(D) Colombia 366R

WORLD TRADE WT/DS366/R
27 April 2009
ORGANIZATION
(09-1865)
Original: English
COLOMBIA – INDICATIVE PRICES AND RESTRICTIONS

ON PORTS OF ENTRY
Report of the Panel

WT/DS366/R
Page i
TABLE OF CONTENTS
Page
I. INTRODUCTION .................................................................................................................... 1
II. FACTUAL ASPECTS .............................................................................................................. 1
A. BACKGROUND ............................................................................................................................. 1
B. THE USE OF INDICATIVE PRICES IN RELATION TO TEXTILE, APPAREL AND FOOTWEAR .............. 3
C. RESTRICTION ON PORTS OF ENTRY AND INTERNATIONAL TRANSIT RULES APPLICABLE
TO TEXTILES, APPAREL AND FOOTWEAR ARRIVING FROM PANAMA .......................................... 6
D. THE REQUIREMENT TO PRESENT AN ADVANCE IMPORT DECLARATION AND PAY

CUSTOMS DUTIES AND SALES TAX ON THE BASIS OF THE ADVANCE DECLARATION
APPLICABLE TO IMPORTS OF TEXTILES, APPAREL AND FOOTWEAR ARRIVING FROM
PANAMA ...................................................................................................................................... 8
E. THE REQUIREMENT TO PAY A FEE TO RECTIFY AN IMPORT DECLARATION APPLICABLE
TO TEXTILE IMPORTS ARRIVING FROM PANAMA ........................................................................ 9
III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS......................... 9

IV. ARGUMENTS OF THE PARTIES ...................................................................................... 10
A. EXECUTIVE SUMMARY OF THE FIRST WRITTEN SUBMISSION OF PANAMA ................................ 10
1. Introduction............................................................................................................................. 10
2. The measures at issue ............................................................................................................. 12
(a) Customs valuation of textiles, footwear and other products on the basis of "indicative
prices" ....................................................................................................................................... 12
(b) Port of entry and transit restrictions and customs regulations for textiles from Panama.......... 12
3. Legal argument ....................................................................................................................... 12
(a) Colombia's use of indicative prices to determine the customs value of textiles,
footwear and other products is inconsistent with Articles 1, 2, 3, 5, 6 and 7.2 (b), (f)
and (g) of the Customs Valuation Agreement ........................................................................... 12
(i) Colombia's use of indicative prices is inconsistent with Article 1 of the Customs
Valuation Agreement ................................................................................................................ 12
(ii) Colombia's use of indicative prices is inconsistent with the methodologies set out in
Articles 2, 3, 5, and 6 of the Customs Valuation Agreement .................................................... 13
(iii) Colombia's use of indicative prices is inconsistent with Articles 7.2(b), (f) and (g) of
the Customs Valuation Agreement............................................................................................ 14
(iv) The payment of customs duties based on indicative prices is not a "guarantee" within
the meaning of Article 13 of the Customs Valuation Agreement .............................................. 14
(b) Colombia's reservation under the Customs Valuation Agreement to use minimum
values has expired ..................................................................................................................... 15
(c) Colombia's use of indicative prices to determine the value of imported textiles,
footwear and other products for the purpose of levying sales tax when the transaction
value is used to determine the value of like domestic products for that purpose is
inconsistent with Article III:2, first sentence, of the GATT 1994 ............................................. 15
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(d) Colombia's prohibition of the importation of the importation of textiles from Panama
except at the ports of Bogota and Barranquilla is inconsistent with Article XI:1 of the
GATT 1994................................................................................................................................ 16
(e) The port of entry restrictions are applied in a manner that is inconsistent with
Article XIII:1 of the GATT 1994 .............................................................................................. 16
(f) Colombia's suspension of the transit regime for textiles from Panama is inconsistent
with Article V:2 of the GATT 1994 .......................................................................................... 16
(g) The port of entry restrictions that accord treatment less favourable to goods in transit
through Panama than that which they would have been accorded had they been
transported from their place of origin without going through Panama are inconsistent
with Article V:6 of the GATT 1994 .......................................................................................... 17
(h) The requirement to present an advance declaration and pay customs duties and sales
tax for textiles originating in Panama is inconsistent with Article I:1 of the
GATT 1994................................................................................................................................ 17
4. Panama's request for findings and recommendations......................................................... 18
B. EXECUTIVE SUMMARY OF THE FIRST WRITTEN SUBMISSION OF COLOMBIA ............................ 18
1. Request for preliminary ruling.............................................................................................. 18
2. Panama's claims with respect to the indicative price measure are to be rejected ............ 19
(a) Panama's claims under the Customs Valuation Agreement are to be rejected as
indicative prices are not a customs valuation method but only a customs control and
verification mechanism............................................................................................................. 19
(b) Panama's claim of discrimination under GATT Article III:2 is to be rejected as it
lacks a factual and legal basis ................................................................................................... 20
3. Panama's claims in respect of the port of entry measure are to be rejected ..................... 21
(a) Panama's claim under GATT Article XI is without merit as the port of entry measure
does not constitute a prohibited quantitative restriction ........................................................... 21
(b) Panama's claim that the port of entry measure is applied in a manner that is
inconsistent with GATT Article XIII:1 is to be rejected because Article XIII:1 does
not apply to the situation at hand .............................................................................................. 21
(c) Panama's claim that the port of entry measure is inconsistent with the requirements of
GATT Articles V.2 and V.6 lacks a factual basis as the port measure does not apply
to goods in transit...................................................................................................................... 22
(d) Panama's claim that the requirement to present an advance import declaration and pay
customs duties and sales taxes for textiles originating in Panama violates Colombia's
MFN obligation under GATT Article I:1 lacks merit............................................................... 22
4. Colombia's port of entry measure is in any case justified under the general
defence of GATT Article XX(d)............................................................................................. 23
(a) The port measure is provisionally justified under paragraph (d) of GATT Article XX ........... 24
(i) The port of entry measure concerns a very important set of interests or values ...................... 24
(ii) The port of entry measure is apt to contribute in a material way to the achievement of
the objective .............................................................................................................................. 24
(iii) The port of entry measure does not have a significant adverse impact on legitimate
trade .......................................................................................................................................... 25
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(iv) There were no reasonably available alternative measures....................................................... 25

(b) The port of entry measure complies with the chapeau of Article XX ...................................... 25
5. Request for findings................................................................................................................ 26
C. EXECUTIVE SUMMARY OF THE REBUTTAL SUBMISSION OF PANAMA ....................................... 26
1. Legal argument ....................................................................................................................... 26
(a) Colombia has failed to demonstrate that it uses indicative prices as a customs control
mechanism and not for customs valuation purposes................................................................. 26
(b) Colombia has failed to demonstrate that the correction of the import declaration and
the payment of the customs taxes provided for in Article 128.5 e) of Decree No. 2685
are a guarantee mechanism within the meaning of Colombian Law and Article 13 of
the Customs Valuation Agreement............................................................................................ 28
(c) Colombia has failed to demonstrate that its use of indicative prices is an action taken
pursuant to Article 17 of the Customs Valuation Agreement and the Decision
Regarding Cases Where Customs Administrations Have Reasons to Doubt the Truth
or Accuracy of the Declared Value........................................................................................... 29
(d) Colombia has failed to rebut Panama's argument that the indicative prices are a
continuation of minimum customs values ................................................................................ 30
(e) Colombia has failed to demonstrate that it does not use indicative prices for the
determination of the base for the sales tax for imported products in a manner
inconsistent with Article III:2 and Article III:4 of the GATT 1994 .......................................... 30
(f) Colombia has failed to rebut Panama's claim that the port of entry restrictions are
inconsistent with Article XI:1 of the GATT 1994 ..................................................................... 32
(i) The port of entry restrictions do not have the characteristics of a genuine customs
enforcement measure ................................................................................................................ 32
(ii) Colombia's interpretation that Article XI:1 prohibits only measures that impose a
restriction on the quantity of imports is not supported by the text of Article XI:1 or the
jurisprudence ............................................................................................................................ 32
(g) Colombia has failed to rebut Panama's claim that the ports of entry restrictions are
inconsistent with Article XIII:1 of the GATT 1994 .................................................................. 33
(h) If the Panel were to find that Article XI:1 is not applicable, then Panama requests that
the Panel find that the discriminatory features of the port of entry measures are in
violation of Article I:1 of the GATT 1994................................................................................. 33
(i) Colombia has failed to rebut Panama's claim that it imposes limitations on freedom of
transit in a manner inconsistent with Article V:2 of the GATT 1994........................................ 34
(j) Colombia has failed to rebut Panama's claim that it accords treatment less favourable
to goods that have been in transit through Panama in a manner inconsistent with its
obligations under Article V:6 of the GATT 1994...................................................................... 34
(k) Colombia has failed to rebut Panama's claim that the requirements to present an
advance declaration and pay customs duties for textiles originating in Panama are
inconsistent with Article I:1 of the GATT 1994........................................................................ 35
(l) Colombia has failed to demonstrate that its port of entry restrictions are justified
under Article XX(d) of the GATT 1994 .................................................................................... 36
(i) The ports of entry restrictions are not provisionally justified under paragraph (d) of
Article XX.................................................................................................................................. 36
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(ii) The ports of entry restrictions do not meet the requirements set out in the chapeau to
Article XX.................................................................................................................................. 38
D. EXECUTIVE SUMMARY OF THE REBUTTAL SUBMISSION OF COLOMBIA .................................... 39
1. Claims relating to Colombia's indicative pricing mechanism as a customs
valuation method under the Customs Valuation Agreement................................................ 39
(a) Panama fails to meet its burden of proof .................................................................................. 39
(b) A proper interpretation of the challenged provisions concerning indicative prices
shows that the indicative prices are not used for customs valuation purposes ......................... 40
2. Panama's claims on indicative prices under GATT Article III .......................................... 41
(a) Panama's claim under GATT Article III:2 is flawed ................................................................ 41
(b) Panama's unsubstantiated new claim under GATT Article III:4 is to be rejected .................... 41
3. Panama's claims in respect of the ports of entry measure .................................................. 42
(a) Panama's claim under GATT Article XI is without merit as the port of entry measure
does not constitute a prohibited quantitative restriction. .......................................................... 42
(b) The Panel should reject Panama's claim that the port of entry measure is applied in a
manner that is inconsistent with GATT Article XIII:1 because Article XIII:1 does not
apply to the situation at hand .................................................................................................... 43
(c) Panama's new claim of inconsistency of the ports measure with GATT Article I:1 is
to be rejected ............................................................................................................................. 43
(d) Panama's claim that the port measure is inconsistent with the requirements of
GATT Articles V:2 and V:6 lacks a factual and legal basis ..................................................... 43
(e) The requirement to present an advance import declaration and pay customs duties and
sales taxes for textiles originating in Panama does not violate Colombia's MFN
obligation under GATT Article I:1 ........................................................................................... 44
4. Colombia's general defence under GATT Article XX(d).................................................... 44
(a) The port measure is provisionally justified under paragraph (d) of GATT Article XX ........... 45
(b) The ports measure complies with the chapeau of Article XX .................................................. 47
5. Request for findings................................................................................................................ 48
V. ARGUMENTS OF THE THIRD PARTIES ........................................................................ 48
A. ECUADOR .................................................................................................................................. 48
B. EUROPEAN COMMUNITIES ........................................................................................................ 49
1. Customs valuation methods based on indicative prices ...................................................... 49
(a) The measure at issue ................................................................................................................. 49
(b) Indicative Prices and the Customs Valuation Agreement ......................................................... 50
(c) Indicative Prices and Article III:2 of the GATT 1994 ............................................................... 51
2. Restrictions on ports of entry................................................................................................. 51
(a) Restrictions on the number of ports available for imports of textiles from Panama:
Article XI of the GATT 1994 .................................................................................................... 51
(b) Requirement to present an advance declaration to pay customs duties and sales tax for
textiles originating in Panama: Article I of the GATT 1994 ..................................................... 52
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(c) Restrictions on the transit regime for textiles from Panama: Article V:2 and V:6 of
the GATT 1994.......................................................................................................................... 53
(d) Justification of the ports of entry restrictions based on Article XX(d) of the
GATT 1994................................................................................................................................ 53
C. GUATEMALA ............................................................................................................................. 53
D. HONDURAS ................................................................................................................................ 57
E. SEPARATE CUSTOMS TERRITORY OF TAIWAN, PENGHU, KINMEN AND MATSU ...................... 58
1. Introduction............................................................................................................................. 58
2. Claims relating to the indicative prices used by Colombia ................................................. 58
3. Colombia's measures restricting ports of entry for certain Panama products
cannot be justified under the GATT 1994 ............................................................................. 58
4. Members should resolve disputes in good faith.................................................................... 59
F. UNITED STATES......................................................................................................................... 60
VI. INTERIM REVIEW............................................................................................................... 61
A. PANAMA'S COMMENTS ON THE INTERIM REPORT...................................................................... 61
1. Descriptive part....................................................................................................................... 61
2. Panama's claims under the Customs Valuation Agreement ................................................. 62
3. Panama's claim under Article III:2 of the GATT 1994........................................................ 62
4. Panama's claim under Article XI:1 of the GATT 1994........................................................ 63
5. Colombia's defence under Article XX(d) of the GATT 1994............................................... 63
6. Miscellaneous .......................................................................................................................... 65
A. COLOMBIA'S COMMENTS ON THE INTERIM REPORT .................................................................. 65
1. Descriptive part....................................................................................................................... 65
2. Panama's claims under the Customs Valuation Agreement ................................................. 65
3. Panama's claim under Article III:2 of the GATT 1994........................................................ 66
4. Panama's claim under Article XI:1 of the GATT 1994........................................................ 66
5. Panama's claim under Article I:1 of the GATT 1994........................................................... 67
6. Panama's claim under Article V:6 of the GATT 1994 ......................................................... 67
7. Colombia's defence under Article XX(d) of the GATT 1994............................................... 67
VII. FINDINGS ............................................................................................................................... 69
A. PRELIMINARY ISSUES ................................................................................................................ 69
1. Colombia's request for a preliminary ruling........................................................................ 69
(a) Background............................................................................................................................... 69
(b) Main arguments of the parties................................................................................................... 69
(i) Timing of the preliminary ruling request.................................................................................. 69
(ii) Scope of the measures............................................................................................................... 70
(iii) Type of claims: "as such" and/or "as applied" ......................................................................... 71
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(c) Consideration by the Panel ....................................................................................................... 71

(i) General considerations............................................................................................................. 71
(ii) Timing of the preliminary ruling request.................................................................................. 72
(iii) Adequacy to Article 6.2 requirements....................................................................................... 73
Identification of the specific measures at issue concerning the use of indicative prices ......................... 74
Panama's claims "as applied" .................................................................................................................. 77
2. Other issues concerning the scope of the matter subject to dispute ................................... 79
(a) Measures potentially outside the Panel's mandate .................................................................... 79
(b) Admissibility of Panama's second claim under Article I:1 of the GATT 1994 ......................... 81
B. WHETHER COLOMBIA'S USE OF INDICATIVE PRICES IS INCONSISTENT WITH
ARTICLES 1, 2, 3, 5, 6 AND 7.2(B), (F) AND (G) OF THE CUSTOMS VALUATION
AGREEMENT ............................................................................................................................... 82
1. Main arguments of the parties............................................................................................... 82
2. Consideration by the Panel .................................................................................................... 86
(a) Legislation authorizing the use of indicative prices.................................................................. 86
(b) Order of analysis ....................................................................................................................... 87
(c) The concept of customs valuation within the Customs Valuation Agreement.......................... 88
(d) Whether the use of indicative prices by Colombia constitutes customs valuation ................... 89
(i) The legal nature of the payment under Article 128.5 e) ........................................................... 90
Arguments of the parties ......................................................................................................................... 90
The Panel's approach to examining Colombia's domestic law – burden of proof ................................... 91
Analysis of the "very terms" of the challenged provisions...................................................................... 93
Contextual analysis of the challenged provisions within Colombian domestic legislation ..................... 93
Analysis of Article 128.5 e) of Decree No. 2685 and Article 172.7 of
Resolution No. 4240 in the context of other paragraphs of the same and other relevant
provisions......................................................................................................................................... 94
The placement of the challenged provisions within Colombia's Customs Code and
Resolution No. 4240 ........................................................................................................................ 96
Analysis of the challenged provisions in the context of Andean Community law .......................... 98
Analysis of the specific cases of application of indicative prices............................................................ 99
(ii) Conclusion .............................................................................................................................. 102
(e) Whether the use of indicative prices for customs valuation purposes is inconsistent
with Articles 1, 2, 3, 5, 6 and 7.2(b), (f) and (g) of the Customs Valuation Agreement ......... 102
(i) Main arguments of the parties ................................................................................................ 102
(ii) The text of Articles 1, 2, 3, 5, 6 and 7.2(b), (f) and (g) of the Customs Valuation
Agreement ............................................................................................................................... 103
(iii) The primacy of the transaction value and sequential nature of the valuation methods
provided in Articles 1 to 7 of the Customs Valuation Agreement ........................................... 107
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(iv) Whether the use of indicative prices constitute any of the valuation methods provided
for in Articles 1, 2, 3, 5 and 6 of the Customs Valuation Agreement...................................... 107
(v) Whether the use of indicative prices is consistent with the obligation to conduct
customs valuation according to the sequential methods laid down in Articles 1, 2, 3, 5
and 6 of the Customs Valuation Agreement............................................................................ 108
(vi) Whether the use of indicative prices is inconsistent with Article 7(b), (f) and (g) of the
Customs Valuation Agreement................................................................................................ 109
(f) Conclusion .............................................................................................................................. 110
C. WHETHER COLOMBIA'S USE OF INDICATIVE PRICES TO DETERMINE THE VALUE OF
IMPORTED TEXTILES, FOOTWEAR AND OTHER PRODUCTS FOR THE PURPOSE OF
LEVYING SALES TAX IS INCONSISTENT WITH ARTICLE III:2, FIRST SENTENCE OF THE
GATT 1994.............................................................................................................................. 111
1. Main arguments of the parties............................................................................................. 111
2. Consideration by the Panel .................................................................................................. 112
(a) Legislation applicable to the calculation of sales tax for imports subject to indicative
prices....................................................................................................................................... 112
(b) The Panel's approach to Panama's claim under Article III:2, first sentence ........................... 113
(c) The interaction of Articles 447, 453, 459 and 468 of Decree 624 in connection with
Article 128.5 e) of Decree No. 2685 and Article 172.7 of Resolution No. 4240.................... 114
(d) The obligations in Article III:2, first sentence ........................................................................ 115
(e) Whether subject imports and domestic products are like products......................................... 116
(f) Whether subject imports are taxed in excess .......................................................................... 117
(g) Conclusion .............................................................................................................................. 120
D. WHETHER COLOMBIA'S USE OF INDICATIVE PRICES TO DETERMINE THE VALUE OF
IMPORTED TEXTILES, FOOTWEAR AND OTHER PRODUCTS FOR THE PURPOSE OF
LEVYING SALES TAX IS INCONSISTENT WITH ARTICLE III:4 OF THE GATT 1994.................... 121
1. Arguments of the parties ...................................................................................................... 121

E. WHETHER THE RESTRICTION ON PORTS OF ENTRY APPLICABLE TO TEXTILE, APPAREL
AND FOOTWEAR ARRIVING FROM PANAMA IS INCONSISTENT WITH ARTICLE XI:1 OF
THE GATT 1994....................................................................................................................... 122

(a) Legislation authorizing restrictions on ports of entry ............................................................. 124
(b) The text of Article XI of the GATT 1947................................................................................ 126
(c) The ports of entry measure as an "other measure".................................................................. 127
(d) The ports of entry measure as a "restriction on importation" ................................................. 128
(i) The concept of a restriction on importation under Article XI:1 ............................................. 128
(ii) Colombia's contextual arguments on interpretation of Article XI:1 of the GATT 1994 ......... 132
(iii) De jure versus de facto restrictions on importation ............................................................... 134
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(iv) Whether the ports of entry measure affects competitive opportunities ................................... 137
(e) Conclusion .............................................................................................................................. 144
F. WHETHER THE RESTRICTION ON PORTS OF ENTRY APPLICABLE TO TEXTILE, APPAREL
AND FOOTWEAR ARRIVING FROM PANAMA IS INCONSISTENT WITH ARTICLE XIII:1 OF
THE GATT 1994....................................................................................................................... 144

(b) The text of Article XIII:1 of the GATT 1994 .......................................................................... 146
(c) The Panel's approach to examining Panama's claim under Article XIII:1 of the
GATT 1994.............................................................................................................................. 146
G. WHETHER THE RESTRICTION ON PORTS OF ENTRY APPLICABLE TO TEXTILE, APPAREL
AND FOOTWEAR ARRIVING FROM PANAMA IS INCONSISTENT WITH ARTICLE I:1 OF
THE GATT 1994....................................................................................................................... 148

(b) Panel's approach to examining Panama's second claim under Article I:1 of the
GATT 1994.............................................................................................................................. 149
H. WHETHER THE ADVANCE DECLARATION AND LEGALIZATION DECLARATION
REQUIREMENTS APPLICABLE TO TEXTILES, APPAREL AND FOOTWEAR IMPORTS
ARRIVING FROM PANAMA ARE INCONSISTENT WITH ARTICLE I:1 OF THE GATT 1994 .......... 150

(a) Legislation related to the advance declaration and legalization requirements........................ 152
(b) The text of Article I of the GATT 1994................................................................................... 155
(c) Panama's right to bring a claim under Article I of the GATT 1994......................................... 155
(d) Whether Colombia confers an advantage of the type covered by Article I:1 of the
GATT 1994.............................................................................................................................. 157
(e) Whether like products from other Members are granted an advantage within the
meaning of Article I:1 of the GATT 1994 ............................................................................... 162
(f) Whether Colombia confers an advantage that is not extended "immediately and
unconditionally" to imports from Panama .............................................................................. 164
(g) Conclusion .............................................................................................................................. 166
I. WHETHER THE PORTS OF ENTRY MEASURE DENIES FREEDOM OF TRANSIT TO
TEXTILES, APPAREL AND FOOTWEAR ARRIVING FROM PANAMA IN INTERNATIONAL
TRANSIT IN CONTRAVENTION OF ARTICLE V:2 OF THE GATT 1994....................................... 166

(a) Legislation related to Colombia's international transit regime ............................................... 167
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(b) Article V of the GATT 1994.................................................................................................... 171

(c) Interpretation of Article V:2 of the GATT 1994 ..................................................................... 172
(i) The scope of the concept of traffic in transit in Article V:2 .................................................... 172
(ii) The substantive obligations in Article V:2, first and second sentences .................................. 174
Article V:2, first sentence...................................................................................................................... 174
Article V:2, second sentence ................................................................................................................. 175
(iii) Whether the ports of entry measure violates Article V:2 of the GATT 1994 .......................... 175
Whether the ports of entry measure is inconsistent with Article V:2, first sentence ............................. 175
Whether the ports of entry measure is inconsistent with Article V:2, second sentence ........................ 181
(iv) Conclusion .............................................................................................................................. 182
J. WHETHER THE RESTRICTION ON PORTS OF ENTRY APPLICABLE TO TEXTILES, APPAREL
AND FOOTWEAR ARRIVING FROM PANAMA IS INCONSISTENT WITH ARTICLE V:6 OF
THE GATT 1994....................................................................................................................... 182

(a) Legislation related to Colombia's international transit regime ............................................... 183
(b) Article V of the GATT 1994.................................................................................................... 184
(c) Interpretation of Article V:6 of the GATT 1994 ..................................................................... 184
(d) The scope of application of the MFN obligation in Article V:6 of the GATT 1994 ............... 184
(e) The substantive obligations in Article V:6 of the GATT 1994................................................ 192
(f) Whether the ports of entry measure complies with the obligations in Article V:6 of
the GATT 1994........................................................................................................................ 193
(i) Conclusion .............................................................................................................................. 193
K. COLOMBIA'S DEFENCE UNDER ARTICLE XX(D) OF THE GATT 1994 TO PANAMA'S
CLAIMS AGAINST THE PORTS OF ENTRY MEASURE .................................................................. 193

(a) Legislation applicable to Colombia's Article XX(d) defence ................................................. 197
(b) The measure relevant for purpose of analysis of Colombia's Article XX(d) defence............. 198
(c) Article XX of the GATT 1994................................................................................................. 199
(d) Order of analysis under Article XX(d) ................................................................................... 199
(e) Whether the ports of entry measure is necessary to secure compliance with
Colombian laws and regulations as provided in Article XX(d) of the GATT 1994 ................ 200
(i) First element: Whether the ports of entry measure has been "designed" to secure
compliance with Colombian laws and regulations that are not themselves WTO-
inconsistent ............................................................................................................................. 200
Identification of Colombian laws and regulations................................................................................. 200
Whether the laws or regulations are not themselves WTO-inconsistent ............................................... 204
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Whether the ports of entry measure is designed to secure compliance with Colombian laws or
regulations which are not themselves WTO-inconsistent ..................................................................... 205
(ii) Second element: Whether the ports of entry measure is "necessary" to secure
compliance with Colombian customs enforcement laws and regulations .............................. 209
The relative importance of the common interests or values that the laws or regulations to be
enforced are intended to protect ............................................................................................................ 210
The extent to which the measure contributes to the realization of the end pursued, the securing
of compliance with the laws or regulations at issue .............................................................................. 215
The restrictive impact of the measure ................................................................................................... 224
Preliminary conclusions on whether the ports of entry measure is provisionally justified as
necessary under Article XX(d).............................................................................................................. 231
(iii) Conclusion .............................................................................................................................. 233
VIII. CONCLUSIONS AND RECOMMENDATIONS.............................................................. 234
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TABLE OF WTO CASES CITED IN THIS REPORT
Short Title Full Case Title and Citation

Argentina – Footwear (EC) Appellate Body Report, Argentina – Safeguard Measures on Imports of
Footwear, WT/DS121/AB/R, adopted 12 January 2000, DSR 2000:I, 515
Argentina – Footwear (EC) Panel Report, Argentina – Safeguard Measures on Imports of Footwear,
WT/DS121/R, adopted 12 January 2000, as modified by Appellate Body Report,
WT/DS121/AB/R, DSR 2000:II, 575
Argentina – Hides and Leather Panel Report, Argentina – Measures Affecting the Export of Bovine Hides and
Import of Finished Leather, WT/DS155/R and Corr.1, adopted 16 February 2001,
DSR 2001:V, 1779
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of Salmon,
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327
Australia – Salmon Panel Report, Australia – Measures Affecting Importation of Salmon,
WT/DS18/R and Corr.1, adopted 6 November 1998, as modified by Appellate
Body Report, WT/DS18/AB/R, DSR 1998:VIII, 3407
Brazil – Desiccated Coconut Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut,
WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, 167
Brazil – Desiccated Coconut Panel Report, Brazil – Measures Affecting Desiccated Coconut, WT/DS22/R,
adopted 20 March 1997, upheld by Appellate Body Report, WT/DS22/AB/R,
DSR 1997:I, 189
Brazil – Retreaded Tyres Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres,
WT/DS332/AB/R, adopted 17 December 2007
Brazil – Retreaded Tyres Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres,
WT/DS332/R, adopted 17 December 2007, as modified by Appellate Body
Report, WT/DS332/AB/R
Canada – Aircraft Appellate Body Report, Canada – Measures Affecting the Export of Civilian
Aircraft, WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, 1377
Canada – Aircraft Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft,
WT/DS70/R, adopted 20 August 1999, upheld by Appellate Body Report,
WT/DS70/AB/R, DSR 1999:IV, 1443
Canada – Autos Appellate Body Report, Canada – Certain Measures Affecting the Automotive
Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000,
DSR 2000:VI, 2985
Canada – Autos Panel Report, Canada – Certain Measures Affecting the Automotive Industry,
WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by Appellate
Body Report, WT/DS139/AB/R, WT/DS142/AB/R, DSR 2000:VII, 3043
Canada – Dairy Appellate Body Report, Canada – Measures Affecting the Importation of Milk
(Article 21.5 – New Zealand and the Exportation of Dairy Products – Second Recourse to Article 21.5 of the
and US II) DSU by New Zealand and the United States, WT/DS103/AB/RW2,
WT/DS113/AB/RW2, adopted 17 January 2003, DSR 2003:I, 213
Canada – Dairy Panel Report, Canada – Measures Affecting the Importation of Milk and the
(Article 21.5 – New Zealand Exportation of Dairy Products – Second Recourse to Article 21.5 of the DSU by
and US II) New Zealand and the United States, WT/DS103/RW2, WT/DS113/RW2, adopted
17 January 2003, as modified by Appellate Body Report, WT/DS103/AB/RW2,
WT/DS113/AB/RW2, DSR 2003:I, 255
Canada – Periodicals Appellate Body Report, Canada – Certain Measures Concerning Periodicals,
WT/DS31/AB/R, adopted 30 July 1997, DSR 1997:I, 449
WT/DS366/R
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Canada – Periodicals Panel Report, Canada – Certain Measures Concerning Periodicals, WT/DS31/R
and Corr.1, adopted 30 July 1997, as modified by Appellate Body Report,
WT/DS31/AB/R, DSR 1997:I, 481
Canada – Wheat Exports and Appellate Body Report, Canada – Measures Relating to Exports of Wheat and
Grain Imports Treatment of Imported Grain, WT/DS276/AB/R, adopted 27 September 2004,
DSR 2004:VI, 2739
Canada – Wheat Exports and Panel Report, Canada – Measures Relating to Exports of Wheat and Treatment of
Grain Imports Imported Grain, WT/DS276/R, adopted 27 September 2004, upheld by Appellate
Body Report, WT/DS276/AB/R, DSR 2004:VI, 2817
Chile – Alcoholic Beverages Appellate Body Report, Chile – Taxes on Alcoholic Beverages, WT/DS87/AB/R,
WT/DS110/AB/R, adopted 12 January 2000, DSR 2000:I, 281
Chile – Alcoholic Beverages Panel Report, Chile – Taxes on Alcoholic Beverages, WT/DS87/R, WT/DS110/R,
adopted 12 January 2000, as modified by Appellate Body Report,
WT/DS87/AB/R, WT/DS110/AB/R, DSR 2000:I, 303
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures
Relating to Certain Agricultural Products, WT/DS207/AB/R, adopted 23 October
2002, DSR 2002:VIII, 3045, and Corr.1
Chile – Price Band System Panel Report, Chile – Price Band System and Safeguard Measures Relating to
Certain Agricultural Products, WT/DS207/R, adopted 23 October 2002, as
modified by Appellate Body Report, WT/DS207AB/R, DSR 2002:VIII, 3127
Chile – Price Band System Appellate Body Report, Chile – Price Band System and Safeguard Measures
(Article 21.5 – Argentina) Relating to Certain Agricultural Products – Recourse to Article 21.5 of the DSU
by Argentina, WT/DS207/AB/RW, adopted 22 May 2007
Chile – Price Band System Panel Report, Chile – Price Band System and Safeguard Measures Relating to
(Article 21.5 – Argentina) Certain Agricultural Products – Recourse to Article 21.5 of the DSU by
Argentina, WT/DS207/RW and Corr.1, adopted 22 May 2007, upheld by
Appellate Body Report, WT/DS207/AB/RW
China – Auto Parts Panel Reports, China – Measures Affecting Imports of Automobile Parts,
WT/DS339/R, WT/DS340/R, WT/DS342/R and Add.1 and Add.2, adopted
12 January 2009, as upheld (WT/DS339/R) , and as modified (WT/DS340/R,
WT/DS342/R) by Appellate Body Reports WT/DS339/AB/R,
WT/DS340/AB/R, WT/DS342/AB/R
Dominican Republic – Import Appellate Body Report, Dominican Republic – Measures Affecting the
and Sale of Cigarettes Importation and Internal Sale of Cigarettes, WT/DS302/AB/R, adopted 19 May
2005, DSR 2005:XV, 7367
Dominican Republic – Import Panel Report, Dominican Republic – Measures Affecting the Importation and
and Sale of Cigarettes Internal Sale of Cigarettes, WT/DS302/R, adopted 19 May 2005, as modified by
Appellate Body Report, WT/DS302/AB/R, DSR 2005:XV, 7425
EC – Bananas III Appellate Body Report, European Communities – Regime for the Importation,
Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September 1997,
DSR 1997:II, 591
EC – Bananas III (Ecuador) Panel Report, European Communities – Regime for the Importation, Sale and
Distribution of Bananas, Complaint by Ecuador, WT/DS27/R/ECU, adopted
25 September 1997, as modified by Appellate Body Report, WT/DS27/AB/R,
DSR 1997:III, 1085
EC – Bananas III (Guatemala Panel Report, European Communities – Regime for the Importation, Sale and
and Honduras) Distribution of Bananas, Complaint by Guatemala and Honduras,
WT/DS27/R/GTM, WT/DS27/R/HND, adopted 25 September 1997, as modified
by Appellate Body Report, WT/DS27/AB/R, DSR 1997:II, 695
WT/DS366/R
Page xiii

EC – Bananas III (Mexico) Panel Report, European Communities – Regime for the Importation, Sale and
Distribution of Bananas, Complaint by Mexico, WT/DS27/R/MEX, adopted
25 September 1997, as modified by Appellate Body Report, WT/DS27/AB/R,
DSR 1997:II, 803
EC – Bananas III (US) Panel Report, European Communities – Regime for the Importation, Sale and
Distribution of Bananas, Complaint by the United States, WT/DS27/R/USA,
adopted 25 September 1997, as modified by Appellate Body Report,
WT/DS27/AB/R, DSR 1997:II, 943
EC – Bananas III Appellate Body Reports, European Communities – Regime for the Importation,
(Article 21.5 – Sale and Distribution of Bananas – Second Recourse to Article 21.5 of the DSU
Ecuador II / US) by Ecuador / Recourse to Article 21.5 of the DSU by the United States,
WT/DS27/AB/RW2/ECU / WT/DS27/AB/RW/USA, adopted 11 December
2008,
EC – Bananas III Panel Report, European Communities – Regime for the Importation, Sale and
(Article 21.5 – Ecuador II) Distribution of Bananas – Second Recourse to Article 21.5 of the DSU by
Ecuador, WT/DS27/RW2/ECU, adopted 11 December 2008, as modified by
Appellate Body Reports, WT/DS27/AB/RW2/ECU / WT/DS27/AB/RW/USA
EC – Bananas III Panel Report, European Communities – Regime for the Importation, Sale and
(Article 21.5 – US) Distribution of Bananas – Recourse to Article 21.5 of the DSU by the United
States, WT/DS27/RW/USA and Corr.1, adopted 11 December 2008, as modified
by Appellate Body Reports, WT/DS27/AB/RW2/ECU / WT/DS27/AB/RW/USA
EC – Computer Equipment Appellate Body Report, European Communities – Customs Classification of
Certain Computer Equipment, WT/DS62/AB/R, WT/DS67/AB/R,
WT/DS68/AB/R, adopted 22 June 1998, DSR 1998:V, 1851
EC – Computer Equipment Panel Report, European Communities – Customs Classification of Certain
Computer Equipment, WT/DS62/R, WT/DS67/R, WT/DS68/R, adopted 22 June
1998, as modified by Appellate Body Report, WT/DS62/AB/R, WT/DS67/AB/R,
WT/DS68/AB/R, DSR 1998:V, 1891
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products
(Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998,
DSR 1998:I, 135
EC – Hormones (Canada) Panel Report, EC Measures Concerning Meat and Meat Products (Hormones),
Complaint by Canada, WT/DS48/R/CAN, adopted 13 February 1998, as
modified by Appellate Body Report, WT/DS26/AB/R, WT/DS48/AB/R,
DSR 1998:II, 235
EC – Hormones (US) Panel Report, EC Measures Concerning Meat and Meat Products (Hormones),
Complaint by the United States, WT/DS26/R/USA, adopted 13 February 1998, as
modified by Appellate Body Report, WT/DS26/AB/R, WT/DS48/AB/R,
DSR 1998:III, 699
EC – Trademarks and Panel Report, European Communities – Protection of Trademarks and
Geographical Indications Geographical Indications for Agricultural Products and Foodstuffs, Complaint
(US) by the United States, WT/DS174/R, adopted 20 April 2005, DSR 2005:VIII,
3499
Guatemala – Cement I Appellate Body Report, Guatemala – Anti-Dumping Investigation Regarding
Portland Cement from Mexico, WT/DS60/AB/R, adopted 25 November 1998,
DSR 1998:IX, 3767
Guatemala – Cement I Panel Report, Guatemala – Anti-Dumping Investigation Regarding Portland
Cement from Mexico, WT/DS60/R, adopted 25 November 1998, as modified by
Appellate Body Report, WT/DS60/AB/R, DSR 1998:IX, 3797
India – Autos Appellate Body Report, India – Measures Affecting the Automotive Sector,
WT/DS146/AB/R, WT/DS175/AB/R, adopted 5 April 2002, DSR 2002:V, 1821
WT/DS366/R
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India – Autos Panel Report, India – Measures Affecting the Automotive Sector, WT/DS146/R,
WT/DS175/R and Corr.1, adopted 5 April 2002, DSR 2002:V, 1827
India – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical and
Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998,
DSR 1998:I, 9
India – Patents (US) Panel Report, India – Patent Protection for Pharmaceutical and Agricultural
Chemical Products, Complaint by the United States, WT/DS50/R, adopted
16 January 1998, as modified by Appellate Body Report, WT/DS50/AB/R,
DSR 1998:I, 41
India – Quantitative Appellate Body Report, India – Quantitative Restrictions on Imports of
Restrictions Agricultural, Textile and Industrial Products, WT/DS90/AB/R, adopted
22 September 1999, DSR 1999:IV, 1763
India – Quantitative Panel Report, India – Quantitative Restrictions on Imports of Agricultural, Textile
Restrictions and Industrial Products, WT/DS90/R, adopted 22 September 1999, upheld by
Appellate Body Report, WT/DS90/AB/R, DSR 1999:V, 1799
Indonesia – Autos Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry,
WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R and Corr.1 and 2, adopted
23 July 1998, and Corr. 3 and 4, DSR 1998:VI, 2201
Japan – Alcoholic Beverages II Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R,
WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97
Japan – Alcoholic Beverages II Panel Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/R, WT/DS10/R,
WT/DS11/R, adopted 1 November 1996, as modified by Appellate Body Report,
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, DSR 1996:I, 125
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation of Apples,
WT/DS245/AB/R, adopted 10 December 2003, DSR 2003:IX, 4391
Japan – Apples Panel Report, Japan – Measures Affecting the Importation of Apples,
WT/DS245/R, adopted 10 December 2003, upheld by Appellate Body Report,
WT/DS245/AB/R, DSR 2003:IX, 4481
Japan – Film Panel Report, Japan – Measures Affecting Consumer Photographic Film and
Paper, WT/DS44/R, adopted 22 April 1998, DSR 1998:IV, 1179
Korea – Alcoholic Beverages Appellate Body Report, Korea – Taxes on Alcoholic Beverages, WT/DS75/AB/R,
WT/DS84/AB/R, adopted 17 February 1999, DSR 1999:I, 3
Korea – Alcoholic Beverages Panel Report, Korea – Taxes on Alcoholic Beverages, WT/DS75/R, WT/DS84/R,
adopted 17 February 1999, as modified by Appellate Body Report,
WT/DS75/AB/R, WT/DS84/AB/R, DSR 1999:I, 44
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports
of Certain Dairy Products, WT/DS98/AB/R, adopted 12 January 2000,
DSR 2000:I, 3
Korea – Dairy Panel Report, Korea – Definitive Safeguard Measure on Imports of Certain Dairy
Products, WT/DS98/R and Corr.1, adopted 12 January 2000, as modified by
Appellate Body Report, WT/DS98/AB/R, DSR 2000:I, 49
Korea – Various Measures on Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled
Beef and Frozen Beef, WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001,
DSR 2001:I, 5
Korea – Various Measures on Panel Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen
Beef Beef, WT/DS161/R, WT/DS169/R, adopted 10 January 2001, as modified by
Appellate Body Report, WT/DS161/AB/R, WT/DS169/AB/R, DSR 2001:I, 59
WT/DS366/R
Page xv

Mexico – Anti-Dumping Appellate Body Report, Mexico – Definitive Anti-Dumping Measures on Beef
Measures on Rice and Rice, Complaint with Respect to Rice, WT/DS295/AB/R, adopted
20 December 2005, DSR 2005:XXII, 10853
Mexico – Anti-Dumping Panel Report, Mexico – Definitive Anti-Dumping Measures on Beef and Rice,
Measures on Rice Complaint with Respect to Rice, WT/DS295/R, adopted 20 December 2005,
as modified by Appellate Body Report, WT/DS295/AB/R, DSR 2005:XXIII,
11007
Mexico – Corn Syrup Appellate Body Report, Mexico – Anti-Dumping Investigation of High Fructose
(Article 21.5 – US) Corn Syrup (HFCS) from the United States – Recourse to Article 21.5 of the DSU
by the United States, WT/DS132/AB/RW, adopted 21 November 2001,
DSR 2001:XIII, 6675
Mexico – Corn Syrup Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup
(Article 21.5 – US) (HFCS) from the United States – Recourse to Article 21.5 of the DSU by the
United States, WT/DS132/RW, adopted 21 November 2001, upheld by Appellate
Body Report, WT/DS132/AB/RW, DSR 2001:XIII, 6717
Thailand – H-Beams Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and
Sections of Iron or Non-Alloy Steel and H-Beams from Poland,
WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, 2701
Thailand – H-Beams Panel Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections
of Iron or Non-Alloy Steel and H-Beams from Poland, WT/DS122/R, adopted
5 April 2001, as modified by Appellate Body Report, WT/DS122/AB/R,
DSR 2001:VII, 2741
Turkey – Rice Panel Report, Turkey – Measures Affecting the Importation of Rice,
WT/DS334/R, adopted 22 October 2007
Turkey – Textiles Appellate Body Report, Turkey – Restrictions on Imports of Textile and Clothing
Products, WT/DS34/AB/R, adopted 19 November 1999, DSR 1999:VI, 2345
Turkey – Textiles Panel Report, Turkey – Restrictions on Imports of Textile and Clothing Products,
WT/DS34/R, adopted 19 November 1999, as modified by Appellate Body Report,
WT/DS34/AB/R, DSR 1999:VI, 2363
US – 1916 Act Appellate Body Report, United States – Anti-Dumping Act of 1916,
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 2000:X,
4793
US – 1916 Act (EC) Panel Report, United States – Anti-Dumping Act of 1916, Complaint by the
European Communities, WT/DS136/R and Corr.1, adopted 26 September 2000,
upheld by Appellate Body Report, WT/DS136/AB/R, WT/DS162/AB/R,
DSR 2000:X, 4593
US – 1916 Act (Japan) Panel Report, United States – Anti-Dumping Act of 1916, Complaint by Japan,
WT/DS162/R and Add.1, adopted 26 September 2000, upheld by Appellate Body
Report, WT/DS136/AB/R, WT/DS162/AB/R, DSR 2000:X, 4831
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain
Corrosion-Resistant Carbon Steel Flat Products from Germany,
WT/DS213/AB/R and Corr.1, adopted 19 December 2002, DSR 2002:IX, 3779
US – Carbon Steel Panel Report, United States – Countervailing Duties on Certain Corrosion-
Resistant Carbon Steel Flat Products from Germany, WT/DS213/R and Corr.1,
adopted 19 December 2002, as modified by Appellate Body Report,
WT/DS213/AB/R, DSR 2002:IX, 3833
US – Certain EC Products Appellate Body Report, United States – Import Measures on Certain Products
from the European Communities, WT/DS165/AB/R, adopted 10 January 2001,
DSR 2001:I, 373
WT/DS366/R
Page xvi

US – Certain EC Products Panel Report, United States – Import Measures on Certain Products from the
European Communities, WT/DS165/R and Add.1, adopted 10 January 2001, as
modified by Appellate Body Report, WT/DS165/AB/R, DSR 2001:II, 413
US – Corrosion-Resistant Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties
Steel Sunset Review on Corrosion-Resistant Carbon Steel Flat Products from Japan,
WT/DS244/AB/R, adopted 9 January 2004, DSR 2004:I, 3
US – Corrosion-Resistant Panel Report, United States – Sunset Review of Anti-Dumping Duties on
Steel Sunset Review Corrosion-Resistant Carbon Steel Flat Products from Japan, WT/DS244/R,
adopted 9 January 2004, as modified by Appellate Body Report,
WTDS244/AB/R, DSR 2004:I, 85
US – DRAMS Panel Report, United States – Anti-Dumping Duty on Dynamic Random Access
Memory Semiconductors (DRAMS) of One Megabit or Above from Korea,
WT/DS99/R, adopted 19 March 1999, DSR 1999:II, 521
US – FSC Appellate Body Report, United States – Tax Treatment for "Foreign Sales
Corporations", WT/DS108/AB/R, adopted 20 March 2000, DSR 2000:III, 1619
US – FSC Panel Report, United States – Tax Treatment for "Foreign Sales Corporations",
WT/DS108/R, adopted 20 March 2000, as modified by Appellate Body Report,
WT/DS108/AB/R, DSR 2000:IV, 1675
US – Gambling Appellate Body Report, United States – Measures Affecting the Cross-Border
Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April
2005, DSR 2005:XII, 5663, and Corr.1
US – Gambling Panel Report, United States – Measures Affecting the Cross-Border Supply of
Gambling and Betting Services, WT/DS285/R, adopted 20 April 2005, as
modified by Appellate Body Report, WT/DS285/AB/R, DSR 2005:XII, 5797
US – Gasoline Appellate Body Report, United States – Standards for Reformulated and
Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, DSR 1996:I, 3
US – Gasoline Panel Report, United States – Standards for Reformulated and Conventional
Gasoline, WT/DS2/R, adopted 20 May 1996, as modified by Appellate Body
Report, WT/DS2/AB/R, DSR 1996:I, 29
US – Oil Country Tubular Appellate Body Report, United States – Sunset Reviews of Anti-Dumping
Goods Sunset Reviews Measures on Oil Country Tubular Goods from Argentina, WT/DS268/AB/R,
adopted 17 December 2004, DSR 2004:VII, 3257
US – Oil Country Tubular Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil
Goods Sunset Reviews Country Tubular Goods from Argentina, WT/DS268/R and Corr.1, adopted
17 December 2004, as modified by Appellate Body Report, W/DS/268/AB/R,
DSR 2004:VIII, 3421
US – Section 301 Trade Act Panel Report, United States – Sections 301-310 of the Trade Act of 1974,
WT/DS152/R, adopted 27 January 2000, DSR 2000:II, 815
US – Shrimp Appellate Body Report, United States – Import Prohibition of Certain Shrimp
(Article 21.5 – Malaysia) and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia,
WT/DS58/AB/RW, adopted 21 November 2001, DSR 2001:XIII, 6481
US – Shrimp Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp
(Article 21.5 – Malaysia) Products – Recourse to Article 21.5 of the DSU by Malaysia, WT/DS58/RW,
adopted 21 November 2001, upheld by Appellate Body Report,
WT/DS58/AB/RW, DSR 2001:XIII, 6529
US – Shrimp (Thailand) / Appellate Body Report, United States – Measures Relating to Shrimp from
US – Customs Bond Directive Thailand / United States – Customs Bond Directive for Merchandise Subject to
Anti-Dumping/Countervailing Duties, WT/DS343/AB/R, WT/DS345/AB/R,
adopted 1 August 2008
WT/DS366/R
Page xvii

US – Shrimp (Thailand) Panel Report, United States – Measures Relating to Shrimp from Thailand,
WT/DS343/R, adopted 1 August 2008, as modified by Appellate Body Report,
WT/DS343/AB/R, WT/DS345/AB/R
US – Softwood Lumber IV Appellate Body Report, United States – Final Countervailing Duty Determination
with Respect to Certain Softwood Lumber from Canada, WT/DS257/AB/R,
adopted 17 February 2004, DSR 2004:II, 571
US – Softwood Lumber IV Panel Report, United States – Final Countervailing Duty Determination with
Respect to Certain Softwood Lumber from Canada, WT/DS257/R and Corr.1,
adopted 17 February 2004, as modified by Appellate Body Report,
WT/DS257/AB/R, DSR 2004:II, 641
US – Steel Safeguards Panel Reports, United States – Definitive Safeguard Measures on Imports of
Certain Steel Products, WT/DS248/R, WT/DS249/R, WT/DS251/R,
WT/DS252/R, WT/DS253/R, WT/DS254/R, WT/DS258/R, WT/DS259/R, and
Corr.1, adopted 10 December 2003, as modified by Appellate Body Report,
WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R,
WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R,
DSR 2003:VIII, 3273
US – Upland Cotton Appellate Body Report, United States – Subsidies on Upland Cotton,
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, 3
US – Upland Cotton Panel Report, United States – Subsidies on Upland Cotton, WT/DS267/R, Corr.1,
and Add.1 to Add.3, adopted 21 March 2005, as modified by Appellate Body
Report, WT/DS267/AB/R, DSR 2005:II, 299
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of Woven
Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, and
Corr.1, DSR 1997:I, 323
US – Wool Shirts and Blouses Panel Report, United States – Measure Affecting Imports of Woven Wool Shirts
and Blouses from India, WT/DS33/R, adopted 23 May 1997, upheld by Appellate
Body Report, WT/DS33/AB/R, DSR 1997:I, 343
WT/DS366/R
Page xviii
TABLE OF GATT CASES CITED IN THIS REPORT

Canada – Provincial Liquor Panel Report, Canada – Import, Distribution and Sale of Alcoholic Drinks by
Boards (EEC) Canadian Provincial Marketing Agencies, adopted 22 March 1988,
BISD 35S/37
Canada – Provincial Liquor Panel Report, Canada – Import, Distribution and Sale of Certain Alcoholic
Boards (US) Drinks by Provincial Marketing Agencies, adopted 18 February 1992,
BISD 39S/27
EEC – Animal Feed Proteins Panel Report, EEC – Measures on Animal Feed Proteins, adopted
14 March 1978, BISD 25S/49
EEC – Apples (US) Panel Report, European Economic Community – Restrictions on Imports of
Apples – Complaint by the United States, adopted 22 June 1989, BISD 36S/135
EEC – Apples I (Chile) Panel Report, EEC Restrictions on Imports of Apples from Chile, adopted
10 November 1980, BISD 27S/98
EEC – Apples II (Chile) Panel Report, EEC – Restrictions on Imports of Apples, 20 June 1994,
unadopted, DS39/R
EEC – Minimum Import Panel Report, EEC – Programme of Minimum Import Prices, Licences and
Prices Surety Deposits for Certain Processed Fruits and Vegetables, adopted
18 October 1978, BISD 25S/68
EEC – Oilseeds I Panel Report, European Economic Community – Payments and Subsidies Paid
to Processors and Producers of Oilseeds and Related Animal-Feed Proteins,
adopted 25 January 1990, BISD 37S/86
Japan – Leather II (US) Panel Report, Panel on Japanese Measures on Imports of Leather, adopted
15 May 1984, BISD 31S/94
Japan – Semi-Conductors Panel Report, Japan – Trade in Semi-Conductors, adopted 4 May 1988,
BISD 35S/116
US – Canadian Tuna Panel Report, United States – Prohibition of Imports of Tuna and Tuna
Products from Canada, adopted 22 February 1982, BISD 29S/91
US – Non-Rubber Footwear Panel Report, United States – Countervailing Duties on Non-Rubber Footwear
from Brazil, adopted 13 June 1995, BISD 42S/208
US – Tobacco Panel Report, United States Measures Affecting the Importation, Internal Sale
and Use of Tobacco, adopted 4 October 1994, BISD 41S/I/131
US – Section 337 Panel Report, United States Section 337 of the Tariff Act of 1930, adopted
7 November 1989, BISD 36S/345
US – Superfund Panel Report, United States – Taxes on Petroleum and Certain Imported
Substances, adopted 17 June 1987, BISD 34S/136
WT/DS366/R
Page 1
I. INTRODUCTION
1.1 On 12 July 2007, Panama requested consultations with Colombia pursuant to Article 4 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU"),
Article XXII:1 of the General Agreement on Tariffs and Trade 1994 ("GATT 1994") and Article 19.1
and 19.2 of the Agreement on Implementation of Article VII of the GATT 1994 ("Customs Valuation
Agreement") with respect to enacted Colombian customs regulations on the importation of certain
textiles, apparel and footwear classifiable under HS Chapters 50-64 of Colombia's Tariff Schedule
and arriving from Panama.1 Panama and Colombia held consultations on the measures on
31 July 2007. However, no mutually agreed solution was found.
1.2 On 14 September 2007, Panama requested the establishment of a panel pursuant to

Article 19.1 of the Customs Valuation Agreement, and Article 6.2 of the DSU.
1.3 At its meeting on 22 October 2007, the DSB established a panel pursuant to the request of
Panama in document WT/DS366/6, in accordance with Article 6 of the DSU.
1.4 The Panel's terms of reference are the following:
"To examine, in the light of the relevant provisions of the covered agreements cited
by Panama in document WT/DS366/6, the matter referred to the DSB by Panama in
that document, and to make such findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in those agreements."2
1.5 The parties agreed to the following composition of the Panel effective as of 8 February 2008:
Chairman: Mr Gary Horlick
Members: Mr Gonzalo Biggs

