At our second substantive meeting, Australia requested us to exclude Annex K...the "Vose Report" . . . submitted after the 7 October 1997 deadline we imposed. ... [S]ince, in our view, the Vose Report is in any event not crucial to our report, we shall not further consider it in our examination. ...²¹²

Evidence referred to by Canada in its oral statement at the second substantive meeting, not submitted to the Panel, but not contested by Australia.

At our second substantive meeting, Australia raised a procedural claim related to Canada's oral statement made at that meeting. According to Australia, Canada's oral statement introduced fundamental changes in the nature of its specific legal claims which are of such significance that Australia should be allowed to rebut them through a formal written rebuttal submission. On this ground, Australia requested the Panel to give it more time - suggesting one extra week - to submit a third written rebuttal submission. ... We thus granted Australia's request to submit a third written submission within one week after our second substantive meeting. We gave the same opportunity to Canada and specified that both third submissions had to be limited to the "fundamental changes" introduced by Canada as they were identified in an oral statement made by Australia at the second substantive meeting. On 13 February 1998, we received such third submission from both parties.²¹⁴

(a) reverses the Panel's findings that the 1988 Conditions and the 1996 Requirements are within the Panel's terms of reference; and concludes that the SPS measure at issue in this dispute is the import prohibition on fresh, chilled or frozen salmon set forth in QP86A, as confirmed by the 1996 Decision, rather than the heat-treatment requirement set forth in the 1988 Conditions;

(b) considers that the Panel's reference to Article 6.1 of the SPS Agreement is not "a legal finding or conclusion" and that the Panel did not, therefore, exceed its terms of reference;

(c) reverses the Panel's finding that the measure at issue, as it applies to ocean-caught Pacific salmon, is not based on a risk assessment in accordance with Article 5.1, and that Australia has acted inconsistently with Article 5.1 and, by implication, Article 2.2 of the SPS Agreement, because the Panel made this finding on the wrong premise that the heat-treatment requirement, rather than the import prohibition, is the SPS measure at issue in this dispute;

(d) finds, on the basis of the Panel's factual findings, that the 1996 Final Report is not a risk assessment within the meaning of Article 5.1 and the first definition in paragraph 4 of Annex A of the SPS Agreement, and that Australia, by maintaining without a proper risk assessment, an import prohibition on fresh, chilled or frozen ocean-caught Pacific salmon, has acted inconsistently with Article 5.1 and, by implication, Article 2.2 of the SPS Agreement;

(e) upholds the Panel's finding that, by maintaining the measure at issue as it applies to ocean-caught Pacific salmon, Australia has acted inconsistently with its obligations under Article 5.5 and, by implication, Article 2.3 of the SPS Agreement;

(f) reverses the Panel's finding that the measure at issue, as it applies to ocean-caught Pacific salmon, is "more trade-restrictive than required" to achieve Australia's appropriate level of protection, and that Australia has acted inconsistently with Article 5.6 of the SPS Agreement, because the Panel made this finding on the wrong premise that the heat-treatment requirement, rather than the import prohibition, is the SPS measure at issue in this dispute;

(g) is unable to come to a conclusion on whether or not the SPS measure at issue, i.e., the import prohibition, as it applies to ocean-caught Pacific salmon, is consistent with Article 5.6 of the SPS Agreement as a result of insufficient factual findings and undisputed facts in the Panel record;

(h) finds that the Panel erred in its application of the principle of judicial economy by limiting its findings under Articles 5.5 and 5.6 to ocean-caught Pacific salmon, and in considering that it was unnecessary to address Articles 5.5 and 5.6 of the SPS Agreement with respect to other Canadian salmon;

(i) finds that by maintaining the SPS measure at issue with regard to other Canadian salmon, Australia has acted inconsistently with Article 5.5 of the SPS Agreement;

(j) is unable to come to a conclusion on whether or not the SPS measure at issue, i.e., the import prohibition, as it applies to other Canadian salmon, is consistent with Article 5.6 of the SPS Agreement as a result of insufficient factual findings and undisputed facts in the Panel record;

(k) concludes that a finding of inconsistency with Article 2.3, first sentence, can be reached independently of a finding of inconsistency with Article 5.5; but because of insufficient factual findings and undisputed facts in the Panel record, is unable to determine whether the measure at issue constitutes arbitrary or unjustifiable discrimination within the meaning of Article 2.3, first sentence, of the SPS Agreement;

(l) concludes that the Panel's consideration and weighing of the evidence in support of Canada's claims relates to the Panel's assessment of the facts and, therefore, falls outside the scope of appellate review;

(m) concludes that the Panel did not abuse its discretion contrary to its obligations under Article 11 of the DSU;

(n) concludes that the Panel's admission and consideration of certain evidence submitted, or referred to, by Canada does not raise due process concerns contrary to the DSU; and

(o) concludes that since the Panel granted Australia extra time to respond to the oral statement made by Canada at the second meeting of the Panel, the Panel did not fail to accord due process to Australia contrary to the DSU.