DISPUTE SETTLEMENT

DS: Korea — Import Bans, and Testing and Certification Requirements for Radionuclides

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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Current status

 

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Key facts

Short title:
Complainant:
Respondent:
Third Parties:
Agreements cited:
(as cited in request for consultations)
Request for Consultations received:
Panel Report circulated: 22 February 2018

  

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Latest document

  

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Summary of the dispute to date

The summary below was up-to-date at

Consultations

Complaint by Japan.

On 21 May 2015, Japan requested consultations with Korea regarding: (a) import bans on certain food products; (b) additional testing and certification requirements regarding the presence of certain radionuclides; and (c) a number of alleged omissions concerning transparency obligations under the SPS Agreement. Korea's measures were adopted subsequent to the accident at the Fukushima Daiichi nuclear power plant in March 2011.

Japan claims that the measures are inconsistent with:

  • Articles 2.2, 2.3, 4, 5.1, 5.2, 5.5, 5.6, 5.7, 5.8, 7, and 8, paragraphs 1 and 3 of Annex B, and paragraphs 1(a), 1(c), 1(e) and 1(g) of Annex C, of the SPS Agreement; and
     
  • Article XXIII:1 of the GATT 1994.

On 11 June 2015, Chinese Taipei requested to join the consultations.

 

Panel and Appellate Body proceedings

On 20 August 2015, Japan requested the establishment of a panel. At its meeting on 31 August 2015, the DSB deferred the establishment of a panel.

At its meeting on 28 September 2015, the DSB established a panel. China, the European Union, Guatemala, India, New Zealand, Norway, the Russian Federation, Chinese Taipei and the United States reserved their third-party rights.

On 27 January 2016, Japan requested the Director-General to compose the panel. On 8 February 2016, the Director-General composed the panel.

On 5 August 2016, the Chair of the panel informed the DSB that the panel expected to issue its final report to the parties in June 2017, in accordance with the timetable adopted after consultation with the parties. On 29 May 2017, the Chair of the panel informed the DSB that, due to the complex procedural and factual nature of the case as well as scheduling conflicts, and after consultations with the parties, the panel expected to issue its final report to the parties in early October 2017. On 28 September 2017, the Chair of the panel informed the DSB that, due to the complex procedural and factual nature of the case as well as scheduling conflicts, and after consultations with the parties, the panel expected to issue its final report to the parties in October 2017. In its communication, the Chair also informed the DSB that the report would be available to the public once it was circulated to the Members in all three official languages, and that the date of circulation depends on completion of translation.

On 22 February 2018, the panel report was circulated to Members.

This dispute concerns Korea's imposition of import bans and additional testing and certification requirements for radionuclide content following the Fukushima Dai-ichi Nuclear Power Plant accident on Japan's north-eastern coast on 11 March 2011. The measures affect imports of food products from Japan. Korea responded to the Fukushima Dai-ichi Nuclear Power Plant accident in Japan, in 2011, by imposing a variety of import control measures on Japanese products. The measures included import bans on specific fishery products from certain Japanese prefectures (product-specific bans) which were later extended to all fishery products from certain Japanese prefectures (blanket import ban) and testing and certification requirements on certain Japanese products.

The initial product-specific import bans mirrored internal restrictions imposed by Japan following the accident. However, as Japanese authorities began to lift their own restrictions on certain products from certain prefectures, the Korean ones remained. In this dispute, Japan challenged the Korean product-specific bans imposed in 2012 on Pacific Cod from 5 prefectures in Japan: Aomori, Fukushima, Ibaraki, Iwate and Miyagi prefectures, and on Alaska Pollock from Fukushima.

In 2013, Korea also imposed a blanket import ban on all Japanese fishery products from the following 8 prefectures: Aomori, Chiba, Fukushima, Gunma, Ibaraki, Iwate, Miyagi, and Tochigi. Japan challenged this ban with respect to 28 of its fishery products affected by this measure.

Prior to the accident Korea imposed random at-the-border testing for all imports for the presence of caesium or iodine within its tolerance levels. Shortly after the accident in 2011, Korea imposed certain additional testing requirements for Japanese products. These included requiring pre-export caesium and iodine content certificates for products from certain prefectures, testing all Japanese import consignments at-the-border for caesium and iodine, and imposing a requirement for testing for additional radionuclides if trace amounts of caesium or iodine were detected in non-fishery and livestock products. The requirement to test for additional radionuclides (additional testing requirements) was extended to fishery products in 2013. Of these measures, Japan challenged before the Panel the additional testing requirements.