Mr Miguel Rodriguez Mendoza
1.6 China, Ecuador, the European Communities, Guatemala, Honduras, India, Chinese Taipei,
Turkey and the United States reserved their rights to participate in the Panel proceedings as third
parties.
1.7 The Panel held its first substantive meeting with the parties on 21 and 22 May 2008. The
session with the third parties was held on 22 May 2008. The second substantive meeting was held on
29 July 2008.
1.8 On 10 October 2008, the Panel issued the descriptive part of its Panel report to the parties in
both English and Spanish. The Panel issued its interim report to the parties on 4 March 2009. The
Panel issued its final report to parties on 15 April 2009.
II. FACTUAL ASPECTS
A. BACKGROUND
2.1 This dispute concerns several Colombian customs measures affecting certain textiles, apparel
and footwear classifiable under HS Chapters 50–64 of Colombia's Tariff Schedule that are exported
and re-exported from the Colon Free Zone ("CFZ") and Panama to Colombia.3 These measures
1
WT/DS366/1.
2
WT/DS366/7.
3
The CFZ, which is located at the Caribbean entrance to the Panama Canal nearest the Atlantic Ocean,
plays a central role in the re-export of goods to markets in Central and South America and the Caribbean region.
WT/DS366/R
Page 2
include the use of indicative prices in customs procedures and restrictions on ports of entry available
to subject textiles, apparel and footwear.
2.2 On 29 June 2005, Colombia's customs authority, the Dirección de Impuestos y Aduanas
Nacionales de Colombia ("DIAN"), issued the first of several resolutions establishing indicative Free
On Board ("f.o.b.") prices for a number of products, including certain textiles, apparel and footwear
classifiable under HS Chapters 50–64, and arriving from Panama, China and other countries.4 Shortly
thereafter, on 12 July 2005, Colombia introduced a measure requiring those subject textiles, apparel
and footwear originating in or arriving from Panama and China to enter only at Bogota airport or
Barranquilla seaport.5
2.3 On 20 July 2006, Panama requested consultations under the DSU with Colombia concerning
the use of indicative prices and restrictions on ports of entry.6 On 1 December 2006, Panama notified
the DSB that it had reached a Mutually Agreed Solution with Colombia in accordance with Article 3.6
of the DSU7, under which Colombia repealed the measures at issue and the parties concluded a
customs cooperation agreement, entitled the "Protocol of Procedure for Cooperation and Exchange of
Customs Information between Customs Authorities of the Republic of Panama and the Republic of
Colombia" ("Customs Cooperation Protocol").8 Under the Customs Cooperation Protocol, which
entered into force in November 20069, the parties agreed to launch a programme of cooperation and
mutual assistance for the purpose of investigating and preventing customs law infringements in both
countries. Additionally, officials agreed to hold periodic meetings to assess the effectiveness of the
Customs Cooperation Protocol.
2.4 On 26 June 2007, Colombia enacted several customs measures similar in nature to those
enacted previously in June and July of 2005, despite the earlier enactment of the Customs
Cooperation Protocol. These measures also established indicative prices for textiles, apparel and
footwear arriving into Colombia from all countries, except those with which Colombia had signed
free trade agreements, as well as port restrictions on importation of textiles, apparel and footwear
arriving from the CFZ and Panama. On 12 July 2007, Panama requested consultations with Colombia
concerning the latest application of indicative prices and restrictions on entry of textiles, apparel and
footwear arriving from Panama and the CFZ. Panama also requested consultations concerning a
requirement that importers provide an advance declaration and clear customs for all textiles, apparel
and footwear arriving from Panama prior to their arrival in Colombia.10 These measures are the
subject of the present dispute and are discussed in further detail below.
The CFZ is considered the largest duty-free zone in the Americas, and by Panamanian estimates, it generates
more than US$15 billon annually (see Panama's first written submission, para. 2).
4
See Resolution No. 05474 of 29 June 2005 (footwear); Resolution No. 08628 of 20 September 2005
(stockings and socks); Resolution No. 08743 of 22 September 2005 (textiles); and Resolution No. 11439 of
29 November 2005 (textile articles). Indicative prices were also applied to other categories of imports via the
following resolutions: Resolution No.07908 of 1 September 2005 (balls); Resolution No. 09477 of 12 October
2005 (electrical and gas domestic appliances); Resolution No. 10760 of 15 November 2005 (matches and
lighters); Resolution No. 10953 of 18 November 2005 (blankets and travelling rugs); Resolution No. 11285 of
25 November 2005 (exercise books); Resolution No. 3218 of 6 April 2006 (paper); and Resolution No. 4953 of
18 May 2006 (toys of pile fabrics, stuffed or unstuffed).
5
Resolution No. 05796 of 7 July 2005, Resolution No. 12465 of 21 December 2005 and
Resolution No. 06691 of 22 June 2006.
6
WT/DS348/1.
7
WT/DS348/10.
8
Exhibit PAN–1.
9
Exhibit PAN–1.
10
Resolution No. 7373 of 2007.
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2.5 Textiles, apparel and footwear imported from the CFZ and Panama into Colombia are
significant both in terms of volume and value.11 Colombia has reported significant ongoing problems
with under-invoicing and smuggling in relation to these products, with particular emphasis placed on
those arriving from the CFZ and Panama.12 The Colombian Unidad de Información y Analisis
Financiero (UIAF)13 has established links between money-laundering, contraband and under-
invoicing in Colombia arising from the introduction of goods into Colombia purchased in the CFZ
with illicit US currency.14 The United Nations, International Monetary Fund and other Member
countries have also assessed the relationship between the CFZ and the Colombian Black Market Peso
Exchange, a trade-based laundering mechanism.15
B. THE USE OF INDICATIVE PRICES IN RELATION TO TEXTILE, APPAREL AND FOOTWEAR
2.6 Colombia amended its Customs Statute and introduced indicative prices as a subcategory of
reference prices on 30 December 2004.16 On 29 June 2005 and subsequently, on 26 June 2007,
Colombia enacted a number of resolutions mandating the use of indicative prices with respect to
certain textile, apparel and footwear imports originating in all countries, except those with which
Colombia had signed free trade agreements.17
11
However, both parties disagree as to the value of these imports. For instance, Panama reports that re-
exports of subject goods from the CFZ to Colombia reached US$413,290 millions (60,792 tonnes) in 2005 and
US$483,587 million (67,486 tonnes) in 2006 (see Exhibit PAN–56). Colombia, in turn, reports imports of
subject goods from Panama of US$104,926 million (47,226 tonnes) in 2005 and US$132,584 million (38,486
tonnes) in 2006 (see Exhibit COL–45).
12
Colombia cites the wide discrepancies between Panama's reported volume and value of bilateral
trade with Colombia in comparison to Colombian figures. Colombia considers this discrepancy, which it terms
as "distortions", as evidence of the existence of the under-invoicing and smuggling pertaining to goods arriving
from the CFZ and Panama into Colombia. In this regard, Colombia reports US$381 million for the whole
universe of products from Panama in 2005 and US$415 million in 2006 (see Exhibit COL–38). Colombia notes
that Panama has reported exports to Colombia of almost three times this value (US$1,055 million and US$1,241
million, respectively) during this same period (see Exhibit PAN–56). Based on these discrepancies, Colombia
reports that, while exports arriving from Panama account for approximately 2.1 per cent of the total imports into
Colombia, these exports represent 10 per cent of the total distortions of the value of imports that entered
Colombia in 2006. Colombia reports that exports from the United States represented 32.2 per cent of distortions,
goods from ALADI, 27.7 per cent, goods from Europe, 20.4 per cent and goods from Asia, 9.7 per cent (see
Exhibit COL-48, pp. 15-16). Data referred to in footnote 11 above shows a similar phenomenon in relation to
textiles, apparel and footwear. For instance, in 2006 the reported value of Panamanian exports of these goods to
Colombia was almost four times higher than the reported value of Colombian imports from Panama for the same
period (see Exhibits COL–38, COL–16 and Exhibit PAN–56). Generally, Colombia has claimed that
84.27 per cent of the total trade with Panama and the CFZ in the course of 2006, was contraband trade, and that
that figure rises to 89 per cent in the case of textiles (see Colombia's first written submission, para. 196).
13
The UIAF is the "Unidad de Informacion y Analisis Financiero," an entity of the Colombian
Government created by Ley 526 of 1999 for the purpose of preventing, detecting and fighting money laundering
and financial terrorism (See Colombia's first written submission, para. 200, footnote 172).
14
Colombia's first written submission, para. 203; Exhibit COL-21.
15
See United Nations, Office on Drugs and Crime, Crime and Development in Central America, p. 69
(May 2007), quoted in Colombia's first written submission, para. 192, footnote 162; International Monetary
Fund, Panama: Detailed Assessments of Observance of Standards and Codes for Banking Supervision,
Insurance Supervision, and Securities Regulation, IMF Country Report No 07/67, at 198-9 (Feb. 2007);
International Narcotics Control Strategy Report, 2008, US Bureau of International Narcotics and Law
Enforcement Affairs, Volume 2, Money Laundering and Law Enforcement Affairs.
16
See Article 2 of Decree No. 4431 of 30 December 2004, that modified Article 128.5 of
Decree No. 2685 of 1999 (Exhibit COL–1).
17
Colombia has implemented indicative prices with respect to fabrics classifiable under Chapters 52,
54, 55, 56, 58, 59, 60, under Resolution No. 7510 of 26 June 2007, as modified by Resolution No. 11412 of
28 September 2007 (Exhibit PAN–9); garments classifiable under Chapters 61, 62, 63, under
Resolution No. 7511 of 26 June 2007 (Exhibit PAN–10); footwear classifiable under Chapter 64, under
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2.7 Colombian legislation defines an indicative price as a reference price18 established by

administrative act for use as a control mechanism on the declared f.o.b. value of imported goods.19
Indicative prices are applied according to the type of goods and are calculated based on the average
production costs of the imported goods, when available, or otherwise, on the lowest price actually
negotiated or offered for importation of the good into Colombia. Indicative prices may be imposed (i)
upon petition by domestic producers or importers of like products that are affected by unfair
competition; (ii) when customs authorities identify unfair competition practices; or (iii) when the
DIAN or the Directorate for Customs determines that indicative prices are necessary, based on
sectoral studies, risk profiles or in pursuance of a particular policy.20
2.8 Indicative prices are used at the time of presentation of the customs declaration. Pursuant to
Colombian customs law, foreign goods imported into Colombia must remain in customs custody, and
thus will not be released, until an importer presents an import declaration and pays customs duties,
sales tax and penalties.21 Under Colombian tax law, sales tax on imported goods is calculated based
on the same value used to determine customs duties.22 Sales tax for domestic goods is based on the
transaction value.23 Upon presentation of the import declaration for goods subject to indicative prices,
if the declared f.o.b. value is lower than the indicative price, release of the goods will not be
authorized unless the importer corrects the value on the declaration on the basis of the indicative price
and pays customs duties and sales tax on this basis.24
2.9 An importer is allotted a maximum of five days to correct the declared value and pay customs
duties and sales tax, and is not given any opportunity at this time to submit evidence to demonstrate
that the declared value represents the actual transaction value of the goods.25 If the importer does not
Resolution No. 7509 of 26 June 2007, as modified by Resolution No. 11414 of 28 September 2007
(Exhibit PAN–8); and sports footwear classifiable under Chapter 64, under Resolution No. 7512 of 26 June
2007, as modified by Resolution No. 11415. Indicative prices are also applied to other products, including
paper and cartons, under Resolution No. 7513 of 26 June 2007 (Exhibit PAN-12); tyres under
Resolution No. 2671 of 18 March 2008 (Exhibit COL–48, pg. 5); jet-skies, under Resolution No. 2672 of 18
March 2008 (Exhibit COL–48); polyethylene and polypropylene, under Resolution No. 4449 of 20 May 2008
(Exhibit COL–48, p. 5); electrical appliances, under Resolution No. 11413 of 28 September 2007
(Exhibit COL-48); and automobile piston rings, under Resolution No. 2820 of 28 March 2006
(Exhibit COL-48).
18
"Reference prices", in turn, are defined in Article 237 of Decree No. 2685 of 1999 as "the prices
established by the Customs Directorate taken with an indicative character in order to control the value declared
for identical or similar goods during the inspection process" (Exhibit COL–1).
19
See Article 237 of Decree No. 2685 of 1999 (Exhibit COL–1).
20
See Methodology for the Determination of Reference Prices, sections 2.1, 2.2, 2.3 and 3.1
(Exhibit PAN-18).
21
See Articles 112 and 120-124 of Decree No. 2685 of 1999 (Exhibit COL–1). The definition of the
term release ("levante") is set forth in Article 1 of that Decree as the act by the customs authority that allows the
interested parties to dispose of the goods, once that the legal requirements have been met or, if so required, the
guarantee has been paid.
22
Article 459 of Colombia's Tax Statute (Exhibit COL–3).
23
Article 447 of Colombia's Tax Statute (Exhibit COL–3). An exception to that general rule is
established in Article 453. According to this provision, in the cases in which there is no invoice or equivalent
document, or the invoice or equivalent document shows a price lower than the market price, the taxable base
shall be determined on the basis of the market price, unless proven otherwise.
24
See Article 128.5 e) of Decree No. 2685 of 1999 (Exhibit COL-1) and Article 172.7 of
Resolution No. 4240 of 2000 (Exhibit COL-2).
25
See Article 128.5 e) of Decree No. 2685 of 1999 (Exhibit COL-1) and Article 172.7 of
Resolution No. 4240 of 2000 (Exhibit COL-2). In cases of goods not subject to indicative prices, an importer
may have the opportunity to present additional documents to support the declared value, post a guarantee or
correct the import declaration, in order to obtain the release of the goods (see, e.g., Article 128.5(a), (b) and (c)
of Decree No. 2685 of 1999 (Exhibit COL-1) and Article 172.3, 172.4 and 172.5 of Resolution No. 4240 of
2000 (Exhibit COL-2); see also Colombia's response to Panel question No. 26). As explained, in the case of
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correct the declared value or pay customs duties and sales tax based on the indicative price, the
importer will need to reship the goods in question within a period of one month or the goods will be
considered "legally abandoned".26 Whenever an importer opts to correct the import declaration and
pays customs duties and sales tax based on indicative prices, the goods will be released and the
relevant documents are submitted to the División de Fiscalización Aduanera.27 This initiates the
"control posterior" process.28
2.10 The declared purpose of the "control posterior" process is to verify, after the release of the
goods, the customs value declared by the importer, in order to determine the correct dutiable base.29
Upon receipt of the declaration and documentation, the División de Fiscalización will conduct the
"estudio de valor" in order to assess the declared customs value of the imported goods.30 According
to Colombian legislation, this assessment is based on the value at the time of physical inspection or
presentation of the import declaration31 and is conducted in accordance with the principles set forth in
Articles 1 to 8 of the Customs Valuation Agreement.32 The conclusions of the "estudio de valor" are
presented in a report which includes, inter alia, the "definitive" customs value resulting from that
assesment and an explanation of the methods applied in determining such customs value.33
2.11 The "control posterior" process allows for two possible outcomes. If the División de
Fiscalización determines through the estudio de valor that the final customs value corresponds to the
value originally declared by the importer, the importer will be entitled to a refund of the payment in
excess made at the time of the release.34 The importer must file a request for reimbursement.35 No
timeline is provided for provision of the refund, although in three specific cases presented in this
goods subject to indicative prices, when the importer has declared a price lower than the indicative price, the
only option available is to correct the import declaration when a controversy arises.
26
See Article 115 of Decree No. 2685 of 1999 (Exhibit COL-1) as modified by Article 10 of
Decree No. 2557 of 6 July 2007 (Exhibit PAN–30). Under Article 115 of Decree No. 2685 of 1999
(Exhibit COL-1), as modified, goods which arrive in Colombia for importation may remain in storage for up to
one month during completion of customs procedures, or for two months in exceptional cases authorized by
customs authorities. Upon expiry of this period, goods that are not removed are considered to be legally
abandoned, One month after the goods are deemed to be legally abandoned, DIAN is authorized to dispose of
the goods in question. See also Colombia's response to question No. 4(a)(ii) from Panama; Exhibit PAN–66.
27
Article 128.5 e) of Decree No. 2685 of 1999 (Exhibit PAN–6).
28
Paragraph 3 of Article 172 of Resolution No. 4240 of 2000 (Exhibit COL-2). This provision
indicates that the "control posterior" starts automatically. This automatic nature of the control posterior is
reflected in an example submitted by Colombia, where the Grupo Importaciones de la Administración Local de
Aduanas de Medellín sent ex officio the importer's file to the División de Fiscalización (see Exhibit COL-9).
However, in two separate cases submitted to the Panel by the parties, the "control posterior" was initiated upon
request of the importer (see Exhibit COL-8 and PAN-53).
29
Article 3.1. of the Manual de Valoración – Orden Administrativa 0005 (Exhibit COL–36); see also
Colombia's response to Panel question No. 28.
30
See paragraph 3 of Article 172 of Resolution No. 4240 of 2000 (Exhibit COL-2); Article 3.6 of the
Manual de Valoración – Orden Administrativa 0005 (Exhibit COL–36); see also Exhibit COL-41.
31
Article 222 of Resolution No. 4240 of 2000 (Exhibit PAN–21).
32
See Articles 3.6.4 and 3.6.5 of the Manual de Valoración – Orden Administrativa 0005
(Exhibit COL-36). Articles 237, 247 and 259 of Decree No. 2685 of 1999 and Articles 174-217 of
Resolution No. 4240 of 2000 also make direct reference to the methods provided for in the Customs Valuation
Agreement (see Exhibit COL–1 and Exhibit COL–2). Furthermore, the valuation methods provided for in the
Customs Valuation Agreement are explicitly referenced in Articles 1-5 of Andean Community ("CAN")
Decision 571 (Exhibit COL–5) and Articles 3-47 of CAN Resolution 846 (Exhibit COL-6).
33
Article 3.8 of the Manual de Valoración – Orden Administrativa 0005 (Exhibit COL-36).
34
Article 548(a) of Decree No. 2685 of 1999 (Exhibit COL-1). It is worth noting, as Colombia
acknowledged, the customs value determined during the control posterior will in almost all cases be different
from the indicative price. This is so because indicative prices are established for broad categories of products
and do not take into account all factors determining the customs value, such as transportation charges (see
Colombia's response to question No. 4 from Panama).
35
Article 548(a) of Decree No. 2685 of 1999 (Exhibit COL-1).
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dispute, importers did not receive refunds for more than two years since the initiation of the control
posterior.36 Alternatively, if the División de Fiscalización determines that the final customs value is
higher than the value originally declared by the importer, it will issue a "Requerimiento Especial
Aduanero"37 including a proposed "Liquidación Oficial".38 At this time, the importer may dispute the
proposed liquidation and provide further evidence supporting the value originally declared.39 If the
importer successfully disputes the proposed liquidation, the importer is entitled to a refund of the
sums paid in excess during the initial presentation of the import declaration.40 However, if the
importer does not respond to the Requerimiento, or the response is considered to be unsatisfactory, the
Customs Administration will issue a "Liquidación Oficial de Revisión de Valor", which contains the
final determination of the customs value.41 To the extent that the importer is not satisfied with the
Customs Administration's determination as published in the "Liquidación Oficial de Revisión de
Valor", the importer may challenge this administrative act before the administrative authorities
through a "Recurso de Reconsideración".42
C. RESTRICTION ON PORTS OF ENTRY AND INTERNATIONAL TRANSIT RULES APPLICABLE TO

TEXTILES, APPAREL AND FOOTWEAR ARRIVING FROM PANAMA
2.12 Colombian customs law permits customs authorities to limit access to ports of entry whenever
authorities are not satisfied of their ability to fully exercise their powers of control and verification.43
On these grounds, although Colombia has 26 ports of entry for international trade44, it has limited
imports of textile and apparel imports to 11 ports of entry.45
2.13 Textiles, apparel and footwear classifiable under Chapters 50-64 of the Colombian Tariff
Schedule originating in or arriving from Panama and the CFZ, which are imported into Colombia, are
subject to additional temporary limitations. Under Article 2 of Resolution No. 7373 of
22 June 200746, as modified by Resolution No. 7637 of 28 June 200747, subject textiles, apparel and
footwear may only be entered at Bogota airport or Barranquilla seaport.48 However, the general
36
In Exhibit COL-8, the importer requested initiation of the control posterior in 28 April 2006, which
concluded on 22 February 2008. In a separate case, discussed in Exhibit PAN-53 and Exhibit COL–49, the
importer requested initiation of the control posterior on 10 July 2005 and concluded on 18 December 2007.
37
Article 3.10 of the Manual de Valoración – Orden Administrativa 0005 (Exhibit COL-36).
38
Article 509 of Decree No. 2685 of 1999 (Exhibit COL-1).
39
Articles 510-511 of Decree No. 2685 of 1999 (Exhibit COL-1).
40
Article 548(a) of Decree No. 2685 of 1999 (Exhibit COL-1).
41
Article 129 of Decree No. 2685 of 1999 (Exhibit COL-1) and Article 173 of Resolution No. 4240 of
2000 (Exhibit COL-2). According to Article 514 of Decree No. 2685 of 1999, the "Liquidación Oficial de
Revisión de Valor" act proceeds in cases of "errors" in aspects of the Import Declaration such as f.o.b. value and
customs value or "when the declared value does not correspond to the value of the goods as established by
customs authorities".
42
Articles 515-518 Decree No. 2685 of 1999 (Exhibit COL-1).
43
Article 41 of the Customs Statute (Exhibit COL–1).
44
Colombia's first written submission, para. 185.
45
See Article 39 of Resolution No. 4240 of 2000 (Exhibit PAN–38). These ports are: Barranquilla,
Bucaramanga, Buenaventura, Cali, Cartagena, Cúcuta, Ipiales, Leticia, Medellín, San Andrés and Bogota.
46
See Exhibit PAN-34.
47
See Exhibit PAN-36.
48
Exhibit PAN-34. The parties originally disagreed on the application of the ports of entry measure to
footwear classifiable under Chapter 64. Under Resolution No. 8603 of 24 July 2007, goods classifiable under
heading 64.06 of Colombia's Customs Tariff Schedule are declared exempt from the ports of entry restrictions
(see Exhibit PAN-35). In its request for establishment of panel, Panama submitted that Resolution No. 7373 of
22 June 2007, as modified by Resolution No. 7637 of 28 June 2007, covered all goods classifiable under
Chapters 50 to 64 of Colombia's Tariff Schedule. Panama noted, however, in para. 62, footnote 64 of its first
written submission that Article 4 of Resolution No. 7373 of 2007 exempted goods classifiable under headings
64.01 to 64.05, and Resolution 8603 of 2007 exempted products falling under heading 64.06. In light of these
provisions, Panama argued that the port of entry measure only applied to textile products falling under
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restriction on ports of entry under Article 2 is subject to several exceptions. In relation to goods with
a destination outside of Colombia, Article 4 of Resolution No. 7373 provides that goods in transit
from Panama, which are submitted for trans-shipment and do not have Colombia as their final
destination may enter at any of the 11 authorized ports open for textile, apparel and footwear
imports.49 Additionally, Article 4 further exempts goods consigned or endorsed to the State50; goods
imported for specific state or emergency uses: goods arriving by travellers or postal traffic, or in route
to Leticia, San Andrés or Santa Catalina51; goods consigned to industrial users of free trade zones52;
and goods classifiable under subheadings 64.01 to 64.05 of Colombia's Tariff Schedule that arrive at
any of the 11 ports designated in Article 39, paragraph 1 of Resolution No. 4240.53
Resolution No. 8603 of 24 July 200754 establishes an additional exemption for footwear classifiable
under sections 6406 of Colombia's Customs Schedule, and Resolution No. 7637 of 28 June 200755
further exempts goods consigned to "Highly Exporting Users" and "Permanent Customs Users".56
2.14 The stated aim of Resolution No. 7373, as amended, is to strengthen and improve customs
controls related to the importation of certain textile, apparel and footwear goods, which are described
as constituting an important national industry in Colombia.57 Non-compliance with the obligation to
enter and import goods from Panama and the CFZ exclusively at those ports, will subject the goods to
seizure and forfeiture.58
2.15 Resolution No. 7373, as amended, supersedes the regular transit regime under Colombian
law, which permits the transportation of merchandise of national or foreign origin from one customs
office to another located within the national territory of Colombia.59 Resolution No. 7373 was
orignially implemented for a period of approximately six months beginning 1 July 2007.60 However,
the period of application of the measure has been extended on two occasions at the time of this
writing 61, and is currently set to expire on 31 December 2008.
Chapters 50 to 63 and not to footwear classifiable under Chapter 64. Subsequently, however, Colombia stated
in its answer to Panel question 46, that Resolution No. 7373 of 2007 does not provide for a general exception for
footwear products and thus, products classifiable under headings 64.01–64.05 can only enter Colombia at the
ports of Barranquilla and Bogota, as well as through the points of entry listed in subparagraphs 5 and 6 of
paragraph 1 of Article 39 of Resolution No. 4240 (Exhibit COL-12). In light of Colombia's clarification that it
applied the ports of entry restrictions to footwear, Panama confirmed that it was challenging the application of
the measure to all footwear goods which are deemed to fall within the scope of the measure (see Panama's
Answer to First Set of Panel Questions, answer to question 45; Panama's second written submission, para. 109,
footnote 80).
49
Resolution No. 7373, Article 4, para. 3, (Exhibit PAN-34).
50
51
52
53
54
Exhibit COL-35.
55
Exhibit COL-36.
56
Exhibit PAN–36.
57
See Resolution No. 7373 (Exhibit PAN-36).
58
See Article 5 of Resolution No. 7373 of 2007 and Article 502.1.2 of Decree No. 2685 of 1999
(Exhibit PAN-41).
59
Article 1 of Decree No. 2685 of 1999 (Exhibit PAN-20).
60
Exhibit COL-34, para. Article 8.
61
Resolution No. 16100 of 27 December 2007; Colombia's response to Panel question No. 122;
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D. THE REQUIREMENT TO PRESENT AN ADVANCE IMPORT DECLARATION AND PAY CUSTOMS

DUTIES AND SALES TAX ON THE BASIS OF THE ADVANCE DECLARATION APPLICABLE TO
IMPORTS OF TEXTILES, APPAREL AND FOOTWEAR ARRIVING FROM PANAMA
2.16 Under Article 119 of Decree No. 2685 of 1999, applicable to imported goods of all origins, an
importer may present an import declaration as early as 15 days prior to arrival of the goods, or may
delay presentation of the import declaration until one month after the goods' arrival into Colombia or
up to two months following arrival, subject to authorization by Colombia's customs authority.62 In
combination with the requirement to present an import declaration, importers of goods are required to
pay customs duties and sales tax at the time an import declaration is presented.63 Under this regime,
importers therefore are generally not required to present an import declaration in advance of arrival of
the goods, and as such, are not required to pay customs duties and taxes prior to the goods' release
from customs, although the option exists to do so.64
2.17 In the case of textile, apparel and footwear imports arriving from Panama,
Resolution No. 7373 of 22 June 2007, as modified by Resolution No. 7637 of 28 June 2007, requires
importers of textile, apparel and footwear goods classifiable under Chapter 50–64 of Colombia's
Tariff Schedule and arriving from Panama or the CFZ to present an advance import declaration not
more than 15 days prior to the goods' arrival in Colombia65 and accordingly pay customs duties and
taxes in advance.66 Article 1 of Resolution No. 9859 of 23 August 2007 additionally requires
importers of all goods from Panama or the CFZ that are subject to the 15-day advance import
declaration requirement to declare the goods not less than five days prior to the arrival of the goods in
Colombia.67 Since all importers must pay customs duties and sales tax at the time an import
declaration is presented, importers of subject goods from Panama and the CFZ, which are required to
present an import declaration in advance, therefore, must also pay customs duties and sales tax in
advance.
2.18 An importer of textile, apparel and footwear goods arriving from Panama or the CFZ that fails
to present an advance import declaration upon entry at Bogota or Barranquilla may only proceed with
importation if he or she submits a legalization declaration and pays a fee for the "rescate" of the goods
in addition to all customs duties and any accrued warehouse storage charges. Otherwise, the importer
may elect to re-ship the goods from Colombian territory.68 69 If the importer does not submit a
legalization declaration and pay a fee, or does not re-ship the goods in question, the goods will be
considered as legally abandoned and subject to seizure within a one month period.70 An importer may
62
Article 119 of Decree No. 2685 of 1999 (Exhibit COL-1); Article 115 of Decree No. 2685 of 1999
(Exhibit COL-1).
63
Article 119 of Decree No. 2685 (Exhibit COL-1).
64
In its answers to question 154 by the Panel, Colombia confirmed that this advanced declaration
requirement is an option for all other goods
65
Article 1 of Resolution No. 7373 of 2007 (Exhibit PAN–34). Article 1 of Resolution No. 7637 of 28
June 2007 (Exhibit PAN–36) extends the scope of this obligation to all listed textile, apparel and footwear goods
from Panama, and not only to those from the CFZ. Under Article 119 of Decree No. 2685, paragraph 3
(Exhibit COL-1), Colombia's DIAN may require importers to present an advance import declaration taking into
account criteria of, inter alia, the origin of the good.
66
In its responses to Panel questions Nos. 73, 74 and 154, Colombia has confirmed that the
requirement to present an import advance declaration only applies to textile, apparel and footwear goods
classifiable under Chapters 50-64 of Colombia's Tariff Schedule and arriving from Panama.
67
Article 1 of Resolution No. 9859 of 23 August 2007 (Exhibit PAN–46).
68
Article 6 of Resolution No. 7373 (Exhibit PAN-34); Article 231 of Decree No. 2685
(Exhibit PAN-32).
69
Article 231 of Decree No. 2685 (Exhibit PAN-32).
70
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pay a "rescate" fee equal to 15 per cent of the value of the goods to recover goods that are classified as
legally abandoned.71
E. THE REQUIREMENT TO PAY A FEE TO RECTIFY AN IMPORT DECLARATION APPLICABLE TO

TEXTILE IMPORTS ARRIVING FROM PANAMA
2.19 In addition to the requirement to present an advance import declaration, importers of textiles
classifiable under Chapters 50-60 of Colombia's Tariff Schedule that arrive from Panama, are also
required to pay a fee to correct certain errors appearing in the advance import declaration. In
particular, under Article 3 of Resolution No. 7373, importers of subject goods must pay a fee to
correct an import declaration in situations where differences in the weight per square metre or width
of the textile exceed 7 and 10 per cent, respectively.72 Article 128.7 of Decree No. 2685 of 1999, as
modified by Decree No. 1232 of 2001, generally established a fee of three per cent of the value of the
goods to correct errors in the description of the goods, within a period of five days after a declaration
is presented.73 Under Article 153 of Resolution No. 4240 of 2000, as modified by Article 1 of
Resolution No. 8038 of 2005, all imports classifiable under Chapters 50–60 of Colombia's Tariff
Schedule for which an advance import declaration is submitted, are subject to the same legalization
requirement (and are similarly exempt in cases where differences in the weight per square metre or
width of the textile do not exceed 7 and 10 per cent, respectively).74 However, as noted in paragraphs
2.16 and 2.17 above, only importers of subject textiles arriving from Panama are required to submit
and advance import declaration. All other importers of subject textiles retain the option to submit an
advance declaration.
III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
3.1 Panama requests the Panel to find that:
(a) Colombia's determination of the customs value of textiles, footwear and other
products on the basis of indicative prices is inconsistent with Articles 1, 2, 3, 5, 6
and 7.2 (b), (f) and (g) of the Customs Valuation Agreement;
(b) Colombia's use of indicative prices to determine the tax base for the purpose of
levying the sales tax on imported textiles, footwear and other products, when the
transaction value is used to determine the tax base of like domestic products for the
same purpose, is inconsistent with Article III:2, first sentence, or, alternatively, with
Article III:4 of the GATT 199475;
(c) Colombia's prohibition of the importation of textiles, footwear and apparel from
Panama except at the ports of Bogota and Barranquilla is inconsistent with
Article XI:1 of the GATT 1994;
(d) Colombia's prohibition of the importation of textiles, footwear and apparel from
Panama except at the ports of Bogota and Barranquilla, while the importation of like
products from other countries is not similarly restricted, is inconsistent with
71
72
Article 3 of Resolution No. 7373 of 22 June 2007 (Exhibit PAN–34).
73
Article 128.7 of Decree No. 2685 of 1999 (Exhibit COL-1), as modified by Decree No. 1232 of
2001.
74
Article 153 of Resolution No. 4240 of 2000 (Exhibit COL-2), as modified by Article 1 of
75
Panama first formally requested a finding under Article III:4 in its second written submission,
para. 226. In its first written submission, footnote 110, and in its request for establishment of a Panel, Panama
expressed its view that Colombia's use of indicative prices to determine the tax base for imported products was
inconsistent with Article III:4.
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Article XIII:1 of the GATT 199476, or alternatively, with Article I:1 of the
GATT 199477;
(e) Colombia's suspension of the transit regime for textiles, footwear and apparel coming
from Panama is inconsistent with Article V:2 of the GATT 1994;
(f) Colombia's imposition of ports of entry and transit restrictions to textiles, footwear
and apparel that have been in transit through Panama, while no such restrictions are
imposed on these products when transported from their country of origin to
Colombia without going through Panama, is inconsistent with Article V:6 of the
GATT 1994;
(g) The requirements that importers of textiles, footwear and apparel originating in
Panama submit an advance import declaration and pay customs duties before the
arrival of the products at customs and the limited options available for the
presentation of the legalization declaration without payment of a fee, when no such
requirements or limitations are imposed on importers of like products originating in
other countries, are inconsistent with Article I:1 of the GATT 1994;
3.2 Colombia requests that the Panel reject all of Panama's claims for the reasons provided in its
submissions.78
3.3 In the event that the Panel were to uphold some or all of Panama's claims under Articles I:1,
V:2, V:6, XI:1 or XIII:1 of the GATT 1994, Colombia requests the Panel to find that the measure is
justified under the general defence of GATT Article XX(d).
IV. ARGUMENTS OF THE PARTIES
A. EXECUTIVE SUMMARY OF THE FIRST WRITTEN SUBMISSION OF PANAMA
1. Introduction
4.1 The following table provides a brief summary of the specific measures at issue, their legal
basis in Colombian law, and the relevant provisions of the Customs Valuation Agreement and the
GATT 1994 under which Panama challenges each of the measures.
76
Although Panama did not formally request findings in relation to Article XIII:1 of the GATT 1994 in
its first written submission, Panama attributed this omission to a clerical error, and subsequently requested a
finding of violation of Article XIII:1 in its second written submission, para. 226 (see Panama's response to Panel
question No. 10).
77
Panama first requested findings that Colombia's restriction on the entry of textiles, apparel and
footwear violates Article I:1 of the GATT 1994 in its first oral statement, paras. 52-53. In its request for
establishment, Panama also referred to Article I:1 of the GATT 1994 in relation to the ports of entry measure.
Colombia has challenged this claim as falling outside the Panel's mandate (see Colombia's second written
submission, paras. 148-172).
78
Colombia's second written submission, para. 325.
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Specific measure at Applicable WTO

Issue Legal basis under domestic law
issue law
A. Customs Customs valuation of Article 128.5 e) of Decree No. 2685 Articles 1, 2, 3, 5, 6
valuation methods textile, footwear and Article 172.7 of Resolution No. 4240. and 7.2(b), (f) and
and procedures for other products is based (g) of the Customs
textile, footwear on indicative prices. Valuation
and other products Agreement.
subject to
"indicative prices".
The sales tax for Article 447 of the Tax Statute in Article III:2 of the
imported products connection with Article 128.5 e) of GATT 1994.
subject to indicative Decree No. 2685.
prices is based on the
indicative price,
whereas the sales tax
for like domestic
products is based on the
transaction value.
B. Port of entry The entry and Article 2 of Resolution No. 7373 Articles XI:1 and
and transit importation of textile (modifying Article 39 of XIII:1 of the
restrictions and products from Panama Resolution No. 4240). GATT 1994.
customs is restricted to the ports
regulations for of Bogota and
textile products Barranquilla.
coming from
Panama.
The transit regime is Article 2 of Resolution No. 7373 Article V:2 of the
suspended for textile (modifying Article 39 of GATT 1994.
products coming from Resolution No. 4240).
Panama.
The port of entry Article 2 of Resolution No. 7373 Article V:6 of the
restrictions accord (modifying Article 39 of GATT 1994.
products that have been Resolution No. 4240).
in transit through
Panama treatment less
favourable than that
accorded to products
that have not been in
transit through Panama.
The requirement to Articles 1 and 3 of Article I:1 of the
complete customs Resolution No. 7373, Article 119 of GATT 1994.
procedures and pay Decree No. 2685 and Article 1 of
customs duties prior to Resolution No. 9859.
the arrival of the goods
at customs, and the
limited options
available for the
presentation of a
legalization declaration
without the payment of
a fee, are applied only
to textile products from
Panama.
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2. The measures at issue
(a) Customs valuation of textiles, footwear and other products on the basis of "indicative prices"
4.2 Colombia's Schedule of Concessions to the GATT 1994 provides that its customs duties shall
be applied on an ad valorem basis. An ad valorem customs duty is based on the customs value of the
goods. Colombia does not use the transaction value as the basis for the determination of the customs
value of those goods. Instead, it uses indicative prices, which are unrelated to the transaction value of
the goods.
4.3 According to Article 128.5 e) of Decree No. 2685 of 1999 and Article 172.7 of
Resolution No. 4240 of 2000, an importer whose goods have a transaction value lower than the
indicative price must correct the import declaration to reflect the indicative price or a higher amount
to obtain release of the goods. The failure to correct the transaction value to reflect the indicative
price within a period of five-days from the presentation of the import declaration leads to the
subsequent legal abandonment of the goods, and their eventual forfeiture.
4.4 Furthermore, the sales tax on imported products is determined on the basis of the indicative
price when the transaction value is below the indicative price. In contrast, for domestic products, the
sales tax is based on the actual value of the sale.
(b) Port of entry and transit restrictions and customs regulations for textiles from Panama
4.5 Out of the 11 ports of entry that are enabled for the importation of textiles in Colombia,
textiles originating in, or transiting through, Panama may be imported and entered at only two of these
11 ports; namely, the airport of Bogota and the sea port of Barranquilla. In terms of transportation
costs, these ports are not always the most convenient and viable entry points for textiles from Panama
destined for different locations in Colombia.
4.6 Furthermore, textiles from Panama are prohibited from transiting through Colombia. Even if
the final destination is a country other than Colombia, textiles from Panama cannot be transported by
land through Colombia. Instead they must be cleared for importation as soon as they arrive in Bogota
or Barranquilla.
4.7 In addition, only with respect to textiles from Panama, all customs formalities must be
completed and customs duties and sales tax must be paid in full prior to the arrival of the goods.
3. Legal argument
(a) Colombia's use of indicative prices to determine the customs value of textiles, footwear and
other products is inconsistent with Articles 1, 2, 3, 5, 6 and 7.2 (b), (f) and (g) of the Customs
Valuation Agreement
(i) Colombia's use of indicative prices is inconsistent with Article 1 of the Customs Valuation
Agreement
4.8 Article 1 of the Customs Valuation Agreement provides that the customs value of imported
goods "shall" be the transaction value (i.e. the price actually or payable), as the primary means of
determining the customs value of imported goods.
4.9 In principle, the price actually paid or payable for the goods can be known with certainty only
by the parties to the transaction, i.e. the buyer and the seller. It is, therefore, necessary for customs
authorities to rely upon the information provided by the buyer, (normally the importer) as to the
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transaction value of the goods. The determination of the transaction value of goods must take into
account the specific circumstances of the purchase and sale of those particular goods.
4.10 A WTO Member could argue that it cannot use the transaction value to determine the custom
value of goods because the conditions set out in the relevant sub-paragraphs (a) to (d) of Article 1
have not been met. However, such a conclusion could be reached only after customs has conducted
an assessment of the individual circumstances surrounding the transaction in question. It cannot be
based on an a priori assumption that, for all imports, the relevant conditions have not been met.
Panama understands that Colombia is not basing its non-acceptance of the transaction value for
textiles, footwear and other products and its use of indicative prices on the grounds that the conditions
set out in sub-paragraphs (a) to (d) of Article 1 have not been met
4.11 Article 128.5 e) of Decree No. 2685 of 1999 and Article 172.7 of Resolution No. 4240 of
2000, DIAN systematically rejects the transaction value for goods subject to indicative prices on an
a priori basis without any examination of the particular circumstances surrounding the sale. Indeed, it
departs from the transaction value in every single case involving goods subject to indicative prices.
4.12 For such goods, an importer is not afforded any opportunity to demonstrate that the declared
value (when lower than the indicative price) corresponds to the transaction value of the product.
Rather, Article 128.5 e) of Decree No. 2685 of 1999 and Article 172.7 of Resolution No. 4240 of
2000 state that a declarant of goods subject to indicative prices can only: (i) "correct" the declared
value in the import declaration to reflect the applicable indicative price and (ii) pay the customs duties
and sales tax based on that price.
4.13 If, at the end of the five-day period established in Article 128.5 e), the declarant does not
"correct" the import declaration accordingly, and does not pay the corresponding customs duties and
sales tax thereon, the importation process is considered to be terminated and the goods are kept in a
warehouse. In the absence of any subsequent action by the declarant, the goods are considered as
legally abandoned after a period of one month. One month after the expiry of the period of legal
abandonment, the goods may be disposed of by DIAN.
4.14 In the light of the consequences that would result if an importer does not "correct" the import
declaration to reflect the indicative price, an importer is effectively forced to declare the indicative
price, instead of the transaction value of the goods, and pay customs duties and sales tax thereon.
This is confirmed by the fact that in 87 per cent of relevant cases, the importer has opted to "correct"
the import declaration.
4.15 Panama notes that, in any event, Colombia does not follow the appropriate procedures in
situations where there are doubts as to the truth or accuracy of the declared the transaction value, as
stated in the Decision Regarding Cases Where the Customs Administrations Have Reasons to Doubt
the Truth or Accuracy of the Declared Value. This Decision is based on the assumption that those
doubts arise in the context of case-by-case assessments of the declared transaction value.
Furthermore, it provides for opportunities to the importer in order to present arguments and evidence
demonstrating the truth and accuracy of the declared value. In contrast, DIAN rejects the declared
transaction value on a systematic basis. It does not undertake a case-by-case assessment of the
circumstances surrounding the transaction at issue in order to determine whether there are valid
grounds to doubt the truth or accuracy of the declared value.
(ii) Colombia's use of indicative prices is inconsistent with the methodologies set out in
Articles 2, 3, 5, and 6 of the Customs Valuation Agreement
4.16 In those cases where Article 1 cannot be used, Articles 2, 3, 5 and 6 of the Customs Valuation
Agreement provide a series of sequential and hierarchical alternative means for determining the
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customs value of goods. The application of these subsidiary methods of valuation must be carried out
on a case-by-case basis.
4.17 The methodologies established in Articles 2, 3, 5 and 6 to determine the custom value of a
consignment require the assessment of multiple factors, such as the transaction value of identical
goods sold at about the same time as the transaction in question, taking into account sales at the same
commercial level, or sales at similar levels, or the unit price at which imported goods are sold in the
greatest aggregate quantity, at or about the time of the importation of the goods being valued. Time
specifications in alternative customs valuations implies that the methodologies must be used in the
appropriate sequence on a case-by-case basis so as to replicate most closely the conditions of the sale
of the product in question.
4.18 Indicative prices applied by Colombia for Customs Valuation purposes are neither based on
the transaction value nor determined using any of the methodologies set out in Articles 2, 3, 5 and 6 of
the Customs Valuation Agreement. Instead, they are determined based on surveys carried out by
DIAN on a fixed basis, in accordance with the "Methodology for the Determination of Reference
Prices". These prices are not determined using any of the methodologies set out in Articles 2, 3, 5 and
6 of the Customs Valuation Agreement, as DIAN does not undertake an examination of the specific
circumstances surrounding the transaction at issue.
4.19 Furthermore, Article 128.5 e) of Decree 2658 of 1999 and Article 172.7 of
Resolution No. 4240 of 2000 do not permit DIAN to use the methodologies set out in Articles 2, 3, 5
and 6 of the Customs Valuation Agreement at the time of inspection. Each of these methodologies
requires that customs authorities conduct their investigations on a case-by-case basis, a possibility that
is not contemplated in those provisions of Colombian law.
(iii) Colombia's use of indicative prices is inconsistent with Articles 7.2(b), (f) and (g) of the
Customs Valuation Agreement
4.20 Article 7.1 provides that if the customs value of the imported goods cannot be determined
under the provisions of Articles 1 through 6, the customs value shall be determined using reasonable
means consistent with the principles and general provisions of the Customs Valuation Agreement and
Article VII of the GATT 1994, and on the basis of data available in the country of importation. The
flexibility granted under Article 7.1 are subject to certain limitations under Article 7.2. In particular,
WTO Members cannot resort to: (i) a system which provides for the acceptance for customs purposes
of the higher of two alternative values (Article 7.2 (b)), (ii) minimum customs values (Article 7.2(f)),
or arbitrary or fictitious values (Article 7.2(g)).
4.21 In this case, Colombia determines the customs value of goods on the basis of either the
indicative price (if the declared value is lower than the indicative price), or the transaction value (if
the price negotiated for the product is higher than the indicative price). Furthermore, indicative prices
are also minimum customs values because products subject to indicative prices will not be permitted
to be imported in Colombia unless this minimum value is declared by the declarant. In addition,
indicative prices are arbitrary and fictitious values as the customs value of goods subject to those
prices is not based on the actual circumstances of the sale, but rather on the basis of a general survey
based on the grouping of various products within the applicable tariff heading.
(iv) The payment of customs duties based on indicative prices is not a "guarantee" within the
meaning of Article 13 of the Customs Valuation Agreement
4.22 Panama notes that, on several occasions, Colombia has argued that the payment of customs
duties based on indicative prices merely constitutes a "guarantee." Colombia's characterisation of such
payments may be considered as an attempt to bring its measure within the scope of Article 13 of the
Customs Valuation Agreement.
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4.23 However, the payment of customs duties based on indicative prices is not a "guarantee"
within the meaning of Article 13 of the Customs Valuation Agreement. As noted above, a declarant
correcting its import declaration must pay the relevant customs duties and sales tax on the basis of the
indicative prices. Under Colombian law, a payment is the primary means of extinguishing a tax
obligation. Once this payment is made, the importation process is terminated, and the goods are
released. In contrast, a guarantee is a provisional instrument that secures the ultimate payment of
customs duties for which the goods may be liable during the period of the valuation controversy. The
guarantee does not, in and of itself, liquidate the tax obligations at issue. Therefore, the payment of
the customs duties based on the indicative price cannot be considered as the posting of a guarantee.
4.24 Furthermore, Colombian law itself distinguishes between the correction of an import
declaration and payment of the customs duties and taxes owing on that basis and the posting of a
guarantee.
(b) Colombia's reservation under the Customs Valuation Agreement to use minimum values has
expired
4.25 On the basis of Article 20.1 and Annex III of the Customs Valuation Agreement, on 30 March
2000 Colombia made a request for a reservation allowing it to maintain officially-established
minimum values for a period of five years for certain products.
4.26 On 10 May 2000, the Committee on Customs Valuation noted "good cause for Colombia's
request and its intention to make this reservation on a limited and transitional basis" and "that this
reservation will apply only to the products identified in Annex I, Annex II and Annex III". It further
noted "Colombia's indication that this would be a single request to maintain minimum values" and,
therefore, decided that "Colombia may continue to maintain officially-established minimum values
for the valuation for customs purposes" until 30 April 2001, 30 April 2002 and 30 April 2003 for the
goods listed in Annexes I, II and III, respectively.
4.27 The reservation, now lapsed, applied to many of the same products that are now subject to
indicative prices. 73 per cent of the products (59 out of 81 products) for which Colombia was granted
a waiver to maintain minimum prices until 30 April 2002 (Annexes I and II) are currently subject to
indicative prices.
(c) Colombia's use of indicative prices to determine the value of imported textiles, footwear and
other products for the purpose of levying sales tax when the transaction value is used to
determine the value of like domestic products for that purpose is inconsistent with
Article III:2, first sentence, of the GATT 1994
4.28 Article III:2 of the GATT 1994 prohibits WTO Members from subjecting imports to internal
taxes in excess of those applied, directly or indirectly, to like domestic products. Panama notes that
imported products subject to indicative prices have at least a potential like domestic product that may
be treated more favourably than the imported product.
4.29 An imported product with a transaction value lower than the applicable indicative price will
be taxed on the basis of the higher indicative price plus the customs duties charged on the basis of that
indicative price. On the other hand, like domestic products are subject to sales tax on the basis of the
actual sale price of the product. Thus, imported products subject to indicative prices incur sales tax in
excess of that imposed on like domestic products.
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(d) Colombia's prohibition of the importation of the importation of textiles from Panama except
at the ports of Bogota and Barranquilla is inconsistent with Article XI:1 of the GATT 1994
4.30 Article XI:1 of the GATT 1994 provides that no prohibition or restriction, other than duties,
taxes or other charges, shall be instituted or maintained by any Member on the importation of any
product of the territory of any other Member.
4.31 In the light of Resolutions No. 7373 of 2007 and No. 7637 of 2007, the importation of textiles
in Colombia is prohibited unless the goods are entered and imported at the two designated ports of
Bogota and Baranquilla. This requirement to enter and import textiles at these two ports constitutes a
"restriction" within the meaning of Article XI:1 of the GATT 1994. Furthermore, it is a "limiting
condition" on the importation of the listed products in Colombia, and makes importation more
onerous than if the condition had not existed. As noted above, Colombia has 11 customs offices at
which textiles normally may be entered. However, textiles coming from Panama are prohibited from
being imported at 9 out of these 11 customs offices.
4.32 Panamanian exporters of goods destined for markets such as Cali incur additional costs as the
goods can only be entered at Bogota (for air shipments) or Baranquilla (for sea shipments). Goods
arriving by sea need to be transported from the port of Barranquilla to Cali. The cost of transporting
cargo up to 7 tons for a 20 ft container by truck from Buenaventura to Cali is US$350 as compared to
US$990 to transport the same goods by truck from Baranquilla to Cali. These additional costs create
significant transaction costs and a disincentive to import textiles from Panama destined for Colombian
cities that are not located near the two designated ports.
(e) The port of entry restrictions are applied in a manner that is inconsistent with Article XIII:1 of
the GATT 1994
4.33 Article XIII:1 provides that any quantitative restrictions applied by a WTO Member must be
imposed on a non-discriminatory basis.
4.34 In this case, the requirement to enter and import textiles at the ports of Bogota or Baranquilla
constitutes a restriction on imports. Colombia applies the restrictions in Resolutions 7373, 7637 and
16100 only to textile imports from Panama. Colombia does not require that textiles originating in
third countries be imported at the ports of Bogota and Barranquilla. Therefore, Colombia does not
similarly restrict the importation of such products from third countries.
(f) Colombia's suspension of the transit regime for textiles from Panama is inconsistent with
Article V:2 of the GATT 1994
4.35 Article V:2, first sentence, provides that there shall be freedom of transit through the territory
of each Member, via the routes most convenient for international transit, for traffic in transit to or
from the territory of other Members. In turn "traffic in transit" is defined as the transit across the
territory of a Member when the passage across such territory, with or without trans-shipment,
warehousing, breaking bulk, or change in the mode of transport, is only a portion of a complete
journey beginning and terminating beyond the frontier of the Member across whose territory the
traffic passes. This definition applies to goods starting their journey in Panama, transiting through the
territory of Colombia, and reaching their final destination in another country.
4.36 Article 2 of Resolution No. 7373 of 2007 provides that for textiles coming from Panama and
entering Bogota or Barranquilla, authorization will not be granted under the normal customs transit
regime. Instead, Colombia requires that textiles coming from Panama must be entered and imported
at the ports of Barranquilla or Bogota. Thus, Colombia restricts the ability of these products to transit
through Colombia.
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4.37 Furthermore, the port of entry restrictions make distinctions based on the place of origin or
departure of the goods. Article V:2, second sentence provides that no distinction shall be made based
on, inter alia, the place of origin, departure, entry, exit or destination, or on any circumstances
relating to the ownership of goods, of vessels or of other means of transport. In this case, if textiles
originate in, or transit through, Panama, they must be entered at Bogota or Baranquilla. However, if
the same goods come directly from third countries without going through Panama, they may be
entered at any eligible port in Colombia.
(g) The port of entry restrictions that accord treatment less favourable to goods in transit through
Panama than that which they would have been accorded had they been transported from their
place of origin without going through Panama are inconsistent with Article V:6 of the
GATT 1994
4.38 Article V:6 of GATT 1994 provides that products which have been in transit through the
territory of any other Member shall be accorded treatment no less favourable than that which would
have been accorded to such products had they been transported from their place of origin to their
destination without going through the territory of such other Member.
4.39 Colombia permits textiles from other WTO Members to be entered at any eligible port in
Colombia, but prohibits the importation of the same products except at the ports of Bogota and
Baranquilla if they were in transit through Panama. For example, a textile product going directly to
Colombia from a third country may be entered at any eligible port in Colombia. However, if the same
textiles were transported through Panama, they would have to be entered and imported at the ports of
Bogota or Barranquilla.
(h) The requirement to present an advance declaration and pay customs duties and sales tax for
textiles originating in Panama is inconsistent with Article I:1 of the GATT 1994
4.40 Article I:1 of the GATT 1994 obliges Members to provide non-discriminatory treatment with
respect to the matters falling within the scope of that Article, such as "rules and formalities in
connection with importation and exportation". In this case, the requirement to present an advance
import declaration and to pay customs duties and sales tax on the basis of the advance declaration is a
rule in connection with importation.
4.41 Importers of products originating in countries other than Panama are permitted to import into
Colombia without having to submit an advance declaration and without having to pay customs duties
and sales tax on that basis. This is an advantage within the meaning of Article I:1 of the GATT 1994.
In contrast, Article 1 of Resolution No. 7373 of 2007 provides that the import declaration for the
listed products must be presented in advance of the arrival of the goods in Colombia. Moreover, the
customs duties and sales tax must be paid in full for those products.
4.42 Furthermore, Article 3 of Resolution No. 7373 of 2007 restricts the options available for the
rectification of the import declaration without the payment of a fee (rescate) where the differences
between the actual goods and what is stated in the import declaration with respect to the weight per
square metre or the width exceed 7 per cent and 10 per cent, respectively. This is a rule in connection
with importation. The importation of like products from other countries is not subject to this
limitation, and they therefore enjoy an advantage.
4.43 In the light of the above, products originating in Panama are not accorded immediately and
unconditionally the advantages that are accorded to like products originating in other countries.
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4. Panama's request for findings and recommendations
4.44 In the light of the considerations set out above, Panama requests the Panel to make the
following findings:
• Colombia's determination of the customs value of textiles, footwear and other

products on the basis of indicative prices is inconsistent with Articles 1, 2, 3, 5, 6 and
7.2 (b), (f) and (g) of the Customs Valuation Agreement.
• Colombia's use of indicative prices to determine the value of imported textiles,

footwear and other products for the purpose of levying the sales tax, when the
transaction value is used to determine the value of like domestic products for that
purpose, is inconsistent with Article III:2, first sentence, of the GATT 1994.
• Colombia's prohibition of the importation of textiles from Panama except at the ports
of Bogota and Barranquilla is inconsistent with Article XI: 1 of the GATT 1994.
• Colombia's suspension of the transit regime for textiles coming from Panama is
inconsistent with Article V:2 of the GATT 1994.
• Colombia's imposition of ports of entry and transit restrictions to textiles that have
been in transit through Panama, while no such restrictions are imposed on these
products when transported from their country of origin to Colombia without going
through Panama, is inconsistent with Article V:6 of the GATT 1994.
• The requirements that importers of textiles originating in Panama submit an advance

