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Analysis of the WTO Panel and Appellate Body's Reports on Import Ban of Japanese Seafood and Implications for Responding to Similar Disputes

  • Journal of International Business Transactions Law
  • Abbr : IBT
  • 2020, (28), pp.99-134
  • DOI : 10.31839/ibt.2020.01.28.99
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law > Private Law > International Commercial Transactions Law
  • Received : December 24, 2019
  • Accepted : January 10, 2020
  • Published : January 31, 2020

Choi Hye - sun 1

1전남대학교

Accredited

ABSTRACT

On April 11, 2019, there was the WTO Appellate Body’s ruling on the SPS measures against the Japanese seafoods by Korea. In February 2018, a panel ruling was made, which the panel did not accept the contention of the Korean government on major issues. The panel found that the SPS measures by the Korean government were more restrictive than necessary, arbitrary or unjustifiable discrimination, and a disguised restriction on international trade. The Korean and Japanese governments have appealed the panel's judgment in April 2018, and the final decision on the dispute was made in a year. An earthquake of magnitude 9.0 occurred in the northeastern region of Japan on March 11, 2011, causing 20,000 deaths and 2,500 disappearances. The tsunami that occurred after the earthquake caused a breakdown in reactors 1-4 of the Fukushima Daiichi Nuclear Power Plant operated by Tokyo Electric Power Company, resulting in the flow of contaminated water containing significant amounts of radioactive materials into the sea. The occurrence of this accident raised strong concern about the safety of Japanese seafood in Korea, and the Korean government adopted measures such as import ban of Japanese seafood and additional radioactive residue testing requirements in 2011 and 2013. When the Korean government adopted these measures, the Japanese government strongly opposed them and initiated a dispute settlement procedure in accordance with the WTO dispute settlement procedure. After that, it took about four years, and finally the Appellate Body's final decision was made, and the Appellate Body changed most of the panel's main findings in February 2018, which is unprecedented in the history of the WTO dispute settlement process. The main issues addressed in this case were whether Korea's measures are more restrictive than necessary to achieve their appropriate level of sanitary or phytosanitary protection set by the Korean government, whether Korea's measures were arbitrary or unjustifiable discrimination, whether Korea's measures were legitimate as a provisional measure, and whether Korea's measures violated the principles of transparency. First, the Panel acknowledged that the level of protection established by the Korean government was not a quantitative standard, but at the same time the Panel regarded the level as the consumption of less than 1 mSv / year contradictorily. Accordingly, the Panel concluded that Korea's measures were violation of Article 5.6 of the SPS Agreement because Japan's alternatives would meet these criteria. However, in this case, the Appellate Body deemed the panel to be unreasonable because the level of protection set by the Korean government used both quantitative and qualitative standards. Second, regarding whether the Korean measures were arbitrary or unjustifiable discrimination against Japanese foods under similar conditions, the panel acknowledged that the Fukushima nuclear accident caused a relatively high level of radioactive contamination in the sea near Fukushima. At the same time, however, large-scale radioactive spills occurred before the Fukushima nuclear accident, and the risks of radioactive contamination were similar for Japanese food and the food products from other origins because foods from all countries around the world are at risk of radioactive contamination. On the other hand, the Appellate Body said that the finding of the panel was illegal because it had to consider territorial conditions in consideration of accessibility and local accumulation of pollution. Third, regarding violations against rules of provisional measures, the Panel determined that the measures of Korea were in violation of the provisions because they did not meet all four cumulative requirements for admitting violations of Article 5.7 of the SPS Agreement. On the other hand, the Appellate Body addressed that when the Japanese government requested the establishment of a panel to settle the dispute, the government has not insisted on violating Article 5.7 of the Agreement. Based on the Korean Government's allegations that Panel violated in Article 7 and 11 of the Agreement, the Appellate Body declared the panel's finding under Article 5.7 of the SPS Agreement was moot and of no legal effect. Finally, the panel found that the Korean government did not publish the contents of the regulations in detail, and the government did not respond to the Japanese’s second inquiry at all. The Appeals Body also supported the Panel's finding on the lack of necessary explanations to be included in the contents of the Korean government’s publishment.

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This paper was written with support from the National Research Foundation of Korea.