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DISPUTE SETTLEMENT: DISPUTE DS18

Australia — Measures Affecting Importation of Salmon

This summary has been prepared by the Secretariat under its own responsibility. The summary is for general information only and is not intended to affect the rights and obligations of Members.

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See also: One-page summary of key findings of this dispute

Appellate Body and Panel Reports Adopted

Complaint by Canada.

On 5 October 1995, Canada requested consultations with Australia in respect of Australia’s prohibition of imports of salmon from Canada based on a quarantine regulation. Canada alleged that the prohibition is inconsistent with GATT Articles XI and XIII, and also inconsistent with the SPS Agreement.

On 7 march 1997, Canada requested the establishment of a panel. At its meeting on 20 March 1997, the DSB deferred the establishment of a panel. Further to a second request to establish a panel by Canada, the DSB established a panel at its meeting on 10 April 1997. The EC, India, Norway and the US reserved their third-party rights. On 28 May 1997, the Panel was composed. The report of the Panel was circulated to Members on 12 June 1998. The Panel found that Australia’s measures complained against were inconsistent with Articles 2.2, 2.3, 5.1, 5.5, and 5.6 of the SPS Agreement, and also nullified or impaired benefits accruing to Canada under the SPS Agreement.

On 22 July 1998, Australia notified its intention to appeal certain issues of law and legal interpretations developed by the Panel. The report of the Appellate Body was circulated to Members on 20 October 1998. The Appellate Body reversed the Panel’s reasoning with respect to Articles 5.1 and 2.2 of the SPS Agreement but nevertheless found that:

• Australia had acted inconsistently with Articles 5.1 and 2.2 of the SPS Agreement;
   
• broadened the Panel’s finding that Australia had acted inconsistently with Articles 5.5 and 2.3 of the SPS Agreement;
   
• reversed the Panel’s finding that Australia had acted inconsistently with Article 5.6 of the SPS Agreement but was unable to come to a conclusion whether or not Australia’s measure was consistent with Article 5.6 due to insufficient factual findings by the Panel.

The DSB adopted the Appellate Body Report and the Panel Report, as modified by the Appellate Body Report, on 6 November 1998.

Appellate Body and Panel Compliance Reports (Article 21.5) Adopted

Canada made a request, pursuant to DSU Article 21.5, for determination by the original panel of whether the measures taken by Australia in implementing the recommendations of the DSB were WTO-consistent. At its meeting of 28 July 1999, the DSB agreed to Canada’s request and referred the matter for determination of the WTO-consistency of the implementing measures to the original panel. The EC, Norway and the US reserved their third-party rights. The DSB also referred the Canadian request for suspension of concessions to arbitration in view of Australia’s challenge of the level of nullification suffered by Canada. On 7 September 1999, the Compliance Panel and Arbitrator were composed.

On 18 February 2000, the report of the DSU Article 21.5 panel was circulated to Members. The panel found that:

• due to delays in the entry into force of several implementing measures which extended beyond the reasonable period of time within which Australia had to implement the DSB recommendations, no measures to comply existed in the sense of Article 21.5 of the DSU in respect of a number of covered products and during specific periods of time. As a result, during those periods, Australia failed to bring its measure into conformity with the SPS Agreement in the sense referred to in Article 22.6 of the DSU.
   
• Australia, by requiring that only salmon product that is “consumer-ready” as specifically defined can be imported into Australia and released from quarantine, was maintaining sanitary measures that were not “based on” a risk assessment, which was contrary to Articles 5.1 and 2.2 of the SPS Agreement. The panel also considered the same requirement to be in violation of Article 5.6 of the SPS Agreement.
   
• Finally, the panel found that Australia violated Articles 5.1 and 2.2 of the SPS Agreement as a result of a measure enacted by the Government of Tasmania that effectively prohibits the importation of certain Canadian salmon product into most parts of Tasmania without being based on a risk assessment and without sufficient scientific evidence.

At its meeting on 20 March 2000, the DSB adopted the report of the compliance panel.

Implementation Status of Adopted Reports

At the DSB meeting on 25 November 1998, Australia informed the DSB that it was committed to implementing the recommendations of the DSB and was looking forward to discussing with the complainants the question of implementation.

On 24 December 1998, Canada requested arbitration, pursuant to Article 21.3(c) of the DSU, to determine the reasonable period of time for implementation of the recommendations of the DSB. The Arbitrator decided that the reasonable period of time for implementation was 8 months i.e. it expired on 6 July 1999. The report of the Arbitrator was circulated to Members on 23 February 1999.

On 28 July 1999, Canada made a request to the DSB, pursuant to Article 22.2 of the DSU, for authorization to suspend concessions to Australia for its non-compliance with the recommendations of the DSB in this matter. Canada simultaneously made a request, pursuant to Article 21.5 of the DSU, for determination by the original panel of whether the measures taken by Australia in implementing the recommendations of the DSB were WTO-consistent.

Australia informed the DSB that in the event that the DSB approved Canada’s request under Article 22.2, it wished to request, pursuant to Article 22.6 of the DSU, for arbitration on the level of nullification suffered by Canada. The DSB agreed to Canada’s request and referred the matter for determination of the WTO-consistency of the implementing measures to the original panel. The EC, Norway and the US reserved their third-party rights. The DSB also referred the Canadian request for suspension of concessions to arbitration in view of Australia’s challenge of the level of nullification suffered by Canada. On 7 September 1999, the Compliance Panel and Arbitrator were composed.

For details of the Article 21.5 panel proceedings, see above.

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