system fo r

15 These are: grains, vegetables, fruits, cultivated edible fungi, marine products, freshwater fisheries
products, cattle meat, other livestock products, game meat, wild plants and wild edible fungi, milk for infant
use, tea and drinking water and processed foods
16 Japan's FWS, paras. 63-73; Japan's response to Panel Question 7, paras. 16-27; Japan's response to
Panel Question 123, paras. 166-177.
17 Transcript of Panel meeting with the experts, paras. 3.88, 3.89, 3.91, 3.138; Compilation of experts'
replies, experts' responses to Panel Questions 15 and 63.
18 Japan's FWS, paras. 74-77; Japan's response to Panel Question 19, paras. 102-104.
19 Japan's FWS, paras. 63-73; Japan's response to Panel Question 123, paras. 184-186.
20 Japan's SWS, para. 243.
21 Compilation of experts' replies, experts' responses to Panel Questions 44, 46, 57, 62, 89.

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seawater at the mouth of the FDNPP port that measures levels of cesium and total beta emitters,
including strontium.22
25. The Panel-appointed experts confirmed that any ongoing releases do not undermine Japan 's
factual propositions. The experts also emphasized the importance of Japan 's ongoing monitoring
of the seawater near the FDNPP site, and the value of real-time public access to the data recording
that monitoring activity.
IV. STANDARD OF REVIEW
26. Korea contends that, in reviewing Japan 's claims, the Panel must defer to the assessments
made by the domestic regulator in adopting the challenged measures. Korea asserts that the
Panel may not undertake a de novo review of those measures.
27. Korea's approach is inconsistent with the Panel 's du ty under Article 11 of the DSU, and
Articles 2.3 and 5.6 of the SPS Agreement, which together shape the Panel 's standard of review.
Rather than accept Korea's partisan "judgment" about its measures, the Panel must make its own
objective assessment of the matter, including by scrutinizing the scientific evidence of record.23
28. Non-discrimination, as embodied in Article 2.3, is a cornerstone principle of WTO law. 24 In
assessing compliance with this principle under Article 2.3, or otherwise, WTO adjudicators do not
simply defer to the judgment of domestic regulators. 25 Likewise, in assessing the "necessity" of a
measure under Article 5.6, panels never simply defer to the judgment of the domestic regulator.
To the contrary, and as expressly stated by the Appellate Body, in reviewing claims under
Article 5.6, panels must make an objective assessment of the matter, and scrutinize all relevant
evidence.26
29. Even as suming that deference were required, Korea has pointed to no formal process or
explanation that preceded the adoption of its measures to which the Panel could defer.
V. TEMPORAL SCOPE OF EVIDENCE
30. Japan challenges the continuing inconsistency of the i mport bans and the additional testing
requirements with continuing obligations under the SPS Agreement , on the basis of evidence
speaking to the factual situation at the time of, and subsequen t to, Panel establishment on
28 September 2015.27
31. Nonetheless, Korea contends that the Panel cannot consider evidence that did not exist on:
(i) 6 September 2013, when Korea adopted the blanket import ban and additional testing
requirements; or (ii) 28 September 2015, the date of Panel establishment.
32. In any dispute, the temporal scope of the evidence is influenced by whether a claim is made
regarding the adoption or the maintenance of a measure (or both), and by the temporal scope of
the obligations at issue – that is, do the obligations serving as the legal basis for the complainant's
claim apply at a specific time (e.g., at the time of adoption of the measure), or do they impose
continuing obligations (e.g., on the maintenance of the measure).28
33. Articles 2.3 and 5.6 of the SPS Agreement impose a continuing obligation with respect to the
maintenance of a measure: similar to Article 6.1 of the SPS Agreement, which the Appellate Body
found to impose a continuing obligation, these provisions use the present tense in conjunction with
"ensure", and contain n o language limiting the temporal scope. 29 Furthermore, Article 5.6 applies
"when establishing or maintaining " SPS measures. The ordinary meaning of the verbs used

22 Japan's FOS, para. 32; Japan's response to Panel Question 9, paras. 42-49; Japan's SWS, paras. 506-
508; Japan's comment on Korea's response to Panel Question 117, para. 131.
23 Japan's SOS, para. 30.
24 Japan's SOS, para. 34.
25 Japan's SOS, para. 34.
26 Japan's SOS, paras. 29-43.
27 Japan's response to Panel Question 115, paras. 46-47.
28 Japan's response to Panel Question 115, paras. 42-43.
29 Japan's SOS, paras. 17, 20.

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indicates that these provisions impose an obligation at all times. Article 7, Annex B, Arti cle 8 and
Annex C similarly impose continuing obligations.
34. In these circumstances, the Panel is required to consider the most up -to-date evidence
available to determine whether, in light of the latest available facts, Korea is engaged in a
continuing violation of its continuing obligations.
35. Indeed, Article 11 of the DSU requires a panel to make an objective assessment of the
matter, including an objective assessment of the evidence of record. This means that where a
complainant claims that a measure is being maintained after panel establishment in a manner that
is inconsistent with a continuing obligation, the panel must assess the present WTO -consistency of
the measure on the basis of the most up -to-date evidence available, subject to due process
considerations.30
36. This allows the DSB to make timely and relevant recommendations and rulings in
accordance with Article 3.3 of the DSU, which states that the "prompt" settlement of disputes is
"essential"; with Article 3.4 of the DSU , which requires the DSB 's recommendations and ruling to
"be aimed at achieving a satisfactory settlement of the matter "; and with Article 3.7 of the DSU,
which states that the objective of dispute settlement is "to secure a positive solution to a dispute".
In contrast, if a panel fails to consider the most recent evidence, resolution of the dispute may be
delayed, and a "satisfactory settlement" and "prompt" and "positive" solution thwarted, because
the parties may disagree whether, in view of recent evidence, the measure continues to be
WTO-inconsistent.
37. The long-standing and consistent case law under a range of covered agreements – including
the SPS Agreement , GATT 1 994, Agreement on Agriculture , Anti-Dumping Agreement , SCM
Agreement, TBT Agreement, and TRIPS Agreement – supports an assessment of continuing
inconsistency with continuing obligations on the basis of up-to-date post-establishment evidence.31
Indeed, und er the SPS Agreement itself, the panels in Australia – Salmon, Japan – Apples,
Australia – Apples, and Russia – Pigs all relied on evidence post -dating establishment.32 Similarly,
the Panel in this dispute must assess the consistency of Korea 's measures on the basis of the
latest available evidence, including the post-establishment evidence on which Korea itself relies.
38. In any event, were the Panel to decide, erroneously, that the consistency of Korea 's
measures must be assessed solely against the fact ual situation existing at the time of
establishment, the Panel shou ld rely on any evidence, whenever submitted or prepared, that
speaks to the situation at the time of establishment. In this regard, Japan recalls that it has
submitted evidence that establ ishes violations of the relevant SPS provisions both at the time of,
and after, Panel establishment.33
39. Should the Panel decide that it is appropriate to limit its assessment of the consistency of
Korea's measures to evidence pertaining to the situation at the time of establishment, Japan urges
the Panel to make alternative findings based on all evidence before it. Such findings would enable
the Appellate Body to complete the legal analysis, were it to decide that the Panel erred in failing
to assess post-establishment evidence.
VI. KOREA'S ARGUMENTS UNDER ARTICLE 5.7 OF THE SPS AGREEMENT
40. Throughout the proceedings, Korea has argued that its measures are "provisional", within
the meaning of Article 5.7 of the SPS Agreement , because it considers t he scientific evidence
concerning the situation at the FDNPP to be insufficient, and the number of strontium test results
for fisheries products to be similarly insufficient.
41. While any relevant insufficiencies in the scientific evidence must be taken into account in the
objective assessment by a panel of claims brought under Articles 2.3, 5.6, 7 and 8, Korea itself
has acknowledged that the status of a measure as "provisional" does not alter the scope of

30 Japan's response to Panel Question 115, para. 48.
31 Japan's response to Panel Question 115, paras. 57-143.
32 Japan's response to Panel Question 115, paras. 78-81.
33 Japan's comments on Korea's response to Panel Question 115, paras. 91-121, and references cited
therein.

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application of those provisions.34 In any event, as the Panel-appointed experts have confirmed, no
relevant uncertainties or insufficiencies in the evidence exist.35
42. Separately, Japan has also established Korea 's failure to comply with the requirements of
Article 5.7, including to seek informatio n necessary to review its allegedly provisional measures.
Since imposition, in September 2013, of the last of the measures at issue in these proceedings,
Korea has ceased trying to obtain and review additional information. The only exception concerns
the activities of the go vernment-mandated and -organized "Korean Group", which suspended its
activities in May 2015 following Japan's request for consultations. Therefore, even were Article 5.7
directly applicable to claims brought under Articles 2.3, 5.6, 7 and 8, Korea has not observed the
requirement, under Article 5.7, to seek continuously to obtain additional information.36
VII. KOREA'S IMPORT BANS AND PR E-MARKET ADDITIONAL TE STING REQUIREMENTS A RE INCONSISTENT
WITH ARTICLE 2.3 OF THE SPS AGREEMENT
A. Interpretation of Article 2.3
1. Article 2.3, first sentence
43. A panel 's assessment under the first sentence of Article 2.3 involves three cumulative
steps.37 First, the panel identifies the SPS risks that a respondent seeks to regulate, in order to
determine the group of p roducts that gives rise to those risks. Second, the panel looks to the
regulatory treatment afforded to those products to determine whether products of some origins
are treated less favourably – i.e., whether there is discrimination. Third, the panel consi ders
whether this discrimination is arbitrary or unjustifiable.
a. Identical or similar conditions prevail
44. To ensure an apples -to-apples comparison of similar conditions, a panel must begin by
identifying the basket of products of different origins tha t present the same or similar SPS risks
that are regulated by the SPS measures at issue.
45. To undertake the appropriate apples -to-apples comparison, a panel must begin by
identifying the conditions relevant to the dispute. 38 The starting point is the respondent's own
regulatory framework.39 The respondent's measure is important, because it reveals the SPS risks
that the respondent seeks to regulate and, in turn, the products that are potentially subject to
discriminatory regulatory treatment. The releva nce of the measure to identifying the SPS risks at
issue is confirmed by the definition of the term "SPS measure" as set out in Annex A(1) of the
SPS Agreement, which includes measures that "protect human or animal life or health…from risks
arising from additives, contaminants, toxins or disease -causing organism in foods, beverages or
feedstuffs".40 These SPS risks are a central part of the identification of the relevant conditions that
ensure an apples-to-apples comparison and, ultimately, of the overall enquiry under Article 2.3.
46. To assess whether conditions are similar, a panel must begin by identifying, based on the
SPS measures at issue, the basket of products of different origins that present the same or similar
SPS risks.41 To be included in the basket, a product must present the SPS risk that the respondent
itself has chosen to regulate through the challenged measure. This process ensures an
assessment that connects the SPS risk regulated by the measure at issue with the basket of
products presenting that risk. The assessment is designed to review whether the respondent is
distorting consumer choice in the marketplace by imposing discriminatory restrictions on products
of some origins that present the regulated SPS risk, when it does not im pose the same restrictions

34 Japan's response to Panel Question 108, paras. 453-503; Japan's SWS, paras. 53-69.
35 Compilation of experts' replies, experts' responses to Panel Questions 26, 44, 46, 57, 59, 62, 89, and
92. Transcript of the Panel meeting with the experts, paras. 4.1, 4.2, 4.133, 4.139, 4.143.
36 Japan's FWS, paras. 102-108; Japan's SWS, paras. 65-67, 481-492; Japan's comments on Korea's
responses to Panel Questions 150 and 151, paras. 293-305.
37 Japan's FWS, paras. 200-202; Japan's SWS, para. 74.
38 Japan's FWS, paras. 203-207; Japan's SWS, para. 83.
39 Japan's FWS, paras. 203-204; Japan's SWS, para. 83.
40 Japan's SWS, para. 84.
41 Japan's SWS, para. 86.

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on products of other origins that present the same or similar SPS risks. This approach has been
taken by previous panels.42
47. Article 5.5 of the SPS Agreement, along with the SPS Committee 's Guidelines to Further the
Practical Implementation of Article 5.5 , confirm Japan 's interpretation. 43 Article 5.5 involves
"different" yet comparable "situations", where distinctions in the ALOP may result in discrimination
that is arbitrary and/or unjustifiable. The Guidelines confirm that discrimination comparisons must
be made between situations that involve "sufficient common elements to render them
comparable". The Guidelines further underscore that the comparability turns on the types of
SPS risk at stake , with the relevant conditions differing depending on whether the SPS risks
pertain to the spread of pests or diseases, or to "food-borne risks". In the case of "food-borne
risks", the Guidelines confirm that "situations involving the same type of substance or pathogen "
are comparable.
48. Japan's product-based interpretation of Article 2.3 is consistent with, and supported by, the
origins of that provision in the GATT 1994, and with the context provided by the parallel provisions
under the GATT 1994.44 Starting with the discrimination element, Article 2.3 embodies disciplines
against discrimination on both national treatment (i.e., products from the Member 's "own territory
and that of other Members ") and most -favoured nation ( "between Members") grounds.45 Article
2.3 of the SPS Agreeme nt, therefore, reflects both the national treatment and most -favoured
nation disciplines also enshrined in Articles III:4 and I:1 of the GATT 1994. Specifically, Articles
III:4 and I:1 discipline discrimination between products of different origins.46 The origin of Article
2.3 in the non -discrimination provisions of Articles III:4 and I:1, therefore, confirms that Article
2.3 ultimately also concerns discrimination between products.
49. In contrast, Korea argues that a panel 's assessment of "similar conditions" does not allow
for a product -based comparison. Instead, Korea interprets Article 2.3 to permit solely a
comparison of the environmental conditions prevailing in the territories of two or more Members. 47
Along with ignoring the text and the con text of Article 2.3, Korea 's interpretation would
erroneously exclude certain types of SPS measures, such as measures regulating additives or
contaminants in products, from the scope of a provision that was expressly drafted to impose
"basic … obligations" that apply to all SPS measures.48
b. Discrimination
50. Having established that products from different sources are similarly -situated based on
relevant conditions, such that they are comparable, a complainant must next show that the
challenged measure "discriminate[s] between Members " in respect of the regulatory treatment
afforded to the comparable products. This element of the analysis is satisfied when comparable
products from different Members are treated "differently", based on origin.49
c. Discrimination is arbitrary or unjustifiable
51. If comparable products of different origins are afforded different treatment, a panel must
consider whether the difference in treatment is arbitrary or unjustifiable. This may be the case
where, e.g.: (i) the reas ons for the discrimination are not rationally connected to the measure 's
objective; (ii) a measure leaves no scope for taking into account conditions in the exporting
country; or (iii) a Member restricts products from some sources in response to a particul ar risk,
but does not verify whether products from other sources pose the same risk. Panels have held that
the same facts may underlie both a finding that conditions are identical or similar, and a finding
that discrimination is arbitrary or unjustifiable.50

42 Japan's FWS, paras. 204-205.
43 Japan's SWS, paras. 88-89.
44 Japan's response to Panel Question 133, para. 232.
45 Japan's response to Panel Question 133, para. 235.
46 Japan's response to Panel Question 133, para. 236.
47 Japan's SWS, para. 94.
48 Japan's comment to Korea's response to Panel Question 134, para. 233.
49 Japan's FWS, para. 208.
50 Japan's FWS, para. 211.

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2. Article 2.3, second sentence
52. SPS measures that arbitrarily or unjustifiably discriminate also constitute a "disguised
restriction", under the second sentence of Article 2.3, although the latter may additionally extend
to measures that do not arbitrarily or unjustifiably discriminate. Other factors may, therefore, also
establish the existence of a disguised restriction.51
B. Korea's import bans and pre -market additional testing requirements are
inconsistent with the first sentence of Article 2.3 of the SPS Agreement
1. Similar conditions prevail with respect to food products of
Japanese origin and those of Korean or third country origins
53. As reflected in its regulatory framework, Korea seeks to protect its consumers from adverse
health consequ ences arising from exposure to radionuclides in food. Thus, Korea has adopted
thresholds (in Bq/kg) to ensure that dose exposure for Korean consumers from the consumption of
food products does not exceed 1 mSv/year. In particular, Korea has adopted the sa me 100 Bq/kg
cesium threshold adopted by Japan. In addition, Korea has adopted Codex thresholds for the
additional radionuclides. Korea has implicitly confirmed the particular relevance it attaches to
cesium as an indication of the presence of the additio nal radionuclides; under its regulatory
regime, Korea requires testing for the additional radionuclides where cesium contamination in a
food product exceeds 0.5 Bq/kg.
54. In establishing the similarity of conditions with respect to food products of Japane se and
non-Japanese origin, Japan has, therefore, focused on the particular SPS risks regulated by Korea,
and has identified two relevant conditions for ensuring a relevant apples -to-apples comparison
between food products of Japanese and non -Japanese orig in. Specifically, Korea 's regulatory
regime demonstrates that the two relevant conditions relate to (i) the presence of cesium and the
additional radionuclides, and (ii) the risk that cesium and the additional radionuclides exceed
Korea's thresholds.52
55. Japan has, in turn, provided evidence demonstrating two factual propositions relevant to its
claims under Article 2.3: (i) that food products of all origins contain cesium and the additional
radionuclides; and, (ii) that food products of all origins pose a similar – and similarly low – risk of
containing cesium and the additional radionuclides in excess of Korea 's thresholds. Japan has
demonstrated these factual proposition s based on evidence pertaining to the situation at the time
of Panel establishment on 28 September 2015, as well as during the pendency of the Panel
proceedings.53
a. Food products of all origins contain cesium and other radionuclides
56. With respect to the first factual proposition, Japan has demonstrated that food products of
all origins contain cesium and the additional radionuclides.54
57. Beginning with cesium data for Japanese food products , Japan notes that, in the months
immediately following the FDNPP accident, cesium ( 134Cs and 137Cs) levels in food products from
the most affected areas of Japan increased considerably. However, the cesium dispersed rapidly
in the environment, which has been reflected in reduced cesium levels in Japanese food pr oducts,
as established by test results. In addition, the quantity of cesium has decreased due to physical
decay. In particular, 134Cs has largely decayed away since 2011, due to its half -life of two years.
Since the two cesium isotopes were initially present in equal proportions, almost half of the cesium

51 Japan's FWS, para. 221.
52 Japan's FWS, paras. 228-239; Japan's FOS, para. 20; Japan's SWS, para. 109.
53 Japan's FWS, paras. 240-291; Japan's response to Panel Questions 38 and 45, paras. 147-155, 183-
196; Japan's SWS, paras. 109-144; Japan's comments on experts' responses, paras. 9-28; Japan's response to
Panel Question 136, paras. 254-282; Japan's comments on Korea's response to Panel Question 115, paras. 98-
109.
54 Japan's FWS, paras. 240-291; Japan's responses to Panel Questions 38 and 45, paras. 147-155, 183-
196; Japan's SWS, paras. 109-144; Japan's comments on experts' responses, paras. 9-28; Japan's response to
Panel Question 136, paras. 254-263; Japan's comments on Korea's response to Panel Question 115, paras. 98-
102.

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has decayed away. Nonetheless, food products from Japan continue to contain cesium at low
levels.
58. Turning to cesium data for non-Japanese food products, at-the-border testing by both Korea
and Japan, as well as Korea's point-of-sale testing, show what Professor Brenner and Dr. Buesseler
demonstrated based on general scientific knowledge about the impact of prior release events, such
as nuclear weapons testing and Chernobyl: food of non -Japanese ori gin also contains cesium.
While Korea does not test all non-Japanese pro ducts for cesium, between March 2011 and July
2016, it nonetheless detected cesium in excess of 1 Bq/kg but below its threshold of 100 Bq/kg in
281 samples from Korea and the rest of the world. In contrast, Korea tests all imports from Japan
for cesium. Having tested all Japanese food imports for cesium during the period March 2011 to
July 2016, Korea detected cesium between 1 Bq/kg and 100 Bq/kg in 333 samples, which is not
many mor e than it detected as a result of mere random sampling of food from non -Japanese
sources. Importantly, for both Japanese and non -Japanese food, Korea has detected cesium in
samples across all food categories. Similarly, Japan 's at-the-border testing identified a large
number of samples of food from the rest of the world with cesium below 100 Bq/kg.
59. Moreover, test results from Japanese testing schemes covering the additional radionuclides
show that Japanese food products contain the additional radionuclides. Similarly, non-Japanese
food products also contain the additional radionuclides . For instance, point -of-sale test results
submitted by Korea indicate that a number of Korean and non -Japanese food products for which
cesium was detected also contained strontium or plutonium. This evidence is confirmed by what is
known about the radionuclides released during various release events, as explained by
Professor Brenner and Dr. Buesseler, and by test results for Japanese food prod ucts prior to the
FDNPP accident.
60. To recall, Japan has established the factual proposition that food of Japanese and non -
Japanese origin contains cesium and the additional radionuclides both as of 28 September 2015,
and during the pendency of the Panel proceedings.
61. The Panel-appointed experts confirmed the accuracy of Japan's conclusions.55
b. Food products of all origins pose a similar – and similarly low – risk
of containing cesium, strontium, and other radionuclides in excess
of Korea's thresholds
62. Moreover, food of Japanese and non-Japanese origin pose similar – and similarly low – risks
of containing cesium, strontium and the other radionuclides in excess of Korea 's thresholds. This
conclusion is confirmed by evidence compiled on a food category-by-food category basis.56
63. Data from Japan's food monitoring program show that, for fiscal year ( "FY") 2015, more
than 99% of all cesium test results, across all food categories, are at the lowest level (0 -25
Bq/kg), and thus significantly below K orea's threshold of 100 Bq/kg. The evidence for FY 2015
demonstrates that there are only five food categories for which cesium test results in Japanese
food products tested in Japan, have, on occasion, exceeded Korea 's 100 Bq/kg threshold. These
are: (i) wild plants and edible fungi (which includes blueberries and mushrooms); (ii) processed
foods; (iii) game meat; (iv) grains; (v) freshwater fisheries products. These food categories are
the same categories for which higher cesium levels are expected base d on general scientific
knowledge. Indeed, Korea 's and Japan 's at-the-border cesium testing and Korea 's point-of-sale
cesium testing reveal that food of non -Japanese origin in these categories also, on occasion,
exceeds Korea's 100 Bq/kg cesium threshold.
64. Moreover, Japan has demonstrated, on the basis of data from Japanese testing schemes
covering the additional radionuclides , that Japanese food products do not exceed Korea 's
thresholds for the additional radionuclides. Japan has also demonstrated that Japanese fisheries
products with cesium below 100 Bq/kg do not exceed Korea 's thresholds for the additional

55 Compilation of experts' replies, responses to Panel Questions 19, 49 and 52.
56 Japan's FWS, paras. 240-291; Japan's responses to Panel Questions 38 and 45, paras. 147-155, 183-
196; Japan's SWS, paras. 109-144; Japan's comments on experts' responses, paras. 9-28; Japan's response to
Panel Question 136, paras. 264-282; Japan's comments on Korea's response to Panel Question 115, paras.
103-109.

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radionuclides. Similarly, non-Japanese food products do not exceed Korea 's thresholds for the
additional radionuclides. For instance, point-of-sale test results submitted by Korea indicate that a
number of Korean and other non-Japanese food products for which cesium was detected contained
strontium or plutonium below their respective thresholds. This evidence is con firmed by what is
known about the radionuclides released during various release events, as explained by Professor
Brenner and Dr. Buesseler, and by test results for Japanese food products prior to the FDNPP
accident.
65. As noted, Japan has established the factual proposition that food of Japanese and non -
Japanese origins pose a similar – and a similarly low – risk of containing cesium and the additional
radionuclides in excess of Korea 's thresholds both as of 28 September 2015, and during the
pendency of the Panel proceedings.
66. The Panel-appointed experts confirmed the accuracy of Japan's conclusion.57
2. Korea's measures discriminate between Japanese and non -
Japanese products
a. Korea's import bans discriminate between the banned Japanese
products and non-Japanese products
67. Korea treats differently comparable products from countries where the same or similar
conditions prevail. Specifically, the Japanese products that are the subject of Japan 's claim are
simply banned, regardless of the radiation l evel. Korea itself described its import bans as
preventing imports of Japanese fisheries products "regardless of their radioactive contamination ".
In contrast, food products from Korea and third countries are granted market access if cesium
testing of random samples demonstrate the presence of no more than 100 Bq/kg of cesium.58
68. As a result, Korea discriminates against Japanese food products. Specifically, the banned
Japanese products are treated "differently" than food products of Korean and third country origin;
the import bans alter the conditions of competition to the detriment of the banned products, by
denying any opportunity to compete in the Korean market.
b. Korea's pre -market additional testing requir ements discriminate
between Japanese and non-Japanese products
69. Korea's pre -market additional testing requirements likewise discriminate against Japanese
products. For Japanese food products, additional radionuclide testing is required if more than 1
Bq/kg of cesium is detected. In contrast, for food products from other sources, no pre -market
additional testing requirements apply; rather, products from other sources are subject solely to
random cesium testing.59
70. Korea argues that, by virtue of it s point-of-sale testing scheme, all products, regardless of
origin, are subject to additional testing for other radionuclides, if 1 Bq/kg of cesium is detected.
However – and regardless whether point-of-sale testing for additional radionuclides is mandatory60
– Korea's assertions about point -of-sale testing do not resolve the discriminatory treatment
afforded Japanese food products under Korea 's pre-market additional testing requirements, for at
least five reasons.61
71. First, Japanese food products are subject to both pre-market and point -of-sale additional
testing, whereas non-Japanese food products are never subject to pre -market additional testing.62
Second, point-of-sale additional testing is conducted solely for strontium and plutonium, whereas
pre-market additional testing is conducted for 90Sr, 238Pu, 239Pu, 240Pu and 13 other radionuclides.63
Third, point-of-sale additional testing applies to 150 food products, whereas pre -market additional

57 Compilation of experts' replies, responses to Panel Questions 43, 44 and 49.
59 Japan's SWS, para. 146.
60 Japan's response to Panel Question 136, paras. 244-253.
61 Japan's SWS, paras. 47-51.
62 Japan's SWS, paras. 47-51.
63 Japan's SWS, paras. 47-51; Japan's response to Panel Question 136, para. 248.

