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WTO disputes

Australia – Measures Affecting the Importation of Apples from New Zealand (DS367)

Agenda Item 3

Preliminary Ruling of the Panel

6 June 2008

I. Introduction

1.
On 13 March 2008, Australia filed a request before this Panel
for a preliminary procedural ruling. Australia asserted
that New Zealand's request for the establishment of this Panel,
dated 7December 2007, is inconsistent with Article 6.2 of
the Dispute Settlement Understanding (DSU), because the panel
request fails to identify the specific measures at issue and
fails to provide a brief summary of the legal basis of New
Zealand's complaint sufficient to present the problem
clearly. Australia asked the Panel to find that New
Zealand's panel request fails to fulfil the requirements of
Article 6.2 of the DSU, and therefore to refrain from
considering the substance of New Zealand's claims in this
dispute. [1]

2.
The Panel has examined Australia's preliminary request, as well
as the arguments presented subsequently by Australia and New
Zealand, and by Chile and the European Communities as third
parties to the dispute. In considering Australia's
request, the Panel has looked at New Zealand's request for the
establishment of the Panel as a whole and on its face, as well
as the attendant circumstances of the present case. The
Panel assessed the sufficiency of this panel request in the
light of the terms used in Article 6.2 of the DSU in their
context and in the light of the object and purpose of this
provision.

3.
In the interest of due process, and especially in order to
allow parties and third parties sufficient time to prepare
their first written submissions, the Panel has decided to issue
an early preliminary ruling. This is consistent with
Australia's request that the Panel issue its preliminary ruling
prior to the due dates of the parties' first written
submissions.[2] The Panel reserves its right to further
develop the reasons for its ruling later in the proceedings, or
to include them in its report.

4.
The Panel begins by recalling the requirements contained in
Article 6.2 of the DSU. These requirements are as
follows:

"The request for the establishment of a panel shall be made
in writing. It shall indicate whether consultations were
held, identify the specific measures at issue and provide a
brief summary of the legal basis of the complaint sufficient to
present the problem clearly. In case the applicant
requests the establishment of a panel with other than standard
terms of reference, the written request shall include the
proposed text of special terms of reference."

5.
The Panel notes that New Zealand's panel request clearly
satisfies the first two requirements contained in Article 6.2
of the DSU. In this regard, the panel request was made in
writing and indicates that "consultations [between the parties]
were held on 4 October 2007 in Geneva... [but they] failed to
resolve the matter".[3] Indeed, neither Australia nor the third
parties have raised any issue with regard to these particular
two requirements. The Panel will now turn to whether New
Zealand's panel request satisfies the other requirements of
Article 6.2.

II. On the Identification of the Specific measures at issue

6.
As to whether New Zealand's panel request identifies the
specific measures at issue in a manner consistent with the
requirements of Article 6.2 of the DSU, the Panel has reached
the conclusions set forth below.

7.
In its panel request, New Zealand has referred to both
"measures specified in and required by Australia pursuant to
the Final import risk analysis report for apples from
NewZealand
" (FIRA) and, "in particular" to a
list of 17 requirements spelt out in the FIRA and
identified in the panel request through bullet points.

8.
Looking at the text of New Zealand's panel request, the Panel
finds that, with respect to the 17 items identified by New
Zealand through 17 separate bullet points, the request is
sufficiently precise in identifying the specific measures at
issue with respect to those 17 items, pursuant to Article 6.2
of the DSU.

9.
On the other hand, given the length and complexity of
Australia's FIRA, the Panel finds that the broad
reference in New Zealand's panel request to the "measures
specified in and required by Australia pursuant to the
[FIRA]" fails to satisfy the requirement of sufficient
clarity in the identification of the specific measures at issue
set forth in Article 6.2 of the DSU. Accordingly, the
Panel finds that its terms of reference are limited to the 17
measures specifically identified by New Zealand in its panel
request and do not encompass other measures that may be
contained in Australia's FIRA, but which were not
identified with sufficient precision in the panel request.