Japan challenged Korea's import bans and additional testing requirements as being inconsistent with provisions of the SPS Agreement relative to: discrimination (Article 2.3), more trade restrictive than required (Article 5.6), transparency (Article 7 and Annex B), and SPS approval procedures (Article 8 and Annex C). Japan requested the Panel to find that, with respect to the import bans and the additional testing requirements:

  1. Korea's blanket import ban on 28 fisheries products, and Korea's additional testing requirements, are inconsistent with Articles 2.3 because they arbitrarily and unjustifiably discriminate against Japanese products, and they constitute a disguised restriction on international trade;
  2. Are inconsistent with Article 5.6 of the SPS Agreement as the measures are more trade restrictive than required;
  3. Korea failed to comply with the transparency requirements in Article 7 and paragraphs 1 and 3 of Annex B to the SPS Agreement as Korea's announcements of the imposition of these measures via press releases posted on government websites was not sufficient to comply with the obligation in Annex B(1) of the SPS Agreement, and that Korea's Enquiry Point's responses to two requests for documents and answers from Japan did not fulfil Korea's obligations under Annex B(3);
  4. 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.

The Panel found that the measures at issue were SPS measures within the meaning of Article 1.1 and Annex A(1)(b) of the SPS Agreement and determined that Korea had not shown that these measures fall within the scope of Article 5.7 of the SPS Agreement. The Panel found that Japan had not demonstrated that Korea acted inconsistently with its obligations under Article 8 and Annex C of the SPS Agreement with respect to the adoption and maintenance of the 2011 and 2013 additional testing requirements. The Panel found that Korea's 2011 additional testing requirements and 2012 product-specific import bans were neither discriminatory nor more trade-restrictive than required when adopted. However, the Panel found that the maintenance of these measures as well as the adoption and maintenance of the 2013 additional testing requirements was inconsistent with Korea's obligations under Articles 2.3 and 5.6 of the SPS Agreement. The Panel also found that Korea failed to comply with its transparency obligations under Article 7 and Annex B of the SPS Agreement with respect to the publication of all the measures and the duties of its SPS Enquiry Point. Specifically, the Panel's findings were:

  1. Korea's 2011 additional testing requirements and 2012 product-specific import bans were not more trade-restrictive than required when adopted.
  2. At the time of the Panel's establishment in September 2015, the 2011 additional testing requirements and 2012 product-specific import bans were maintained in a manner inconsistent with Article 5.6 of the SPS Agreement because they were more trade-restrictive than required.
  3. The 2013 additional testing requirements were adopted and maintained in a manner inconsistent with Article 5.6 of the SPS Agreement because they were and are more trade-restrictive than required.
  4. The blanket import ban (with the exception of the ban on Pacific cod originating from Fukushima and Ibaraki) was adopted in a manner inconsistent with Article 5.6 of the SPS Agreement because it was more trade-restrictive than required.
  5. The maintenance of the blanket import ban, with respect to all 28 fishery products from all 8 prefectures is maintained in a manner inconsistent with Article 5.6 of the SPS Agreement because it is more trade-restrictive than required.
  6. The 2013 additional testing requirements and the blanket import ban with respect to the 27 fishery products subject to Japan's claim from the 8 prefectures and Pacific cod from 6 prefectures, i.e. excluding Pacific cod from Fukushima and Ibaraki, were inconsistent with Article 2.3, first sentence of the SPS Agreement and, as a consequence, with Article 2.3, second sentence, when Korea adopted them.
  7. By maintaining the product-specific and blanket import bans on the 28 fishery products from the 8 prefectures and the 2011 and 2013 additional testing requirements on Japanese products, Korea acted inconsistently with Article 2.3, first sentence of the SPS Agreement and, as a consequence with Article 2.3, second sentence.
  8. Japan failed to establish that Korea acted inconsistently with the provisions of Annex C(1), subparagraphs (a), (c), (e) and (g) and, as a consequence, with Article 8 of the SPS Agreement with respect to the adoption and maintenance of the 2011 and the 2013 additional testing requirements.
  9. Korea acted inconsistently with Annex B(1), and as a consequence Article 7 of the SPS Agreement, with respect to the publication of all of the challenged measures.
  10. Korea's SPS Enquiry Point's failure to respond at all to Japan's follow-up query in conjunction with its earlier failure, is sufficient to establish that Korea acted inconsistently with the obligation in Annex B(3) and as a consequence Article 7 of the SPS Agreement.

On 9 April 2018, Korea notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations in the panel report. On 16 April 2018, Japan notified the DSB of its decision to cross-appeal.

On 8 June 2018, upon expiry of the 60-day period provided for in Article 17.5 of the DSU, the Appellate Body informed the DSB that it would not be able to circulate the Appellate Body report in this appeal by the end of the 60-day period, nor within the 90-day time-frame provided for in Article 17.5 of the DSU. The Appellate Body referred to the substantially enhanced workload it faced in 2018, the existence of several appeals proceeding in parallel, and the increasing overlap in the composition of the Divisions hearing the different appeals owing to the vacancies on the Appellate Body. The Appellate Body also referred to the scheduling issues arising from these circumstances, the number and complexity of the issues raised in this and concurrent appellate proceedings, together with the demands that these concurrent appeals place on the WTO Secretariat's translation services, and the shortage of staff in the Appellate Body Secretariat. The Appellate Body also informed the DSB that the circulation date of the Appellate Body report in this appeal would be communicated to the participants and third participants after the oral hearing.

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