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testing applies to all Japanese food products.64 Fourth, point-of-sale additional testing applies only
to randomly -selected samples of food found to contain at least 1 Bq/kg of cesium, whereas
pre-market additional testing applies to all consignments of Japanese f ood found to contain at
least 1 Bq/kg of cesium.65
72. Fifth, pre-market additional testing is highly trade restrictive. To begin, compliance with pre-
market additional testing is a condition precedent for Japanese imports to secure market access in
Korea. That is, where an imported Japanese food ite m is found to contain at least 1 Bq/kg of
cesium in pre -market cesium testing, market access for the entire consignment from which that
item was drawn is withheld until pre -market additional testing is completed. In contrast, food
randomly selected for poi nt-of-sale testing is already circulating freely in the Korean market, and
where a randomly-selected food item is found to contain at least 1 Bq/kg of cesium in point-of-sale
testing, the consignment from which that food item originated remains in free cir culation,
unaffected by point-of-sale additional testing on the particular food item at issue.66
73. Moreover, the costs of pre -market additional testing are borne by the exporter, which
substantially increases the costs of exporting to Korea – a fact acknowledged by Korea itself. In
contrast, the costs of point -of-sale additional testing appear to be borne by Korea, which
undertakes the testing.67
74. Accordingly, the treatment afforded to Japanese goods under Korea 's pre-market additional
testing requirements in no way mirrors the treatment afforded to all goods under Korea 's point-of-
sale testing regime. This conclusion applies, whether or not point -of-sale additional testing is
mandatory. Thus, that Korea 's point-of-sale testing regime is applicable to all food products does
not level the playing field for Japanese food.
3. Korea's import bans and pre -market additional testing
requirements discriminate arbitrarily and unjustifiably
a. Similarity of conditions shows unjustifiable discrimination
75. Korea treats differently comparable products from countries where the same or similar
conditions prevail. There exists no rational SPS-related explanation for the difference in regulatory
treatment Korea affords products from Japan, and products from elsewhere.68
76. Korea's regulatory framework seeks to ensure that Korean consumers are not exposed to
radiation in excess of 1 mSv/year from the presence of radionuclides in food; to achieve this
objective, Korea has adopted a cesium threshold of 100 Bq/kg . The low risk that Japanese
products exceed Korea 's 100 Bq/kg threshold for cesium is similar to the low risk that products
from other sources exceed Korea's regulatory threshold. In particular, products of all origins have
contamination levels that fall well within Korea's chosen tolerance limits.69
77. Thus, given that products from Japan and of non -Japanese origins have similar levels of
cesium and additional radionuclides – both in absolute levels and in relation to Korea 's tolerance
limits – they present similar SPS risks. Accordingly, there is no SPS-related rationale to justify the
discriminatory imposition of the import bans and the pre -market additional testing requirements
on Japanese food products that are found to have cesium levels below 100 Bq/kg.
78. The arbitrary and unjustifiable nature of Korea 's measures is further confirmed by the fact
that the decision whether to subject two fish caught in the same fishing area to Korea's at-the-
border additional testing requirements turns on the flag flown by the vessel that caught the fish, or
the place where the fish is processed and/or packed – rather than by the area in which the fish
was caught.70

64 Japan's SWS, paras. 47-51.
65 Japan's response to Panel Question 136, para. 250.
66 Japan's response to Panel Question 136, para. 251.
67 Japan's response to Panel Question 136, para. 252.
68 Japan's SWS, para. 157.
69 Japan's SWS, para. 160.
70 Japan's SWS, para. 163.

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79. Finally, a variety of statements made by Korea further confirm that there exists no rational
SPS-related explanation for the difference in regulatory treatment Korea affords products from
Japan, and products from other sources. 71 An adjudicator should consider statements made by
government officials, in their official capacity, which shed light on the explanation or rationale for
discrimination.72
b. Alleged uncertainties do not justify discriminatory treatment
80. Korea seeks to justify the discrimination of Japanese food products by alleging a number of
uncertainties and insufficiencies in the e vidence: (i) uncertainty about the levels of radionuclides
released during and since the FDNPP accident; (ii) uncertainty regarding the continued and future
release of radionuclides at the accident site; and, (iii) uncertainty regarding the relationship
between cesium and other radionuclides.73
81. None of these alleged claims of uncertainty or insufficiency in the evidence justifies the
discrimination.74 Alleged uncertainty regarding the levels of contamination in Japanese seawater,
sediment, soil and air and alleged uncertainty with respect to continuing and future releases of
radionuclides are irrelevant, because the regulated SPS risks associated with Japanese food are
not only knowable, but known, and they do not justify any discrimination. More sp ecifically, given
that (i) testing is available and reliable, (ii) the testing results are known, and (iii) the testing
results indicate that more than 99 percent of products from Japan are within Korea 's regulatory
threshold of 100 Bq/kg, there is no basi s on which any alleged uncertainties in general
environmental conditions in Japan would justify the discrimination. This has also been confirmed
by the Panel-appointed experts.75
82. Korea's assertion regarding lack of certainty about the relationship betw een cesium and
other radionuclides must likewise be dismissed. As confirmed by the Panel -appointed experts,76
and Professor Brenner and Dr. Buesseler, 77 any uncertainty that may exist regarding this
relationship exists similarly for food products from all origins, and does not undermine Japan 's
factual propositions.
c. Radioactivity from both the FDNPP accident and other release
events is part of the "ordinary environment"
83. Korea asserts that the challenged measures are designed to ensure that exposure to
radiation from food consumed by Korean consumers remains at a level that exists in the "ordinary
environment".78 To Korea, the contribution to radionuclide contamination lev els made by the
Chernobyl accident and by weapons testing is part of the "ordinary environment"; in contrast, the
contribution to radionuclide contamination levels made by the FDNPP accident is not.79
84. Japan recalls that the "ordinary environment", i.e., a world without man-made radionuclides,
ceased to exist in the 1940s. Radiation release events since the 1940s have dispersed
radionuclides widely. All of these man-made radionuclides are now a "given" in the environment –
until such time as they undergo radioactive decay. Thus, the "ordinary environment " to which
Korea refers has long ceased to exist.80
85. Moreover, these events have, in general terms, released the same main group of man -made
radionuclides into the environment. In this respect, there exists no scientific basis to consider

71 Japan's SWS, paras. 168-172; Japan's FWS, para. 305.
72 Japan's SWS, para. 207.
73 Japan's SWS, para. 178.
74 Japan's SWS, paras. 181-182.
75 Compilation of experts' replies, responses to Panel Questions 12, 15, 26, 44, 59, 91, 92.
76 Compilation of experts' replies, responses to Panel Questions 44, 57, 89; Transcript of the meeting
with the Parties, paras. 3.176, 3.180.
77 Japan's SWS, para. 188.
78 Japan's SWS, paras. 190-191.
79 Japan's SWS, para. 192.
80 Japan's SWS, para. 193.

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radionuclides from the FDNPP accident to be any less part of the "ordinary environment " than
other nuclear releases.81
C. Korea's import bans and pre -market addition al testing requirements are
inconsistent with the second sentence of Article 2.3 of the SPS Agreement
86. All arguments and evidence demonstrating the inconsistency of the import bans and the pre-
market additional testing requirements with the first senten ce of Article 2.3 also establish that
Korea's import bans and pre -market additional testing requirements amount to a disguised
restriction on international trade. Moreover, both measures are prohibitive and – as has been
admitted by Korea – aim to exclude Japanese products from the Korean market.82
VIII. KOREA'S IMPORT BANS AND PR E-MARKET ADDITIONAL TE STING REQUIREMENTS A RE INCONSISTENT
WITH ARTICLE 5.6 OF THE SPS AGREEMENT
A. Interpretation of Article 5.6 of the SPS Agreement
87. Article 5.6, read with footnote 3, sets out a three -pronged test. To establish that an SPS
measure is more trade-restrictive than required, a complainant must demonstrate that there is an
alternative measure that: (i) achieves the regulating Member's ALOP; (ii) is significantly less trade-
restrictive than the challenged SPS measure; and (iii) is reasonably available, taking into account
technical and economic feasibility.83
88. The proposed alternative must, first, achieve the regulating Member 's ALOP. Demonstrating
this eleme nt of Article 5.6 involves the following three conceptual steps: (i) identifying the
regulating Member 's ALOP; (ii) determining what level of protection would be achieved by the
proposed alternative measure; and (iii) comparing the two, to verify that the alternative measure
achieves the regulating Member's ALOP.84
B. Korea's import bans and pre -market additional testing requirements are
inconsistent with Article 5.6 of the SPS Agreement
89. Japan has demonstrated that Korea 's import bans and pre -market additional testing
requirements are inconsistent with Article 5.6 because cesium testing achieves Korea 's ALOP and
is significantly less trade-restrictive.
1. Japan's alternative measures achieve Korea's ALOP
a. Korea's ALOP for radionuclide contamination in food is 1 mSv/year
90. Korea's ALOP aims to ensure that the dose exposure of Korean consumers from
radionuclides in food remains below 1 mSv/year.85 In September 2013, Korea provided Japan with
a document that describes 1 mSv as the "[l]imit of annual radiation dose that is allowed through
food for the public ". In September 2014, Korea informed Japan that its ALOP for exposure to
radiation from the ingestion of food contaminated with radionuclides is "based on the Codex
Standards". Codex, in turn, sets out exposure guidelines for food "based on an intervention
exemption level of 1 mSv in a year ". In 2015 and 2016, Korea issued explanatory materials that
describe the "dose limit for general public (except for medical purpos es)" as 1 mSv/year. Finally,
in its submissions to the Panel, Korea has clarified that "[t]he 1 mSv/year radiation exposure limit
is a Codex benchmark that Korea has adopted, in order to quantify the highest radiation exposure
it is willing to accept". Korea's characterization echoes the SPS Agreement, which defines an ALOP
as a Member's "acceptable level of risk".

81 Japan's SWS, para. 194.
82 Japan's SWS, paras. 211-212.
83 Japan's FWS, para. 61.
84 Japan's FWS, paras. 318-328.
85 Japan's FWS, paras. 337-339; Japan's FOS, paras. 56-57; Japan's SWS, paras. 220-234; Japan's
SOS, paras. 53-65; Japan's comments on Korea's response to Panel Questions 140 144, paras. 249-263, 271-
276.

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91. The Appellate Body has explained that a Member 's consistent expression of its ALOP, made
outside the context of dispute settlement procee dings, should be accorded significant weight.
Thus, Korea's repeated statements, over several years prior to this dispute, to the effect that its
ALOP is 1 mSv/year, deserve significant weight.
92. Nonetheless, Korea argues before the Panel that its ALOP is not 1 mSv/year, but is instead
"as low as reasonably achievable" ("ALARA").
93. In response to Panel questions, the ICRP clarified that ALARA "is a process, rather than an
endpoint", and that it refers to a "culture … a reference framework, a state of mind, and attitude".
The ALARA principle, therefore, cannot be an ALOP. Annex A(5) to the SPS Agreement defines an
ALOP as a "level of protection". The word "level" indicates a "position" on a "scale" in respect of
an extent or amount. ALARA does not identify a particular "level" of protection, but describes a
"process" for "optimization" of protection.
94. Moreover, under Article 5.6, the "level" of protection – whether expressed qualitatively or
quantitatively – must be capable of serving as a benchmark or point of comparison for assessing
necessity. According to the Appellate Body, an ALOP cannot be determined "with such vagueness
or equivocation that the application of the relevant provisions of the SPS Agreement … becomes
impossible". Thus, whi le Members can set their own ALOP, it cannot be so imprecise that it is
unable to serve as a benchmark.
95. While ALARA cannot be an ALOP, Japan does not question that, in Korea, the ALARA
principle serves its intended purpose as a process for optimizing protection. Korea 's commitment
to the ALARA principle does not, however, alter its maximum exposure level of 1 mSv/year, which
it has explicitly identified as "the highest radiation exposure it is willing to accept", or its ALOP.
96. Finally, Korea also argues that its ALOP is to maintain radionuclides in food at levels that
exist in the "ordinary environment ". The Panel -appointed experts confirmed that the notion of
"ordinary" background radiation levels is not a recognized scientific concept. Indeed, "ordinary"
background radiation levels differ significantly even within a country, making the concept arbitrary,
variable, and unsuited to serve as an ALOP. In any event, the experts confir med that an annual
dose limit of 1 mSv/year for exposure to man-made radiation in food does not add meaningfully to
the background doses received.86
b. Cesium testing is a less trade-restrictive alternative
97. As a less trade -restrictive alternative ( "LTRA") to both Korea 's import bans for the
28 fisheries products and Korea 's at -the-border additional testing for Japanese food products,
Japan has proposed that Korea test for cesium to ensure that Japanese food products contain no
more than 100 Bq/kg of cesium.87
98. Korea disputes that cesium testing alone could constitute a proper "alternative" to the at -
the-border additional testing requirements; to Korea, cesium testing is not an "alternative" to, or
"different" from, the measure currently applied.88
99. Korea errs. To understand whether an LTRA is "alternative" to, and "different" from, a
challenged measure, it is necessary to identify the features of the challenged measure, and to
compare them with the features of the LTRA. In Korea, the requirem ent to test for additional
radionuclides is triggered where cesium levels are between 0.5 Bq/kg and 100 Bq/kg. As a result,
cesium testing is an integral element of additional testing, because the requirement to undertake
additional testing depends on the results of a prior cesium test. Replacing a measure that
combines, in an integrated fashion, cesium testing and additional testing, with one part of that
measure – cesium testing alone – is, by virtue of the omission of additional testing, an LTRA that
is "alternative" to, and "different" from, the existing measure. Put simply, a measure comprising
element A is different from a measure comprising elements A and B.

86 Compilation of experts' replies, paras. 3.12, 3.15; Transcript of Panel meeting with the experts,
paras. 2.7, 2.30, 2.33.
87 Japan's FWS, paras. 314, 333, 450; Japan's SWS, para. 219.
88 Korea does not dispute that cesium testing is properly an alternative measure to its import bans.

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100. Korea's reliance on the Appellate Body Report in Brazil – Tyres is inapposite. In that dispute,
the EC challenged an element of a set of measures that each contributed independently to the
achievement of the policy objective at issue. The EC proposed eliminating some elements of the
set of measures, without replacing them with other measu res that made an equivalent
independent contribution to the objective . Removing a single element of this set of measures
necessarily reduced the overall contribution from the remaining measures to the policy objective,
since each element contributed independently.
101. In contrast, and as discussed in the next section, when cesium levels in Japanese food
products are below 100 Bq/kg, additional testing makes no independent contribution to Korea 's
ALOP, and is, thus, redundant; additional testing is simpl y not needed to protect the public health
objective underlying Korea 's ALOP of 1 mSv/year. Unlike in Brazil – Tyres, proposing to remove
additional testing does not undermine the achievement of Korea 's ALOP, because it removes a
redundant element of the measure.
102. As a practical matter, the fact that cesium testing alone is "different" from the existing
measure is evident to Japan's fishermen and farmers, because elimination of the additional testing
requirements would significantly enhance competitive opportunities for their products.
103. The Panel should, therefore, reject this attempt by Korea to evade scrutiny of its measures,
and find that cesium testing properly constitutes "another measure", within the meaning of Article
5.6.89
c. Testing to ensure that cesium levels remain below 100 Bq/kg is an
alternative measure that achieves Korea's ALOP
104. As just alluded to, cesium testing alone achieves Korea 's ALOP of ensuring that the dose
exposure of Korean consumers from radionuclides in food remains below 1 mSv/year. Indeed, food
products from Japan, with cesium levels below 100 Bq/kg, pose no risk that dose exposure of
Korean consumers would exceed Korea's ALOP of 1 mSv/year.90
105. Japan's evidence for this factual proposition rests o n two main approaches. First, Japan has
relied on evidence from the derivation of its own 100 Bq/kg cesium threshold, which is designed to
ensure, based on conservative assumptions, that exposure of Japan 's population to radionuclides
in food remains below 1 mSv/year. Second, numerous test results for cesium and other
radionuclides (in particular strontium, the only other radionuclide that makes more than a
negligible contribution to the overall dose) show that, where cesium is below 100 Bq/kg, Japanese
food products pose no risk that dose exposure for consumers from cesium and other radionuclides
in food would exceed 1 mSv/year.
106. Concerning the first of these approaches, Japan 's calculations of its 100 Bq/kg threshold
follow a standard methodology, and are scientifically sound. Japan 's adoption of a cesium
threshold reflects the dominant role of cesium in releases and contamination from the FDNPP
accident, both in terms of activity levels and dose contribution. Based on measurements of the
relationship between cesium and the other radionuclides, Japan calculated a cesium threshold
designed to ensure that the combined exposure from cesium and the additional radionuclides
would not exceed 1 mSv/year. In undertaking its calculation, Japan used a formula pr ovided by
Codex, with the addition of a number of assumptions that are far more conservative than dictated
by Codex: (i) Japan assumed that 50 percent of food contains the relevant radionuclides at the
threshold level, whereas Codex assumes just 10 percen t; (ii) compared to Codex 's assumption,
Japan assumed that larger amounts of foods are consumed per year; and, (iii) rather than
regulating groups of radionuclides in isolation, Japan took into account the quantitative
relationships (or ratios) between the relevant radionuclides. Japan thereby calculated a threshold
for cesium that ensures that the combined exposure from all relevant radionuclides does not
exceed 1 mSv/year. Whereas Codex 's cesium threshold is 100 0 Bq/kg, Japan calculated a
100 Bq/kg cesium threshold.

89 Japan's SCS, paras. 23-27; Japan's response to Panel Question 146, paras. 295-320.
90 Japan's FWS, paras. 340-394, 451-452; Japan's FOS, paras. 58-68; Japan's responses to Panel
Questions 54, 61, paras. 244-277, 285-300; Japan's SWS, paras. 235-289; Japan's comments on experts'
responses, paras. 29-65; Japan's response to Panel Question 148, paras. 321-342; Japan's comments on
Korea's response to Panel Question 115, paras. 110-113.

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107. The Panel-appointed experts unequivocally confirmed Japan 's calculations as supporting the
proposition that food products from Japan, with cesium levels below 100 Bq/kg, pose no risk that
dose exposure of Korean consumers would exceed Korea's ALOP of 1 mSv/year. The experts
described Japan 's calculation and the conclusions drawn as "standard", "straightforward",
"appropriate", "adequate", and "scientifically supported".91
108. Although Korea disagrees, and argues that Japan's calculation of Japan's cesium threshold is
flawed, Korea has steadfastly declined to provide Korea's calculation of Korea's own thresholds for
cesium and other radionuclides. In any event, Japan has demonstrated that Korea is wrong in
asserting that Japan erroneously relied on a fixed ratio of cesium to the additional radionuclides,
and applied a so -called "scaling factor method". Instead, Japan appr opriately relied on estimated
relationships that reflect an average spread, over an entire year's worth of food, during which each
meal could have a very different Cs:Sr ratio, without that variability calling into question Japan 's
conservative calculation.
109. Concerning the second approach identified in paragraph 105, Japan relied on data from
actual measurements of radionuclide activity levels in food and resulting dose exposure to
demonstrate that food products from Japan, with cesium levels below 100 Bq/kg, pose no risk that
dose exposure of Korean consumers could exceed Korea's ALOP of 1 mSv/year.
110. Japan, and its experts Professor Brenner and Dr. Buesseler, adopted an approach that
considered (i) the source term (i.e., the radioactivity released from the FDNPP); (ii) contamination
levels in the environment, including in seawater and sea sediment; (iii) contamination levels in
food products, including fisheries products; and (iv) resulting dose exposure for humans from the
consumption of Japanese food products. Japan and its experts also considered available scientific
knowledge regarding the behaviour of radionuclides in the environment and in food. The Panel -
appointed experts confirmed this holistic approach.92
111. Adopting a framework develop ed by Merz et al (2015), a nd proposed by Korea,
Professor Brenner and Dr. Buesseler initially demonstrated compliance of Japanese food products
with Korea's ALOP by plotting cesium levels in individual samples against a strontium -to-cesium
ratio from the s ame sample. Following criticism from Korea, and suggestions from the Panel -
appointed experts, Japan's experts then established the same conclusions, using a modified Merz
plot based on absolute cesium and strontium levels.
112. As shown below, Professor Brenner and Dr. Buesseler analysed, on the basis of these
modified Merz plots, (i) fisheries products caught largely in Fukushima prefecture, and (ii)
duplicate meals collected from consumers in Fukushima prefecture . Professor Brenner and
Dr. Buesseler did so based on evidence (i) pertaining to the situation at P anel establishment on
28 September 2015, and (ii) during the pendency of the Panel proceedings. At either point in
time, and even if that same fish or meal were eaten for an entire year , the graph s show no test
results where exposure levels would be anywhere close to 1 mSv/year.

91 Compilation of Panel experts' replies, paras. 5.27, 5.36, 5.18. 5.15, 5.21 and 5.26.
92 Transcript of Panel meeting with experts, paras. 1.148, 1.151, 3.176, 3.177, 3.180.

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113. Professor Brenner and Dr. Buesseler also performed the same analyses for every other
dataset relating to Japan's cesium and strontium testing schemes, with identical conclusions.
114. Moreover, Japan's experts calculated total annual dose exposure, using every available data
set. For example, they determined that the dose exposure from average meals consumed in
Fukushima prefecture in 2015 was 0.004 mSv, sign ificantly below 1 mSv/year. Given that only
0.37 percent of Korean food consumption is of Japanese origin, dose exposure for Korean
consumers would be 1/250th of 0.004 mSv/year, and thus negligible.
115. While Korea has highlighted small differences bet ween Japanese and Korean diets –
including the consumption in Korea of whole fish, including bones and shells – these differences
are not meaningful enough to affect Japan 's conclusions. Indeed, with respect to fisheries
products, Japan calculated dose ex posure, assuming, conservatively, that all 90Sr contained in
bones and shells is consumed. Japan, thereby, overestimated dose exposure from strontium
bound in bones and shells that are not consumed.
116. The Panel-appointed experts supported not only the holistic approach adopted by Japan and
its experts, but also the adequacy of the methodologies employed and the sufficiency of the
evidence, including the number of test results. Moreover, the Panel -appointed experts provided
independent calculations, using the evidence submitted by Japan. Like Japan, the Panel-appointed
experts concluded that food products from Japan, with cesium levels below 100 Bq/kg, pose no
risk that dose exposure of Korean consumers could exceed Korea's ALOP of 1 mSv/year.93
2. Japan's alternative measure is significantly less trade restrictive
a. Cesium testing is significantly less trade -restrictive than Korea 's
import ban
117. The challenged measures involve bans on the import of fisheries products. The alternative
measure – i.e., testing to verify that cesium levels do not exceed Korea 's 100 Bq/kg threshold – is
significantly less trade restrictive than an outright ban.94
b. Cesium testing is significantly less trade restrictive than Korea 's
pre-market additional testing requirements
118. Korea's pre -market additional testing requirements are trade restrictive because: (i) the
duration of pre -market additional testing for the other Codex radionuclides means that exporting
to Korea takes additional time beyond the time required for cesium testing; (ii) the conduct of pre-
market additional testing for the additional radionuclides imposes increased costs on export to
Korea, beyond the costs incurred for cesium testing; and, (iii) pre -market additional testing must
be conducted in Japan . The time and cost factors are each sufficient, on their own , to
demonstrate that cesium testing is significantly less trade restrictive than the pre -market

93 Compilation of Panel experts' replies, responses to Panel Questions 37, 77, 90.

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additional testing requirements. 95 It is not surprising that Korea itself describes its additional
testing requirements as, "in effect", "a total import ban".
119. In contrast to Korea 's pre -market additional testing requirements, cesium te sting can be
completed in a short period of time, is inexpensive, and is already routinely carried out by Korea at
the border on all food imported from Japan. Thus, none of the increased time and expense
associated with Korea's additional testing would arise under Japan's alternative measure.96
i. Time required for pre-market additional testing
120. Testing for additional radionuclides such as strontium pursuant to Korea 's pre -market
additional testing requirements involves a complex laboratory procedur e that takes considerable
time.97 For example, cesium and strontium testing differ because cesium is a Gamma emitter, and
strontium is a Beta emitter. With Gamma emitters, little or no sample preparation is required for
cesium testing. In contrast, testin g for Beta emitters requires a two -step process: first, the
radionuclide must be extracted into a form that can be measured; and, second, the measurement
must be performed.98
121. Korea acknowledges that "[t]esting for other radionuclides takes more than 6 weeks", and
concedes that more time is required to carry out strontium testing as compared to cesium
testing.99 The Panel -appointed experts agree that strontium testing is more complex and time
consuming than cesium testing.100
ii. Costs involved in pre-market additional testing
122. Undertaking the pre -market additional testing is also more costly than cesium testing. The
costs of Korea 's additional testing amount to roughly half of the average consignment value of
fisheries products (USD 16,000) e xported from Japan to Korea. 101 This is equivalent to an
additional 50% tariff on Japanese food products.
iii. Shipping products back to Japan
123. In the only affirmative indication of the required location for at-the-border additional testing,
Korea states that it requires additional testing to take place in Japan.102 Requiring that food be
shipped back to Japan for at -the-border additional testing lengthens the time for the testing, as
well as the costs associated with that testing.103
124. Without support, Korea asserts that pre-market additional testing can be conducted in Korea
by testing institutes authorized by Japan to ensure consistency with Japanese food safety
regulations. Japan is not aware of any provision of Korean law that would permit Japan to
authorize testing institutes to ensure consistency with Korean regulations on radionuclide content
in food; nor is Japan aware of the process to follow under Korean law for Japan to deliver such
authorizations.104
3. Japan's alternative measure is available and feasible
125. Korea already undertakes routine cesium testing on all Japanese imports. Thus, Japan 's
alternative measure is self -evidently reasonably available and technically and economically
feasible.

95 Japan's SOS, para. 71.
96 Japan's SWS, para. 293.
97 Japan's SOS, para. 69.
98 Compilation of Panel experts' replies, paras. 5.85 and 5.86.
99 Japan's SOS, para. 69.
100 Compilation of experts' replies, response to Panel Question 87.
102 Japan's SWS, para. 301.
103 Japan's SWS, paras. 301-302.
104 Japan's SWS, para. 303.

