11 - Japan – Measures Affecting the Importation of Apples (AB-2003-4): One Bad Apple? (DS245/AB/R): A Comment

Summary

Introduction

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.