import declaration and pay customs duties before the arrival of the products at
customs and the limited options available for the presentation of the legalization
declaration without payment of a fee, when no such requirements or limitations are
imposed on importers of like products originating in other countries, are inconsistent
with Article I:1 of the GATT 1994.
4.45 Panama requests the Panel to recommend, in accordance with Article 19.1 of the DSU, that
the DSB request Colombia to bring the measures at issue into conformity with the Customs Valuation
Agreement and the GATT 1994.
B. EXECUTIVE SUMMARY OF THE FIRST WRITTEN SUBMISSION OF COLOMBIA
1. Request for preliminary ruling
4.46 Colombia submits that Panama's Request for Establishment of a Panel (the "Request") fails to
comply with the due process requirements of Article 6.2 DSU. Colombia requests a preliminary
ruling by the Panel to exclude such claims from its terms of reference that are not set forth in a
sufficiently clear manner in the Request for Establishment or that were not the subject of consultations
between the Members.
4.47 First, Colombia considers that Panama's request challenging the indicative price measure on
an "as such" and "as applied" basis is inconsistent with Article 6.2 DSU. Panama's Request fails to
refer to any specific application of such a measure. Colombia thus requests the Panel to rule that
Panama's Request in respect of the "as applied" claim fails to "identify the specific measure at issue"
as required by Article 6.2 DSU.
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4.48 Second, Colombia submits that the Request further fails to identify the specific measures at
issue as it refers to indicative prices that are established and applied in accordance with, inter alia,
"framework legislation such as Colombia's Customs Statute (Decree No. 2685 of 1999, in particular
Titles V and VI), Resolution No. 4240 of 2000 and Colombia's Tax Code (Decree No. 624 of 1989)".
It is clear that these "measures" cover several hundreds of pages and a wide range of legal provisions,
the relationship of which to indicative prices is not always obvious, to say the least. Colombia thus
requests that the Panel rule that Panama's general references to "framework legislation such as
Colombia's Customs Statute and Colombia's Tax Code" do not satisfy the requirements of Article 6.2
DSU.
2. Panama's claims with respect to the indicative price measure are to be rejected
(a) Panama's claims under the Customs Valuation Agreement are to be rejected as indicative
prices are not a customs valuation method but only a customs control and verification
mechanism
4.49 Panama's "as such" allegation that Article 128.5 e) of the Decree No. 2685 of 1999 (the
"Customs Statute") and Article 172.7 of Resolution No. 4240 of 2000 violate Articles 1, 2, 3, 5, 6 and
7.2 (b), (f) and (g) of the Agreement on Implementation of Article VII of the General Agreement on
Tariffs and Trade 1994 (the "Customs Valuation Agreement") is unsubstantiated.
4.50 First, Panama errs in its allegation that Colombia uses the indicative prices as a mechanism to
value goods. Colombia uses indicative prices as a customs control mechanism, not as a customs
valuation method. Indicative prices are used to test the veracity of the declared value in the course of
a "control previo," while the customs value of the goods is determined using one of the methods of the
Customs Valuation Agreement in a "control posterior".
4.51 The challenged provisions of the relevant Colombian legal instruments, Article 128.5 e) of
Colombia's Customs Statute and Article 172.7 of Resolution No. 4240 of 2000 provide that if an issue
or dispute (a "controversia") arises as a consequence of the fact that the declared f.o.b. value is below
the indicative price as established by DIAN, the Colombian customs authority, the goods will be
released if the importer corrects its import declaration to reflect indicative prices and provisionally
pays, by way of deposit, customs duties and relevant taxes on the basis of those indicative prices.
Article 128 of Colombia's Customs Statute and Article 172.7 of Resolution No. 4240 deal with the
"release" ("levante") of the goods, not with the final "liquidation" ("liquidación") of the goods for
customs purposes. It is only following release of the goods and the posting of this deposit that the
División de Fiscalización Aduanera will determine the actual customs value of the imported good for
the purpose of assessing the duties. Such customs valuation will always be conducted on the basis of
the methods provided for by the Customs Valuation Agreement, and following the hierarchy of such
methods established by the Customs Valuation Agreement. Colombia presents specific examples of
cases in which, following the posting of a deposit on the basis of indicative prices, the customs value
was determined to correspond with the declared value and the deposit was refunded. Such a customs
control and verification mechanism which does not affect the determination of the customs value of
imported goods cannot be inconsistent with Articles 1 to 7 Customs Valuation Agreement, which
clearly relate to the "determination of the customs value" of imported goods. Panama's claims in this
respect are therefore to be rejected.
4.52 Colombia submits that Panama's legal arguments based on the text of the challenged
provisions are flawed. First, the requirement of Article 128.5 e) of the Customs Statute and
Article 172.7 of Resolution No. 4240 to correct the import declaration and provisionally pay duties
accordingly only constitutes a "guarantee" mechanism and does not represent valuation, as
erroneously submitted by Panama. This becomes evident from reading the challenged provisions in
their proper legal context. Both provisions are included in the sections of Colombia's laws and
regulations dealing with customs control and verification, and are not part of the separate provisions
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dealing with customs valuation. Moreover, the definition of the term "indicative prices" in
Colombia's Customs Statute confirms that indicative prices are a customs control mechanism.
Practical examples demonstrate that the system actually operates as a guarantee mechanism.
4.53 Second, Panama does not provide even one specific example in which duties were finally
assessed on the basis of the indicative prices. Rather, it presents its claims exclusively on the basis of
its understanding (incorrect) of the challenged provisions. Panama has assumed the risk that its
understanding of the legal provisions might be incorrect, and that its claim would therefore fail. This
is what has occurred. By not providing examples of how the laws and regulations are actually
applied, Panama has failed to establish a prima facie case.
4.54 Third, Panama's suggestion that indicative prices are a continuation of a terminated system of
minimum import values is equally without merit. There is an important distinction between the way
indicative values operate and the way minimum customs values operated in the transition period
following Colombia's accession to the WTO. Colombia urges the panel not to accept the simplistic
argument presented by Panama based on a perceived but misguided resemblance between indicative
prices and minimum import values.
4.55 In sum, Panama has not demonstrated that the identified measures are inconsistent with the
Customs Valuation Agreement. The challenged provisions of Colombia's laws and regulations
relating to indicative prices do not govern valuation, they do not require WTO-inconsistent behavior,
and they do not prevent WTO-consistent actions. Colombia thus requests the Panel to reject all of
Panama's claims in this respect.
(b) Panama's claim of discrimination under GATT Article III:2 is to be rejected as it lacks a
factual and legal basis
4.56 Panama's claim under Article III:2 in respect of the use of indicative prices as the basis for
assessing internal taxes is to be rejected. First, Panama fails to identify exactly which legal provision
of Colombia's laws and regulations it considers to be the "measure" which is allegedly inconsistent
with GATT Article III:2. As this implies that the matter is not clearly identified, the Panel is unable
to make an objective assessment of the matter before it, as required by Article 11 DSU.
4.57 Second, Panama has failed to meet its burden of proof. Panama merely alleges that a
different taxable base is used for the determination of internal taxes, without attempting to
demonstrate that such a difference results in the imposition of internal taxes with respect to imports
"in excess of" the tax burden on domestic products as required by GATT Article III:2.
4.58 Third, Panama's legal argument is built on the same flawed premise as its claims under the
Customs Valuation Agreement: that indicative prices are used to determine the customs value.
Nothing in Colombian law requires the sales tax on imported products to be imposed on the basis of
indicative prices, even in those cases in which the declared value is below the indicative price.
Article 459 of the Tax Code merely states that the taxable base for imported products shall be the
same as the dutiable base for liquidation of import duties. Article 468 of Colombia's Tax Code
imposes the same 16% tax on both domestic and imported products. There is therefore no "obvious"
violation of Article III:2, first sentence. Moreover, Panama errs when it alleges that for domestic
products the internal taxes are always determined on the basis of the transaction value, while this is
not the case with respect to imported products. Article 453 of Colombia's Tax Code permits the
Colombian tax authorities to equally disregard the transaction value or sales price of domestic
products as the taxable base in the event that such products are undervalued. Therefore, the premise
that discrimination exists is incorrect. With respect to both imported and domestic products alike,
undervaluation can lead to tax assessments based on a value other than the declared value.
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4.59 For all of the above reasons, Colombia requests the Panel to reject Panama's claim that
Colombia's use of indicative prices to determine the value of certain products for the purpose of
levying the sales tax is inconsistent with Article III:2, first sentence, of the GATT 1994.
3. Panama's claims in respect of the port of entry measure are to be rejected
4.60 Panama's second set of claims relates to Colombia's specification of the ports of entry for
imports of textile, apparel and footwear products imported from Panama as provided for in
Resolution No. 7373 of 22 June 2007, as modified by Resolution No. 7637 of 28 June 2007 (the "port
of entry" measure). Colombia took this measure for reasons relating to customs control and customs
specialization and in response to the persistent problem of contraband trade in such products from
Panama. The evidence reveals that smuggling and under-invoicing are particularly problematic with
respect to imports shipped from Panama, and that contraband involving textiles, apparel, and footwear
is particularly important in this respect. The problem is exacerbated by the lack of control exercised
over Panama's Free Trade Zone of Colon, which is recognized internationally as a focal point of illicit
trade.
(a) Panama's claim under GATT Article XI is without merit as the port of entry measure does not
constitute a prohibited quantitative restriction
4.61 Panama's claim that the port of entry measure makes importation more burdensome and thus
constitutes a de facto import restriction, in violation of Article XI of the GATT 1994 should be
rejected.
4.62 First, GATT Article XI provides for the elimination of quantitative restrictions. While the
terms used at the beginning of the paragraph 1 of Article XI are "prohibitions or restrictions" without
further qualification, it is clear from the context in which these terms are used that the kind of
"limitation" or restriction addressed in this provision refers to a limitation on the quantity of imports.
Colombia therefore submits that Panama's interpretation of the GATT Article XI as setting forth "a
comprehensive ban of all types of limitations on the importation of products other than duties, taxes or
other charges" is overly broad. Panama's interpretation is not consistent with the text of Article XI
and is not supported by the case law referred to by Panama when read in its proper context.
4.63 Second, Panama fails to meet its burden of proof. Panama has failed to provide any evidence
that the referenced measures restrict trade. Panama only offers one quotation by one transporter about
internal transportation costs in Colombia, and it makes no attempt to show that the internal
transportation cost differential affects trade. This is simply insufficient to establish a prima facie case
in respect of a measure which, on its face, does not impose a quantitative limitation on imports. In
addition, Colombia presents evidence that shows that the value of imports of the relevant products
from Panama actually increased in the course of the period in time during which the measure was in
place, further disproving Panama's allegation.
4.64 For all of the above reasons, Colombia requests the Panel to reject Panama's claim in respect
of the port of entry measure under GATT Article XI:1.
(b) Panama's claim that the port of entry measure is applied in a manner that is inconsistent with
GATT Article XIII:1 is to be rejected because Article XIII:1 does not apply to the situation at
hand
4.65 Panama's claim that the port of entry measure is inconsistent with GATT Article XIII:1 is to
be rejected because GATT Article XIII is not applicable to the case at hand. A proper reading of
GATT Article XIII in its context shows that this provision prohibits discrimination in the
administration of quantitative restrictions that (1) would normally be prohibited by Article XI; but (2)
are expressly permitted by the provisions of GATT Articles XI.2 and XII (as well as the relevant part
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of Article XVIII for developing countries). In other words, there are a limited number of situations
described mainly in the two Articles preceding Article XIII that allow for the use of otherwise
prohibited quantitative restrictions. Article XIII adds a non-discrimination obligation with respect to
such permitted quantitative restrictions.
4.66 Colombia considers that GATT Article XIII does not apply to measures, such as the
challenged port of entry measure, that are not quantitative restrictions prohibited by GATT
Article XI:1 (Colombia's view) or those that are in fact prohibited by Article XI:1, but not otherwise
authorized (Panama's view). Any other interpretation of the scope and coverage of this provision
would conflict with the text and defy common sense. There simply is no reason to provide for a
detailed and specific requirement of non-discriminatory administration of a measure which is already
prohibited by GATT Article XI:1.
4.67 As the port of entry measure is not covered by GATT Article XIII:1, Colombia submits that
Panama's claim of inconsistency with GATT Article XIII is to be rejected.
(c) Panama's claim that the port of entry measure is inconsistent with the requirements of GATT
Articles V.2 and V.6 lacks a factual basis as the port measure does not apply to goods in
transit
4.68 Panama's claim that the port of entry measure restrict the freedom of transit through the
Colombian territory inconsistently with Articles V:2 and V:6 of the GATT 1994 must be rejected. The
port of entry measures do not apply to goods in transit within the meaning of Article V. GATT
Article V applies only to goods destined for sale outside of the country through which it is passing
and the obligations of Article V, such as those set forth in GATT Articles V.2 and V.6, are thus
limited to goods that are destined for sale outside the transiting country.
4.69 However, the challenged port of entry measure does not apply to traffic in transit in the sense
of GATT Article V. The entries of textiles and other covered products that are in international transit
through Colombia in the sense that their final destination lies outside of Colombia are exempted from
the measure and can enter Colombia at any port of entry. Panama errs when it relies on Article 2 of
the challenged Resolution No. 7373, which states that the normal customs transit regime no longer
applies to the covered goods from Panama. This is merely a reference to the internal transit regime
which concerns transportation of goods from one customs house to another customs house "located
within the national territory of Colombia". It does not restrict international transit. In order to avoid
any misunderstanding, Article 4, paragraph 3 of Resolution No. 7373 provides that Article 2
disallowing the normal transit regime to covered goods "does not apply to goods that are submitted
for transshipment, since those goods do not have as their final destination Colombia". Colombia
provides a specific example to confirm that the measure is not applied to goods in international transit.
This contrasts with the fact that Panama has failed to provide even one case in which a good in
international transit from Panama was not allowed to enter Colombia through a port other than the
two ports designated by Resolution No. 7373.
4.70 For these reasons, Colombia requests the Panel to reject Panama's claim under GATT
Articles V:2 and V:6.
(d) Panama's claim that the requirement to present an advance import declaration and pay
customs duties and sales taxes for textiles originating in Panama violates Colombia's MFN
obligation under GATT Article I:1 lacks merit
4.71 Panama's argument of violation of GATT Article I:1 due to a specific aspect of the port
measure relating to the requirement to complete customs procedures and to pay customs duties prior
to the arrival of the goods at customs, and the limited options available for the presentation of the
legalization declaration without the payment of a fee, is without merit.
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4.72 First, Panama fails to demonstrate that this aspect of the measure constitutes "an advantage"
in the sense of GATT Article I:1. Panama does not provide any evidence with respect to the alleged
negative impact of such requirements on competitive opportunities for covered products imported
from Panama. Colombia considers that GATT Article I:1 does not prohibit any and all differences in
conditions that apply to Members' imports as long as such differences do not offer imports from
certain Members a competitive advantage over other Members' imports. Panama simply assumes that
these requirements affect a product's "competitive opportunities", but does not present any evidence
to this effect. There is nothing "obviously" advantageous in terms of competitive opportunities about
the very limited conditions imposed on Panama in this respect.
4.73 Second, and even assuming that the exemption of such requirements with respect to products
from other Members, constituted an advantage, this does not per se imply that such an advantage was
not "extended unconditionally" to Panama. Panama's argument is based on the erroneous assumption
that GATT Article I does not allow a Member to impose legitimate conditions on importation. The
MFN obligation of GATT Article I requires Members to extend any advantage immediately and
unconditionally to all WTO Members. Colombia submits that the requirement to extend such
advantages unconditionally does not imply that no conditions may be attached to the granting of the
advantage in the first place. Colombia's laws and regulations condition the formalities and ordinary
customs procedures on the need for the customs authorities to be able to control and verify imported
merchandise and to avoid circumvention of such laws and regulations through under-invoicing, fraud
and smuggling. This is a general policy condition which applies to all goods irrespective of their
origin. Article 41 of the Customs Statute provides that DIAN has the power to take measures relating
to the entry of the products for reasons of customs control. This provision of the Customs Statute is
of general application and conditions the formalities on the discretionary authority of DIAN to
determine what is necessary for customs control and verification purposes. The specific aspects of the
port measure challenged by Panama in the context of its GATT Article I:1 claim were simply the
result of the fact that certain textile, apparel, and footwear products from Panama proved problematic
in this light. The alleged advantage was granted under certain conditions (satisfaction of customs
control and verification), and since these conditions were not met in respect of the covered products
from Panama, the alleged advantage was amended with respect to such products from Panama. Since
it is not so that an advantage was conferred to other Members, which was not extended
unconditionally to products from Panama, Colombia considers that Panama's claim is to be rejected.
4.74 Also, Colombia considers that GATT Article I:1 applies to products originating in a Member
and that GATT Article I:1 is thus based on the origin of the product, not on its place of exportation.
Panama trades in the covered goods but does not produce all of the goods under discussion, and their
origin thus lies elsewhere. For that reason as well, Panama cannot claim that an advantage was not
extended unconditionally and immediately to products originating in Panama.
4.75 For all of the above reasons, Colombia request the Panel to reject Panama's claim under
GATT Article I:1 with respect to the challenged aspects of the port of entry measure.
4. Colombia's port of entry measure is in any case justified under the general defence of
GATT Article XX(d)
4.76 Colombia is of the view that it has sufficiently rebutted the arguments made by Panama in
respect of its port of entry measure and considers that all of Panama's claims should therefore be
rejected by the Panel.
4.77 However, in the event that the Panel were to be of a different view and were to uphold some
or all of Panama's claims in respect of the port of entry measure, Colombia submits that the general
defence of GATT Article XX(d) justifies the port of entry measure, which is a temporary measure
necessary to secure compliance with Colombia's customs laws and regulations. The specific
application of such a measure in respect of imports from Panama is justified on the basis of the
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evidence available to Colombia, and the measure is therefore not applied in a manner which
constitutes arbitrary or unjustifiable discrimination.
(a) The port measure is provisionally justified under paragraph (d) of GATT Article XX
4.78 Colombia considers that the port of entry measure meets the conditions for being
provisionally justified under paragraph (d) of Article XX as it is (i) a measure designed to secure
compliance with Colombia's customs laws and regulations which themselves are deemed to be
WTO-consistent; and (ii) is necessary to secure such compliance.
4.79 First, as becomes clear from the preamble of Resolution No. 7373 of 2007, the port of entry
measure is clearly designed to secure compliance with Colombia's laws relating to customs
enforcement.
4.80 Second, Colombia submits that the port of entry measure is "necessary" to secure compliance
with Colombia's laws relating to customs enforcement. In its most recent assessment of the meaning
of the term "necessary" in Article XX, the Appellate Body in its report on Brazil – Tyres stated that a
measure is to be considered as "necessary" if it is "likely to bring a material contribution" or "apt to
produce a material contribution" to the achievement of the policy objective. The determination of
whether a measure is "necessary" involves in every case a process of weighing and balancing a series
of factors which prominently include the importance of the common interests or values protected by
that law or regulation, the contribution made by the compliance measure to the enforcement of the law
or regulation at issue, and the accompanying impact of the law or regulation on imports or exports.
(i) The port of entry measure concerns a very important set of interests or values
4.81 There can be no dispute about the importance of combating under-invoicing, tax evasion,
smuggling, and money laundering, which are all relevant in this context. Colombia notes that in the
case of Dominican Republic – Import and Sale of Cigarettes, the fight against tax evasion and
smuggling was accepted as "a most important interest for any country and particularly for a
developing country". Unfortunately, the revenue lost due to contraband from Panama is very
significant. In addition to a loss of revenue which is of key importance to a developing country like
Colombia, these illegal activities undermine the political and economic stability of Colombia in its
present context. Colombia is not like every other country in this respect. It is faced with an important
domestic problem of drug trafficking and public order. The values protected by the measure in
question are clearly very important.
(ii) The port of entry measure is apt to contribute in a material way to the achievement of the
objective
4.82 The port of entry measure contributes significantly to customs enforcement through improved
customs control and specialization. First, it is difficult to deny that a measure which requires that
products be imported through the limited number of ports that are best equipped to control imports in
the most effective manner is a measure which, in the words of the Appellate Body, is "apt to make a
material contribution" to the achievement of the policy objective of combating smuggling. Second,
the positive effects that the measure has had thus far, as demonstrated by the significant increase in
contraband related seizures with respect to textile related products from Panama in 2007 compared to
2006, confirms the potential significant contribution of the measure to the achievement of the policy
objective. In sum, the challenged measure clearly has the potential to be very effective in
strengthening customs enforcement as it leads to further specialization and an increased focus and
improved knowledge in a limited number of ports.
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(iii) The port of entry measure does not have a significant adverse impact on legitimate trade
4.83 The port of entry measure does not have a significant negative impact on legitimate trade,
while it is effective in combating smuggling and under-invoicing. First, Colombia emphasizes the
limited character of the restriction imposed. The port of entry measure is not an import ban; it simply
requires that certain products be shipped through two specific ports. Second, the two specified ports
are among the most modern ports of Colombia, which, even before the port measure was adopted,
were among the most important ports of entry for trade in the covered products from Panama. Third,
there are a number of exemptions from the application of the measure which ensure that legitimate
trade in the covered products from Panama is, to the extent possible, not at all affected by the measure
imposed to curb illegal trade. Finally, the available evidence shows that the value of imports of the
covered products from Panama and its Free Zone de Colon did not actually decrease due to the
implementation of the measure; the value increased over the period.
(iv) There were no reasonably available alternative measures
4.84 Colombia considers that it has sufficiently established that the port of entry measure is
necessary to secure compliance with Colombia's laws and regulations relating to customs
enforcement. The Appellate Body has stated that it is for the complainant, in this case Panama, to
demonstrate that other alternative measures were reasonable available to Colombia which would be as
effective as the measure taken.
4.85 Nevertheless, Colombia points to two alternatives which either proved to be unsuccessful or
were not practicable in the context of the products in question. First, Colombia has consistently tried
to improve the cooperation with Panama's customs authorities in order to secure compliance with its
customs laws and regulations. However, both in the multilateral context of the Convention on
Cooperation and Mutual Assistance between the Customs Administrations of Latin America, Spain
and Portugal ("COMALEP"), and under the October 2006 bilateral Protocol for the Exchange of
Information between the Customs authorities of Colombia and Panama (the "Customs Cooperation
Protocol") with Panama, such efforts proved to be fruitless. The frequent failures of the authorities of
Panama to respond to requests for assistance, and the numerous inconsistencies in respect of the
answers received affected the credibility of the cooperation offered by Panama and thus undermined
an important element of the regional system of customs enforcement.
4.86 Second, in other sectors also prone to smuggling and under-invoicing such as cigarettes and
electrical appliances, Colombia was able to conclude agreements with the private sector to jointly
fight contraband. The limited number of importers and distributors of such products allowed the
government to require the cooperation of these private parties in combating smuggling, something
which is not possible in the case of the covered products due to the number of importers and traders in
such products.
4.87 For all of the above reasons, Colombia submits that the port measure satisfies the
requirements to be considered provisionally justified under GATT Article XX(d).
(b) The port of entry measure complies with the chapeau of Article XX
4.88 Colombia submits that, as required by the chapeau of GATT Article XX, the port measure is
not applied in a manner that constitutes arbitrary or unjustifiable discrimination or a disguised
restriction on trade. The evidence demonstrates that Colombia's concern over the covered imports
from Panama is justifiable and that the exclusive focus on Panama bears a clear "rational connection"
to the objective falling within the purview of paragraph (d) of Article XX. Colombia faces a serious
problem of contraband coming from Panama, linked to money-laundering and drug trafficking which
has an obvious destabilizing effect on the country's economy. The difference in the data from the
export side compared to what has been declared by the importer reveals that the amount of contraband
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from Panama to Colombia is two to three times the value of the formal trade between the two
countries. Colombia considers that the differentiation in the application of the measure is therefore
clearly justifiable.
4.89 Colombia submits that for much the same reasons, the port of entry measure cannot be
considered to have been applied in a manner which would constitute a disguised restriction on trade.
Colombia refers once again to the objective of customs enforcement, customs control and
specialization pursued by the port measure, which even Panama acknowledges to underlie the
measure. The measure is thus clearly not about restricting trade for protectionist purposes at all. And,
again, the statistics show that the measure has not, in fact, restricted trade.
4.90 For all of the above reasons, the port measure challenged by Panama is a measure necessary
to secure compliance with Colombia's laws and regulations relating to customs enforcement which is
not applied in a manner which would constitute arbitrary or unjustifiable discrimination between
countries where the same conditions prevail or a disguised restriction on international trade.
Therefore, even if the Panel were to uphold some or all of Panama's claims in respect of the port
measure, Colombia requests the Panel to find that the measure is justified under GATT Article XX(d).
5. Request for findings
4.91 For all of the above reasons, Colombia requests the Panel to reject all of Panama's claims.
C. EXECUTIVE SUMMARY OF THE REBUTTAL SUBMISSION OF PANAMA
1. Legal argument
(a) Colombia has failed to demonstrate that it uses indicative prices as a customs control
mechanism and not for customs valuation purposes
4.92 Colombia notes that Article 128 is part of Chapter VI "Ordinary Importation" in Title V
"Regimen de Importación" and not part of Title VI "Customs Valuation"; and that Article 172.7, is in
Chapter II "Control of Customs Valuation" and not in Chapter III "Determination of Customs
Valuation". It uses the placement of these provisions to argue that they are a customs control
mechanism and not a customs valuations method. In Panama's view, the placement of a provision in a
particular chapter is not determinative of the nature of that measure. As the Appellate Body has made
clear, for purposes of WTO law, a domestic instrument must be assessed on the basis of its content
and substance and not the label given to it under domestic law. Therefore, the manner in which
Colombia classifies the challenged provisions in its law cannot be determinative of their consistency
with the Customs Valuation Agreement. It is necessary for the Panel to examine the design, structure
and architecture of the law itself in order to make such a determination.
4.93 The purpose of customs valuation is to determine the value of the goods for the purpose of
levying ad valorem custom duties on imported goods. Generally, goods will be valued as soon as
they are presented for customs clearance so that the appropriate duties may be levied and the goods
may be released. For products subject to indicative prices, the value of the goods for the purpose of
levying ad valorem custom duties on imported goods is determined when the importer submits its
import declaration. The customs valuation of such products is based on the values established in the
applicable Resolutions and not on the declared transaction value. It is at this point that the customs
value is determined as Customs reviews the declared value to ascertain whether it is above or below
the indicative price for that product. If the declared value is equal to or above the indicative prices,
then that declared value will be accepted as the value of the goods for the purpose of levying
ad valorem custom duties. The documents are not sent to the División de Fiscalización Aduanera for
further review as valuation takes place at the time of inspection. Accordingly, the customs duties for
such goods are levied on the basis of the indicative price or a higher amount.
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4.94 If, however, the declared value is lower than the indicative price, then the declared value is
not accepted as the customs value for the purpose of levying customs duties. The importer is required
to "correct" the value of the goods in the import declaration and pay the customs duties based on that
corrected custom value.
4.95 If an importer decides not to "correct" the import declaration, the documents are not sent to
the División de Fiscalización Aduanera for review. In these circumstances, Customs has already
made a determination that it will not accept the declared transaction value and thus, valuation of the
product has taken place. Colombia confirms that "if the importer decides not to comply with the legal
requirements ... the goods will have to be removed from the port (i.e., re-shipped), and, if not, after
1 month, they will be considered as abandoned". The fact that the documents are not sent to the
División de Fiscalización Aduanera demonstrates that, in such cases there is no valuation undertaken
at a later stage.
4.96 Colombia argues that "the release of the goods [subject to indicative prices] is subject to
further verification/post-importation control ("control posterior") during which the actual customs
value for the purpose of assessing the duties will be determined." However, despite a specific request
from the Panel to identify the legal basis for the "control posterior" or liquidation procedure,
Colombia failed to do so. Furthermore, the Panel asked Colombia to indicate which legal provisions
govern the "estudio de valor". In its response, Colombia stated that Title VI of Decree No. 2685 deals
with customs valuation ("estudio de valor"). However, the term "estudio de valor" does not appear
anywhere in Title VI, so the basis for Colombia's assertion is unclear.
4.97 Even though Colombia did not identify the legal basis for the "control posterior" or the
"estudio de valor", it provided a narrative explanation that the "control posterior" starts with the
"estudio de valor" (valuation) and ends with either the "liquidación oficial" (Article 514) or the refund
of the cash payment made at the time of the release (Article 548). Article 514, which provides for the
"liquidación oficial de revisión de valor correspondiente", is for the review of the customs value
determined at the time of inspection. The term used is that of revisión or review of the value.
Consequently, the forwarding of the documents to the División de Fiscalización Aduanera is for the
review of the customs value in the corrected import declaration and not for the purpose of conducting
the original determination of the customs value. Moreover, by its very terms, a "control posterior"
would serve as a "control" mechanism and not as a valuation mechanism.
4.98 Article 548 contemplates the possibility of an importer requesting DIAN for the
reimbursement of customs taxes and other amounts paid in excess in the following situations:
(a) When the import declaration has been liquidated and an amount higher than that due
for custom taxes has been paid;
(b) When an amount higher than that liquidated and due for customs taxes has been paid;
(c) When the import declaration has been presented and the customs taxes have been
paid without obtaining the authorization for the release of the merchandise or if the
authorization has been partially obtained; or,
(d) When the payment for provisional anti-dumping or countervailing duties has been
effected and these duties are not definitively imposed.
4.99 First, Article 548 applies only in situations where the importer seeks the reimbursement of
custom taxes that have been paid. Most significantly, Article 548(a) applies in situations where the
importer has liquidated the import declaration and has paid an amount higher than that due for
customs taxes. As noted by Colombia, Article 548 a) applies to situations involving indicative prices.
This confirms that Article 128.5 e) contemplates the payment of customs taxes for which the importer
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may seek reimbursement at a later stage. It does not refer to the refund of a guarantee. Second,
Colombia claims that when "the declared f.o.b. value is below the indicative price established by
DIAN, the goods will be released (levante) ... if the importer provisionally posts a deposit on the basis
of those indicative prices." The text of Article 128.5 e) does not contain a reference to a "provisional"
payment. Article 548 clearly distinguishes between payments and provisional payments.
Article 548(d) is applicable in situations involving payment of provisional anti-dumping duties.
Therefore, when the reimbursement applies to a provisional payment, Article 548 specifically notes
the provisional nature of the payment.
(b) Colombia has failed to demonstrate that the correction of the import declaration and the
payment of the customs taxes provided for in Article 128.5 e) of Decree No. 2685 are a
guarantee mechanism within the meaning of Colombian Law and Article 13 of the Customs
Valuation Agreement
4.100 Colombia argues that the "correction" of the import declaration followed by the payment of
duties "is no more than the imposition of a requirement to provide a guarantee in the form of a
deposit". Colombia's reasoning is as follows: Andean law provides that a guarantee can be provided
in the form of a "fianza, depósito u otro medio apropiado". Andean Community Regulation 846
implementing Andean Decision 571 which is directly applicable in Colombian law expressly states
that an importer is always allowed to obtain the release of the goods, if the importer provides a
guarantee in the form of a security, deposit or any other form. Article 128.5 e) provides that an
importer must correct and make a payment. Colombia construes this payment as a "deposit". As a
guarantee may be provided in the form of a deposit under Andean law, Colombia submits that the
payment referred to in Article 128.5 e) is a deposit which is the form that the guarantee takes.
Colombia's reasoning is flawed. First, it assumes that the payment made is a "deposit" and not a
payment. However, there is no textual basis for Colombia to argue that the payment of the customs
duties in Article 128.5 e) is merely a deposit. The clear wording of Article 128.5 e) is that the
importer must correct the import declaration and pay the customs taxes on the basis of the indicative
price. It does not say that the importer must "provide a deposit" or "provisionally pay the customs
taxes pending final determination." Most significantly, it does not offer an importer the opportunity
to post a "guarantee".
4.101 Second, Colombia refers to various provisions of Andean law and Colombian law to
demonstrate that the guarantee may take the form of a "fianza, depósito u otro medio apropiado" and
that the guarantee may constitute 100 per cent of the duties owing. However, Panama notes that all
the provisions cited by Colombia specifically refer to the posting of a "guarantee". The term
"guarantee" is a technical term. Thus, these provisions only apply in those cases where the law
specifically allows an importer to post a "guarantee", such as in Article 128.5 a) to d). They do not
apply when the term "guarantee" is not used in the law, as in the case of Article 128.5 e). Moreover,
although the provisions of Andean law cited by Colombia contemplate a guarantee being provided in
the form of a bond, deposit or other appropriate means, Article 496 of Resolution No. 4240 provides
for only two types of guarantees: global or specific that can be bank or insurance company
guarantees. It does not contemplate the possibility of a "deposit".
4.102 Colombia claims that the challenged provisions "clearly set forth a guarantee mechanism as
allowed for by Article 13 and 17 of the Customs Valuation Agreement". Colombia bears the burden
of proof in this regard, which it has not met. A careful examination of the facts and the law at issue
demonstrates that the correction and payment required in Article 128.5 e) do not meet the
requirements of Article 13 of the Customs Valuation Agreement. A condition precedent for the
application of Article 13 is that it is "necessary to delay the final determination of [the] custom value".
Colombia asserts that it is up to the "domestic customs authorities to decide when they consider that
such a delay is necessary. Such discretion has to be exercised within reason of course." Panama
considers that Article 13 cannot be construed in such a deferential manner. It is not solely up to the
customs authorities to decide at their discretion that a delay is necessary. Whether it is necessary to
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delay the final determination of the customs value must be decided on an objective basis, taking into
account the particular facts of the case at hand. Colombia refers to Exhibit COL-6 to submit that the
Technical Committee of the WCO has noted that "delays" in determining the final customs value of a
product are "very frequently the case." Panama notes that this assertion made by Colombia in the text
of its submission does not correspond to the text in Advisory Opinion 18.1 of the Technical
Committee of the WCO. There is no reference in Opinion 18.1 to delays in the final determination of
the customs value occurring frequently. The Advisory Opinion provides an example of when it may
be considered "necessary" to delay the final determination: where adjustments in accordance with
Article 8 should be made but the relevant data at the time of importation is not available. Thus, an
objective criterion to determine whether it is "necessary" to delay the final determination of the
customs value would be whether the relevant data or documents were not available. This is not the
situation with respect to the imports of products subject to indicative prices.
4.103 Article 13 provides that where a Member allows the withdrawal of goods from customs
subject to the provision of a guarantee, that guarantee must be sufficient to cover the ultimate payment
of customs duties for which the goods may be liable. In order to determine whether a guarantee is
"sufficient", a Member is obliged to assess the "ultimate payment of customs duties for which the
goods may be liable". In Panama's view, the assessment of the ultimate payment for which the goods
may be liable must be carried out in the light of the specific circumstances of each case and must be
undertaken in accordance with the rules on customs valuation set out in the Customs Valuation
Agreement. For the purposes of Article 128.5 e), the "ultimate payment of the customs duties for
which the goods may be liable" intended to be secured by the alleged guarantee is not determined on
the basis of any of the methods of customs valuation set out in the Customs Valuation Agreement for
each specific importation involving goods subject to indicative prices. Rather, it is determined on the
basis of a minimum customs values or arbitrary or fictitious values. Colombia itself notes that it has
the "right to examine whether the declared value is truthful or accurate, including through the use of
objective benchmarks to indicate whether undervaluation has taken place for example through the use
of indicative prices". Thus, Colombia acknowledges that it uses objective benchmarks of indicative
prices to determine the ultimate payment of customs duties for which the goods may be liable and
does not follow the valuation methods set out in the Customs Valuation Agreement. Furthermore, as
Colombia does not conduct a case-by-case analysis, it requires the payment of customs duties in all
instances including those in which the payment of a smaller amount would constitute a sufficient
guarantee.
4.104 The payment of customs taxes or "deposit" does not qualify as an appropriate instrument to
provide a guarantee. Colombian law limits the form in which guarantees may be made. Article 496 of
Resolution No. 4240 in Title XVIII (Garantías) only provides for two types of guarantees: global or
specific, which can be bank or insurance company guarantees. Thus, the specific provision of
Colombian law governing guarantees does not contemplate the possibility of a "deposit" as a
guarantee. This is further confirmed by the text of Articles 523 and 527 of Resolution No. 4240
which provide that the validity of a guarantee will be for a period of one year. This qualification
would only be applicable to bank or insurance company guarantees, and not to cash deposits.
(c) Colombia has failed to demonstrate that its use of indicative prices is an action taken pursuant
to Article 17 of the Customs Valuation Agreement and the Decision Regarding Cases Where
Customs Administrations Have Reasons to Doubt the Truth or Accuracy of the Declared
Value
4.105 Colombia claims that "the use of the transaction value of the good for the determination of its
customs value does not restrict or call into question the right of Colombia to examine whether the
declared value is truthful or accurate, including by using objective benchmarks to indicate whether
undervaluation has taken place for example through the use of indicate prices." In Panama's view,
while nothing in Article 17 of the Customs Valuation Agreement limits the right of customs
authorities to satisfy themselves as to the truth and accuracy of the declared value, it is also clear that
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nothing in Article 17 suggests that, in the exercise of that right, customs authorities can automatically
reject the declared value and instruct the importer to use a different value without previously
examining, on a case-by-case basis, the facts to determine the truth and accuracy of the declared
value.
4.106 The right of customs authorities to satisfy themselves as to the truth or accuracy of the
declared value must be construed in the light of paragraph 6 of Annex III of the Customs Valuation
Agreement and the Decision Regarding Cases Where Customs Administrations Have Reasons to
Doubt the Truth or Accuracy of the Declared Value (the "Decision") which confirms that the right
provided under Article 17 of the Customs Valuation Agreement must be exercised on a case-by-case
basis. Colombia admits that when a declared value is below the indicative price, it has doubts about
the veracity of that declared value (i.e. "suspiciously low"). In such circumstances, Colombia's
customs authorities should satisfy themselves as to the truth or accuracy of the declared value in
accordance with paragraph 6 of Annex III of the Customs Valuation Agreement and the special
procedures set out in the Decision. Instead, Colombia improperly opts to reject the declared
transaction value on its face, and requires its automatic correction to reflect the indicative price.
4.107 Colombia claims that the Decision must be applied "at the time of valuation of the goods" and
that such a time is "when the declared value … is being rejected and the decision is made to base the
valuation on one of the other methods of Articles 2-7 Customs Valuation Agreement". It further
argues that "[i]n the Colombian system of customs valuation, this decision is taken for some
transactions only at the time of the control posterior, and not at the time of the release of the goods
under a guarantee". Panama considers that the Decision must be applied in accordance with the
conditions set out therein, i.e. as soon as "a declaration has been presented and … the customs
administration has reason to doubt the truth or accuracy of the particulars or of documents produced
in support of this declaration." This must refer to the moment of importation or presentation of the
import declaration for customs clearance, and not an alleged control posterior that may take place
afterwards, even months or years later.
(d) Colombia has failed to rebut Panama's argument that the indicative prices are a continuation
of minimum customs values
4.108 Panama made a claim in its first submission that Colombia had requested a reservation to
maintain minimum values for textile and footwear products until 30 April 2002. Despite the fact that
the reservation has now lapsed, Colombia continues to impose indicative prices on 73 per cent of the
products that were previously subject to the reservation. Colombia's only response is that "there is an
important distinction between … a system of minimum import values that existed in the as a customs
valuation method and the current mechanism of using indicative prices as benchmarks only".
Although Colombia has attempted to cast the indicative prices system as one of "custom control" or a
"benchmark", it is clear from the analysis provided above that the system is one of customs valuation.
In that sense, it is the same as the previous system of minimum customs values, for which Colombia
considered it necessary to request a reservation from its obligations under the Customs Valuation
Agreement.
(e) Colombia has failed to demonstrate that it does not use indicative prices for the determination
of the base for the sales tax for imported products in a manner inconsistent with Article III:2
and Article III:4 of the GATT 1994
4.109 Colombia claims that Panama failed to identify the measure with sufficient clarity. Panama's
challenge under Article III:2 of the GATT 1994 is based on the ground that the sales tax on imported
goods subject to indicative prices (when the declared value is below the relevant indicative price) is
"in excess" of the sales tax imposed on like domestic goods. The difference in tax burdens arises
from the application of different rules for the determination of the tax base for imported and domestic
goods. It is evident from Colombia's first written submission that Colombia has been able to identify
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the measure at issue as Colombia's use of indicative prices to determine the value of imported textiles,
footwear and other products for the purpose of levying the sales tax, as implemented by Article 459 of
the Tax Code in connection with Article 128.5 e) of Decree No. 2685 and Article 172.7 of
Resolution No. 4240, whereas for like domestic products, Colombia uses the valor de operación
pursuant to Article 447 of the Tax Code. Furthermore, third parties such as the European
Communities, Guatemala and Ecuador have also been able to identify the measure at issue, and
accordingly, have put forward arguments with respect to Panama's claim.
4.110 Colombia argues that Panama has failed to meet its burden of proof with respect to its claims
that the use of indicative prices as the basis for taxing imported products is inconsistent with
Article III:2. Panama recalls that in Argentina – Hides and Leather, the Panel found that "even where
imported and like domestic products are subject to identical tax rates, the actual tax burden can still be
heavier on imported products. This could be the case, for instance, where different methods of
computing tax bases lead to a greater actual tax burden for imported products."
4.111 For Panama, it is clear that if the tax base for domestic goods is the actual sales value,
whereas for imported goods the tax base is a higher indicative price, the application of the same tax
rate of 16 per cent will lead to the imposition of a sales tax on imported goods greater than the sales
tax on the like domestic products. As noted by the European Communities, a system whereby
indicative prices are systematically used to determine the value of imported products for the purpose
of levying sales taxes when the transaction value is used instead to determine the value of domestic
like products for that purpose is, on its face, contrary to Article III:2, first sentence, of the GATT 1994.
Therefore, contrary to Colombia's assertion, Panama has met its burden of proof with respect to its
challenge under Article III:2 of GATT 1994.
4.112 Colombia also argues that Panama has failed to submit evidence of specific instances of
violation of Article III:2. Panama notes that a previous panel has made clear that the "quantum and
nature" of the evidence required for a complaining party to discharge its burden of establishing a
violation of Article III:2 depends "on the structure and design of the measure in issue". The panel in
Indonesia – Autos stated that "an origin-based distinction in respect of internal taxes suffices in itself
to violate Article III:2, without the need to demonstrate the existence of actually traded like products".
In the present case, the different tax treatment is provided on the basis of the origin of the goods.
Therefore, Panama submits in this instance that the challenged provisions in themselves are sufficient
evidence of discriminatory treatment inconsistently with Article III:2 of GATT 1994.
4.113 The tax base for imported goods is always based on the indicative prices whereas the tax base
for domestic goods is based on the actual sales price unless demonstrated otherwise. As noted by the
European Communities, "the fact that, as a result of a posteriori verification procedure, the invoiced
transaction value of domestic products can be considered inaccurate due to likely undervaluation,
does not change the basis for the application of the general rule, i.e., sale tax on imports is based on
indicative prices, whereas like domestic products are levied on the basis of transaction values."
4.114 If the Panel were to consider that the measure at issue does not fall under Article III:2 of
GATT 1994, the Panel should find that the measure is inconsistent with Article III:4 of GATT 1994.
Panama submits that Article 459 of the Tax Code, Article 128.5 e) of Decree No. 2685 and
Article 172.7 of Resolution No. 4240 accord to imported products subject to indicative prices
treatment less favourable than that accorded to domestic products under Article 453 of the Tax Code,
within the meaning of Article III:4 of the GATT 1994. In Korea – Various Measures on Beef, the
Appellate Body stated that, in order to establish a violation of Article III:4, three elements must be
satisfied "that the imported and domestic products at issue are 'like products'; that the measure at issue
is a 'law, regulation, or requirement affecting their internal sale, offering for sale, purchase,
transportation, or use'; and that the imported products are accorded 'less favourable' treatment than
that accorded to like domestic products". First, Panama notes that, with respect to the question of
likeness between imported and domestic products, Colombia has conceded that the indicative price
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measures apply to imported products that are like domestic products. Second, Panama claims that the
provisions of Colombia's law according differential treatment between imported products and
domestic products are in the nature of "laws, regulations and requirements" affecting the internal sale,
offering for sale, purchase, and use of the imported products subject to indicative prices. Third, the
differential treatment that is accorded to imported products subject to indicative prices pursuant to
Article 459 of the Tax Code in connection with Article 128.5 e) of Decree No. 2685 and Article 172.7
of Resolution No. 4240 is less favourable than that accorded to like domestic products under the
regular rules and procedures of the Tax Code. When an imported product that is subject to indicative
prices is presented for the liquidation of customs taxes, Article 128.5 of Decree No. 2685 and
Article 172.7 of Resolution No. 4240 contemplate the sole possibility of correcting the declared value
if it is lower than the applicable indicative price, and requires the payment of the customs taxes on
that basis. In contrast, in the case of the like domestic products, a taxpayer is entitled to base its tax
declaration on the actual sales price or value of the transaction, as he determines, and liquidate and
pay the sales tax on this basis. Furthermore, Article 453 allows the demonstration of the transaction
value, a possibility that is precluded for imported goods subject to indicative prices. Therefore, the
rules and procedures governing the determination of the tax base for the sales tax on imported
products subject to indicative prices are inconsistent with Article III:4 of the GATT 1994.
(f) Colombia has failed to rebut Panama's claim that the port of entry restrictions are inconsistent
with Article XI:1 of the GATT 1994
(i) The port of entry restrictions do not have the characteristics of a genuine customs
enforcement measure
4.115 Colombia claims that the port of entry restrictions were implemented in order to ensure
compliance with Colombian customs law and combat contraband and money-laundering. However,
the limited product coverage of the port of entry restrictions, their exclusive application to Panama
and the many exemptions serving domestic economic interests clearly demonstrate that the measure is
not a genuine customs enforcement measure. Moreover, there is no justification for singling out
Panama as the target of the port of entry restrictions. Chart 3 in Exhibit COL-38 indicates that
imports from Panama with incidents of "distorsions" amount to US$906,354 while those from the
United States amount to US$2,902,809 and those from ALADI as a whole US$2,500,876. Colombia
has stated that "when a government is faced with information that shows that particular imports from
one particular country were particularly problematic, it is only reasonable and appropriate that this
government takes particular measures in order to improve the customs control in respect of measures
from that particular country". Applying this reasoning, it is not clear why Colombia has not applied
the port of entry restrictions to other countries that have proven to be "problematic".
(ii) Colombia's interpretation that Article XI:1 prohibits only measures that impose a restriction
on the quantity of imports is not supported by the text of Article XI:1 or the jurisprudence
4.116 Colombia submits that the title and the text of Article XI:1 make clear that this provision
applies only to the elimination of quantitative restrictions. It reasons that because the port of entry
restrictions do not impose a quantitative restriction on imports, they cannot fall within the scope of
Article XI:1. Thus, Colombia's whole defence rests on the issue of whether the ports of entry
restriction impose a quantitative restriction. Colombia does not offer a defence to Panama's claim that
the ports of entry restrictions constitute a "restriction" within the meaning of Article XI:1. Thus, if
Panama can demonstrate that Article XI:1 is not limited in its coverage to quantitative restrictions,
then Colombia's whole defence must fail.
4.117 The term "quantitative restrictions" appears only in the heading of Article XI. The text itself
uses the terms "prohibitions" and "restrictions". Panama notes the existence of the term "quantitative"
to modify restrictions in the heading of Article XI is not determinative of the scope of Article XI:1.
There are several GATT articles in which the heading does not fully describe the scope of the article.
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For example, Article X is entitled "Publication and Administration of Trade Regulations".

Nevertheless, the text in Article X:1 refers to "laws, regulations, judicial decisions and administrative
rulings of general application". Similarly, Article XIII is entitled "Non-discriminatory administration
of quantitative restrictions" but it contains provisions on the administration of tariff rate quotas which
are not quantitative restrictions.
4.118 Colombia's argument that Article XI is limited to quantitative restrictions does not find any
support in GATT/WTO jurisprudence. Contrary to Colombia's argument, there have been several
cases in which panels have found that a non-quantitative restriction was in violation of Article XI.
Most recently, in Brazil – Retreaded Tyres, the panel stated that "fines" were a restriction within the
meaning of Article XI:1. In EEC – Minimum Import Prices, a GATT panel found that the "minimum
import price system was a restriction within the meaning of Article XI:1", even through imports were
not restricted on a quantitative basis. In Canada – Provincial Liquor Boards, the panel found that
limitations on the points of sale available to imported beer were restrictions within the meaning of
Article XI:1.
(g) Colombia has failed to rebut Panama's claim that the ports of entry restrictions are
inconsistent with Article XIII:1 of the GATT 1994
4.119 Colombia states that a "proper reading ... clearly limits the application of Article XIII to those
quantitative restrictions that are in principle prohibited by Article XI:1, but which are covered by the
exceptions to this prohibition under Article XI:2, Article XIII and Article XVIII". However, the text
of Article XIII:1 does not qualify its application to permitted restrictions. It provides that no
prohibition or restriction shall be applied by any WTO Member on the importation of any product
from another WTO Member unless the importation of the like product of all third countries is
similarly prohibited or restricted. As is clear from the text of Resolution No. 7373, the port of entry
restrictions apply only to goods from Panama. They do not apply to goods from other sources. Thus,
the measure is applied on a discriminatory basis. In the light of the above clarifications, Panama asks
the Panel to find that the port of entry restrictions are restrictions within the meaning of Article XI and
that like products from other countries are not similarly restricted within the meaning of Article XIII:1
of the GATT 1994.
(h) If the Panel were to find that Article XI:1 is not applicable, then Panama requests that the
Panel find that the discriminatory features of the port of entry measures are in violation of
Article I:1 of the GATT 1994
4.120 In its request for the establishment of a Panel, Panama claimed that the port of entry
restrictions were inconsistent with Articles XI:1 and XIII:1 as well as Article I:1 of the GATT 1994.
If the discriminatory aspects of the measure were found to be inconsistent with Article XIII, there
would be no need to have recourse to Article I:1. However, should the Panel find that the port of
entry restrictions do not fall within Article XI (and consequently Article XIII), then Panama requests
that the Panel find that discriminatory aspects of the port measures are inconsistent with Article I:1.
The requirement to enter textile and footwear products at Barranquilla and Bogota is a rule in
connection with importation. While textiles and footwear coming from Panama are limited to entry
and importation at these two ports, textiles and footwear coming from other countries may enter at
any eligible port in Colombia. Thus, products of non-Panamanian origin enjoy the advantage of being
able to be entered and imported at several ports. The advantage of being able to enter and import
textiles and footwear at more than two designated ports is not extended immediately and
unconditionally to imports from Panama. The port of entry restrictions that are applicable
exclusively to goods from Panama are, therefore, inconsistent with Article I:1 of the GATT 1994.
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(i) Colombia has failed to rebut Panama's claim that it imposes limitations on freedom of transit
in a manner inconsistent with Article V:2 of the GATT 1994
4.121 Article 4 of Resolution No. 7373 provides that "[t]he provisions of Article 2 of this
Resolution No. shall not apply to goods that are to be subjected to the transhipment procedures,
considering that in this case the goods do not have Colombia as their final destination."
"Transhipment" is a defined term in Colombian law which means that the goods must be transferred
from the means of transportation used for the arrival of the goods in Colombia to another means of
transportation used for the departure of those goods from Colombia. The transfer must take place
within the same customs office. However, Colombia appears to focus on whether the goods in
question have Colombia as their final destination or not. However, by virtue of Article 4, the
provisions of Article 2 do not apply when the goods are subject to the transhipment procedure, as, in
that case, the goods do not have Colombia as their final destination. The question to be answered is
whether the goods in question are subject to the transhipment procedure, not whether the goods in
question do not have Colombia as their final destination. If transhipment were not a limitation, then
Article 4 would have read that the ports of entry restrictions would not apply to "goods that do not
have Colombia as a final destination". It does not so read. The failure of Colombia to permit freedom
of transit to all goods in transit, not only those that are transhipped, is inconsistent with its obligations
under Article V:2.
(j) Colombia has failed to rebut Panama's claim that it accords treatment less favourable to goods
that have been in transit through Panama in a manner inconsistent with its obligations under
Article V:6 of the GATT 1994
4.122 As noted in Panama's first written submission, Colombia permits textiles from other WTO
Members to be entered and imported at any eligible port in Colombia, but prohibits the entry and
importation of the same products except at the ports of Barranquilla or Bogota if they had been in
transit through Panama.
4.123 Colombia has interpreted Article V:6 to apply to goods that are in transit through Colombia.
Article V:1 provides that the term "traffic in transit" describes goods that begin and terminate their
journey beyond the frontier of the WTO Member across whose territory the traffic passes. Thus,
goods may originate in Member A, transit through Member B and terminate in Member C. Colombia
assumes that Article V contains obligations for Member B only as it is the country of transit.
However, while Article V:2 (as well as paragraphs 3, 4 and 5) refers to the obligation imposed on
Member B to provide freedom of transit through its territory, Article V:6 refers to the obligation
imposed on Member C to not discriminate against goods arriving in its territory that have been in
transit through Member B. The fact that Article V:6 imposes an obligation on the Member in whose
territory the goods terminate their journey (i.e., the country of importation) is made clear by the
second sentence of Article V:6 which refers to the conditions of "eligibility for entry of goods". In
effect, Article V:6 is a provision that establishes that a most-favoured-nation-requirement that must be
observed by the country of destination.
4.124 Thus, Article V:6 provides that a Member cannot provide treatment less favourable to goods
"that have been in transit" through Member B. The obligation set out in Article V:6 as applied to the
facts of this case would be as follows: Colombia (Member C) (the country in which the goods
terminate) cannot accord products that have been in transit through Panama (Member B) treatment
less favourable than it would have accorded those products had they come from the country where the
goods began their journey (Member A). Thus, the description of "traffic in transit" in Article V:1 is
still applicable.
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(k) Colombia has failed to rebut Panama's claim that the requirements to present an advance
declaration and pay customs duties for textiles originating in Panama are inconsistent with
4.125 Colombia agrees that the customs requirements of the ports measures are covered by
Article I:1 as they are "rules and formalities connected with importation". Colombia, however,
disagrees that the customs requirements constitute an "advantage". Even though Colombia
acknowledges that WTO panels and the Appellate Body have given a wide interpretation to the term
"advantage" based on a textual interpretation, it insists that an "advantage" must "affect commercial
opportunities" in such a way as to create "more favourable opportunities for certain products." There
is no textual basis in Article I:1 for this conclusion. The text refers to "any" advantage; not any
"commercial" advantage. Indeed, as the Appellate Body stated in Canada – Autos, "[t]he words of
Article I:1 refer not to some advantages granted ... , but to 'any advantage'; not to some products, but
to 'any product'; and not to like products from some other Members, but to like products originating in
or destined for 'all other' Members". While the Appellate Body has made clear that Article I:1 should
be interpreted in a broad and expansive manner, Colombia rejects this interpretation in favour of a
narrow and restrictive reading of this Article.
4.126 It is important to note that importers of products originating elsewhere have the option to
decide whether or not to file an import declaration, whereas importers of products originating in
Panama are required to do so. Under normal importation procedures, Article 119 provides that an
import declaration shall be presented within the time frame provided in Article 115 [up to one or two
months after the goods arrive, if approved by Customs authorities] or in advance, no earlier than
15 days prior to entry of the goods. There is flexibility afforded to importers to determine when to
present the import declaration. The importer can wait to verify the goods that have actually arrived
before submitting the import declaration for those goods.
4.127 However, for goods subject to the restrictions on the ports of entry, the importer has no
choice – it is obliged to present the import declaration within a short window of opportunity, namely
10 days. Therefore, the importer is deprived of the flexibility to choose when to present the import
declaration. A practical consequence of this is that the importer is not able to inspect goods before
submitting the import declaration. This is particularly problematic for two reasons. First, if there are
any discrepancies between the information declared on the import declaration and the goods actually
entered, then the importer has to file a Declaración de Legalización (Article 6 of
Resolution No. 7373). Second, if those discrepancies are above 7 per cent (weight) or 10 per cent
(width), the importer will also have to pay a rescate or fee of 15 per cent of the customs value of the
merchandise (Article 231 of Decree No. 2685). These consequences indicate that importers of
products subject to the ports of entry restrictions are disadvantaged as a result of being forced to file
their import declaration in advance. Importers of products from Panama must present an advance
declaration and must comply with the other customs requirements while importers of like products
from other countries do not. That advantage that is accorded to other countries is not accorded
immediately and unconditionally to Panama. In the light of previous jurisprudence, that is sufficient
to demonstrate a violation of Article I:1.
4.128 Colombia argues that Article I:1 is based on the origin of the product, not on its place of
exportation, and as Panama does not produce the goods in question that it exports to Colombia it has
no grounds to claim a violation of Article I:1. Once again, Colombia focuses on the trade effects of
the measure, rather than the design, structure and architecture of the measure itself and its potential
consequences. The amount of goods of Panamanian origin that are currently exported to Colombia is
not relevant in determining whether the measure at issue is inconsistent with Article I:1. Article I:1
governs the regulatory framework that governments must apply. This provision protects the
conditions of competition between suppliers of different origin, irrespective of actual volumes of
trade; it protects not only current but also potential future trade.
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(l) Colombia has failed to demonstrate that its port of entry restrictions are justified under
Article XX(d) of the GATT 1994
4.129 Colombia submits that if the Panel were to uphold some or all of Panama's claims, then it
further submits that the "general defence of Article XX(d) justifies the port of entry measure, which is
a temporary measure necessary to secure compliance with Colombia's laws and regulations".
Colombia acknowledges that it bears the burden of proof as the party invoking the Article XX
exception. Panama considers that Colombia has not discharged that burden. In order for Colombia to
establish that the ports of entry restrictions are justified under Article XX(d), it must demonstrate that
it meets the "two-tiered" test established by the Appellate Body: it must fall within paragraph (d) in
order to be provisionally justified and it must meet the conditions of the chapeau.
(i) The ports of entry restrictions are not provisionally justified under paragraph (d) of
Article XX
4.130 In its first written submission, Colombia states that the ports of entry measures were designed
to secure compliance with its customs laws as well as its laws against smuggling and money-
laundering. However, Colombia has not identified any specific laws or regulations related to
combating contraband or fighting money-laundering with which the ports of entry restrictions are
intended to secure compliance. Colombia's failure to do so is in stark contrast with the actions taken
by other respondents that have invoked an Article XX(d) defence in WTO dispute settlement
proceedings, for example, in Canada – Wheat Exports and Grain Imports and in US – Shrimp. In an
Article XX(d) defence, it is necessary for a panel to identify the laws or regulations the compliance
with which the measure is aimed at securing, to determine whether those laws and regulations are not
themselves WTO-inconsistent, and whether the measure is designed to secure compliance with the
relevant laws or regulations.
4.131 Colombia repeatedly refers to the port measure as "clearly designed to secure compliance
with Colombia's laws related to customs enforcement", or "clearly a measure designed to secure
compliance with Colombia's laws relating to customs enforcement". However, Colombia never
identifies the precise customs laws and regulations with which the ports of entry restrictions are
designed to secure compliance. Thus, it is not possible for the Panel to complete the analysis required
in the first part of the test in an Article XX(d) defence.
4.132 The identification of the specific laws and regulations is a pre-requisite to assist the Panel in
determining whether the laws and regulations are themselves GATT-consistent. In its first written
submission, Colombia claimed that "a WTO Member's laws and regulations are presumed to be
GATT/WTO-consistent" and that, as Panama has not challenged Colombia's laws and regulations,
"Colombia's laws and regulations are therefore deemed to be consistent with the provisions of the
GATT". However, a mere claim of a presumption of WTO-consistency is not sufficient to
demonstrate that all Colombia's customs laws and regulations in question are themselves GATT-
consistent. Moreover, it may be safely assumed that Colombia's customs laws and regulations total
thousands of pages, therefore, it is not possible for the Panel to know which provisions of Colombia's
customs laws and regulations it must examine in order to determine whether they are GATT-
consistent.
4.133 As the party bearing the burden of proof in an Article XX(d) defence, the respondent must
demonstrate that all conditions of the defence are met, including the condition that the laws and
regulations with which the measure at issue is designed to secure compliance are not themselves
GATT-inconsistent. This Colombia has not demonstrated. Therefore, it is not possible for the Panel
to complete the second part of the test set out in Article XX(d) namely, the determination that the laws
or regulations that the measure is intended to secure compliance with are themselves not GATT-
inconsistent.
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4.134 Even if the Panel were to find that Colombia has correctly identified laws and regulations for
customs enforcement generally, Panama submits that Colombia has not demonstrated how the ports of
entry restrictions are designed to secure compliance with those laws and regulations. The ports of
entry restrictions apply only to a limited range of products whereas Colombia has customs
enforcement problems with respect to a wide range of products such as "máquinas y aparatos
eléctricos" and vehicles and vehicle parts that are not subject to the ports of entry restrictions. A
measure truly designed to secure compliance with customs enforcement would apply to all products
known to be problematic. Furthermore, Colombia applies the port of entry restrictions only to
Panama, even though it experiences significant problems with contraband técnico, subfacturación and
sobrefacturación with the United States, Europe, Asia and the rest of the ALADI countries as
indicated by the data contained in Chart 3 of Exhibit COL-38. If Colombia's intention were to secure
compliance with its customs laws and regulations, it would apply the measures to all imports giving
rise to customs irregularities.
4.135 In accordance with the Appellate Body's statements in Korea – Various Measures on Beef,
there are three relevant factors in determining whether a measure is "necessary" to secure compliance
with a WTO-consistent law or regulation within the meaning of Article XX(d), namely: the relative
importance of the common interests or values that the underlying law or regulation to be enforced is
intended to protect; the extent to which the measure contributes to securing compliance with the end
pursued, namely the underlying law or regulation at issue; and the extent to which the measure has a
restrictive impact on international commerce, i.e., intense or broad restrictive effects on imported
goods.
4.136 In order for a measure to be considered as "necessary" within the meaning of Article XX(d), it
must be close to "indispensable" to secure compliance with GATT-consistent laws and regulations.
As demonstrated below, given the lack of effectiveness of previous similar measures in combating
contraband, Colombia cannot demonstrate the port of entry restrictions are close to "indispensable" to
securing compliance with its customs laws and regulations. While the fight against tax evasion and
smuggling may be an important interest for a developing country, Panama considers that Colombia
has not established how the restrictions contribute in a material way to securing compliance with the
applicable laws. Colombia maintained similar port of entry restrictions from 7 July 2005 to
31 October 2006. Resolution No. 5796 of 7 July 2005 provided that all goods classifiable under
Chapters 50 to 64 of the Customs Tariffs (textiles and footwear) coming from or originating in,
Panama had to be entered and imported exclusively at the ports of Bogota (if by air) and Barranquilla
(if by sea). Evidence cited by Colombia shows that, for 10 months in 2006, when the previous ports of
entry restrictions were in force, the percentage of contraband trade was over 84.27 per cent generally
and 89 per cent for textiles. These statistics demonstrate that the ports of entry restrictions are
completely ineffective in combating contraband. In these circumstances, Colombia's argument that its
ports of entry restrictions are now necessary to ensure compliance with its customs law and to combat
contraband is unsustainable.
4.137 In the light of these statistics, the Panel asked Colombia how it would consider the "port of
entry restrictions imposed at that time as "necessary" and "mak[ing] a material contribution to the
objective of securing compliance with Colombian laws relating to customs enforcement against
customs fraud". In its response, Colombia merely noted that it disagreed that the figures showed that
the similar measures in place between July 2005 and October 2006 were not effective. In addition,
Colombia argues that "it is not because a measure is not immediately able to resolve the problem,
especially in a case as complex and persistent as this one, that the measure is ... not apt to materially
contribute to the achievement of the objective". It notes that "it is only normal that it takes some time
for such measures to have the intended effect" and that "the challenged measure clearly has the
potential to be very effective in strengthening customs enforcement". In Panama's view, the measure
is of such a nature – the prohibition of the entry of textiles at all ports except Baranquilla and Bogota -
that it should be possible to detect the immediate impact of the measure and to assess its effectiveness.
The fact that contraband was continuing at high levels in the 10 months of 2006 when the previous
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port restrictions were in place clearly demonstrates that such port restrictions do not make a material
contribution to the policy objectives of combating contraband trade and enhancing customs
enforcement. It is for a very similar reason that the Panel in Dominican Republic – Import and Sale of
Cigarettes found that the measure at issue was not effective because despite the efforts made to curb
smuggling though the imposition of the tax stamp, there were still documented cases of smuggling.
The Panel concluded therefore that the tax stamp was of limited effectiveness in preventing tax
evasion and cigarette smuggling. Colombia cannot convincingly argue that the ports of entry
restrictions make a material contribution to the policy objective of combating contraband when the
levels of contraband at the time the previous measures were in place were so high.
4.138 Colombia refers to the Appellate Body's statement that the "[a] measure with a relatively
slight impact upon imported products might more easily be considered as 'necessary' than a measure
with intense or broader restrictive effects", and submits that the measure "does not have a significant
negative impact on legitimate trade, while it is effective in combating smuggling and under-
invoicing". Colombia notes that imports of the covered products from Panama and its Colon Free
Zone have increased. Colombia recalls that the Appellate Body stated that "a measure with a
relatively slight impact upon imported products might more easily be construed as 'necessary' than a
measure with intense or broader restrictive effects." Panama submits that Colombia's approach to
what constitutes an "adverse impact on trade" or "restrictive effects on trade" is flawed. This phrase
cannot be used as a test to assess whether levels of imports have increased despite the imposition of
the measure at issue. In Panama's view, therefore, the "restrictive effects" referred to by the Appellate
Body in Korea – Various Measures on Beef must be viewed as meaning the effects on the conditions
of competition of the imported product, rather than the restrictive effects on the trade flows of
imported products.
4.139 The Appellate Body in Korea – Various Measures on Beef stated: "It was clear to the Panel
that a contracting party cannot justify a measure inconsistent with another GATT provision as
"necessary" in terms of Article XX(d) if an alternative measure which it could reasonably be expected
to employ and which is not inconsistent with other GATT provisions is available to it." Panama
agrees that it has the burden of identifying other less trade-restrictive alternatives reasonably available
that would achieve the desired level of protection with respect to the objective pursued by Colombia.
However, it is not possible to provide specific alternatives as Colombia has not clearly identified
which of its customs laws and regulations it is seeking to ensure compliance with through the ports of
entry restrictions. Panama notes that Colombia has experienced problems of contraband, under-
invoicing, money-laundering, and smuggling with many countries as indicated in Chart 3 of
Exhibit COL-38. It applies its general customs laws and regulations to all other countries. Therefore,
a reasonably available less-trade restrictive alternative to the port of entry restriction would be for
Colombia to apply its general customs laws and regulations to Panama. This would of course be an
alternative that is reasonably available and would not impose an undue burden on Colombia.
(ii) The ports of entry restrictions do not meet the requirements set out in the chapeau to
Article XX
4.140 If the Panel were to conclude that the ports of entry restrictions fall within the scope of
Articles XX(d) of the GATT 1994, it would then need to carry out an analysis of the measure in
accordance with the requirements of the chapeau of Article XX of the GATT 1994.
4.141 The port of entry restrictions are a "disguised restriction" on international trade. Panama
considers that port of entry restrictions were imposed in order to protect fragile domestic industries.
As indicated in the introduction to the First Submission of Panama, the design, structure and
architecture of the port of entry restriction reveal that its true purpose it to protect domestic industries,
not to enforce customs law. That conclusion is confirmed by the statements made by the Ministry of
Commerce, Industry and Tourism in several Final Anti-Dumping Determinations. The Ministry
further found that despite the application of trade remedies on the importation of the subject products
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originating in China which was complemented from October 2005 with the adoption of customs
controls for the entry into Colombia of these products, which allowed the domestic industry to show
certain signs of recovery especially in 2005, overall the domestic industry continues to show evidence
of serious injury which was aggravated during the first semester of 2006. The statements made by the
Ministry of Commerce, Industry and Tourism are an admission that the port of entry restrictions do
not serve customs enforcement purposes but constitute a "disguised restriction on international trade".
4.142 The discrimination in the application of the ports of entry restrictions between goods from
Panama and those from other countries is "arbitrary" and "unjustifiable" within the meaning of the
chapeau of Article XX. As noted from Exhibit COL-36, Colombia has experienced various customs
problems, such as technical contraband, under-invoicing, over-invoicing, and open contraband from
many countries including the United States and the rest of ALADI countries. Yet, Colombia applies
the port of entry restrictions only to Panama. This is clearly "arbitrary" within the meaning of the
chapeau.
4.143 That type of discrimination cannot be justifiable under the chapeau of Article XX. The
chapeau refers to discrimination "between countries where the same conditions prevail". This makes
clear that discrimination between imports from different countries can be justified only if it is based
on differences in conditions prevailing in those countries, such as discrimination against imports of
plants from countries with a plant disease. The law instituting the port of entry restrictions makes no
distinction related to conditions prevailing in Panama and the exempted countries.
D. EXECUTIVE SUMMARY OF THE REBUTTAL SUBMISSION OF COLOMBIA
1. Claims relating to Colombia's indicative pricing mechanism as a customs valuation