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IX. ARTICLE 7 AND ANNEX B OF THE SPS AGREEMENT
A. Korea's failure to publish the import bans and the pre -market additional
testing requirements, in violation of Article 7 and Annex B(1)
1. A Member must promptly publish its SPS regulations, and Korea
has failed to do so
126. Annex B(1) requires the publication of SPS regulations in their entirety. To begin,
Annex B(1) explicitly states that a Member must publish its SPS "regulations". Footnote 5 clarifies
that SPS "regulations" are "sanitary and phytosanitary measures such as laws, decrees or
ordinances". As such, it is the regulation itself that must be published, and not a summary,
synopsis, or other description of the text.
127. This understanding is supported by relevant context, including the contr ast between
Annex B(1) and Annex B(5)(a). Whereas the former requires the publication of the SPS regulation
itself, the latter merely requires the publication of a "notice" detailing a proposed SPS measure.
Once the SPS measure is "adopted", and the final measure is available, Annex B(1) states that the
SPS "regulation" must be published. The drafters ' choice of the word "regulation" in Annex B(1),
as opposed to "notice" or "summary", must be given effect.
128. Other terms in Annex B(1) provide further context for this inte rpretation. Annex B(1)
requires that publication be sufficient to enable Members to become "acquainted" with the
SPS regulation. Without publication of the SPS regulation itself, Members are unable to determine
whether they are, in fact, acquainted with the regulation, since they are unable to ascertain if
pertinent information from the SPS regulation has been omitted in the publication.
129. Korea has published a number of press releases announcing the introduction of its import
bans and its additio nal testing requirements. However, the content of these press releases is
inadequate, as they fail to provide a vast amount of important information. Since Korea 's press
releases do not publish the full text of the measures, Korea has acted inconsistentl y with Article 7
and Annex B(1).105
2. The publication must enable a Member to become "acquainted
with" the SPS regulation, and Korea's press releases fail to do so
130. Even if Annex B(1) did not require the publication by Members of t he full text of an
SPS regulation, Korea's press releases do not allow interested Members to become "acquainted"
with its SPS regulations. The phrase "acquainted with" means "familiar with a matter, state, etc.,
esp. to an extensive degree ". As such, publication must be accomplished in a manner that allows
interested Members to become "familiar" to "an extensive degree" with the regulatory treatment to
which their goods will be subject under the SPS regulation.
131. The word "extensive" highlights that the required degree of familiarity is considerable.
Based on the publication, an interested Member must be able to grasp: in what circumstances the
regulation applies, including the product scope and trigger conditions (e.g., rules of orig in or
contamination thresholds governing whether the rules apply); how its goods will be treated when
the rules apply; what substantive and procedural requirements its exports and exporters are
required to meet; and, how its exporters may meet those requir ements. The case law considering
similar obligations under Article X:1 of the GATT 1994 confirms that, to become acquainted with a
measure, publication must allow interested parties to gain "more or less complete " knowledge of
what is required for goods to enter the relevant market.
132. The press releases announcing the challenged Korean measures fall far short of providing
sufficiently detailed and comprehensive information to allow interested Members to gain
"extensive" or "more or less complete " familiarity and knowledge of what is required for their
goods to enter the Korean market. Specifically, the press releases introducing the measures fail to
specify information about, inter alia: product scope; applicable rules of origin; applicable
thresholds to trigger additional testing; the additional radionuclides for which additional testing is

105 Japan's FWS, paras. 164-178; Japan's SWS, paras. 310-321.

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required; where the additional testing should take place; and, the methodology or conditions for
the testing. The press releases do not even provide the degree o f information r equired by
Annex B(5) for proposed SPS regulations.
133. Korea admits that the press releases do not provide sufficient information to enable
interested parties to become acquainted with its regulations. Korea has said that Korean
enforcement authorities are provided with additional information – not published in the press
releases – so that they can understand what is required under the measures, and how they are to
be applied. Regrettably, Japan and its exporters were not provided with this additional information
so that they could also become acquainted with the measures.
134. Korea argues that it should be exempted from the requirement to publish sufficient details
about its SPS regulations because of the emergency situation arising fro m the FDNPP accident.
However, nothing in Annex B absolves a Member from the obligation to publish an emergency
measure. In any event, Korea has failed, in the many years since the FDNPP accident and the
adoption of its measures, to offer publication tha t is sufficiently detailed and comprehensive to
enable Members to become acquainted with the regulation.106
3. An SPS regulation must be published through a medium that allows
an interested Member to locate it, both on adoption, and through
the life of the regulation, and Korea has failed to do so
135. Annex B(1) requires publication of an SPS measure through a medium that permits
Members readily to locate and identify the measure, when first published, and over the lifetime of
the measure. Members and th eir economic operators cannot be expected to trawl through
archives of press releases, across any number of government mini stry websites, in search of
SPS measures.
136. Korea has published multiple press releases concerning the same measure, on multiple
government websites, in varying locations on each website, and with each press release offering
different, but always very limited, information about the measure. While use of the internet to
publish a measure in a specifically designated location could encourage transparency, the mere
fact of publishing anywhere and anyhow on the internet does not exhaust the obligation under
Annex B(1). Korea 's approach reduces Annex B(1) to inutility, by relieving Korea of the
publication requirement under Annex B(1), and instead placing the burden on other Members and
their economic operators to search for scattered information on government websites, in hopes of
becoming acquainted with the measure.107
B. Korea's SPS Enquiry Point failed to provide Japan with copie s of Korea 's
measures and to respond fully to the reasonable questions posed by
Japan, in contravention of Article 7 and Annex B(3)
1. An SPS enquiry point is required to provide full responses to all
reasonable questions, and Korea's Enquiry Point failed to do so
137. Annex B(3) requires the provision, by an SPS enquiry point, of meaningful responses to
reasonable questions posed by another Member. A meaningful response is a response that is both
substantively adequate, and that addresses the question i n its entirety. Annex B(3) also requires a
Member to provide any "relevant" documents regarding, inter alia, the SPS regulations it has
adopted. The word "relevant" means "legally sufficient, adequate, or pertinent "; "connected with
the matter in hand; closely relating to the subject at hand ". Thus, like any documents provided,
responses to reasonable questions must be adequate in light of the question posed. An
interpretation that reduces Annex B(3) to a procedural obligation to provide a or some response,
irrespective of the substantive content of its response, would allow Members to circumvent their
obligations under Annex B(3).

106 Japan's FWS, paras. 163-178; Japan's SWS, paras. 322-342; Japan's response to Panel Question
156, paras. 346-361.
107 Japan's SWS, paras. 343-353; Japan's comment to Korea's response to Panel Question 114, paras.
56-62.

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138. Japan posed a series of questions to Korea 's SPS Enquiry Point; for all but one of its
questions, Japan either receive d no response, or a substantively inadequate response. As such,
Korea acted inconsistently with Annex B(3).
139. Korea argues that a single instance in which an SPS enquiry point fails to provide a
(substantively adequate) response does not trigger a viola tion of Annex B(3). Korea errs. Annex
B(3) requires that an SPS enquiry point provide a substantively adequate and complete response
to "all" reasonable questions posed by interested Members. An SPS enquiry point cannot pick and
choose to which questions it wishes to respond. In any event, Japan has demonstrated much more
than "a single instance" of an inadequate response.108
2. An SPS enquiry point is required to provide relevant documents,
and Korea's Enquiry Point failed to do so
140. Annex B(3) requir es a Member to provide any "relevant" documents regarding, inter alia,
SPS regulations it has adopted and that are the focus of questions from another Member. The
word "relevant" clarifies that Annex B(3) requires a Member to provide documents that are
pertinent and relate to matters raised in reasonable questions posed. While the refusal to provide
relevant documents is inconsistent with Article B(3), so, too, is the provision of documents that are
not pertinent or relating to the matters raised in those questions. Burying documents that are
relevant to the question posed, amongst voluminous documents that are not relevant, is
inconsistent with Annex B(3), because the receiving Member is unable to determine which of the
documents are relevant to its questions, and which are not.
141. Japan requested a number of different categories of documents from Korea. In response,
Korea's Enquiry Point provided 10,000 pages of documents in Korean language, without indicating
which parts of those 10,000 pages were relev ant to Japan's requests, and failed to provide certain
categories of documents altogether. Japan subsequently asked Korea 's Enquiry Point to indicate
which parts of the 10,000 pages were relevant, and also reiterated its request for documents not
provided. Korea's Enquiry Point declined to respond. Korea has, therefore, acted inconsistently
with Annex B(3).109
X. THE ADDITIONAL TESTIN G REQUIREMENTS ARE I NCONSISTENT WITH ARTICLE 8 AND ANNEX C OF
THE SPS AGREEMENT
142. Japan raises a series of claims under Article 8 and Annex C, which apply to "control,
inspection and approval procedures ". Japan first addresses the proper scope of the phrase
"control, inspection and approval procedures ", before turning to its claims under paragraphs 1(a),
(c), (e) and (g) of Annex C.
A. The pre -market additional testing requirements are subject to Article 8
and Annex C(1) of the SPS Agreement
143. Article 8 provides that "Members shall observe the provisions of Annex C in the operati on of
control, inspection and approval procedures". Annex C is, in turn, entitled "Control, Inspection and
Approval Procedures ", and the chapeau to Annex C(1) states that Annex C applies to "any
procedure to check and ensure the fulfillment of [SPS] measu res". A threshold issue under
Article 8 and Annex C is, therefore, establishing that the measures at issue involve "procedures"
that are for "control, inspection and approval".
144. First, a "procedure" is defined as "[t]he fact or manner of proceeding w ith any action, or in
any circumstance or situation". Thus, a "procedure" refers to the way or manner in which an action
or situation is processed. The chapeau to Annex C states that Annex C(1) applies to "any
procedure". The breadth of the provision is co nfirmed by Article 8 and footnote 7 to Annex C,
which both state that control, inspection and approval procedures "includ[e]" a variety of
measures, thus confirming that the scope of the obligations is not confined to the measures
specifically enumerated.

108 Japan's FWS, paras. 183-193; Japan's SWS, paras. 355-371.
109 Japan's SWS, paras. 372-385; Japan's response to Panel Question 18, paras. 98-101.

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145. Thus, Korea errs in arguing that the scope of Article 8 and Annex C is limited to those
"procedures" that "prescribe a ‘specific course of action ' or dictate a process " for how the
procedure at issue is to be pursued. Nothing in the definition of "procedures", or the text of
Article 8 and Annex C, sets out a minimum requirement of specificity or formality for a measure to
qualify as a "procedure".
146. Second, for procedures to be covered by Article 8 and Annex C, they must be control,
inspection or approval procedures, i.e., they must be procedures that "check and verify "; "look
closely or carefully [into]", or "corroborate" or "confirm", in this case the conformity of goods with
SPS measures. Footnote 7 to Annex C clarifies that this includes pr ocedures for sampling, testing
and certification. Annex C(1) confirms that the "control, inspection or approval procedures "
covered by Article 8 and Annex C are those that "check and ensure the fulfillment of " an
SPS measure.110
147. On the facts, Korea 's additional testing requirements fall within the scope of Article 8 and
Annex C. Korea 's pre -market additional testing and certification requirements are explicitly
covered, under footnote 7 to Annex C, as "procedures for … testing and certification". Moreover,
the pre-market additional testing requirements are "procedures", within the ordinary meaning of
the term, as they address the way or manner in which an action or situation is processed, namely
the testing and certification requirement that must be m et before food from Japan can access the
Korean market. Finally, the pre -market additional testing requirements are procedures ostensibly
taken by Korea to check fulfillment of its thresholds for radionuclide content in food and, hence, its
ALOP of 1 mSv/year.111
B. Annex C(1) permits of "as such" challenges
148. Korea erroneously suggests that Annex C(1) admits solely of "as applied" challenges against
"specific instances " in which procedures are implemented. Korea errs. Annex C(1) imposes
obligations on a general "procedure to check and ensure the fulfilment of sanitary or phytosanitary
measures" – i.e., on a measure "as such" – as well as on individual applications of t hat procedure.
Nothing in Annex C(1) suggests that the obligations are limited to the application of a "procedure"
in an individual instance.112
C. The pre-market additional testing requirements are undertaken in a less
favourable manner for imported prod ucts than for like domestic products,
in violation of Annex C(1)(a)
149. Annex C(1)(a) imposes a non -discrimination obligation, providing that control, inspection,
and approval procedures must be undertaken "in no less favourable manner for imported produc ts
than for like domestic products ". Korea 's pre -market additional testing requirements fail to
comply with this obligation.
1. Interpretation of Annex C(1)(a)
150. To establish an inconsistency with Annex C(1)(a), a complaining Member must establish
that: (i) imported products and domestic products are "like"; and (ii) that the challenged
procedures are undertaken in a "less favourable manner" for imported products than for domestic
products.
151. It is well established that the "likeness" of imported and domestic products can be presumed
where a measure distinguishes between products solely on the basis of origin, without the need to
examine the criteria typically reviewed in a likeness assessment. To determine whether the
challenged procedure is underta ken in a manner less favourable to imported products, context
from Article III of GATT 1994 suggests that the relevant question is whether the procedures are

110 Japan's SWS, paras. 388-400.
111 Japan's SWS, paras. 401-408.
112 Japan's response to Panel Question 157; Japan's comment on Korea's response to Panel Question
157.

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undertaken in a manner that "modifies the conditions of competition" to the detriment of imported
products.113
2. Factual arguments that Korea 's pre -market additional testing
requirements are inconsistent with Annex C(1)(a)
152. Korea acknowledges that the pre-market additional testing requirements apply exclusively to
Japanese products. Accordingly , Japanese products subject to the pre -market additional testing
requirements are presumed to be "like" domestic Korean products.
153. Moreover, the pre -market additional testing requirements significantly impair competitive
opportunities for Japanese pr oducts by, inter alia, imposing increased testing, storage and
transportation costs, in addition to considerably delaying market access. Korea has acknowledged
that these consequences make the pre -market additional testing requirements tantamount to a
ban. Although Korea contends that Japanese products are not treated less favourably than Korean
products because Korean products are subject to point -of-sale additional testing, Japan has
elsewhere demonstrated that Korea 's point -of-sale additional te sting i s different from the
pre-market additional testing requirements in important respects. Finally, in stating its Article 2.3
claim, Japan has established that the additional testing requirements involve arbitrary and
unjustifiable discrimination.114
D. The pre-market additional testing requirements are information
requirements not limited to what is necessary for appropriate control,
inspection and approval procedures, in violation of Annex C(1)(c)
154. Korea's pre -market additional testing requirements and the associated certification
requirements are information requirements not limited to what is necessary for appropriate
control, inspection and approval procedures, in violation of Annex C(1)(c).
1. Interpretation of Annex C(1)(c)
155. An "information requirement", under Annex C(1)(c), is a demand for knowledge pertinent to
the application of an SPS measure. Korea agrees, stating that an information requirement is "a
requirement to produce information that helps ensure compliance or ‘ensure the fulfillmen t' of an
SPS measure".
156. Article 5.6 of the SPS Agreement offers relevant context for the interpretation of the word
"necessary". A procedure is not necessary for purposes of Annex C(1)(c) if there is an alternative
measure that also achieves a Member 's ALOP and that is significantly less trade restrictive and
economically and technically feasible.115
2. Factual arguments that Korea 's pre -market additional testing
requirements are inconsistent with Annex C(1)(c)
157. Korea's pre-market additional testing requirements require that certain facts be certified and
communicated, namely the presence and levels of certain man -made radionuclides in food from
Japan. This information is sought in connection with the control, inspection and approval of
Japanese food for entry to the Korean market.
158. Moreover, the information requirement is not "necessary". Japan has demonstrated that
testing Japanese food products to ensure that cesium activity levels are under 100 Bq/kg ensures
that Korean consumers ' exposure to man -made radionuclides does not exceed Korea 's ALOP of
1 mSv/year. That the information requirement is not "necessary" is also confirmed by the fact that
Korea requests the additional information solely for Japanese food; were the information

113 Japan's SWS, paras. 411-422.
114 Japan's FWS, paras. 469-470; Japan's SWS, paras. 423-436.
115 Japan's SWS, paras. 438-440.

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necessary, Korea would impose similar requirements on food of other origins, which Japan has
demonstrated pose similar risks of containing radionuclides.116
E. The pre-market additional testing of individual specimens is not limited to
what is reasonable and necessary, in violation of Annex C(1)(e)
159. Korea's pre -market additional testing of individual specimens is not limited to what is
reasonable and necessary, in contravention of Annex C(1)(e).
1. Interpretation of Annex C(1)(e)
160. The word "requirements" refers to "[s]omething called for or demanded; a condition which
must be complied with ". An individual "specimen" is a sample taken from a larger consignment,
such that Annex C(1)(e) covers measures imposing control, inspection and approval procedures on
samples, rather than on an entire consignment.
161. The examination whether requirements are "necessary" requires a panel to assess whether
there is an alternative measure that would also achieve the responding Member 's ALOP, and that
is significantly less trade restrictive and economically and technically feasible. Moreover, the word
"reasonable" has been interpreted to mean "something [that] is ‘not irrational, absurd or
ridiculous'", and that "is appropriate or suitable to the circumstances or purpose ". Requirements
for control, inspection and approval of individual specimens must be both "reasonable and
necessary".117
2. Factual arguments that Korea 's pre -market additional testing
requirements are inconsistent with Annex C(1)(e)
162. Every consignment of Japanese food exported to Korea is sampled and subject to at -the-
border cesium testing. Every sample in which cesium is detected is then subjected to at-the-border
additional testing for the other radionuclides. As such, all "individual specimens" in which cesium
is detected are subjected to the at -the-border additional testing requirements, ostensibly to
control compliance with Korea 's tolerance limits for radionuclides in food. In contrast, non -
Japanese food imports are subject only to random at-the-border sampling for cesium, and no at -
the-border additional testing.
163. As established above with respect to Annex C(1)(c), Korea 's pre-market additional testing
requirements are not "necessary" to secure compliance with Korea's 1 mSv/year ALOP. Moreover,
at-the-border additional testing must be undertaken in Japan, which requires storage of the
consignment at the border while a sample is shipped back to Japan to undergo additional
testing. Even if testing were to take place in Korea, the delays and costs attendant to the
additional testing requirements are unreasonable, particularly in the circumstance of perishable
products. Accordingly, the pre -market additional testing requirements are not appropriate to the
circumstances, and are, therefore, not "reasonable".118
F. The pre -market additional testing requirements do not use the same
criteria for the siting of facilities and the selection of samples for imported
products as are used for domestic products, in violation of Annex C(1)(g)
164. Korea's pre-market additional testing requirements do not apply the same criteria for the
siting of test facilities and the selection of samples for imported products as they do for domestic
products, in contravention of Annex C(1)(g).
1. Interpretation of Annex C(1)(g)
165. The term "siting of facilities " refers to the location of the facilities where pre -market
additional testing is performed; the term "selection of samples ", in turn, refers to a process
whereby authorities select, for testing, a su b-part of a larger group of products (e.g., a

116 Japan's SWS, paras. 441-448.
117 Japan's FWS, para. 479; Japan's SWS, paras. 450-456.
118 Japan's FWS, para. 480; Japan's SWS, paras. 452, 457-464.

- B-27 -

consignment), for the purpose of enabling or verifying conclusions about relevant SPS -related
qualities of the larger groups of products. While Members are, under Annex C(1)(g), in principle
free to choose the sampling criteria and the criteria for the siting of testing facilities they consider
appropriate, in so doing, they are required to use "the same criteria" for imported products as they
use for domestic products.119
2. Japan's arguments that Korea 's pre -market additional testing
requirements are inconsistent with Annex C(1)(g)
166. Korea does not apply the same sample selection criteria for Japanese and Korean products.
Indeed, Korea 's pre -market additional testing requirements are applied exclusively to Japanese
products, and do not apply to Korean products at all. Japan accepts that Korea applies the same
sampling criteria for point-of-sale additional testing, regardless of origin. However, while domestic
food products are potentially subject to addit ional testing only once, at point -of-sale, Japanese
food products are subject to additional testing twice – pre-market and potentially at point -of-sale.
This difference in treatment amounts to the application of different sampling criteria.
167. In any e vent, even were the Panel to compare sampling criteria under Korea 's pre-market
and point -of-sale schemes, the applicable sampling criteria remain dissimilar. The requirement
that additional testing take place for food products in which cesium at or above 1 Bq/kg is found
applies, under the pre-market additional testing measure, to all consignments of all Japanese food
imports, while additional testing under the point -of-sale measure applies only to those products
that happen to be randomly sampled, from th e sub-categories of products that Korea subjects to
point-of-sale sampling in the first place.
168. Moreover, under pre -market additional testing, Korea imposes more burdensome siting
requirements on Japanese products than are imposed on Korean products, because Japanese
products must be returned to Japan to conduct additional testing. To the extent that Korean food
products are subject to point -of-sale additional testing, they are tested in the co untry of
destination for sale, not in another country. Thus, Korea does not impose the "same criteria" for
siting requirements on imported and domestic products, because point -of-sale additional testing
can take place without shipping the product to another country.120
XI. CONCLUSION AND REQUEST FOR RELIEF
169. Japan respectfully requests the Panel to find that:
 with respect to the import bans and the additional testing requirements, Korea
failed to comply with the transparency requirements in Article 7 and paragraphs 1
and 3 of Annex B to the SPS Agreement;
 Korea's import bans on the 28 fisheries products and K orea's additional testing
requirements are inconsistent with Articles 2.3 and 5.6 of the SPS Agreement.
 Korea's additional testing requirements are inconsistent with Article 8 and
paragraphs 1(a), 1(c), 1(e) and 1(g) of Annex C to the SPS Agreement.
170. Japan respectfully requests the Panel to recommend to the Dispute Settlement Body that
Korea be required to bring its import bans and additional testing requirements into conformity with
the covered agreements.

119 Japan's SWS, paras. 466-471.
120 Japan's FWS, paras. 485-489; Japan's SWS, paras. 472-478; Japan's comments on Korea's response
to Panel Question 159.

- B-28 -

ANNEX B-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF KOREA
I. INTRODUCTION
1. Korea is justified in taking provisional measures under Article 5.7 of the SPS Agreement in
response to one of the most severe environmental disasters of the century, which is continuing to
cause significant contamination of the environment. As Korea 's submissions in this dispute have
demonstrated, Japan has failed to sustain its burden of proof with respect to all of its claims.
Specifically, Japan has not shown that Korea 's targeted SPS measures taken in re sponse to the
radioactive contamination stemming from the Fukushima Dai-ichi Nuclear Power Plant (FDNPP) are
inconsistent with Article 2.3, Article 5.6, Article 7 / Annex B, and Article 8 / Annex C of the
Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement).
2. A fundamental aspect of the SPS Agreement is to maintain the sovereign right of the
regulating Member to determine its own level of protection and to conduct its own risk
assessments. Moreover, the SPS Agreement allows a government to take temporary,
precautionary measures when it considers that the scientific evidence is not sufficient to determine
whether a product is safe, and in particular, to conduct a risk assessment. Korea notes that Japan
has not challenged Korea's SPS measures under Article 5.7 of the SPS Agreement.
3. Japan has the burden of establishing each of its claims. With respect to Article 2.3 of the
SPS Agreement, the Appellate Body recently clarified that "notwithstanding certain similarities
between its language and that of the chapeau of Article XX of the GATT 1994, Article 2.3, first
sentence, of the SPS Agreement, sets out an obligation and is not expressed in the form of an
exception. Thus, a complainant raising a claim that a Member 's SPS measure is inconsistent with
Article 2.3, first sentence, bears the overall burden of establishing its prima facie case of
inconsistency."1
4. In the case of Article 5.6 of the SPS Agreement, Japan must adduce sufficient evidence to
raise a presumption that its proposed alternative measures would achieve Korea 's appropriate
level of protection. 2 With respect to the role of experts in the assessment under Article 5.6, the
Appellate Body has held that "[e]xperts may assist a panel in assessing the level of risk as sociated
with SPS measures and potential alternative measures, but whether or not an alternative
measure's level of risk achieves a Member 's appropriate level of protection is a question of legal
characterization, the answer to which will determine the con sistency or inconsistency of a
Member's measure with its obligation under Article 5.6."3 Thus, "[a]nswering this question is not a
task that can be delegated to scientific experts".4
II. FACTUAL BACKGROUND
5. There is no dispute that the FDNPP accident co nstitutes the most significant release of
radionuclides from a nuclear accident into the marine environment, and the releases continue.
Scientific information about the accident and subsequent releases, as well as about the impact on
the environment, remains limited.
A. The Significant Release of Radionuclides from the FDNPP Accident
6. Japan understates the extent of the release of radionuclides from the FDNPP accident. While
scientific knowledge on the amount and types of radionuclides released and con tinuing to be
released from the FDNPP remains insufficient, there is no dispute among the scientific community
that vast amounts of radionuclides were released from the FDNPP accident.

1 Appellate Body Report, India – Agricultural Products, para. 5.260. (footnote omitted)
2 Appellate Body Report, Australia – Apples, para. 404.
3 Appellate Body Report, Australia – Apples, para. 384.
4 Appellate Body Report, Australia – Apples, para. 384.

