World Trade Organization
Japan – Measures Affecting the Importation of Apples - Recourse by the United States to Article 21.5 of the DSU (WT/DS245)
Third Party Oral Statement
Statement of Australia at the Third Party Session of the Panel
Geneva, 28 October 2004
1. As a third party to this dispute, Australia welcomes this opportunity to present its views to the Panel.
2. The Panel has an important and challenging task in front of it. The written submissions of the principal parties have raised a number of factual, scientific and legal issues.
3. Australia has a systemic interest in a number of the issues raised, particularly in relation to the interpretation and application of the cited provisions of the covered agreements.
II. Third party Participation Rights
4. I want to register clearly with the Panel Australia’s expectation that all third parties will be provided with the fullest possible opportunity to express views on specific issues of law or legal interpretation considered by the Panel to be relevant to the resolution of the dispute, particularly given Australia’s strong systemic interest in the issues raised in this dispute. Australia expects this view is shared by other third parties.
5. Article 10 of the DSU requires the Panel to ensure that the interests of third parties are fully taken into account during the Panel process. Accordingly, Australia requests the Panel to ensure that all third parties are given an opportunity to respond in writing to all relevant written questions presented to the parties following this meeting, as well as to any relevant subsequent written questions that might be raised at a later stage in the proceedings. This approach is within the Panel’s discretion and is fully consistent with relevant DSU provisions, such as Articles 10 and 13.
III. Australian Interests
6. I would like to expand on the issues of interest to Australia.
7. Australia has a strong interest in any assessment by the Panel of the interpretation and applicability of the provisions of the SPS Agreement raised by the parties (Articles 2 and 5), and in the interpretation and application of relevant DSU provisions. Areas of particular interest to Australia are:
- the nature of an Article 21.5 proceeding and the Panel’s jurisdiction to examine certain measures and claims;
- the relationship between Articles 2.2 and 5.1 of the SPS Agreement; and
- the Panel’s consideration of scientific information and need to consult scientific experts.
8. On this last point, Australia notes that the characterisation and interpretation of the scientific material presented by Japan is a strongly contested issue. Australia considers that panels should give careful attention to Article 11.2 of the SPS Agreement. That provision recognises the important role that experts can play in assisting panels in SPS disputes. Accordingly, Australia believes that the Panel should have recourse to scientific experts to assist it in relation to the material presented by Japan.
9. As for interpretation of the SPS Agreement, as our participation in the Appeal phase of this dispute demonstrated, Australia has a strong interest in the interpretation and application of the provisions of the SPS Agreement. In particular, the relationship between the core provisions of the Agreement is of significant interest.
10. We note that the question of the nature of an Article 21.5 proceeding, and the claims and measures to be considered by a Panel in an Article 21.5 proceeding, have been squarely raised by the EC in its third party submission. We note that these questions are also the subject of deliberation elsewhere within the WTO system, and some of these issues have arisen in previous disputes, where well-developed views have been expressed.
11. In the event the Panel considers it necessary to address these SPS and DSU systemic issues, and seeks views from the parties in the form of written questions, Australia requests that it be given an opportunity to provide its views on those questions.
12. Finally, Mr Chairman, I would like to thank you for taking our views into consideration and look forward to participating further in the Panel’s examination of the factual, legal and scientific issues before it.
 US – FSC Article 21.5 WT/DS108/AB/RW, paragraph 243.