method under the Customs Valuation Agreement
4.144 Colombia has explained on several occasions the role played by indicative prices. They are
not, as erroneously stated by Panama, used "to determine the value of products for the purpose of
levying customs duties and internal taxes."79 Rather, indicative prices are used as a customs control
mechanism, which does not affect customs valuation. Customs valuation in Colombia is entirely
consistent with the principles of Articles 1-7 of the Customs Valuation Agreement, and is not related
to indicative prices.80
(a) Panama fails to meet its burden of proof
4.145 Colombia recalls that from the standpoint of international law, "municipal laws are merely
facts".81 Determining the meaning of a Member's domestic law may require more than simply a
reading of the text; it may require recourse to other interpretative aids, such as evidence of the law's
consistent application in practice, the pronouncements of domestic courts, or the opinions of legal
experts and the writings of recognized scholars. This principle is well-established in
GATT jurisprudence, including the GATT panel on US – Tobacco. In this case, Panama has limited
itself to the text of the Colombian measures, and, as a result, has misinterpreted Colombia's indicative
prices. Panama has failed to adduce any evidence of the practical application of the challenged laws
and regulations, and therefore has failed to meet its burden of proof.
79
WT/DS366/6, p. 1. Emphasis added.
80
Colombia refers in particular to paras. 50-66 of its first written submission, paras. 33-50 of its oral
statement and its answer to question 35 of the Panel in the form of Exhibit COL-41, which offers a narrative
explanation as well as a flowchart to explain the importation process, which includes in all cases customs
valuation based on the principles of Articles 1-7 of the Customs Valuation Agreement.
81
Appellate Body Report, India – Patents (US), para. 65.
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(b) A proper interpretation of the challenged provisions concerning indicative prices shows that
the indicative prices are not used for customs valuation purposes
4.146 Panama has even misinterpreted the text. The text of Article 128.5 e) of Decree No. 2685 and
Article 172.7 of Resolution No. 4240 does not support Panama's argument that these provisions
provide for the use of indicative prices as a customs valuation method. An ordinary reading of the text
of these provisions leads to the following conclusions. First, these provisions deal with customs
inspection ("inspección aduanera") and the release of the goods ("el levante"), not the determination
of the customs value for purposes of duty assessment. Second, the challenged provisions themselves
expressly require the customs inspector to forward all documentation to the División de Fiscalización
Aduanera in order to determine the customs value of the imported good for the purpose of assessing
the duties.82 Third, both of the challenged legal provisions are included in the sections of Colombia's
laws and regulations dealing with customs control and verification, and are not part of the separate
provisions of the Customs Statute or Resolution No. 4240 setting forth the provisions dealing with
customs valuation. Colombia is of the view that this is a "significant" element in determining the
meaning of the domestic legal provisions challenged.83 Fourth, the definition of the term "indicative
prices" in Article 237 of Colombia's Customs Statute confirms that indicative prices are a customs
control mechanism ("mecanismo de control"), and not a customs valuation method. Fifth, the relevant
provisions in the Customs Statute (Title VI, Articles 237-259) and the Resolution No. 4240 (Chapter
III, Articles 174-217) that do actually deal with customs valuation clearly state that customs valuation
will be conducted on the basis of the methods provided for by the Customs Valuation Agreement. The
"correction" called for by Articles 128.5 e) and 172.7 imply a ticking of the box "ajustes" in the
import declaration and does not imply a requirement to amend the all-important Declaración Andina
del Valor. The "payment" of duties ("paga los tributos") is a general reference to a cash payment in
the amount of the duties under discussion and does not refer to the final liquidation of duties as
referred to in other provisions, such as Article 128.8 in respect of precios oficiales ("se liquide los
mayores tributos dejados de pagar").
4.147 Moving beyond the text further shows the interpretative errors committed by Panama.
Andean Community law forms the legal context in which to read the challenged provisions of
Decree No. 2685 and Resolution No. 4240 and confirms that indicative prices operate as a customs
control and guarantee mechanism only. Andean Community ("CAN") Decisions and Resolutions are
directly applicable and enforceable in Colombia and even prevail over domestic laws in case of
conflict. Most importantly, they are part of the legal framework in which to analyse the challenged
provisions. When read in this legal context, the reference in Article 128.5 (a provision dealing
exclusively with the release of goods) to the term "correction" and "payment of duties" alongside a
bank or insurance guarantee suggests strongly that this cash payment is the kind of cash deposit
envisaged by the Customs Valuation Agreement, and by the CAN Decisions and Resolutions which
allow for such a type of guarantee.
4.148 Also, the consistent application of the challenged provisions fully supports the interpretation
of these provisions offered by Colombia. Panama failed to produce any example of a case in which
the customs value of the good was determined on the basis of the indicative prices. The one specific
example (PAN-53) that Panama did provide in response to question 33 from the Panel confirms all of
Colombia's arguments in this respect, and clearly contradicts its assertion that the challenged
provisions "prevent the DIAN from using the methodologies" of the Customs Valuation Agreement.
Panama's evidence demonstrates only that, in Colombia, release of the subject goods from customs is
conditioned upon an administrative correction and the payment of a cash guarantee if the declared
price is below the indicative price. Colombia has not asserted otherwise. But, that does not mean that
82
In an important change of its position, Panama now acknowledges as much when it states in its
answer to question 33 of the Panel that "the text of Article 128.5 e) provides that the documents are sent
automatically to the División de Fiscalización Aduanera". Panama's response to Panel question No. 33.
83
GATT Panel Report, US – Tobacco, para. 76.
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indicative prices are used as a customs valuation method. Quite the contrary is shown by all of the
examples provided by Colombia (including COL-49, which includes documents which Panama did
not include in PAN-53). In each case, after the importer made the required payment to release the
goods, the Colombian authorities conducted a valuation of the merchandise, applied the Customs
Valuation Agreement, and found that the importer was entitled to a refund.
4.149 Colombia requests that the Panel reject all of Panama's claims under the Customs Valuation
Agreement in respect of the challenged provisions, Article 128.5 e) of Decree No. 2685 and
Article 172.7 of Resolution No. 4240. These provisions do not determine the customs value of the
subject goods on the basis of the indicative price, as erroneously asserted by Panama.
2. Panama's claims on indicative prices under GATT Article III
4.150 Panama's claim in respect of indicative prices under GATT Article III is built on the same
flawed premise as its claims under the Customs Valuation Agreement: that indicative prices are used
to determine the customs value. The Panel should reject this claim.
(a) Panama's claim under GATT Article III:2 is flawed
4.151 First, there is no provision in Colombian law which requires the sales tax on imported
products to be imposed on the basis of indicative prices, even in those cases in which the declared
value is below the indicative price. Article 459 of Colombia's Tax Code, which in response to
question 6 from the Panel Panama has clarified to be the basis for its GATT Article III claim, merely
states that the basis for assessing internal taxes on imported products is the same as the basis that is
used to determine customs duties. Because it is clear from the above explanation that the dutiable
value is determined on the basis of one of the methods of the Customs Valuation Agreement, and not
on the basis of indicative prices, Panama's argument fails. Second, Panama fails to prove that the
sales tax on imported products imposes a tax burden in excess of that imposed on domestic products.
Colombia emphasizes that this has nothing to do with the question whether Article III protects
competitive opportunities or is based on trade effects; this is simply a question which relates to the
determination of whether a violation exists in a case where the nominal tax rate imposed on like
domestic and imported products is identical, and yet a complainant alleges a violation of Article III:2,
first sentence, which prohibits imported products from being taxed in excess of like domestic
products.
(b) Panama's unsubstantiated new claim under GATT Article III:4 is to be rejected
4.152 In its oral statement, Panama introduced a claim under GATT Article III:4 as an alternative to
its GATT Article III:2 claim.84 In essentially one paragraph in the oral statement, Panama "develops"
the argument.85 First, Colombia submits that this statement in one paragraph of the oral statement,
repeating in the body of the text what was a footnote in Panama's first written submission86, is not
sufficient to establish a prima facie case. Panama fails to develop any legal or factual arguments.
Second, even the one-paragraph argument offered by Panama demonstrates a problem: the legal basis
for Panama's argument is once again the erroneous assertion that in the case of imported products
subject to indicative prices, importers cannot demonstrate that the declared value corresponds with the
transaction value, while such an opportunity is offered for sellers of domestic products. This is not
correct. As explained by Colombia and demonstrated through Colombia's evidence, importers have
the same opportunities as domestic producers, as customs valuation is not determined by indicative
prices, and such declared prices may equally prevail over the "corriente en plaza". For all of the
above reasons, Colombia requests the Panel to reject all of Panama's claims under GATT Article III.
84
This much is clear from Panama's response to Panel question No. 6.
85
Panama's first oral statement, para. 141.
86
See footnote 110 of Panama's first written submission.
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3. Panama's claims in respect of the ports of entry measure
(a) Panama's claim under GATT Article XI is without merit as the port of entry measure does not
constitute a prohibited quantitative restriction.
4.153 First, Colombia disagrees with the legal interpretation given by Panama to the prohibition of
quantitative restrictions under GATT Article XI. Colombia considers that Panama's interpretation of
GATT Article XI as setting forth "a comprehensive ban of all types of limitations on the importation
of products other than duties, taxes or other charges" is overly broad. Panama's interpretation is not
consistent with the text of Article XI, which prohibits quantitative restrictions, and is not supported by
the case law referred to by Panama when read in its proper context. A correct interpretation of
Article XI allows Members to impose certain justified conditions on access to their markets as long as
the fundamental thrust and effect of these measures is not to limit the amount of imports in terms of
volume or value.
4.154 Second, Panama's challenge of the ports of entry measure as de facto imposing a quantitative
restriction is not supported by sufficient evidence, as Panama has failed to provide any evidence that
the measure which is not designed or structured in such a way as to limit the amount of imports
actually restricts trade between Panama and Colombia or has the alleged limiting effect on trade.
Panama's de facto challenge of the measure requires Panama to demonstrate that the "total
configuration of facts" leads to the conclusion that the measure is in fact a quantitative restriction.87
Panama does not meet this burden of proof because it does not even refer to any alleged low levels of
imports or to the causal link between the specific measure challenged and such low level of exports.
Actually, in response to question 56 of the Panel, Panama submits exhibit PAN-56 which tends to
confirm that there is no restrictive effect as imports increased in terms of value during the period of
application of the measure. Nor does the measure impose higher shipping costs. Colombia presents
in COL-50 two different estimates of shipping costs which it obtained from independent sources. The
UPS estimate shows that the "all in" cost of shipping goods from the Free Zone de Colon to Cali by
two different routes is roughly the same, with the additional cost of the Panama Canal and additional
ocean freight costs even making the Buenaventura route seemingly preferred by Panama slightly more
expensive.
4.155 Third, even if Panama had submitted some evidence of a restrictive effect, that evidence is not
necessarily sufficient to establish a de facto violation of GATT Article XI. Colombia considers that
the showing of trade effects will not be sufficient without showing a causal link between this measure
which does not present such a restrictive design and its alleged effects.88
4.156 In sum, looking at the "fundamental thrust and effect of the measure" or its "design,
architecture, and revealing structure", the ports of entry measure is designed to ensure effective
customs control. It is "quantity-neutral" by design. The choice of the two ports is perfectly in line
with the aim of customs control and the strengthening of customs enforcement. Moreover, the
proximity of these ports to the Free Zone de Colon, their state-of-the art equipment and efficient
processing of imports, and the fact that these were precisely the ports most used by Panamanian
exporters even prior to the measure argue against the allegation that the ports of entry measure
imposes a quantitative restriction on imports. Quite the contrary is true, the structure of the ports of
entry measure is indeed "revealing" of the fact that the ports of entry measure is a genuine customs
enforcement measure, and not a quantitative restriction. The Panel should therefore reject Panama's
claim under GATT Article XI:1.
87
Appellate Body Report, Canada – Aircraft, paras. 167-169.
88
Panel Report, Argentina – Hides and Leather, para. 11.21.
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(b) The Panel should reject Panama's claim that the port of entry measure is applied in a manner
that is inconsistent with GATT Article XIII:1 because Article XIII:1 does not apply to the
situation at hand
4.157 GATT Article XIII does not apply to measures, such as the challenged port of entry measure,
that are not quantitative restrictions prohibited by GATT Article XI:1 (Colombia's view) or those that
are in fact prohibited by Article XI:1, but not otherwise authorized (Panama's view). In sum, the port
of entry measure is not covered by GATT Article XIII:1 and cannot therefore be inconsistent with this
provision. Panama's claim in respect of Article XIII must therefore fail. Colombia notes that, at the
oral hearing, Panama was basically unable to respond to Colombia's common sense arguments in
respect of the non-applicability of GATT Article XIII to the ports of entry measure.
(c) Panama's new claim of inconsistency of the ports measure with GATT Article I:1 is to be
rejected
4.158 At the oral hearing, Panama introduced through a short, one paragraph statement a new claim
in respect of the ports of entry measure under GATT Article I:1.89 Colombia objects to the inclusion
of this new claim and considers that the failure to develop any legal and factual arguments in respect
of such claims implies that Panama failed to make a prima facie case of violation under
GATT Article I:1. Colombia will not present any substantive rebuttal arguments at this stage as there
simply is no case to answer at the moment in the absence of any development of this new claim by
Panama. Colombia reserves the right to present such rebuttal arguments at a later stage in the
proceedings, if necessary.
4.159 Colombia considers that the Panel should not examine this claim, as it is not properly before
the Panel. First, Colombia submits that this claim was not part of Panama's request for establishment
and is therefore not part of the Panel's terms of reference. Colombia acknowledges that
GATT Article I:1 is mentioned in Panama's request for establishment. However, such an Article I:1
claim was developed in a particular and different manner in Panama's first written submission, which
clarified the extent to which the narrative present in the request for establishment was linked to each
of the legal provisions listed in the request. Second, Colombia submits that Panama was required to
have presented its claims and arguments in its first written submission, and it failed to do so.
Paragraph 4 of the panel's working procedures clearly required Panama to do so, in line with well-
established WTO case law that a party must present its arguments at the earliest opportunity, which,
in this case was at the time of the first written submission.90 The absence of any legal or factual
arguments in the first stage of the proceedings is a third reason why the Panel should refuse to
entertain Panama's claim under Article I:1. Panama merely asserts that the ports measure is
inconsistent with Article I.1 but does not provide any factual or legal arguments in support of its
specific claims tying the description of the measure to the specific elements that need to be
demonstrated in order to establish a prima facie case of violation under Article I.1. Colombia recalls
that the Appellate Body has made it clear in its report on US – Gambling that Article 11 DSU prevents
a panel from ruling on a claim in the absence of supporting arguments.91
(d) Panama's claim that the port measure is inconsistent with the requirements of
GATT Articles V:2 and V:6 lacks a factual and legal basis
4.160 The basic premise of Panama's claims under GATT Article V is erroneous because the ports
of entry measure does not apply to goods in transit; rather, the measure applies only to those goods
which are shipped from Panama and have Colombia as their final destination. Thus, the ports
measure does not apply to traffic in transit as defined in GATT Article V, and therefore, it does not
89
90
Appellate Body Report, US – Gambling, para. 269.
91
Appellate Body Report, US – Gambling, para. 281.
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violate Article V, which relates to traffic in international transit. This is clear from Article 4,
paragraph 3 of the Resolution, which expressly adds that the measure "does not apply to '[b]ienes que
se pretendan someter a la modalidad de transbordo, considerando que en este caso la mercancia no
tiene como destino final Colombia' ('goods that are submitted for trans-shipment, since those goods
do not have as their final destination Colombia')."92 The choice of the term "trans-shipment" in
respect of this Panama-specific measure can be explained easily if one takes into account the reality in
respect of trade with Panama. Any product from Panama that is in international transit through
Colombia will have to be trans-shipped.
4.161 Furthermore, Colombia considers that Article V:6 forms no exception to the scope of
Article V and does not impose on Members the obligation described by Panama relating to goods that
are not in transit. In Colombia's view, the text of Article V:6 when read in its context applies, like the
rest of Article V, only to goods in "transit". Colombia's interpretation of Article V:6 is not novel. In
fact, as recently as 2005, the WTO Secretariat set forth the same view as Colombia.93 Scholars have
taken a similar position.94 This was also the view taken by Turkey, a third party in this case to whom
the Article V issues have a special significance.95 In sum, Resolution No. 7373 does not apply to
merchandise that transits Colombia for consumption elsewhere. Therefore, Resolution No. 7373 is
not inconsistent with Articles V:2 or V:6, as Panama alleges.
(e) The requirement to present an advance import declaration and pay customs duties and sales
taxes for textiles originating in Panama does not violate Colombia's MFN obligation under
GATT Article I:1
4.162 Panama fails to demonstrate that the advanced import declaration and consequent payment of
duties constitutes "an advantage" (or disadvantage) in the sense of GATT Article I:1. Colombia does
not dispute the fact that the term "advantage" has to be interpreted in a broad manner. However, in
the context of an economic agreement such as GATT, this term has an economic meaning which
implies that it refers to an advantage in economic terms, i.e., in terms of economic, competitive
opportunities. It therefore should come as no surprise that the Appellate Body in its report on EC –
Bananas III equated the term advantage to that of a "competitive advantage".96 Panama has failed to
demonstrate that the advanced declaration requirement, which is optional for other importers as well
and which is regularly used by importers to accelerate the importation process, imposes such a
competitive disadvantage.
4.163 Colombia adds that the advanced payment requirements and the limited legalization
opportunities do not apply on an origin basis, and the latter is not even Panama-specific. It is for these
reasons that Colombia argued that Panama should do more to demonstrate that "products originating
from certain Members" are granted alleged advantages that are not immediately and unconditionally
extended to those originating from other Members.
4. Colombia's general defence under GATT Article XX(d)
4.164 In the event that the Panel were to uphold some or all of Panama's claims relating to the port
of entry measure, Colombia submits that GATT Article XX(d) justifies the measure.
92
Resolution No. 7373 of 2007, Article 4, para. 3. PAN-34. Exhibit PAN -43, p.3 confirms that this is
how DIAN applies the measure, and demonstrates that the measure does not apply to goods in international
transit.
93
Article V of GATT 1994 – Scope and Application, Note by the Secretariat, TN/TF/W/2, 12 January
2005, para. 25.
94
John H. Jackson, World Trade and the Law of GATT 511 (The Bobbs-Merrill Company, Inc. 1969).
95
Oral statement of Turkey, meeting of the Panel with the third parties, 22 May 2008.
96
Appellate Body Report, EC – Bananas III, para. 207.
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(a) The port measure is provisionally justified under paragraph (d) of GATT Article XX
4.165 Colombia's laws and regulations relating to customs enforcement are deemed to be consistent
with the provisions of the GATT. As explained in the first written submission, the preamble of
Resolution No. 7373 of 200797 makes clear that the port measure was designed to secure compliance
with Colombia's laws relating to customs enforcement. The fact that Colombia agreed to remove the
first ports measure on the basis of the promise of increased customs cooperation shows that the
concern of the Colombian Government is customs enforcement. The purpose of the ports of entry
measure and the Protocol is the same, ensuring compliance with Colombia's customs laws.
4.166 Panama suggests that the Government of Colombia is somehow more constrained to act
against a problem that affects important industrial sectors as to do so would be "protectionist". Such a
suggestion is contradicted by the evidence submitted, which all points in the same direction: it was
the fight against contraband and thus a design to secure compliance with customs laws that drove the
Colombian Government to take these actions. If non-compliance with its customs law affects both
"important" and "non-important" sectors, a government is not somehow limited in its ability to take
action in the important sector.
4.167 In addition, the ports measure is "necessary" to secure compliance with Colombia's customs
laws and regulations.
4.168 First, the ports measure concerns a very important set of interests or values. Combating
under-invoicing, tax evasion, smuggling, and money laundering are important to the Colombian
Government. In addition to a loss of revenue which is of key importance to a developing country
such as Colombia, these illegal activities undermine the political and economic stability of Colombia
in its present context. The conversion of illicit funds outside of Colombia into pesos often involves
the importation of goods into Colombia and, as noted in the UIAF analysis in COL-43, the imported
merchandise is typically consumer items that can be sold easily, including apparel and footwear. It is
noteworthy that these are precisely the products that are also listed in exhibit COL-38 in respect of the
"Caso Panama" as being among the most important products subject to contraband from Panama.98 In
this respect, Exhibit COL-51 provided in the second submission provides more detailed information,
showing that in 2006, imports from Panama under chapter 62 (certain textile products) and 64
(footwear) alone accounted for about $160 million of under-invoicing, and approximately the same
amount was of other textile and apparel products that arrived in Colombia as "contrabando abierto" or
smuggling.
4.169 Second, the ports measure is apt to contribute in a material way to the achievement of the
objective as demonstrated through evidence submitted in the first written submission, the oral
statement and in response to questions from the Panel. The ports of entry measure is only one
measure that has to be seen as part of a comprehensive strategy and as part of a set of measures that
have been put in place by the Colombian government to attack contraband trade. Other measures
include the use of customs observers, the requirement to make an advanced import declaration,
automatic licensing, contraband agreements with the private sector, customs cooperation,
modernization of ports and various measures to fight internal corruption. Panama has acknowledged
the seriousness of the problem of contraband trade, admitting that most of its trade with Colombia can
be characterized as contraband. Colombia considers that the Panel should not lose sight of this
concession when examining the contribution potentially and actually made by the ports of entry
measure.
4.170 The ports measure contributes significantly to customs enforcement through improved
customs control and specialization. No one disputes that it is easier to control importation and verify
97
Exhibit PAN-34.
98
Exhibit COL-38, pp. 17-19.
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the accuracy of the import declaration when imports are entering the country at two points of entry
only, compared to eleven such points. The increased exposure of customs officials to potential
contraband products also provides important experience in respect of the techniques applied by the
contrabandistas. Colombia considers that this qualitative assessment of the potential of the measure
should already suffice to establish a prima facie case that this measure is apt to contribute in a
material way to the achievement of the policy objective. In addition, however, Colombia considers
that there are sufficient indications that the ports of entry measure is having a positive effect in terms
of combating contraband. In addition to the evidence discussed in the first written submission,
Colombia refers to the fact that in its response to question 83 from the Panel, Colombia presented as
Exhibit COL-42 a number of reports pursuant to the "Seguimiento Resolución 7373" – monitoring
that it performs regularly to gauge the effectiveness of this particular measure in the fight against
contraband. Panama asserted in the oral hearing that the high level of contraband trade coming from
Panama during the operation of a similar measure in 2006 shows that such a measure is "completely
ineffective in combating contraband".99 This is a simplistic and static analysis of the situation. The
evidence provided in COL-42 shows that progress is being made. In addition, as explained in the
answers to questions, it is inevitable that certain measures will take some time before they become
effective.100
4.171 Third, the ports measure does not have a significant adverse impact on legitimate trade. The
ports of entry measure is not in any way a ban on imports, or even a restriction on imports. It simply
requires that certain products be shipped through a certain number of ports. Also, the two ports of
entry imposed by the ports measure are among the most modern ports of Colombia and are the closest
to Panama's Free Zone de Colon, which, like the port of Barranquilla, is located on the Atlantic coast.
Further, the ports measure provides for a number of exemptions from the application of the measure.
The reason for these exemptions is linked to the objective pursued by the measure as it is considered
that importation by certain importers or "users" or under certain circumstances does not present a
customs risk. Finally, the available evidence shows that there simply is no negative impact on trade in
respect of the covered products from Panama. In response to question 56 of the Panel, Panama
submits exhibit PAN-56 which confirms that the valued of the goods subject to the measure sold in
2007 (503 million USD) was higher than in 2006 (483 million USD), and higher than ever before.
4.172 Fourth, there were no reasonably available and equally effective alternative measures that
Colombia could have taken. The burden of proof of the existence of equally effective reasonably
available alternative measures rests with Panama.101 Colombia made a conscious decision in 2005 to
attack contraband trade and, while it had no illusion that it would be able to eradicate contraband
completely and immediately, its efforts are clearly intended to have a meaningful impact. In this
respect, the port measure cannot be examined in isolation from the other measures that are taken at the
same time to combat customs fraud. Colombia requests the Panel to examine any potential
alternatives also in this context of a comprehensive policy of combating customs fraud. Colombia
discusses two types of measures which seem to have been suggested as alternatives, increased
customs cooperation and agreements with the private sector.
4.173 First, Colombia recalls the failed attempt at increased cooperation between customs
authorities. In its first written submission, Colombia discussed the lack of cooperation received from
the Panamanian authorities under COMALEP as evidenced in exhibit COL-32:102 of the 455
Colombian requests for assistance from Panama from 2001-2005, only 3 responses were provided, a
cooperation rate of 0.65 per cent. Of the total 1234 requests for assistance made between 2001 and
2007, only 372 responses were provided by the Panamanian authorities. The COMALEP customs
cooperation process was not working. This conclusion is implicit in the fact that the two countries
99
100
Appellate Body Report, Brazil – Retreaded Tyres, para. 151.
101
102
Exhibit COL-32.
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signed a bilateral Protocol for the Exchange of Information between the Customs authorities of
Colombia and Panama (the "Customs Cooperation Protocol"), which was concluded in October 2006.
The Protocol is not a separate agreement that operates in a vacuum; rather, it was an attempt at
enhanced commitments and the acceptance of specific guidelines for cooperation by Panama in light
of the unsuccessful cooperation under the COMALEP. With no other COMALEP country has it been
necessary to conclude such a supplemental Protocol to ensure a proper understanding of the customs
cooperation obligations of COMALEP countries. Unfortunately, the data for the entire period of
customs cooperation including that of the Protocol reveal the failure of such attempts at addressing the
problem through increased customs cooperation.103 At any rate, in Colombia's view, customs
cooperation is not really an alternative, but rather a supplementary means of fighting contraband.
Actually, such customs cooperation has existed since 1990 between the two countries, and it has
clearly not been able to prevent or even contain the problem of contraband trade from Panama.
Customs cooperation still exists under COMALEP, and Colombia continues to seek the assistance of
the Panamanian authorities.
4.174 Second, and while Panama has not referred to this alternative, Colombia informed the panel
in its first written submission of the way it has dealt with similar problems of contraband in respect of
other products. Colombia never suggested that smuggling, under-invoicing and money laundering are
limited to the covered products.104 As part of its set of measure to combat contraband in other
products, Colombia has sometimes resorted to agreements with the private sector. Such agreements
are not, however, feasible in the context of textile, apparel, and footwear products. Colombia adds in
this respect that one must be careful with making comparisons in respect of the treatment of a similar
problem in respect of entirely different products that operate under different conditions and present
different customs enforcement problems.105
(b) The ports measure complies with the chapeau of Article XX
4.175 The ports measure is not applied in a manner that constitutes arbitrary or unjustifiable
discrimination between countries where the same conditions prevail. Colombia submits that the
evidence clearly demonstrates that Colombia's concern over the covered imports from Panama is
justifiable and that the exclusive focus on Panama bears a clear "rational connection" to the objective
falling within the purview of paragraph (d) of Article XX. This evidence was set forth in detail in
paragraphs 193 and following of the first written submission and in the answers to various questions
of the Panel to which Colombia refers the Panel. The problem of contraband with Panama has taken
such forms and is practiced at such a scale that an additional and particular country-specific measure
was considered necessary to gain control over the situation and bring this problem within normal
proportions such that this country-specific measure will no longer be necessary. That is why the
measure is of a temporary nature, while the indicative prices and other measures relating to customs
control that have been taken (and which are not country-specific) may well be in place for a longer
period of time. Exhibit COL-38 that Colombia submitted at the oral hearing discusses in detail the
particular problem raised by trade from Panama, addressing specifically the "Caso Panama".
4.176 Second, the ports measure is not applied in a manner that constitutes a disguised restriction on
trade. Colombia has already referred to the objective of customs enforcement, customs control and
specialization pursued by the ports measure, which even Panama acknowledges to underlie the
measure. The measure is thus clearly not about restricting trade for protectionist purposes. The
choice of the products in question relates to the rationale of the measure of fighting contraband as
these products are among the most important products subject to contraband and money-laundering.
103
Colombia provides a database in electronic version only in COL-52 in which all these cases of lack
of cooperation or delayed responses are listed for the Panel's information.
104
However, it should be noted that, as extensively discussed in Colombia's submissions, currently, the
major problem in this respect concerns the specific products covered by the measure.
105
Appellate Body Report, Korea – Various Measures on Beef, para. 172.
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5. Request for findings
4.177 For all of the above reasons, Colombia requests the Panel to reject all of Panama's claims.
V. ARGUMENTS OF THE THIRD PARTIES
A. ECUADOR
5.1 Ecuador takes no position on the measures at issue. However, Ecuador does have a systemic
interest in the questions under consideration by the Panel.
5.2 Ecuador understands that the measures challenged by Panama in this proceeding are
Colombia's use of indicative prices to determine the custom value of textiles, footwear and other
products, and the restriction of the import of certain products from Panama into Colombia unless they
are made through the airport of Bogota and the sea port of Barranquilla.
5.3 According to Panama, the use of indicative prices by Colombia is incompatible with
Articles 1, 2, 3, 5, 6 and 7.2 (b), (f) and (g) of the Agreement on the Implementation of Article VII of
the General Agreement on Tariffs and Trade, also known as the Customs Valuation Agreement and
Article III:2 of the GATT 1994. The port of entry restrictions, on the other hand, would be
incompatible with a number of provisions of the GATT 1994, in particular Articles I, V, XI and XIII.
In Ecuador's view, the panel's findings of the Articles of the GATT 1994 and the Customs Valuation
Agreement issues before it in this dispute will be of significance for Members.
5.4 Although Ecuador will not refer to each of the articles above mentioned, we will make the
following general comments.
5.5 With regard to the use of indicative prices, there seems to be a disagreement between the
Parties as to an appropriate description and functioning of this measure. While Panama states that
Colombia uses the indicative prices as a mechanism to value goods (when lower that the indicative
price), with the consequent liquidation of the goods for customs purposes, Colombia argues that they
serve as a custom control mechanism to test the veracity of the declared value in the course of a
"control previo". Moreover, Colombia affirms that after the "control previo" there is a procedure in
place by which the importer is entitled to demonstrate to the custom authority the correct value of the
goods; in this "control posterior" the custom value of the goods is determined using one of the
methods of the Customs Valuation Agreement. Panama refutes this assertion as the importer is not
offered any opportunity to demonstrate that the declared value (when lower that the indicative price)
corresponds to the transaction value of the product.
5.6 Although there are other elements the Panel should take into account when determining the
consistency of the use of indicative prices with certain provisions of the Customs Valuation
Agreement and the GATT, is Ecuador's view that the central point on this issue is whether the
payment made by the importer when the declared price of the good is lower than the list of indicative
prices constitutes a guarantee mechanism, or represents in fact a valuation, regardless of the existence
of a posteriori mechanism to repay the duties paid in excess.
5.7 It is not our intention to decide which of the above stated possibilities is correct. The
resolution of this question will require the Panel to determine complex factual and legal issues. In
undertaking this task, Ecuador encourages the Panel to evaluate carefully the factual evidence before
it.
5.8 Panama's second set of claims relates to Colombia's prohibition of the importation of textiles,
apparel and footwear products from Panama except at the airport of Bogota and the seaport of
Barranquilla. According to Colombia, this prohibition is aimed at fighting contraband, smuggling and
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under-invoicing and therefore is not inconsistent with Articles I:1, V:2-6, XI:1 and XIII:1 of the
GATT. Furthermore, it would be justified under paragraph (d) of GATT Article XX.
5.9 In relation to this claim, Ecuador considers that the Panel's work should concentrate in
determining whether the measure being challenged meets the conditions for being provisionally
justified under paragraph (d) of GATT Article XX as well as the two requirements set forth on its
"chapeau". Due to the critical significance of Article XX of the GATT, which permits a Member to
deviate from the GATT rules on trade in goods, we encourage the Panel to make a careful
examination of its proper application.
5.10 Ecuador would also like to note the negative effects contraband, smuggling, under-invoicing
and circumvention by exporting through a third country (triangulation) have in the economy of all
WTO Members, especially among developing countries. Unfortunately, many developing countries
do not have the resources nor the capacity to put in place an adequate mechanism to tackle these
issues in all its ports of entry. Ecuador considers that this fact should be taken into account by the
Panel when issuing its ruling.
B. EUROPEAN COMMUNITIES
1. Customs valuation methods based on indicative prices
(a) The measure at issue
5.11 The European Communities notes that there is disagreement between the parties to this
dispute as to the correct description and functioning of the measure at issue. On the one hand,
Panama considers that Colombia has a system whereby customs duties and sales tax due on imports of
textiles, footwear and some other products are not based on the actual value of the products (i.e., the
transaction value as declared in the customs declaration); rather, with respect to these products
Colombia has a list of indicative prices which acts as minimum values of reference to impose customs
duties and collect sales tax.
5.12 On the other hand, Colombia considers that the indicative prices are a mechanism of control
in order to detect products which have been the subject of under-invoicing, smuggling and money-
laundering.
5.13 The European Communities considers that, in accordance with Article 11 of the Dispute
Settlement Understanding ("DSU"), this Panel should make an objective assessment of the matter
before it, including an objective assessment of the facts. While not taking a final position on the facts
of this case – task which corresponds to this Panel – the European Communities observes that the
crucial element in question is whether, in order to obtain their release in the Colombian market,
imports of textiles, footwear and other products must pay customs duties based on indicative prices
(rather than on the declared values), regardless of any other a posteriori mechanisms to repay the
duties paid in excess. If that is the case, those indicative prices would be used as the basis for customs
valuation in the sense of the Agreement on Implementation of Article VII of the General Agreement on
Tariffs and Trade 1994, also known as the Customs Valuation Agreement.
5.14 A preliminary analysis of the provisions invoked in this case shows that imports subject to
indicative prices must pay customs duties and sale tax in order to be released. Then, a posteriori
mechanism allows for the repayment of the duties paid in excess, if the importer provides evidence
that the transaction price paid was actually lower than the indicative price.
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(b) Indicative Prices and the Customs Valuation Agreement
5.15 A first question which arises from the measure at issue is whether indicative prices are used to
establish customs values in the sense of the Customs Valuation Agreement. In this respect, the
European Communities observes that Article 15.1(a) of the Customs Valuation Agreement defines
"customs value of imported goods" as "the value of the goods for the purposes of levying ad valorem
duties of customs on imported goods". In the case of imports subject to indicative prices, goods can
only be released (and, thus, effectively imported into Colombia) if the importer pays customs duties
based on those prices. Therefore, it can be concluded that those indicative prices serve as relevant
values to impose customs duties and obtain the release of the products.
5.16 In view of the European Communities, a system where the value of the goods for levying
customs duties is based on indicative prices, as the one described above, can be examined in light of
the provisions contained in the Customs Valuation Agreement.
5.17 The European Communities is of the view that the text, context and purpose of the Customs
Valuation Agreement show that the transaction value is the first method for customs valuation which
WTO Members must apply. Whenever the conditions are such that the customs value cannot be
determined under the transaction value method, Articles 2 to 7 of the Customs Valuation Agreement
provide for alternative customs valuation methods which may be applicable, but always respecting the
sequential order therein.
5.18 The use of indicative prices as the basis for levying ad valorem customs duties (i.e., for the
purpose of customs valuation in the sense of Article 15.1(a) of the Customs Valuation Agreement) is
contrary to Articles 1 to 6 of the Customs Valuation Agreement. Indeed, the reference to indicative
prices (or minimum values) as a valid customs valuation method does not even appear in Articles 1
to 6 of the Customs Valuation Agreement and, thus, their use as an alternative to Article 1 of the
Customs Valuation Agreement (which appears to be the case of the system in place in Colombia), is
inconsistent with the Customs Valuation Agreement. Furthermore, such a customs valuation method
cannot be regarded as a reasonable test provided for in Article 7 of the Customs Valuation Agreement.
5.19 Consequently, the European Communities considers that the use of indicative prices as the
basis for levying customs duties is contrary to Articles 1 to 7 of the Customs Valuation Agreement.
5.20 Finally, Article 13 of the Customs Valuation Agreement allows for delays in the final
determination of customs values if it is necessary for the customs authority to establish the correct
values. However, in those cases, the importer must be able to release the goods by providing
sufficient guarantee to cover the ultimate payment of customs duties for which the goods may be
liable.
5.21 In view of the European Communities, as explained above, Colombia requires the full
payment of the duties based on indicative prices to release the goods in the Colombian market, while
a posteriori customs review proceeding allows for subsequent reimbursement of the duties paid in
excess. Should the importer provide sufficient evidence that the actual value of the goods is lower
than the indicative price, the result of such a proceeding is the repayment of the duties paid in excess.
Since the importer in any way cannot seek the release of the goods by providing a guarantee, this
would also be contrary to Article 13 of the Customs Valuation Agreement.
5.22 In light of the foregoing, while not taking a definite position on the facts of this case, the
European Communities considers that, in the case at hand, the key element to establish whether the
measure at issue amounts to a customs valuation method contrary to the provision of the Customs
Valuation Agreement is the payment of customs duties and sale tax based on indicative prices as a
condition to have the imports released in the Colombian market. In contrast, if the imports subject to
indicative prices can be released in the Colombian market by providing sufficient guarantee and, then,
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the correct values are promptly liquidated in light of the evidence of actual values provided by the
importer to the competent customs authorities, the payment of customs duties would take place at a
later stage.
(c) Indicative Prices and Article III:2 of the GATT 1994
5.23 The European Communities understands that the amount of sales tax levied on imported
products subject to indicative prices is also calculated on the basis of the same indicative prices,
whereas the sales tax for like domestic products is based on actual transaction values.
5.24 In the European Communities' view, a system whereby indicative prices are systematically
used to determine the value of imported products for the purpose of levying sales taxes when the
transaction value is used instead to determine the value of like domestic products for that purpose is,
on its face, contrary to Article III:2, first sentence, of the GATT 1994.
5.25 In this respect, in cases where the imported product is based on indicative prices higher than
the transaction value originally declared by the importer, the sales tax levied on those imports is "in
excess of those applied … to the like domestic products" based on a transaction value lower than the
indicative price, in the sense of Article III:2, first sentence, of the GATT 1994.
5.26 Therefore, in the European Communities' view, in cases where the measure on its face
(because of its structure and design) necessarily results in imported products being subject to internal
taxes in excess of those applied to like domestic products, Article III:2, first sentence, of the
GATT 1994 is infringed. This is the case when indicative prices are taken as the basis for levying
sales tax on imported products, whereas lower actual values are considered as the basis for levying the
same tax on like domestic products.
5.27 The same conclusion stands even if there may be cases where the indicative price of the
imports is the same as either the transaction value of those imports or the transaction value of the like
domestic products. In other words, even if there are some imports which are not levied in excess of
the sales tax levied on like domestic products, the structure and design of the measure result in the
violation of Article III:2, first sentence, of the GATT 1994.
5.28 The European Communities therefore considers that the use of indicative prices to determine
the value of imported products for the purpose of levying sales taxes when the transaction value is
used instead to determine the value of like domestic products for that purpose is, on its face, contrary
to Article III:2, first sentence, of the GATT 1994. Therefore, the examination as to whether a measure
violates Article III:2, first sentence, of the GATT 1994 should take into account its design and
structure, which should lead to a discrimination between imported products and (potential) like
domestic products.
2. Restrictions on ports of entry
(a) Restrictions on the number of ports available for imports of textiles from Panama: Article XI
of the GATT 1994
5.29 The European Communities understands that imports of textiles from Panama can only be
imported through two ports in Colombia: the airport of Bogota and the sea port of Barranquilla. Since
imports of textiles from Panama have to be channelled through these two ports (rather than through
the 11 ports normally available for imports of textiles from other countries), Panama claims that this
measure amounts to a restriction contrary to Articles XI and XIII of the GATT 1994.
5.30 According to Panama, the term "restriction" in Article XI of the GATT 1994 also covers
situations where a measure amounts to a "limiting condition" on the importation of products in broad
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terms. Panama bases its conclusions on statements made by the panels in India – Quantitative
Restrictions and India – Autos, suggesting that the term "restriction" requires identifying a "condition
that has a limiting effect … on importation itself". In the case at hand, Panama claims that the ports of
entry restrictions impose a limiting condition (i.e., there are only two ports of entry available) and
make importation more onerous.
5.31 Colombia, on the other hand, is of the view that "Panama's interpretation of Article XI is
overly broad as it would imply that any measure which imposes a condition on importation is
considered to be a prohibited quantitative import restriction". In order to argue against Panama's broad
interpretation of the term "restriction" in Article XI, Colombia points out that Panama accepts that the
fact that textile products may be imported through 11 ports only, whereas Colombia has 26 ports of
entry for international trade, does not amount to a "restriction" in the sense of Article XI of the
GATT 1994. Through reference to the title and text of Article XI as well as the panels mentioned by
Panama, Colombia argues that, in its view, Article XI of the GATT 1994 only provides for the
elimination of quantitative restrictions, i.e., if a measure imposes de iure or de facto a limitation on
the amounts of imports that are allowed into a country.
5.32 In this respect, the European Communities observes that Article XI of the GATT 1994 does
not define the term "restrictions". The panel in India – Autos suggested that the types of measures
which can fall under this provision is broad.
5.33 The panel in that case also stressed that, despite this broad scope of the measures falling
within Article XI of the GATT 1994, not any condition placed on importation is relevant for a measure
to fall under this provision.
5.34 Thus, although Article XI:1 of the GATT 1994 has undoubtedly a broad scope, not any
condition on importation is capable of falling under this provision. There must be a particular kind of
condition, i.e., one which has a limiting effect on importation itself.
5.35 It may appear strange that imports of textiles from Panama must pass through two ports while
imports of the same products from other WTO countries can use other ports as well. However, the
European Communities considers that this is an issue to be considered in the context of Article I of
the GATT 1994 and is not relevant to an analysis of the measure under Article XI of the GATT 1994.
5.36 Therefore, without entering into the factual details of this case, the European Communities
considers that the term "restriction" in Article XI of GATT 1994 does not refer to "any" condition on
importation, but rather to those having a limiting effect on importation itself.
(b) Requirement to present an advance declaration to pay customs duties and sales tax for textiles
originating in Panama: Article I of the GATT 1994
5.37 The European Communities understands that Panama challenges the requirement to present
an advance declaration (between 15 and 5 days prior to the arrival of the goods in Colombia) to pay
customs duties and sales taxes for textiles originating in Panama. If no advance declaration is
submitted on time, importers must pay a special fee to obtain the release of the goods. Minor
discrepancies in the customs declaration (i.e., less than 7% in the weight per square meter or less that
10% in the width of the fabrics) are allowed to be corrected without paying any special fee.
Otherwise, the special fee is also levied in order to import the goods. Panama claims that this measure
violates Article I:1 of the GATT 1994.
5.38 As the Appellate Body confirmed in EC – Bananas III, in order to establish a violation of
Article I:1, (i) there must be an advantage, of the type covered by Article I, and (ii) which is not
accorded unconditionally to all like products of all WTO Members. The object and purpose of
Article I:1 supports this interpretation. That object and purpose is to prohibit discrimination among
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like products originating in or destined for different countries. Thus, Article I:1 of the GATT 1994
does not permit balancing more favourable treatment under some procedure against a less favourable
treatment under others. Following this analysis, it should be examined in the case at hand whether
there are advantages of the types covered by Article I, and whether the advantages are offered to all
like products unconditionally.
5.39 In light of the description given to the measures by Panama and Colombia, the European
Communities considers that the requirement to present advance import declarations as well as the
penalties imposed otherwise in order to have the imports cleared amount to a violation of Article I:1
of the GATT 1994.
(c) Restrictions on the transit regime for textiles from Panama: Article V:2 and V:6 of the
GATT 1994
5.40 The European Communities understands that there is disagreement between the parties as to
whether the transit regime applies to textiles from Panama in Colombia. The European Communities
agrees with the interpretations made by Panama of these provisions.
5.41 First, Article V:2 of the GATT 1994 allows for choosing the "routes most convenient for
international transit". If a measure limits the entry ports for goods in transit to two, such a measure
will restrict the freedom of transit in the sense of Article V:2 of the GATT 1994.
5.42 Second, it follows from Article V:6 of the GATT 1994 that Member must apply MFN
treatment. In the case at hand, the contested measure seems to imply that a product in transit in
Panama originating from a third country is subject to the ports of entry restrictions when arriving in
Colombia, whereas the same product directly imported (or in transit) from any other Member would
escape from them. Thus, this would be contrary to Article V:6 of the GATT 1994.
(d) Justification of the ports of entry restrictions based on Article XX(d) of the GATT 1994
5.43 Colombia argues that Article XX(d) of the GATT 1994 justifies the port of entry measure, in
particular because it is necessary to secure compliance with Colombia's customs laws and regulations.
In this respect, the European Communities would like to comment on one specific element of the
justification under Article XX(d) of the GATT 1994 provided by Colombia.
5.44 The European Communities does not dispute the fundamental importance of tackling such
illegal activities. However, the European Communities expresses doubts on the phenomenon of
money-laundering necessarily falling within the scope of the enforcement of customs laws and
regulations. It would appear to the European Communities that in relation to the phenomenon of
money-laundering, the relevant laws and regulations the measures might be designed to secure
compliance with are those relating to general law enforcement rather than customs enforcement,
unless money laundering is an illegal activity criminalised or otherwise addressed in the customs laws
of Colombia. Whether this is the case has not been identified by Colombia.
C. GUATEMALA
5.45 Guatemala observes that the relevant provisions invoked by Panama in this case are
Article 128.5 e) of Colombia's Customs Code and Article 172.7 of Resolution No. 4240 of 2000 and
Article 447 of the Tax Statute in connection with Article 128.5 e) of Decree No. 2685.106
5.46 In Panama's view, according to these provisions, an importer whose goods have a transaction
value lower than the indicative price must correct the import declaration to reflect the indicative price
106
Panama's first written submission, para. 13.
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or a higher amount to obtain the release of the goods from customs. The failure to correct the
transaction value and the failure to reflect the indicative price (or a higher amount) in the declaration
within a period of five-days from the presentation of the import declaration, leads to the legal
abandonment of the goods, and their eventual forfeiture.107 Furthermore, Panama claims that the sales
tax on imported products is determined on the basis of the indicative price when the transaction value
is below the indicative price. Panama adds that, in contrast, for domestic products, the sales tax is
based on the actual value of the sale.108 In this regard, according to Panama, Colombia's use of
indicative prices is inconsistent with Articles 1, 2, 3, 5, 6, 7.2 b), (f), (g) and 13 of the Agreement on
Implementation of Article VII of the General Agreement on Tariffs and Trade 1994, also known as the
Customs Valuation Agreement (hereinafter the "Customs Valuation Agreement"), as well as with
Article III:2, first sentence of GATT 1994.
5.47 Guatemala understands that the main reasoning of Panama is that Colombia does not accept
the transaction value as the primary mean of determining the customs value of imported goods and
fails to follow the methodologies set out in Articles 2 through 6 of the Customs Valuation Agreement.
Moreover, Panama argues that payment of customs duties based on indicative prices is not a
"guarantee" within the meaning of Article 13 of the Customs Valuation Agreement. Finally, Panama
also asserts that the use of indicative prices is inconsistent with the first sentence of Article III:2 of
GATT 1994 since the calculation of internal taxes based on indicative prices are "in excess" of those
applied, directly or indirectly, to like domestic products, calculated on the basis of the actual sale
price.
5.48 In response, Colombia considers that Panama errs in its allegation that Colombia uses the
indicative prices as a mechanism to value goods. According to Colombia, the indicative prices are
used "to test the veracity of the declared value in the course of a 'control previo' while the customs
value of the goods are determined using one of the methods of the Customs Valuation Agreement in a
'control posterior'. In other words, Colombia asserts that the indicative prices are a "control
mechanism" and not a "customs valuation method".109 Moreover, Colombia equates the payment of
taxes to the guarantee provided for in Article 13 of the Customs Valuation Agreement by asserting
that it is in the form of a surety or deposit while the final determination of value is done.110 Finally,
regarding Article III:2 claim, Colombia argues that Colombia's Tax Code does not require that
indicative prices be used as the taxable base for the imported products in question. According to
Colombia, the mere fact that a difference in the taxable base between imported and domestic products
may exist in some cases does not suffice for a violation of Article III to be established. Colombia
considers that Panama failed to demonstrate that this difference necessarily leads to a higher tax
burden on imported products distorting competitive opportunities for such products.111
5.49 In this respect, Guatemala acknowledges that Members of the WTO should have the
necessary policy space to address their particular concerns or even, as asserted by Colombia, to
"prevent illicit trade from distorting normal trading relations". However, such policy space must be
framed within WTO Agreements and this is, precisely, the task of the Panel in this case. Guatemala
remains unconvinced with Colombia's characterization of its customs control mechanism, for the
following reasons:
5.50 Firstly, Colombia asserts that indicative prices are not a "customs valuation method" but a
"customs control mechanism" and, therefore that they do not violate the Customs Valuation
Agreement rules governing customs valuation. In that regard, Colombia argues that:
107
Panama's first written submission, paras. 49-53.
108
109
110
Colombia's first written submission.
111
Colombia's first written submission, paras. 142-161.
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"Indicative prices are used to detect under-invoicing and customs fraud and are used
as the basis of a deposit paid to secure release of the goods pending a determination
of the actual customs value of the good in question based on the methods set forth in
the Customs Valuation Agreement."112
5.51 Colombia adds that Article 128 of Colombia's Customs Statute deals with the "release"
("levante" in Spanish) of the goods, not with the final "liquidation" of the goods for customs purposes
or the determination of their customs value for such purposes.113 Moreover, Colombia asserts that a
proper reading of the relevant provisions in their legal context reveal that the "correction" requirement
is simply a guarantee requirement in the form of a deposit before the release of the goods and does not
impact on the determination of the customs value. According to Colombia, the word "correction" has
a different meaning in Article 128.5 e) of Colombia's Customs Statute. Also, Colombia is of the view
that this Article and Article 172.7 of Resolution No. 4240 of 2000 provide that if an issue or dispute (a
"controversia" in Spanish) arises as a consequence of the fact that the declared f.o.b. value is below
the indicative price as established by DIAN, the goods will be released if the importer corrects its
import declaration to reflect indicative prices and provisionally posts a deposit on the basis of those
indicative prices.114
5.52 If Guatemala understands correctly, Colombia is arguing with regard to indicative prices the
following:
(a) Firstly, that the indicative prices are a "control mechanism" and not a "customs
valuation method".115
(b) Secondly, that the "correction" of the declaration is a guarantee requirement, in the
form of deposit, and does not affect the determination of the customs value.116
(c) Thirdly, that the custom valuation occurs in a "control posterior", after the payment of
the "guarantee" and the release of the goods.117
5.53 While Guatemala does not intend to interpret Colombia's legislation, Guatemala considers
that Article 128.5 e) of Colombia's Customs Statute, read in conjunction with Articles 1, 112, 234,
252, 254, 514, 515, 548, 551, 554 and 555 of the same Statute, among others, may give another
characterization of the distinction made by Colombia with regard to "control previo" and "control
posterior".
5.54 Article 1 of Colombia's Customs Statute provides for some definitions. Two of them are
important to mention here:
"PROCESO DE IMPORTACIÓN: Es aquel que se inicia con el aviso de llegada del

medio de transporte y finaliza con la autorización del levante de la mercancía, previo
el pago de los tributos y sanciones, cuando haya lugar a ello. Igualmente finaliza con
el vencimiento de los términos establecidos en este Decreto para que se autorice su
levante.
LIQUIDACIÓN OFICIAL: Es el acto mediante el cual la autoridad aduanera

determina el valor a pagar e impone las sanciones a que hubiere lugar, cuando en el
proceso de importación o en desarrollo de programas de fiscalización se detecte que
112
113
114
115
116
117
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la liquidación de la Declaración no se ajusta a las exigencias legales aduaneras. La

liquidación oficial también puede efectuarse para determinar un menor valor a pagar
en los casos establecidos en este Decreto."
5.55 The definition of "proceso de importación" is used in Article 112 of Colombia's Customs
Statute which provides that:
"Sin perjuicio de lo previsto en el artículo 101 de este Decreto, la mercancía de

procedencia extranjera permanecerá durante el proceso de su importación, en
depósitos habilitados para el efecto."
5.56 According to the last cited Article, read in conjunction with the definition of "PROCESO DE
IMPORTACIÓN", it is clear that the payment of duties and the "release" of the goods finalize the
importation process. In this regard, Guatemala does not see how these provisions could be reconciled
with Colombia's argument that there is a "control posterior" during which the "actual customs value
for the purpose of assessing the duties will be determined", if the importation process has already
finished.118
5.57 Guatemala neither sees what would be the difference between "corrección" in Article 128.5 e)
of Colombia's Customs Statute and the "Declaración de Corrección" mentioned in other relevant
provisions in Article 128.
5.58 Article 234 of Colombia's Customs Statute provides in its relevant part the following:
"DECLARACIÓN DE CORRECCIÓN: La Declaración de Importación se podrá

corregir voluntariamente sólo para subsanar los siguientes errores: subpartida
arancelaria, tarifas, tasa de cambio, sanciones, operación aritmética, modalidad,
tratamientos preferenciales, valor f.o.b., fletes, seguros, otros gastos, ajustes y valor
en aduana, y sólo procederá dentro del término previsto en el artículo 131 del
presente decreto.
… La Declaración de Corrección provocada por la autoridad aduanera procederá,

como consecuencia de los resultados de una inspección aduanera, o cuando se
notifique requerimiento especial aduanero de corrección o de revisión del valor, en
cuyo caso, la base para corregir será la determinada oficialmente por la autoridad
aduanera, o a solicitud del declarante o del importador, cuando se pretenda corregir
errores en el diligenciamiento de la Declaración de Importación, diferentes a los
contemplados en el inciso primero del presente artículo, en cuyo caso, deberá mediar
autorización previa por parte de la autoridad aduanera.
No procederá Declaración de Corrección cuando la autoridad aduanera hubiere

formulado liquidación oficial de corrección o de revisión del valor."
5.59 According to this provision, Guatemala considers that the provocation by the customs
authorities to submit a "Declaración de Corrección" is one of the cases provided for in Article 128.5 e)
of the Customs Statute. If that is not the case, Guatemala also has difficulties in reconcile
Articles 128.5 e) and 234 of Colombia's Customs Statute.
5.60 Regarding the alleged payment of the guarantee under Article 128.5 e), Guatemala observes
that Article 252 of Colombia's Custom Statute provides for "valores provisionales" meaning, the cases
where the custom value may be provisionally declared. Looking at this provision, Guatemala does not
see reflected, as one of these cases, the so-called "control previo" alleged by Colombia.
118
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5.61 Moreover, Article 254 states the following:
"Cuando exista controversia respecto al valor en aduana declarado y/o los