- B-29 -

7. Estimates tend to converge to between 15 and 20 PBq for the combined FDNPP inputs of
Cs-137 from atmospheric fallout and direct discharge to the North Pacific. This represents an
additional input of approximately 25 per cent more Cs -137 than existed in the North Pacific prior
to the FDNPP event from nuclea r weapons testing. Moreover, approximately 1.0 -2.4 x 10 9 Bq of
Pu-239, 240 was released into the environment from the FDNPP reactors. Most of the Sr -90
released from the FDNPP was directly discharged to the North Pacific, with estimates of total
inventories ranging from 0.04 to 1.0 PBq. There have also been ongoing spills of liquid radioactive
waste from the FDNPP into the ocean causing Sr -90 activities to exceed those of Cs -137 in the
ocean near the FDNPP. However, strontium remains one of the most under studied radionuclides
from the FDNPP accident.
8. In all, the FDNPP accident caused about 30,000 km 2 of Japanese territory to be
contaminated with different types of radionuclides from the nuclear fallout , in addition to the
contamination of sea sediments. Given the relatively long half -life of Cs -134 and Cs -137, these
isotopes are still a significant source of radioactive contamination in the environment, particularly
in forests that cover 75 percent of the contaminated territory.
B. Elevated Levels of Cesium Continue to be Detected
9. Japan also downplays elevated levels of cesium that are still found in the environment
surrounding the FDNPP and in food products. The levels of cesium contained in soil particles on the
flood plains in the downstream are as of Fukushima's rivers have been found to be significant and
to potentially increase the local radiation dose.
10. Japan also disregards scientific data that continue to show elevated levels of cesium in fish
samples. Fishery species caught near the FDNP P still show high levels of contamination. The
cesium monitoring results of fishery products caught within the port near the FDNPP, which Japan
did not provide to the Panel, show measurements up to 223,000 Bq/kg of cesium.
C. The FDNPP is an Active and Ongoing Source of Contamination
11. The FDNPP presents an active and ongoing situation with no long -term solution. Highly
contaminated water continues to build up at the FDNPP site and water continues to inadvertently
leak into the sea. This in and of itsel f distinguishes the FDNPP incident from prior events, such as
the Chernobyl accident and nuclear weapons testing, and heightens the food safety risks stemming
from contaminated Japanese food products.
12. Given the gravity of the situation, Tokyo Electric Power Company (TEPCO) has attempted to
construct a large ice wall surrounding the FDNPP to stem the flow of groundwater into the plant.
While specific information about the operation of the ice wall has been lacking, reports indicate
that the ice wall effort has largely failed.
13. Moreover, Japan continues to maintain distribution bans and restrictions itself and has in this
past year continued to impose new bans and restrictions on certain food products. 5 Japan cannot
expect that Korea would respond a ny differently. Thus, Japan itself recognizes that bans, and not
just cesium testing, are required.
III. INSUFFICIENCIES IN JAPAN'S FOOD MONITORING PROGRAM
14. Japan has asserted in this dispute that it has maintained a comprehensive national food
monitoring program, which covers all categories of food products. Korea notes, however, that the
Ministry of Health, Labour, and Welfare of Japan 's (MHLW) "Cesium Monitoring Data of Food
Products" (April 2012 -July 2016) mainly consist of livestock p roducts, which account for
72.4 percent (835,741) of the total number of samples (1,154,025). Agricultural products only
accounted for 14.0 percent (161,798) and fishery products accounted for 7.6 percent (87,638) of
the total samples. Japan's cesium monitoring data is disproportionately weighted towards livestock
products that are not imported into Korea, which undermines the representativeness of the data.

5 Please see Japan's domestic restrictions at
http://www.mhlw.go.jp/english/topics/2011eq/index_food_press.html.

- B-30 -

15. Moreover, the data sets presented by Japan in this dispute actually highlight the lack of
sufficient testing for other radionuclides, as follows:
a. Ministry of Agriculture, Forestry and Fishers of Japan (MAFF) data do not present
strontium measurements for 16 of the 28 types of fishery products subject to
Japan's challenges. Moreover, for the 12 types of fishery products with strontium
data, only a total of 50 samples were taken.
b. The Ministry of Environment of Japan (MOE) provided strontium results for only
3 of the 28 fishery products subject to Japan 's claims, and only a total of 6
samples were analysed. Also, there were no strontium test results for any of the
28 fishery products at issue in the data provided by TEPCO. There are no testing
results for plutonium in the data provided by MOE or TEPCO.
c. Japan's Environmental Radioactivity Database (ERD ) data (Exhibit JPN-130) also
provides limited strontium and plutonium measurements, especially for the most
commercially important fish species from key prefectures.
16. It is inappropriate to draw conclusions regarding concent ration levels or facto rs of
non-cesium radionuclides from such small samples, which do not account for varying factors,
including the size of the fish, living area and conditions, and feed. Sampling for non-cesium
radionuclides has been extremely limited and haphazard at best. There has been no quality
assurance and quality control (QAQC) program outlined for these other radionuclides.
17. As Korea's expert confirmed during the Second Substantive Meeting, currently the samples
for non -cesium radionuclides do not nearly reflect the range or depth of samples required to
characterize the movement or transfer of radionuclides through the food chain. Orders of
magnitude more samples – likely amounting to approximately thousands more samples of
strontium and other radionuclides – are required. This is especially true now that fishing activities
are openly resuming in Fukushima coastal regions.
18. At a minimum, multiple samples of each important species should be tested from all key
locations of production at several times throughout t he year to assess species, geographic, and
temporal sources of variability in contaminant levels. In addition, an attempt to assess detection
probabilities should also be assessed at some subset of test sites. However, the effort exerted by
Japan to address QAQC issues to date has been vastly insufficient.
IV. METHODOLOGICAL FLAWS IN JAPAN'S EVIDENCE
19. The Exhibit JPN -11 and JPN -148 statements by Japan 's consultants unsuccessfully attempt
to provide an analytical framework for Japan 's incorrect premise that measuring for cesium only
will ensure that the 1 mSv/year radiation dose will not be exceeded. These statements contain
significant methodological flaws that undermine Japan 's analytical framework and the conclusions
drawn from applying that framework to specific data sets provided by Japan.
20. First, the 419 data points of Sr -90 and Cs -137 concentration activity in fishery product
analysed by Japan's consultants, spanning the period 2011-2016, are insufficient.
21. Second, according to Exhibits JPN -11 and JPN -148, Japan c laims that through the use of a
"Scaling Factor " it can identify a statistical correlation between cesium and other radionuclides
such that it can determine that fish containing less than 100 Bq/kg of cesium will not contain
significant amounts of other ra dionuclides, making them safe for human consumption. In Exhibit
KOR-213, Korea's experts have demonstrated that Japan 's analysis is scientifically invalid because
(i) there are no acceptable grounds for the use of a Scaling Factor and (ii) there is no evid ence of
any correlation between cesium and other radionuclides for the purposes of assessing food safety.
22. Moreover, Exhibit KOR-213 explains that Japan's application of the "Scaling Factor" in a case
like the one before the Panel is unprecedented. To Korea 's knowledge, the Scaling Factor "has
never been used for an accident of this sort " nor has it ever been used "for the prediction of
radionuclides in the context of complex biological commu nity analysis ." As Korea 's experts

- B-31 -

explained, the Scaling Factor method is unsuited to making predictions in a complex and evolving
situation where food safety and public health are concerned.
V. STANDARD OF REVIEW
23. Japan asks the Panel to apply an incorrect standard of review. The standard of review
applicable in SPS disputes is that articulated in Article 11 of the DSU, which provides that a panel
must make an objective assessment of the matter, including an objective assessment of the facts.6
The Appellate Body has held that the standard of review must respect the allocation of
jurisdictional competences in the SPS Agreement.7
24. The Appellate Body has also held that the assessment of risk is a matter that is of e xclusive
competence of each Member and that panels are not authorized, under the applicable standard of
review, to perform their own risk assessment.8
25. When a panel is established, a regulator could at most have available to it measurements
undertaken until that date. In fact, in such circumstances, one cannot reasonably expect the
regulator to have had the opportunity to review and validate the most recent measurements. This
practical reality was recently acknowledged in Russia – Pigs (EU) where the panel and the
Appellate Body both held that the regulating Member is entitled to a period of time to process and
evaluate detailed and complex information.9
26. Thus, in assessing Korea's SPS measures, the Panel must consider only the information that
was available to the domestic regulator. Consideration by the Panel of information that was not
available to the domestic regulator means that the Panel would be substituting its own judgment
for that of the domestic regulator. Moreover, the Panel cannot fa ult Korea 's regulator for not
taking into account what it could not have known. If it does so, the Panel would, in effect, be
conducting a de novo review.10
27. Yet, this is precisely what Japan asks the Panel to do in this case. Exhibits JPN-11, JPN-148,
JPN-238 and JPN -239 did not exist prior to this dispute. Thus, these documents could not have
been available to Korea 's regulator before these dates. Moreover, much of the data relied on for
the analysis in these Exhibits also did not exist when the Panel was established. For instance,
Exhibit JPN -148 indicates that it analysed a total of 419 data points covering the period from
April 2011 to March 2016. Of these 419 data points, 66 data points correspond to measurements
taken after 28 September 2015, whi ch was when this Panel was established. Similarly, Exhibits
JPN-238 and JPN -239 contain data through 5 December 2016 and 16 September 2016,
respectively.
28. Given that these data did not exist prior to panel establishment, they were obviously not
available to Korea 's regulator, and therefore it is impossible for Korea 's regulator to have taken
these data into account. If the Panel were to consider this information, the Panel would essentially
be engaging in its own risk assessment as it would be d etermining SPS risks on the basis of
information Korea's regulator could not have even considered. As a result, the Panel would be
substituting its own judgement for that of Korea 's regulator, thereby acting inconsistently with
Article 11 of the DSU.
29. Unfortunately, the Panel 's experts have already expressed their views on the basis of
Exhibits JPN-11, JPN-148, JPN-238 and JPN-239. Again, it is not possible to reconcile the experts '
use of analyses and data not in existence at the time the dispute was initiated with the standard of
review applicable in this dispute. The Panel's experts also cannot "second-guess" Korea's regulator
or substitute their own post-hoc evaluations for that of the regulator, under the SPS Agreement
and the DSU. Thus, consider ation of the experts ' views that take into account such analyses and
data would also violate the applicable standard of review.

6 Appellate Body Report, Australia – Apples, para. 211.
7 Appellate Body Report, EC – Hormones, para. 115.
8 Appellate Body Report, US/Canada – Continued Suspension, para. 590.
9 Panel Report, Russia – Pigs (EU), para. 7.705; Appellate Body Report, Russia – Pigs (EU), para. 5.80.
10 Appellate Body Report, US – Cotton Yarn, para. 78.

- B-32 -

VI. TERMS OF REFERENCE
30. The breach of a relevant WTO provision must have materialized at the time the Panel was
established. This conclusion holds irrespective of whether Japan 's claims are on the adoption or
maintenance of the measures. Pursuant to the Panel 's terms of reference, the Panel must
determine whether Korea 's measures were inconsistent with Articles 2.3, 5.6, and 8 a t the time
the Panel was established. The inconsistency must have existed at this time; otherwise the claim
would have been purely speculative.
31. Under Article 7 of the DSU, the Panel is responsible for examining the matter referred to the
Dispute Settl ement Body (DSB) by Japan in document WT/DS495/3. 11 The "matter" is, in turn,
comprised of the measures challenged and the claims set out by Japan in its panel request. The
measures are those in existence at the time of the panel request. The Appellate Body has said that
the specific measures identified in the panel request are the measures "alleged to be causing the
violation of an obligation contained in a covered agreement ".12 Thus, the violation caused by the
challenged measures must already exist when the panel is established.
32. Japan's panel request does not allege that Korea 's SPS measures will be in breach of the
SPS Agreement at some point during the Panel proceedings. Instead, Japan 's panel request
describes Korea's SPS measures as being in breach of the SPS Agreement at the time of the Panel
request. Thus, the Panel 's terms of reference preclude it from determining the consistency of
Korea's SPS measures on the basis of analyses and data that did not exist at the time the Panel
was established. Consequently, consideration of Exhibits JPN -11, JPN-148, JPN-238 and JPN -239
in the Panel's assessment of Japan's claims under Articles 2.3, 5.6, and 8 would violate the Panel 's
terms of reference.
33. As noted during the Second Substantive Meeting, a nd as acknowledged by Japan, Korea 's
position is consistent with the view of the panel in EC – Biotech, which found that it had to
examine "whether, on the date of establishment of this Panel , each safeguard measure was based
on an assessment of risks whic h was appropriate to the circumstances existing at that time. "13
Korea notes that the panel in that case was referring to a claim concerning the maintenance of the
measure and, even in those circumstances, the panel found that the reference point was the date
of establishment.
VII. KOREA'S SPS MEASURES ARE PROVISIONAL MEASURES UNDER ARTICLE 5.7
34. As the complaining party, Japan has the burden of proof with respect to each of its claims. 14
Had Japan brought a claim against the import bans and the additional testing requirements under
Article 5.7 of the SPS Agreement, the burden of proving the measures ' inconsistency with this
provision would have fallen on Japan. 15 In the absence of a cha llenge by Japan under Article 5.7,
Korea is entitled to the presumption that the import bans and additional testing requirements are
consistent with the requirements of Article 5.7. The Appellate Body has held, in this regard, that a
respondent Member's measures must be treated "as WTO-consistent until proven otherwise".16
35. Korea notes, in any event, that there is no burden of proof to Korea that attaches with
respect to the interpretation of a provision of the WTO agreements. Thus, there is no burden of
proof that Korea must overcome in arguing that Article 5.7 is relevant for purposes of the
interpretation of Articles 2.3, 5.6, 7 (Annex B) and 8 (Annex C) of the SPS Agreement.
VIII. KOREA'S SPS MEASURES ARE CONSISTENT WITH ARTICLE 2.3
36. Japan has failed to establish that Korea 's SPS measures are inconsistent with Arti cle 2.3 of
the SPS Agreement.

11 Appellate Body Report, Guatemala – Cement I, para. 72.
12 Appellate Body Report, EC – Selected Customs Matters, para. 130. (underlining added)
13 Panel Report, EC – Biotech, para. 7.3034. (underlining added)
14 Appellate Body Report, US – Wool Shirts and Blouses, p. 14.
15 Panel Report, EC – Approval and Marketing of Biotech Products, paras. 7.2976 and 7.2979.
16 Appellate Body Report, US – Carbon Steel, para. 157. (original emphasis)

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A. Japan Applies a Novel Product-Based Test under Article 2.3
37. Japan's claim is based on an erroneous interpretation of Article 2.3. In particular, Japa n
applies a novel, product -based test that is not reflected in the text of Article 2.3. The text of
Article 2.3 refers to "conditions" and does not refer to "products." This is a deliberate choice of the
drafters that must be given effect. The term "conditions" in Article 2.3 refers to such factors as
the state of the atmosphere, the land, and the marine environment. This understanding of
"conditions" fits coherently with the rest of Article 2.3 and with its context.
38. Japan's interpretation is completely divorced from the text of that provision. Indeed, Japan 's
interpretative exercise begins far from the SPS Agreement, in Annex 1A of the WTO Agreement.
The general scope of coverage of the agreements in Annex 1A cannot mean that every provision in
every agreement in Annex 1A is about differential treatment of goods. The text of Article 2.3
specifically calls for a comparison of "conditions" existing in Members ' territories; products are
simply not mentioned in Article 2.3.
39. The starting point of the analysis under Article 2.3 is an assessment of whether "identical or
similar conditions prevail " in the territories of the Members concerned. Following Article 31(1) of
the Vienna Convention on the Law of Treaties (Vienna Convention), an interpretatio n of Article 2.3
must begin with the ordinary meaning of the terms used in the provision. This ordinary meaning is
supported by the link made in Article 2.3 between "conditions" and "territory". The latter term is
referring to the area under the jurisdicti on of the relevant Member. Thus, the link between
"conditions" and "territory" in Article 2.3 supports Korea's view that the subjects of comparison are
the environmental conditions prevailing in the relevant Members.
40. Further contextual support for this interpretation is found in Article 5.2 of the
SPS Agreement, which expressly includes "the relevant ecological and environmental conditions "
among the factors that must be taken into account in the assessment of risks.
41. The evidence on record demonst rates that the conditions in Japan were not similar to the
conditions in the rest of the world. On 28 September 2015, there continued to be an active source
of contamination on Japanese territory. The FDNPP continued to be in an unstable situation: leaks
continued to be reported, contaminated groundwater continued to flow through the plant and into
the ocean, and large amounts of contaminated water continued to be stored in precarious
conditions at the plant. Even the limited estimates of strontium releas e that exist are complicated
by the ongoing spills of liquid radioactive waste at the FDNPP site. In addition, insufficient scientific
information regarding the amount and types of radionuclides released, as well as the lack of
sampling in particular regio ns and for specific commercially important species also render
conditions in Japan not identical or similar to conditions prevailing in Ko rea and the rest of the
world.
42. As discussed in Korea 's submissions, high levels of cesium contained in soil particles have
been found on the flood plains in the downstream areas of Fukushima's rivers. These rivers, whose
banks have high levels of cesium contamination, ultimately enter the sea. Studies have also found
that a significant portion of mineral-bound radiocesium is discharged into marine estuaries. Thus,
the river catchments will be a longer -term, ongoing source of radiocesium to estuaries and coastal
areas, which can easily accumulate in marine biota. Dams, lakes and reservoirs in Fu kushima-
impacted watersheds also have been shown to be both sinks for radiocesium and potential sources
of significant downstream cesium deposition. Forests too have been found to be deposits of
significant levels of radionuclides, including Cs -137. Finally, there are risks from contamination of
the seabed, as even Japan 's consultant has cautioned that nearshore sediments off Japan will
remain a significant long-term source of radiocesium for years to decades.
43. Indeed, Japan itself acknowledges throug h its own regulations the uniqueness of the
conditions prevailing in its territory. Japan itself has imposed marketing bans on fishery and
agricultural products, some of which were still in place up until the date of Panel establishment.
Moreover, Japan h as repeatedly referred to the fact that fish from the FDNPP port and from the
area within a 20 km radius of the FDNPP are not marketed in Japan. This area is within Japanese
territory and the decision not to allow the marketing of fish in this area is nece ssarily recognition
of the particular nature of the conditions in Japanese territory. Thus, Japan's own marketing ban is
based on environmental conditions in Japan. If the measurement of contamination levels in the

- B-34 -

products were the only relevant criterion , as argued by Japan under Article 2.3, then Japan itself
could test all fishery products marketed instead of imposing a ban over an entire area.
44. In sum, the Panel must reject Japan 's erroneous claim that conditions in Japanese territory
and conditions in Korea and the rest of the world are similar. Because Japan fails to establish a
necessary element of its Article 2.3 claim, the Panel need not proceed further.
B. Even If the Panel Concludes That Conditions Are Similar, Japan Has Failed to
Establish That Korea 's SPS Measures "Arbitrarily or Unjustifiably
Discriminate"
45. Even on the arguendo assumption that conditions were similar, Japan has failed to
demonstrate that Korea's SPS measures arbitrarily or unjustifiably discriminate. Japan's argument
is premised on its position that Japanese products and products from non -Japanese origins have
similar levels of cesium and additional radionuclides in absolute terms. This element of Japan 's
claim is also premised on an incorrect interpretation of Article 2.3.
46. As Korea has explained, the focus of Article 2.3 is on the conditions prevailing in Members '
territories. Even if the Panel were to conclude that conditions in Japan and the rest of the world
are similar, its subsequent analysis would have to proceed on the basis of the conditions identified
by the Panel. Japan 's attempt to disregard consideration of the conditions in its territory must
therefore be rejected by the Panel.
47. In addition, Japan has explained that its Article 2.3 claim depends on the proposition that
Japanese food products and food products of other origins pose "a similar risk of containing cesium
and other radionuclides in excess of Korea's respective thresholds". However, the Panel could only
accept Japan's argument by conducting a risk assessment, which the Panel is not permitted to do.
Indeed, Japan 's approach would require the Panel to undertake not one, but two, risk
assessments. The Panel would first have to assess the risks posed by Japanese products. It would
then have to assess the risks posed by products from Korea and by products from the rest of the
world. And, finally, it would have to compare those risks. However, under the applicable standard
of review, the Panel is not authorized to conduct such risk assessments.
48. Moreover, by focusing on the risks posed by the products concerned, Japan is effectively
converting the analysis of Article 2.3 into a question of whether the measures are properly based
on a risk assessment. However, that is a matter to be evaluated under Article 5.1, and Japan has
not brought a claim under that provision.
49. Nor has Japan brought a claim under Article 5.7. Korea 's SPS measures seek to protect
Korean citizens from the additive effects of the radionuclides stemming from the FDNPP. Given the
relatively few measurements for radioactive strontium that have been generated to date, and the
much fewer measurements for other radionuclides of potential significance, this testing is a
prudential measure in response to the insuffi ciency of data. In the circumstances, continued
monitoring for cesium, strontium, and other radionuclides is required to properly assess risk.
50. Japan's argument also introduces the appropriate level of protection (ALOP) into the
assessment of Article 2. 3 as Japan is asking the Panel to find that Japanese and non -Japanese
food products pose identical or similar risks of exceeding Korea 's ALOP. However, the text of
Article 2.3 does not frame the ALOP as a benchmark to determine whether there is any
discrimination.
51. The Panel-appointed experts confirmed that radionuclides have additive effects and that any
additional amount of radiation increase s the risks of adverse effects. They also confirmed that
there is evidence that radiation can have effects even at very low doses. There is no dispute that
the FDNPP added to levels of radionuclides present in Japan 's territory before the accident.
Therefore, even under Japan 's erroneous products -based test, Korea 's regulator has a legitimate
right to be concerned about the consumption of products with radionuclide contamin ation
stemming from the FDNPP.
52. Even accepting arguendo Japan's approach, Japan has emphasized that a key factual
proposition underlying its claims is that the overall exposure to Korean consum ers from cesium

- B-35 -

and all other radionuclides will remain below 1 mSv/year if cesium levels in Japanese food are
within Korea's 100 Bq/kg threshold. Japan 's proposition is based on an incorrect characterization
of Korea's ALOP.
53. In any event, even und er an erroneous product -based approach, food products from one
origin posing a risk of exposure should not be deemed "identical or similar" within the meaning of
Article 2.3 to the food products from another origin posing a risk of exposure. As asserted ab ove,
the ALOP has no bearing on the application of Article 2.3.
54. Thus, even assuming Japan 's product -based test were correct and Japan succeeded in
establishing this factual proposition, it would not demonstrate that products from Japan and
products from the rest of the world pose similar risks. This is because Japan's definition of Korea's
ALOP is incorrect. Likewise, Japan 's criterion for similarity, which is exclusively based on whether
an overall dose of 1 mSv/year is exceeded, is not an appropriate criterion for similarity under
Article 2.3.
55. As discussed in Korea 's submissions, Korea also conducts additional testing on Korean and
third-country products. When cesium or iodine is detected, the samples are subject to further
analysis f or additional radionuclides . The alleged differences that Japan identifies are in the
frequency and location of testing. However, these differences are rationally related to the different
conditions prevailing in Japan. The additional testing requirements provide information on the
levels of strontium and other additional radionuclides in fisheries and agricultural products
imported from Japan. Large amounts of strontium and other radionuclides were released and
continue to be released from the FDNPP. As e xplained by Korea 's expert, there have been only
limited measurements of strontium and other non -cesium radionuclides such that the information
about these radionuclides in Japanese territory is insufficient to draw robust conclusions. Thus, the
need to te st fisheries and agricultural products from Japan more frequently, and the need to
require the test prior to entry into the market, are both rationally related to the conditions
prevailing in Japan. As such, any differences in frequency and location, which reflect different
conditions, cannot constitute arbitrary or unjustifiable discrimination for purposes of Article 2.3.
56. Korea further notes that the import ban on fishery products is circumscribed to products
from the Fukushima prefecture and the seven surrounding prefectures. Thus, the import bans are
rationally related to the conditions prevailing in those prefectures.
57. Finally, Japan's argument under the second sentence of Article 2.3 is premised on its claim
under the first sentence. Because Ja pan has failed to substantiate its claim under the first
sentence of Article 2.3, the claim under the second sentence must also be rejected.
IX. KOREA'S SPS MEASURES ARE CONSISTENT WITH ARTICLE 5.6
58. The arguments and evidence put forward by Japan are i nsufficient to establish a violation of
Article 5.6 of the SPS Agreement.
A. The Flaws in Japan's Article 5.6 Claim
1. Japan's Claim Is Premised on an Incorrect Characterization of Korea 's
ALOP
59. Japan continues to claim that Korea 's ALOP for exposure to man -made radionuclide
contamination in food is 1 mSv/year, and that Japan 's proposed alternative measure (i.e., cesium
testing) achieves this dose limit. This is incorrect.
60. As previously noted, the Appellate Body has held that the determination of the ALOP "is a
prerogative of the Member concerned. "17 An Article 5.6 analysis thus requires an examination of
whether possible alternative SPS measures meet the ALOP "as determined by the Member

17 Appellate Body Report, Australia – Salmon, para. 199. (original emphasis)

- B-36 -

concerned."18 The Appellate Body has held that the panel is charged with "identifying the level of
protection of the Member whose SPS measure is challenged."19
61. As Korea has repeatedly shown, its ALOP is to maintain radioactivity levels in food consumed
by Korean consumers at levels that exist in the ordinary environment – in the absence of radiation
from a major nuclear accident – and thus maintain levels of radioactive contamination in food that
are "as low as reasonably achievable" (ALARA), below the 1 mSv/year radiation dose limit.
62. Korea's ALOP is not a fixed quantitative threshold but instead aims to achieve a high to very
high level of protection below the 1 mSv/year dose limit. It is incorrect for Japan to characterize
Korea's ALOP as 1 mSv/year w hen Korea has made clear that its "acceptable" level of radiation
exposure is below the 1 mSv/year dose limit. Korea maintains a highly prudent approach to the
management of radionuclides from external sources, and therefore aims to control the additional
radiation exposure from Japanese imports to be as low as possible below 1 mSv/year.
63. Korea maintains an ALOP that is high, conservative, and consistently applied across all
categories of such risk. To do this, it establishes a range of measures that con tribute to the ALOP.
The measures that are under dispute are such measures. The nature of the measures and their
method of determination will vary according to the substance concerned and the nature of its
human health effect. In this case, Korea uses the ALARA approach to establish quantitative
thresholds from which exposure would result in a level as far as possible below 1 mSv/year. The
use of the ALARA principle is a well -known part of the Codex standards and is applied to establish
maximum levels (MLs ) for contaminants in food necessary to protect consumers. Notably, the
application of the ALARA principle in food safety differs from its application in the radiological
protection context.
64. The ALARA principle is articulated in Article 1(34) of the Korea Food Code. In addition, Korea
has consistently expressed its ALOP with sufficient precision. As a result, the Panel should accord
significant weight to Korea's articulation of its ALOP.
65. Korea reiterates that it is well -established that there is n o obligation for an importing
Member to set its ALOP in "quantitative terms."20 In fact, in Australia – Apples, the Appellate Body
confirmed that Australia's ALOP was "providing a high level of sanitary or phytosanitary protection
aimed at reducing risk t o a very low level, but not to zero. "21 The Appellate Body found that
Australia's ALOP makes clear that Australia 's acceptance of "very low" risk is a standard that is
stricter than standards that would accept "moderate", "high", or "extreme" risk, but not as strict
as standards that would accept only "negligible" risk. While there were no "upper bounds " or
numerical thresholds provided in Australia 's ALOP, the Appellate Body still found that the ALOP
made clear Australia's acceptable level of risk and could be applied in international trade.
66. As shown in Exhibit KOR -143, the 1 mSv/year dose limit is the upper bound of the
"tolerable" level of risk, but Korea 's ALOP, or "acceptable level of risk ", is a level below that dose
limit, which refl ects the ALARA principle. Ultimately, while Korea 's ALOP is not defined in
quantitative terms, it is not vague or equivocating.22 In fact, Korea's ALOP is notably more precise
than Australia's ALOP in Australia – Apples. Japan attempts to confuse Korea 's clear standards by
arguing that "tolerable" is synonymous with "acceptable" and therefore everything below the
"upper bound" of 1 mSv/year is "acceptable." In doing so, Japan has continued to avoid engaging
with the information submitted in Exhibit KOR -143 and other authoritative sources explaining the
ALARA principle.
2. Japan's Claim Is Also Premised on an Incorrect Characterization of
Cesium Testing As "Another Measure" Under Article 5.6
67. Japan also fails to make a valid claim under Article 5.6 because cesium testing does not
constitute "another measure" under footnote 3 to Article 5.6. A Member invoking Article 5.6 must
establish the existence of "another measure" that achieves the ALOP o f the respondent Member.

