Fishy SPS Measures? The WTO’s Korea-Radionuclides Dispute

19 Pages Posted: 1 Dec 2020

See all articles by Rachel Brewster

Rachel Brewster

Duke University School of Law

Carolyn Fischer

Resources for the Future; Vrije Universiteit Amsterdam; University of Ottawa - Department of Economics

Date Written: November 2020

Abstract

The Korea-Radionuclides case addresses Korean SPS measures imposed on Japanese fishery products after the Fukushima Dai-ichi nuclear plant meltdown in 2011. Japan challenged these measures as more restrictive than necessary under the SPS Agreement. The panel agreed with Japan, but this ruling was largely reversed by the Appellate Body. Korea’s victory at the Appellate Body was based on procedure. The panel accepted Korea’s appropriate level of protection (ALOP), which included both quantitative and qualitative elements. However, the Appellate Body found that the panel only addressed the quantitative aspect of Korea’s ALOP and reversed on that basis. The Appellate Body’s ruling did not affirmatively find that Korea’s SPS measures were legal under WTO rules. Instead, the Appellate Body found that panel had not sufficiently addressed Korea’s arguments and, thereby, the panel could not determine that the SPS measures were more restrictive than necessary. The case highlights the need for the Appellate Body to be able to conduct its own factual analysis, a power it could be given if the dispute settlement system is reformed. Without independent fact-finding power, the Appellate Body cannot correct panels’ mistakes, and respondents can prevail based on panel error.

Keywords: WTO, dispute settlement, SPS, fish, Japan, Korea

JEL Classification: F13, F53

Suggested Citation

Brewster, Rachel and Fischer, Carolyn and Fischer, Carolyn, Fishy SPS Measures? The WTO’s Korea-Radionuclides Dispute (November 2020). Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2020/81, Duke Law School Public Law & Legal Theory Series No. 2020-83, Available at SSRN: https://ssrn.com/abstract=3738277 or http://dx.doi.org/10.2139/ssrn.3738277

Rachel Brewster (Contact Author)

Duke University School of Law ( email )

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Carolyn Fischer

Resources for the Future ( email )

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Vrije Universiteit Amsterdam ( email )

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HOME PAGE: http://https://research.vu.nl/en/persons/carolyn-fischer

University of Ottawa - Department of Economics ( email )

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