documentos que lo justifican, o cuando no sea posible la determinación del valor al
momento de la importación, se podrá otorgar el levante de las mercancías, previa
constitución de garantía, en los términos del Artículo 13 del Acuerdo y artículo 128º
numeral 5 de este Decreto y conforme a las condiciones y modalidades que señale la
autoridad aduanera."
5.62 Although it seems that the reference made in this provision to Article 128.5 would permit the
interpretation advanced by Colombia, a further reading of Article 128.5 allows to see that, unlike the
rest of the provisos in this particular provision, paragraph e) requires the "payment" of custom duties
instead of constituting "garantía bancaria o de compañía de seguros".
5.63 Finally, Guatemala considers that the so-called "control posterior" alleged by Colombia is, in
fact, a set of legal proceedings provided for in Colombia's legislation to review administrative
resolutions, instead of being part of a "customs valuation method". As a matter of fact and at least on
its face, the custom valuation method provided for in Articles 237 to 259 of Colombia's Customs
Statute seems to be different from the proceedings established in Articles 514, 515, 548, 551, 554
and 555.
5.64 The Articles just mentioned establish a proceeding for the devolution or compensation when
an amount of money has been paid in excess.
5.65 Consequently, for the reasons expressed before, Guatemala sees difficulties in considering
that the payment of customs duties may be considered as a guarantee and that "control posterior", as
described by Colombia, is the moment when the customs authorities determine the value of the goods.
5.66 To the contrary, Guatemala considers, at least on its face, that Colombia, whatever
characterization it may give to this issue, in fact is requesting the payment of customs duties on a
minimum amount equal to the indicative prices and allowing, if the interested so it wish, the challenge
of the decision through administrative proceedings.
5.67 For this particular reason, Guatemala would concur with Panama in the sense that Colombia's
use of indicative prices is inconsistent with Articles 1, 2, 3, 5, 6, 7.2(b), (f), (g) and 13 of the Customs
Valuation Agreement, since Colombia does not accept the transaction value as the primary mean for
determining the customs value of imported goods and, consequently that Colombia fails to follow the
methodologies set out in Articles 2 through 6 of the Customs Valuation Agreement. Moreover, in the
light of what has been expressed before, it is difficult for Guatemala to accept that the payment of
custom duties, even providing legal administrative means to request the devolution of the duties paid
in excess, could be considered as "guarantee" within the meaning of Article 13 of the Customs
Valuation Agreement.
D. HONDURAS
5.68 Honduras is grateful for the opportunity to attend this meeting of the third parties with the
parties and the Members of the Panel.
5.69 Honduras is not taking position on the substance of this matter. Our decision to participate
was motivated by our systemic interest in the matter, bearing in mind that this was the first time that a
panel would be making an interpretation of the Agreement on Implementation of Article VII of the
General Agreement on Tariffs and Trade 1994 (Customs Valuation Agreement). We are also highly
interested in the outcome of this case as regards the interpretation of Article V of the GATT, which
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deals with the subject of the freedom of transit, and the possible relationship with the negotiations to
conclude a trade facilitation agreement.
E. SEPARATE CUSTOMS TERRITORY OF TAIWAN, PENGHU, KINMEN AND MATSU
1. Introduction
5.70 The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu ("Chinese Taipei")
appreciates this opportunity to present its views as a third party. Chinese Taipei will, in this
submission, address some issues of legal interpretation, in particular those relating to the Agreement
on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 ("Customs
Valuation Agreement"), the General Agreement on Tariffs and Trade 1994 ("GATT 1994"), and the
Understanding on Rules and Procedures Governing the Settlement of Dispute ("DSU").
2. Claims relating to the indicative prices used by Colombia
5.71 Panama in this dispute asserted that the indicative prices at issue ("Indicative Prices") were
employed to determine customs values and that the payment based on the calculation of the Indicative
Prices was final in character. By contrast, Colombia stated in its defence that the Indicative Prices
simply acted as an administrative mechanism allowed under Article 13 of the Customs Valuation
Agreement and that the payment based thereon was provisional. In view of the conflicting assertions
of the role of the Indicative Prices, Chinese Taipei would encourage both Panama and Colombia to
produce further evidence in order to demonstrate the exact nature of the Indicative Prices at issue.
5.72 Moreover, should the Panel find that the Indicative Prices were only a control mechanism and
were not for determining customs values, Chinese Taipei would maintain that Colombia was in any
case not allowed to establish the Indicative Prices in an arbitrary manner that was inconsistent with
Article 13 of the Customs Valuation Agreement.
5.73 Panama in its submission explained at great length that Colombia's establishment of the
Indicative Prices was inconsistent with the Customs Valuation Agreement, in particular Articles 1
through 7 thereof. In this regard, Chinese Taipei is inclined to find that Colombia's Indicative Prices
were not established in conformity with the methodologies set out in Articles 1, 2, 3, 5 and 6 of the
Customs Valuation Agreement. The only possibility left to justify the employment of the Indicative
Prices was for them to be categorized as the methodology provided under Article 7 of the Customs
Valuation Agreement.
5.74 However, were Colombia allowed to invoke Article 7 to establish the Indicative Prices,
Chinese Taipei observed that Colombia not only may have failed to first demonstrate that customs
values cannot be determined under Articles 1 through 6, but also may have misused Article 7 by
violating the positive condition in Article 7.1 and negative conditions in Article 7.2.
3. Colombia's measures restricting ports of entry for certain Panama products cannot be
justified under the GATT 1994
5.75 It was not disputed that Colombia enacted resolutions restricting the import of certain textiles
from Panama into Colombia unless they were made through Bogota and Barranquilla. These
restrictions not only created significant transaction costs to textile imports from Panama, but also
brought about unavailability of delivery in "real time" which would certainly discourage customers
who are not located near the two designated ports from purchasing these products.
5.76 All these facts indicated that Colombia's restrictions on ports of entry made the importation of
certain Panama textiles much more onerous than if these restrictions had not existed, and therefore
were inconsistent with Articles XI:1 and XIII:1 of the GATT 1994.
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5.77 Colombia tried to employ Article XX(d) of the GATT 1994 in order to justify its restrictions
on ports of entry. In this respect, Chinese Taipei suggests that the Panel should first examine the
factors including the importance of the interests protected by these restrictions, their trade impact and
their contribution to the realization of the end pursued. The Panel should also consider whether a
WTO-consistent alternative measure was reasonably available to secure compliance with laws or
regulations that were not themselves inconsistent with some provisions of the GATT 1994 appropriate
to the level of enforcement pursued by Colombia.
5.78 However, even if the Panel finds that these restrictions were provisionally consistent with
Article XX(d), these restrictions undoubtedly could not be justified under Article XX due to a clear
inconsistency between these restrictions and the chapeau of Article XX which prohibits a measure
from being applied in a manner that would constitute arbitrary or unjustifiable discrimination.
5.79 Colombia in this case adopted resolutions restricting ports of entry only for certain products
from Panama. It follows that discrimination was resulted from the application of these resolutions.
5.80 Colombia argued that these restrictions were taken as part of a series of measures for the
purposes of combating under-invoicing, smuggling, money-laundering and other illicit activities. In
consideration of the relationship between Colombia's comprehensive purposes of these restrictions
and the manner in which Colombia implemented them, Chinese Taipei would add that any
discrimination caused by these restrictions was random. Consequently, the discrimination resulting
from these restrictions could be constituted as arbitrary in the sense of the chapeau of Article XX.
5.81 On the issue of whether the discrimination caused by Colombia's restrictions at issue was
unjustifiable, Chinese Taipei notes the above-mentioned objectives could not be reached by
introducing these restrictions alone. It is difficult to understand how the discrimination caused by
Colombia's restrictions might be viewed as complying with the chapeau of Article XX when they do
not relate to the pursuit of Colombia's declared objectives. Chinese Taipei therefore submits that
Colombia's restrictions at issue constituted unjustifiable discrimination in the sense of the chapeau of
Article XX.
4. Members should resolve disputes in good faith
5.82 In view of Articles 3.7 and 3.10 of the DSU, Chinese Taipei submits that the WTO dispute
settlement mechanism prefers a mutually agreed solution to litigation. In addition, a Member
intending to reach a settlement with another Member in a proceeding shall conduct consultation or
negotiation in "good faith." Following the application of the good-faith principle, Chinese Taipei is of
the view that any Member party to an agreed settlement shall perform all terms and conditions
contained in that settlement in a bona fide manner.
5.83 This case lodged by Panama against Colombia was a particular case. It was the second time
that Panama had filed a WTO case against Colombia, and on measures almost identical to those in the
previous proceeding. However, the previous proceeding ended shortly after its initiation on the ground
that Panama and Colombia had arrived at a mutually agreed settlement.
5.84 Viewed from the perspective of Articles 2 and 26 of the Vienna Convention on the Law of
Treaties ("VCLT"), this mutually agreed settlement is an international agreement concluded between
Panama and Colombia and shall be construed as an treaty that must be performed by both Parties in
good faith. Without new facts contrary to the circumstances, the failure of either party to enforce it is
not only inconsistent with the principles of "positive solution to a dispute" and "good faith" provided
in Articles 3.7 and 3.10 of the DSU, but also have violated the party's obligation under the VCLT and
the customary international law embodied in its relevant provisions.
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5.85 Chinese Taipei is aware that Panama and Colombia provided opposite scenarios with respect
to the enforcement of the above-mentioned settlement. For the benefit of the Panel, it is Chinese
Taipei's suggestion that both Colombia and Panama should produce more convincing evidence
demonstrating new facts in support of their arguments, rather than merely maintaining the set of facts
currently put forward.
F. UNITED STATES
5.86 It is a pleasure to appear before you today to present the views of the United States
concerning certain issues in this dispute. We would like to make a few brief points on Panama's
claims related to Colombia's use of indicative prices and the proper legal interpretation of certain
provisions of the Agreement on Implementation of Article VII of the General Agreement on Tariffs
and Trade 1994 (the "Customs Valuation Agreement"). We recognize that many of the issues in this
dispute are factual in nature, and from the outset we would like to emphasize that the United States
takes no position as to whether Colombia has or has not complied with its obligations under the
5.87 This dispute raises an important issue concerning the proper application of the Customs
Valuation Agreement. The provisions of the Agreement addressed by Panama have not previously
been analysed by a WTO dispute settlement panel nor by the Appellate Body, and the issue of
indicative prices has not been a subject of a panel or Appellate Body report.
5.88 Reports of widespread use by WTO Members of indicative prices (or database prices) in
connection with customs valuation are troubling and a source of serious concern. Reliance on
indicative prices or database prices as a substitute for following the customs valuation process
prescribed by the Customs Valuation Agreement is inconsistent with the Agreement.
5.89 The United States welcomes the general agreement of Panama and Colombia in this dispute
on the legal interpretation of the Customs Valuation Agreement. In particular, Panama and Colombia
both note that "[t]he primary basis for customs value under this Agreement is 'transaction value' as
defined in Article 1."119 Article 1 of the Agreement provides that "[t]he customs value of imported
goods shall be the transaction value, that is the price actually paid or payable when sold for export to
the country of importation" except under certain specified conditions. Where customs value cannot
be determined under Article 1, Articles 2 through 7 of the Customs Valuation Agreement establish a
hierarchical process for determining customs value on the basis of alternative means, including the
transaction value of identical or similar goods (Articles 2 and 3), the unit price of identical or similar
goods sold in the country of importation (Article 5), a computed price (Article 6), or other "reasonable
means" (Article 7).120
5.90 Using an indicative price to determine customs value is not permitted under Articles 1
through 6 of the Customs Valuation Agreement. Each of these articles prescribes a specific
methodology for determining customs value that excludes the possibility of using indicative prices.
Only where customs value cannot be determined under Articles 1 through 6 may customs value be
determined, under Article 7, "using reasonable means consistent with the principles and general
provisions of [the Customs Valuation Agreement] and of Article VII of GATT 1994 and on the basis
of data available in the country of importation."121
5.91 Article 7 goes on to prohibit certain practices, for example, the use of minimum customs
values (Article 7.2(f)) and the use of arbitrary or fictitious values (Article 7.2(g)). If an indicative
119
Customs Valuation Agreement, General Introductory Commentary, para. 1 (first sentence);
Panama's first written submission, para. 90, Colombia's first written submission, para. 69.
120
See, e.g., Customs Valuation Agreement, General Introductory Commentary, paras. 2-4.
121
Customs Valuation Agreement, Article 7.1.
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price is used to determine customs value, and it is impossible for imports to clear customs at any value
lower than the indicative price, this would constitute a minimum value inconsistent with
Article 7.2(f). If an indicative price is based on data insufficient to determine customs value under
Articles 2 through 6 of the Customs Valuation Agreement, this would strongly suggest that the
indicative price is arbitrary or fictitious, which would be inconsistent with Article 7.2(g).
5.92 While it is not necessary for the Panel to determine in this dispute the precise scope of what
would be permissible under Article 7 of the Customs Valuation Agreement, in any event, the United
States recalls that Colombia appears to agree with Panama that, as a general legal matter, substituting
an indicative price for declared value to determine customs value would be inconsistent with
Articles 1 through 7 of the Customs Valuation Agreement.122
5.93 In this dispute, Panama and Colombia differ primarily on the nature and extent of Colombia's
use of indicative prices, with Panama alleging that Colombia uses indicative prices to determine
customs value and Colombia responding that it does not use indicative prices for that purpose. This is
a factual matter on which the United States does not take a position. The United States looks forward
to the Panel's examination of these factual questions and to the Panel's report.
5.94 Mr. Chairman, I wanted to add one thought briefly on an issue related to Article 6.2 of the
DSU. As I understood a comment by the EC in its third-party oral statement, the EC explained that it
would be sufficient to satisfy Article 6.2 of the DSU to say in a panel request that a measure is
challenged "as such" and "as applied", without any further reference to those applications of the
measure on which findings are sought. A preliminary reaction would be that the United States does
not agree with the approach set out by the EC
5.95 Specifically, it is not clear that measures that are applications of another measure would
themselves, if not identified in the panel request at all, be measures within the Panel's terms of
reference and therefore susceptible to findings and possible recommendations under Article 19.1 of
the DSU by the Panel. We therefore invite the Panel to consider this issue further.
VI. INTERIM REVIEW
6.1 On 4 April 2009, the Panel issued its Interim Report to the parties. On 18 April 2009, both
parties submitted written requests for the review of precise aspects of the Interim Report. The parties
submitted written comments on the other party's comments on 25 April 2009. Neither party requested
an interim review meeting.
6.2 In accordance with Article 15.3 of the DSU, this section of the Panel's Report sets out the
Panel's response to the arguments made at the interim review stage, wherever the Panel felt that
explanations were necessary. The Panel has also modified certain aspects of its Report in light of the
parties' comments wherever it considered appropriate. Finally, the Panel has made a limited number
of editorial corrections to the Interim Report for the purposes of clarity and accuracy. References to
sections, paragraph numbers and footnotes in this Section VI relate to the Interim Report. Where
appropriate, references to paragraphs and footnotes to the Final Report are included.
A. PANAMA'S COMMENTS ON THE INTERIM REPORT
1. Descriptive part
6.3 Regarding paragraph 2.5 of the Interim Report, Panama requests the Panel to include
additional statements by the United States Drug Enforcement Agency describing the Black Market
Peso Exchange operations to more fully reflect its arguments. The Panel considers the Panel's
122
See Colombia's first written submission, paras. 68-74.
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description within this section is adequate and thus declines to do so. In addition, the Panel notes that
Panama had a previous opportunity to request changes to the Descriptive Part of the report.
6.4 Regarding footnote 14 of the Interim Report, Panama requests the Panel to delete text
discussing findings by the Colombian Unidad de Información y Análisis Financiero (UIAF) regarding
participants in contraband activities. The Panel does not consider this deletion appropriate.
2. Panama's claims under the Customs Valuation Agreement
6.5 Regarding paragraph 7.9 of the Interim Report, Panama suggests replacing in the second line
"to the best of its ability" with "as well as the legislation and regulatory framework giving effect to the
indicative prices." The Panel does not consider this change appropriate.
6.6 Regarding paragraph 7.10 of the Interim Report, Panama suggests adding the following
sentence: "In particular, Panama refers to Thailand – H-Beams that clarified the fundamental issue in
a claim of prejudice is whether the defendant party was made aware of the claims presented by the
complainant party sufficient to allow it to defend itself". Panama also suggests adding a footnote to
include the relevant reference. The Panel does not consider this change appropriate.
6.7 Regarding paragraph 7.88 of the Interim Report, Panama suggests At the beginning of the
paragraph, add "Panama argued that without any textual basis in Article 128.5 e), Colombia equates
the notion of a payment with that of a guarantee or deposit." Panama further suggests to insert at the
end of this sentence a footnote with the text: "Panama's second written submission, para. 43." The
Panel does not consider these changes appropriate.
6.8 Regarding paragraph 7.128 of the Interim Report, Panama requests the Panel to replace "there
is a review mechanism in which Colombian customs authorities determine a customs value" with
"there is a review mechanism in which Colombian customs authorities determine a revised customs
value". Colombia however rejects characterization of the review mechanism as a revision. The Panel
declines to make the requested changes as it considers the statement adequate.
3. Panama's claim under Article III:2 of the GATT 1994
6.9 Panama has commented on the Panel's decision not to make findings under Article III:2 on
the grounds that its finding that the use of indicative prices to determine the customs value is a
prohibited method, has a direct impact on the Article III:2 claim. Without a specific ruling by the
Panel that indicative prices may not be used to determine the taxable base for textile, apparel and
footwear products, Panama considers that it would be possible for Colombia to amend its legislation
to allow indicative prices to be used to determine the taxable base for such products. Panama notes
that the Panel has already considered arguendo that both tests establishing a violation of Article III:2,
first sentence, have been met. Thus, Panama requests the Panel to consider completing its analysis by
making a finding that the use of indicative prices, rather than the transaction value, as the basis for
assessing the sales tax results in the imposition of tax in excess of that levied on like domestic
products, violates Article III:2, first sentence.
6.10 In response, Colombia considers it inappropriate for the Panel to make the requested findings
given that Panama's challenge was limited to the particular provisions of Decree No. 2685 and
Resolution No. 4240. In Colombia's view, Panama's concern at this late stage with the application of
Article 459 of the Tax Code falls outside of the Panel's mandate. Taking issue with the Panel's
decision to apply judicial economy is inappropriate since Panama did not challenge this provision of
Colombia's Tax Code. Colombia further considers that Panama's argument relating to implementation
is speculative in nature and fails to recognize the well-established principle that it is for each Member
to decide the most appropriate way to bring its measure into conformity with the relevant Agreement.
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If Panama considers that Colombia has failed to bring its measure into conformity, Colombia argues
that Panama must request an implementation Panel to examine the matter.
6.11 Having considered the comments of both parties, the Panel declines Panama's request to make
findings under Article III:2. As explained in the Interim Report (paragraph 7.169), the Panel's
findings pertaining to the WTO-inconsistency "as such" of the legal provisions imposing the use of
indicative prices provide a positive solution to the dispute and thus the Panel considers it unnecessary
to continue its analysis and make specific findings on the consistency "as such" of Article 128.5 e) of
Decree No. 2685 and Article 172.7 of Resolution No. 4240 with Article III:2 of the GATT 1994. As
noted, Panama did not challenge Article 459 of the Tax Code or any other tax provision, but instead
referred to the provisions as relevant context for the interpretation of the indicative prices provisions.
In line with the concerns expressed by Colombia, the Panel considers that, having found that
indicative prices are a prohibited method of customs valuation, additional findings under Article III:2
would be tantamount to ruling on future contingencies.
4. Panama's claim under Article XI:1 of the GATT 1994
6.12 Regarding paragraph 7.210 of the Interim Report, Panama suggests adding at the beginning of
the paragraph: "Panama notes that in GATT and WTO jurisprudence, panels have interpreted Article
XI:I as a comprehensive ban of all types of limitations on the importation of products, other than
duties, taxes and other charges". Panama further requests the Panel to add at the end of the paragraph:
"Panama considers that Colombia's argument that Article XI is limited to quantitative restrictions does
not find any support in GATT/WTO jurisprudence. There have been several cases in which panels
have found a non-quantitative restriction to be a violation of Article XI." The Panel does not consider
these changes appropriate.
6.13 Regarding paragraph 7.230 of the Interim Report, Panama commented that the Panel may
wish to cite more fully to Panama's detailed arguments that were set out in Panama's second written
submission, paragraphs 113-126 and Panama's second oral statement, paragraphs 30-34. The Panel
considers that Panama's argumentation is sufficiently reflected in its report and thus declines to
consider Panama's suggestion.
6.14 Regarding paragraph 7.250 of the Interim Report, Panama suggests replacing in the last
sentence, "in response to Colombia's allegation that Panama's challenge is necessarily de facto in
nature" with "if the Panel were to consider otherwise". The Panel does not consider this change
appropriate.
6.15 Regarding paragraph 7.252 of the Interim Report, Panama suggests adding at the beginning of
the paragraph, "Panama considers that Colombia's reference to Argentina – Hides and Leather is
misplaced. In that case, the EC challenged the measure at issue on a de facto basis whereas Panama is
challenging the measure on the basis of the text of the law." The Panel does not consider these
changes appropriate.
5. Colombia's defence under Article XX(d) of the GATT 1994
6.16 Regarding the Panel's Article XX(d) analysis, Panama requests the Panel to modify its finding
that Colombia has met its burden to identify the laws and regulations with which its ports of entry
measure seeks to ensure compliance, namely, Decree No. 2685, including Article 41 and Article 87
and Resolution No. 4240 (paragraph 7.524 of the Interim Report). In Panama's view, a careful
reading of Colombia's response to question No. 145 from the Panel reveals that Colombia did not
initially refer to Article 87 as constituting legislation for which the ports of entry measure seeks to
ensure compliance. Panama considers that Colombia merely referred to this provision as an example
of a law that sets forth a customs obligation. Therefore, Panama submits that Colombia has failed to
discharge its burden to identify the laws and regulations. In light of this view, Panama requests the
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Panel to refrain from making positive findings on the question of whether Colombia has properly
identified the laws and regulations, but instead assume arguendo that Colombia has done so in order
to proceed with its analysis under Article XX(d).
6.17 Panama additionally notes in the section of the Interim Report on whether the laws or
regulations are not themselves WTO-inconsistent, the Panel states "the Appellate Body has stressed
that a responding Member's law will be treated as WTO-consistent until proven otherwise" (paragraph
7.531). While acknowledging the correctness of the statement, Panama argues it is applicable only in
those cases where a complaining party claims that a responding party's measures are WTO-
inconsistent. Panama considers that the burden of proof is on the complaining party asserting the
inconsistency to introduce evidence to substantiate that assertion. Thus, the disputes referred to in
footnote 852, in particular, US – Carbon Steel, refer to the type of evidence a complaining party must
adduce in order to prove its assertion that a responding party's measure is inconsistent. In Panama's
view, it is not possible to apply this reasoning by the Appellate Body in a situation involving an
affirmative defence, such as Article XX(d). When a responding party invokes an exception, it bears
the burden of proof to demonstrate that the laws or regulations it seeks to secure compliance with are
not themselves GATT-inconsistent. It cannot seek to benefit from a presumption of consistency in
this regard. As the Appellate Body stated in India – Wool Shirts and Blouses, "Article XX … [is] in
the nature of an affirmative defence. It is only reasonable that the burden of establishing such a
defence should rest on the party asserting it." (para. 16).
6.18 In this case, Panama argues that Colombia has not met its burden of proof as the respondent
to present a prima facie case that its laws and regulations are not themselves inconsistent with the
GATT. Once again, Panama requests the Panel to assume arguendo that Colombia has done so in
order to proceed with its analysis of whether the ports of entry measure is "necessary" to secure
compliance with Colombia's customs laws and regulations.
6.19 Colombia submits that Panama is re-arguing the same points it made in the course of the
proceedings based on identical arguments that were rejected by the Panel. Colombia contends that it
is well established that the purpose of the interim review stage is not for parties to re-argue their
case.123 Colombia therefore requests that the Panel decline to make the requested changes to its report
in respect of its findings.
6.20 The Panel considers it has already adequately addressed the issue of whether Colombia
properly identified the relevant laws and regulations for which compliance was sought, and whether
these laws and regulations are themselves WTO-consistent. In particular, the Panel referred to a
statement by the Appellate Body explained in US – Shrimp (Thailand) that a panel is free to use the
various arguments made and provisions cited by the parties in order to assess objectively which laws
and regulations were relevant to the defendant's defence.124 As explained in paragraphs 7.516-7.521
of the Interim Report, the Panel is of the view that Colombia identified laws and regulations,
including Article 41 and Article 87 of Decree No. 2685 and Resolution No. 4240, which together set
forth rules on the designation of ports for importation and clearance of goods, and the requirement to
present an import declaration and pay duties and fees. With respect to whether the laws and
regulations identified by Colombia are themselves WTO-consistent, the Panel explained in paragraphs
7.529-7.532 of the Interim Report that it does not consider that Panama has challenged the whole of
Colombia's right to enforce its customs laws and obligations contained in Decree No. 2685 or
123
Colombia refers to the Panel Report, Japan – DRAMS (Korea), para. 6.2: "In addressing Korea's
comments, we note that Korea has sought to re-argue many of the points that it made during its submissions.
This is not necessarily the purpose of the interim review mechanism set forth at Article 15.2 of the DSU. In
particular, we do not consider that Article 15.2 of the DSU requires us to provide a defence of our findings at the
Interim Review stage".
124
Panama refers to footnote 844 of the Interim Report, citing Appellate Body Report, US – Shrimp
(Thailand), para. 302.
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Resolution No. 4240. Nor does the Panel consider the specific provisions referred to by Colombia to
be WTO-inconsistent. Accordingly, the Panel declines to modify its findings under Article XX(d) of
the GATT 1994, which would not affect the Panel's overall conclusions regarding Article XX(d) in
any case.
6.21 Regarding footnote 836 of the Interim Report, Panama requests the Panel to include
arguments pertaining to the inclusion of Colombia's reference to Article 319 of its Código Penal,
when addressing Colombia's identification of laws and regulations for which the ports of entry
measure seeks to secure compliance. Colombia requests the Panel to reject Panama's proposed text.
The Panel declines to make changes, noting that footnote 836 serves to provide background to the
Panel's question 145 to the parties. The Panel did not consider Article 319 of Colombia's Código
Penal as a relevant law or regulation for purposes of its Article XX(d) analysis.
6.22 Regarding footnote 868 of the Interim Report, Panama suggests deleting the sentence "For
instance, a UIAF study claims that 89 firms incorporated in the Colon Free Zone were identified by
Colombian intelligence as regularly participants in the purchase of goods with contraband US
dollars." The Panel does not consider this change appropriate.
6. Miscellaneous
6.23 In addition to the substantive comments presented above, Panama offered a number of
typographical and stylistic suggestions, further requesting the Panel to make conforming changes to
the Spanish version of the interim report. The Panel has accommodated and commented on Panama's
suggestions where appropriate. Parallel changes to the translation into Spanish of the Panel Report
have similarly been introduced.
A. COLOMBIA'S COMMENTS ON THE INTERIM REPORT
1. Descriptive part
6.24 Regarding paragraph 2.4 of the Interim Report, Colombia requests the Panel to refer to the
"failed cooperation" under the Customs Cooperation Protocol, and to characterize the measures at
issue as "similar in nature" to earlier enacted measures. The Panel considers that the wording of the
paragraph accurately reflects the facts as presented to it but has nevertheless amended the text of
paragraph 2.4 of the Final Report to take the Colombia's comments into account.
2. Panama's claims under the Customs Valuation Agreement
6.25 Regarding paragraph 7.63 of the Interim Report, Colombia disagrees with the following
characterization of Panama's argument by the Panel: "In Panama's view, Colombia has failed to
demonstrate that customs valuation takes place during the 'control posterior' or 'estudio de valor'." In
Colombia's view, Panama argued that customs valuation takes place for the first time at the time of
the release of the goods subject to indicative prices. Panama however agrees with the Panel's
characterization of its argument and correctly refers Colombia to paragraphs 16-21 of its second
written submission to that effect. The Panel declines to amend the wording in paragraph 7.63.
6.26 Regarding paragraph 7.71 of the Interim Report, Colombia considers that the last sentence of
this paragraph does not clearly state why Colombia considers the GATT Panel's US – Tobacco ruling
to be relevant and requests the Panel to replace this sentence following paragraph 42 of Colombia's
second written submission. The Panel has amended the text of paragraph 7.71 of the Final Report
accordingly.
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6.27 Regarding paragraph 7.76 of the Interim Report, Colombia has requested the Panel to add the
text of paragraph 3 of Article 172 of Resolution No. 4240. The Panel has done so in paragraph 7.76
of its Final Report.
6.28 Regarding footnote 270 of the Interim Report, Colombia requests the Panel to complete its
quote of Article 128.5 e) of Decree No. 2685. The Panel has accordingly completed the text of the
corresponding footnote 274 in the Final Report.
6.29 Regarding paragraph 7.91 of the Interim Report, Colombia requests that the Panel add the
word "textual" before "context" as the arguments that Colombia presented are all based on the text of
Colombian law as such. Colombia further requests the Panel to replace some of the language in that
paragraph for some additional text. After careful consideration, the Panel has added the word
"textual" to qualify the word "context" in paragraph 7.91 of the Final Report, as requested by
Colombia. The Panel, however, declines to further amend the text of paragraph since it considers that
the existing text does reflect Colombia's arguments adequately.
6.30 Regarding paragraph 7.113 of the Interim Report, Colombia requests the Panel to replace the
term "determinative" in the first sentence of that paragraph with "significant". The Panel has made
the suggested change in paragraph 7.113 of the Final Report.
3. Panama's claim under Article III:2 of the GATT 1994
6.31 Regarding paragraph 7.196 of the Interim Report, Colombia requests the Panel to delete the
second part of that paragraph as, in its view, it reaches a conclusion which is not in any way based on
an argument presented by Panama. For Colombia, the Panel would be making Panama's case by
addressing the issue of the greater tax burden on imported goods resulting from the additional
financial cost that the importer must incur in the interval between the collection of sales tax based on
the indicative price, and the reimbursement of the taxes paid in excess during the post-importation
control. On this issue the Panel disagrees with Colombia. In paragraph 7.196, the Panel has
explained its conclusion in paragraph 7.195, that Colombia taxes imported products in excess of the
like domestic products each time that the factual conditions set out in paragraph 7.175 are met,
regardless of the amount of the difference between the declared and indicative prices. This
conclusion is not affected by the fact that the importer may obtain a reimbursement during the
so-called post-importation process of the taxes paid in excess of that which would have been paid
absent the use of indicative prices,. The Panel does not consider it has made the case for Panama but
rather, has been conscientious in considering whether the existence of the post-importation process
would affect such a conclusion.
6.32 Also in respect of paragraph 7.196 of the Interim Report, Colombia objects to the Panel's
characterization of the post-importation control process as occurring as many as two years or more
following entry of the goods. Colombia notes that it has also presented evidence of a case in which
post-importation control terminated only three months after entry. Panama considers that Colombia's
objection is baseless. In Panama's view, the Panel merely stated that the post-importation control
process "may take more than two years" (underlining added). For Panama, the fact that in one case
that process was shorter does not undermine the validity of the Panel's appreciation of the timing
evidenced in other cases of post-importation control. The Panel agrees with the views expressed by
Panama in this respect and thus declines to make the change requested by Colombia.
4. Panama's claim under Article XI:1 of the GATT 1994
6.33 Colombia argues that paragraph 7.210 of the Interim Report does not reflect the paragraphs
cited in the relevant citations. Panama notes that footnote should refer to paragraphs 18-22 of
Panama's second oral statement. The Panel has corrected the typographical error in the footnote of
paragraph 7.210 of the Final Report to accurately reflect Panama's argument.
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6.34 Regarding paragraph 7.212 of the Interim Report, Colombia requests the Panel to cite to
paragraph 10 of its second written submission in summarizing its arguments as presented in
paragraph 10 of its second written submissions. The Panel considers that Colombia's arguments are
accurately reflected and declines to modify the text. The Panel notes additionally that Colombia has
provided its own summary of arguments in the Descriptive part.
6.35 Regarding paragraph 7.217 of the Interim Report, Colombia considers that the Panel has not
accurately reflected its argument that Panama does not meet the burden of proof under Article XI:1
because it does not refer to any alleged low levels of imports or to the causal link between the specific
measure challenged and such low level of exports. Panama considers the paragraph to accurately
reflect Colombia's views. The Panel has clarified the language in paragraph 7.217 of its Final Report
and corrected its reference to Colombia's first written submission, paragraph 254, to reflect the parties'
arguments.
6.36 Regarding paragraph 7.258 of the Interim Report, Colombia argues that it is not aware of
arguments by Panama that additional costs arising from the imposition of the ports of entry measure
create disincentives and uncertainty in connection with importation to various markets in Colombia.
Panama has referred to paragraphs 160-162 of its first written submission, and paragraphs 132-134 of
its second written submission. The Panel has updated its citations accordingly.
5. Panama's claim under Article I:1 of the GATT 1994
6.37 Regarding paragraphs 7.295-7.296 of the Interim Report, Colombia requests the Panel to
clarify its position regarding Panama's claim under Article I:1 as concerns the ports of entry measure.
In addition to other changes to language, Colombia asks the Panel to include the language, "Colombia
submits that the way Panama developed its claim under Article I:1 in respect of the advanced import
declaration aspect of the ports measures, implies that the claim of violation of Article I:1 by the
restriction of the number of ports of entry was not part of Panama's request ...". The Panel considers
the paragraph and citations in their present form reflect Colombia's argument as originally stated in its
submissions, and therefore declines to modify the text.
6. Panama's claim under Article V:6 of the GATT 1994
6.38 Regarding paragraphs 7.314 and 7.318 of the Interim Report, Colombia requests the Panel to
use the phrase "arriving from" in place of "imports from other origins" for the sake of consistency.
The Panel has modified the language in paragraphs 7.314 and 7.318 of the Final Report consistently.
6.39 Regarding paragraph 7.451 of the Interim Report, Colombia requests the Panel to clarify the
language summarizing its arguments related to Article V:6. The Panel has corrected a typographical
error by adding "do not" in paragraph 7.451 of the Final Report.
7. Colombia's defence under Article XX(d) of the GATT 1994
6.40 Regarding paragraph 7.488 of the Interim Report, Colombia requests the Panel reflect the full
extent of its arguments as to how the ports of entry measures makes a material contribution to the
prevention of smuggling and underinvoicing, not simply through specialization of customs officials.
The Panel has corrected a typographical error in paragraph 7.488 of the Final Report to reflect that the
measures contribute in more ways than by strictly allowing for specialization of customs officials.
6.41 Regarding paragraph 7.500 of the Interim Report, Colombia argues that it presented a
common defence to all aspects of the ports of entry measure due to the fact that Panama challenged
aspects of the measure as one single measure. Colombia cites to Panama's request for establishment,
p. 2 in support of its argument. Thus, Colombia requests the Panel to deem Panama's challenge as a
"common challenge". Panama argues that it has made separate and distinct claims in its submissions,
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which Colombia should have rebutted separately. In light of the language in the request for
establishment, which refers to importation "exclusively through the two designated ports", the fact
that the requirement "does not apply to goods arriving in Colombia directly from third countries", and
reference to the requirement to present and import declaration "in advance of [the goods'] arrival in
Colombia", the Panel does not agree with Colombia's position. Additionally, the Panel notes that
Panama made separate claims under various GATT provisions with respect to the ports of entry
measure. The Panel accordingly declines Colombia's request.
6.42 Regarding paragraph 7.556 and footnote 890 of the Interim Report, Colombia requests the
Panel to modify the text to more accurately reflect the data available in the exhibits. Colombia
contends that the basis for this paragraph (Colombia's first written submission, paragraph 194) was
not presented "as clear as could be". In addition, Colombia requests the Panel to delete footnote 890
in its entirety, stating that terminology used in different exhibits submitted to the panel was not
prepared for these WTO proceedings but for other purposes and thus, may have lead to confusion.
Based on Colombia's argument as presented in its first submission, and the presentation of data in the
relevant exhibits, including Exhibit COL-15, the Panel concludes there is no basis for the changes
proposed by Colombia. The Panel therefore declines to make any changes.
6.43 Regarding paragraph 7.568 and footnote 913 of the Interim Report, Colombia requests the
Panel to cite to paragraph 232 of its second written submission, and Exhibit COL-18, instead of the
original citations. The Panel acknowledges this citation error and has made the correct changes in
paragraph 7.568 and footnote 939 of the Final Report.
6.44 Colombia requests the Panel to modify language appearing in paragraph 7.577 of the Interim
Report to reflect that Colombia did not suggest that the implicit price was the "primary way" of
measuring effectiveness, but instead served as a "good indicator" of effectiveness. In light of
paragraph 235 of Colombia's second written submission, the Panel has made minor modifications to
paragraph 7.577 of the Final Report to reflect Colombia's position.
6.45 Regarding paragraph 7.602 of the Interim Report, Colombia argues that the Panel has not
accurately reflected its arguments in relation to the choice of ports in the period between the
imposition of the first and second ports of entry measures. Colombia submits that it referred to the
general positive aspects of the modern state of the ports chosen, and the ports' significance in terms of
trade in general in 2006 and 2007. Colombia thus requests the Panel to remove the language that data
"bluntly contradict[s] Colombia's proposition". The Panel notes that its reference to Colombia's
"proposition" referred to Colombia's broad argument that the ports of entry measure has not had a
significant negative impact on legitimate trade, as opposed to its own specific arguments regarding the
time period between implementation of two separate measures. In making its findings, the Panel
considers it is not limited to the parties' arguments, but may reach its findings in light of the evidence
presented by both parties. The Panel has reflected Colombia's proposition that the ports of entry
measure has not had a significant negative impact on legitimate trade within paragraph 7.602 of the
Final Report.
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VII. FINDINGS
A. PRELIMINARY ISSUES
1. Colombia's request for a preliminary ruling
(a) Background
7.1 In its first written submission125, Colombia requested the Panel to issue a preliminary ruling
regarding the scope of its mandate on the grounds that Panama's request for establishment failed to
meet the criteria set forth in Article 6.2 of the DSU. Colombia asked the Panel to "exclude such
claims that are not set forth in a sufficiently clear manner in the request for establishment" and/or "for
which no consultations were held". Further to paragraph 11 of the Working Procedures, the Panel
accorded Panama a ten-day deadline to respond to Colombia's request and informed the parties that
they would be heard on this issue at the first substantive meeting. Having heard the parties, the Panel
decided to withhold ruling on matters until issuance of the Interim Report.
7.2 Colombia has raised two issues relating to the scope of the Panel's mandate in relation to the
claims concerning the use of indicative prices. The first issue regards the scope of the statutory and
regulatory provisions challenged by Panama. With respect to the second issue, Colombia alleges that
Panama has not sufficiently identified specific cases of application of the challenged provisions in the
context of its "as applied" claims. Panama contests Colombia's allegations as well as the timing of
Colombia's request.126
(b) Main arguments of the parties
(i) Timing of the preliminary ruling request
7.3 Panama has requested the Panel to dismiss Colombia's request for a preliminary ruling on the
grounds that it had not been submitted in a timely manner, i.e. at the earliest possible opportunity.127
Supporting this statement, Panama refers to the Appellate Body's findings in US – FSC where the
Appellate Body stated that:
"The ... principle of good faith requires that the responding Members seasonably and
promptly bring claimed procedural deficiencies to the attention of the complaining
Member, and to the DSB or the Panel, so that corrections, if needed, can be made to
resolve disputes. The procedural rules of WTO dispute settlement are designed to
promote, not the development of litigation techniques, but simply the fair, prompt and
effective resolution of trade disputes."128
7.4 According to Panama, the Appellate Body's jurisprudence leaves no doubt that a party must
communicate its objections at the earliest opportunity and certainly before filing its first written
submission, if it is in a position to do so. In its view, Colombia's concerns relate exclusively to the
wording of Panama's request for establishment rather than to any discrepancy between the request for
establishment and Panama's first written submission. Panama thus considers that Colombia did not
need to wait until filing its first written submission to submit its request for a preliminary ruling.
7.5 As Panama notes, paragraph 11 of this Panel's Working Procedures provides that "[a] party
shall submit any request for a preliminary ruling not later than its first submission to the Panel". For
125
126
Panama's submission on the Request for a Preliminary Ruling by Colombia, paras. 3-8.
127
Panama's submission on the Request for a Preliminary Ruling by Colombia, para. 8.
128
Appellate Body Report, US – FSC, para. 166.
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Panama, this deadline is the outer time-limit under which a party may submit a request for a
preliminary ruling. According to Panama, this deadline applies in situations where a respondent
raises objections based on a discrepancy between the complainant's first written submission and the
terms of reference set out in the request for establishment.129 Since Colombia's objection is based on
grounds that were known prior to the filing of its first submission, Panama contends that Colombia
should have submitted its request for a preliminary ruling at the earliest possible opportunity, i.e.
sometime before filing its first written submission. In support of its view, Panama refers to the
Appellate Body Report on Canada – Wheat Exports and Grain Imports, in which the Appellate Body
explained that the timeliness of an objection raised under Article 6.2 must be examined in the light of
the particular circumstances of the grounds for the objection.130
7.6 Colombia contests Panama's objection to the timing of its request for a preliminary ruling,
citing to WTO jurisprudence that preliminary issues should be addressed "promptly", but not
necessarily "as soon as possible". Colombia indicates that a request for a preliminary ruling should
not be used as a litigation tactic to delay panel proceedings.131 Moreover, Colombia disputes
Panama's interpretation of the Appellate Body's findings in Canada – Wheat Exports and Grain
Imports. According to Colombia, the Appellate Body clearly established that it is up to each panel to
decide whether a request for preliminary ruling was submitted in a timely manner, especially
considering the fact that panels set their own timetables. In this respect, Colombia notes that the
Panel had decided that requests for preliminary rulings should be submitted at the latest, at the first
written submission. Colombia points out that its request was presented within that time-frame.132
(ii) Scope of the measures
7.7 Regarding the scope of the measures, Colombia claims that Panama's request for
establishment fails to identify the specific measures at issue, as the request refers to indicative prices
established and applied in accordance with framework legislation such as Colombia's Customs Statute
(Decree No. 2685 of 1999, in particular, Titles V and VI), Resolution No. 4240 and Colombia's Tax
Code (Decree No. 624 of 1989), which, together, cover hundreds of pages and of which their
relationship with indicative prices is not obvious. Colombia requests that the Panel limit its
examination to Resolutions No. 07509, No. 07510, No. 07511, No. 07512, No. 07513, and No. 07530
of 26 June 2007 of the DIAN, Article 128.5 e) of Colombia's Customs Statute and Article 172.7 of
Resolution No. 4240 of 2000, Article 115 of Colombia's Customs Statute and Articles 447 and 459 of
Colombia's Tax Code. Colombia claims that only these provisions are identified with the level of
clarity required by Article 6.2 of the DSU.133
7.8 Moreover, Colombia contends that Panama has failed to identify any specific legal provision
that it considers to be in violation of Article III:2, and did not provide for any specific application of
this alleged difference in tax bases.134 According to Colombia, there seems to be a "clear disconnect"
between the various measures that are being challenged by Panama in its Article III:2 claim.135
7.9 Contrary to Colombia's allegations, Panama argues that it has clearly identified the measure at
issue "to the best of its ability".136 Panama submits that its request for establishment makes clear that
the measure at issue is the use of "indicative prices", which "apply to specific goods from all countries
except those with which Colombia has signed free trade agreements" for the purpose of determining
the value of those goods to be used as the basis for levying (a) import duties and (b) sales tax.
129
130
Appellate Body Report, Canada – Wheat Export and Grain Imports, para. 206.
131
Colombia's first oral statement, para. 14.
132
Colombia's first oral statement, para. 16.
133
134
135
136
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Panama submits that it identified the regulatory scheme used by the DIAN to establish the mechanism
of indicative prices to the best of its ability, including Resolutions Nos. 07509, 07510, 07511, 07512,
07513, and 07530. Thus, Panama argues that it identified not just the measure at issue, but also the
legislative and regulatory framework giving effect to the indicative prices. Panama notes that under
Article 6.2, it is required simply to "identify" the measure at issue, not to explain in detail its
operation.137 In this respect, Panama recalls that it has specified its intention "to include within the
measure at issue any other related act, amendments, or extensions, or any related practices".
According to Panama, this language has been found to provide a sufficient basis to include additional
unlisted acts in a panel's terms of reference.138
7.10 In any case, Panama considers that even if the request were to be considered "insufficient on
its face", Colombia has failed to demonstrate that it has suffered a "prejudice" as a result of this
allegedly unsound formulation of the claims.139 Panama draws the Panel's attention to the fact that, as
evidenced by its extensive written submission, Colombia appears to have been able to identify the
precise measure at issue and, thus, Colombia's ability to defend itself was not curtailed.140
(iii) Type of claims: "as such" and/or "as applied"
7.11 Colombia argues that, while Panama's request for establishment refers to the legal provisions
at issue, it does not refer to one single specific application of indicative prices to subject imports at
issue. Colombia thus submits that Panama's case in respect of the use of indicative prices should be
limited to an "as such" challenge of Colombia's laws and regulations.
7.12 Panama contests Colombia's allegations and argues that it is not required to list any individual
importation in its request for establishment. Panama submits that, since it has challenged the
application of the system of indicative prices to all subject imports, it is not necessary to identify
individual transactions.141 Moreover, Panama disputes Colombia's interpretation of the concepts of
"as applied" and "as such". In a view that Panama considers is supported by the practice of WTO
Members142, a complainant is not required to list particular imports subject to a measure when
presenting an "as applied" challenge.143
(c) Consideration by the Panel
(i) General considerations
7.13 While the DSU does not expressly envision preliminary rulings by panels, it has become an
occurrence in the past few years. The Appellate Body has commented that panel working procedures
should allow for the possibility of requests for preliminary rulings.144 Paragraph 11 of this Panel's
Working Procedures has therefore been included to address such a possibility. This paragraph reads
as follows:
"A party shall submit any request for preliminary ruling not later than its first
submission to the Panel. If the complaining party requests such a ruling, the
respondent shall submit its response to the request in its first submission. If the
137
138
Panama refers to the Appellate Body Report in Chile – Price Band System, para. 135. Panama's
submission on the Request for a Preliminary Ruling by Colombia, paras. 13 and 17.
139
Panama refers to the Appellate Body Report in Thailand – H-Beams and the Panel Report on EC –
Bed Linen.
140
141
142
Panama refers to the Appellate Body Report in EC – Computer Equipment.
143
Panama's submission on the Request for a Preliminary Ruling by Colombia, paras. 23-27 and 29.
144
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respondent requests such a ruling, the complaining party shall submit its response to
the request prior to the first substantive meeting of the Panel, at a time to be
determined by the Panel in light of the request. Exceptions to this procedure will be
granted upon a showing of good cause."
7.14 The Panel notes that there is no established jurisprudence nor is there any established practice
on whether panels need to rule on the scope of their mandate on a preliminary basis, i.e. before the
issuance of its Interim Report to the parties. Numerous panels have reserved ruling on preliminary
issues until issuing a Final Report.145 Accordingly, the Panel concludes that it may exercise its own
discretion on to how to proceed in addressing Colombia's preliminary ruling request, while taking into
consideration the due process rights of the parties. Having heard the parties' views on Colombia's
request for a preliminary ruling, the Panel thus decided not to rule on a preliminary basis and withhold
ruling on matters until issuance of the Interim Report. As the Appellate Body ruled in US – Carbon
Steel, "in considering the sufficiency of a panel request, submissions and statements made during the
course of the panel proceedings, in particular the first written submission of the complaining party,
may be consulted in order to confirm the meaning of the words used in the panel request and as part
of the assessment of whether the ability of the respondent to defend itself was prejudiced.146"147 The
Panel therefore considered that the scope of Panama's request for establishment could be clarified
through appropriate questioning during and further to the first substantive meeting.
7.15 Having withheld issuing a preliminary ruling, the Panel will now consider Panama's objection
pertaining to the admissibility of Colombia's preliminary ruling request due to its alleged late
submission. If the Panel decides to dismiss Panama's objection, the Panel will then address the
substance of Colombia's request.
(ii) Timing of the preliminary ruling request
7.16 The Panel will first consider whether Colombia's request for a preliminary ruling was raised
in a timely manner. The Panel notes that paragraph 11 of the Panel's Working Procedures, which is
reproduced in paragraph 7.13 above, specifically provides for a deadline for preliminary ruling
requests: "A party shall submit any request for preliminary ruling not later than its first submission to
the Panel" (emphasis added). As noted by Colombia, Article 12 of the DSU allows panels to
determine their working procedures and timetable. To be precise, the Appellate Body stated, "under
Article 12 of the DSU, it is the panel that sets the timetable for the panel proceedings and, therefore, it
is the panel that is in the best position to determine whether, under the particular circumstances of
each case, an objection is raised in a timely manner."148 As indicated above, the Appellate Body has
further recommended panels to foresee the possibility of requests for preliminary rulings in their
working procedures.149 The Panel has done so by way of including paragraph 11 in its Working
Procedures. The Panel is also of the view that, where the Panel has specified a given deadline in its
Working Procedures, that deadline should prevail. The wording of paragraph 11 is clear: the request
for a preliminary ruling has to be filed not later than the first written submission. This could be
interpreted as meaning that such a request can be filed before or at the time of the first written
submission. The Panel considers that Colombia has abided by that deadline since Colombia's request
for a preliminary ruling was submitted to the Panel as part of its first written submission.150
145
See, for example, Panel Report, Canada – Aircraft, para. 9.15; Panel Report, India – Autos,
para. 7.7; Panel Report, EC – Bananas III; Panel Report, EC – Computer Equipment.
146
(footnote original) See, for example, Appellate Body Report, Korea – Dairy, para. 127, Appellate
Body Report, Thailand – H-Beams, para. 95.
147
Appellate Body Report, US – Carbon Steel, para. 127.
148
Appellate Body Report, US – Wheat Exports and Grain Imports, para. 206.
149
Appellate Body Report, EC – Bananas III, para. 144. See para. 7.13.
150
Colombia's first written submission, pp.12-15.
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7.17 The Panel is not persuaded by Panama's argument to dismiss Colombia's request for a
preliminary ruling on the basis that Colombia's concerns relate exclusively to the wording of Panama's
Request for the establishment of a panel rather than to any discrepancy between that Request and
Panama's first written submission. Since Colombia's concerns are exclusively related to the text of the
Request, Panama argues that no need existed for Colombia to wait until the filing of its first written
submission to submit its request. The Panel acknowledges that the Appellate Body has ruled that
"[w]hen a Member wishes to raise an objection in dispute settlement proceedings, it is always
incumbent on that Member to do so promptly. A Member that fails to raise its objections in a timely
manner, notwithstanding one or more opportunities to do so, may be deemed to have waived its right
to have a panel consider such objections."151 The Panel does not consider this to be the case with
Colombia's request.
7.18 As a general rule, the Appellate Body has granted panels broad discretion to conduct Panel
proceedings as appropriate, subject to the following considerations: (i) the Panel must respect the
wording of the DSU unless the parties mutually agree to derogate from it and (ii) the Panel must fully
take into account the due process rights of the parties. Panama was given the opportunity to present
its response in writing before the first substantive meeting and was also given the opportunity to
comment on Colombia's request at the first substantive meeting. In the Panel's view, it has not
impaired Panama's due process rights or its right to a defence. The Panel will therefore address the
substance of Colombia's request.
(iii) Adequacy to Article 6.2 requirements
7.19 The Panel will now consider Colombia's objections pertaining to the adequacy of Panama's
request for establishment to the requirements of Article 6.2 of the DSU. According to Colombia,
Panama's request for establishment fails to identify the specific measure at issue in two respects.
First, Colombia argues that Panama's broad reference to "framework legislation" is not sufficiently
precise, as the legislation covers hundreds of pages and a wide range of legal provisions whose
relationship with indicative prices is not always clear. Second, Colombia contends that Panama has
failed to identify any individual applications of the challenged provisions to imports arriving from
Panama. According to Colombia, this specific application of a provision constitutes a legally distinct
measure, which must be identified separately in the context of Panama's "as applied" claim.152
7.20 The Panel understands, as argued by Panama 153, that Colombia's concerns appear to relate
exclusively to the wording of Panama's request for establishment rather than to any discrepancy
between that Request and Panama's first written submission.
7.21 Article 6.2 reads as follows:
"The request for the establishment of a panel shall be made in writing. It shall
indicate whether consultations were held, identify the specific measures at issue and
provide a brief summary of the legal basis of the complaint sufficient to present the
problem clearly. In case the applicant requests the establishment of a panel with
other than standard terms of reference, the written request shall include the proposed
text of special terms of reference." (emphasis added)
7.22 Therefore, Article 6.2 provides inter alia that a request for establishment must identify the
specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to
present the problem clearly. In US – Carbon Steel, the Appellate Body summarized its previous
jurisprudence on the requirements of Article 6.2 and noted the importance of the two distinct
151
Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 50.
152
153
Panama's submission on the Request for a Preliminary Ruling by Colombia, para. 6
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requirements, namely, identification of the specific measures at issue, and the inclusion of a brief
summary of the claims. Referring to Guatemala – Cement I154, the Appellate Body concluded that
both requirements "together ... comprise the 'matter referred to the DSB', which forms the basis for a
panel's terms of reference under Article 7.1 of the DSU".
7.23 The Panel recalls that, in EC – Bananas III, the Appellate Body explained why a panel
request must be "sufficiently precise": "first, it often forms the basis for the terms of reference of the
panel pursuant to Article 7 of the DSU; and, second, it informs the defending party and the third
parties of the legal basis of the complaint."155 In US – Carbon Steel, the Appellate Body reiterated
that the underlying requirements of Article 6.2 are first, to define the scope of a dispute, and second,
to "serve the due process objective of notifying the parties and third parties of the nature of a
complainant's case."156
Identification of the specific measures at issue concerning the use of indicative prices
7.24 Colombia argues inter alia that Panama's request for establishment fails to identify the
specific measures at issue as required in Article 6.2 of the DSU, in respect of the use of indicative
prices by Colombia's customs authorities. According to Panama, its request for establishment makes
clear that the measure at issue is the use of "indicative prices", which "apply to specific goods from all
countries except those with which Colombia has signed free trade agreements" for the purpose of
determining the value of those goods to be used as the basis for levying (a) import duties and (b) sales
tax.157
7.25 The Appellate Body has found that the degree of specification required in identifying the
measure at issue must be assessed on a case-by-case basis.158 Whether the specific measure at issue
has been sufficiently identified in the request for establishment will depend upon the ability of the
respondent to defend itself given the description of the measure in the Request.159
7.26 Panama contends that it has not just identified the measures at issue, but also the legislative
and regulatory framework giving effect to the indicative prices. Specifically, Panama cited to
Resolution No. Nos. 07509, 07510, 07511, 07512, 07513 and 07530 and noted additionally that some
provisions of the resolutions and decrees listed in the request for establishment are more pertinent to
the operation of indicative prices than others. Subsequently, in response to a question from the Panel,
Panama explained that it is challenging the specific provisions of Article 128.5 e) of Decree No. 2685
and Article 172.7 of Resolution No. 4240 as well as the operation of the import regime related to
indicative prices, which has been listed in its request for establishment as:
(a) Resolutions No. 07509, No. 07510, No. 07511, No. 07512, No. 07513, and No.
07530 of 26 June of the DIAN,
(b) framework legislation such as Colombia's Customs Statute (Decree No. 2685 of 1999,
in particular, Titles V and VI),
(c) Resolution No. 4240 of 2000 and Colombia's Tax Code (Decree No. 624 of 1989).160
154
Appellate Body Report, Guatemala – Cement I, paras. 69-76.
155
156
157
158
159
Appellate Body Report, EC – Computer Equipment, para. 70.
160
Panama's response to Panel question No. 3.
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7.27 In response to a follow-up question from the Panel, Panama further clarified that:
"Panama is seeking a finding by the Panel on the inconsistency of Article 128.5 e) of