18 Appellate Body Report, Australia – Salmon, para. 204. (original emphasis)
19 Appellate Body Report, India – Agricultural Products, paras. 5.220-5.221.
20 Appellate Body Report, Australia – Apples, para. 343. Korea's second written submission, para. 268.
21 Appellate Body Report, Australia – Apples, para. 369.
22 See Appellate Body Report, Australia – Salmon, para. 206.

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The term "another" is "[u]sed to refer to a different person or thing from one already mentioned or
known about". The Appellate Body confirmed this in India – Agricultural Products, where it stated
that "[i]n order to succeed in a claim under Article 5.6, a complainant must establish that there is
an alternative measure…."23 The term "alternative" indicates that the measure is different to the
measure currently being applied by the respondent Member.
68. Japan errs when it st ates that cesium testing is an "alternative" measure that is "different"
from the measure currently being applied by Korea. Korea already applies cesium testing to
imports of Japanese food products. Therefore, cesium testing is not different to the measu res
already being applied by Korea.
69. The panel in Brazil – Tyres also confirmed the principle that a measure already being applied
by the respondent party cannot constitute an "alternative" measure. The panel specifically found
that "the alternative m easures…do not constitute alternatives that could apply as a substitute for
the import ban on retreaded tyres … Rather, they would appear to be complementary measures
that Brazil in fact already applies, at least in part. "24 The panel's finding was upheld on appeal by
the Appellate Body, which noted that "some of the proposed alternatives are not real substitutes
for the Import Ban since they complement each other as part of Brazil's comprehensive policy."25
70. Similarly, cesium testing is not an "alternative" measure to Korea's import bans or additional
testing requirements, but rather a "complementary" measure already being applied by Korea that
is "cumulative rather than substitutable " with respect to those measures challenged by Japan.
Japan co ncedes that cesium testing is an "integral element " of Korea 's additional testing
requirements because the requirement to undertake additional testing depends on the results of a
prior cesium test. Indeed, cesium testing, the additional testing requiremen ts, and the import
bans are all integral and complementary parts of Korea 's comprehensive response to the
radioactive contamination from the FDNPP. The measures are complementary in that they are
applied to target different prefectures in Japan that pose different risks based on their proximity to
the FDNPP accident and prior recordings of high levels of radioactivity in food products, as well as
to address food safety risks arising from contamination in Japanese food products by different
radionuclides. Th us, cesium testing is a complementary measure already currently applied by
Korea and does not constitute an "alternative" measure that could apply as a "substitute" for
Korea's import ban and additional testing requirements. Similarly, the Appellate Body has held that
"[s]ubstituting one element of [a] comprehensive policy for another would weaken the policy by
reducing the synergies between its components, as well as its total effect" and therefore found
that the panel did not err in "rejecting as alternat ives to the Import Ban components of Brazil 's
policy regarding waste tyres that are complementary to the Import Ban."26
71. Japan also states that the fact that cesium testing alone is "different" from Korea's existing
measures is evident to Japan 's fisher men and farmers because cesium testing alone would
significantly enhance competitive opportunities for their products. Japan misses the point.
Whether a measure enhances or restricts competitive opportunities for products is relevant for
determining whether the proposed alternative measure is "significantly less restrictive to trade "
than the challenged measure but is not relevant for determining whether the proposed measure
constitutes "another measure" under footnote 3 of Article 5.6.
72. In addition, Japan refers to Korea's ALOP, which it again mistakenly describes as achieving a
committed dose exposure of Korea 's consumers that does not exceed 1 mSv/year. Japan then
claims that the additional testing requirements make no independent contribution to Korea's ALOP.
In doing so, Japan attempts to distinguish Korea 's measures from those in Brazil – Retreaded
Tyres, which each allegedly contributed independently to the achievement of the policy objective
at issue. However, the panel in Brazil – Retreaded T yres noted in fact that the European
Communities' proposed waste tyre disposal schemes would not seem able to achieve the same
level of protection pursued by Brazil – i.e., "non-generation" of waste tyres in the first place – as
the import ban. 27 As a res ult, the panel found that such schemes are not "an alternative to the
import ban in light of the level of protection Brazil pursues in relation to the health risks

23 Appellate Body Report, India – Agricultural Products, para. 5.203. (emphasis added)
25 Appellate Body Report, Brazil – Tyres, para. 181.
26 Appellate Body Report, Brazil – Retreaded Tyres, para. 172.
27 Panel Report, Brazil – Retreaded Tyres, para. 7.177.

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concerned..."28 Thus, the panel found that the European Communities' proposed measures did not
contribute to the achievement of Brazil's policy objective or level of protection.
73. Similarly, cesium testing alone cannot achieve Korea 's policy objective of achieving a high
level of protection or ALOP for its people, which is not 1 mSv/year. Japa n is incorrect when it
states that additional testing requirements contribute nothing additional to the achievement of
Korea's ALOP. Korea aims to achieve a very high level of protect ion that is stricter than the
1 mSv/year dose limit of the International Commission on Radiological Protection (ICRP). As Korea
noted at the Second Substantive Meeting, it is undisputed between the parties that strontium is
hazardous and even more so than cesium. The additional testing provides information on the
levels of strontium and other radionuclides in Japan's food products, and as a result, independently
contributes to Korea's policy objective or ALOP. Thus, this is not a case where, in proposing cesium
testing only, Japan is merely removing a "redundant" measure.
74. In sum, because cesium testing is a "complementary" measure currently applied by Korea as
part of its comprehensive regulatory response to the FDNPP accident, cesium testing itself does
not constitute "another measure" that could apply as a "substitute" for Korea's import ban and
additional testing requirements under footnote 3 of Article 5.6.
75. For these reasons, Japan 's proposed measure – cesium testing – does not constitute
"another measure" within the meaning of footnote 3 and Article 5.6 and, consequen tly, Japan's
claim must fail.
3. Japan's Claim Is Premised on the Use of t he Scaling Factor Method
though the Pre-Conditions for Use of the Method Are Not Met
76. Japan claims that cesium testing achieves Korea's alleged ALOP of 1 mSv/year. In doing so,
Japan relies heavily on the analysis provided in Exhibits JPN -11 and JPN-148. Korea has already
shown that 1 mSv/year is not Korea 's ALOP. In addition, Korea has shown that Japan 's
methodological approach is flawed.
77. Japan repeated ly claims that it is not using the Scaling Factor Method (SFM) in the
Exhibit JPN-11 and JPN -148 statements. Contrary to those claims, Korea has shown that Japan 's
consultants indeed used the SFM in their analysis. As Korea previously pointed out,
Exhibit JPN-148 references a "scaling approach" throughout the analysis. The SFM is a technique
for predicting amounts of other unmeasured radionuclides on the basis of ratios with Cs -137. The
SFM was developed to predict emissions from nuclear facilities where th e characteristics of the
source terms are very well characterized and relatively unchanging over time. This method relies
on a very strong correlation among radionuclides and other conditions that are not met in this
case. However, Korea's experts demonst rated that Japan 's analysis based on the SFM is
scientifically invalid because (i) there are no acceptable grounds for the use of a scaling factor and
(ii) there is no evidence of any correlation between cesium and other radionuclides for the
purposes of assessing food safety
4. Japan's Measurement Data Are Insufficient
78. Japan claims that measurements in Japanese food products in Exhibits JPN -11, JPN -148,
JPN-238 and JPN -239 confirm the conservative nature of the 100 Bq/kg cesium threshold. Japan
asserts that the data further confirms that, if cesium levels are below 100 Bq/kg, overall exposure
will not exceed 1 mSv/year. Japan's argument has several flaws.
79. As Korea has explained, the data included in Exhibits J PN-11, JPN -148, JPN-238 and
JPN-239 were not available to Korea 's regulator at the time the measures at issue were taken or
even when this Panel was established. Thus, assessing Korea 's measures against these analyses
and data would constitute an improper second -guessing of Korea's regulator and would violate the
applicable standard of review and the Panel's terms of reference.
80. Japan has emphasized the conservative nature of its approach, including its assumptions
regarding the contribution of strontium to the overall radiation dose. However, Japan's approach is

28 Panel Report, Brazil – Retreaded Tyres, para. 7.178.

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novel as was confirmed by one of the Panel 's experts. Any such novel assumptions or new
approach must be validated through sufficient measurements, including of strontium and other
radionuclides. Such measurements did not exist at the time the Panel was established and do not
yet exist today. Thus, all assertions regarding the supposedly conservative nature of Japan 's
approach, and utilizing data after September 28, 2015, are ex post facto rationalizations.
81. In addition, as Korea has noted, the data set in Exhibits JPN-11 and JPN-148 is quite limited.
Only 419 pairs of cesium and strontium data points were provided to support the conclusion in
Exhibit JPN-148. Subsequently, Japan submitted an updated sample set of 579 pairs of cesium and
strontium data points, which now included data points with the "ND" values for cesium or
strontium, or both. However, even including the "ND" values in the analysis of the Sr -90/Cs-137
ratio for a total of 579 pairs of data points is not sufficient, considering the long period of time that
has elapsed since the Fukushima accident in 2011.
82. To this day there are highly insufficient samples of strontium measurements within Japan's
monitoring program. One of the Panel's experts recommended that one -third of the amount of
money spent on measuring Cs -134+137 should be spent on measuring Sr -90. Another expert
suggested that 5 percent of samples should also be analysed for Sr -90. To date, Japan has
measured 1,272,711 Cs-134+137 samples and only 3,752 Sr -90 samples , which is about
0.295 percent of the total cesium measurements. Even fewer samples have been tested for
significant radionuclides such as H3, Ru, Ce, among others.
83. Without sufficient measurement data, Ko rea cannot ensure that testing for cesium only will
guarantee that overall exposure remain below Korea's ALOP.
5. The Additional Testing Requirements Are Not Significantly More
Restrictive to Trade than Japan's Proposed Measure
84. Japan errs when it asserts that Korea's additional testing requirements are trade -restrictive
because of the additional time and increased costs associated with the testing, and because testing
supposedly must be conducted in Japan.
85. As Korea has stated, differences in t ime or costs associated with the process for testing
additional radionuclides as opposed to cesium cannot be an indicator of trade restrictiveness. Any
additional time or increased costs are the result of the scientific process or current state of
technology that is available for testing. As Japan itself recognizes, strontium and other additional
radionuclides are more difficult to test than cesium. That is independent from any action taken on
the part of Korea 's regulator. Korea cannot be penalized under A rticle 5.6 because there is not a
faster method for testing additional radionuclides.
86. Strontium testing is no more burdensome than other tests used in the food safety context,
for example , for mercury. The technical limitations that prevent quicker and cheaper strontium
testing should not be understood to be a restriction on trade, particularly since these limitations
are completely outside the control of Korea.
87. Japan also continues to incorrectly state that a Japanese product found to contain cesiu m
must be shipped back to Japan to undergo additional testing. This is an incorrect fact that Korea
has repeatedly clarified. Korea notes that a Japanese product that is subject to additional testing
requirements can either undergo such testing in Japan prior to export to Korea, or if already at the
Korean border, the product can undergo additional testing in Korea at an institution that is
authorized by Japan. Thus, Japan 's attempts to highlight the costs associated with shipping the
Japanese consignment back to Japan for additional testing are not relevant.
88. Japan therefore has failed to establish that its proposed measure is "significantly less
restrictive to trade" than the additional testing requirements. Because Japan fails to establish the
key elements under Article 5.6, the Panel should reject Japan's claim.

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2 B. The Role of Panel Experts in Assessing Japan's Article 5.6 Claim
89. Finally, Korea recalls that the role of panel experts in an assessment of Article 5.6 is limited.
Whether or not an alternative measure 's level of risk achieves a Member 's appropriate level of
protection is a question of legal characterization that cannot be delegated to scientific experts.29
90. Yet, during the expert meeting, several of the Panel experts opined on t he "necessity" of
Korea's SPS measures in light of Korea 's ALOP. This is a question that falls outside the purview of
the Panel experts. The ALOP is the sole prerogative of Korea, and whether an SPS measure is
"necessary" to achieve Korea 's ALOP is a legal question that cannot be delegated to scientific
experts. Korea further notes that a large number of the experts ' responses were premised on a
dose limit of 1mSv/year, which, as Korea has explained repeatedly, is not Korea's ALOP.
X. KOREA'S SPS MEASURES A RE CONSISTENT WITH A RTICLE 7 / ANNEX B O F THE
SPS AGREEMENT
A. Publication of Korea's SPS Measures
91. Korea promptly published the SPS regulations at issue through press releases and notices
that were immediately posted on government websites. Thus, Korea has fully complied with its
transparency obligations under Article 7 and Annex B(1). Indeed, publication on the intern is the
approach recommended by the SPS Committee.
92. Japan was well aware of Korea 's press releases and notices as it specifically ref erred to
many of them in the request for consultations, request for establishment of a panel, and in its
submissions to this Panel.
93. Japan argues that the publication of the basic requirements of a regulation is not sufficient
to provide more or less complete familiarity with the regulation. However, Korea has demonstrated
that its press releases and notices provided detailed information about the SPS measures at issue.
The information that Korea provided was sufficient to enable interested Members to become
acquainted with them. In fact, several of Japan 's exhibits were compiled using information from
Korean government websites. The information that Japan complains was not provided was either
provided by Korea, or is information that is generally not included in SPS regulations, such as the
rules of origin.
94. Finally, Japan seems to introduce a new requirement that publication on the Internet only
complies with Annex B(1) if it occurs "in a specifically designated location ". Japan fails to provide
any basis in the text of Annex B(1) for this requirement. Indeed, Annex B(1) does not specify the
medium to be used for publication, nor does it require that publication occur "in a specifically
designated location".
B. Korea's SPS Enquiry Point
95. Korea has satisfied its obligations under Annex B by establishing an Enquiry Point, which
was responsive to Japan 's questions. The Panel should reject Japan 's attempt to apply a strict
liability standard under Annex B(3). The actual language used in Annex B(3) i ndicates that the
obligation on Members is to "ensure that one enquiry point exists ". There is no indication in the
text of Annex B(3) that the drafters intended to establish a strict liability standard pursuant to
which a single instance in which an Enqui ry Point fails to respond to a request could give rise to a
WTO dispute.
96. Simply because in a single instance an Enquiry Point may not have provided information that
satisfied the requesting party, does not give rise to a violation of Annex B(3).
97. Regardless, in this case, Korea 's Enquiry Point responded to Japan 's request and provided
Japan with the requested information. Japan rests its entire claim in this case on a single request
(24 June 2014), to which Japan acknowledges Korea responded, 30 and an alleged follow-up

29 Appellate Body Report, Australia – Apples, para. 384. See Korea's first written submission, para. 98.
30 Japan's first written submission, para. 185.

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(13 November 2014).31 Thus, at most, Japan's claim would be based on a single instance in which
the Korean Enquiry Point would have failed to respond to a request. This does not constitute a
failure by Korea to "ensure that one enqui ry point exists which is responsible for the provision of
answers to all reasonable questions from interested Members as well as for the provision of
relevant documents".
98. In sum, Japan's claims under Article 7 and Annex B have no merit and should be re jected by
the Panel.
XI. KOREA'S SPS MEASURES ARE C ONSISTENT WITH ARTIC LE 8 / ANNEX C OF TH E
SPS AGREEMENT
99. Japan's arguments fail to establish that Korea 's additional testing requirements are
inconsistent with Article 8 and Annex C of the SPS Agreement.
3 A. Scope of Article 8 and Annex C
100. Japan fails to demonstrate that Korea 's additional testing requirements are "procedures"
within the meaning of Annex C. Japan argues that a "procedure" is defined as "[t]he fact or
manner of proceeding with any action, or in any circumstance or situation ". In other words, a
"procedure" refers to the way or the manner in which an action or situation is processed.
However, Korea's additional testing requirements do not specify the "way or manner" in which an
action or situation must take place. They do not dictate the process for testing, only that testing
for additional radionuclides be conducted for products that contain at least 1 Bq/kg of cesium or
iodine.
101. Japan references the apparently broad scope of the wording in the chapeau of Annex C and
footnote 7 of Annex C. However, the fact the chapeau references "any procedure" or that
footnote 7 indicates that Annex C procedures can include "procedures for sampling, testing and
certification," does not change the fact that Korea 's additional testing requirements must still first
be characterized as "procedures."
102. Because Korea 's additional testing requirements indicate that testing for additional
radionuclides must be conducted in pro ducts that contain at least 1 Bq/kg of cesium or iodine, not
how or in what way or manner the testing is to be conducted, the additional testing requirements
are not "procedures". Notably, footnote 7 to Annex C also specifies that "control, inspection and
approval procedures" include "procedures for sampling, testing and certification." A "procedure" for
testing would have to articulate a process for conducting the testing beyond just requiring that the
testing be conducted.
103. Japan incorrectly asserts that Korea's definition of "procedures" hinges on the "specificity" or
"formality" of the measure and the amount of detail published regarding the measure. On the
contrary, Korea's arguments concern the nature of the measure itself and not the specificity of the
details published regarding the measure. Korea's additional testing requirements are not
"procedures" because they do not concern the process for conducting testing, and not because of
any alleged lack of specificity in the information published about the requirements.
104. Thus, because Korea 's additional testing requirements are not "procedures," they are not
covered under Article 8 and Annex C.
B. Assuming Annex C(1)(a) Applies, Korea 's Additional Testing Requirements
Are Not Undertaken in a Less Favourable Manner For Imported Products Than
For Like Domestic Products
105. Japan claims that Korea 's additional testing requirements are inconsistent with Annex
C(1)(a) because they allegedly are not "undertaken and completed … in no less favourable manner
for imported products than for like domestic products."

31 Japan's first written submission, paras. 184-190.

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106. Japan has the burden of establishing "likeness" and has failed to meet this burden. Japan
also has failed to establish that the additional testing requirements are undertaken in a "less
favourable" manner for Japanese imports.
107. The approach to "less favourable treatment" under Annex C(1)(a) should proceed pursuant
to the analytical approach under Article 2.1 of the TBT Agreement. The Appellate Body has found
that Article 2.1 of the TBT Agr eement does not "prohibit[] any detrimental impact on competitive
opportunities for imports in cases where such detrimental impact on imports stems exclusively
from legitimate regulatory distinctions."32
108. Any differences in treatment of Japanese products resulting from Korea 's additional testing
requirements do not amount to less favo urable treatment because they are explained by a
legitimate regulatory distinction. Korea has demonstrated that it implemented its additional testing
requirements with respect to Japanese food products because of the food safety risks posed by the
radioactive contamination from the FDNPP. Thus, Japan 's claim of inconsistency with Annex
C(1)(a) fails.
C. Assuming Annex C(1)(c) Applies, Korea 's Additional Testing Require ments
Are Not Inconsistent With This Provision
109. Japan also claims that Korea 's additional testing requireme nts are inconsistent with
Annex C(1)(c). Korea's additional testing requirements are not "information requirements" under
Annex C(1)(c). However, even assuming they were subject to Annex C(1)(c), Korea 's additional
testing requirements are necessary to achieve Korea's ALOP.
110. Japan's attempt to liken the situation in this case with Russia – Pigs (EU) is misplaced. I n
that case, the panel examined the necessity of Russia 's requests for information ( "information
requirements") required for the process of determining the existen ce of African swine fever
(ASF)-free areas within the European Union (Article 8 / Annex C "procedure").33 Thus, "information
requirements" are requests for information to carry out an Article 8 / Annex C procedure. In
contrast, Korea does not separately request information in order to carry out its additional testing
requirements. The additional testing requirements do not involve "information requirements" that
are separate from the measure itself.
111. Japan itself has stated that both the additional testing and certification requirements involve
or constitute information requirements. As Japan 's statement reflects, the additional testing
requirements do not involve "information requirements" that can be separated from the measure
itself. Japan also asserts that Korea requires not only additional testing be undertaken, but also
that a "test report" or "certificate" be submitted to disclose the results of the additional testing to
Korean authorities. Again, a test report or certificate is not a separate information requirement in
order to carry out an Article 8 / Annex C procedure. The submission of a test report or certificate is
part of the additional testing requirement itself, as there would be no purpose to requiring
additional testing if the results of that testing were not recorded and presented to Korean
authorities.
112. Japan also continu es to challenge the additional testing requirements as being
"unnecessary" to "ensure compliance with Korea's 1 mSv/year ALOP". In making such arguments,
Japan is challenging the necessity of the testing requirements themselves and not any requirement
to provide information. In doing so, Japan simply reiterates its Article 2.3 and 5.6 arguments.
Even so, Korea has repeatedly shown that only testing for cesium does not ensure compliance with
Korea's ALOP. As a result, its additional testing requirements are necessary.
113. Finally, in its responses to Panel questions after the Second Substantive Meeting, Japan
asserted that in t he event the Panel were to consider that Korea 's additional testing requirements
do not constitute "information requirements" within the meaning of Annex C(1)(c), Japan submits
that the additional "certification" requirements alone constitute "information requirements", and
that these certification requirements are not "limited to what is necessary for appropriate control,
inspection and approval procedures." Even if the Panel were to accept this new argument at such a
late stage in the proceedings, Japan a gain errs in trying to adopt a formalistic separation between

32 Appellate Body Report, US – Clove Cigarettes, para. 174 (emphasis added).
33 Panel Report, Russia – Pigs (EU), paras. 7.564-7.571.

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the additional testing requirements and the so -called "additional certification requirements. " The
"additional certification requirements" are not separate from the "additional testing requirements."
They reflect the results from the testing conducted.
114. Even if Korea 's additional testing requirements are subject to Annex C(1)(c), Korea has
shown that the additional testing requirements are necessary to achieve Korea 's ALOP given the
insufficient measurement data on radionuclides other than cesium, the lack of correlation found
between cesium and other radionuclides, and the ongoing contamination stemming from the
FDNPP.
D. Assuming Annex C(1)(e) Applies, Korea 's Additional Testing Requirement s
Are Limited To What Is Reasonable And Necessary
115. A "specimen" refers to a sample taken from a larger consignment. Annex C(1)(e) refers to
regulations on the control, transport, inspection and approval of diagnostic specimens (including
biological samples, infectious substances, etc.) for disease control and testing purposes. The World
Organization for Animal Health (OIE) (or formerly the International Office of Epizootics), which is
specifically referenced in the preamble of the SPS Agreement, has adopted standards in relation to
the handling of such specimens. The most relevant standards are included in Chapter 1.1.3 of the
Manual of Diagnostic Tests and Vaccines for Terrestrial Animals: "Transport of Specimens of
Animal Origin ". The OIE Manual articulates requirements for the transport, collection, storage,
handling and acceptance of animal specimens.
116. Korea's additional testing requirements do not concern "individual specimens". While Korea's
additional testing requirements involve testing certain randomly selected samples within each
Japanese consignment for other radionuclides if more than 1 Bq/kg of cesium or iodine is detected,
the additional testing requirements do not outline methods or procedures concerni ng how the
"individual specimens" or "biological samples" will be collected, handled, stored, and transported.
Thus, Korea 's additional testing requirements are not such procedures covered under
Annex C(1)(e).
117. Even if Korea 's additional testing requi rements were to fall within the scope of
Annex C(1)(e), they are both reasonable and necessary to achieve Korea 's ALOP. Moreover,
Japan's Annex C(1)(e) claim is again premised on misrepresentations regarding the key elements
of Korea's additional testing r equirements. Testing for additional radionuclides does not have to
take place in Japan. Korea only requires that the laboratory or institution conducting the testing be
authorized by the Japanese government, and thus has implemented its additional testing
requirements in a reasonable manner.
E. Assuming Annex C(1)(g) Applies, the Provision Does Not Impose a
Mandatory Obligation on Korea's Additional Testing Requirements
118. Korea notes that Annex C(1)(g) uses the words "should be used" rather than "shall", or even
"are" which is used in Annex C, paragraphs 1(a), 1(c), and 1(e). The plain language meaning of
"should", as opposed to "shall", means that this provision is hortatory.
119. Korea also notes that the language in Annex C(1)(g) is very similar to Article 5.2.6 under
the TBT Agreement. However, in the latter, the mandatory nature of the provision is explicit. The
distinctions in the language used in the two agreements must be given effect.
120. Moreover, the language in Article 5.2.6 of the TBT Agre ement has a "necessity" test
embedded within the provision. By contrast, Annex C(1)(g) only encourages the "minimizing" of
inconvenience. There is an inherent lack of specificity in how each Member is to minimize the
inconvenience to applicants, importers, and exporters in any given situation and what that entails.
As a result, other language in the provision also provides further support for the hortatory nature
of Annex C(1)(g).
121. Even assuming that Annex C(1)(g) were to impose a mandatory obligation , Korea has
already demonstrated that Japan's claim fails because it is again premised on mischaracterizations
of Korea's additional testing requirements.

