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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 Articles XI and XIII of the GATT 1994, 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.
Panel and Appellate Body proceedings
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 panel report 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.
- The Appellate Body broadened the panel’s finding that Australia had acted inconsistently with Articles 5.5 and 2.3 of the SPS Agreement.
- The Appellate Body 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.
Reasonable period of time
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 complainant 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 Award of the Arbitrator was circulated to Members on 23 February 1999. The Arbitrator determined that the reasonable period of time for implementation was 8 months i.e. it expired on 6 July 1999.
On 28 July 1999, Canada requested, 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. Canada had previously made a request to the DSB, pursuant to Article 22.2 of the DSU, to authorize the suspension of concessions or other obligations (see below). 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. On 7 September 1999, the compliance panel was composed.
On 18 February 2000, the report of the compliance panel was circulated to Members. The compliance 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.
Proceedings under Article 22 of the DSU (remedies)
Prior to the initiation of the compliance proceedings (see above), on 15 July 1999 Canada requested the DSB's authorization, pursuant to Article 22.2 of the DSU, to suspend concessions to Australia for its non-compliance with the recommendations of the DSB in this matter. On 27 July 1999, Australia objected to Canada's proposed level of suspension of concessions and requested, pursuant to Article 22.6 of the DSU, that the matter be referred to arbitration. At its meeting on 28 July 1999, the DSB referred the matter to arbitration. On 7 September 1999, the Arbitrator was composed. As was agreed at the DSB meeting on 28 July 1999, the arbitration proceedings were suspended until after the compliance proceedings.
Implementation of adopted reports
At the DSB meeting on 18 May 2000, Canada announced that it had concluded an agreement with Australia to resolve this long-standing dispute. The text of the agreement was in plain language and in the form of an exchange of two letters between the parties. Canada would monitor closely Australia's commitment to implement the agreement by 1 June 2000. It also hoped that shortly thereafter the parties would be in a position to notify the DSB of a mutually agreed solution.
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