The SPS agreement and its application in the WTO dispute settlement
(Jiangyu Wang)

Part III. Application of The Agreement-Case Law Study

3. The Japan--Agricultural Products Dispute[19]

On April 7, 1997, the United States requested consultations with Japan regarding Japan's approval process for the importation of certain agricultural products. The United States alleged that Japan prohibited the importation of individual varieties of some agricultural products until each variety had been tested for the required quarantine treatment. For example, instead of requiring that apples imported from the United States meet Japan's quarantine requirements concerning a certain plant pest, the codling moth, Japan mandated that testing be conducted on each variety of apple before different varieties could be imported. Thus, even though Japan had approved the importation of certain "red delicious" apples because the United States had proven that apples of this variety could be treated effectively for the codling moth, the United States was unable to export other varieties, such as "Fujis" or "Braeburns." The United States claimed that it took from two to four years to conduct the necessary tests, these tests were expensive, and that Japan's policy adversely impacted U.S. agricultural exports and violated Japan's obligations under the SPS Agreement. Japan claimed that its policies were consistent with the requirements of the SPS Agreement.

WTO Panel Decision The panel determined that Japan's policy contravened that country's obligations under the SPS Agreement because Japan's measure, as applied to apples, cherries, nectarines, and walnuts, was not based on scientific evidence, (violating Article 2.2), and was more trade restrictive than necessary (violating Article 5.6). In addition, as Japan's measure was not published, the panel held that Japan was in violation of Article 7 and Annex B.1, both of which concern transparency. Japan announced on November 24, 1998, its decision to appeal the findings of the panel.

WTO Appellate Body Decision The Appellate released its report on February 22, 1999. Except for reversing only one of the Panel¡¯s findings regarding burden of proof issue, the Appellate Body upheld or found no need to address.

(* Footnote Omitted)