Decree No. 2685, Article 172.7 of Resolution No. 4240 and the specific resolutions,
as amended or modified, establishing indicative prices that were listed in paragraph
29 of Panama's first written submission. Panama seeks a ruling that those measures
are, as such, inconsistent with Articles 1, 2, 3, 5, 6, 7(b), (f) and (g) of the CVA, as
well as with Article III:2 and, in the alternative, Article III:4 of GATT 1994."161
7.28 Panama also disputes Colombia's argument that it has not identified with sufficient clarity the
measure in dispute with respect to its claim under Article III:2 and III:4 of GATT 1994. It notes that
its request for establishment refers to "indicative prices established and applied in accordance with ...
Colombia's Tax Code", particularly to Article 459 of the Tax Code, as the basis for the establishment
of the tax base for imported goods, and to Article 447 of the Tax Code, as the basis for the
establishment of the tax base for domestic goods.162 Panama argues that it is the application of
Article 459 of the Tax Code in connection with the relevant provisions governing the determination of
customs value for subject products that results in less favourable treatment being accorded to
imported products.163 Panama specifically says that it is challenging "Article 496 of the Tax Code in
connection with Article 128.5 e) of Decree No. 2685 and Article 172.7 of Resolution No. 4240".164
The Panel notes, however, that in response to a later question by the Panel quoted in paragraph 7.27
above, Panama does not mention Article 496 of the Tax Code as a measure it is challenging as such
but rather Article 128.5 e) of Decree No. 2685 and Article 172.7 of Resolution No. 4240 as being
inconsistent inter alia with Article III:2 (and III:4 in the alternative) of the GATT 1994.
7.29 Panama notes that both Colombia and the third parties have been able to identify the measure
at issue and to put forward arguments with respect to Panama's claim.165 Finally, Panama contends
that, even if the request for establishment were to be considered "insufficient on its face", Colombia
has failed to demonstrate any "prejudice" arising as a result of this allegedly unsound claim.166
7.30 As the request for the establishment defines and limits the scope of the dispute and thereby
the extent of a panel's jurisdiction, the Panel will begin with Panama's request for establishment as its
starting point.167 A panel may review the dispute only in the light of the provisions cited in the
Request. Therefore, the Panel's terms of reference in this dispute are limited to the specific measures
and legal claims raised by Panama in document WT/DS366/6.
7.31 The relevant portion of Panama's Request reads as follows:
"Colombia establishes indicative prices to determine the value of products for the
purpose of levying customs duties and internal taxes. These prices apply to specific
goods from all countries except those with which Colombia has signed free trade
agreements. These prices are established and applied in accordance with Resolutions
No. 07509, No. 07510, No. 07511, No. 07512, No. 07513, and No. 07530 of 26 June
2007 of the Directorate of Taxes and National Customs ("DIAN"), as well as
framework legislation such as Colombia's Customs Statute (Decree No. 2685 of 1999,
in particular, Titles V and VI), Resolution No. 4240 of 2000 and Colombia's Tax
Code (Decree No. 624 of 1989).
161
162
Panama's second written submission, para. 82.
163
164
Panama's response to Panel question No. 6, Panama's second written submission, para. 84.
165
Panama's second written submission, paras. 79-80.
166
Panama's submission on the Request for a Preliminary Ruling by Colombia, para.19.
167
Appellate Body Report, EC – Bananas III, para. 142, Appellate Body Report, Brazil – Desiccated
Coconut, p. 21.
WT/DS366/R
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Colombia requires that importers of certain goods pay customs duties and other duties
or charges and taxes based on the indicative prices, instead of on the valuation
methods set out in Article VII of the GATT 1994 and the Agreement on Customs
Valuation. Panama is challenging the indicative price measures on an 'as such' and
'as applied' basis.
Under Article 128.5 e)of Colombia's Customs Statute and Article 172.7 of
Resolution No. 4240 of 2000, an importer declaring a f.o.b. value that is below the
indicative price can obtain the release of merchandise only if it corrects its import
declaration to reflect indicative prices and pays customs duties, other duties or
charges and relevant taxes on the basis of those indicative prices. Article 115 of
Colombia's Customs Statute further provides that if an importer fails to obtain release
of the merchandise within the custody period, the merchandise shall be considered as
legally abandoned and will eventually become the property of the State."
7.32 Within the cited text, Panama appears to challenge Resolutions No. 07509, No. 07510,
No. 07511, No. 07512 and No. 07513 of the Directorate of Taxes and National Customs ("DIAN"), as
well as framework legislation such as Colombia's Customs Statute (Decree No. 2685 of 1999, in
particular, Titles V and VI), Resolution No. 4240 of 2000 and Colombia's Tax Code (Decree No. 624
of 1989). And, in particular, Article 128.5 e) of Colombia's Customs Statute and Article 172.7 of
Resolution No. 4240 of 2000. The Panel notes that in its responses to the questions by the Panel,
Panama clarified that: (a) it was not seeking a separate ruling on Article 115 of Decree No. 2685 of
1999, but referred to it in its request for establishment and its first written submission to demonstrate
the adverse consequences faced by an importer that failed to "correct" the import declaration and pay
the customs duties and sales tax as required by Article 128.5 e)168; (b) it was not seeking a ruling on
Resolution No. 07530 of 26 June 2007, which refers to products subject to "reference prices" and not
to "indicative prices"169; and (c) it was challenging the provisions governing the determination of the
tax base for imported goods, i.e. Article 459 of the Tax Code applied in conjunction with
Article 128.5 e) of Decree No. 2685 and Article 172.7 of Resolution No. 4240. 170
7.33 The Appellate Body has ruled that panels can use the parties' submissions to interpret the
terms of the request for establishment.171 In its first written submission, Panama refers to a number of
provisions within those legal instruments. The Panel has thus sought to further clarify the scope of
the measures at issue by way of questions to the parties.
7.34 Panama's arguments and the corresponding Colombian counter-arguments are mainly
focussed on Article 128.5 e) of Decree No. 2685 and Article 172.7 of Resolution No. 4240. Panama
also refers to the operation of the import regime related to indicative prices. In this context, Panama
refers to "the specific Resolutions in the context of the entire framework legislation, that give effect to
indicative prices", and specifically Resolutions No. 07509, No. 07510, No. 07511, No. 07512, No.
07513, and No. 07530 of 26 June of the Directorate of Taxes and National Customs ("DIAN");
Colombia's Customs Statute (Decree No. 2685 of 1999, in particular, Titles V and VI),
Resolution No. 4240 of 2000 and Colombia's Tax Code (Decree No. 624 of 1989).172
7.35 A review of Colombia's first and further submissions shows that Colombia has been able to
identify Article 128.5 e) of Decree No. 2685, Article 172.7 of Resolution No. 4240 and the series of
resolutions establishing and amending indicative prices as the relevant measures for the claims
168
169
170
171
Appellate Body Report, US – Carbon Steel, para. 127, Appellate Body Report, Thailand –
H-Beams, para. 95.
172
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concerning its indicative prices regime.173 Since these provisions were identified by Panama in its
request for establishment174, those provisions form part of the "measure" at issue. The Panel notes
that Colombia's ability to defend itself does not appear to have been impaired by Panama's definition
of the measures at issue.175
7.36 The Panel therefore finds that Panama's request for establishment complies with the
requirements of Article 6.2 of the DSU as far as the definition of the measures at issue regulating
Colombia's use of indicative prices is concerned. The Panel thus establishes that the measure relevant
to Panama's claims under the Customs Valuation Agreement and Article III of the GATT 1994
comprises: Article 128.5 e) of Decree No. 2685 and Article 172.7 of Resolution No. 4240 as well as
Resolution No. 7510 of 26 June 2007, as modified by Resolution No. 11412 of 28 September 2007;
Resolution No. 7511 of 26 June 2007; Resolution No. 7509 of 26 June 2007, as modified by
Resolution No. 11414 of 28 September 2007; Resolution No. 7512 of 26 June 2007, as modified by
Resolution No. 11415 and Resolution No. 7513 of 26 June 2007. The issue of whether a number of
these resolutions which have been enacted after the establishment of this Panel are part of our
mandate will be dealt with in Section VII.A.2(a) below.
7.37 The Panel further declines to make findings on the WTO-consistency of Article 459 of the
Tax Code. The Panel has taken such a decision on the basis of the text of Panama's request for
establishment and its response to question No. 91 of the Panel, where Panama indicated that it is not
challenging the WTO-consistency of Article 459 of the Tax Code as such but rather referred to the
provision as context to establishing the WTO-inconsistency of Article 128.5 e) of Decree No. 2685
and Article 172.7 of Resolution No. 4240 with Article III:2 (and III:4 in the alternative) of the
GATT 1994.
Panama's claims "as applied"
7.38 Colombia has additionally requested the Panel to reject Panama's "as applied" claims due to a
failure by Panama to identify individual cases of application of the indicative prices measure at issue.
7.39 In its request for establishment, Panama indicated that it is challenging those measures
relating to the use of indicative prices both "as such" and "as applied". Hence, Panama is challenging
the WTO-compatibility of the legal instruments themselves as well as the application of the various
legal instruments cited in its request.
7.40 Colombia argues that the application of the challenged provisions in particular situations with
respect to particular imported products is a distinct measure that needs to be identified with clarity in
the context of an "as applied" claim. While Panama's request for establishment refers to the legal
provisions at issue, Colombia argues that it does not refer to any single specific application of
indicative prices.176 As a result, Colombia argues that Panama's case must be limited to its "as such"
challenge to Colombia's laws and regulations that establish the indicative prices regime.177
173
Colombia's first written submission, para. 37, Colombia's first oral statement, para. 12, Colombia's
second written submission, para. 10.
174
WT/DS366/6, p. 1.
175
Appellate Body Report, Korea – Dairy, para. 127; Appellate Body Report, Thailand – H-Beams,
para. 88; Appellate Body Report, EC – Bananas III, para. 142.
176
177
Colombia notes that the request for establishment referred to yet another legal basis by challenging
Articles 447 and 459 of the Tax Code. WT/DS366/6, p. 2. See para. 141 of Colombia's first written
submission.
WT/DS366/R
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7.41 Panama has clarified that it is challenging the general and systemic application of indicative
prices and not individual customs determinations.178 Panama argues that the distinction between an
"as applied" and an "as such" challenge does not relate to the identification of the measures at issue,
but to the nature of the complainant's legal claims. Generally, it argues, an "as such" challenge refers
to a complainant's view that the identified measure – typically a legislative act – is per se WTO-
inconsistent, in that every application of the measure would necessarily be WTO-inconsistent.
According to Panama, such a challenge involves legal and factual issues that do not arise with respect
to an "as applied" challenge. Panama contends that, an "as applied" challenge, on the other hand,
refers to all other challenges that do not involve an allegation that an act is per se WTO-inconsistent.
While this may involve a challenge with respect to an individual importation, there is no limitation
that such challenges must be made only with respect to specific entries. In Panama's view, to impose
such a limitation and require Members to list all imports to which a measure is applied would render
access to dispute settlement virtually impossible.179 Panama submits that the past practice of
Members supports this interpretation. For instance, in EC – Computer Equipment, Panama argues
that the complainant successfully challenged the application of a measure without describing specific
transactions.180
7.42 The question before the Panel is whether Panama is required to submit specific applications
of the laws regulating indicative prices in order to properly raise an "as applied" challenge to the use
of indicative prices in accordance with Article 6.2 of the DSU.
7.43 Under WTO law, an "as such" claim challenges "laws, regulations, or other instruments of a
Member that have general and prospective application, asserting that a Member's conduct – not only
in a particular instance, but in future situations as well – will necessarily be inconsistent with that
Member's WTO obligations."181 It is the Panel's understanding that, leaving aside the issue dealt with
in the previous section of whether the identification of the indicative prices measures in Panama's
request for establishment complied with Article 6.2 of the DSU, both parties agree that Panama has
put forward an "as such" claim concerning the WTO-compatibility of Colombia's laws regulating its
indicative prices regime. Therefore, Colombia is only challenging the consistency of the "as applied"
claims with Article 6.2 of the DSU.
7.44 Notwithstanding Colombia's concern, the Panel considers that it is not obliged, as a threshold
matter, to find on whether Panama's "as applied" claims are part of its mandate. In the event of a
finding of violation in respect of Panama's "as such" claims, the Panel considers a finding of violation
"as applied" would be unnecessary since it stands to reason that each prospective individual
178
Panama nevertheless referred to examples of the application of the indicative prices regime. In
particular, Panama draws the Panel's attention to: (i) an example of a case in which an importer at first did not
correct the import declaration (Exhibit PAN-51) and then subsequently corrected the import declaration
(Exhibit PAN-52); (ii) a case in which the importer corrected and paid, and then requested a refund of the
customs duties paid in excess, which was refused (Exhibit PAN-53); and (iii) the specific examples submitted
by Colombia in Exhibits COL 7-9. According to Panama, Exhibit COL-8, Exhibit COL-9 (complemented by
Exhibit COL-64) and Exhibit PAN-53 (partially complemented by Exhibit COL-49) show a complete picture of
the "post-importation" process. These Exhibits include documentary evidence from all the stages involved in
the procedure, including requests by the importers for the official liquidation, responses by the División de
Fiscalización and the División de Liquidación, and the final decisions by the Legal Division on the "recurso de
reconsideración" presented by the importers to challenge the decision by the División de Liquidación. Panama
has also submitted Exhibit PAN-23 which alleges that importers have corrected declarations and paid duties
based on indicative prices in 87 per cent of all cases concerning textiles, apparel and footwear. Panama believes
that this evidence illustrates and confirms that the legislation as applied operates in a manner inconsistent with
the Customs Valuation Agreement.
179
180
Panama refers to the Appellate Body Report in EC – Computer Equipment. Panama's submission
on the Request for a Preliminary Ruling by Colombia, paras. 26-27.
181
Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 172.
WT/DS366/R
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application of indicative prices to import transactions would be based on WTO-inconsistent

legislation. The fact that a panel makes a finding that a measure "as such" is inconsistent with the
covered agreements also covers every instance of application of the same measure.182 The Panel notes
that the parties agree on the admissibility of Panama's "as such" claims. Thus, the Panel will first
address Panama's "as such" claims. Only if the Panel rejects Panama's "as such" claims, will it
consider whether Panama's "as applied" claims comply with the requirements of Article 6.2 of the
DSU.
2. Other issues concerning the scope of the matter subject to dispute
(a) Measures potentially outside the Panel's mandate
7.45 In its first written submission, Panama indicates that Colombia has replaced or modified a
series of resolutions authorizing the application of indicative prices to a number of subject products,
following the submission of its request for establishment. The specific resolutions, which authorize
the imposition of indicative prices on a per unit basis are the following :
Resolutions in force at the time of the

Subsequent legislative action
request for the establishment of the Panel
Resolution No. 7509 Replaced or modified by Resolution No. 11414 of
28 September 2007.183
Resolution No. 7511 No modification.
Resolution No. 7513 No modification.
7.46 Panama asks the Panel to make findings on the measures currently in force on the ground that,
in its request for establishment, in addition to identifying the specific provisions at issue, it referred to
"any amendments or extensions to these measures as well as any related acts, practices and
implementing measures".
7.47 Colombia stated in its first written submission that it did not object to Panama's reference to
the measures that replaced or modified the originally challenged provisions.186 Nevertheless, the
Panel recalls that the Appellate Body has ruled that panels have a duty to examine issues of a
"fundamental nature", issues that go to the root of their jurisdiction, on their own motion if the parties
to the dispute remain silent on those issues.187 Whether a measure falls within the Panel's terms of
reference is clearly an issue that goes to the root of the Panel's jurisdiction. Therefore, even though
Colombia does not contest the inclusion of these various regulations, the Panel must determine
whether Resolutions 11414, 11412 and 11415 fall within its terms of reference.
182
Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 172.
183
Resolution No. 11414 of 28 September 2007, referring to footwear classifiable under Chapter 64
(Exhibit PAN-14).
184
Resolution No. 11412 of 28 September 2007, referring to fabrics classifiable under Chapters 52, 54,
55, 56, 58, 59, 60 (Exhibit PAN-15).
185
Resolution No. 11415 of 28 September 2007, referring to footwear classifiable under Chapter 64
(Exhibit PAN-16).
186
Colombia's first written submission, para. 52, footnote 35.
187
Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US), para. 36; Appellate Body Report,
US – Carbon Steel, para. 123.
WT/DS366/R
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7.48 The Panel considers Article 7 of the DSU, governing the Panel's terms of reference, Article 4
of the DSU, governing a complainant's request for consultations, and Article 6 of the DSU, governing
a complainant's request for establishment of a panel, are relevant to this issue. Article 7.1 of the DSU
provides:
"Panels shall have the following terms of reference unless the parties to the dispute
agree otherwise within 20 days from the establishment of the panel:
To examine, in the light of the relevant provisions in (name of the

covered agreement(s) cited by the parties to the dispute), the matter
referred to the DSB by (name of party) in document ... and to make
such findings as will assist the DSB in making the recommendations
or in giving the rulings provided for in that/those agreement(s)."
7.49 Article 4.4 of the DSU provides:
"All such requests for consultations shall be notified to the DSB and the relevant
Councils and Committees by the Member which requests consultations. Any request
for consultations shall be submitted in writing and shall give the reasons for the
request, including identification of the measures at issue and an indication of the
legal basis for the complaint." (emphasis added)
7.50 Article 6.2 of the DSU provides:
"The request for the establishment of a panel shall be made in writing. It shall
indicate whether consultations were held, identify the specific measures at issue and
provide a brief summary of the legal basis of the complaint sufficient to present the
problem clearly. In case the applicant requests the establishment of a panel with other
than standard terms of reference, the written request shall include the proposed text of
special terms of reference." (emphasis added)
7.51 The Appellate Body affirmed in US – Upland Cotton that, "pursuant to Article 7 of the DSU,
a panel's terms of reference are governed by the request for establishment of a panel".188
7.52 The Panel believes that the Appellate Body's findings in Chile – Price Band System are
relevant to the present dispute. On that occasion, the Appellate Body considered whether an
amendment to a measure enacted after the Panel had been established should nevertheless be
considered as within the Panel's terms of reference.189 In that case, the Appellate Body determined
that the amendment at issue should be considered as part of the measure at issue since it clarified the
legislation that established the measure at issue and did not change the original measure into
something different than what was in force before the amendment.190 This determination was
considered consistent with earlier jurisprudence191 and was also found to be consistent with the object
188
See e.g. Appellate Body Report, US – Upland Cotton, para. 284, citing to Appellate Body Report,
US – Carbon Steel, para. 124.
189
Appellate Body Report, Chile – Price Band System, para. 137.
190
191
The Appellate Body in Chile – Price Band System cited to a passage from the Panel Report on
Argentina – Footwear (EC) which concluded that modifications made to the measure at issue during the panel
proceedings did:
"… not constitute entirely new safeguard measures in the sense that they were based on a
different safeguard investigation, but are instead modifications of the legal form of the
original definitive measure, which remains in force in substance and which is the subject of
the complaint."
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and purpose of the WTO dispute settlement system, as set forth in Article 3.7 of the DSU. The
Appellate Body explained:
"If the terms of reference in a dispute are broad enough to include amendments to a
measure – as they are in this case – and if it is necessary to consider an amendment in
order to secure a positive solution to the dispute – as it is here – then it is appropriate
to consider the measure as amended in coming to a decision in a dispute."192
7.53 The Panel agrees with the Appellate Body's rationale. In the dispute before the Panel,
Colombia enacted the aforementioned Resolutions 11414, 11412 and 11415 after the Panel was
established. In the Panel's view, the terms of the Panama's request for establishment include the
relevant amendments and replacements.
7.54 The Panel therefore finds that Resolutions 11414, 11412 and 11415 are properly part of the
measure at issue and within the Panel's terms of reference. In the Panel's view, a failure to consider
these additional resolutions would inhibit the Panel from securing a positive solution to the dispute.
(b) Admissibility of Panama's second claim under Article I:1 of the GATT 1994
7.55 In its first oral statement193, Panama requested the Panel to find that the restriction on
importation of textiles, apparel and footwear arriving from Panama to two ports, is inconsistent with
Article I:1 of the GATT 1994, in the event of a finding that the ports of entry restrictions do not fall
within "Article XI (and consequently Article XIII)". However, Panama did not raise this claim in its
first written submission. Instead, in its first written submission, Panama exclusively argued that the
requirement to present an advance import declaration, pay customs duties and sales tax on the basis of
an advance declaration, and legalization fee requirements violate Article I:1 of the GATT 1994.
Panama has argued that this late claim is justified on the ground that the claim was identified in its
request for establishment. Panama explained that "[i]n its first written submission, [it] did not
elaborate on its Article I:1 claim because it seemed indisputable that the ports of entry measure falls
under Articles XI and XIII."194
7.56 Colombia objects to the inclusion of what it considers a new claim and argues that the failure
to develop any legal and factual arguments in respect of such claim implies that Panama failed to
make a prima facie case of violation under GATT Article I:1.195 Colombia submits that this claim
was not part of Panama's request for establishment and is therefore not part of the Panel's terms of
reference. While Colombia acknowledges that Article I:1 of the GATT 1994 is mentioned in
Panama's request for establishment, Colombia considers that Panama has strictly referred to the
Article I:1 claim developed in its first written submission in relation to advance import declaration
and legalization requirements in the ports of entry measure.196
7.57 Assuming arguendo that Panama's additional claim under Article I:1 is part of the Panel's
terms of reference, Colombia further submits that Panama was required under paragraph 4 of the
Panel's Working Procedures197 to have presented its claims and arguments in its first written
submission.198 Colombia argues that it is a well-established principle in WTO case law that a party
192
193
194
195
196
Colombia's second written submission, paras. 148-149.
197
Paragraph 4 provides that: "Before the first substantive meeting of the Panel with the parties, the
parties to the dispute shall transmit to the Panel written submissions in which they present the facts of the case
and their arguments".
198
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must present its arguments at the earliest opportunity: the first written submission in this case.199
Colombia also contends that the Panel should not rely on the ruling by the Appellate Body in EC –
Bananas III that "[t]here is no requirement in the DSU or in GATT practice for arguments on all
claims relating to the matter referred to the DSB to be set out in a complaining party's first written
submission to the panel".200 In Colombia's view, the Appellate Body authorized the introduction of a
new claim after the first written submission due to the "very peculiar procedural developments" in that
case and, thus such criteria would not be applicable to the case at hand.201 Furthermore, Colombia
notes that in EC – Sardines, the Appellate Body limited this reasoning to the development of new
"arguments" rather than new "claims". In the instant case, Colombia contends, Panama is not simply
developing an argument, but introducing a whole new claim.202 Colombia has thus not presented any
substantive rebuttal arguments as it considers there simply is no case to answer in the absence of any
development of this new claim by Panama.203
7.58 Panama considers there can be no doubt that the claim under Article I:1 is within the panel's
terms of reference. While it did not elaborate upon this claim in its first written submission, Panama
argues that it did so at the next available opportunity, in its oral statement at the first meeting of the
Panel with the parties. Panama contends that the fact that it advanced arguments regarding this claim
in its oral statement at the first meeting of the Panel does not in any way affect the Panel's ability or
obligation to resolve this claim. Moreover, Panama argues, Colombia had the opportunity to respond
to Panama's Article I:1 claim in its second written submission as well as in its oral statement at the
second meeting of the Panel, and in its answers to questions from the Panel. Thus, in Panama's view,
no basis exists to suggest that Colombia has been in any way prejudiced by Panama's inclusion of
arguments on this claim in its first oral statement. Panama notes that its claims under Article I:1 has,
in any event, only been advanced in the alternative, in the event that the Panel rules against it on its
claims under Article XIII:1.204
7.59 The question before the Panel is thus whether this second claim under Article I:1 of the
GATT 1994 is part of its mandate.
7.60 The Panel considers that, notwithstanding Colombia's contention, it is not obliged, as a
threshold matter, to find on whether Panama's second claim under Article I:1 is part of its mandate.
The Panel notes that Panama has formulated this claim as an alternative to its Article XI and
Article XIII claims. Thus, were the Panel to find a violation under Article XI and Article XIII, it
would not need to examine Panama's alternative claim under Article I:1. Only if the Panel rejects
Panama's claims under Article XI and Article XIII, will it consider whether Panama's second claim
under Article I:1 is part of its mandate.
B. WHETHER COLOMBIA'S USE OF INDICATIVE PRICES IS INCONSISTENT WITH ARTICLES 1, 2, 3,

5, 6 AND 7.2(B), (F) AND (G) OF THE CUSTOMS VALUATION AGREEMENT
1. Main arguments of the parties
7.61 Panama requests the Panel to find that Colombia's determination of the customs value of
textiles, apparel and footwear on the basis of indicative prices is inconsistent with Articles 1, 2, 3, 5, 6
and 7.2(b), (f) and (g) of the Customs Valuation Agreement. Panama submits that Article 128.5 e) of
199
Colombia's second written submission, para. 156. In support of this statement, Colombia refers to
the Appellate Body Report, US – Gambling, para. 269 and to the Appellate Body Report, India – Patents,
para. 94.
200
201
202
203
Colombia's second written submission, para. 150, and Colombia's second oral statement,
paras. 44-45.
204
Panama's second oral statement, para. 44.
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Decree No. 2685 and Article 172.7 of Resolution No. 4240 require that, in cases in which the importer
has declared a value lower than the indicative price, the importer has to either correct the import
declaration and pay customs duties and sales tax based on indicative prices, or re-ship the goods. In
Panama's view, Colombian authorities determine the customs value based on the application of
indicative prices to subject goods arriving from Panama. Panama argues that this method of customs
valuation is inconsistent with the methodologies set out in the Customs Valuation Agreement.
7.62 Panama recalls that Article 15.1(a) of the Customs Valuation Agreement provides that the
"customs value of imported goods" is defined as the value of a good for the purpose of levying
ad valorem customs duties on imported goods. In the case of products subject to indicative prices,
Panama argues that the customs value used for the purpose of levying ad valorem custom duties on
imported goods is determined when the importer submits its import declaration. Panama considers
that customs valuation occurs at this point when customs officials review the declared value in order
to determine whether that value is greater or less than the relevant indicative price for a particular
product under review. In accordance with Article 128.5 e) of Decree No. 2685 and Article 172.7 of
Resolution No. 4240, if the declared value is lower than the indicative price, this value is not accepted
and the importer is required to "correct" the value to reflect the indicative price. Since Colombian
customs authorities have made a determination not to accept the declared customs value, Panama
argues that this value based on an indicative price serves as the customs value for the purpose of
levying customs duties. An importer is not permitted to contest the value used or submit any further
evidence. The importer must pay the customs duties based on that "corrected" value, or otherwise re-
ship the goods from Colombia.205 In the vast majority of cases (87 per cent of the total cases),
according to Panama, importers have decided to "correct" the declared value and pay customs duties
based on that value.206
7.63 Panama rejects Colombia's contention that customs valuation is postponed until the later
"control posterior" stage. In Panama's view, Colombia has failed to demonstrate that customs
valuation takes place during the "control posterior" or "estudio de valor". Moreover, Panama
contends that Colombia has not identified the specific legal basis for the "control posterior" or the
"estudio de valor" for products subject to indicative prices during the post-importation process.207
7.64 According to Panama, Article 128.5 e) prescribes that the relevant importation documents are
forwarded to the División de Fiscalización for the purpose of initiating official liquidation. Panama
notes that the definition of this "proceso de liquidación oficial de revisión de valor" provided by
Article 514 of Decree No. 2685 refers to a "review" of the value aimed at amending "errors" in the
import declaration, thus implying that there has already been a determination of the customs value
that is being reviewed.208 Panama argues this conclusion is further reinforced by the wording of
Article 548 of Decree No. 2685, which permits importers to request the reimbursement of the sums
paid in excess. Foremost, Panama submits, Article 548 of Decree No. 2685 refers to the
reimbursement of customs duties "that have been paid", and not to the "refund of a guarantee".
Additionally, Panama argues that Article 548 distinguishes between "payments" and "provisional
payments". Panama notes that paragraph (d), in Article 548 refers to payment of provisional anti-
dumping duties; however paragraph (a) of the same provision, does not refer to "provisional payment"
but instead provides the basis upon which importers may seek a "devolución" of funds, or "refund".209
7.65 Panama further argues that Article 222 of Resolution No. 4240 demonstrates that customs
valuation always takes place at the time of inspection. Article 222 of Resolution No. 4240 provides
that, the date of physical inspection or the date of presentation of the import declaration shall be
205
206
See Exhibit PAN-23.
207
208
209
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considered as the date of valuation, for the purposes of determining the customs value for imports.210
For Panama, Colombia's allegation that this Article merely establishes a "legal fiction" amounts to a
"distinction without a difference".211 Panama considers this view is also contradicted by other
provisions, such as Articles 254 and 237 of Decree No. 2685, which similarly provide that valuation
should take place at the moment of importation.212
7.66 Panama considers its interpretation of the point at which custom valuation takes place is not
contradicted by the fact that the challenged provisions form part of sections of Colombian legislation
that are not contained in the general section dealing with "customs valuation".213 Panama submits that
the placement of a provision in a particular chapter is not determinative of the nature of that
measure.214 In this regard, Panama notes that Colombia has itself confirmed that Article 128.8 of
Decree No. 2685, authorizes official prices and in Colombia's words, serves the purpose of "mak[ing]
sure that the government set price would be used as the basis for customs valuation".215 Panama notes
that Article 128.8 appears in the same section as Article 128.5 e) of Decree No. 2685. Thus, Panama
argues if another provision alongside Article 128.5 e) in Chapter VI entitled "Ordinary Importation"
concerns the determination of the dutiable base (base gravable) for customs valuation purposes216,
then Article 128.5 may also be an applicable provision for customs valuation. Neither of these
provisions appears in Title VI entitled "Customs Valuation".
7.67 On the basis of its view that customs valuation takes place at the time of presentation of the
import declaration, Panama claims that Colombia's use of indicative prices to determine the customs
value of textiles, apparel and footwear is inconsistent with Articles 1, 2, 3, 5, 6 and 7.2(b), (f) and (g)
of the Customs Valuation Agreement.217 According to Panama, the customs value should whenever
possible be based on the transaction value except where not appropriate in accordance with the
Customs Valuation Agreement.218 When not based on transaction value, the value must be based on
the methods laid out in Articles 2 to 7 of the Customs Valuation Agreement.219 Panama contends that
Colombia's use of indicative prices for purposes of customs valuation violates each of the sequential
methodologies set forth in Articles 1 to 6 of the Customs Valuation Agreement. Additionally, Panama
argues the use of indicative prices violates Article 7.2(b), (f) and (g) of the Customs Valuation
Agreement, since: (i) the customs value is determined on the basis of "a system which provides for the
acceptance for customs purposes of the higher of two alternative values"; (ii) the customs value is
determined on the basis of "minimum customs values"; and (iii) the customs value is determined on
the basis of "arbitrary or fictitious prices".220
210
211
212
Panama's second written submission, para. 12. Article 254 provides that when there is a dispute
regarding the declared customs value and/or the supporting documents or when it is not possible to determine
the value at the moment of importation, the release can be authorized upon posting a guarantee (emphasis added
by Panama) ("Levante de la Mercancía. Cuando exista controversia respecto al valor en aduana declarado y/o
los documentos que lo justifican, o cuando no sea posible la determinación del valor al momento de la
importación, se podrá otorgar el levante de las mercancías, previa constitución de garantía, en los términos del
Artículo 13 del Acuerdo y artículo 128o. numeral 5 de este Decreto y conforme a las condiciones y modalidades
que señale la autoridad aduanera") Article 237 provides that the "moment of importation" is the date of arrival
of the merchandise to the national customs territory ("Momento de la importación La fecha de llegada de la
mercancía al territorio aduanero nacional, establecida de conformidad con las normas aduaneras vigentes ").
213
214
215
216
Colombia's response to question No. 5(d) from Panama.
217
Panama's first written submission, Section IV.A, p. 24; Panama's second written submission,
para. 226.
218
219
220
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7.68 Colombia does not deny the primacy of the transaction value or the sequential nature of the
valuation methods in the Customs Valuation Agreement. However, Colombia submits that the use of
indicative prices does not constitute customs valuation but instead is a control mechanism which takes
place prior to the actual customs valuation. Colombia asserts that indicative prices are used to assess
whether there is a reason to doubt the veracity of the declared f.o.b.f.o.b. value of products "that are
known to have been the subject of under-invoicing, smuggling and money laundering".221 Colombia
asserts that its post-importation valuation method is consistent with the sequential order provided for
in the Customs Valuation Agreement.
7.69 Colombia submits that its importation process takes place in two separate stages. In the first
stage, referred to as the "control previo", goods are inspected and subsequently released. In the
second stage, referred to as the "control posterior", Colombian customs officials determine the
"customs value" of imported goods. Under this scheme, Colombia argues that indicative prices only
play a role during the inspection process as a "customs control mechanism". Consequently, indicative
prices do not factor into the final determination of the customs value which is assessed during the
control posterior, according to Colombia.222
7.70 In Colombia's view, Article 128.5 e) of Decree No. 2685 and Article 172.7 of
Resolution No. 4240 strictly regulate the release of goods ("levante") if the importer "provisionally
pays, by way of deposit" customs duties and sales tax.223 This provisional payment is subject to a
post-importation control (control posterior) at which time the customs value is determined.224 As
evidence that valuation does not occur until the control posterior, Colombia notes that Article 128.5 e)
of Decree No. 2685 and Article 172.7 of Resolution No. 4240 require that the importer's declaration
and supporting documents are sent to the División de Fiscalización for customs valuation.225
Moreover, Colombia submits that the relevant provisions that "actually deal with customs valuation"
are contained in Title VI of Decree No. 2685 and Chapter III of Resolution No. 4240, and specifies
that valuation must be conducted in accordance with the criteria set forth in the Customs Valuation
Agreement.226
7.71 Colombia argues that its interpretation that Article 128.5 e) of Decree No. 2685 and
Article 172.7 of Resolution No. 4240 deal with the "release" of the goods and not with customs
valuation is confirmed by an "ordinary reading" of the text of the challenged provisions.227 Colombia
submits that "indicative prices" are clearly defined in Article 237 of Decree No. 2685 as a "control
mechanism".228 Furthermore, Colombia stresses that both Article 128.5 e) and Article 172.7 appear in
sections of Decree No. 2685 and Resolution No. 4240, respectively, that address matters of "customs
control" as opposed to "customs valuation".229 Colombia notes in this respect that the GATT Panel
Report on US – Tobacco clearly considered that the position occupied by the contested provisions in a
Member's legal system is very relevant in determining the meaning of a Member's domestic law.230
221
222
Colombia's first written submission, paras. 50-61, Colombia's second written submission, para. 30.
223
224
225
226
227
228
Colombia's second written submission, para. 45-46. Article 237 of Decree No. 2685 reads as
follows: "Precio Indicativo. Es aquel precio de referencia establecido (…) para. ser utilizado como mecanismo
de control (…)".
229
Article 128.5 e) is part of Title V Chapter IV of Decree No. 2685 (entitled "Proceso de
Importación") and Article 172.7 is part of Title VI Chapter II of Resolution No. 4240 (entitled "Controles en
Valoración Aduanera")
230
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7.72 While Colombia argues that importation terminates with the release of the good, this is not
the case for the determination of the customs value. Thus, Colombia submits that the reference to the
"momento de valoración" in Article 222 of its Customs Statute operates as a simple "legal fiction" to
establish the proper point in time when the customs value should be recognized, but does not imply
that the customs value of the goods has been determined at that stage in the proceedings.231
7.73 In addition to consideration of the ordinary meaning of Article 128.5 e) of Decree No. 2685
and Article 172.7 of Resolution No. 4240 in their context, Colombia submits that the "consistent
application" of these provisions confirms that indicative prices are not used to determine the customs
value of imported goods. Colombia contends that Exhibit COL-8, Exhibit COL-9232 and Exhibit PAN-
53233 demonstrate that the "correction" of the import declaration simply involves ticking of the box
"Ajustes" on the Import Declaration. According to Colombia, the payment of duties effectively serves
as a cash deposit, wherein all relevant documents are subsequently transmitted to the División de
Fiscalización for customs valuation purposes. At this later time, the División de Fiscalización
determines the customs value based on the methods of the Customs Valuation Agreement and refunds
any cash payment made in excess of the amount due.234
2. Consideration by the Panel
(a) Legislation authorizing the use of indicative prices
7.74 In addressing Colombia's challenge to Panama's identification of the measure relevant to its
claims under the Customs Valuation Agreement and Article III of the GATT 1994235, the Panel
established that the measure at issue comprises Article 128.5 e) of Decree No. 2685 and Article 172.7
of Resolution No. 4240 as well as Resolution No. 7510 of 26 June 2007, as modified by
Resolution No. 11412 of 28 September 2007; Resolution No. 7511 of 26 June 2007;
Resolution No. 7509 of 26 June 2007, as modified by Resolution No. 11414 of 28 September 2007;
Resolution No. 7512 of 26 June 2007, as modified by Resolution No. 11415 and Resolution No. 7513
of 26 June 2007 (hereafter referred to as the resolutions establishing indicative prices).236
7.75 Article 128 of Decree No. 2685 reads, in its relevant part, as follows:
"ARTICULO 128. AUTORIZACIÓN DE LEVANTE. La autorización de levante

procede cuando ocurra uno de los siguientes eventos:
5. Cuando practicada la inspección aduanera física o documental, se suscite una

controversia de valor en razón a que: … e) el valor f.o.b. declarado está por debajo
de los precios indicativos establecidos por el Director de Aduanas y el declarante
dentro de los cinco (5) días siguientes a la práctica de dicha diligencia, corrige la
declaración de importación y paga los tributos aduaneros con base en el precio
indicativo en los términos y condiciones señalados por la DIAN, debiéndose en todo
caso remitir las diligencias a la División de Fiscalización Aduanera con el fin de que
se adelante el proceso de liquidación oficial de revisión de valor correspondiente."
231
Colombia's second written submission, para. 32; See also Colombia's first written submission,
para. 96.
232
See also Exhibit COL-64.
233
See also Exhibit COL-49.
234
235
See para. 7.36.
236
WT/DS366/6, pp. 1-2, Panama's first written submission, para. 29, Panama's responses to Panel
questions Nos. 3 and 91.
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7.76 Article 172 of Resolution No. 4240 reads, in its relevant part, as follows:
"ARTICULO 172. CONTROVERSIAS. Durante la diligencia de inspección aduanera

en el proceso de importación, la controversia de valor puede ser originada por
cualquiera de las situaciones descritas a continuación, en las cuales se actuará de la
manera prevista en el numeral respectivo, teniendo en cuenta lo dispuesto en los
artículos 128 del Decreto 2685 de 1999 y 17 de la Decisión Andina 571:
3) Cuando el importador haya constituido garantía para obtener el levante o haya

corregido la base gravable a partir del precio de referencia establecido, el
funcionario inspector deberá remitir, en el menor tiempo posible a través de su jefe
inmediato, fotocopia de la Declaración de Corrección, de la documentación
aportada por el importador y de la garantía a la División de Fiscalización Aduanera,
para el correspondiente estudio de valor.
7) Cuando la controversia se origine en razón a que el valor f.o.b. declarado está por
debajo del precio indicativo … solo se autorizará el levante si dentro de los cinco (5)
días siguientes a la práctica de la diligencia, el declarante corrige el precio
declarado con el precio indicativo que corresponda al producto importado, o con el
precio real de negociación, siempre que sea superior al indicativo."
(b) Order of analysis
7.77 Panama has requested the Panel to determine whether Colombia's use of indicative prices is
inconsistent with Articles 1, 2, 3, 5, 6 and 7.2(b), (f) and (g) of the Customs Valuation Agreement. As
the Panel discussed in paragraph 7.44 above, given that Panama has made "as such" and "as applied"
claims, the Panel has decided to defer its decision on the admissibility of Panama's "as applied" claims
until making findings on Panama's "as such" claims. This does not mean, however, that the Panel is
prevented from examining instances where indicative prices have been applied as part of the operation
of the measures at issue.
7.78 The Panel notes that the parties' arguments related to Colombia's use of indicative prices
focus almost exclusively on a series of factual determinations concerning the actual nature and
functioning of indicative prices within Colombia's customs procedures. The parties' understanding of
those facts differ radically. Panama considers that the use of indicative prices for the payment of
customs duties and taxes constitutes customs valuation that is inconsistent with Articles 1, 2, 3, 5, 6
and 7.2(b), (f) and (g) of the Customs Valuation Agreement. Colombia, on the other hand, argues that
the indicative prices regime does not constitute customs valuation but is used as a customs control
mechanism. Colombia argues that the payment of duties resulting from the use of indicative prices
amounts to a guarantee, and that customs valuation takes place only at a later stage.
7.79 The Panel recalls that both parties have advanced a series of arguments concerning whether
the "pago de tributos" within the indicative prices measure is in fact a guarantee under Article 13 of
the Customs Valuation Agreement.237 However, the Panel will only address this question if it
237
Colombia's first written submission, paras. 119-124; Panama's responses to Panel questions Nos. 37
and 38, Colombia's responses to Panel questions Nos. 37 and 38; Colombia's second written submission,
para. 85, Panama's first oral statement, paras. 123-127, Panama's second written submission, paras. 46-64,
Colombia's response to Panel question No. 94. Article 13 of the Customs Valuation Agreement reads as
follows: "If, in the course of determining the customs value of imported goods, it becomes necessary to delay
the final determination of such customs value, the importer of the goods shall nevertheless be able to withdraw
WT/DS366/R
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determines that Colombia is not collecting customs duties at the time of inspection, based on
indicative prices. Indeed, a finding that Colombia uses indicative prices to conduct customs valuation
at the time of inspection would obviate such an analysis, since Article 13 addresses situations where a
customs authority realizes the need to delay the final determination of the customs value.
7.80 The first question before the Panel is therefore whether indicative prices are used for the
purpose of customs valuation within the meaning of the Customs Valuation Agreement. In order to
answer that question, the Panel will examine the concept of customs valuation pursuant to the
Customs Valuation Agreement. Having done so, the Panel will consider, under the facts of this case,
whether Colombia's use of indicative prices amounts to customs valuation within the meaning of the
Customs Valuation Agreement. If the Panel finds that Colombia's use of indicative prices does indeed
constitute customs valuation as contemplated by the Customs Valuation Agreement, it will proceed to
analyse Panama's claims under Articles 1, 2, 3, 5, 6 and 7.2(b), (f) and (g) of the Customs Valuation
Agreement.
(c) The concept of customs valuation within the Customs Valuation Agreement
7.81 The Panel notes that the Customs Valuation Agreement does not provide a definition for
customs valuation. Article 15 of the Customs Valuation Agreement does however include a definition
of "customs value". The term "customs value of imported goods" is defined in Article 15.1(a) of the
Customs Valuation Agreement as "the value of the goods for the purposes of levying ad valorem
duties of customs on imported goods". The Panel believes that this definition of customs value is
useful in understanding what customs valuation means within the Customs Valuation Agreement.
Following Article 31 of the Vienna Convention on the Law of Treaties" ("VCLT")238, the Panel shall
look at the ordinary meaning of the relevant concepts present in this definition.
7.82 The Panel will first assess the concept of "valuation" which is defined as "[t]he action of
estimating or fixing the monetary value of something"239 or as "[t]he process of determining the value
of a thing or entity".240 The term "value", in turn, is defined in the Oxford English Dictionary as
"[t]hat amount of a commodity, medium of exchange, etc., considered to be an equivalent for
something else"241 and the term "value" is defined in the Black's Law Dictionary as "[t]he monetary
worth or price of something; the amount of goods, services or money that something will command in
an exchange".242
7.83 In light of the dictionary definitions of valuation and value, as well as the definition of
customs value provided in Article 15 of the Customs Valuation Agreement, the Panel considers that
the ordinary meaning of the concept of customs valuation is straightforward. Essentially, customs
valuation involves the process of determining the monetary worth or price of imported goods for the
purpose of levying customs duties. With this understanding of the meaning of customs valuation, the
them from customs if, where so required, the importer provides sufficient guarantee in the form of a surety, a
deposit or some other appropriate instrument, covering the ultimate payment of customs duties for which the
goods may be liable. The legislation of each Member shall make provisions for such circumstances".
238
Article 3.2 of the DSU provides that Members recognize that the WTO dispute settlement system
serves to clarify the provisions of the covered agreements "in accordance with customary rules of interpretation
of public international law". Article 31 of the Vienna Convention on the Law of Treaties" ("VCLT"),
recognized as one such rule (Appellate Body Report, US – Gasoline, p. 17. See also Appellate Body Report,
India – Patents (US), para. 46, Appellate Body Report, Japan – Alcoholic Beverages II, pp. 10-12; and Panel
Report, US – DRAMS, para. 6.13.), provides that "[a] treaty shall be interpreted in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and
purpose." UN Doc. A/Conf.39/27; 1155 UNTS 331; 8 ILM 679 (1969).
239
Shorter Oxford English Dictionary, 5th edition (2002), p. 3499.
240
Black's Law Dictionary, 7th edition (2000), p. 1548.
241
242
WT/DS366/R
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Panel will consider whether Colombia determines the customs value of imports through the use of its
indicative prices regime.
(d) Whether the use of indicative prices by Colombia constitutes customs valuation
7.84 In the Panel's view, the two central aspects within the concept of customs valuation are (i) the
value of the goods, which is used (ii) for the purposes of levying ad valorem customs duties.
7.85 The first question is whether the indicative prices set by Colombia represent the "value of the
goods". In light of the ordinary meaning of customs valuation, indicative prices whenever higher than
the declared value reflect the "value of the goods" imported into Colombia. Accordingly, the question
arises whether the value assigned to goods entering Colombia is used for the purposes of levying
customs duties. The Panel notes that the term "levy" is defined in the Oxford English Dictionary as
"the collection of an assessment, duty or tax", while the Black's Law Dictionary defines "levy" as "the
imposition of a fine or tax".243 The key issue is thus whether Colombia's customs authorities collect
customs duties on the basis of indicative prices.
7.86 In the Panel's view, the value of goods can only be used for one of two possible purposes,
either: (a) to determine the amount of ad valorem duties and sales tax that the importer must pay in
order to obtain the release of the goods, as Panama argues; or (b) to determine the amount of a
"guarantee in the form of a cash deposit" that will secure the future payment of customs duties and
sales tax as determined in a latter stage, as Colombia argues. Therefore, if this disbursement by the
importer constitutes a "payment" of ad valorem duties, as opposed to a "guarantee", it follows that the
Customs Administration is in fact collecting customs duties and sales tax based on indicative prices,
regardless of any other a posteriori mechanism that may be made available to refund duties paid in
excess.
7.87 The parties disagree on whether Colombia collects duties based on indicative prices. This
raises the larger issue of whether the "payment" of duties is in fact a payment strictu sensu or instead
a guarantee in the form of a cash deposit, as claimed by Colombia. Throughout these proceedings,
Colombia has consistently maintained that the concept of payment under Article 128.5 e) of
Decree No. 2685 refers to a "guarantee in the form of a cash deposit".244 However, Colombia has
subtly evolved its position through a series of responses to the Panel's questions. In particular,
Colombia submitted that:
"[T]he payment [made under Article 128.5 e) of Decree No. 2685] functions like a
cash deposit but no separate deposit figure is created in Colombian law to deal with
such payments, which are simply provisional payments in an amount sufficient to
cover the ultimate payment of customs duties for which the goods may be liable.
...
Irrespective of the form the guarantee takes, a cash payment can and must be
considered as a guarantee if it complies with the basic test relating to the timing and
function of the payment made: first, that it is made prior to the final determination of
the duty liability ... and, second, that its function is to secure the ultimate payment of
customs duties."245
243
244
See for instance Colombia's first written submission, paras. 55-56, 104, 108, 130; Colombia's first
oral statement, paras. 29, 40, 41, 52, 54, 57; Colombia's second written submission, paras. 57, 66, 69, 85,
Colombia's responses to Panel questions Nos. 14 and 22, and Colombia's responses to questions Nos. 2(a), 2(b),
5(a)(i), 6(a) and 6(b) from Panama.
245
Colombia's response to Panel question No. 94(a).
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7.88 In the Panel's view, "payment" and "guarantee" are two different legal concepts that may not
be equated lightly. This is true irrespective of the form that the guarantee may take, whether a bank
guarantee, guarantee provided by an insurance company, cash deposit, or any other kind of guarantee.
The term "guarantee" is referred to in the Black's Law Dictionary as "something given or existing as
security, such as to fulfil a future engagement or a condition subsequent".246 The Shorter Oxford
English Dictionary defines "guarantee" as "[a] thing ... given or existing as security for the fulfilment
... of certain conditions" and guarantee fund as "a sum pledge as a contingent indemnity for future
loss".247 In contrast, the word "payment" is defined in the Black's Law Dictionary as the delivery of
money for the "performance of an obligation" or the "satisfaction of an obligation".248 Thus, as
emphasized by both parties, the aim of a guarantee is to secure the future payment of an obligation.
Hence, the future obligation of payment that is secured by a guarantee cannot be confused with the
obligation to provide that guarantee.249
7.89 In order to decide whether the use of indicative prices by Colombian authorities constitutes
customs valuation in the sense of the Customs Valuation Agreement, or instead serves as a guarantee
to secure the future collection of customs duties, the Panel will examine the legal nature of the
disbursement that importers must make in order to obtain the release of the goods under
Articles 128.5 e) of the Customs Statute and Article 172.7 of Resolution No. 4240.
(i) The legal nature of the payment under Article 128.5 e)
Arguments of the parties
7.90 The Panel recalls the parties' views on the legal nature of payment under Article 128.5 e).
Panama argues that the customs duties for goods subject to the indicative prices measure are levied on
the basis of the indicative price or, in cases where the declared value is higher than the indicative
price, that higher amount. Therefore, Panama considers that customs valuation takes place at the time
of inspection, whether or not based on the indicative price, when that price is higher than the original
declared value, or based on the declared value when that price is higher than the indicative price.250
7.91 Colombia contends that the "pago" mentioned in the text of Article 128.5 e) of the Customs
Statute is not in fact an actual payment but a guarantee in the form of a cash deposit, and that
valuation takes place at a later procedural stage known as the control posterior.251 In support of its
view, Colombia argues that the terms of this provision are not "self-explanatory" and, thus, they
should be given their meaning in their specific textual context. This specific context includes the
overall location of Article 128.5 e) of Decree No. 2685 governing in the larger context of Colombia's
customs laws, the definition of the terms "reference prices" and "indicative prices" on which this
payment is based; the requirement that documents are transmitted to the División de Fiscalización "to
determine the customs value" of the goods in question; and the requirement in Colombian law to
conduct customs valuation in accordance with the principles of the Customs Valuation Agreement.252
Moreover, Colombia emphasizes the importance of Andean Community law as part of the legal
context in which to read the challenged provisions. It notes that Articles 51(1) and 61(1) of Andean
Community Resolution 846 require that goods be released in case of a controversy over the customs
246
Black's Law Dictionary, 7th edition (2000), p. 565
247
248
249
250
Panama's first written submission, paras. 26-53; Panama's first oral statement, paras. 88-113;
251
Colombia's first written submission, paras. 49-61; Colombia's first oral statement, paras. 18-60,
Colombia's second written submission, paras. 18, 24-86.
252
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value, but provide that such release may be made subject to the payment of a guarantee in the form of
a bank or insurance guarantee, a cash deposit or any other appropriate form.253
7.92 In Panama's view, Colombia is requiring the Panel to read in Articles 128.5 e) of
Decree No. 2685 and in Article 172.7 of Resolution No. 4240 "words that are not found in those
provisions".254 Panama refers to the "clear wording" of Article 128.5 e) of Decree No. 2685 and
submits that there is no textual basis for Colombia to argue that the payment of the customs duties is
merely a deposit or a guarantee.255 Moreover, Panama notes that Article 496 of Resolution No. 4240
provides for only two types of guarantees: global or specific, which may only take the form of a bank
or insurance company guarantee.256 Panama also submits that the time limitation provided for in
Articles 523 and 527 of Resolution No. 4240 is only applicable to bank or insurance company
guarantees and not to a cash deposit.257 As concerns the identified Andean Community regulations,
Panama contends that Colombia's reasoning is flawed. According to Panama, Colombia wrongly
assumes that because a deposit is one form of guarantee, the "deposit" made in Article 128.5 e) of
Decree No. 2685 must be a guarantee.258 In addition, Panama contends that Colombia's invocation of
Articles 51(1) and 61 of Andean Community Resolution 846 is irrelevant as this Resolution has not
been implemented at the national level in Colombia via enabling domestic legislation, in accordance
with Article 61, fourth paragraph.259 Thus, Panama argues, individual importers do not have the
option to post a guarantee in the form of a "deposit".
The Panel's approach to examining Colombia's domestic law – burden of proof
7.93 WTO jurisprudence has established that municipal law is to be approached as a "factual
issue".260 In making an "objective assessment" of municipal legislation, a panel should begin its
analysis by considering the very terms of the law.261 This examination should also include a reading
of the provisions in their proper context.262 A panel is not however required to limit its examination
solely to the text or wording of the norm under review.263 A panel's analysis should be
complemented, whenever necessary, with additional sources, which may include proof of the
consistent application of such laws, the pronouncements of domestic courts on the meaning of such
laws, the opinions of legal experts and the writings of recognized scholars.264
7.94 The Panel will thus look at the "very terms" of Article 128.5 e) of Decree No. 2685 and
Article 172.7 of Resolution No. 4240, and will subsequently examine these provisions in their legal
context. We note that neither party has offered the Panel any rulings of Colombian courts that
interpret Article 128.5 e) of Decree No. 2685 and Article 172.7 of Resolution No. 4240.265 The
253
254
255
256
257
258
259
Panama's response to Panel question No. 95(a).
260
Appellate Body Report, India – Patents (US), para. 66; See also Panel Report on US – Section 301
Trade Act, para. 7.18, See also PCIJ, Certain German Interests in Polish Upper Silesia, PCIJ, 1926, Rep.,
Series A, No. 7, p. 19.
261
Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes, para. 112; See also
Panel Report, US – 1916 Act (EC), para. 16.
262
Panel Report, US – Section 301 Trade Act, para. 7.27.
263
Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes, para. 112.
264
265
In fact, in its response to Panama's question No. 1 a), Colombia states that it is not aware of any
court decisions that have treated payments made in accordance with Article 128.5 e) as provisional deposits
serving as guarantees.
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parties have nevertheless provided the Panel with three examples of application of the relevant
provisions of Colombian law.
7.95 Before commencing the analysis of the very terms of the relevant provisions, the Panel wishes
to address Colombia's argument that Panama has not satisfied its burden of proof to support its
interpretations of Colombia's legislation. In particular, Colombia contends that Panama has failed to
provide relevant evidence necessary to sustain its "as such" claim by limiting its arguments to "an
erroneous and restrictive reading" of Colombia's legislation.266 According to the defendant, the
demonstration of the actual application of the law is "part and parcel" of the kind of evidence that
Panama needs to provide. In having failed to do so, Colombia submits that Panama has fallen short of
meeting its burden of proof requirement in a double sense: the "burden of production" of the evidence
necessary to make a prima facie case, and the "burden of persuasion".267 In support of its argument,
Colombia argues that in Dominican Republic – Import and Sale of Cigarettes, the Appellate Body
"clearly rejected" an attempt by Honduras to impose a limited analysis of its "as such" claim based on
the text of the relevant Dominican Republic legislation in isolation.268
7.96 The Panel agrees that in an "as such" claim the initial burden to establish the meaning of the
respondent's municipal law lies with the complainant. As the Appellate Body stated "[t]he party
asserting that another party's municipal law, as such, is inconsistent with relevant treaty obligations
bears the burden of introducing evidence as to the scope and meaning of such law to substantiate that
assertion."269 However, the Panel is not persuaded by Colombia's argument that Panama has failed to
meet that burden by limiting itself to presenting an interpretation based on the sole text of the legal
provisions at issue. The Panel notes that the facts of the Dominican Republic – Import and Sale of
Cigarettes case cited by Colombia are quite different from the case at hand. Indeed, on that occasion,
Honduras sought the exclusion of supplementary means of evidence of municipal legislation, other
than its text. The Panel rejected this request on the basis that it was not bound to decide "exclusively"
on the basis of the wording of the legislation. This finding, which was confirmed by the Appellate
Body, does not mean that a Panel must rely on supplementary means when examining a Member's
municipal legislation. It only means that the Panel is not precluded from doing so.
7.97 We recall that the Appellate Body has repeatedly stated that the sole production of the text of
the measure under dispute may be considered adequate to establish a prima facie case.270 Were the
Panel to establish that the provisions of Colombian legislation at issue are clear on their face, Panama
would have established a prima facie case solely through production of the relevant domestic
provisions. The burden would thus be on Colombia to demonstrate that its legislation is not applied in
the manner that is indicated by its very terms.
7.98 In any case, the Panel notes that, the nature and extent of the evidence required to satisfy the
burden of proof varies from case to case.271 In this respect, the Appellate Body recognized that a
panel maintains a margin of discretion in weighing the relevance of certain types of evidence.272
266
267
268
269
Appellate Body Report, US – Carbon Steel, para. 157. See also Appellate Body Report, US –
Corrosion-Resistant Steel Sunset Review, para. 168.
270
Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, para. 263. Appellate
Body Report, US – Carbon Steel, para. 157; Appellate Body Report, Chile – Price Band System (Article 21.5 –
Argentina), para. 135, Appellate Body Report, Mexico – Anti-Dumping Measures on Rice, para. 269.
271
272
Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes, para. 112.
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Analysis of the "very terms" of the challenged provisions
7.99 In order to determine whether Colombian Customs authorities "collect" customs duties (and
sales tax) in the application of Article 128.5 e) of Decree No. 2685, the Panel will commence its
analysis by examining the very terms of the relevant provisions of Colombia's domestic legislation.
In doing so, the Panel recalls that it is not obliged to accept at face value Colombia's interpretation of
its own legislation, but rather, the Panel must make an "objective assessment" of the matter.273
7.100 An objective reading of Colombia's legislation strongly supports the conclusion that customs
duties are collected at the time indicative prices are applied and goods are released. Under
Article 128.5 e) of Colombia's Customs Statute and Article 172.7 of Resolution No. 4240, when a
"controversia" arises as a result of the determination that the declared value is below the indicative
prices, the importer can only obtain the release of the goods if he or she corrects the import
declaration and pays customs duties and sales tax on the basis of the indicative price.274 The Panel
considers that the use of the phrase "pay customs duties and sales tax" ("paga los tributos aduaneros")
within Article 128.5 e)275, on its face leaves no room for any textual interpretation other than the
following: that the collection of customs duties calculated on the basis of indicative price takes place
at the time of release of the goods.
7.101 Having considered the terms of Article 128.5 e) of Decree No. 2685 and Article 172.7 of
Resolution No. 4240, the Panel preliminarily concludes that an importer subject to indicative prices is
required to make a payment for the purpose of collecting customs duties. The Panel will proceed to
consider whether this interpretation is supported within the context of Colombian legislation.
Contextual analysis of the challenged provisions within Colombian domestic legislation
7.102 As noted by the Panel in US – Section 301 Trade Act, the elements of national laws are often
inseparable and "should not be read independently from each other when evaluating the overall
conformity of the law with WTO obligations."276 In this sense, Colombia argued in its responses to
the Panel's questions that:
"[T]he terms used in Article 128.5 e) have to be read in the light of their textual
context of the other provisions of the Decree No. 2685 and their legal context which
consists of the relevant provisions of Andean Community law (which have direct
273
Panel Report, EC – Trademarks and Geographical Indications (US), para. 7.55. See also Panel
Report, US – 1916 Act (EC), para. 19.
274
Article 128.5 e) states that "Cuando practicada la inspección aduanera física o documental, se
suscite una controversia de valor en razón de que: e) el valor f.o.b. declarado está por debajo de los precios
indicativos establecidos por el Director de Aduanas y el declarante dentro de los cinco (5) días siguientes a la
práctica de dicha diligencia, corrige la declaración de importación y paga los tributos aduaneros con base en
el precio indicativo en los términos y condiciones señalados por la DIAN, debiéndose en todo caso remitir las
diligencias a la División de Fiscalización Aduanera con el fin de que se adelante el proceso de liquidación
oficial de revisión de valor correspondiente." (emphasis added). Article 172.7, in turn, prescribes that "Durante
la diligencia de inspección aduanera en el proceso de importación, la controversia de valor puede ser
originada por cualquiera de las situaciones descritas a continuación, en las cuales se actuará de la manera
prevista en el numeral respectivo, teniendo en cuenta lo dispuesto en los artículos 128 del Decreto 2685 de
1999 y 17 de la Decisión Andina 571: … 7) Cuando la controversia se origine en razón a que el valor f.o.b.
declarado está por debajo del precio indicativo … solo se autorizará el levanto si dentro de los cinco (5) días
siguientes a la práctica de la diligencia, el declarante corrige el precio declarado con el precio indicativo que
corresponda al producto importado, o con el precio real de negociación, siempre que sea superior al
indicativo" (emphasis added).
275
It is noteworthy that Article 1 of Decree No. 2685 defines "tributos aduaneros" as "los derechos de
aduana y el impuesto sobre las ventas". Thus, the term "tributos aduaneros" encompasses both customs duties
and sales tax.
276
Panel Report, US – Section 301 Trade Act, para. 7.27.
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effect in Colombia and have the status of Colombian law), the Customs Valuation
Agreement as incorporated into Colombia law by Law No. 170 of 1994, and
Resolution No. 4240."
7.103 The Panel will therefore examine the other paragraphs of Article 128.5 e) of Colombia's
Customs Statute and Article 172.7 of Resolution No. 4240 as well as any other relevant provisions of
both legal instruments.277 The Panel will also analyse Colombia's argument pertaining to the
relevance of the actual position of these two provisions within the relevant legislation for their
interpretation.
Analysis of Article 128.5 e) of Decree No. 2685 and Article 172.7 of

Resolution No. 4240 in the context of other paragraphs of the same and other relevant
provisions
7.104 It is the Panel's understanding that a contextual reading of Article 128.5 e) of