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122. Japan claims that Korea erroneously compares (i) pre -market testing of Japanese food
products with (ii) point -of-sale testing of both Japanese and domestic food products. Japan then
asserts that domestic Korean food products are subject only to point -of-sale testing, which may
include additional testing, and are not subject to pre-market testing. This is incorrect.
123. Cesium testing is conducted on samples from randomly selected final products. In addition,
Korea conducts radioactivity testing on randomly selected domestic products both at the
pre-market stage (i.e., at the stage of production) and at the point -of-sale stage, in the same
manner as radioactivity testing is conducted for imported foods both at the border and at the
point-of-sale. Moreover, additional testing is also required for domestic Korean products that are
found to contain more than 1 Bq/kg of cesium or iodine at both the pre -market stage (i.e., at the
stage of production) and point-of-sale stage.
124. With respect to the "siting of facilities, " Korea does not require that food products from
Japan containing at least 1 Bq/kg of cesium or iodine be sent back to Japan for additional testing.
Korea permits the testing for additional radionuclides to occur in Korea or prior to export to Korea,
as long as the testing is conducted by an institution authorized by the Japanese government.
125. With respect to the "selection of samples", Korea reiterates that domestic food products are
also subject to additional testing if at least 1 Bq/kg of cesium or iodine was detected. Japan
incorrectly alleges that under Korea 's measure, mandatory additional testing is required for all
consignments from Japan in which any cesium or iodine is found, while Korean products are not
subject to similar mandatory testing for additional radionuclides when cesium or iodine is found.
For Korean products that have been found to contain at least 1 Bq/kg of cesium or iodine, testing
for additional radionuclides is mandatory.
126. The plain text of Annex C(1)(g) references the "criteria" used in the "selection of samples" of
imported and domestic products. Japan does not challenge ces ium testing, whether at the
pre-export stage or at the Korean border. That means Japan does not challenge the scope or
frequency of that testing. Japan 's Annex C(1)(g) claim only relates to K orea's additional testing
requirements. Korea has shown that the "criteria" used in the "selection of samples " of imported
and domestic products for additional testing is the same. Specifically, if 1 Bq/kg of cesium or
iodine is detected, both imported Jap anese products and domestic Korean products are subject to
mandatory additional testing requirements. Pursuant to its annual Guidelines for Food Safety
Management, Korea has required additional testing for strontium, plutonium, and other
radionuclides if 1 Bq/kg of cesium or iodine is detected.
127. Japan then claims that the Panel must ensure an "apples-to-apples comparison " of the
differences in sampling criteria under Annex C(1)(g) which may necessitate an assessment of
whether any differences in samplin g criteria are rationally related to, and justified by, differences
in the respective purpose of the schemes being compared. This is a new test proposed by Japan,
which is not linked to the plain text of Annex C(1)(g). There is no indication of a
trade-restrictiveness or necessity test in the provision. Annex C(1)(g) only encourages Members
to use the "same criteria" with respect to the "siting of facilities " and "selection of samples " for
imported products and domestic products. Annex C(1)(g) does not cal l for an analysis of whether
the differences in sampling criteria are "rationally related to, and justified by, differences in the
respective purpose of the schemes being compared ". As a result, the Panel should disregard
Japan's attempts to insert new tes ts into its analysis that do not have any basis in the text of
Annex C(1)(g).
128. Ultimately, however, because Annex C(1)(g) does not impose a mandatory obligation, Japan
fails to show that Korea 's additional testing requirements are inconsistent with Ann ex C(1)(g) of
the SPS Agreement.
XII. CONCLUSION
129. For these reasons, Korea respectfully requests that the Panel reject Japan 's claims in their
entirety.

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ANNEX C
ARGUMENTS OF THE THIRD PARTIES
Contents Page
Annex C-1 Integrated executive summary of the arguments of Brazil C-2
Annex C-2 Integrated executive summary of the arguments of Canada C-3
Annex C-3 Integrated executive summary of the arguments of the European Union C-7
Annex C-4 Executive summary of the arguments of New Zealand C-11
Annex C-5 Executive summary of the arguments of Norway C-14
Annex C-6 Executive summary of the arguments of the United States C-18

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ANNEX C-1
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF BRAZIL
BRAZIL'S VIEWS ON THE TRANSPARENCY OBLIGATIONS IN THE SPS AGREEMENT
1. Brazil intervenes in this dispute due to its systemic interest in the correct and consistent
interpretation of the obligations contained in the Agreement on the Application of Sanitary and
Phytosanitary Measures ("SPS Agreement"), particularly those related to transparency and the
provision of information related to SPS measures by the WTO Members. This integrated executive
summary integrates comments made by Brazil in its Third Party Written Submission and the
responses to the Panel's questions.
2. In its third party submission, Brazil clarified that it does not question the Members' right to
adopt sanitary measures they deemed necessary, including an appropriate level of protection
higher than that established by international standards. However, this right is not unbounded as
the adoption of SPS mea sures are to be applied only to the extent necessary, based on scientific
principles and in a non-discriminatory manner.
3. Brazil understands that the transparency obligations under Article 7 and Annex B are not
something irrelevant, but central pieces o f the SPS Agreement, and are directly linked to the right
to adopt SPS measures. These obligations constitute the adequate means to inform others
Members affected by the measures and to provide additional information they deemed necessary.
4. In what regards the obligation contained in Article 7 and Annex B, Brazil explained that, in
order to maintain the balance of rights and obligations in the WTO, Members need to ensure that
any sanitary measure which may affect international trade are promptly informed to the
Membership, particularly those directly affected by the implementation of the measure. The duty
to inform is not to be understood as pro forma, but entails the need to provide prompt, on -time,
and effective information on all aspects of the relevant measure.
5. As for the questions of the Panel to the third parties, Brazil argued that the scope of the
publication obligation provided for in Annex B(1) is not straightforward and should be interpreted
in light of the provision's own object and purpose. In this sense, when Annex B(1) determines that
measures adopted be published promptly "in such a manner" as to enable interested Members to
become acquainted with them, it establishes that the content of the publication/notification in
order to comply with this publication obligation is not fixed.
6. The expression "in such a manner" of Annex B(1) works as an operative element that
informs the scope of the publication obligation and the level of detail of information to be provided.
As the very basis of t ransparency obligations, Brazil understands that the SPS measure itself need
to be published and does not agree with interpretations that suggest that the publication obligation
may be narrower depending on the specificities of the relevant regulation. Nev ertheless, although
in most situations the simple publication of the text of the relevant SPS measures may suffice to
provide enough information to interested Members, there may be cases in which the nature of the
measure requires additional information so as to allow the Membership to "become acquainted
with" the real scope of the SPS measure.

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ANNEX C-2
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CANADA
I. INTRODUCTION
1. As a third party in this case, Canada submitted a written statement, an oral statement, and
responses to third party questions issued by the Panel. In this Executive Summary, Canada
summarizes its position on issues related to the scope of SPS Agreement Annex B.1 and Annex
B.3, the interpretation of Article 2.3, and the impact of Article 5.7 on Articles 2.3 and 5.6.
A. SPS Agreement Transparency Provisions: Annex B
1. The regulation must be published under Annex B.1
2. It is Canada's position that the adopted regulation must be published pursuant to Annex B.1.
Canada believes that the plain and ordinary meaning of the provision, in accordance with Article
31(1) of the Vienna Convention on the Law of Treaties (Vienna Convention), is clear and requires
that all adopted SPS regulations be published promptly.
3. The context of Annex B.1 also suggests that it is the final measure itself that must be
published. In contrast to Annex B.5(a) and (b), which refer to the publication of a notice in
advance of a regulation, and Annex B.5(c ), which refers to the actual copies of the proposed
regulation, Annex B.1 clearly refers to the adopted measure itself that must be published
promptly.
4. Canada also notes that footnote 5 to Annex B.1 states that regulations include "laws,
decrees, or ordinances which are applicable generally". The Appellate Body in Japan – Agricultural
Products II clarified that measures that are "similar in character" to those in the footnote also fall
within the scope of Annex B.1. Canada does not believe a press rel ease falls within the scope of
Annex B.1 as it is not the regulation itself, it does not fall within the scope of footnote 5, and is not
"similar in character" to those instruments in footnote 5. Canada does not believe that publishing
a summary of a regu lation is sufficient to fulfil the requirements of Annex B.1. However, if the
actual regulation or measure is appended to the press release, or if there is a direct web link to the
regulation or measure in a press release, the requirement to publish the " regulation" in Annex B.1
would be met.
2. "To become acquainted with" a measure in Annex B.1 means a
measure must provide the level of information necessary for an
exporter to understand what is required for a product to get to
market
5. Annex B.1 requires that the publication of a measure be done in such a manner as to allow
other Members "to become acquainted with them". It is Canada's position that this requirement
goes beyond the mere publication of the measure, to whether the measure provides a level of
information necessary for an exporter to understand what is required for a product to get to
market.
6. In accordance with Article 31(1) of the Vienna Convention, Canada notes that the ordinary
meaning of the word "acquaint" in the Shorter Oxford Englis h Dictionary is to be made "aware" or
"familiar". This suggests that a threshold amount of information must be included in the
regulation. In this case, exporters would need to be sufficiently aware and familiar with the
measures so that th ey could export their products. This could only be achieved if the measure
includes a certain de gree of detail and specificity. Canada also believes that the meaning of "in
such a manner" should not be restricted to how a measure is published, but speaks to the content
of the measure.

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7. Canada notes that the Appellate Body in Japan – Agricultural Products II stated that the
scope of Annex B.1 should be interpreted in light of the object and purpose of the provision.
Canada believes that its position on the interpretation of Annex B.1 is supported by the object and
purpose of the provision and the SPS Agreement more generally, which is to facilitate
transparency and the predictability of the rules affecting trade in products subject to those rules.
8. The amount of information necessary to meet the threshold in Annex B.1 will depend on the
circumstances of the particular measure. In some cases, a measure may be less complex and
require less detail for a Member and its exporters to become sufficiently "acquainted" with the
measure. However, in other cases a measure may include a series of complex requirements and
necessitate a greater level of detail and explanation for exporters to understand what is required
of them.
9. Canada agrees with Norway's citation of three cases under Article X:1 of the GATT 1994, as
support for its position on this issue based on the similarity of the provision to Annex B.1 of the
SPS Agreement. In EC – IT Products , the Panel held that the minutes of a Customs Code
Committee meeting did not provide traders and governments with adequate knowledge of the
measures at issue. In Dominican Republic – Import and Sale of Cigarettes and Thailand –
Cigarettes (Philippines), the panels set out specifically what type of information would be
necessary to meet the requirements of the transparency provision. These cases suggest strongly
that there is a substantive requirement to the transparency provisions of Article X:1 of the GA TT
1994, and not just a procedural requirement, and Canada believes that the same substantive
requirement exists for Annex B.1 of the SPS Agreement.
3. Annex B.3 includes a substantive obligation to provide answers to
"reasonable questions" and to provide "relevant documents"
where requested
10. Canada believes that Annex B.3 is not limited to a procedural requirement of establishing an
Enquiry Point, but includes a substantive obligation of responding meaningfully to reasonable
questions and providing relevant documents that fall within the scope of Annex B.3(a)-(d).
11. It is Canada’s position that limiting Annex B.3 to a procedural requirement is contrary to
the plain and ordinary meaning of the provision, and would deprive it of any practical meaning.
Furthermore, such an interpretation would be contrary to the object and purpose of the provision ,
which is clear from reading the text: there is an obligation to not only have an Enquiry Point, but
to answer all reasonable questions and provide documents t hat fall wit hin the scope of the
provision. To suggest that the text of the treaty should be interpreted as requiring the
establishment of an Enquiry Point to respond to inquiries that fall within the subparagraph (a) -(d),
but that there is no obligation t o actually answer any of these inquiries, is absurd. As stated by
the Appellate Body in Australia – Salmon, it "would obviously be wrong to interpret the SPS
Agreement in a way that would render nugatory entire articles or paragraphs of articles of this
Agreement and allow Members to escape from their obligations under this Agreement".
12. Canada also believes there is extensive support for its position when the provision is read in
its context. Annex B.4, also under "Enquiry Points", clearly assumes that the documents requested
under Annex B.3 will be delivered (and supplied at a certain price). Canada also recalls that Article
7 (Transparency) requires Members to "…provide information on their [SPS] measures in
accordance with the provisions of Annex B", and Annex B.3 reflects the obligation in Article 7 to
provide relevant documents and answer reasonable questions.
13. Canada disagrees with the United States' position that Members' substantive obligations with
respect to transparency are not found in Ann ex B.3, but are found in other provisions such as
Annex B.1 and Article 5.8. Canada notes that the transparency obligations in Annex B.1 and Article
5.8 address two very narrow and specific scenarios. Annex B.1 addresses the requirement to
promptly publish the adopted SPS measure in such a manner as to enable Members to become
acquainted with them, while Article 5.8 allows a Member to request an explanation of the reasons
for an SPS measure when there is reason to believe that the measure is constraining or has the
potential to constrain its exports, and the measure is not based on international standards. The
only other substantive transparency obligations in Annex B fall under "Notification Procedures",
which are also limited and specific in their applica tion: they apply in the context of a proposed

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regulation. It would be illogical to suggest that there are comprehensive transparency obligations
for proposed regulations, but none when the measure has been adopted.
14. Canada has taken the position that t he meaning of "reasonable questions" and "relevant
documents" in Annex B.3 should be determined in light of what information Members and
exporters need in order to ensure equality of competitive opportunities for foreign producers and
exporters. This posi tion is supported by the plain and ordinary meaning of "reasonable" and
"relevant" in the Shor ter Oxford English Dictionary. "Reasonable" means "appropriate or suitable
to the circumstances or purpose" and not "irrational, absurd or ridiculous". "Relevant" means
"bearing on, connected with, or pertinent to the matter at hand". Canada submits that what would
constitute reasonable information or relevant documents in this case would be information that
would be necessary for exporters to understand what is r equired for a product to be eligible for
market access.
15. Overall, there will be an element of discretionary judgment that WTO panels will have to
exercise in deciding what level of detailed information must be published in Annex B.1 and what
can be addressed subsequently under Annex B.3. Canada believes that the two provisions work in
tandem.
B. SPS Agreement Substantive Provisions
1. SPS Agreement Article 2.3 and "where identical or similar
provisions prevail"
16. The first sentence of Article 2.3 sets out a three -step test that includes the following
cumulative elements: a) that identical or similar conditions prevail in the territories of the
Members being compared; b) that the challenged measure discriminates between those Members;
and c) that the discrimination is arbitrary or unjustifiable.
17. The first step of the test requires a comparison of conditions, similar to that found in Article
XX of the GATT 1994. Canada notes that the Appellate Body in EC – Seal Products stated that the
term "conditions" could encompass a number of circumstances facing a country, while the panel in
Australia – Salmon (Article 21.5 – Canada) stated that discrimination under Article 2.3 of the SPS
Agreement may include discrimination between products that are different.
18. Canada takes the position that it is the similarity of risks that is the central factor in the first
step of the Article 2.3 analysis. For example, the mere presence of a disease in a Member's
territory and the risk associated with that disease may be a relevant condition if the same or
similar disease prevails in another Member's territory. A comparison of the level of risks posed by
comparable products may be one of many factors that can be taken into account in an "identical or
similar conditions" analysis. Canada also notes that the jurisprudence suggests that the conditions
to be compared must be relevant and case-specific, and that the regulatory objective of a measure
can provide guidance on the question of which conditions prevailing in Members are relevant. In
the context of this case, Canada believes that an assessment of relevant conditions should include,
for example, the presence of toxins within a territory, namely the presence of cesium, and the
risk-mitigating measures in place to assure the sanitary safety of food products.
2. The nature of a provisional measure under Article 5.7 should be
taken into account in an assessment under Articles 2.3 and 5.6
19. Canada believes that the provisional nature of a measure is a relevant consideratio n for the
purposes of the other substantive obligations in the SPS Agreement, if the measure also satisfies
the criteria in Article 5.7.
20. Canada recalls the position of the Appellate Body in EC – Approval and Marketing of Biotech
Products, that the thre shold issue for Article 5.7 is whether relevant scientific evidence is
insufficient. A measure would fall within the scope of Article 5.7 only if the four cumulative criteria
cited by the Appellate Body in Japan – Agricultural Products II are met: the mea sure is imposed
where relevant scientific information is insufficient; the measure is adopted on the basis of
pertinent information; the Member adopting the measure seeks to obtain the additional

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information necessary for a more objective assessment of ris k; and that the Member reviews the
measure accordingly within a reasonable period of time.
21. Canada notes that the panel in EC – Approval and Marketing of Biotech Products stated that
the obligations of Articles 2.1, 2.3 and 2.4 are applicable to provisional measures under Article 5.7.
However, Canada believes that if a measure meets the requirements of Article 5.7, this must be
taken into account in an assessment of the measure under Articles 2.3 and 5.6. Therefore, for
example, an analysis under Artic le 2.3 would take into account the fact that there was insufficient
evidence to complete a full risk assessment on which to base the measure. Similarly, an
assessment under Article 2.3 should take into account the fact that a measure is provisional under
Article 5.7. For example, in assessing whether a measure is arbitrary or unjustifiable, Korea may
provide a justifiable rationale for the imposition of more stringent measures against Japanese fish
products as compared to similar products from other countries.

- C-7 -

ANNEX C-3
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION
1. CLAIMS RELATED TO ARTICLE 7 AND ANNEX B OF THE SPS AGREEMENT
1.1. THE ALLEGED FAILURE TO PUBLISH THE SPS REGULATIONS
4.1.2.1. Relationship of Article 7 and Annex B
1. The European Union (EU) agrees with previous panels and the Appellate Body that a finding
of inconsistency with Annex B would result in a finding of inconsistency also with Article 7. The EU
recalls that previous panels have therefore started by examining the claims under Annex B.
4.1.2.2. Paragraph 1 of Annex B
2. According to Annex B(1), Members shall ensure that SPS regulations (i.e. SPS measures,
read in conjunction with footnote 5 of the SPS Agreement) are published promptly "in such a
manner as to enable interested Members to become acquainted with them. " The Appellate Body
has previously stated in Japan – Agricultural Products II that the object and purpose of Annex B(1)
is to enable interested Members to become acquainted with SPS mea sures and to enhance
transparency regarding those measures. With regard to the similarly worded publication obligation
in Article X:1 GATT 1994, the panel previously found in EC – IT Products that the publication
should provide governments and traders with "adequate" knowledge of the measures in question.
The case law as well as the fact that the SPS Agreement contains several provisions dealing with
transparency (e.g. Article 5.8, Article 7, Annex B) underline the importance of transparency
obligations under the SPS Agreement.
3. The overall purpose of Annex B(1) therefore is to ensure that other Members (and their
exporters) are able to understand the SPS measure in question, to know what is required of them
so that they can continue exporting e.g. thei r food and feed products to the Member adopting the
SPS measure. Whether a given publication fulfils this purpose in a specific case will depend on a
case-by-case analysis.
4. Accordingly, the EU considers that in principle the publication of the SPS measu re as such is
required but also sufficient to fulfil the transparency obligation under Annex B(1). However, what
is required of a Member to comply with the obligation to publish may depend on the factual
circumstances of a given case. The EU therefore does not take the position that the publication by
Korea of press releases regarding the SPS measures per se allows to conclude on the inconsistency
of the publication with Annex B(1) on the grounds that a press release does not constitute the SPS
measure itse lf. The EU considers that in certain exceptional circumstances, the publication of a
text falling short of the full text of the SPS measure may be sufficient to fulfil the transparency
obligations. In the case of a press release, this could be the case, fo r example, if the press release
contains a web link to the full text of the respective SPS measure or if the SPS measure is
described in such a manner so as to amount de facto to the publication of the SPS measure. The
EU does not conclude on the factual question as to whether this is the case.
1.2. THE ALLEGED FAILURE TO PROVIDE INFORMATION
5. Annex B(3) states that each Member "shall ensure that one enquiry point exists " which is
"responsible" for providing answers and documents. In view of the impor tance of the transparency
obligations under the SPS Agreement, the EU considers that Annex B(3) would be devoid of
purpose if it would contain a mere obligation to set up an enquiry point and to provide any type of
answers or documents, irrespective of their substantive content.
6. According to the European Union 's view, Annex B(3) contains an obligation for Members to
provide meaningful answers and documents. The provision of an answer/document creates a
presumption that the obligation to provide meaningfu l answers has been complied with. This
presumption may be rebutted in which case the panel may find an inconsistency with Annex B(3).
7. However, the obligation to provide meaningful answers is subject to certain limitations, e.g.,
(i) it only applies with respect to "reasonable" questions and "relevant" documents; (ii) it is subject
to a standard of reasonableness; (iii) it must be considered in the overall context (e.g. not every

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failure to reply is an inconsistency) and (iv) the questions and documents must "regard", i.e. be
closely related to the items listed exhaustively in subparagraphs (a) to (d).
8. The EU also notes that any argument that Article 5.8 contains a specific (an d hence the
only) obligation to provide answers under the SPS Agreement cannot prevail. Article 5.8 concerns
a specific obligation to provide "explanations of the reasons " for an SPS measure in particular
circumstances. This is a situation which is not necessarily covered by Annex B(3) and hence Article
5.8 is not relevant to define the scope of the obligation under Annex B(3).
2. CLAIMS RELATED TO ARTICLE 2.3 OF THE SPS AGREEMENT
2.1. RELATIONSHIP OF ARTICLE 2.3 WITH OTHER PROVISIONS
9. The EU ag rees with previous case law stating that an inconsistency with Article 2.3 can be
found independently of an inconsistency with the more specific obligation of Article 5.5. Therefore
Japan may invoke an inconsistency with Article 2.3 without having to invoke Article 5.5.
10. The EU also considers that the potential provisional nature of Korea 's SPS measures and
hence Article 5.7 and its relationship with Article 2.3 may be relevant for the panel's assessment in
the present case. Japan makes no claim under Ar ticle 5.7 of the SPS Agreement. Korea also does
not make an explicit argument under Article 5.7, except to generally describe its measures as
"provisional in nature pursuant to Article 5.7 ". Korea's arguments under Article 2.3 (and under
Article 5.6) focus on the alleged lack of scientific information. The EU notes that Article 5.7 can be
relied upon by the respondent against a claim brought under another relevant provision of the SPS
Agreement even if the complainant did not invoke Article 5.7.
11. The EU considers that Article 2.3 remains applicable even if a measure is provisional under
Article 5.7. Other than in Article 2.2, Article 5.7 is not mentioned as a qualified exemption in
Article 2.3. The EU also considers that the provisions in Article 5.7 and Article 5.5 (and Article 5.6,
see below) are closely connected and contextually inform each other. A situation of insufficient
scientific evidence should not completely insulate the regulating Member from the specific non -
discrimination obligation under Ar ticle 5.5 and the same applies to the general non -discrimination
obligation under Article 2.3. However, the assessment under Article 2.3 would in such case be
informed by the fact that a provisional measure is, by definition, based on incomplete informati on.
This is similar to the situation in EC - Biotech where the panel held that, where scientific evidence
is insufficient, Members are only required to perform a risk assessment which "takes into account
available pertinent information ". The non -discrimination analysis of a provisional measure should
therefore not be carried out under the same standard as for a definitive measure, based on a full
risk assessment.
12. The EU also takes the view that Article 2.3 cannot be meaningfully applied in the prese nt
case without taking into account if Korea 's SPS measures are provisional, whether Article 5.7 is
invoked or not and whether the conditions of Article 5.7 are fulfilled or not. In deciding any claim
under Article 2.3, a panel must look at the totality of the facts and evidence which may include the
provisionality of a measure. This is also warranted under Article 11 DSU. The EU also considers
that the fact that "all relevant factors" should be considered for the guidelines with respect to the
implementation of the non -discrimination obligation under Article 5.5 indicates that all relevant
factors should also be considered for an analysis as regards non-discrimination under Article 2.3.
2.2. ARTICLE 2.3
13. Under Article 2.3, first sentence, an SPS measure is discriminatory if (1) the measure
discriminates between the territories of Members other than the Member imposing the measure, or
between the territory of the Member imposing the measure and that of another Member; (2) the
discrimination is arbitrary o r unjustifiable; and (3) identical or similar conditions prevail in the
territory of the Members compared. The EU agrees with the position of previous panels that
measures that constitute arbitrary or unjustifiable discrimination also constitute a disguise d
restriction under Article 2.3, second sentence.
14. The central issue under Article 2.3 in the present case appears to be whether identical or
similar conditions prevail in the territory of the Members compared. The EU recalls that Article 2.3,
contrary to the usual position with respect to non -discrimination obligations under other WTO
agreements, may also include discrimination between different (non -competing) products. Article
2.3 therefore does not require a comparison in order to determine whether certain products are
"like" but requires a comparison in order to determine whether conditions are similar or identical.

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15. Japan's comparison in the present case focuses on the question of whether and to what
extent Japanese food and food from other sou rces may contain cesium and other radionuclides.
Contrary to Korea's contention, the EU does not consider that this constitutes an assessment as to
whether the products are comparable, since Japan did not carry out any analysis of the
competitive relations hip between Japanese and non -Japanese fishery products. The level of
radionuclides in food products is one important element to assess whether conditions are similar in
a case like the present one. However, the EU considers that the panel will have to care fully assess
whether Japan has shown, on the basis of a comparison of all relevant factors, that the conditions
in the respective territories are similar.
3. CLAIMS RELATED TO ARTICLE 5.6 OF THE SPS AGREEMENT
16. Under Article 5.6, an SPS measure is more trade -restrictive than required if there is an
alternative SPS measure which (1) is reasonably available, taking into account technical and
economic feasibility; (2) achieves the Member's ALOP and (3) is significan tly less trade restrictive
than the contested measure. It is for each Member to choose its own ALOP. However, the Member
should calibrate its measures according to the chosen level.
3.1. IMPORT BANS
17. The EU proceeds on the assumption that Japan 's proposed alternative measure corresponds
to Korea's approach to food from non-Japanese sources.
18. The Appellate Body has noted that the SPS Agreement contains an implicit obligation to
determine the appropriate level of protection. Where a Member does not do so with sufficient
precision, the ALOP may be established by panels on the basis of the level o f protection reflected
in the SPS measure actually applied. With this in mind, the relationship between Korea 's 1
mSv/year benchmark and the "ALARA" principle should be clarified, in order to understand at
which level the ALOP is actually set. Moreover, th e Panel may look to the "SPS measure actually
applied" for evidence on Korea 's ALOP. If such an assessment showed that Korea seeks to ensure
an ALOP of 1 mSv/year with respect to Korean food and non-Japanese imports, it would be difficult
to see how a diff erent ALOP could apply to Japanese imports. If the ALOP was said to be "ALARA"
for food from all sources, this might suggest that Korea 's measure does not reach Korea 's own
ALOP with respect to Korean and non-Japanese food.
19. Another contentious issue is whether Japan's proposed alternative measure achieves Korea's
ALOP. In this respect, the EU focuses on the relationship between necessity, as expressed in
Article 5.6, and insufficient scientific evidence, as expressed in Article 5.7 of the SPS Agreement.
As mentioned earlier, none of the Parties invokes Article 5.7 in the present case.
20. Article 5.6 should be read together with Article 2.2 of the SPS Agreement. Article 2.2
excludes from its scope of application the kinds of situations covered by Arti cle 5.7. This does not
necessarily mean that situations covered by Article 5.7 are excluded from the scope of Article 5.6.
Articles 5.6 and 5.7 are closely connected provisions. For example, the reference to "technical
feasibility" in Article 5.6 could lea d the adjudicator to ask whether it was technically feasible, in a
situation of insufficient scientific evidence, for the regulator to design a less restrictive measure;
conversely, the Article 5.7 requirements to base provisional measures on "available pe rtinent
information", to seek additional information and review the measure, are a way of preventing the
maintenance of overly trade-restrictive measures. In deciding any claim under Article 5.6, a panel
must look at the totality of the facts and evidence. It is hard to see how facts and evidence
showing that a measure is, in some sense, provisional in nature could be disregarded just because
Article 5.7 was not relied upon. Moreover, even where those facts and evidence would not in
themselves be sufficient to fulfil the requirements of Article 5.7, there is no basis on which a panel
could simply disregard them entirely, in view of its obligation under Article 11 DSU.
21. The EC - Biotech panel held that, where scientific evidence is insufficient, Members ar e only
required to perform a risk assessment which "takes into account available pertinent information ".
Such considerations should also weigh in with respect to Article 5.6. A provisional measure is, by
definition, based on incomplete information. There m ay be uncertainty as to such a measure 's
contribution to the Member's ALOP, or its trade-restrictiveness. Alternative measures may be more
difficult to implement on a provisional basis. A provisional measure could still be more trade
restrictive than neces sary, for example if it does not take into account "available pertinent
information". Conversely, the fact that a measure is manifestly unnecessary and disproportionate
would be relevant to determining whether or not the measure is in fact based on pertine nt
information. Both scenarios would support the conclusion that the measure breaches both Article
5.7 and Article 5.6.

