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WTO disputes

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

Notification of appeal

Notification of an Appeal by Australia under Article 16.4 and Article
17 of the Understanding on Rules and Procedures Governing the Settlement
of Disputes
and under Rule 20(1) of the Working Procedures for Appellate
Review

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Australia - Measures Affecting the Importation of Apples from New Zealand (DS367) - notice of appeal [PDF 23 KB]

  1. Pursuant to Article 16.4 and Article 17 of the Understanding on Rules
    and Procedures Governing the Settlement of Disputes
    (DSU) and
    Rule 20 of the Working Procedures for Appellate Review, Australia
    hereby notifies its decision to appeal to the Appellate Body certain issues
    of law covered in the report of the Panel entitled Australia - Measures
    Affecting the Importation of Apples from New Zealand
    (WT/DS367/R) (Panel
    Report)
    and certain legal interpretations developed by the Panel.
  2. Australia seeks review by the Appellate Body of the following errors of
    law and legal interpretation contained in the Panel Report:
    1. In ultimately finding in the Panel Report at [8.1](b) that the 16 measures
      at issue, both as a whole and individually, constitute SPS measures, the
      Panel erred in its interpretation and application of the definition of
      "sanitary or phytosanitary measure" in Annex A(1) to the Agreement
      on the Application of Sanitary and Phytosanitary Measures
      (SPS
      Agreement).
      The error appears at [7.113]-[7.187] of the Panel
      Report.
    2. In ultimately finding in the Panel Report at [8.1](c) that the measures
      imposed by Australia for fire blight and apple leafcurling midge (ALCM),
      as well as the general measures, are inconsistent with the requirements
      of Arts 5.1 and 5.2 (and consequently Art 2.2) of the SPS Agreement, the
      Panel erred in its interpretation and application of what constitutes
      a proper "risk assessment". The errors appear at [7.240-7.472],
      [7.473-7.510], [7.782-7.887] and [7.8987.906] of the Panel Report.
    3. In ultimately finding in the Panel Report at [8.1](c) that the measures
      imposed by Australia for fire blight and ALCM, as well as the general
      measures, are inconsistent with the requirements of Arts 5.1 and 5.2 (and
      consequently Art 2.2) of the SPS Agreement, the Panel failed in the performance
      of its duty under Art 11 of the DSU to make an "objective assessment
      of the matter". The errors appear at [7.240-7.472], [7.473-7.510],
      [7.782-7.887] and [7.8987.906] of the Panel Report.
    4. In ultimately finding in the Panel Report at [8.1](d) that the measures
      imposed by Australia for fire blight and ALCM are inconsistent with the
      requirements of Art 5.6 of the SPS Agreement, the Panel relied upon its
      erroneous findings against the risk assessments for fire blight and ALCM
      under Arts 5.1 and 5.2 (and consequently Art 2.2) of the SPS Agreement
      in concluding that New Zealand's alternative measures would achieve Australia's
      appropriate level of protection (ALOP). In addition to
      or in the alternative, the Panel erred in its interpretation and application
      of Art 5.6, and failed to make an "objective assessment of the matter"
      as required by Art 11 of the DSU, in concluding that New Zealand's alternative
      measures would achieve Australia's ALOP. The errors appear at [7.1133-7.1197]
      and [7.1286-7.1331] of the Panel Report.

Last Updated: 9 January 2013
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