Decree No. 2685 should, in the first place, look at the "closest" textual context, i.e. other paragraphs
of the same provision. A reading of the provision at hand in the light of paragraphs (a) to (d) of
Article 128 of Decree No. 2685 seems to indicate, contrary to Colombia's interpretation, that the
silence of Article 128.5 e) of Decree No. 2685 regarding the possibility of providing a guarantee in
order to obtain the release of the goods, was purposeful.
7.105 Articles 128.5 a) to e) of Decree No. 2685 describe different situations in which a controversy
results from a discrepancy between the importer and the Administration about the declared value of
the goods. In most of these situations, the importer has the opportunity to either present additional
documents to support the declared value or provide a guarantee or correct the import declaration in
order to obtain the release of the goods.278 In fact, the latter two options are available in all scenarios
addressed under Article 128.5, except in the case of controversies involving the use of indicative
prices at issue in this dispute.279 The same conclusions can be drawn from Article 172 of
Resolution No. 4240. Indeed, while Article 172.7 of Resolution No. 4240 omits any reference to the
possibility of posting a guarantee, all paragraphs in this Article that concern controversies regarding
the declared price, i.e., paragraphs 2, 3, 4, 5, 6 and 8, explicitly provide for that option.280 Against this
background, the Panel considers that, whenever Colombian legislation intends to contemplate the
posting of a guarantee as a means to obtain the release of the goods, it explicitly provides for such
option. Hence, since Article 128.5 e) of Decree No. 2685 and Article 172.7 of Resolution No. 4240
leave out that possibility, the Panel considers it reasonable to conclude that the posting of a guarantee
was purposefully excluded as an option in situations where the declared value is lower than the
indicative price.
7.106 Colombia has argued that, in fact, the possibility to provide a guarantee in the form of a
deposit is also implicitly present in Article 128.5 a) to d) of Decree No. 2685. According to
Colombia, the only difference between the latter provisions and Article 128.5 e) is that paragraphs a)
to d) allow importers to provide either a bank security, an insurance security or a cash deposit, while
paragraph e) only permits importers to provide a guarantee in the form of a cash deposit.281 However,
277
The Panel notes that it is Article 128.5 e) of Decree No. 2685 rather than Article 172.7 of
Resolution No. 4240 and the various resolutions establishing indicative prices, which specifically deals with the
"pago" of customs duties and sales tax. This explains that the focus of the Panel's examination in the next
paragraphs will be on Article 128.5.
278
Article 128.5 a), b) and c) of Decree No. 2685. Panama's first written submission, para. 44.
279
Article 128.5 a), b), c), d) and e) of Decree No. 2685.
280
Article 172 of Resolution No. 4240. The Panel notes that paragraph 1 of Article 172 is not relevant
as context, as this paragraph envisions controversies arising from a failure of an importer to submit any import
declaration whatsoever.
281
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this account appears in conflict with other related provisions and, in particular, Article 496 of
Resolution No. 4240, considered below.
7.107 Article 496 of the Resolution No. 4240 provides that only two types of guarantees may be
posted to secure the compliance with customs obligations: bank guarantees and guarantees provided
by insurance companies.282 As such, no reference is made to a "guarantee in the form of a cash
deposit". Colombia has advanced an explanation for this silence. Colombia argues that in the past it
used cash deposits with a separate system of accounting, but decided to discontinue their use due to
administrative issues. Thus, according to Colombia, at the time of Decree No. 2685 in 1999, the
separate figure of a "cash deposit" was not provided as a possible guarantee. Subsequently, however,
Colombia instituted the use of cash deposits to cope with the problems related to contraband through
the use of references prices beginning in 2000. Colombia claims the use of a "cash deposit" system
became necessary "as a pure accounting matter". The same solution was later adopted in 2002 for
estimated prices and in 2005 for indicative prices.283
7.108 Colombia has not produced any evidence to support this explanation, however. In fact, this
explanation seems unpersuasive in view of several other factors. First, both Colombia's Customs
Statute and Resolution No. 4240 have been amended several times since their respective
enactments.284 Notably, Colombia did not amend or otherwise modify Article 496 of
Resolution No. 4240, so as to allow for the use of a cash deposit as a form of guarantee additional to
bank guarantees and guarantees provided by an insurance company. Second, DIAN's "Manual de
Valoración - Orden Administrativa 0005", dated 29 December 2004, which has the stated aim of
standardizing and harmonizing the prior and post-importation control processes, prescribes that when
so requested, the importer shall post a bank guarantee or a guarantee provided by an insurance
company equal to 100 per cent of the customs duties and sales tax arising from the difference between
the declared value and the reference price.285 Again, no mention whatsoever is made to a "guarantee
in the form of a cash deposit". Third, a similar conclusion can be drawn from DIAN Memorando
00274286, which establishes guidelines for the application of Article 128.5. As in the case of the
"Manual de Valoración", this document was issued many years after this new interpretation of the
word "correction" was introduced by Colombian customs authorities.287 Again, no mention can be
found in this document to the possibility for the importer to provide a guarantee in the form of a cash
deposit in order to obtain the release of its goods.288 Finally, as will be seen in the following sections,
282
This provision prescribes that "Las garantías constituidas para. asegurar el cumplimiento de las
obligaciones aduaneras, serán globales o específicas y podrán ser bancarias o de Compañía de Seguros". It is
noteworthy that Resolution No. 4240 expressly states in its preamble that its aim is to precise the procedures,
requirements and terms used in Decree No. 2685.
283
Colombia's responses to questions Nos. 5(a)(i) and 6(b) from Panama.
284
Decree No. 2685 was amended almost 40 times while Resolution No. 4240 was amended almost 70
times. Some of these modifications dealt specifically with the regime governing guarantees. That is the case, for
instance, with Resolution No. 7002 of 2001, Resolution No. 7179 of 2000, Resolution 904 of 2004,
Resolution No. 2795 of 2004, all of which amend articles included under Title XVII of Resolution No. 4240,
referring to "guarantees".
285
Article 2.6.2, Orden Administrativa 00005/2004 ("Cuando así se requiera, el importador deberá
constituir ante la División Servicio al Comercio Exterior o a la dependencia que haga sus veces, de la
Administración Aduanera por donde se realiza el trámite de nacionalización, una garantía bancaria o de
compañía de seguros a favor de la Nación – U.A.F. Dirección de Aduanas, por el término de un año, así: 1.
Por el cien por ciento de los tributos aduaneros que pudieran causarse, por la diferencia entre el valor
declarado por el importador y el precio de referencia o el que el inspector establezca con base en datos
objetivos y cuantificables").
286
Exhibit PAN-24.
287
Memorando 00274 is dated 5 May 2006.
288
Article 2.f of Memorando 00274. In fact, Article 2.f. of this Memorando states that, in the case that
a "controversia" arises due to the fact that the declared f.o.b. value is lower than the indicative price, the sole
option that the importer has is to correct the import declaration so as to reflect the corresponding indicative
price.
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no reference to the ability to post a "guarantee in the form of a cash deposit" can be found in the
specific cases of application of the challenged measure submitted by the parties.289
7.109 When confronted with this silence in its legislation, Colombia acknowledged that no
administrative instrument using the term "guarantee" or "cash deposit" exists.290 Furthermore,
Colombia admitted that a separate concept with the name "cash deposit" has not been introduced
anywhere in Colombian law. However, Colombia considers its use of the existing concept of the
correction plus payment to constitute a guarantee in the form of a cash deposit as a condition for the
release of the goods is an acceptable substitute.291 Thus, Colombia considers it irrelevant that
Article 128.5 e) of Decree No. 2685, Articles 172.7 and 496 of Resolution No. 4240, the Manual de
Valoración, the DIAN Memorando 00274 do not use the words "cash deposits".292
7.110 In the absence of any evidence to support the existence of a cash deposit as a form of
guarantee within any single piece of legislation, the Panel cannot accept Colombia's assertion that it
employs a "de facto" guarantee in the form of a cash deposit among the options available to importers
to secure future payment of customs duties and sales tax, where indicative prices apply. Furthermore,
the absence of these "cash deposits" as a permitted form of guarantee under Colombian customs laws
reinforces the Panel's interpretation that the "payment of customs duties and sales tax" under
Article 128.5 e) is in fact a payment strictu sensu and not a mere "cash deposit" aimed at securing the
future payment of those charges.
7.111 The Panel's reading of the challenged provisions is further confirmed by the wording of
Article 542 and Article 548 a) of Decree No. 2685. The Panel notes that the word "payment" has a
specific technical meaning under Colombian legislation. As Panama notes, Article 542 provides that
the collection of customs duties shall be governed by the procedures set down in Decree 624 of 1989
(the "Tax Statute").293 Within the Tax Statute, Panama notes that Section V, Title 7, Chapter 2 of the
Tax Statute, which is entitled "Termination of the tax obligation" contemplates payment as the
primary means to terminate the tax obligation.294 Article 548 a) of Decree No. 2685 provides the legal
basis upon which an importer may obtain a reimbursement of the sums paid in excess to obtain the
release of goods under Article 128.5 e) of Decree No. 2685.295 As pointed out by Panama, this
provision applies to cases where (i) the import declaration has been "liquidated"; (ii) customs duties
and sales taxes have been paid; and (iii) the importer seeks to obtain a reimbursement for customs
duties and sales taxes paid in excess.296 It is thus reasonable to conclude through reference to the
termination of tax obligations and liquidation during the "post-importation control", that importers
seek reimbursement of customs duties and sales taxes that have already been liquidated and paid at
the time of inspection, and not the refund of a "guarantee in the form of a cash deposit".
The placement of the challenged provisions within Colombia's Customs Code and
Resolution No. 4240
7.112 Colombia has argued that the placement of the challenged provisions provides further
contextual evidence that they do not deal with customs valuation, but with customs control. It notes
that Article 128 of Decree No. 2685 is part of title V "Importation Regime", Chapter VI, "Ordinary
Importation", and not part of Title VI, entitled "Customs Valuation" (Articles 237-259). Similarly,
289
See para. 7.123.
290
291
Colombia's response to Panel question No. 94(c).
292
Colombia's response to Panel question No. 94(b).
293
Panama's first written submission, para. 48 and footnote 51.
294
The Panel further notes that Article 1626 of Colombia's Civil Code also prescribes that payment is
one of the means to extinguish obligations.
295
See Colombia's response to Panel question No. 99. See also para. 2.11.
296
Article 548 a) of Decree No. 2685. See Panama's second written submission, para. 33.
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Article 172 is part of Chapter II of Resolution No. 4240, entitled "Control of Customs Valuation" and
not Chapter III on "Determination of Customs Valuation" (Articles 174-217).297
7.113 According to Colombia, it is "well established" in case law that the placement of a domestic
provision is a significant factor when assessing the meaning of that provision.298 In support of that
statement, Colombia cites a GATT Panel Report, US – Tobacco, in which the panel considered as
"significant" that the provision under discussion was entitled "Penalties", in order to conclude that
certain additional assessment and purchase requirements mandated by the norm were treated under
United States domestic law as "penalties" and not as a "separate fiscal measure".299
7.114 The Panel agrees that the placement of a domestic provision may be "significant" when
establishing its meaning. Still, as acknowledged by both parties, the position of a provision cannot be
deemed as "determinative".300 In the case at hand, the Panel is not persuaded by the argument that the
placement of Article 128.5 e) of Decree No. 2685 and Article 172.7 of Resolution No. 4240 entails
that these provisions refer exclusively to customs control and not to customs valuation. First, in the
GATT panel on US – Tobacco referred to by Colombia, the title of the provision at stake was only
one out of many factors that were taken into account to interpret its meaning. Additionally, all the
factors considered by the panel in US – Tobacco were in themselves not contradictory thereby
confirming that the additional assessment and purchase requirements mandated by the measure at
stake were considered as "penalties".301 In contrast, the various factors considered by the Panel thus
far in this dispute suggest that indicative prices are in fact used to determine the custom value of
subject goods. Additionally, as noted by Panama302, Colombia's reasoning is contradicted by the fact
that an adjacent provision, Article 128.8 of Decree No. 2685, which authorizes official prices, has
been described by Colombia as "mak[ing] sure that the government set price would be used as the
basis for customs valuation".303 Both Article 128.5 e) and Article 128.8 of Decree No. 2685 are
placed under the title "Ordinary Importation". As Colombia has admitted that Article 128.8 addresses
a controversy in which customs valuation (and not only customs control) takes place at the time of
inspection304, it is conceivable that Article 128.5, which is part of that same Article, does not
exclusively address matters of "customs control", but may also concern customs valuation.
7.115 The Panel thus considers that the placement of Article 128.5 e) of Decree No. 2685 and
Article 172.7 of Resolution No. 4240 cannot be considered as sufficient evidence to rebut all the
297
298
Colombia's second oral statement, para. 22.
299
GATT Panel Report, US – Tobacco, para. 76.
300
Colombia's second oral statement, para. 22. Panama quotes two instances in which the Appellate
Body found that the manner in which the municipal law of a WTO Member classifies or labels an item cannot
be determinative of the interpretation of a WTO agreements and that, instead, such determination must be based
on the "content and substance" of the instrument (see Appellate Body Report, US – Corrosion-Resistant Steel
Sunset Review, para. 87, footnote 87 and Appellate Body Report, US – Softwood Lumber IV, para. 65). The
Panel agrees with Colombia that these two decisions are not applicable to the specifics of this case. While these
Appellate Body decisions refer to the placement of a domestic provision as a factor in determining the meaning
of the terms of a WTO Agreement, the present case refers the placement of Article 128.5 e) within the context
of Colombia's domestic legal system. See Panama's first oral statement, para. 94, Panama's second written
submission, para. 10.
301
GATT Panel Report, US – Tobacco, paras. 78-81.
302
303
304
See Colombia's second written submission, para. 59 (Colombia explained that "[t]he 'payment' of
duties ('paga los tributos') [referred to in Article 128.5 e)] is a general reference to a cash payment in the amount
of the duties under discussion and does not refer to the final liquidation of duties as referred to in for example
Article 128.8 in respect of precios oficiales ('se liquide los mayores tributos dejados de pagar')"); See also
Colombia's response to question No. 5(d) from Panama and Colombia's first written submission, paras. 87
and 110.
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textual and contextual evidence which suggest that these provisions address matters of customs
valuation.
Analysis of the challenged provisions in the context of Andean Community law
7.116 Colombia further submits that the context in which the challenged provisions must be read
should also include Articles 51(1) and 61(1) of Andean Community Resolution 846 which, Colombia
argues, have direct effect in Colombia and prevail over Colombian domestic law.305
7.117 Article 51(1) of Andean Community Resolution 846 prescribes that the importer may obtain
the release of the goods if he provides a guarantee in the form of a "fianza, depósito u otro medio
apropiado".306 Similarly, Article 61(1) states that, when the final determination of the customs value
needs to be delayed, the importer may obtain the release of the goods if he provides a sufficient
guarantee in the form of "fianzas bancarias o de compañías de seguros, depósito u otro medio
apropiado".307 Based on these provisions, which Colombia contends form part of its domestic law,
Colombia argues "the importer is always allowed to obtain the release of the goods if he provides a
guarantee in the form of a security, deposit or in any other form".308
7.118 Preliminarily, the Panel considers it necessary to address whether Andean Community
Resolutions form part of Colombia's domestic law, before determining whether an importer is eligible
to submit a guarantee to obtain release of the goods. In the Panel's view, Colombia has demonstrated
that Andean Community legislation has "direct effect" in Colombia and thus, as a general principle,
Community law provisions do not require "implementing" or "enabling" legislation so as to be applied
at the national level.309 Nevertheless, in the light of the explicit wording of Andean Community
Resolution 846, the Panel considers that further regulation is necessary at the national level in order
for guarantees to be considered as an acceptable form of a deposit. Indeed, Article 61 of
Resolution 846 – the "lex specialis" that governs the posting of guarantees in Andean Community
Resolution 846 – provides that the customs legislation of each Member shall identify the form,
procedures and opportunity for the posting of a guarantee.310 Accordingly, the Panel understands that,
in the absence of any explicit reference in Colombian domestic legislation to "cash deposits" as a form
of guarantee, and in the absence of any details concerning their "forma, procedimientos y
oportunidad", the "cash deposit" is not an acceptable form of guarantee within Colombian law, on the
basis of Article 51(1) of Andean Community Resolution 846.
7.119 In the Panel's view, Colombia has had many opportunities to provide for the "form, procedure
and opportunity" of guarantees in the form of a cash deposit, as required by the relevant Andean
Community legislation, but appears thus far not to have done so. As noted before, several
amendments were made to the Colombian Customs Statute and Resolution No. 4240 after Andean
Community Resolution 846 was published in the Gaceta Oficial del Acuerdo de Cartagena. None of
305
See Exhibit COL-39.
306
Exhibit COL-6 (Article 51 reads: "… las Administraciones Aduaneras de los Países Miembros de la
Comunidad Andina, harán uso del procedimiento que se establece a continuación para. la verificación y
comprobación del valor declarado … En los casos en que este control se realice durante el despacho, el
importador podrá retirar las mercancías, si presta una garantía suficiente en forma de fianza, depósito u otro
medio apropiado, que cubra el pago de los Derechos").
307
Exhibit COL-6 ("En los casos en que resulte necesario demorar la determinación definitiva del
valor en aduana de las mercancías importadas, el importador podrá retirar sus mercancías si, cuando así se lo
exija, presta garantía suficiente que cobra el pago de los Derechos Aduaneros y demás gravámenes a los que
eventualmente estarían sujetas tales mercancías, mediante fianzas bancarias o de compañías de seguros,
depósitos u otro medio apropiado").
308
Colombia's first written submission, paras. 102-103; Colombia's second written submission, paras.
60-66; Colombia's first oral statement, para. 29; Colombia's response to Panel question No. 14.
309
Exhibit COL-39; Exhibit COL-62.
310
Article 61, para. 4, Andean Community Resolution 846.
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these modified the Colombian domestic provisions governing the available types of guarantees.
Furthermore, Colombia's "Manual de Valoración - Orden Administrativa 0005", dated 29 December
2004 (almost five months after Andean Community Resolution 846 entered into force)311, similarly
does not envision the instrument of the "cash deposit' as an appropriate form of guarantee, instead
prescribing the posting of a bank guarantee or a guarantee provided by an insurance company.312
7.120 Accordingly, the Panel is not persuaded that Colombia's own laws are WTO-consistent on the
basis of a provision of Andean Community law that allows importers to obtain the release of goods
subject to constituting a guarantee as either a "fianza, depósito u otro medio apropiado".313
Analysis of the specific cases of application of indicative prices
7.121 As discussed above, a Panel may examine a Member's municipal law whenever necessary, by
considering evidence beyond the text of the legislation, including proof of the consistent application
of such laws.314 The parties have provided the Panel with three specific cases of application of the
challenged provisions that the Panel will now consider: Exhibit COL-8, Exhibit COL-9 (as
complemented by Exhibit COL-64) and Exhibit PAN-53 (as partially complemented by
Exhibit COL-49). The Panel would like to stress that it is not conducting an analysis of Panama's "as
applied" claims, but rather looking at the specific examples provided by the parties in order to better
ascertain the operation of Article 128.5 e) of Decree No. 2685 and Article 172.7 of
Resolution No. 4240.
7.122 The examples provided by the parties include documentary evidence of all the stages in the
so-called "post-importation" procedure, i.e requests by the importers for the official liquidation,
responses by the División de Fiscalización and the División de Liquidación, and final decisions by the
Legal Division of the relevant customs administration on the "recurso de reconsideración" that were
presented by the importers to challenge the decision by the División de Liquidación. The parties
submitted additional evidence of applications of indicative prices to specific importers within Exhibit
COL-7, Exhibit PAN-51 and Exhibit PAN-52; however, the Panel will not consider these within its
analysis as the evidence is incomplete.315
7.123 As a principal matter, Colombia argues that the cases in Exhibit COL-8, Exhibit COL-9 and
Exhibit PAN-53 illustrate that the "payment" of the duties under discussion are in effect cash deposits.
311
Article 1.1.2, Orden Administrativa 00005/2004 ("Fundamento Legal … Reglamento Comunitario
de la Decisión 571 adoptado por la Resolución 846").
312
Article 2.6.2, Orden Administrativa 00005/2004 ("Cuando así se requiera, el importador deberá
constituir ante la División Servicio al Comercio Exterior o a la dependencia que haga sus veces, de la
Administración Aduanera por donde se realiza el trámite de nacionalización, una garantía bancaria o de
compañía de seguros a favor de la Nación – U.A.F. Dirección de Aduanas, por el término de un año, así: 1.
Por el cien por ciento de los tributos aduaneros que pudieran causarse, por la diferencia entre el valor
declarado por el importador y el precio de referencia o el que el inspector establezca con base en datos
objetivos y cuantificables".
313
Additionally, as noted by Panama, the figure of a "guarantee in the form of a cash deposit", which
Colombia claims to have adopted, does not seem to reflect the type of guarantee that is required under Andean
Community law. First, Panama submits that Colombia's obligation under Resolution 846 only applies to
individuals. (The Panel notes that Article 61 of Andean Community Resolution 846 states that in the case of
individuals or "personas naturales", who are not eligible to post a bank or insurance bond, individuals should
nonetheless be allowed to constitute a guarantee in the form of a deposit). Second, Panama emphasizes that the
cited norm refers to "bank deposits" and not to "cash deposits" or direct payments to the customs administration.
See also Panama's response to Panel question No. 95(a).
314
See para. 7.93.
315
Exhibit COL-7 includes a brief narrative summary of a series of cases in which importers were
required to correct the declared value. Exhibit PAN-51 and Exhibit PAN-52 provide an example of a case in
which an importer at first did not correct the import declaration, and then subsequently did. These latter
Exhibits only provide the respectives "Actas de Inspección", however.
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However, this does not appear to be reflected in the documentation included among the Exhibits. In
fact, the language of the Exhibits strongly suggests that both the importer and the customs officials
treat the sums paid in excess as a "payment" and not as a "guarantee in the form of a deposit". For
instance, in Exhibit COL-8, the importer filed a request for official liquidation for the purpose of
obtaining a reimbursement of "customs taxes paid in excess".316 The importer further explains that the
adjustment of the value resulted in a "payment of customs duties and sales tax in excess".317 The
División de Liquidación, in turn, found that the total value of the customs taxes liquidated and paid
based on the customs value resulted in a benefit for the importer in terms of the income tax.318
Similarly, when considering the "recurso de reconsideración" filed by the importer, the Legal
Division of the relevant customs administration noted that the División de Liquidación failed to
acknowledge the value paid in excess and, consequently, did not recognize the importer's right to
obtain the reimbursement of the liquidated and paid customs duties.319 Even more telling, the Legal
Division acknowledges that the importer has disbursed Col$19,898.891 as the "valor pagado en
exceso en los tributos aduaneros liquidados y cancelados".320
7.124 Moreover, in the two cases included as Exhibit COL-8 and Exhibit PAN-53, the customs
authorities found that, since the importer had already received a benefit in the form of a deduction in
its income tax, any refund of the sums paid in excess would amount to an "undue increase in the
patrimony of the importer".321 The Panel notes that if the disbursement were in fact a "guarantee", it
would not have left the importer's patrimony in the first place. Thus, a refund of this sum would have
never amounted to an (due or undue) increase in his or her patrimony. In the Panel's view, this
exchange further indicates that the nature of the disbursement was a "payment" and not a "guarantee
in the form of a cash deposit". In addition, both the importer and the customs authorities consider the
request for refund of the sums paid in excess is based on Article 548 a) of Decree No. 2685.322 As
argued by Panama (see paragraph 7.64 above), Article 548 a) refers to the reimbursement of customs
duties "that have been paid", and not to the "refund of a guarantee". Thus, the references to
Article 548 a) of Decree No. 2685 further confirm that payments made under Article 128.5 e) of
Decree No. 2685 are payments strictu sensu, and not "guarantees in the form of a cash deposit".
7.125 As an additional matter, the Panel considers that the lengthy delay and non-automatic nature
of the post-importation process mitigates against considering the payment based on indicative prices
as a type of guarantee. Both Exhibit COL-8 and PAN-53 reveal that the length of the so-called "post-
316
Exhibit COL-8, p. 1 ("... me dirijo respetuosamente a ustedes con el objeto de solicitar la
liquidación Oficial de Revisión de valor para. la devolución de los tributos pagados en exceso … toda vez que
el valor en aduanas fue ajustado con los precios indicativos …".
317
Exhibit COL-8, p. 3 ("En el momento de nacionalizar la mercancía con el fin de obtener el levante
de la misma se ajustó el valor … generándose un pago de tributos aduaneros en exceso …").
318
Exhibit COL-8, p. 126 ("… encontrando que el valor total de los tributos liquidados y pagados
sobre el valor en aduana una vez efectuado el ajuste al precio f.o.b. … se contabilizó en lo referente al arancel
como mayor valor del inventario … obtuvo un beneficio en el pago del impuesto sobre la renta …").
319
Exhibit COL-8, p. 155 ("La controversia versa en la negativa por parte de la División de
Liquidación en expedir el acto administrativo correspondiente que reconozca el valor pagado en exceso de
$19.898.890 y en consecuencia, se le permita solicitar la devolución de la parte correspondiente al
sobrearancel liquidado y pagado en cuantía de $10.152.495 ...").
320
Exhibit COL-8, p. 160 ("Resuelve… Artículo Tercero. Reconocer … la suma de … como valor
pagado en exceso en los tributos aduaneros liquidados y cancelados …").
321
Exhibit PAN-53 ("al aceptar la expedición de una Liquidación Oficial de Revisión de Valor
para. los efectos de devolución en los términos señalados por el peticionario estaríamos frente a un indebido
incremento en su patrimonio toda vez que se beneficiaría doblemente de una suma de dinero que ya utilizó
como quedó demostrado en el estudio técnico"); Exhibit COL-8, p. 128 ("... al aceptar la expedición de una
Liquidación Oficial de Revisión de Valor para. efectos devolutivos, en los términos señalados por el
peticionario, estaríamos frente a un indebido incremento en su patrimonio, toda vez que se beneficiaría
doblemente de una suma …").
322
Exhibit COL-8, pp. 4-5, p. 127; Exhibit PAN-53.
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importation" process is two years or more.323 As noted in Section II.B above, the case described in
Exhibit COL-8 began, upon request of the importer, on 2 April 2006 and concluded on 22 February
2008, almost two years later. In turn, the case described in Exhibit PAN-53 (and Exhibit COL-49)
was initiated on 10 July 2005 and did not conclude until 18 December 2007, almost two and a half
years later.324
7.126 In these cases, the proceedings were initiated upon request of the importer.325 Colombia
suggested that these cases were initiated by the importer on the basis of a "special procedure" aimed at
accelerating the ordinary process, called "Proceso de Petición".326 However, no mention whatsoever
can be found in the exhibits to this "Derecho de Petición ". Colombia argued that this silence in the
exhibits results from the fact that there is no specific form for an importer to exercise the "derecho de
petición". Colombia contends that this "Derecho de Petición " is a constitutional right, according to
Article 23 of the Colombian Constitution and that, as a fundamental right, it is protected by the special
constitutional injunction called "Tutela", which originates in Article 86 of Colombia's Constitution.327
According to Colombia, "all that the importer has to do is request, on its own initiative, that the
authorities review a specific issue, and the Colombian authorities are then obligated to treat this as a
'Derecho de Petición' ".328 The Panel is not persuaded by this argument. The parties have not
provided the Panel with convincing evidence of any decision by the Administration to treat the
requests by the importers as a "Derecho de Petición" and none of the articles that govern this
"Derecho de Petición" are quoted by the customs authorities when dealing with the importers'
requests.329 The Panel thus understands that the plea by the importer in this process was not filed as a
"Derecho de Petición" aimed at accelerating a process that had started automatically and ex officio,
but rather as a request to initiate the process that would lead to the Liquidación Oficial de Revisión de
Valor and, subsequently, to the refund of the sums paid in excess.
7.127 In contrast to the examples presented in Exhibit COL-8 and PAN-53, Exhibit COL-9 appears
to indicate that the importation documents were sent to the División de Fiscalización by the Grupo
323
Exhibit COL-9 does not have the necessary time references to determine the length of the whole
process and, thus, it is not possible to make an assessment of its duration.
324
Exhibit PAN-53. See also footnote 36 above.
325
See Exhibit COL-9, p. 1 and Exhibit PAN-53.
326
Colombia's response to question No. 5(b)(iii) from Panama.
327
328
Colombia's response to Panel question No. 101(b).
329
Instead, the decision in Exhibit COL-8 by the Administración Especial de Aduanas of Bogota, dated
16 August 2007, cites as the legal basis to forward the importer's request to the División de Fiscalización
Aduanera a series of customs regulations that refer to the División de Liquidación's competence to entertain
processes initiated upon request of the interested party that seek the issuing of Liquidaciones Oficiales de
Corrección o Revisión de Valor (emphasis added). In the same vein, the legal basis for the request by the
importer in Exhibit COL-8 are Articles 514 and 548(a) of Decree No. 2685 and Article 6.3 of
Resolution No. 5634 of 1999, as modified by Article 1 of Resolution No. 2200 of 25 March 2003. The relevant
part of the decision reads as follows: "... de acuerdo al Memorando No. 00297 de 15 de Mayo de 2007 y del
Concepto No. 53001-35 del 04 de Mayo de 2007 ... en los cuales se hace precisión sobre la competencia que
tiene la División de Liquidación para. adelantar los procesos iniciados a solicitud de parte para. la
expedición de liquidaciones oficiales de corrección o de revisión de valor (…). Por lo expuesto en los casos
de devolución por pago en exceso, el estudio de valor y la práctica de pruebas previos a la liquidación oficial de
corrección debe realizarlo la División de Liquidación, por lo cual de procede al traslado a la mencionada
División." (emphasis added). Notably, the latter provision establishes that the División de Liquidación shall be
competent to decide in processes initiated upon request of the interested party, which seek the issuing of
Liquidaciones Oficiales de Corrección o de Revisión de Valor (emphasis added). Exhibit COL-8, pp. 1 and 4.
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Importaciones de la Administración Local de Aduanas de Medellín without any request from the
importer.330
7.128 In sum, these three specific cases of application of the challenged provisions seem to confirm
the view that the disbursement that the importer must make in order to obtain the release of the goods
subject to indicative prices is in fact a "payment" and not a "guarantee in the form of a cash deposit".
These three examples show that, after such a payment, there is a review mechanism during which
Colombian customs authorities determine a custom value according to the criteria established by the
Customs Valuation Agreement, and decide on that basis whether the importer is entitled to a refund of
the sum that it had paid in excess. The evidence produced by the parties, however, seems
inconclusive as to whether this review process takes place automatically in all cases. At any rate, the
review process itself appears quite lengthy, taking two years or more for an importer to obtain a
refund.
(ii) Conclusion
7.129 The Panel's analysis in the previous sections demonstrates that payments made by importers
in the situation described by Article 128.5 e) of Decree No. 2685 and Article 172.7 of
Resolution No. 4240 are payments strictu sensu and not "guarantees in the form of a cash deposit".
The very terms of Article 128.5 e) of Decree No. 2685 are revealing: in order to obtain the release of
the goods in the situation described by this provision, the importer must pay customs duties and sales
tax on the basis of indicative prices. A contextual reading of the challenged provisions as well as the
examples provided by the parties confirm this view.
7.130 Accordingly, the Panel concludes that Colombia's use of indicative prices as mandated by
Article 128.5 e) of Decree No. 2685 and Article 172.7 of Resolution No. 4240 constitutes customs
valuation within the meaning of the Customs Valuation Agreement. Having reached this conclusion,
the Panel will proceed to analyse Panama's claims under Articles 1, 2, 3, 5, 6 and 7.2(b), (f) and (g) of
the Customs Valuation Agreement.
(e) Whether the use of indicative prices for customs valuation purposes is inconsistent with
Articles 1, 2, 3, 5, 6 and 7.2(b), (f) and (g) of the Customs Valuation Agreement
7.131 The Panel will now examine whether the use of indicative prices in the determination of the
customs value of subject imports complies with Articles 1, 2, 3, 5, 6 and 7.2(b), (f) and (g) of the
Customs Valuation Agreement. The Panel notes that this Agreement has never been interpreted by
GATT/WTO panels or the Appellate Body.
7.132 The Panel also recalls that it is addressing Panama's claims "as such". The Panel therefore
will not examine the application by Colombian customs authorities of the sequential valuation
methods provided by the Customs Valuation Agreement in each individual instance. Rather, the Panel
will examine whether the use of indicative prices as provided for in Article 128.5 e) of
Decree No. 2685 and Article 172.7 of Resolution No. 4240 is inconsistent with the above-mentioned
provisions.
(i) Main arguments of the parties
7.133 As discussed above, Panama contends that Colombia's use of indicative prices for the
purposes of customs valuation violates each of the sequential methodologies set forth in Articles 1-6
of the Customs Valuation Agreement. Additionally, Panama argues the use of indicative prices
330
The Administración de Aduanas de Medellín, pursuant to para. 3 of Article 172 of
Resolution No. 4240, sent the file to the División de Fiscalización ex officio, with the purpose of initiating the
"estudio de valor". Exhibit COL-64, p. 1.
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violates Article 7.2(b), (f) and (g) of the Customs Valuation Agreement, since: (i) the customs value is
determined on the basis of "a system which provides for the acceptance for customs purposes of the
higher of two alternative values"; (ii) the customs value is determined on the basis of "minimum
customs values"; and (iii) the customs value is determined on the basis of "arbitrary or fictitious
prices".331
7.134 Colombia maintains its earlier position that it does not conduct customs valuation based on
indicative prices.332 Accordingly, Colombia does not consider the use of indicative prices to violate
Articles 1, 2, 3, 5, 6 and 7(b), (f) and (g) of the Customs Valuation Agreement.
(ii) The text of Articles 1, 2, 3, 5, 6 and 7.2(b), (f) and (g) of the Customs Valuation Agreement
7.135 Panama's claims relate to a number of provisions of the Customs Valuation Agreement,
namely Articles 1, 2, 3, 5, 6 and 7.2(b), (f) and (g). The text of these provisions reads as follows:
"Article 1
1. The customs value of imported goods shall be the transaction value, that is
the price actually paid or payable for the goods when sold for export to the country of
importation adjusted in accordance with the provisions of Article 8, provided:
(a) that there are no restrictions as to the disposition or use of the goods by the
buyer other than restrictions which:
(i) are imposed or required by law or by the public authorities in

the country of importation;
(ii) limit the geographical area in which the goods may be resold;
or
(iii) do not substantially affect the value of the goods;
(b) that the sale or price is not subject to some condition or consideration for
which a value cannot be determined with respect to the goods being valued;
(c) that no part of the proceeds of any subsequent resale, disposal or use of the
goods by the buyer will accrue directly or indirectly to the seller, unless an
appropriate adjustment can be made in accordance with the provisions of Article 8;
and
(d) that the buyer and seller are not related, or where the buyer and seller are
related, that the transaction value is acceptable for customs purposes under the
provisions of paragraph 2.
2. (a) In determining whether the transaction value is acceptable for the

purposes of paragraph 1, the fact that the buyer and the seller are related within the
meaning of Article 15 shall not in itself be grounds for regarding the transaction value
as unacceptable. In such case the circumstances surrounding the sale shall be
examined and the transaction value shall be accepted provided that the relationship
did not influence the price. If, in the light of information provided by the importer or
otherwise, the customs administration has grounds for considering that the
331
332
See Section VII.B.1.
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relationship influenced the price, it shall communicate its grounds to the importer and
the importer shall be given a reasonable opportunity to respond. If the importer so
requests, the communication of the grounds shall be in writing.
(b) In a sale between related persons, the transaction value shall be accepted and
the goods valued in accordance with the provisions of paragraph 1 whenever the
importer demonstrates that such value closely approximates to one of the following
occurring at or about the same time:
(i) the transaction value in sales to unrelated buyers of identical

or similar goods for export to the same country of
importation;
(ii) the customs value of identical or similar goods as determined

under the provisions of Article 5;
(iii) the customs value of identical or similar goods as determined

under the provisions of Article 6;
In applying the foregoing tests, due account shall be taken of demonstrated

differences in commercial levels, quantity levels, the elements enumerated in
Article 8 and costs incurred by the seller in sales in which the seller and the buyer are
not related that are not incurred by the seller in sales in which the seller and the buyer
are related.
(c) The tests set forth in paragraph 2(b) are to be used at the initiative of the
importer and only for comparison purposes. Substitute values may not be established
under the provisions of paragraph 2(b).
Article 2
1. (a) If the customs value of the imported goods cannot be determined

under the provisions of Article 1, the customs value shall be the transaction value of
identical goods sold for export to the same country of importation and exported at or
about the same time as the goods being valued.
(b) In applying this Article, the transaction value of identical goods in a sale at
the same commercial level and in substantially the same quantity as the goods being
valued shall be used to determine the customs value. Where no such sale is found,
the transaction value of identical goods sold at a different commercial level and/or in
different quantities, adjusted to take account of differences attributable to commercial
level and/or to quantity, shall be used, provided that such adjustments can be made on
the basis of demonstrated evidence which clearly establishes the reasonableness and
accuracy of the adjustment, whether the adjustment leads to an increase or a decrease
in the value.
2. Where the costs and charges referred to in paragraph 2 of Article 8 are

included in the transaction value, an adjustment shall be made to take account of
significant differences in such costs and charges between the imported goods and the
identical goods in question arising from differences in distances and modes of
transport.
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3. If, in applying this Article, more than one transaction value of identical goods
is found, the lowest such value shall be used to determine the customs value of the
imported goods.
Article 3
1. (a) If the customs value of the imported goods cannot be determined

under the provisions of Articles 1 and 2, the customs value shall be the transaction
value of similar goods sold for export to the same country of importation and
exported at or about the same time as the goods being valued.
(b) In applying this Article, the transaction value of similar goods in a sale at the
same commercial level and in substantially the same quantity as the goods being
valued shall be used to determine the customs value. Where no such sale is found,
the transaction value of similar goods sold at a different commercial level and/or in
different quantities, adjusted to take account of differences attributable to commercial
level and/or to quantity, shall be used, provided that such adjustments can be made on
the basis of demonstrated evidence which clearly establishes the reasonableness and
accuracy of the adjustment, whether the adjustment leads to an increase or a decrease
in the value.
2. Where the costs and charges referred to in paragraph 2 of Article 8 are

included in the transaction value, an adjustment shall be made to take account of
significant differences in such costs and charges between the imported goods and the
similar goods in question arising from differences in distances and modes of
transport.
3. If, in applying this Article, more than one transaction value of similar goods
is found, the lowest such value shall be used to determine the customs value of the
imported goods.
Article 5
1. (a) If the imported goods or identical or similar imported goods are sold
in the country of importation in the condition as imported, the customs value of the
imported goods under the provisions of this Article shall be based on the unit price at
which the imported goods or identical or similar imported goods are so sold in the
greatest aggregate quantity, at or about the time of the importation of the goods being
valued, to persons who are not related to the persons from whom they buy such
goods, subject to deductions for the following:
(i) either the commissions usually paid or agreed to be paid or

the additions usually made for profit and general expenses in
connection with sales in such country of imported goods of
the same class or kind;
(ii) the usual costs of transport and insurance and associated

costs incurred within the country of importation;
(iii) where appropriate, the costs and charges referred to in

paragraph 2 of Article 8; and
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(iv) the customs duties and other national taxes payable in the
country of importation by reason of the importation or sale of
the goods.
(b) If neither the imported goods nor identical nor similar imported goods are
sold at or about the time of importation of the goods being valued, the customs value
shall, subject otherwise to the provisions of paragraph 1(a), be based on the unit price
at which the imported goods or identical or similar imported goods are sold in the
country of importation in the condition as imported at the earliest date after the
importation of the goods being valued but before the expiration of 90 days after such
importation.
2. If neither the imported goods nor identical nor similar imported goods are
sold in the country of importation in the condition as imported, then, if the importer
so requests, the customs value shall be based on the unit price at which the imported
goods, after further processing, are sold in the greatest aggregate quantity to persons
in the country of importation who are not related to the persons from whom they buy
such goods, due allowance being made for the value added by such processing and
the deductions provided for in paragraph 1(a).
Article 6
1. The customs value of imported goods under the provisions of this

Article shall be based on a computed value. Computed value shall consist of the sum
of:
(a) the cost or value of materials and fabrication or other processing employed in
producing the imported goods;
(b) an amount for profit and general expenses equal to that usually reflected in
sales of goods of the same class or kind as the goods being valued which are made by
producers in the country of exportation for export to the country of importation;
(c) the cost or value of all other expenses necessary to reflect the valuation
option chosen by the Member under paragraph 2 of Article 8 .
2. No Member may require or compel any person not resident in its own
territory to produce for examination, or to allow access to, any account or other
record for the purposes of determining a computed value. However, information
supplied by the producer of the goods for the purposes of determining the customs
value under the provisions of this Article may be verified in another country by the
authorities of the country of importation with the agreement of the producer and
provided they give sufficient advance notice to the government of the country in
question and the latter does not object to the investigation.
Article 7
1. If the customs value of the imported goods cannot be determined under the
provisions of Articles 1 through 6, inclusive, the customs value shall be determined
using reasonable means consistent with the principles and general provisions of this
Agreement and of Article VII of GATT 1994 and on the basis of data available in the
country of importation.
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2. No customs value shall be determined under the provisions of this Article on

the basis of:
(a) ...
(b) a system which provides for the acceptance for customs purposes of the
higher of two alternative values;
....
(f) minimum customs values; or
(g) arbitrary or fictitious values."
(iii) The primacy of the transaction value and sequential nature of the valuation methods provided
in Articles 1 to 7 of the Customs Valuation Agreement
7.136 As evidenced by the text of the relevant provisions, the Customs Valuation Agreement
provides for sequential valuation methods in Articles 1 through 7.1. Article 1 establishes the primacy
of the transaction value as the valuation method. Whenever customs authorities consider that the
transaction value of the imported good, as defined in Article 1, cannot be used, authorities must
follow, in a sequential manner, the valuation methods provided for in Article 2 (transactional value of
identical goods), Article 3 (transaction value of similar goods), Article 5 (deductive method) and
Article 6 (computed value) of the Customs Valuation Agreement. Where none of the methods in
Articles 1 to 6 are available, Article 7 allows customs authorities to resort to any other reasonable
means to determine the customs value, provided such methods are consistent with the principles and
general provisions of the Customs Valuation Agreement and of GATT 1994. In doing so, customs
authorities must not use any of the methods prohibited in paragraph 2 of Article 7.
7.137 The primacy of the transaction value as a customs valuation method and the sequential nature
of the valuation methods derives from the "General Introductory Comment" to this Agreement. This
Comment explains that the "primary basis for customs value under this Agreement is 'transaction
value' as defined in Article 1", while also indicating that "Articles 2 through 7 provide methods of
determining the customs value whenever it cannot be determined under the provisions of Article 1".
In addition, the Preamble to the Agreement makes explicit reference to the crucial role of the
transaction value in customs valuation.
7.138 The Panel therefore understands that the Customs Valuation Agreement imposes an obligation
on national authorities to determine the customs value of imported goods based on the "transaction
value" and, whenever that is not possible, to sequentially apply the customs valuation methods
provided for in Articles 1, 2, 3, 5, 6 and 7.1 of the Agreement.
7.139 In order to determine whether Colombia complies with this obligation, the Panel must
determine whether the use of indicative prices reflects the "transaction value", or any of the
methodologies set out by those articles.
(iv) Whether the use of indicative prices constitute any of the valuation methods provided for in
Articles 1, 2, 3, 5 and 6 of the Customs Valuation Agreement
7.140 The Panel will first examine whether the use of indicative prices reflects any of the
methodologies provided for in Articles 1, 2, 3, 5 and 6 of the Customs Valuation Agreement.
7.141 The Panel recalls that, as explained in Section II.B above, indicative prices are determined
a priori, for broad categories of products, as a result of surveys undertaken by the DIAN on the basis
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of past imports.333 They are calculated based on the average production costs of the imported goods,
when available, or otherwise, on the lowest price actually negotiated or offered for importation of the
good into Colombia.
7.142 The Panel considers that national customs authorities are required to apply the various
customs valuation methods laid down in Articles 1, 2, 3, 5 and 6 of the Customs Valuation Agreement
on a case-by-case basis, so as to reflect the particular conditions of the sale of the product in question.
The Panel considers that, inasmuch as the customs values for subject goods are established on a fixed
basis for broad categories of products without any examination of the specific circumstances
surrounding the transaction at issue, indicative prices do not reflect any of the methodologies set out
in the referred provisions.334 In fact, as acknowledged by Colombia, "the customs value as
determined following the methods of the [Customs Valuation Agreement] will indeed be different
from the indicative price in practically all cases".335
(v) Whether the use of indicative prices is consistent with the obligation to conduct customs
valuation according to the sequential methods laid down in Articles 1, 2, 3, 5 and 6 of the
7.143 The Panel acknowledges that the sequential nature of the various valuation methods permits
national customs authorities to proceed from one method to the next without violating the previous
method, provided the former cannot be used. However, the structure and design of the indicative
prices system as provided in Article 128.5 e) of Decree No. 2685 and Article 172.7 of
Resolution No. 4240 as well as the various resolutions establishing indicative prices, prevents
Colombian customs authorities from sequentially applying the customs valuation methods provided in
Articles 1 through 6. Indeed, when determining the value of subject goods imports, Colombian
customs authorities are required to systematically apply a methodology that does not reflect any of the
methods provided for in these provisions, i.e. the use of indicative prices, unless the transactional
value is higher than the indicative price.
7.144 The Panel therefore finds that Article 128.5 e) of Decree No. 2685 and Article 172.7 of
Resolution No. 4240 as well as the various resolutions establishing indicative prices, which together
mandate the use of indicative prices for customs valuation purposes, are inconsistent with the
obligation to conduct customs valuation of subject goods based on the sequential application of the
methods established by Articles 1, 2, 3, 5 and 6 of the Customs Valuation Agreement.
333
See Methodology for the Determination of Reference Prices, pp. 12-15 (Exhibit PAN-18). See also
para. 2.7.
334
Thus, as noted by Panama, indicative prices have no relation with the price actually paid or payable
for the good, taking into account the specific circumstances surrounding the transaction at issue. Hence, the
Panel is of the opinion that indicative prices do not reflect the "transaction value" as defined by Article 1 of the
Customs Valuation Agreement. In addition, Colombia's customs officers do not assess the transaction value of
identical or similar goods sold for export to Colombia at approximately the same time as the product in question,
in compliance with Articles 2 and 3 of the Customs Valuation Agreement. Colombian authorities similiarly do
not conduct an inquiry into the unit price at which the imported goods or identical or similar imported goods are
sold in the greatest aggregate quantity, at or about the time of the importation of the goods being valued, to
unrelated persons, in accordance with the methodology set forth in Article 5. Finally, indicative prices are not
established taking into account the factors listed in Article 6, such as the cost or value of materials and
fabrication; an amount for profit and general expenses; and other expenses including cost of transport, loading,
unloading and handling charges and insurance. Although in determining indicative prices, Colombian customs
authorities factor "the costs and expenditures of production" and "profit", these variables are considered on
"average" and for broad categories of products. Article 6, in contrast, clearly refers to the costs of production of
the specific products that are being imported, as can be inferred from Article 6.1(a) and its Note.
335
Colombia's response to question No. 5 from Panama. Colombia further states that "the likelihood
that the customs value [determined on the basis of the methods of Articles 1–7 of the Customs Valuation
Agreement] is identical to the indicative price which is an average price is so small that indeed it is correct to say
the customs values will, practically speaking, be different from the indicative price in all cases".
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(vi) Whether the use of indicative prices is inconsistent with Article 7(b), (f) and (g) of the
7.145 Additionally, Panama argues the use of indicative prices violates Article 7.2(b), (f) and (g) of
the Customs Valuation Agreement, since: (i) the customs value is determined on the basis of "a system
which provides for the acceptance for customs purposes of the higher of two alternative values"; (ii)
the customs value is determined on the basis of "minimum customs values"; and (iii) the customs
value is determined on the basis of "arbitrary or fictitious prices".336
7.146 The Panel notes that Article 7.1 of the Customs Valuation Agreement allows national customs
authorities to resort to reasonable means of valuation where the customs value of imported goods
cannot be determined under the methods provided for in Article 1 through 6.337 Paragraph 2 of
Article 7 further provides that those reasonable means cannot be determined using a series of
prohibited customs valuation methods.
7.147 With respect to Article 7.2(b) of the Customs Valuation Agreement, Panama contends that the
requirement established in Article 172.7 of Resolution No. 4240 to use an indicative price for customs
valuation purposes whenever the transaction value is lower than the indicative price is tantamount to
the acceptance of the higher of two alternative values.338 In relation to Article 7.2(f) of the Customs
Valuation Agreement, Panama claims that the indicative prices are minimum customs values because
importation of products subject to indicative prices will not be permitted unless this minimum value is
declared by the importer.339 Panama also claims that, since the customs value of the goods is not
based on the actual circumstances of the sale, but rather on the basis of a general survey, indicative
prices are, in effect, arbitrary and fictitious prices, in contravention of Article 7.2(g) of the Customs
Valuation Agreement.340
7.148 Colombia has not submitted any specific counterargument with respect to Panama's claims
under Article 7.2 of the Customs Valuation Agreement other than the general contention that
indicative prices are not used for customs valuations purposes.
7.149 The Panel considers that Article 128.5 e) of Decree No. 2685 and Article 172.7 of
Resolution No. 4240, as well as the various resolutions establishing indicative prices, impose "the
acceptance for customs purposes of the higher of two alternative values". As explained in
Section II.B above, for products subject to indicative prices, customs duties and sales taxes are levied
at the time of inspection on the basis of the higher of two values: the declared value or the indicative
price.341 The Panel therefore finds that Article 128.5 e) of Decree No. 2685 and Article 172.7 of
Resolution No. 4240 as well as the various resolutions establishing indicative prices, which mandate
the use of indicative prices for customs valuation purposes are inconsistent with Article 7.2(b) of the
7.150 Moreover, as also explained above, in cases in which the declared value is lower than the
indicative price, an importer has to "correct" the import declaration and pay custom duties and sales
tax based on the indicative price.342 If the importer refuses to do so, the importer has no choice but to
re-ship the goods or abandon them. As a result, only two possible scenarios exist when subject goods
336
337
Article 7.1 provides as follows: "If the customs value of the imported goods cannot be determined
under the provisions of Articles 1 through 6, inclusive, the customs value shall be determined using reasonable
means consistent with the principles and general provisions of this Agreement and of Article VII of GATT 1994
and on the basis of data available in the country of importation."
338
339
340
341
See para. 2.8.
342
See paras. 2.8-2.9.
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are submitted for customs clearance: either customs duties and sales tax are collected on the basis of a
value equal or higher than the indicative price; or the goods are not imported into Colombian customs
territory at all. In practice, this results in a system in which customs duties and sales tax are never
levied on the basis of a value lower than the one provided by the indicative price. For this reason, the
Panel concludes that indicative prices amount to "minimum prices" and, therefore, finds that
Article 128.5 e) of Decree No. 2685 and Article 172.7 of Resolution No. 4240 as well as the various
resolutions establishing indicative prices which mandate the use of indicative prices for customs
valuation purposes are also inconsistent with Article 7.2(f) of the Customs Valuation Agreement.
7.151 Having found that Article 128.5 e) of Decree No. 2685 and Article 172.7 of
Resolution No. 4240 as well as the various resolutions establishing indicative prices which mandate
the use of indicative prices for customs valuation purposes are inconsistent with Articles 7.2(b) and
7.2(f) of the Customs Valuation Agreement, the Panel does not consider it necessary to further rule on
the consistency of these Colombian domestic provisions with Article 7.2(g) of the Customs Valuation
Agreement.
(f) Conclusion
7.152 For the reasons discussed above, the Panel finds that Articles 128.5 e) of Decree No. 2685
and 172.7 of Resolution No. 4240, as well as the various resolutions establishing indicative prices, by
mandating the use of indicative prices for customs valuation purposes are inconsistent "as such" with
the obligation established in the Customs Valuation Agreement to apply, in a sequential manner, the
methods of valuation provided in Articles 1, 2, 3, 5 and 6 of the Agreement.
7.153 The Panel further finds that Articles 128.5 e) of Decree No. 2685 and 172.7 of
Resolution No. 4240, as well as the various resolutions establishing indicative prices, by mandating
the use of the higher of two values or a minimum price as the customs value of subject goods, are
inconsistent "as such" with Article 7.2(b) and (f) of the Customs Valuation Agreement. Therefore,
notwithstanding the Panel's finding that Colombia's use of indicative prices is not inconsistent with
Article 7.2(g), the Panel finds that such methodology does not constitute a "reasonable means [of
customs valuation] consistent with the principles and general provisions of the Customs Valuation
Agreement" permissible under Article 7.1.
7.154 Having found that Articles 128.5 e) of Decree No. 2685 and 172.7 of Resolution No. 4240, as
well as the various resolutions establishing indicative prices are "as such" inconsistent with the
Customs Valuation Agreement, the Panel considers it unnecessary to further examine Panama's "as
applied" claims. As discussed in Section VII.A.1(c)(iii) above, as each of the individual applications
of indicative prices to import transactions has been based on WTO-inconsistent legislation, such an
analysis would be unnecessary343
7.155 In reaching its conclusions, the Panel recognizes that WTO Members have a legitimate right
to apply measures aimed at combating under-invoicing, smuggling and money laundering. However,
these measures should be WTO-consistent or fall within the exceptions included in Article XX of the
GATT 1994 which allow WTO Members to justify an otherwise WTO-inconsistent measure.
343
See para. 7.44.
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C. WHETHER COLOMBIA'S USE OF INDICATIVE PRICES TO DETERMINE THE VALUE OF IMPORTED