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22. Moving on, the EU agrees that, in principle, product testing is a less trade restrictive
measure than an import ban, since it still allows imports to access the regulating Member 's
market. Finally, the EU agrees with Japan that the regulating Member 's existing use of the
alternative measure with respect to the same or closely comparable products or risks could
support the claim that the measure is reasonably available.
3.2. ADDITIONAL TESTING REQUIREMENTS
23. The EU refers mutatis mutandis to its comments on the necessity of the import bans, adding
only the following remarks on whether the alternative measure is significantly less trad e
restrictive. Here, the central issue is the extent of market access permitted by the two measures
being compared. Any additional costs, complexities and delays that are imposed on imports as a
result of the measure at issue, which would not be imposed un der the alternative measure, should
be taken into account. Thus, the EU disagrees with Korea insofar as it seems to suggest that
differences in costs and delays are not a relevant consideration.
24. With respect to Korea 's argument that additional testing is also contemplated by the Codex
standard, the EU notes that whether or not an SPS measure is based on an international standard
is not necessarily an issue that arises under the third prong of the Article 5.6 test. If the measures
were considered to con form to a relevant international standard, they would benefit from a
rebuttable presumption of conformity with the SPS Agreement under Article 3.2. Article 5.6 of the
SPS Agreement applies "without prejudice " to Article 3.2. Consequently, in such a situati on, it
would be for the complainant to rebut the presumption of necessity.
4. CLAIMS RELATED TO ARTICLE 8 AND ANNEX C OF THE SPS AGREEMENT
25. The Appellate Body has found that Article 8 of the SPS Agreement "establishes an obligation
to comply with the provisions in Annex C". A violation of the obligations in Annex C will also entail
a violation of Article 8. Korea argues that an SPS measure itself cannot also constitute a
"procedure" subject to Annex C. The EU does not find such a rigid distinction conv incing. An SPS
measure may itself contain rules on inspection and control procedures. For example, if a measure
simply requires food to be tested on importation in order to establish whether it contains a certain
contaminant, it would be an SPS measure, bu t it would also concern inspection and control
procedures. On the other hand, the requirements of Annex C should not apply to each and every
SPS measure. Annex C measures must concern control, inspection and approval procedures.
26. Many of the specific p rovisions of Annex C are similar to obligations that are expressed
elsewhere in the SPS Agreement. For example, paragraph 1(a) is related to the non -discrimination
rule of Article 2.3, and paragraphs 1(c) and 1(e) are reminiscent of the necessity rules in
Articles 2.2 and 5.6. With this in mind, the EU expects that the Panel will have largely completed
its task with respect to some of the Annex C claims by deciding on Japan 's Article 2.3 and 5.6
claims.
27. Regarding paragraph 1(a), the E U recalls the finding of the EC - Biotech panel that "a mere
showing that a Member has undertaken or completed a particular approval procedure in a manner
which is unfavourable for a given imported product would not be sufficient to establish a "less
favourable manner" of undertaking or completing approval procedures if the relevant Member's
conduct is explained by factors or circumstances unrelated to the foreign origin of the product. "
Regarding paragraph 1(c), the same report suggests that a complainant should normally identify
"specific information requirements which were imposed on applicants " in the relevant procedures,
and "why any such requirements were not necessary ". Regarding paragraph 1(e), that panel
suggested that it is not sufficient that the procedure involves testing of specimens, but that the
claim must identify specific requirements which were imposed "for the approval of individual
specimens".

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ANNEX C-4
EXECUTIVE SUMMARY OF THE ARGUMENTS OF NEW ZEALAND
I. Introduction
This case and the associated third party submissions have raised some important systemic issues
concerning transparency and provisional measures under the Agreement on the Application of
Sanitary and Phytosanitary Measures (SPS Agreement). New Zealand 's participation as a t hird
party in these proceedings reflects our systemic interest in the proper implementation of the SPS
Agreement.

II. Relationship between Articles 5.7, 2.3 and 5.6

Article 5.7 of the SPS Agreement relates to provisional measures, adopted in cases wh ere relevant
scientific evidence is insufficient. Japan makes no claim under this Article. Consequently, Korea
does not make a specific legal ar gument relating to Article 5.7. While Article 5.7 is not directly at
issue in this case, Korea generally describ es its measures as "provisional in nature pursuant to
Article 5.7 of the SPS Agreement "1 and its arguments under Articles 2.3 (Non -Discrimination) and
5.6 (Appropriate Level of Protection) draw on the alleged lack of scientific information, and inability
to carry out a risk assessment.2
The EU argued, in its third party submission, that the provisional nature of a measure is relevant
to the analysis carried o ut under Articles 2.3 and 5.6. In contrast, New Zealand considers that
articles 2.3 and 5.6 apply in the same way to both provisional and definitive SPS measures.

In relation to Articles 2.3 and 5.7, the EU says in its written submission "the non-discrimination
analysis of a provisional measure should not be carried out under the same standard as f or a
definitive measure, based on a full risk assessment. " New Z ealand takes a different view. A
different standard should not be applied. However, if relevant, the factors surrounding the
imposition of provisional measures may be taken into account when carrying out an analysis under
Article 2.3. For instance, the fact that insufficient evidence is available about conditions in one
Member vis a vis another Member may contribute to a finding that similar conditions do not prevail
in these two countries. Evidence will have to be adduced as to the lack of evidence available,
leading to the claim that similar conditions do not prevail.

We apply a si milar analysis to Article 5.6. We do not consider that a different standard should be
applied to assessin g the compliance of provisio nal measures with Article 5.6. Rather, the
circumstances surrounding the establishment or maintenance of a measure should be taken into
account when assessing whether the measures in questions are "not more trade restrictive tha n
required to achieve the [Member 's] appropriate level of protection, taking into account technical
and economic feasibility ". The consideration of technical feasibility provides scope to consider the
technical difficulties which may arise from having a la ck of scientific information available when
designing a measure or considering alternative measures (in terms of footnote 3 to Article 5.6)
and determining whether it will meet a Member's appropriate level of protection.

In this case it is not necessary for the Panel to consider this issue in order to resolve the dispute,
as Korea 's measures have not been shown to be provisional in accordance with Article 5.7.
However, if a Panel were to take into account the provisional nature of measures in an
examination of claims under Articles 2.3 and 5.6, then it must be demonstrated that the measures
are indeed "provisional" in accordance with Article 5.7. The burden falls on the party invoking the
Article 5.7 "justification" to prove that their measures comply wit h Article 5.7, meeting the four
cumulative requirements which must be met in order to adopt and maintain a provisional SPS
measure (as set out by the Appellate Body in Japan — Agricultural Products II3). In the absence of
such proof, arguments relating to insufficient scientific evidence and provisional measures may not

2 Korea First Written Submission, paras. 138, 190, 244 and 248.
3 Appellate Body Report, Japan - Measures Affecting Agricultural Products, WT/DS76/AB/R, adopted
22 February 1999, para. 89.

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be part of the interpretative exerci se under Articles 2.3 and 5.6. We cannot "relax" the core
obligations in these two articles by referencing Article 5.7 but not providing any evidence that the
elements of Article 5.7 are met.

III. Annex B(1) of the SPS Agreement requires publication of the measure itself

New Zealand's view is that the publication obligation under Annex B(1) requires publication of the
text of the relevant SPS measures , in all instances. Annex B(1) states clearly that all SPS
regulations (SPS measures such as laws, decrees, or o rdinances) shall be published. Moreover, an
interpretation of this obligation in accordance with the plain reading of the words, and in light of
the object and purpose of the Annex – transparency – suggests that the measures themselves are
to be published.

Publishing an incomplete summary of regulations, for example, through a press release, is not an
acceptable means of satisfying this obligat ion. Given the technical nature of SPS regulations, in
order to ensure compliance, Members must have access to the full text of regulations. This is
especially important for measures of a provisional nature, which are adopted without prior notice
and without Members having had an opportunity to comment.

A requirement to publish the text of SPS measures provides a predictable baseline which must be
met by all Members. While the legal obligation to publish SPS measures will be met once the text
of the measure is published, Members should be encouraged to publish extra information relating
to their measures to assist with implementation and understanding. A Member must never publish
less than the measure itself.

New Zealand does not see a continuum of obligations as useful here, with publication meaning less
than the text of an SPS regulation in some circumstances, and more than the text of the regulation
in othe r circumstances. Rather than Members unilaterally deciding what they should publish,
depending on how complex they believe their regulations to be, Members need certainty about
what they are obligated to publish. New Zealand sees one fixed standard - publication of the
measure itself - as facilitating such certainty.

We recognise that in some cases, additional information may be required by some Parties in order
to interpret particularly complicated measures. However, it is the role of the enquiry point,
pursuant to Annex B(3), to provide this information if requested by interested Members.

IV. Annex B(1) of the SPS Agreement does not govern the level of detail required in
a measure

There are two possible interpretations of the obligation that "Members shall ensure that all sanitary
and phytosanitary regulations which have been adopted are published promptly in such a manner
as to enable interested Members to become acquainted with them."

The first interpretation is that this obligation is about access to SPS regulations; the manner in
which a regulation is published refers to the way in which a regulation is published, the medium of
publication. Regulations must be published in an accessible way, such as on a government
website, or in easily accessible journals. Annex B(1) applies to regulations that have been adopted.
Therefore, it wo uld not follow from this that Annex B(1) should govern the level of detail that a
regulation must go into, because it applies to regulations that have already been adopted.

The second interpretation is that the manner in which a regulation is publish ed refers to the
content of the regulation, and the level of detail required in the publication so that a Member can
become acquainted with the requirements of the regulation.

New Zealand's inclination is to follow the first interpretation. The ordina ry meaning of the word
manner ("a way in which a thing is done or happens ") in the context of this obligation seems to
refer to the way in which a regulation is published, rather than the level of detail required of the
regulation (for the reasons set out above in paragraph 7).

However, if the Panel takes the second interpretation of Annex B(1) and determines that it
governs the level required in a regulation, New Zealand considers that the level of detail required
by Annex(1) is that which will allow Members to understand what is required for compliance wit h a

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particular SPS regulation. New Zealand agrees with Canada, who adopted a similar approach in its
oral statement, stating that "the level of detail or information required by Annex B(1) is that which
allows Members and its exporters to understand what is required for their products to be eligible
for market access".

V. Members are required to provide a nswers to reasonable questions and relevant
documents under Annex B(3), not under Article 5.8

New Zealand considers that Annex B(3) contains a substantive obligation for Members to both
establish an enquiry point, and through this enquiry point, to resp ond to all reasonable questions
from interested Members as well as provide relevant documents.

As stated by Canada in its third party written submission,4 to interpret this obligation in a way that
requires an enquiry point to be established, but does not require the enquiry point to actually
respond to questions, makes little sense. Further, the qualifications placed on what can be directed
to the enquiry point – reasonable questions and requests for relevant documents – would be
ineffective and unnecessary if there were no obligation to respond to questions at all.

Article 5.8 is applicable only in a narrow range of circumstances. It allows Members to request an
explanation of the reasons for SPS measures in situations where they have reason to be lieve that
a specific SPS measure maintained by another member is constraining, or has the potential to
constrain its exports, and the measure is not based on the relevant international standards,
guidelines or recommendations, or such standards, guideline s or recommendations do not exist.
On the contrary, Annex B(3) is applicable in a much wider range of circumstances – Members must
provide answers to all reasonable questions from interested Members, as well as provide relevant
documents regarding any SPS regulations adopted or proposed within their territory, risk
assessment procedures, and the determination of their appropriate level of sanitary or
phytosanitary protection, among other things.

As we can see from a comparison of these two provisions, th e purpose and content of Article 5.8
and Annex B(3) are different, and they are appl icable in different situations. Article 5.8 is specific
to Members seeking clarification about the reasons behind measures they believe to be
constraining and not based on international standards. However, under Annex B(1) a Member
may ask reasonable questions and request relevant documents about any SPS measure imposed
by a Member.

4 Canada Third Party Written Submission, para. 21.

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ANNEX C-5
EXECUTIVE SUMMARY OF THE ARGUMENTS OF NORWAY
I. INTRODUCTION

1. A transparent regulatory framework is a prerequisite for international trade in general and
the importation of food products in particular. Without the possibility to gain access to relevant
and precise information regarding the requirements applicable to the importation of food products,
traders are left without predictability and the appropriate due process guarantees. In the
Recommended procedures for implementing the transparency obligation of the SPS Agreement
(Article 7), the SPS Committee recognised transparency as one of the fundamental principles of
the WTO.1

II. THE RELATIONSHIP BETWEEN ARTICLE 7 AND ANNEX B

2. Article 1.3 of the SPS Agreement states that "[t]he annexes are an integral part of this
Agreement". The SPS Agreement Article 7 refers to Annex B, stating that "Members […] shall
provide information on their sanitary or phytosanitary measures in accordance with Annex B ". In
India – Agricultural Products the panel clarified that "Article 7 must be read together with the
provisions of Annex B of the SPS Agreement ".2 Moreover, the same panel pointed out that the
Appellate Body has found that "an inconsistency with the provisions of Annex B results in an
inconsistency with Article 7".3

3. Accordingly, it is quite clear that a violation of any of the paragraphs of Annex B will result
in a violation of Article 7 of the SPS Agreement. Whether this is the situation in the case at hand,
will depend on an interpretation of paragraph 3 and the assessment of the facts.

III. PUBLICATION REQUIREMENTS

A. Interpretation of Article 7 and paragraph 1 of Annex B

a) Publication vs information

4. In Japan - Agricultural Products II the Appellate Body addressed paragraph 1 of Annex B to
the SPS Agreement and stated that;
The object and purpose of paragraph 1 of Annex B is "to enable interested Members to
become acquainted with" the sanitary and phytosanitary regulations adopted or maintained
by other Members and thus to enhance transparency regarding thes e measures. In our
opinion, the scope of application of the publication requirement of paragraph 1 of Annex B
should be interpreted in the light of the object and purpose of this provision. 4
5. Article 7 of the SPS Agreement contains an obligation on Memb ers, namely that Members
"shall provide information " on their sanitary or phytosanitary measures. This must be done in
accordance with the provisions in Annex B, which clarifies and specifies the content of Article 7.
Following Annex B(1), adopted SPS regu lations must be "published promptly in such a manner as
to enable interested Members to become acquainted with them".
6. In Japan – Agricultural Products II , guidelines had been distributed to a limited number of
addressees, and the Ministry of Agriculture, Forestry and Fisheries (MAFF) was available to answer
queries. Still, the panel found that this was not sufficient to satisfy the publication requirement in
Annex B(1) of the SPS Agreement. 5 Norway understands this to mean that access to information

1 G/SPS/7/Rev.3, para. 1.
2 Panel Report, India – Agricultural Products, para. 7.741.
3 Ibid, referring to Appellate Body Report, Japan – Agricultural Products II, para. 108.
4 Appellate Body Report, Japan - Agricultural Products II, para. 106.
5 Panel Report, Japan - Agricultural Products II, para. 8.115.

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upon request would not fulfil the publication requirement. Rather, the publication requirement in
paragraph 1 of Annex B and Article 7 must be interpreted to the effect that it entails a positive
obligation on the Member, a duty to act on one’s own initiative and to publish all SPS regulations.
7. Thus, the publication requirement will be fulfilled only if SPS regulations are published in a
manner that makes them publicly available, so all interested Members and traders can become
acquainted with them. This i nterpretation is in line with the fundamental aim of transparency,
namely to facilitate international trade by ensuring clarity and predictability of Members '
regulations.
b) The content of the publication requirement
8. In accordance with paragraph 1 of A nnex B to the SPS Agreement , Members shall ensure
that "all sanitary and phytosanitary regulations " are published promptly. In line with the wording
of the SPS Agreement, it is the SPS regulation itself that must be published. This interpretation is
also in line with the assessment of the panel in Japan - Agricultural Products II. 6 Footnote 5 to
Annex B(1) clarifies that "regulations" mean "sanitary and phytosanitary measures such as laws,
decrees or ord inances which are applicable generally ", thus referring back to the wording of
Article 7 of the SPS Agreement. This entails an obligation to publish the text of the relevant SPS
measures, regardless of the specificities of the relevant regulation.
9. Should, however, the Panel find that paragraph 1 of Annex B to the SPS Agreement does not
contain an unconditional obligation to publish the SPS regulation itself, Norway would argue, in the
alternative, that this provision nevertheless contains an obligation on Members to publish complete
and sufficiently detailed information on the regulation to allow other Members and traders to
achieve the clarity and predictability necessary to facilitate international trade in food products.
This follows from the standard set in paragraph 1 of Annex B to the SPS Agreement, namely that
SPS measures must be published "in such a manner as to enable interested Members to become
acquainted with them" (underlining added).
10. Similar publication requirements may be found in a nu mber of WTO Agreements and case
law concerning other WTO Agreements containing such provisions may also be relevant for the
interpretation of the SPS Agreement. In this respect, Norway refers to the panel reports in EC – IT
Products,7 Dominican Republic — Import and Sale of Cigarettes 8 and Thailand — Cigarettes
(Philippines).9 These cases illustrate that Members must publish complete and precise information
regarding the applicable rules and restrictions on the importation of food products. The manner in
which this information is published must be adequate, to ensure that it enables Members to
become acquainted with them.
11. The case at hand also illustrates the need for precise information on SPS regulations, to
ensure that Members and traders are able to gain knowledge about the regulatory framework
within which they must operate. Moreover, the challenges highlighted by Japan in this case point
back to the object and purpose of transparency as a fundamental principle of the WTO, namely to
achieve a greate r degree of clarity, predictability and information about trade policies, rules and
regulations of Members for the benefit of all traders.
12. In its First Written Submission, Korea argues that Japan complains about a level of detail
that goes beyond the p ublication requirement in paragraph 1 of Annex B to the SPS Agreement.10
Moreover, Korea claims that "[t]he fact that paragraph 3 anticipates that interested Members may
have questions confirms that publication under paragraph 1 does not require that publication
include a description with the level of detail demanded in this case by Japan".11
13. Norway does not share this interpretation of the relationship between paragraphs 1 and 3 of
Annex B of the SPS Agreement . As set out above, it is in our view clear that the publication
requirement in paragraph 1 relates to the measure itself. We cannot, however, see that the
obligations set out in paragraph 3 affect or limit the scope of the publication requirement in

6 Ibid.
7 Panel Reports, EC – IT Products, paras 7.1086 and 7.1087.
8 Panel Report, Dominican Republic - Import and Sale of Cigarettes, para. 7.414.
9 Panel Report, Thailand - Cigarettes (Philippines), paragraph 7.789.
10 Korea’s First Written Submission, para. 376.
11 Korea’s First Written Submission, para. 377.

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paragraph 1. Rather, paragraph 3 complements paragraph 1 in that it stipulates easy access,
through one enquiry point, to relevant information on SPS measures. This includes, but is not
limited to, information about the measure itself. Paragraph 3 has a much wider scope, in that it
obliges Members to provide documents on proposed SPS measures, control and inspection
procedures, risk assessment procedures etc.
14. Thus, the level of detail demanded by Japan is not in itself decisive for the content of the
publication requirement. What must be publish ed is the SPS regulation itself, irrespective of the
level of detail in the regulation.
IV. THE INTERPRETATION OF ARTICLE 7 AND PARAGRAPH 3 OF ANNEX B
a) The obligation to provide answers and documents in paragraph 3 of Annex B
15. Annex B of the SPS Agreement is entitled "Transparency of Sanitary and Phytosanitary
Regulations" and concerns in its entirety different forms of transparency provisions. This reflects
the importance of clarity, predictability and information on national r egulations for the trade in
food products.
16. Paragraph 3 requires Members to establish enquiry points which are responsible for "the
provision of answers to all reasonable questions from interested Members " and "for the provision
of relevant documents". The obligation to have an enquiry point is not disputed in this case, rather
the disagreement between Korea and Japan concerns the precise content of the obligation in
paragraph 3.
17. To this, Norway would argue that an obligation on Members to answer r easonable
questions and to provide relevant documents follow from the wording of paragraph 3. The answers
and the documents may not necessarily be prepared by the enquiry point itself, for instance other
governmental entities may assist the enquiry point. However, the basic idea with the enquiry point
is that interested Members shall have one point of contact in another Member where it will be able
to obtain answers to its questions.
18. Read in the context of the wording of Article 7 of the SPS Agreement, which states that
"Members shall […] provide information […] in accordance with […] Annex B ", it is further
underlined that the Member that receives a reasonable question though its enquiry point, is
obligated to answer the question. Likewise, if a Member receives a request for relevant documents
through its enquiry point, it is obligated to provide them.
19. This interpretation finds support not only in an ordinary reading of the text and its context,
but also in the revised Recommended Procedures for Imp lementing the Transparency Obligations
of the SPS Agreement (Article 7), adopted by the SPS Committee. 12 In paragraph 1, in the final
sentence, it is stated that "[t]ransparency under the SPS Agreement also includes answering
reasonable questions ". In para graph 52 of the Recommended Procedures, under the heading
"Guidelines for National Enquiry Points ", it is stated that the enquiry point "is an effective avenue
for obtaining information regarding SPS systems and measures from other Members".
20. Moreover, an interpretation of paragraph 3 under which a Member was not obliged to
provide answers, but merely to have an enquiry point with no obligations to follow up on requests
received, would not be in line with the purpose of the provision, namely to increase transparency
to facilitate international trade. If the provision were to be interpreted as Korea suggests, 13 it
would be rendered a mere formalistic provision – to establish an enquiry point – but with no real
content. In Norway's view, such a reading of the provision would defeat its very purpose.
b) The obligation to provide "relevant documents" in paragraph 3 of Annex B
21. What constitutes "relevant documents " must be assessed on a case by case basis.
However, the interpretation of which type of documents that are relevant is informed by the
context in which this term is used. In this respect, Norway refers in particular to Article 7 of the

12 G/SPS/7/rev.3.
13 Korea's First Written Submission, paras. 392 and 393.

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SPS Agreement, which imposes an obligation to provide information on SPS measures in
accordance with Annex B. Moreover, paragraph 1 of Annex B, contains an obligation to publish SPS
regulations, which is to be understood as SPS measures.14
22. In light of the obligation to p ublish and provide information on SPS measures, such
measures are indeed "relevant documents " in the context of paragraph 3 of Annex B. The
obligation to publish the measure cannot be interpreted as excluding the measure itself from the
obligation of the SPS enquiry point to provide relevant documents.
23. Accordingly, Norway does not share Korea 's assertion that "there is no basis for Japan to
complain that it was not provided with 'copies of the measures at issue’".15 Rather, the provision of
copies of the measure itself seems to be at the very heart of what are "relevant documents" in the
context of paragraph 3 of Annex B.

14 Cf. footnote 5 to Annex B(1).
15 Korea’s First Written Submission, para. 395.

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ANNEX C-6
EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE UNITED STATES
EXECUTIVE SUMMARY OF US THIRD PARTY ORAL STATEMENT
I. INTRODUCTION
1. The United States will first address the two transparency obligations set forth in Article 7
and Annex B; second, we address interpretive issues related to Japan 's claims arising under
Article 2.3 and Article 5.6.
II. JAPAN'S TRANSPARENCY CLAIMS UNDER ARTICLE 7 AND ANNEX B
2. Neither Article 7 nor Paragraph 1 of Annex B prescribes the form in whi ch a measure must
be published. Therefore, the United States considers that publication through a press release
would not necessarily raise a concern under the SPS Agreement. More important to compliance
with a Member's obligation is the manner and content of any publication. Paragraph 1 of Annex B
requires publication of the SPS measure itself, which includes any laws , decrees, or ordi nances
that are applicable generally. We do not understand Korea to take the position that its import bans
and other requirements are unwritten measures.
3. Given the requirements of Paragraph 1, Korea 's publication of press releases about the
measures would appear to fall short of its publication obligation. While publication of the press
releases may have made Japan and other Members aware of the existence of the SPS measures,
that publication did not contain the SPS measures themselves. And by includi ng bullet summaries
of the details of the measures but not the measures themselves, the press releases did not enable
Members to become acquainted with each measure because any summary necessarily paraphrases
the language of the measure itself.
4. Paragraph 3 of Annex B provides that each Member shall ensure that one enquiry point
"exists, which is responsible for the provision of answers to all reasonable questions ", and for
providing relevant documents. On its face, Paragraph 3 creates a procedural obl igation to ensure
that an enquiry point "exists" and that this enquiry point "is responsible for " providing certain
information. By its terms, Paragraph 3 does not itself impose a substantive obligation on a
Member to provide information or to explain the reasons behind its measures.
5. Members' substantive obligations with respect to transparency and the provision of certain
information regarding SPS measures are created by other provisions of the SPS Agreement. For
example, Article 5.8 requires a Member to provide an explanation of the reasons for an SPS
measure if requested; Article 5.8 does not, however, require that the information be published or
provided by the enquiry point described in Paragraph 3.
6. Rather, Paragraph 3 requires that a mechanis m exist through which Members may submit
questions or request documents, among other things; it does not impose additional substantive
obligations on the enquiry point itself. Indeed, one can imagine that the enquiry point may be the
office that receives an enquiry, but would then communicate the enquiry to the relevant
government office to which it relates. Similarly, a concerned Member, instead of making enquiries
to the enquiry point, may bring its concerns directly to the government office to which tha t
concern relates.
III. ARTICLE 2.3
7. The United States considers that the factual assessment at issue under Article 2.3 should be
based on all relevant factors to the conditions that may affect the risk presented by a product to
human, animal, or plant life or health within the territory, including, but not limited to, the
conditions occurring in a Member 's territory and any relevant conditions relating to the product at
issue.

