WORLD TRADE
ORGANIZATIONWT/DS245/5
28 August 2003
(03-4543)
Original:  English
JAPAN – MEASURES AFFECTING THE IMPORTATION OF APPLES
Notification of an Appeal by Japan
under paragraph 4 of Article 16 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU)
The following notification, dated 28 August 2003, sent by Japan to the Dispute Settlement
Body (the "DSB"), is circulated to Members.  This notification also constitutes the Notice of Appeal,
filed on the same day with the Appellate Body, pursuant to the  Working Procedures for Appellate
Review .
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Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU") and Rule 20 of the Working Procedures for Appellate Review, Japan
hereby notifies its decision to appeal to the Appellate Body certain issues of law covered in the Panel
Report on Japan-Measures Affecting the Impor tation of Apples (WT/DS245/R, dated 15th July 2003)
and certain legal interpretations developed by the Panel.
Japan seeks review by the Appellate Body of the conclusions of the Panel that Japan’s
phytosanitary measure on the United States apples is inconsistent with the Agreement on the
Application of Sanitary and Phytosanitary Measures ("SPS Agreement").  These findings are in error,
and are based on erroneous findings on issues of law and related legal interpretations.  The Appeal
relates to the following issues:
1. The Panel erred in law in finding that Japan acted inconsistently with its
obligations under Article 2.2 of the SPS Agreement.  This finding reflects the Panel’s
erroneous interpretation of the rule of burden of proof, and the Panel’s failure to make
an objective assessment of the matter before it under Article 11 of the DSU.
2. The Panel erred in law in finding that Japan’s phytosanitary measure was
inconsistent with the requirements under Article 5.7 of the SPS Agreement.  This
finding is based on an erroneous interpretation of the requirements under Article 5.7.
3. The Panel erred in law in finding that Japan’s phytosanitary measure was not
based on a risk assessment within the meaning of Article 5.1 of the SPS Agreement.
This finding is based on an erroneous interpretation of the requirements of a risk
assessment under Article 5.1.
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