Japan-Measures Affecting the Importation of Apples (AB-2003-4): One Bad Apple? (DS245/AB/R): A Comment
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Description
This chapter reviews the decision by the Appellate Body (AB) regarding measures affecting the importation of apples in Japan. Section 2 of the chapter presents some background facts. Section 3 considers the Sanitary and Phytosanitary (SPS) agreement and emphasizes the fact that it imposes a discipline on risk-reducing measures even in the absence of discrimination or protectionism. Section 4 discusses how the evaluation of risk-reducing measures can be undertaken in the context of the SPS agreement. Our discussion focuses on two issues: the scope of the mandate given to the adjudicators and the standard of review that they should apply. We emphasize the difficulty of the task faced by the adjudicators, namely to distinguish between determining the level of risk that a country will find optimal to support (which cannot be challenged) and determining whether risk-reducing measures are necessary to achieve the chosen level of risk. We further observe that the common methodology used by Panels, namely to evaluate the existence of risk in the absence of risk-reducing measures, has limited applicability. We also discuss how this approach can be abused, leading the adjudicators to slip from an evaluation of whether the measures are necessary to achieve a given level of risk to an implicit challenge of the level of risk itself (which should remain the preserve of the Members). Regarding the standard of review, we argue that a lower standard should be applied to measures that do not threaten fundamental principles like nondiscrimination. Section 5 considers the approach and the findings of the Panel and the AB in light of this discussion. Section 6 discusses the consistency requirement imposed by the SPS agreement regarding risk-reducing measures in different circumstances and argues that it can be a very effective tool to prevent abusive standards, without compromising the autonomy of the States in setting the optimal level of risk that they wish to bear. This section also discusses some of the implications of applying different standards of review to cases that involve discrimination or protectionism and those that do not. Section 7 briefly considers how the Panel and the AB handled methods of risk assessment, and highlights the fact that Japan was held to a very high standard of review. Section 8 discusses the approach of the Panel and the AB toward the precaution principle. We consider the precautionary principle in the context of the SPS agreement and argue that the agreement fits naturally with the distinction between risk and ambiguity and in this perspective allows for one type of rationale behind the precautionary principle (while seemingly excluding others). We also observe that there is at least one issue in which scientific evidence was ambiguous in the case. Accordingly, the Panel’s and the AB’s unwillingness to apply the precautionary principle in this case can be questioned.
Source Publication
The WTO Case Law of 2003
Source Editors/Authors
Henrik Horn, Petros C. Mavrodis
Publication Date
2006
Recommended Citation
Neven, Damien J. and Weiler, Joseph H. H., "Japan-Measures Affecting the Importation of Apples (AB-2003-4): One Bad Apple? (DS245/AB/R): A Comment" (2006). Faculty Chapters. 1516.
https://gretchen.law.nyu.edu/fac-chapt/1516