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8. The panel in India – Agricultural Products deemed relevant the presence of a disease within
a territory, and the concomitant risk associated with that disease. It is appropriate for the Panel to
consider differences that may exist between and among WTO Members from which the products
are imported, including with regard to circumstances in which the products do not pose a risk even
though they originate in a country reporting a unique condition that, alone, could result in a higher
risk. Here, for example, the radionuclide release resulting from the accident in Japan is a rel evant
factor, just as the risk associated with the presence of radionuclides for particular products –
regardless of their location – is relevant. These and other factors should be part of the Panel 's
assessment of whether Japan has shown that similar cond itions prevail with respect to other
Members.
IV. ARTICLE 5.6
9. It is not clear from the submissions whether Korea 's measure is based on scientific evidence
demonstrating that, as a result of the accident, radionuclides other than cesium are present in the
Japanese environment in excess of acceptable levels and could be transmitted via traded products.
It is further not clear whether radionuclides other than cesium could be present in the subject
products even where safe amounts of cesium are detected. The United States notes that while the
existence or sufficiency of any such scientific evidence could be addressed in the context of a legal
claim pursuant to Articles 2.2 or 5.1 of the SPS Agreement, these articles appear to be outside th e
scope of this proceeding.
10. The precise level of protection Korea intends to achieve through these measures is unclear
from its submission. In cases where a Member does not determine its appropriate level of
protection, or does so with insufficient precision, a panel may identify the level of protection on the
basis of the level of protection reflected in the SPS measure actually applied. In this respect, the
level of cesium in products Korea deems safe for import from Members other than Japan would be
a relevant consideration.
EXECUTIVE SUMMARY OF RESPONSES OF THE UNI TED STATES OF AMERIC A TO THE
PANEL'S QUESTIONS FOR THE THIRD PARTIES
11. Annex B, Paragraph 1, sets forth one publication obligation for all SPS "regulations." To
publish an SPS regulat ion is to print the text that constitutes the measure itself. The "measures"
are typically written, and publication of such a measure would therefore mean printing the text of
the measure.
12. Content, not form, is the focus of compliance with the publication obligation. In some cases,
for Members to become acquainted with the SPS measure at issue, additional information may also
need to be published to meet the obligation. For example, when a law incorporates by reference
another law, ordinance, or decree, the referenced measure also may need to be published.
13. "Acquainted" is synonymous with familiar and conversant. To become acquainted with an
SPS regulation, Members must be provided with enough information not only to be aware of the
measure, but t o be familiar with the content of the measure. As discussed above, for a written
measure – which we understand Korea's measure to be – this obligation would include publication
of the measure itself.
14. On its face, Annex B, Paragraph 3, creates an oblig ation to ensure that an enquiry point
"exists" and that this enquiry point "is responsible for " providing certain information including
responses to reasonable questions. By its terms, however, Paragraph 3 does not obligate a
Member to reply to each such q uestion through the enquiry point or stipulate the nature or
substance of any response. Therefore, Annex B, Paragraph 3, alone, does not provide a
substantive standard against which an enquiry point's response to a request can be measured.
15. Paragraph 3 states that the enquiry point is to be "responsible" for providing answers to all
"reasonable" requests, but does not set out the nature of the response. Paragraph 3 ensures that
no Member will be precluded from making an enquiry about an SPS measure, inc luding, for
example, because the Member does not know how best to direct its enquiry.

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16. On the other hand, Article 5.8 is an example of Members ' substantive obligations with
respect to transparency and the provision of certain types of infor mation regarding SPS measures.
Unlike Annex B, Paragraph 3, Article 5.8 does not designate a process, e.g., point of contact. In
other words, Article 5.8 obligates a Member maintaining a measure to provide, upon request, an
explanation of the reasons for an SPS measure that constrains exports. The United States invoked
Article 5.8 as an example of a substantive obligation to provide information of a particular nature,
and to distinguish the substantive language of Article 5.8 from the procedural language of Anne x
B, Paragraph 3, to establish a process and entity to receive enquiries.
17. Regardless of the channel by which a request pursuant to Article 5.8 is made, Article 5.8
(and not Annex B, Paragraph 3) dictates the content of the response, i.e., an explanation of the
reasons for the measure.
18. Therefore, the relationship between Annex B, Paragraph 3, and Article 5.8 is that a Member
could appropriately exercise its rights under Article 5.8 to seek an explanation of the reasons for
an SPS measure by way o f the enquiry point required by Annex B, Paragraph 3; alternatively, a
Member could exercise the same rights without the enquiry point.
19. The United States does not fully agree with the EU 's positon that the provisional nature of a
measure is relevant under the analyses in Articles 2.3 and 5.6, as a Member will adopt a measure
provisionally, within the meaning of Article 5.7, only when the evidence is insufficient to conduct a
risk assessment pursuant to Article 5.1. This does not mean the obligation unde r Article 5.1 is
"less stringent" but that a different obligation applies in that specific situation.
20. The United States agrees with New Zealand that, in this case, it is not necessary for the
Panel to determine whether a "similar accommodation " is re quired in relation to clai ms under
Articles 2.3 and 5.6. Korea did not invoke Article 5.7. Nor has either party submitted evidence or
argumentation on the provisional nature of the measure such that the Pa nel could make such a
finding. Without more, whether the provisional nature of a measure could be relevant to a panel 's
analysis under Articles 2.3 and 5.6 would not appear to be a question raised by this dispute, and
therefore the Panel need not address it to make findings consistent with DSU Article 7.1.

- D-1 -

ANNEX D
CERTAIN PROCEDURAL RULINGS MADE BY THE PANEL
Contents Page
Annex D-1 Decision of Panel on request for enhanced third-party rights D-2
Annex D-2 Decision of Panel on selection of experts D-5
Annex D-3 Decision on redacting submissions to be sent to experts D-8
Annex D-4 Decision of Panel on request to comment on exhibits D-10

- D-2 -

ANNEX D-1
Decision of Panel on request for enhanced third-party rights
KOREA — IMPORT BANS, AND TESTING AND CERTIFICATION REQUIREMENTS FOR
RADIONUCLIDES
(WT/DS495)
Dear representatives of Canada, Norway, and Separate Customs Territory of Taiwan, Penghu,
Kinmen and Matsu (Chinese Taipei),

The Panel ref ers to the joint communication dated 1 March 2016 from Canada, Norway and
Chinese Taipei (the requesting third parties), asking the Panel to exercise its discretion under
Article 12.1 of the DSU to grant third parties enhanced rights in the Working Procedures "in order
to ensure that the interests of third parties can be fully taken into account." Specifically, the
requesting third parties ask the Panel to grant them rights to: (i) "receive an electronic copy of all
submissions and statements of the parties , including responses to Panel questions, up to the
issuance of the interim report "; and (ii) "be present for the entirety of all substantive meetings of
the Panel with the parties".

On 11 March 2016, following the Panel's invitation to comment on the re quest, Korea (the
respondent) expressed its opposition to the granting of enhanced rights to third parties in these
proceedings. On the same date, Japan (the complainant) indicated that it did not oppose the
request so long as certain procedural concerns c ould be accommodated and that confidential
information would be protected. The Panel also received comments from a number of other third
parties supporting the request: the European Union, Guatemala, India, and New Zealand. The
United States submitted that any deviation from the DSU should only be granted with the parties
consent.

We understand that the additional rights requested are limited to allowing the third parties to be
present during all substantive meetings without taking the floor and to receiv ing all written
communications of the parties up to the issuance of the interim report without the right to present
views on those communications.

The Appellate Body has clarified that panels "enjoy a discretion to grant additional participatory
rights to third parties in particular cases, as long as such 'enhanced' rights are consistent with the
provisions of the DSU and the principles of due process."

1 Prior panels have used this discretion on a number of occasions, such as when the measures at
issue resulted in significant economic benefits for certain third parties ,2 where third parties
maintain measures similar to the measures at issue 3, or where the third party was involved as a
party in a parallel panel proceeding.4 None of these factors is present in this dispute.

In making their joint request, Canada, Norway, and Chinese Taipei have identified as the bases for
receiving enhanced third party rights their systemic interests in the case as it will be "breaking
new legal ground" regarding the transparency obligations under the SPS Agreement, as well as the
need to be fully apprised of arguments and evidence so as not to compromise their ability to make
submissions in the event of an appeal.

With respect to the argument that the Panel is considering issues of first impression with respect
to several obligations in the SPS Agreement, we observe that many panels are faced with the task
of interpreting provisions that have not yet been subject to dispute settlement. Members would

1 Appellate Body Report, US – FSC (Article 21.5 – EC), para. 243. See also Appellate Body Report, EC –
Hormones (Canada), para. 154; Appellate Body Report, US – 1916 Act, para. 150; Panel Report, EC – Export
Subsidies on Sugar, para. 2.3.
2 Panel Reports, EC – Bananas III (Guatemala and Honduras), para. 7.8; Panel Report, EC – Tariff
Preferences, Annex A, para. 7(a). See, also, Panel Reports, EC – Export Subsidies on Sugar, para. 2.5.
3 Panel Report, EC – Tariff Preferences, Annex A, para. 7(b).
4 Panel Report, EC — Hormones (Canada), para. 8.17.

- D-3 -

have been aware, when drafting the DSU, that panels would be called upon regularly to consider
important systemic issues of first impression. They drafted the basis for third -party access
contained in Article 10 of the DS U with this in mind. In our view, therefore, the fact that a panel
will consider issues of first impression is not sufficient to justify according enhanced third -party
rights beyond those contained in Article 10 of the DSU.

Nor are we persuaded that the a dditional access requested is required to ensure that the ability of
the requesting third parties to make written submissions to, and be given an opportunity to be
heard by, the Appellate Body in the event of an appeal would not be compromised. The drafter s of
the DSU devised Article 10 in full knowledge of and bearing in mind that third parties would have
an opportunity to make submissions and be heard by the Appellate Body and considered that the
access permitted under Article 10 would be sufficient to en able them to participate effectively in
appellate proceedings. We also note that, in addition to access to the full written submissions up to
the first substantive meeting and the right to be heard, any Member, including third parties, may
request non -confidential summaries of the parties' arguments under Article 18.2 of the DSU.
Moreover, third parties will be able to read the Panel Report, which will contain the executive
summaries of the parties' arguments as well as the Panel's detailed reasoning for it s findings
pursuant to Article 12.7 of the DSU.

Finally, in reaching our decision, we are mindful that the distinction drawn in the DSU between
parties and third parties should not be blurred.5

For the reasons stated above, we decline Canada, Norway, and Chinese Taipei's joint request for
enhanced third party rights in these proceedings.

 Yours sincerely,

 William Ehlers
 Chairperson of the Panel

c.c. H.E. Mr Junichi IHARA
 Permanent Mission of Japan

 H.E. Mr CHOI Kyong-lim
 Permanent Mission of the Republic of Korea

 H.E Mr Marcos GALVÃO
 Permanent Mission of Brazil

H.E. Mr YU Jianhua
Permanent Mission of China

H.E. Mr Marc VANHEUKELEN
Permanent Mission of the European Union

H.E. Mr Eduardo Ernesto SPERISEN-YURT
Permanent Mission of Guatemala

H.E. Ms Anjali PRASAD
Permanent Mission of India

H.E. Mr. Vangelis VITALIS
Permanent Mission of New Zealand

H.E. Mr Gennady OVECHKO

5 Panel Report, EC- Bananas III (Guatemala and Honduras), para. 7.9. See also, Panel Report, EC –
Tariff Preferences, Annex A, para. 7(d); Panel Report, EC –Export Subsidies on Sugar (Australia, Brazil and
Thailand), para. 2.7. Panel Report, EC and certain member States – Large Civil Aircraft, para. 7.166.

- D-4 -

Permanent Mission of the Russian Federation

H.E. Mr Michael PUNKE
Permanent Mission of the United States of America

- D-5 -

ANNEX D-2
Decision of Panel on selection of experts*
KOREA — IMPORT BANS, AND TESTING AND CERTIFICATION REQUIREMENTS FOR
RADIONUCLIDES
(WT/DS495)
Dear Sirs [representatives of Korea and Japan],

The Panel recalls that pursuant to Article 13 of the DSU and Article 11.2 of the SPS Agreement, we
have decided to consult experts in this dispute in the following areas: (i) release of nuclear
materials int o the environment (by accident or other means); (ii) radionuclide contamination in
foods including testing methods and any differences in contamination based on the source of
contamination (air, groundwater, or naturally occurring); and (iii) radionuclides in marine
environments including issues of radionuclide deposits in the ocean and levels of radioactivity in
marine organisms.

The Panel received names of experts from UNSCEAR, ICRP, IAEA, WHO, and FAO/Codex. The
Panel is grateful to these organizations for their assistance. The Panel contacted each of the 25
named experts and inquired as to their availability, conflict of interest and areas of expertise. The
parties were provided with the information of the 15 available experts and given the opportuniti y
to comment.

The Panel has considered the background and qualifications of each available expert as well as the
importance of having more than one expert to respond to questions in each area.1

In addition, the Panel carefully considered the comments su bmitted by the parties. The Panel
notes that Japan accepts all of the proposed experts, although it has expressed preferences for
some over others. With respect to Korea's comments on the experts, the Panel notes that Korea
accepts 5 of the proposed experts and objects to the rest.

Korea objects to one expert who had been preliminarily consulted by Korea in this matter. Korea
objected to two experts because of their previous affiliations with the Japanese government in this
area. The Panel found these objections to be well founded and will not select these experts.

Korea objects to four experts because they appeared to have participated in the drafting of a 2013
report by UNSCEAR on the Fukushima Dai-ichi accident. Korea argues that because in its view it s
measures were adopted provisionally because there was insufficient scientific evidence to conduct
a risk assessment within the meaning of Article 5.7 of the SPS Agreement, the Panel could not rely
on any expert that had participated in a risk assessment.

First, the Panel notes that the UNSCEAR report was commissioned by an organ of the United
Nations who of course sought the best experts in the field. The report dealt with the immediate
effects of the disaster on the people living in and around the Fukushima Dai -ichi nuclear power
plant not tho se who consume some Japanese products as part of their diet. There are some
elements in the report that address internal exposure of people living in and around the Fukushima
Dai-ichi nuclear power plant through consumption of contaminated food, but the re port is not an
assessment of the risks arising from human consumption of radionuclides in food products.

Furthermore, the Panel does not agree with Korea that anyone who participated in a risk
assessment would be per se inappropriate to consult in a situ ation where Article 5.7 is raised by
the respondent. The Panel does not believe that this is the principle established by the
Appellate Body in US/Canada – Continued Suspension. Nevertheless, the Panel notes that it was
able to identify enough suitable exp erts without selecting the four experts who participated in the
preparation of the UNSCEAR report.

* The Panel has made certain redactions indicated as [***] to protect the privacy of the experts.
1 Therefore, the Panel, at this time, did not select experts who had expertise in only one identified area.

- D-6 -

Based on its evaluation, the Panel selects the following experts:

Expert Recommended
by
release of nuclear
materials into the
environment (by
accident or other
means)
radionuclide
contamination
in foods
radionuclides in
marine
environments
Lynn
ANSPAUGH
UNSCEAR, WHO Yes Yes Yes
Rolf MICHEL UNSCEAR Yes Yes
Lavrans
SKUTERUD
ICRP Yes Yes
Patsy
THOMPSON
UNSCEAR Yes Yes Yes
Joanne BROWN WHO Yes Yes

The Panel notes that it has selected two experts, [***] and [***] who Korea objects to. In making
its selection the Panel considered first, that Korea objects to every expert proposed with expertise
in radionuclides in marine environments. Therefore, there was no way for the Panel to have
experts in this field without selecting one that Korea objects to.

The Panel examined Korea's objections to all the available experts with expertise in radionuclides
in marine environments. The Panel finds that Korea's ob jections to [***] and [***] are not
sufficient to preclude them from serving as experts assisting the Panel in evaluating the evidence
presented.

With respect to [***], Korea mentions (i) [***] involvement in the preparation of the UNSCEAR
report on Fukus hima Dai-ichi; (ii) as well as some statements [***] made with respect to radon
exposure from natural gas in fracking sites; and (iii) statements purportedly made by [***] with
respect to the wildlife at Chernobyl.

With respect to [***] participation in the UNSCEAR report, the Panel recalls its reasoning above
that this is not per se a reason to exclude an expert. Moreover, the Panel notes that [***] was
listed as a "critical reviewer" of the report, which indicates to us that the report does not reflect
[***] own work. With respect to [***] statements on radon, the Panel notes that radon is not a
man-made radionuclide subject to Korea's measures and that [***] statements were made in the
context of an environmental release and not about the presence of r adionuclides in food. Finally,
there is an allegation, without citation, that [***] made a statement about wildlife living near
Chernobyl. The Panel cannot objectively evaluate this statement without more information.
Nevetherless, even if accurate, the al leged statement does not relate to humans consuming food
or other products from the Chernobyl site. Therefore, the Panel finds that Korea's objection is
insufficient to demonstrate any bias or partiality on [***] part.

Korea objects to [***] because Korea believes that [***] has written articles in which [***] has
provided [***] own assessment of the risk posed by the FDNPP. However, Korea does not provide
citations to such articles. Instead, Korea provides an excerpt from an article in a [***] newspaper
written by [***] which relates to the effects of post -Fukushima radiation on fish caught off the
West Coast of North America. [***] comment relates to the diluation of the radioactive waste by
the time it crosses the Pacific, thus posing limited health risk to [***] consuming [***] products.
Korea's letter then turns to a different quotation from a different news article without making an
overt reference to the change. In that article [***] was explaining, in [***] [***], a [***]
government initiative to pro vide iodine thyroid blocking pills to those within a 10km radius of a
nuclear power plant for immediate use in the event of an accident. [***] statement about people
not needing to fear living near a nuclear power plant has nothing to do with food consumpt ion
from an area contaminated after a nuclear accident. Finally, Korea cites a press release from
Families Against Radiation Exposure, which appears to be a [***] NGO in [***]. The statements
attributed to [***] are from 2009, two years before the Fukushim a disaster, and do not relate to
the consumption of food that has been contaminated after a nuclear release, but rather to children
living near nuclear power plants. The Panel also notes that in the latter two instances, [***] was
acting in [***] [***] as an official of the [***]. Therefore, the Panel finds that Korea's assertion
that [***] has provided an assessment of the risks posed by the FDNPP is unsubstantiated.

- D-7 -

Korea also requests that the Panel seek additional experts in the areas of severe nuclea r accidents
and the risks of radionuclides to human health. Neither party in this dispute has claimed that man -
made radionuclides are not risky to human health. Neither party has disputed the serious health
risks from stochastic effects of exposure to radi ation (such as thyroid cancer, leukemia, and other
cancers). Therefore, the Panel does not consider that it needs assistance in assessing any evidence
in this area.

With respect to severe nuclear accidents, the Panel recalls that one of the areas of expertise it has
sought assistance in is " release of nuclear materials into the environment ( by accident or other
means)". The Panel believes that this encompasses severe nuclear accidents. The Panel recalls
that it has sought the names of experts from the international organizations dealing with the
effects of severe nuclear accidents – the WHO, Codex, the IAEA, ICRP and UNSCEAR. We are
therefore confident that we have received the names of those who are the most qualified to assist
the Panel in evaluating the evidence presented to it with respect to the accident at Fukushima Dai-
ichi.

The Panel is committed to its obligation, as explained by the Appellate Body, to ensure due
process in these proceedings by selecting experts that are independent and impart ial.2 For the
reasons stated above, the Panel is satisfied that the five selected experts all have the relevant
expertise required and are capable of rendering independent and impartial advice to the Panel on
the relevant issues in the dispute. The Panel recogn izes and will bear in mind the fact that its
obligation to protect the parties' due process rights applies not only to the process for selecting
experts, but also to the Panel's consultations with the experts, and continues throughout the
proceedings.3

In light of the importance of the present decision, the Panel shall annex this communication to its
Report.

 Yours faithfully,

 William Ehlers
Chairman of the Panel

2 Appellate Body Report, US/Canada – Continued Suspension, para. 436.
3 Ibid.

- D-8 -

ANNEX D-3
Decision on redacting submissions to be sent to experts
KOREA — IMPORT BANS, AND TESTING AND CERTIFICATION REQUIREMENTS FOR
RADIONUCLIDES
(WT/DS495)
Dear Sirs [representatives of Korea and Japan],

The Panel wishes to thank the parties for their comments of 14 Sep tember 2016 on the redacted
versions of the submissions to be sent to the experts.

Paragraph 36 of the Panel's Working Procedures for Consultations with Experts provides that "[t]he
Panel may provide the experts, on a confidential basis, with relevant p arts of the parties'
submissions, including exhibits, as well as with any additional information deemed necessary. " The
Panel notes that the parties have differing view on whether the entirety of the parties' submissions
should be transmitted to the expert s in light of the reference to relevant parts in the Working
Procedures. Although, sending un -redacted versions would have been less time consuming for
both the Panel and the parties, the Panel has decided to adopt a conservative approach towards
the interpretation of the Working Procedures and redact portions of the submissions. The purpose
of the redaction is to provide the experts with a clear picture of the factual issues they need to
consider without the distraction of the legal argumentation.

In particular, the Panel applied the following criteria for redaction. First, argumentation that was
solely legal in nature and referring to interpretation of WTO obligations was redacted. Second,
argumentation and facts that related to claims that the Panel is not seeking advice from the
experts on (namely Article 7, Article 8 and Annexes B and C) were redacted. Finally, the Panel
sought to redact any potentially inflammatory characterisations of the parties' arguments or
actions. The Panel has reviewed the red actions in light of these criteria and the parties' comments
and made changes where relevant.

In particular, the Panel has adjusted the redaction on Article 8 and Annex C claims. Although there
was reference to some of the relevant scientific issues in th ese sections, they are repetitive of
those under Articles 2.3 and 5.6. Therefore, in the interest of consistency across submissions the
entirety of the sections on Article 8 of both parties will be redacted. The Panel maintains its
redaction of the legal a rguments on what is the relevant condition for comparison under Article
2.3. These issues are not relevant for the experts' analysis of the factual questions being posed to
them. The Panel will not redact argumentation about the methodologies used by the e xperts of
either party or their suitability for supporting the conclusions reached. These are precisely the
issues where the Panel needs the advice of the experts. The revised redactions can be put on the
USB key provided earlier. Please contact the Panel Secretary to arrange a time for this.

We note Japan's concern that the experts may require some additional context to assist them in
answering the Panel's questions. In this regard, the Panel recalls that paragraph 36 of the Panel's
Working Procedures fo r Consultations with Experts states that "[t] he experts shall have the
opportunity to request, through the Panel, additional factual information or clarifications from the
parties, if it shall aid them in answering the Panel’s questions". . The Panel also recalls that the
parties will be able to provide their own advance questions to the experts to assist them in
preparation for the meeting as well as pose oral questions to the experts at the meeting. The Panel
trusts that these mechanisms will adequately address Japan's concern.

In its communication of 14 September 2016, Japan notes that planning for attendance at panel
meetings can be burdensome and that the revised timetable should be based on a realistic time -
frame for the experts to prepare their resp onses to the Panel's questions. The Panel understands
Japan's concerns and indeed this was one of the main considerations for the Panel to propose
moving the date of the second meeting. In its letter to the parties of 7 September 2016, the Panel
noted that there was a "large volume of complex material on the record that the experts will have
to review in order to respond" [to the Panel's questions]. The Panel believes the revised draft

- D-9 -

timetable responds to the need to provide the experts with sufficient ti me to answer the Panel's
questions. Moreover, in light of Japan's comments on the revised timetable the second meeting is
likely to begin in January or early February 2017 and there is scope within the timetable that
would allow the Panel to grant the expe rts an extension if one is required without necessitating
moving the meeting date.

In its letter of 14 September 2016, Korea notes that the Table of Documents sent to the parties
included Annex A and Annex B but that that these two annexes had not been in cluded on the USB
key. Korea asks if it could review any redactions to these annexes if they are to be sent to the
experts. In an email of 12 September 2016, responding to a similar query from Japan, the
Secretariat informed the parties that these two ann exes are to be sent to the experts but as they
had not been redacted they had not been included in the documents on the USB key. Korea also
requests that Korea's opening statement at the first substantive meeting be added to the Table of
Documents. This has been done.

Yours faithfully

 William Ehlers
 (Chairman of the Panel)

- D-10 -

ANNEX D-4
Decision of Panel on request to comment on exhibits
KOREA — IMPORT BANS, AND TESTING AND CERTIFICATION REQUIREMENTS FOR
RADIONUCLIDES
(WT/DS495)
Thank you for your email. After reviewing Japan's comments on the relevant exhibits, the Panel
notes that Japan does not contest the exhibits as such, but rather takes issue with the fact that
Korea did not provide a translation o f all relevant parts of Exhibits KOR -299(a) and KOR -304(a).
As Japan's comments were limited to pointing out the full text of the exhibits, the Panel does not
see the need for Korea to comment further.

The Panel recalls that paragraph 10 of its Working Procedures requires that "translations should
include all germane portions of documents that the party seeks to rely upon. Germane portions
include not only specific provisions of measures, but also relevant context." In light of Japan's
comments and takin g account of paragraph 10 of the Panel's Working Procedures, the Panel
requests that Korea provide full translations of any slides relating to Japan's "measures to prevent
fish movement inside and outside the harbour" including, but not limited to, p. 14. and the entirety
of KOR-304(a).

Such translations should be provided to the Panel by 5 p.m. Friday, 28 April 2017.