AUSTRALIA – MEASURES AFFECTING THE IMPORTATION OF APPLES FROM NEW ZEALAND
Document: Understanding between New Zealand and Australia Regarding Procedures under Articles 21 and 22 of the DSU
Date: 19 September 2011
Document codes: WT/DS367/21
Complainant: New Zealand
Respondent: Australia
Third parties: Chile, EU, Japan, Pakistan, Taiwan, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. 2.2, 2.3, 5.1, 5.2, 5.5, 5.6, 8, Annex C  Sanitary and Phytosanitary Measures (SPS)

AUSTRALIA – MEASURES AFFECTING THE IMPORTATION OF APPLES
FROM NEW ZEALAND

Understanding between New Zealand and Australia
Regarding Procedures under Articles 21 and 22 of the DSU

 The following communication, dated 13 September 2011, from the delegation of
New Zealand and the delegation of Australia to th e Chairperson of the Dispute Settlement Body, is
circulated at the request of these delegations.

New Zealand and Australia wish to inform th e Dispute Settlement Body that they have
reached agreement on procedures under Articles 21 and 22 of the Dispute Settlement Understanding
in the aforementioned dispute.

We kindly request that you circulate this comm unication and the attached agreed procedures
to the Members of the DSB.

(WT/DS367)

Agreed Procedures under Articles 21 and 22 of the Dispute Settlement Understanding

On 17 December 2010, the Dispute Settlement Body (DSB) adopted its recommendations and
rulings in the
(WT/DS367) dispute. Pursuant to Article 21.3(b) of the Understanding on Rules and Procedures
Governing the Settlement of Disputes (DSU), New Zealand and Australia agreed that the period of
time to implement the DSB recommendations and rulings would be eight months, expiring on
17 August 2011 (). During the implemen tation period, Australia undertook a review of
its import risk analysis for New Zealand apples, which resulted in new measures to replace those
measures previously found to be inconsistent with Australia's obligations under the SPS Agreement.
New Zealand and Australia (collectively "the Parties") have agreed on the following
procedures for the exclusive purposes of this dispute. They are designed to facilitate the resolution of
the dispute and reduce the scope for procedural di sputes and are without prejudice to either party's
views on the correct interpretation of the DSU:
1. Should New Zealand consider that the situation described in Article 21.5 of the DSU
exists, New Zealand shall request that Aust ralia enter into consultations with New
Zealand. The Parties agree to hold such consultations within 15 days from the date of
receipt of the request. After this 15-day period has elapsed, New Zealand may
request the establishment of a panel pursuant to Article 21.5 of the DSU at any time.
2. At the first DSB meeting at which New Zeal and's request for the establishment of an
Article 21.5 panel appears on the agenda, Australia shall accept the establishment of
that panel.
3. The Parties shall cooperate to enable the Article 21.5 panel to circulate its report
within 90 days of the panel's establishm ent, excluding such time during which the
panel's work may be suspended pursuant to Article 12.12 of the DSU.
4. Either Party to the dispute may request the DSB to adopt the report of the Article 21.5
panel at a DSB meeting held at least 20 days but within 60 days after the circulation
of the report to the Members, unless either Party appeals the report.
5. In the event of an appeal of the Article 21.5 panel report, the Parties shall cooperate
to enable the Appellate Body to circulate its report to the Members within 90 days
from the date of notification of the appeal to the DSB. Further, either Party may
request the DSB to adopt its recommendati ons and rulings at a DSB meeting held
within 30 days of the circulation of the Appellate Body report to the Members.
6. New Zealand may request authorization to suspend concessions or other obligations
pursuant to Article 22.2 of the DSU in the event that:
(a) the DSB rules as a result of a proceeding under Article 21.5 of the DSU that a
measure taken to comply does not exist or is inconsistent with a covered
agreement; or
(b) the Parties mutually agree that New Zealand may submit such a request.

Australia shall not assert that New Zealand is precluded from obtaining such DSB
authorization because its request was made outsi de the time period specified in the first
sentence of Article 22.6 of the DSU. This is without prejudice to Australia's right to have
the matter referred to arbitration in accordance with Article 22.6 of the DSU.
7. If New Zealand requests authorization to suspend concessions or other obligations
pursuant to Article 22.2 of the DSU, Aust ralia shall have the right to object under
Article 22.6 of the DSU to the level of su spension of concessions or other obligations
and/or claim that the principles and procedures set forth in Article 22.3 of the DSU
have not been followed. In the event of su ch objection, the matter will be referred to
arbitration pursuant to Article 22.6 of the DSU.
8. The Parties shall cooperate to enable the ar bitrator under Article 22.6 of the DSU to
circulate its decision within 60 days of the referral to arbitration.
9. If any of the original panelists is not available for either the Article 21.5 compliance
panel or the Article 22.6 arbitration (o r both), or any person serving in such
proceeding becomes unavailable to serve, th e Parties shall promptly consult on a
replacement, and either Party may request the Director-General of the WTO to
appoint, within ten days of being so requested, a replacement for the proceeding or
proceedings in which a replacement is require d. If an original panelist is unavailable
to serve in either of the proceedings, or a person serving in such proceeding becomes
unavailable to serve, the Parties shall further request that, in making this appointment,
the Director-General seek a person who will be available to act in both proceedings.
10. The Parties shall continue to cooperate in all matters related to these agreed
procedures and agree not to raise any procedural objection to any of the steps set out
herein. If, during the application of these procedures, the Parties consider that a
procedural aspect has not been properly addressed in these procedures, they shall
endeavor to find a solution within the shortest time possible that will not affect the
other aspects and steps agreed herein.
11. These agreed procedures in no way prejudice other rights of either Party to take any
action or procedural step to protect its rights and interests, including the activation of
any of the provisions of the DSU.

Signed in Geneva, 13 September 2011

For New Zealand

H.E. John Adank
Ambassador
Permanent Representative to the WTO
For Australia

H.E. Tim Yeend
Ambassador
Permanent Representative to the WTO