17 December 2010
At its meeting on 17 December 2010, the Dispute Settlement Body adopted the panel and Appellate Body reports in the Australia/New Zealand apples dispute (DS367).
DS367: Australia — Measures Affecting the Importation of Apples from New Zealand: Report of the Appellate Body and Report of the Panel
New Zealand welcomed the adoption of the panel and Appellate Body reports and said that they confirmed its longstanding view that Australia's quarantine measures applied to New Zealand apples were neither based on an appropriate risk assessment nor supported by sufficient scientific evidence since all 16 of Australia's measures at issue were found to be inconsistent with its obligations under Articles 5.1, 5.2, and 2.2 of the SPS Agreement. New Zealand hoped that consultations would quickly lead to an agreement on the reasonable period of time for Australia to implement the rulings.
Australia said that, on 30 November 2010, it had announced its intentions to implement the rulings. While acknowledging that the Appellate Body had reversed the panel's findings on Article 5.6 of the SPS Agreement, Australia was of the view that some aspects of the Appellate Body's reasoning on Article 5.6 appeared problematic, and in particular, in relation to the standard of review to be applied by panels in dealing with an Article 5.6 claim. Australia expressed concern that the Appellate Body had introduced a “significant element of uncertainty” on standard of review which would make the task of panels more difficult in reviewing members' compliance with key provisions of the SPS Agreement.
The US noted that the Appellate Body did not uphold the panel's findings under Article 5.6 of the SPS Agreement and emphasised that the Appellate Body did not reach the merits of the issue. The US said that the Appellate Body had found that the Panel had adopted an improper approach to its Article 5.6 analysis, and that the panel's findings were not sufficiently detailed to permit the Appellate Body to complete the Article 5.6 analysis.
The DSB adopted the Appellate Body Report contained in WT/DS367/AB/R and the Panel Report contained in WT/DS367/R, as modified by the Appellate Body Report.