III. The summary of the legal basis of the complaint

10.
In its panel request, New Zealand has listed a number of
provisions of the covered agreements, which it alleges are
breached by the measures adopted by Australia. New
Zealand has not drawn an explicit and detailed connection
between the specific measures challenged and the provisions
invoked. New Zealand has only stated in general terms
that "the above measures are inconsistent with the obligations
of Australia under [nine provisions of the Agreement on the
Application of Sanitary and Phytosanitary Measures, (SPS
Agreement)]".[4] Having carefully considered the language used
in the panel request and the specific content of the provisions
of the SPS Agreement cited therein, the Panel understands that
New Zealand has claimed that "every measure... [identified] in
its panel request is inconsistent with each of the [nine]
provisions referred to [in the panel request]."[5] In the Panel's view,
this satisfies the requirement that the panel request lays out
a connection between the various measures challenged and the
specific provisions invoked.[6]

11.
The Panel now turns to the issue of whether New Zealand's panel
request provides a brief summary of the legal basis of the
complaint, which is sufficient to present the problem clearly,
as required by Article 6.2 of the DSU. The Panel would
ideally have preferred a more explicit explanation of how or why the measures at issue are considered
by New Zealand to be violating the identified provisions of the
SPS Agreement. However, considering the language used in
the panel request and the specific content of the provisions of
the SPS Agreement cited therein, the Panel concludes that New
Zealand's panel request contains enough information to
adequately inform the responding party and other WTO Members on
the nature of the complaint[7] and to allow the responding party to begin
preparing its defence.[8] The Panel recalls in this regard that the
complaining party is under no obligation to develop its
arguments in its panel request.[9] Furthermore, the Panel's conclusion in
this case is supported by practice followed by WTO Members in
some previous panel requests (including that of New Zealand and
Australia), as well as by rulings such as that adopted by the
panel in EC – Approval and Marketing of Biotech
Products
. Finally, the Panel notes that it is not
convinced by Australia's arguments that the lack of a more
detailed explanation as to how or why the 17 specifically
listed measures at issue are considered by New Zealand to be
violating the provisions invoked has prejudiced or will
prejudice Australia's ability to defend itself in the course of
the Panel's proceedings.

12.
Accordingly, the Panel finds that New Zealand's panel request
does not fail to provide a brief summary of the legal basis of
its complaint, which is sufficient to present the problem
clearly, as required by Article 6.2 of the DSU.

IV. Conclusion

13.
In light of the foregoing, the Panel finds:

(a)
With respect to the 17 items contained in Australia's Final
import risk analysis report for apples from
NewZealand
" (FIRA) and identified by bullet
points in New Zealand's request for the establishment of this
Panel, dated 7December 2007, the specific measures at
issue have been properly identified;

(b)
New Zealand's panel request does not identify with sufficient
precision any measures contained in Australia's FIRA,
other than the 17specific items identified through bullet
points. Accordingly, any such other measures are not part
of this Panel's terms of reference; and,

(c)
New Zealand's panel request contains sufficient information
regarding the legal basis of the complaint to present the
problem clearly with respect to the 17 identified items.

14.
In light of the findings above, the Panel will allow this
proceeding to continue with respect to the 17 measures
specifically identified in New Zealand's panel request and to
the alleged inconsistency of such measures with the provisions
of the SPS Agreement cited therein.


[1] Australia's letter dated 13 March 2008.

[2] Australia's letter dated 17 March 2008.

[3] Australia – Apples, Request for the
Establishment of a Panel by New Zealand (WT/DS367/5),
7December 2007, p. 3.

[4] Australia – Apples, Request for the
Establishment of a Panel by New Zealand (WT/DS367/5),
7December 2007, p. 3.

[5]Australia – Apples, Written Submission
by New Zealand on Australia's Request for a Preliminary
Procedural Ruling in Relation to the Consistency of New
Zealand's Panel Request with Article 6.2 of the DSU, 7 April
2008, para. 2.51.

[6] See
Appellate Body Report on US – Oil Country Tubular
Goods Sunset Review
, para.162.

[7] Appellate Body Report on EC – Bananas III,
para.142.

[8] Appellate Body Report on Thailand – H-Beams,
para.88.

[9] Appellate Body Report on EC – Bananas III,
para.143.

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Last Updated: 9 January 2013
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