[2010-2011 WTO Case Review Series No.4]
Australia—Measures Affecting the Importation of Apples from New Zealand (WT/DS367/R, WT/DS367/AB/R): Scope of the Obligations under Article 5.1 of the SPS Agreement on a scientific basis

Author Name NAIKI Yoshiko  (Osaka University)
Creation Date/NO. May 2011 11-P-015
Research Project Comprehensive Research on International Trade System
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The Australia Apples case is the first case following the two well-known cases of Biotech and Hormones II. These two cases received greater attention due to high uncertainty and low scientific common ground on the risks. The Apples case, which addressed a less difficult matter of quarantine risk, was a test case in terms of showing how well the Panel and the Appellate Body understood the previous rulings, especially the Appellate Body's rulings in the Hormones II case, where the Appellate Body clarified the standard of review to the obligations under Article 5.1. In fact, the Apples case followed the guidance provided in the Hormones II case and applied the same standard of review. As expected, Australia lost the case, on the basis that measures taken by Australia on apples were not based on proper risk assessment as required by Article 5.1. In one sense, for panelists, the Apples case was an easier case, since there were less complex scientific issues, as facts and issues of this case, especially with respect to "fire blight disease," were almost same as those in the Japan Apples case, which was disputed in 2005. Thus, the panelists could refer to scientific knowledge that was established in the Japan Apples case. This leaves us with a question of whether Australia could have solved the issue by mutual agreement with New Zealand at any time before the establishment of the WTO panel. Also, one might wonder whether a previous WTO ruling has any impact on a future, potential WTO dispute, or whether it is by nature difficult to reach an early solution on an SPS dispute due to the presence of difficult domestic politics in defendants' countries.