TEXTILES, FOOTWEAR AND OTHER PRODUCTS FOR THE PURPOSE OF LEVYING SALES TAX IS
INCONSISTENT WITH ARTICLE III:2, FIRST SENTENCE OF THE GATT 1994
7.156 Panama claims that the use of indicative prices as the basis to determine the value of imported
textiles, footwear and other products for the purpose of levying sales tax is inconsistent with
Article III:2, first sentence, of the GATT 1994. In Panama's view, the sales tax is imposed "in excess
of" the sales tax imposed on like domestic products as the potentially like domestic products are
subject to sales tax on the basis of the actual sale price of the product.344 Notwithstanding the
application of the same tax rate, Panama asserts that imported products can still be taxed "in excess"
of like domestic products if the application of differential tax bases leads to the imposition of higher
taxes for imported products.345 Furthermore, since Article III protects the "equal competitive
relationship between imported and domestic products"346 and depends on the "potential impact rather
than on the actual consequences"347, Panama submits that there is at least potentially a like domestic
product.348
7.157 Panama contends that Colombia has admitted that the tax base for domestic goods is the
transaction value.349 In contrast, Panama notes that importers subject to indicative prices do not have
the option under Article 459 of the Tax Code to demonstrate that the invoiced value is the actual
transaction value, but must instead apply a higher value based on the indicative price.350 Thus,
whenever indicative prices are applied, imports are taxed in excess of like domestics products. Due to
the possibility of a violation, Panama argues that exceptional situations where the indicative price is
the same as the transaction value are not relevant to the determination under Article III:2, as the
"exposure of a particular imported product to a risk of discrimination"351 already constitutes a form of
discrimination.352 Panama further argues that it is not required to show specific instances of
Article III:2 violations because differential tax treatment is itself sufficient evidence of discriminatory
treatment to show inconsistency with Article III:2.353
7.158 Colombia contends that there is no provision in Colombian law requiring the sales tax on
imported products to be imposed on the basis of indicative prices. Colombia notes that Article 459 of
Colombia's Tax Code only provides that the basis for assessing internal taxes on imported products is
the same as that used to determine customs duties.354 Thus, Colombia contends, the basic premise of
Panama's claim is flawed, as the tax base for imported goods is not the indicative price of the product
but the value of the goods used to determine customs duties which, according to Colombia, is not
determined based on indicative prices, but on the basis of methods set out in the Customs Valuation
Agreement.355 Moreover, Colombia draws the Panel's attention to the fact that Panama has failed to
offer "even one specific application" of the Colombia's law that would support its argument.356
344
345
Panama refers to the Appellate Body Report in Argentina – Hides and Leather. Panama's second
written submission, para. 86.
346
Panama refers to the Appellate Body Report in Japan – Alcoholic Beverages II.
347
Panama refers to the GATT Panel Report on US – Section 337.
348
349
350
351
Panama refers to the GATT Panel Report on EEC – Oilseeds I.
352
353
Panama refers to the Panel Report on Indonesia – Autos.
354
355
Colombia's first written submission, paras. 162-166; Colombia's second written submission,
para. 91.
356
Colombia's first written submission, para. 167
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Colombia further disputes Panama's assertion that the sales tax of domestic products will always be
calculated on the basis of the transaction value. According to Colombia, just as in the case of
imported goods, the sales tax on domestic products may, in cases of undervaluation, be based on a
value different from the declared value.357
7.159 Colombia further argues that Panama has failed to meet its burden of proof under
Article III:2. In Colombia's view, Panama fails to demonstrate that the sales tax on imported products
is not just "different in a neutral sense of the word"358, but that the difference leads to imported goods
being taxed "in excess" of like domestic products.359 Colombia notes that Panama does not contest
the fact that the same tax rate is applied for both domestic and imported products.360 Further, any
difference in the application of differential tax bases is not considered determinative as such.361 In
addition, Colombia states that Panama failed to explain the alleged negative impact on competitive
opportunities.362
(a) Legislation applicable to the calculation of sales tax for imports subject to indicative prices
7.160 In addressing Panama's claims under the Customs Valuation Agreement in Section VII.B.2(a)
above363, the Panel established that the legislation mandating the use of indicative prices comprises
Article 128.5 e) of Decree No. 2685 and Article 172.7 of Resolution No. 4240 as well as a series of
resolutions establishing indicative prices.364 The Panel understands that Panama, under the present
claim, is challenging "as such" the consistency of all these provisions with Article III:2 of the
GATT 1994.
7.161 In addition, Panama has identified a number of tax provisions within Decree 624 of 1989 that
it considers relevant to the present claim, although Panama has not explicitly challenged these
provisions.
7.162 Article 447 of Decree 624, in turn defines the taxable base ("base gravable") applicable to the
calculation of sales tax for all goods sold in Colombia:
"En la venta y prestación de servicios, la base gravable será el valor total de la

operación, sea que ésta se realice de contado o a crédito, incluyendo entre otros los
gastos directos de financiación ordinaria, extraordinaria, o moratoria, accesorios,
acarreos, instalaciones, seguros, comisiones, garantías y demás erogaciones
357
358
359
Colombia refers to the Appellate Body Reports in Japan – Alcoholic Beverages II and Canada –
Periodicals. Colombia's first written submission, paras. 147-149.
360
361
Colombia refers to the Panel Report on Dominican Republic – Import and Sale of Cigarettes.
362
Colombia refers to the Panel Report on Dominican Republic – Import and Sale of Cigarettes and
the Appellate Body Report in Argentina – Hides and Leather. Colombia's first written submission, para. 159.
363
See also para. 7.36, discussing Colombia's challenge to Panama's identification of the measure at
issue. Additionally, the Panel has included Article 453 of Decree 624 above as Colombia has referred to this
provision in defence of its methodology applied to domestically-produced goods.
364
The various resolutions establishing the applicable indicative prices are: Resolution No. 7510 of
26 June 2007, as modified by Resolution No. 11412 of 28 September 2007; Resolution No. 7511 of 26 June
2007; Resolution No. 7509 of 26 June 2007, as modified by Resolution No. 11414 of 28 September 2007;
Resolution No. 7512 of 26 June 2007, as modified by Resolution No. 11415 and Resolution No. 7513 of 26
June 2007.
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complementarias, aunque se facturen o convengan por separado y aunque,

considerados independientemente, no se encuentren sometidos a imposición."
7.163 Article 459 of Decree 624, which establishes the basis for the imposition of sales tax on
imported goods, provides in relevant part as follows:
"La base gravable, sobre la cual se liquida el impuesto sobre las ventas en el caso de
las mercancías importadas, será la misma que se tiene en cuenta para liquidar los
derechos de aduana, adicionados con el valor de este gravamen."
7.164 Article 468 of Decree 624 establishes a sales tax rate of 16 per cent applicable to all goods
sold in Colombia:
"La tarifa general del impuesto sobre las ventas es del dieciséis por ciento (16%), la
cual se aplicará también a los servicios, con excepción de los excluidos
expresamente. Igualmente, la tarifa general será aplicable a los bienes de que tratan
los artículos 446, 469 y 474 y a los servicios de que trata el artículo 461 del Estatuto
Tributario."
7.165 Panama is therefore not challenging the WTO-consistency of Articles 447, 459 and 468 of
Decree 624 "as such", but considers these provisions as relevant context for the Panel's examination
of the WTO-consistency of the use of indicative prices with Article III:2 (and Article III:4 in the
alternative) of the GATT 1994.365
(b) The Panel's approach to Panama's claim under Article III:2, first sentence
7.166 Panama has requested the Panel to determine whether the use of indicative prices rather than
the transaction value as the basis for assessing the sales tax on subject imports results in the
imposition of tax in excess of that levied on like domestic products in violation of Article III:2, first
sentence. As indicated above, the Panel has established that the legal provisions at issue are
Article 128.5 e) of Decree No. 2685 and Article 172.7 of Resolution No. 4240, as well as a number of
resolutions establishing indicative prices. Panama is not challenging the various tax provisions
identified above but has simply referred to them as relevant context for the interpretation of the
indicative prices provisions.
7.167 The Panel recalls its findings concerning the consistency of the challenged provisions with the
Customs Valuation Agreement in Section VII.B.2(f) above as it considers them relevant to the present
claim under Article III:2, first sentence. The Panel found that Article 128.5 e) of Decree No. 2685
and Article 172.7 of Resolution No. 4240, as well as the various resolutions establishing indicative
prices, by mandating the use of indicative prices for customs valuation purposes, are inconsistent "as
such" with the obligation established in the Customs Valuation Agreement to apply, in a sequential
manner, the methods of valuation provided in Articles 1, 2, 3, 5 and 6 of the Agreement.
Furthermore, the Panel found that Articles 128.5 e) of Decree No. 2685 and 172.7 of
Resolution No. 4240, as well as the various resolutions establishing indicative prices, by mandating
the use of the higher of two values or a minimum price as the customs value of subject goods, are
inconsistent "as such" with Article 7.2(b) and (f) of the Customs Valuation Agreement.
7.168 In this respect, the Panel recalls that Article 459 of Decree 624, which establishes the taxable
base for the imposition of sales tax on imported goods, provides in relevant part as follows: "La base
gravable, sobre la cual se liquida el impuesto sobre las ventas en el caso de las mercancías
importadas, será la misma que se tiene en cuenta para liquidar los derechos de aduana, adicionados
con el valor de este gravamen." The Panel notes that Article 459 simply refers the determination of
365
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the relevant base gravable to the legislation establishing the customs value of imported goods, and
does not address the use of indicative prices. This provision provides that the taxable base or base
gravable for the purposes of collecting sales tax on imported goods will be the same as the one used
for levying customs duties, which is to say, the customs value. The Panel considers that its finding
that the use of indicative prices as the customs value is a prohibited method under the Customs
Valuation Agreement has a direct impact on the present claim. Indeed, if Colombia is not allowed to
use indicative prices in order to determine the customs value of imported goods, it will also not be
permitted to use indicative prices as the basis for taxing imported goods. As noted, Article 459 of
Decree 624 establishes that the basis to calculate sales tax will be the same as the customs value.
Consequently, in the Panel's view, the exclusion of indicative prices as a customs valuation method
will automatically result in the elimination of indicative prices as a valid means to determine the base
gravable for calculating sales tax.
7.169 Hence, the Panel concludes that its findings pertaining to the WTO-inconsistency "as such" of
the legal provisions imposing the use of indicative prices provide a positive solution to the dispute.
Accordingly, the Panel concludes that it is not required to continue its analysis and make specific
findings on the consistency "as such" of Articles 128.5 e) of Decree No. 2685 and 172.7 of
Resolution No. 4240 as well as the relevant resolution imposing indicative prices with Article III:2 of
the GATT 1994.
7.170 The Panel recalls that its findings in relation to Articles 1 through 7 of the Customs Valuation
Agreement provide a positive solution to the dispute. However, notwithstanding this decision,
assuming arguendo the permissibility of the use of indicative prices, the Panel will examine whether
the fact that importers are obliged to pay the sales tax on the basis of the relevant indicative price,
whenever the indicative price is higher than the declared transaction value, results in taxation of
imported subject imports in excess of that levied on domestically like products, contrary to
Article III:2, first sentence, as claimed by Panama.
7.171 The Panel recalls that Panama has made both an "as such" and "as applied" challenge under
Article III:2. Consistent with the approach taken with respect to Panama's claims under the Customs
Valuation Agreement, the Panel considers it appropriate to first consider Panama's claim "as such"
under Article III:2, first sentence, and will defer its consideration of the admissibility of Panama's "as
applied" claim until after having concluded its arguendo assessment of Panama's "as such" claim.
(c) The interaction of Articles 447, 453, 459 and 468 of Decree 624 in connection with
Article 128.5 e) of Decree No. 2685 and Article 172.7 of Resolution No. 4240
7.172 As noted by the panel in Dominican Republic – Import and Sales of Cigarettes, in an
ad valorem system, the tax payable at any given time is a function of the tax rate and the tax base.
The Panel notes that Panama's claim does not relate to the sales tax rate imposed on imported goods.
Instead, Panama claims that the use of indicative prices as the basis to determine the value of
imported textiles and other products for the purpose of levying sales tax, results in taxation in excess
of that imposed on like domestic products.
7.173 The Panel recalls from Section VII.B.2(d)(ii) above that the payment by the importer of
customs duties and sales tax on the basis of the indicative price at issue constitutes a payment stricto
sensu rather than a guarantee in the form of a cash deposit. Therefore, whenever the indicative price
is higher than the declared value, the indicative price is used to determine the customs value of subject
imports.
7.174 Bearing this in mind, the Panel understands that, pursuant to Article 459 of Colombia's Tax
Statute, the taxable base for imports subject to indicative prices is the addition of (i) the value listed
on the import declaration (which itself is based on the applicable indicative price, or the transaction
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value if higher366); and (ii) the amount of customs duties (which is the applicable duty rate multiplied
by the listed value).367 In contrast, the taxable base for the relevant like domestic products as
prescribed under Article 447 of Decree 624, is the value established based on the transaction value
("valor de operación") or, in exceptional circumstances, on the market price.368 In accordance with
Article 468 of Decree 624, a sales tax rate of 16 per cent is applied to both imported goods and like
domestic products.
7.175 Therefore, whenever the value listed on the import declaration is the indicative price, the
method used to determine the taxable base in order to calculate the sales tax applicable to imported
products will differ from the method used to establish the taxable base for domestic like products.369
The Panel understands that the use of a different methodology to calculate sales tax on imports will
result in a higher taxable base for imported subject goods than the taxable base determined for like
domestic products whenever three conditions are met: (i) the value declared by the importer is less
than the corresponding indicative price; (ii) the selling price of the like domestic product is also less
than the corresponding indicative price; and (iii) the transaction price of the like domestic product is
higher than the "market price". In these cases, the importer is required to correct the declared price so
as to adjust it to the higher indicative price, and the importer will have to pay the tax on that basis. In
contrast, the seller of a domestic like product will be taxed on the basis of its selling price. This latter
price will, under these circumstances, be lower than the indicative price and, consequently, lower than
the importer's corrected price.
(d) The obligations in Article III:2, first sentence
7.176 Article III:2 embodies one of the basic principles of the GATT 1994, the National Treatment
principle. In the words of the Appellate Body, "the broad and fundamental purpose of Article III is to
avoid protectionism in the application of internal tax and regulatory measures".370
7.177 Article III:2, first sentence reads as follows:
"The products of the territory of any contracting party imported into the territory of
any other contracting party shall not be subject, directly or indirectly, to internal taxes
or other internal charges of any kind in excess of those applied, directly or indirectly,
to like domestic products."
366
The Panel recalls that, upon presentation of the import declaration for goods subject to indicative
prices, if the declared f.o.b. value is lower than the indicative price, release of the goods will not be authorized
unless the importer corrects the value on the declaration on the basis of the indicative price and pays customs
duties and sales tax on this basis. See Article 128.5 e) of Decree No. 2685 of 1999 (Exhibit COL-1) and
Article 172.7 of Resolution No. 4240 of 2000 (Exhibit COL-2).
367
Colombia confirmed the method for calculating the taxable base for imports subject to indicative
prices in its response to question No. 41 by the Panel. In its response, Colombia urged the Panel to limit its
finding to the aspects referred to by Panama. In particular, Colombia argues that Panama's claim is focused
exclusively on the fact that indicative prices are allegedly used as the basis for determining customs value,
which is a component of the taxable base used to determine the amount of internal sales tax. Thus, Colombia
considers that Panama's claim does not concern the aspect of adding the amount of the customs duty to the
customs value of the product. Panama has not rebutted Colombia's statement.
368
See Exhibit COL–3. In accordance with Article 453 of Decree 624, in cases in which there is no
invoice or equivalent document, or the invoice or equivalent document shows a price lower than the market
price, the taxable base shall be determined on the basis of the market price, unless proven otherwise.
369
The Panel additionally notes that the taxable base used to calculate sales tax applicable to imported
products will differ from the taxable base for domestic like products in all cases due to the fact that the taxable
base for imported products includes the amount of customs duties assessed upon entry of the goods. However,
as Panama has not claimed a violation based on the inclusion of the amount of customs duties, the Panel
declines to consider this issue.
370
Appellate Body Report, Japan – Alcoholic Beverages II, p. 16.
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7.178 The Appellate Body in Canada – Periodicals clarified that two elements must be satisfied in
order to establish a violation of the first sentence of Article III:2: a panel must establish that
(i) imported and domestic products are like products; and (ii) imported products are subject to internal
taxes or charges in excess of taxes assessed on domestic products.371 In the case at hand, Panama, as
the complainant, must demonstrate that both tests have been met.372
7.179 Assuming arguendo the permissibility of the use of indicative prices, the Panel will consider
whether Panama has presented sufficient evidence to demonstrate that imported goods subject to
indicative prices are alike to domestic Colombian products. Only if subject imports and domestic
products are like products would it be appropriate to consider under the second test whether the sales
tax for imported subject goods is in excess of the sales tax imposed on like domestic products.
(e) Whether subject imports and domestic products are like products
7.180 The Panel notes that Panama has not identified individual cases of alleged like products or
argued on the basis of the recognized likeness criteria.373 According to Panama, all imported goods
have potential "like" products. As mentioned above, Colombia has not disputed Panama's
contentions. Accordingly, no controversy appears to exist as to whether Panama has discharged its
burden of proof in this respect.
7.181 Notwithstanding the absence of disagreement between the parties, a panel is still bound by
Article 11 of the DSU to make an "objective assessment of the facts of the case and the applicability
of and conformity with the relevant covered agreements, and make such other findings as will assist
the DSB in making the recommendations or in giving the rulings provided for in the covered
agreements". Therefore, the Panel considers it necessary to examine whether subject imports and
domestic products are like products.
7.182 In the Panel's view, where a WTO Member imposes an origin-based distinction with respect
to internal taxes, imported and domestic products may be considered as like products, and a case-by-
case determination of "likeness" between the foreign and domestic would be unnecessary. The Panel
recalls that both the Appellate Body and panels have previously recognized the possibility of the
existence of hypothetical like products, and thus, considered that a likeness analysis would not be
required, in cases similar to the one before this Panel.374 The Panel considers particularly relevant to
the present case the following finding of the panel in Indonesia – Autos:
"Under the Indonesian car programmes the distinction between the products for tax
purposes is based on such factors as the nationality of the producer or the origin of
the parts and components contained in the product. Appropriate hypotheticals are
therefore easily constructed. An imported motor vehicle alike in all aspects relevant
to a likeness determination would be taxed at higher rate simply because of its origin
or lack of sufficient local content ... In our view, such an origin-based distinction in
respect of internal taxes suffices in itself to violate Article III:2, without the need to
371
Appellate Body Report, Canada – Periodicals, p. 20. See also Appellate Body Report, Japan –
Alcoholic Beverages II, pp. 18-19.
372
Panel Report, Japan – Alcoholic Beverages II, para. 6.14. In a finding subsequently not reviewed
by the Appellate Body, the Panel stated that "complainants have the burden of proof to show first that products
are like and second, that foreign products are taxed in excess of domestic ones".
373
In Canada – Periodicals, the Appellate Body found that "the proper [likeness] test is that a
determination of 'like products' for the purposes of Article III:2, first sentence, must be construed narrowly, on a
case-by-case basis, by examining relevant factors including: (i) the product's end-uses in a given market; (ii)
consumers' tastes and habits, and (iii) the product's properties, nature and quality." Appellate Body Report,
Canada – Periodicals, pp. 21-22.
374
Appellate Body Report, Canada – Periodicals, pp. 20-21. See also Panel Report, Indonesia –
Autos, para. 14.113.
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demonstrate the existence of actually traded like products. This is directly in accord
with the broad purposes of Article III:2, as outlined by the Appellate Body ... ".375
7.183 This view was further confirmed by the panel in Argentina – Hides and Leather.376 In this
latter dispute, the panel explained that the "quantum and nature of the evidence" required for a finding
under Article III:2, first sentence, would depend on the "structure and design" of the measure at issue.
Since the level of tax in that case was not determined on the basis of the physical characteristics or
end-uses of the goods at issue, the Panel concluded that a comparison of specific products was not
required and, therefore, it did not see fit to examine the various criteria relevant to determine the
likeness between the imported and domestic products.377
7.184 In the Panel's view, it is also not necessary to determine through a lengthy analysis whether
imported goods subject to the indicative prices in this dispute are in fact like products to domestically
produced Colombian goods. Based on the design and structure of Article 128.5 e) of
Decree No. 2685, which authorizes the use of indicative prices, any imported good that arrives from
Panama and is subject to indicative prices could potentially have a corresponding like domestically
produced counterpart. Indeed, the distinction between products, which determines whether or not
customs duties and sales tax are assessed, is not based on the physical characteristics or end-uses of
products per se, but rather, the distinction is made based on the fact that imports arrive from Panama.
7.185 Therefore, assuming arguendo the permissibility of the use of indicative prices, the Panel
considers that the first test of Article III:2, first sentence is met on the basis of the existence of
potential "like products" produced in Colombia.
(f) Whether subject imports are taxed in excess
7.186 Again assuming arguendo the permissibility of the use of indicative prices, the Panel will
next consider whether, under the second test, imported subject goods are taxed in excess of domestic
like products.
7.187 Under Article III:2, the imposition of internal taxes or charges in excess of taxes assessed on
domestic products has typically resulted from Members' imposition of different tax rates on domestic
and imported products. In this case, however, Panama is claiming that taxation in excess results from
the use of a different tax base for imported products than that used for domestic goods, which leads to
the imposition of higher sales tax on imported goods.
7.188 In Argentina – Hides and Leather, the panel evaluated the actual tax burdens at issue as
opposed to nominal tax burdens:
"Article III:2, first sentence, requires a comparison of actual tax burdens rather than
merely of nominal tax burdens. Were it otherwise, Members could easily evade its
disciplines. Thus, even where imported and like domestic products are subject to
identical tax rates, the actual tax burden can still be heavier on imported products.
This could be the case, for instance, where different methods of computing tax bases
lead to a greater actual tax burden for imported products."378
7.189 The panel in that dispute further considered that the measure at issue imposed an "actual tax
burden", despite the fact that the amounts disbursed by importers as "prepayments" in excess of
375
Panel Report, Indonesia – Autos, para. 14.113.
376
Panel Report, Argentina – Hides and Leather, paras. 11.168-11.170.
377
378
Panel Report, Argentina – Hides and Leather, paras. 11.182-11.184. See also GATT Panel Japan –
Alcoholic Beverages I, para. 5.8.
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amounts paid by domestic sellers were treated as credits against definitive tax liability (and,
consequently, the additional payments did not give rise to "net tax payment" in excess). According to
the panel, the actual tax burden at issue arose from the fact that taxable entities were required to
commit disposable working capital to finance the required prepayments and, therefore, were forced to
forego interest on that working capital in the interval between the tax prepayment and its crediting. In
situations where taxable entities did not have access to disposable working capital to finance
prepayments, the "burden" would result from the fact that taxable entities would need to raise
additional capital in the interval between tax prepayment and the ultimate determination of a tax
credit, and pay interest on additional capital during that interval.379
7.190 Similarly, the panel in Dominican Republic – Import and Sales of Cigarettes found that the
Dominican Republic Tax Code created a distinction in the treatment between domestic and imported
cigarettes as a result of the application of different methods to calculate the taxable base.380 In that
dispute, the panel considered whether the levy of different tax rates on imported and domestic
cigarettes of identical retail prices on the basis of on average retail selling prices, was inconsistent
with Article III of the GATT 1994. The taxable base for domestic products was determined on the
basis of average-price surveys conducted by the Central Bank of the Dominican Republic, whereas,
the tax base for imported cigarettes was calculated based on the retail price of the "nearest similar
product on the domestic market". The complainant alleged that the determination of the taxable base
based on different criteria resulted in a higher rate assessed on certain imported cigarettes than on like
domestic products sold at the same retail price.381 The panel, however, found that the determination
of the taxable base based on the retail price used for the nearest similar product "did not lead per se to
imported cigarettes being subject to internal taxes in excess of those applied to like domestic
cigarettes". Therefore, the panel analysed whether discrimination occurred "in practice".382
7.191 The Panel agrees with the view expressed in Dominican Republic – Import and Sale of
Cigarettes that, in principle, there is no reason to presume that the determination of the taxable base
under a methodology dependent on the "nearest similar product" would lead to taxation of imports in
excess of that applied to domestic products. Indeed, in the light of the facts of that case, it was
reasonable to assume that, as long as Dominican customs officers made an accurate determination on
the "similarity" of the imported and the domestic products, an imported product would not be taxed in
excess. In addition, the panel in that case noted that the rules contained in the Dominican Republic
Tax Code would presumably be interpreted in the light of the implementing legislation.
Implementing legislation set out a different methodology, which did not distinguish between imported
and domestic goods. 383
7.192 The Panel further concurs with the view set forth in Dominican Republic – Import and Sale of
Cigarettes that a panel should look at whether in practice authorities tax imported goods on the basis
of a taxable base that is calculated as higher than the one applied to domestic products.384
379
380
Panel Report, Dominican Republic – Import and Sale of Cigarettes, paras. 7.351 and 7.354-7.358.
381
Panel Report, Dominican Republic – Import and Sale of Cigarettes, paras. 7.317-7.319.
382
Panel Report, Dominican Republic – Import and Sale of Cigarettes, paras. 7.351 and 7.354-7.358.
383
Panel Report, Dominican Republic – Import and Sale of Cigarettes, para. 7.352. The Dominican
Republic had declared that the method actually applied was one contained in this implementing legislation.
384
In Dominican Republic – Import and Sales of Cigarettes, the Panel based its findings of violation
under Article III:2 on the specific application by Dominican customs officials, rather than on the design of the
methodology itself. As established in that case, Dominican tax authorities determined that Marlboro cigarettes
were the nearest similar product to imported Viceroy cigarettes, for the 2003 year. Thus, although Viceroy
cigarettes had the same average selling price as the domestic-brand Lider cigarettes, Viceroy cigarettes were
taxed based on the higher average retail price of Marlboro brand.. See Panel Report, Dominican Republic –
Import and Sale of Cigarettes, paras. 7.354-7.358.
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7.193 Nevertheless, the Panel considers that the facts of the case at hand, in spite of their apparent
similarity, are actually quite different from those in Dominican Republic – Import and Sale of
Cigarettes. Whether imported goods under HS Chapters 50-64 will be subject to a sales tax in excess
of that applied to like domestic products will not depend on the specific determination by tax officials
of the likeness of the domestic and the imported goods, as was the case of Dominican Republic –
Import and Sales of Cigarettes. Instead, in each and every case in which the value declared by the
importer is lower than the corresponding indicative price and the transaction price of the like domestic
product is both lower than the indicative price and higher than the "market price", Colombian tax
officers are required by Article 459 (in connection with Article 128.5 e) of Decree No. 2685 and
Article 172.7 of Resolution No. 4240) to collect sales tax on the basis of a taxable base that will be
necessarily higher than the one that would have been used had the product been a domestic like
product. Thus, unlike the case of the tax measure in Dominican Republic – Import and Sale of
Cigarettes, in the present case the application of a taxable base for imported goods higher than the one
used for domestic like products is inherent in the design and structure of the legislation that authorizes
the application of indicative prices.
7.194 Therefore, the Panel is not persuaded by Colombia's argument that Panama should have
provided specific evidence of how the difference in the taxable base operates in practice.
7.195 The Panel recalls that in Japan – Alcoholic Beverages II, the Appellate Body clarified "[e]ven
the smallest amount of 'excess' is too much". The Appellate Body further found that "[t]he
prohibition of discriminatory taxes in Article III:2, first sentence, is not conditional on a 'trade effects
test' nor is it qualified by a de minimis standard.'"385 Accordingly, the Panel concludes that Colombia
taxes imported products in excess of the like domestic products each time that the factual conditions
set out in paragraph 7.175 above are met, regardless of the amount of the difference between the
declared and indicative prices.
7.196 In the Panel's view, such a conclusion is not affected by the fact that the importer may obtain
a reimbursement of the taxes paid in excess during the so-called post-importation process. First, as
noted above386, Colombia has failed to substantiate its contention that this post-importation control
process takes place automatically and for each and every instance where the importer is required to
correct the declared value and pay customs duties and sales tax based on indicative prices. Second,
even if that were the case, Colombia's taxation system would still impose a greater tax burden on
imported goods than the one imposed on domestic like products. This higher tax burden results from
the additional financial cost that the importer must incur in the interval between the collection of sales
tax based on the indicative price and the reimbursement of the taxes paid in excess during the post-
importation control.387 As established above388, post-importation reimbursement may take more than
two years.
7.197 Additionally, the Panel would like to address Panama's contention that exceptional situations
where the indicative price is the same as or less than the transaction value are not relevant to the
determination under Article III:2. In instances where the transaction value is higher than the
indicative price, there is no difference in the taxable base arising from the use of indicative prices, as
the transaction value serves as the basis to calculate sales tax applicable to the import. Panama
submits that the "exposure of a particular imported product to a risk of discrimination"389 in itself
385
Appellate Body Report, Japan – Alcoholic Beverages II, p. 23. This finding was followed by the
Panel in Argentina – Hides and Leather, para. 11.243.
386
See para. 7.126.
387
As noted in paragraph 7.189 above, the Panel on Argentina – Hides and Leather found that a tax
burden may arise based on additional working capital committed to pay higher taxes (including interest
payable), as well as interest that is forgone on any additional working capital. See Panel Report, Argentina –
Hides and Leather, paras. 11.187-11.188.
388
See para. 7.125.
389
Panama refers to the GATT Panel Report on EEC – Oilseeds I.
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constitutes a form of discrimination and is enough to trigger a violation of Article III:2.390 In

examining whether a purchase regulation which does not necessarily discriminate against imported
products but is capable of doing so was inconsistent with Article III:4, the GATT panel on EEC –
Oilseeds I concluded that the "exposure of a particular imported product to a risk of discrimination"
already constitutes a form of discrimination.391 The Panel agrees with this interpretation and
considers it applicable to the case of the specific type of discrimination envisaged in Article III:2, i.e.
discrimination that results from taxation on imported goods in excess of the like domestic products.
Accordingly, the Panel considers particular situations where the indicative price is the same as the
transaction value irrelevant to its determination under Article III:2.
7.198 As a final matter, the Panel notes Colombia's argument that Panama failed to "explain the
alleged negative impact on competitive opportunities of any difference that exists in the determination
of the taxable base".392 The Panel does not find support for this position within WTO jurisprudence.
In Japan - Alcoholic Beverages II, the Appellate Body explained that consideration of trade effects is
irrelevant for the purpose of determinations under Article III, stating:
"[I]t is irrelevant that 'the trade effects' of the tax differential between imported and
domestic products, as reflected in the volumes of imports, are insignificant or even
non-existent; Article III protects expectations not of any particular trade volume but
rather of the equal competitive relationship between imported and domestic
products"393
7.199 Moreover, the Appellate Body ruled in Canada – Periodicals that: "[i]t is a well-established
principle that the trade effects of a difference in tax treatment between imported and domestic
products do not have to be demonstrated for a measure to be found to be inconsistent with
Article III".394
7.200 Therefore, having assumed arguendo the permissibility of the use of indicative prices, the
Panel is satisfied that the second test in Article III:2, first sentence has also been met.
(g) Conclusion
7.201 As discussed in Section VII.C.2(b) above, the Panel does not consider it necessary to make
findings under Article III:2, first sentence. However, assuming arguendo the permissibility of the use
of indicative prices, the Panel considered whether Article 128.5 e) of Decree No. 2685 and
Article 172.7 of Resolution No. 4240, as well as the various resolutions establishing indicative prices,
by mandating the use of indicative prices to determine the taxable base for textile, apparel and
footwear imports arriving from Panama, would be "as such" inconsistent with Article III:2, first
sentence since imported subject goods are taxed in excess of domestic like products.
7.202 In light of the above, the Panel declines to examine Panama's "as applied" claims under this
same provision.
390
391
GATT Panel Report, EEC – Oilseeds I, para. 141.
392
393
Appellate Body Report, Japan – Alcoholic Beverages II, p. 16. This statement was endorsed in
Korea – Alcoholic Beverages. Appellate Body Report, Korea – Alcoholic Beverages, para. 119. See also Panel
Report, Indonesia – Autos, para. 14.108.
394
Appellate Body Report, Canada – Periodicals, p. 18.
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D. WHETHER COLOMBIA'S USE OF INDICATIVE PRICES TO DETERMINE THE VALUE OF IMPORTED

TEXTILES, FOOTWEAR AND OTHER PRODUCTS FOR THE PURPOSE OF LEVYING SALES TAX IS
INCONSISTENT WITH ARTICLE III:4 OF THE GATT 1994
1. Arguments of the parties
7.203 In the alternative to its claim under Article III:2 of the GATT 1994, Panama argues that the
use of indicative prices as the basis to determine the value of imported textiles, footwear and other
products for the purpose of levying sales tax is inconsistent with Article III:4 of GATT 1994, as this
methodology is based on laws and regulations affecting the sale, offering for sale, use and purchase of
imported products. Notwithstanding the fact that it did not address its claim under Article III:4 in its
first written submission, Panama submits that its claim is valid.395
7.204 Panama submits that in order to establish a violation of Article III:4, the Panel must satisfy
itself that; the imported and domestic products at issue are like products; that the measure at issue is a
law, regulation or requirement affecting their internal sale, offering for sale, purchase ,transportation,
or use; and that the imported products are accorded "less favourable" treatment than that accorded to
like domestic products. Panama submits that Colombia has conceded that the indicative price
measures apply to imported products that are like domestic products.396 Additionally, by increasing
the tax base for imported products only, Panama argues that Colombia provides imported products
treatment less favourable than that accorded to like domestic products and thus, the difference in the
tax bases is inconsistent with Article III:4 of the GATT 1994.
7.205 Colombia responds that Panama has failed to present a claim under Article III.4 in a
sufficiently clear manner, and that the claim should be rejected by the Panel.397 In this respect,
Colombia argues that "merely dropping a footnote" in the first submission is not enough to discharge
its burden of proof of establishing a prima facie case of violation of the provision at hand as it does
not develop any legal or factual arguments.398
7.206 Colombia submits that, in any event, Panama erroneously asserts that only domestic products,
and not imported products subject to indicative prices, can demonstrate that the declared value
corresponds with the transaction value. Colombia submits that importers have the same opportunities
as domestic producers since it does not conduct customs valuation on the basis of indicative prices.399
7.207 Colombia submits that Panama's "less favourable treatment" claim is poorly developed as is
does not link the particular facts to the alleged protective discrimination. Colombia argues that
Panama ignores the fact that customs authorities may have reason to doubt the declared invoiced
value is the taxable base and would thus use an alternative value for both domestic and imported
products alike. Colombia asserts that there is no discrimination between domestic and imported
products, as the starting point for both imported and domestic products is the declared transaction
price.400
7.208 As discussed in Section VII.C.2(b) above, the Panel considered it unnecessary to examine
Panama's claim under Article III:2, first sentence, in light of its finding that indicative prices are a
prohibited method of customs valuation. Notwithstanding the decision not to make findings under
395
396
397
398
Colombia's second written submission, para. 98; Colombia's first written submission, para. 146.
399
400
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Article III:2, first sentence, the Panel examined Panama's claim assuming arguendo the permissibility
of the use of indicative prices, and concluded that the use of indicative prices to determine the taxable
base for textile, apparel and footwear imports arriving from Panama would be inconsistent as such
with Article III:2, first sentence. Since Panama's claim under Article III:4 is an alternative claim to
that under Article III:2, first sentence, the Panel does not consider it necessary to examine this claim
further, and thus declines to make a finding under Art III:4 of the GATT 1994.
E. WHETHER THE RESTRICTION ON PORTS OF ENTRY APPLICABLE TO TEXTILE, APPAREL AND

FOOTWEAR ARRIVING FROM PANAMA IS INCONSISTENT WITH ARTICLE XI:1 OF THE
GATT 1994
7.209 Panama claims that the requirement in the ports of entry measure to import certain textiles,
apparel and footwear arriving from Panama exclusively at ports in Bogota and Barranquilla is a
prohibited restriction within the meaning of Article XI:1 of the GATT 1994. Panama submits that the
ports of entry measure modifies competitive opportunities by increasing overall delivery costs for
transportation for goods destined for markets other than those near Bogota and Barranquilla, and thus
constitutes a restriction on importation in violation of Article XI:1.401
7.210 According to Panama, Article XI:1 covers a broad category of "other measures", and not just
measures such as quotas and export or import restrictions that limit competitive opportunities for
imported products.402 Panama notes that the ordinary meaning of the term "restriction" is "[a] thing
which restricts someone or something, a limitation on action, a limiting condition or regulation".403 In
light of the ordinary meaning of the term "restriction", Panama argues that a restriction arises within
the meaning of Article XI:1 where imports are technically allowed into the market without express
quantitative restrictions, but are only allowed under conditions which are "limiting".404 Panama
submits that references to "quantitative restrictions" in certain portions of Article XI but not the rest of
the Article support a broad interpretation, as the references are intentional and demonstrate that
negotiators intended any reference to quantitative restriction would apply only when "quantity" was
specifically mentioned.405 In Panama's view, an interpretation that Article XI:1 applies only to
measures which expressly set limits on quantity or value would undermine the scope of Article XI:1
and would allow circumvention of tariff concessions by permitting the introduction of restrictions that
are not quantitative in nature, but are nevertheless restrictions.406
7.211 As an evidentiary matter, Panama considers its challenge against the ports of entry restriction
is based on the structure, architecture and design of the measure itself. As such, Panama argues it has
not alleged a de facto restriction on importation, and therefore is not required to demonstrate a causal
link between the ports of entry measure and a low level of imports.407 Furthermore, as a practical
matter, Panama submits that it is not possible to determine that a decline in imports resulted from the
ports of entry measure in isolation from other factors.408 Nevertheless, if the Panel were to consider
that Panama has made a de facto challenge, Panama argues that evidence reveals an actual decline in
the volume of textile imports from Panama at the time the ports of entry measure came into force.409
Specifically, Panama submits that textile quantities imported from Panama declined in March 2005
401
Panama's first written submission, para. 160; Panama's second oral statement, para. 33.
402
Panama's second oral statement, paras. 18 - 22.
403
Panama's second oral statement, para. 19, citing The New Oxford English Dictionary, Vol. 2,
p. 2569.
404
405
406
407
408
409
Panama's second oral statement, para. 34, citing to Exhibit COL-42, chart 3.
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when a measure similar to the ports of entry measure was in place, and imports declined again in
March 2008 when the ports of entry measure at issue was imposed.
7.212 Colombia requests the Panel to reject Panama's interpretation of Article XI:1. According to
Colombia, the text throughout Article XI, including its title establishes that Article XI:1 applies
exclusively to limitations placed on the quantity or value of imports or exports, either as an absolute
prohibition or a partial limitation.410 Thus, Members may impose certain justified conditions on
access to their markets as long as the fundamental thrust and effect to these measures is not to limit
the amount of imports in terms of volume or value.411 The term "other measures" is included in the
text to ensure that the goal of Article XI applies to measures that set limitations on quantity or value,
other than strictly quotas or export/import licences.412 Colombia submits that Panama's interpretation
of Article XI is overly broad as it implies that any government regulation relating to importation be
considered a prohibited quantitative import restriction. Colombia considers Panama's interpretation
would convert Article XI into a general elimination of all "conditions", since any regulation related to
importation necessarily imposes some conditions which make importation more burdensome to a
certain extent.413
7.213 Colombia argues that a narrow interpretation of the term "restriction" in Article XI is further
confirmed from the context provided by Articles XII and XIII of the GATT 1994 and the TRIMs
Agreement. In particular, Colombia considers the reference to restrictions on the "quantity or value of
merchandise permitted to be imported" under Article XII:1 and to "Quantitative Restrictions" in the
title of Article XIII confirm that some limitation on quantity or value must arise.414 In support of its
interpretation of Article XI:1, Colombia also refers to language in Paragraph 2 of the Illustrative List
of the Annex of the TRIMs Agreement which describes those TRIMs that are inconsistent with
Article XI:1, notably measures which "restrict ... importation ... generally or to an amount related to
the volume or value of local production that it exports".415
7.214 Colombia additionally considers that Article XI, by prohibiting Members from imposing any
numerical limitation on imports, is compatible with the goal inherent in the GATT 1994 of liberalizing
trade and securing an open and predictable trading system. Moreover, Colombia considers its view
complements the obligations presented in Articles II and III of the GATT 1994.416 According to
Colombia, historical international trade agreements which preceded the advent of the GATT 1947 also
distinguished between prohibited import or export restrictions and regulations related to the form or
place of importation that were not used as a means of disguised protection or arbitrary restriction.417
7.215 In light of its interpretation, Colombia argues that Panama must demonstrate that the ports of
entry measure places limitations on the quantity or value of imports or exports.418 Colombia considers
Panama cannot establish the existence of a de jure violation as the ports of entry measure does not per
se limit the amount of imports in terms of value or volume.419 Colombia argues that, while placing a
condition on importation by directing imports through two specific ports of entry, the ports of entry
measure does not impose any express limitation on the volume or value of imports that are allowed
410
411
412
413
414
415
416
417
Colombia's second oral statement, footnote 27.
418
419
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into Colombia.420 Colombia submits that the measure is instead "quantity-neutral" by design and aims
to ensure effective customs control.421
7.216 Colombia further argues that Panama has failed to meet its burden of proof to establish the
existence of a de facto restriction under Article XI:1422, which requires a complainant to demonstrate a
low level of imports and establish a causal link between the contested measure and the low import
levels.423 Colombia submits that Panama cannot demonstrate a decrease in imports during the ports of
entry measure's imposition, as the value of textile, apparel and footwear imports increased between
2006 and 2007, while shipment in terms of weight declined only slightly during those years.424
Colombia also disputes Panama's argument that shipping costs provided in a single quotation reveal
that importers incur higher transportation costs under the ports of entry measure, and that these higher
shipping costs negatively affect trade levels.425
7.217 While Colombia considers the available trade statistics demonstrate the absence of adverse
trade effects, and thus the absence of any restriction426, Colombia nevertheless offers other
explanations as to why the ports of entry measure has not contributed to a decline in imports. In this
regard, Colombia disputes Panama's argument that the ports of entry measure has hindered traders'
competitive opportunities or negatively affected textile, apparel or footwear import volumes.
Primarily, Colombia notes that the ports of entry measure allows entry of textile, apparel and footwear
at the two ports that are closest in proximity to the CFZ and main markets of Colombia – Bogota and
Medellin.427 Colombia also claims that Barranquilla seaport operates 24 hours per day428 and that
Bogota airport has more customs officials than any other office in Colombia.429 Colombia describes
the ports at Bogota and Barranquilla as "among the most modern and important ports of Colombia",
which staff officials specialized in handling contraband concerns related to textiles, apparel and
footwear and offer improved container processing.430 According to Colombia, Bogota and
Barranquilla are ranked as the number one and two ports for footwear, the number one and three ports
for apparel, and the number two and three ports for textiles.431
7.218 For all these reasons, Colombia asks the Panel to reject Panama's claim under Article XI:1 of
the GATT 1994.
(a) Legislation authorizing restrictions on ports of entry
7.219 The parties have referred to legislation authorizing restriction on ports of entry as the ports of
entry measure. Specifically, Article 2 of Resolution No. 7373 of 22 June 2007432, as modified by
420
421
422
423
424
425
426
427
428
429
430
431
Colombia's second written submission, para. 138, Exhibit COL-28.
432
Exhibit PAN-34. Resolution No. 7373 was implemented in accordance with Article 41 of the
Customs Statute (Exhibit COL–1), which permits Colombian customs authorities to restrict access to ports of
entry whenever authorities are not satisfied that they will be able to fully exercise their powers of control and
verification. On this basis, under see Article 39 of Resolution No. 4240 of 2000 (Exhibit PAN–38), for
instance, Colombia has restricted access for all textiles, apparel and footwear classifiable under Chapters 50 64
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Resolution No. 7673 of 28 June 2007433, authorizes Colombian customs officials to restrict entry of
textile, apparel and footwear goods classifiable under Chapters 50-64 of the Colombian Tariff
Schedule434 that arrive from Panama to either the Bogota airport or Barranquilla seaport:
"Las mercancías clasificables por los capítulos 50 al 64 del Arancel de Aduanas,

procedentes de la Republica de Panamá, deberán ser ingresadas e importadas
exclusivamente por la jurisdicción de la Administración Especial de Aduanas de
Bogotá, si se transportan por vía aérea y por la jurisdicción de la Administración
Local de Aduanas de Barranquilla, si se transportan por vía marítima, y por tanto,
no procederá para estas mercancías la autorización del régimen de tránsito
aduanero."435
7.220 The general restriction on ports of entry under Article 2 of Resolution No. 7373 is subject to
several exceptions. Under Article 4 of Resolution No. 7373, restrictions will not apply to the
following categories: goods consigned or endorsed to the State436; goods imported for specific state
or emergency uses, to travellers or postal traffic, or in route to Leticia, San Andrés o Santa Catalina437;
goods submitted for trans-shipment that do not have Colombia as their final destination, and goods
consigned to industrial users of free trade zones438; and goods classifiable under sections 6401 to 6405
of Colombia's Customs schedule that arrive at any of the 11 ports designated in Article 39, paragraph
1 of Resolution No. 4240 of 2000.439 Resolution No. 8603 of 24 July 2007440 establishes an additional
exemption for goods classifiable under sections 6406 of Colombia's Customs schedule, and
Resolution No. 7637 of 28 June 2007441 further exempts goods consigned or endorsed to "Usuarios
Altamente Exportadores" and "Usuarios Aduaneros Permanentes".
7.221 Non-compliance with the obligation to enter and import goods from Panama exclusively at
Bogota airport or Barranquilla seaport will subject the goods to seizure and forfeiture.442
7.222 Resolution No. 7373 was implemented for a period of approximately six months beginning 1
July 2007.443 The period of application of the measure has been extended on two occasions at the
time of this writing 444, and is currently set to expire on 31 December 2008.
7.223 Resolution No. 7373 and its amendments are hereafter in this section referred to as the "ports
of entry measure".
of the Colombian Tariff Schedule from all countries to 11 ports of entry. These ports are: Barranquilla,
Bucaramanga, Buenaventura, Cali, Cartagena, Cúcuta, Ipiales, Leticia, Medellín, San Andrés and Bogota.
433
Exhibit PAN-36.
434
As explained in Section II.C, Panama has clarified that it is challenging the application of the
measure to all textile, apparel and footwear goods which are deemed to fall within the scope of the ports of entry
measure.
435
Exhibit PAN-36.
436
Exhibit PAN-34, Article 4, para. 1.
437
438
439
440
Exhibit COL-35.
441
Exhibit COL-36.
442
Article 5 of Resolution No. 7373 (Exhibit PAN-34)
443
Exhibit COL-34, para. Article 8.
444
Resolution No. 16100 of 27 December 2007; Colombia's response to Panel question No. 122;
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(b) The text of Article XI of the GATT 1947
7.224 The Panel is called upon to examine whether the ports of entry measure as described above is
inconsistent with Article XI:1 of the GATT 1994. Article XI of the GATT 1994 provides as follows:
"General Elimination of Quantitative Restrictions
1. No prohibitions or restrictions other than duties, taxes or other charges,

whether made effective through quotas, import or export licenses or other measures,
shall be instituted or maintained by any contracting party on the importation of any
product of the territory of any other contracting party or on the exportation or sale for
export of any product destined for the territory of any other contracting party."
2. The provisions of paragraph 1 of this Article shall not extend to the

following:
(a) Export prohibitions or restrictions temporarily applied to

prevent or relieve critical shortages of foodstuffs or other
products essential to the exporting contracting party;
(b) Import and export prohibitions or restrictions necessary to the

application of standards or regulations for the classification,
grading or marketing of commodities in international trade;
(c) Import restrictions on any agricultural or fisheries product,

imported in any form445, necessary to the enforcement of
governmental measures which operate:
(i) to restrict the quantities of the like domestic product

permitted to be marketed or produced, or, if there is
no substantial domestic production of the like
product, of a domestic product for which the
imported product can be directly substituted; or
(ii) to remove a temporary surplus of the like domestic

product, or, if there is no substantial domestic
production of the like product, of a domestic product
for which the imported product can be directly
substituted, by making the surplus available to certain
groups of domestic consumers free of charge or at
prices below the current market level; or
(iii) to restrict the quantities permitted to be produced of

any animal product the production of which is
directly dependent, wholly or mainly, on the
imported commodity, if the domestic production of
that commodity is relatively negligible.
Any contracting party applying restrictions on the importation of any

product pursuant to subparagraph (c) of this paragraph shall give
445
The Ad Note to Article XI:2(c) provides as follows: "The term 'in any form' in this paragraph covers
the same products when in an early stage of processing and still perishable, which compete directly with the
fresh product and if freely imported would tend to make the restriction on the fresh product ineffective."
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public notice of the total quantity or value of the product permitted to

be imported during a specified future period and of any change in
such quantity or value. Moreover, any restrictions applied under (i)
above shall not be such as will reduce the total of imports relative to
the total of domestic production, as compared with the proportion
which might reasonably be expected to rule between the two in the
absence of restrictions. In determining this proportion, the
contracting party shall pay due regard to the proportion prevailing
during a previous representative period and to any special factors446
which may have affected or may be affecting the trade in the product
concerned."
7.225 Article XI thus foresees the elimination of import or export restrictions or prohibitions. The
Panel will proceed to examine whether the ports of entry measure is a restriction on importation of the
type prohibited by Article XI of the GATT 1994.
(c) The ports of entry measure as an "other measure"
7.226 As per its text, Article XI:1 covers prohibitions and restrictions "made effective through
quotas, import or export licenses or other measures". The ports of entry measure is clearly not a quota
or an import/export licence. Nevertheless, the ports of entry may fall within the scope of Article XI:1
to the extent that it qualifies as an "other measure". In Japan – Semi-Conductors, the GATT panel
recalled that:
"Article XI:1, unlike other provisions of the General Agreement, did not refer to laws
or regulations but more broadly to measures. This wording indicated clearly that any
measure instituted or maintained by a contracting party which restricted the
exportation or sale for export of products was covered by this provision, irrespective
of the legal status of the measure."447
7.227 WTO panels have also concluded that the language "other measures" in Article XI:1 is meant
to encompass a "broad residual category"448, and that the concept of a restriction on importation
covers any measures that result in "any form of limitation imposed on, or in relation to
importation".449
7.228 In this dispute, the ports of entry measure is a measure instituted and maintained by a WTO
Member that is imposed on importation of textiles, apparel and footwear arriving from Panama. The
Panel therefore preliminarily concludes that the ports of entry measure, while not a quota or import
licence, could fall within the residual category of "other measure" that may be challenged under
Article X1:1.450 The Panel will thus proceed to consider whether the ports of entry measure is a
"restriction" on importation within the meaning of Article XI:1.
446
The Ad Note to Article XI:2 last subparagraph provides as follows: "The term 'special factors'
includes changes in relative productive efficiency as between domestic and foreign producers, or as between
different foreign producers, but not changes artificially brought about by means not permitted under the
Agreement."
447
GATT Panel Report, Japan – Semi-Conductors, para. 106.
448
449
Panel Report, India – Autos, paras. 7.254-7.263 and 7.265; Panel Report, Brazil – Retreaded Tyres,
para. 7.371.
450
The Panel notes that Colombia has not disputed whether the ports of entry measure is a government
measure, nor does it dispute that government measures may properly be challenged under Article XI (see
Colombia's first written submission, para. 230).
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(d) The ports of entry measure as a "restriction on importation"
(i) The concept of a restriction on importation under Article XI:1
7.229 In order to determine whether the ports of entry measure violates Article XI:1, the Panel must
establish whether the measure imposes a "restriction" within the meaning of Article XI:1.
7.230 The Panel recalls Panama's argument that Article XI:1 covers a broad category of measures
that limit competitive opportunities for imported products.451 In essence, based on the ordinary
meaning of "restriction", Panama considers that Article XI broadly covers situations where imports
are technically allowed into the market without express quantitative restrictions, but are only allowed
under conditions which are "limiting".452 This includes circumstances where imports are not limited
absolutely or by a specific amount.453 Despite the various references to "quantitative restrictions" in
certain provisions of Article XI, Panama argues that Article XI:1 should nevertheless be interpreted
broadly. Panama argues that the references are intentional and only serve to demonstrate that
negotiators intended any reference to quantitative restriction would apply only when "quantity" was
specifically mentioned.454 Moreover, Panama submits that an interpretation that Article XI:1 applies
only to measures which expressly set limits on quantity or value would undermine the scope of
Article XI:1 by allowing circumvention of tariff concessions through the introduction of restrictions
that are not quantitative in nature, but are nevertheless restrictions.455
7.231 Colombia argues that Article XI:1 should be interpreted more narrowly. According to
Colombia, Members are only prohibited from imposing measures which limit the amount of imports
that may be entered by quantity or value of imports. Thus, a Member may condition access to its
market as long as the measure by design does not set a limit on the amount or value of imports.456
Colombia considers this view supported by the text and title of Article XI:1 as well as Articles XII
and XIII of the GATT 1994, and Article 2 and the Illustrative List of the TRIMs Agreement. In
particular, Colombia has cited to the inclusion of the term "Quantitative" in the title of Article XI and
in several provisions in Article XI:2. Colombia also notes the reference to restrictions of the "quantity
or value of merchandise permitted to be imported" under Article XII:1 and to "Quantitative
Restrictions" in the title of Article XIII.457 Finally, Colombia notes that Paragraph 2 of the Illustrative
List of the Annex of the TRIMs Agreement describes the type of TRIMs that should be considered
inconsistent with Article XI:1, in particular, among other measures, those which "restrict ...
importation ... generally or to an amount related to the volume or value of local production that it
exports".458 Colombia concludes that each of these references reveals that only measures which limit
imports by value or amount are covered under Article XI:1.
7.232 The Panel will first consider the concept of restriction as it has been interpreted in WTO and
GATT jurisprudence, and subsequently address the parties' views to the extent necessary in reaching
its conclusion as to the meaning of restriction under Article XI:1.
451
Panama's second oral statement, paras. 18 and 33.
452
453
Panama's second oral statement, para. 19; Panama's second written submission, para. 35.
454
455
456
457
Colombia's first written submission, paras. 221-223. The Panel notes that Article XI of the
GATT 1994 is entitled "General Elimination of Quantitative Restrictions". Moreover, several subparagraphs of
Article XI:2 refer to restrictions of permitted quantities of specific types of products. Furthermore, the
concluding paragraph of Article XI:2 refers to the need to "give public notice of the total quantity or value of the
products permitted to be imported".
458
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7.233 WTO panels have interpreted the term "restriction" in Article XI:1 broadly. The panel in
India – Quantitative Restrictions discussed the scope of the notion of "restriction" in terms of its
ordinary meaning:
"[T]he text of Article XI:1 is very broad in scope, providing for a general ban on
import or export restrictions or prohibitions 'other than duties, taxes or other charges'.
As was noted by the panel in Japan – Trade in Semi-conductors, the wording of
Article XI:1 is comprehensive: it applies 'to all measure instituted or maintained by a
[Member] prohibiting or restricting the importation, exportation, or sale for export of
products other than measures that take the form of duties, taxes or other
charges.'[footnote omitted] The scope of the term 'restriction' is also broad, as seen in
its ordinary meaning, which is 'a limitation on action, a limiting condition or
regulation'."459
7.234 The panel in India – Autos subsequently endorsed the view set forth in India – Quantitative
Restrictions that a measure which imposes a "limiting condition" or imposes a "limitation on action"
constitutes a "restriction" within the meaning of Article XI:1:
"The question of whether [the] measure can appropriately be described a restriction

on importation turns on the issue of whether Article XI can be considered to cover
situations where products are technically allowed into the market without an express
formal quantitative restriction, but are only allowed under certain conditions which
make the importation more onerous than if the condition had not existed, thus
generating a disincentive to import.
On a plain reading, it is clear that a 'restriction' need not be a blanket prohibition or a

precise numerical limit. Indeed, the term 'restriction' cannot mean merely
'prohibitions' on importation, since Article XI:1 expressly covers both 'prohibition or
restriction'. Furthermore, the Panel considers that the expression 'limiting condition'
used by the India – Quantitative Restrictions panel to define the term 'restriction' and
which this Panel endorses, is helpful in identifying the scope of the notion in the
context of the facts before it. That phrase suggests the need to identify not merely a
condition placed on importation, but a condition that is limiting, i.e. that has a
limiting effect. In the context of Article XI, that limiting effect must be on
importation itself." 460
7.235 In terms of the ordinary meaning of the term "restriction", the Panel notes that the discussion
in India – Quantitative Restrictions and India – Autos correlates closely with dictionary definition of
the term "restriction", which is "a thing which restricts someone or something, a limitation on action,
a limiting condition or regulation".461 Several subsequent panels have coalesced around this
interpretation of the scope of Article XI:1, citing to the language set forth by these earlier panels while
factoring in the circumstances of each dispute.462
459
Panel Report, India – Quantitative Restrictions, para. 5.128.
460
Panel Report, India – Autos, paras. 7.269-7.270. In that particular dispute, the Panel considered
whether a trade balancing condition which did not set an absolute numerical limit on the amount of imports that
could be made, but limited the value of imports that could be made to the value of exports a particular entity
intended to make, constituted a restriction on importation within the meaning of Article XI:1.
461
The New Oxford English Dictionary, Vol. 2, p. 2569.
462
The Panels in Brazil – Retreaded Tyres and Dominican Republic – Import and Sale of Cigarettes,
for instance, cited, with approval, to key passages from India – Quantitative Restrictions and India – Autos,
which delineated this standard: see Panel Report, Brazil – Retreaded Tyres, para. 7.371; Panel Report,
Dominican Republic – Import and Sale of Cigarettes, paras. 7.252 and 7.258.
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7.236 Panels have also considered the concept of "restriction" in light of factors other than the
ordinary meaning of the term. Notably, panels have also considered whether a measure makes
effective a restriction by evaluating the measure's impact on competitive opportunities available to
imported products. In this respect, the panel in Argentina – Hides and Leather recalled that
"Article XI:1, like Articles I, II and III of the GATT 1994, protects competitive opportunities of
imported products not trade flows".463 Consideration of a measure's effect on competitive
opportunities, instead of effects on trade volumes, was earlier discussed in Japan – Leather, in which
a GATT panel rejected the view that a quota should not be considered as restraining trade or causing
nullification or impairment of benefits accruing under Article XI of the GATT 1947 simply because
the quota had not been fully utilized and thus could not have negatively affected trade volumes. The
panel explained that nullification or impairment arises from prohibited quantitative restrictions, not
only due to effects on trade volumes, but also because importers investment plans would be affected
negatively and transaction costs would increase:
"[T]the existence of a quantitative restriction should be presumed to cause

nullification or impairment not only because of any effect it had had on the volume of
trade but also for other reasons, e.g. it would lead to increased transaction costs and
would create uncertainties which could affect investment plans."464
7.237 More recently, the panel in Brazil – Retreaded Tyres found a violation of Article XI:1 where
fines did not impose a per se restriction on importation, but acted as an absolute disincentive to
importation by penalizing it and making it "prohibitively costly".465 The panel concluded that the
fines of R$400, which exceeded the normal per unit value of a typical retreaded tyres (R$100-280),
were "significant enough" to have a restrictive effect on importation in violation of Article XI:1.466
The fines were applied in addition to, and in support of, an actual prohibition on importation as an
enforcement measure.467
7.238 In addition to considering a measure's impact on transaction costs, when assessing its effect
on competitive opportunities and, as such, its compatibility with Article XI:1, panels have also
463
Panel Report, Argentina – Hides and Leather, para. 11.20. The importance of upholding
competitive opportunities has also been discussed in connection with Article XI:1 prior to the establishment of
the WTO. In EEC – Oilseeds I, the GATT Panel stated that "the CONTRACTING PARTIES have consistently
interpreted the basic provisions of the General Agreement on restrictive trade measures as provisions
establishing conditions of competition. Thus they decided that an import quota constitutes an import restriction
within the meaning of Article XI:1 whether or not it actually impeded imports: see GATT Panel Report, EEC –
Oilseeds I. Additionally, the notion of protecting competitive opportunities has been discussed extensively in
the context of claims under Articles I and III of the GATT: see, for example, Appellate Body Report, Dominican
Republic – Import and Sale of Cigarettes, para. 5.141; Appellate Body Report, Korea – Various Measures on
Beef, paras. 135-137; Appellate Body Report, Korea – Alcoholic Beverages, paras. 119-120, 127; Appellate
Body Report, Japan – Alcoholic Beverages II, p. 16, Panel Report, Turkey – Rice, para. 7.252, Panel Report,
US – FSC (Article 21.5 – EC), para. 8.128, Panel Report, Chile – Alcoholic Beverages, para. 7.158, Panel
Report, Korea – Alcoholic Beverages, para. 10.81, Panel Report, Indonesia – Autos, para. 14.108, Panel
Report, Japan – Film, para. 10.739, Panel Report, EC – Bananas III, para. 7.50; GATT Panel Report US –
Superfund, para. 5.19.
464
GATT Panel Report, Japan – Leather II (US), para. 55. In relation to claims under Article III of the
GATT 1994, panels have also considered increases in transportation costs, or shifts in consumption due to
discriminatory taxes that affected the cost of imported products were important factors affecting competitive
opportunities: see Panel Report, Canada – Wheat Exports and Grain Imports, para. 6.348 (upheld by the
Appellate Body); Panel Report, US – Section 301 Trade Act, paras. 7.83-7.84.
465
Panel Report, Brazil – Retreaded Tyres, para. 7.370.
466
Panel Report, Brazil – Retreaded Tyres, para. 7.372.
467
Colombia considers the linkage of the fines to the import prohibition measure essential to the
finding of a violation, since the fines did not per se limit imports: see Colombia's second written submission,
para. 118. The Panel notes, however, that separate findings were made concerning the import ban, on the one
hand, and the fines, on the other hand.
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considered restrictions on market access. In relation to claims brought under Article XI of the
GATT 1994, the GATT panel in Canada – Provincial Liquor Boards (EEC) concluded that
listing/delisting requirements and limitations on the availability of points of sale468 which
discriminated against imported alcoholic beverages were "restrictions made effective through 'other
measures' contrary to the provisions of Article XI:1."469 In a subsequent Report, a separate GATT
panel examined a number of similar aspects of the measure from this dispute under Article III:4 of the
GATT 1947 and concluded that "by allowing the access of domestic beer to points of sale not
available to imported beer, Canada accorded domestic beer competitive opportunities denied to
imported beer".470
7.239 The notion of protecting market access for imports was also taken into consideration in EEC –
Minimum Import Prices, where a GATT panel found that a minimum import price and security
system for tomato concentrate resulted in a restriction under Article XI:1 even though it did not
impose a per se quantitative limit on the amount of imports.471
7.240 Thus, as evidenced above, a number of GATT and WTO panels have recognized the
applicability of Article XI:1 to measures which create uncertainties and affect investment plans,
restrict market access for imports or make importation prohibitively costly, all of which have
implications on the competitive situation of an importer. Moreover, it appears that findings in each of
these cases were based on the design of the measure and its potential to adversely affect importation,
as opposed to a standalone analysis of the actual impact of the measure on trade flows.
7.241 The Panel agrees with the interpretation of the term restriction taken by previous WTO and
GATT panels as well as their decision to base findings on the design of the measure, as opposed to
resulting trade effects.
468
The importation of alcoholic beverages into Canada, at the time of the dispute, was regulated by the
federal government. Under federal legislation, the Canadian Parliament restricted the importation of alcoholic
beverages into a province except to provincial agencies vested with the right to sell alcoholic beverages. This
restriction applied whether the importation was from a foreign country or from another province. Additionally,
each Canadian province required a license obtained from the designated provincial authority to manufacture or
store and sell beer in the province. No foreign brewer was permitted to sell beer in a province except through the
liquor board. On the basis of the provincial legislation governing the right to sell beer, each province had
developed its own system for the delivery and sale at retail outlets. While circumstances varied from province
to province, generally any supplier of alcoholic beverages, domestic or imported, wishing to sell a product in a
province first needed to obtain a "listing" from the provincial marketing agency. See, e.g., GATT Panel Report,
Canada – Provincial Liquor Boards (EEC), paras. 2.1-2.5.
469
GATT Panel Report, Canada – Provincial Liquor Boards (EEC), paras. 4.24-4.25.
470
GATT Panel Report, Canada – Provincial Liquor Boards (US), para. 5.6.
471
GATT Panel Report, EEC – Minimum Import Prices, para. 4.9. Under the measure at issue,
importers of tomato concentrates were required to provide additional security to guarantee that the free-at-
frontier price of the products to be imported plus the customs duty payable would together be equal to or more
than a determined minimum price or special minimum price, whichever was appropriate. The security would be
forfeit in proportion to any quantities imported at a price lower than the minimum price or special minimum
price. If an importer were able to guaranty that products originating in third countries that the price on import
into the Community would not be less than the minimum price for the product in question, the importer would
not be required to provide additional security (see GATT Panel Report, EEC – Minimum Import Prices,
para. 2.6). In a dissenting opinion, one panelist out of a panel of five in this dispute considered that, while the
minimum price system, operating in tandem with the additional security "could well be applied in a way which
would qualify it as a restriction 'other than duties, taxes or other charges' under Article XI:1", interested
exporters could still import tomato concentrates below the minimum price (see GATT Panel Report, EEC –
Minimum Import Prices, para. 4.9).
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(ii) Colombia's contextual arguments on interpretation of Article XI:1 of the GATT 1994
7.242 Before proceeding, the Panel would like to address arguments by Colombia pertaining to the
relevance of the additional provisions in Article XI:1 and Article XI:2, as well as surrounding Articles
and the TRIMs Agreement in the interpretation of the term "restriction".
7.243 Colombia has argued that the concept of "restriction" in Article XI should be interpreted
narrowly as only concerning restrictions imposing quantity limitations in light of the title of
Article XI:1, and the context provided by other provisions in Article XI:2 and provisions in
surrounding Articles. The Panel does not consider the limited language appearing in the title of
Article XI ("General Elimination of Quantitative Restrictions") as determinative in interpreting the
ensuing specific provisions. In the Panel's view, its approach is consistent with the notion that
Article XI of the GATT 1994 (and the GATT 1947) was intended for the general elimination of
quantitative restrictions. The Panel feels it is appropriate to consider a measure's effect on
competitive opportunities, as negative effects on the competitive landscape for importers of a
particular product in relation to domestic producers or other importers will inevitably pose damaging
consequences for importation. In this sense, the panel in India – Autos stated that "it is clear that a
'restriction' need not be a blanket prohibition or a precise numerical limit."472 More broadly, in the
Panel's view, a measure that has identifiable negative consequences on the importation of a product
will result in a restriction on importation under Article XI:1.
7.244 The appearance of the term "quantitative" in Article XI:2 does not run contrary to the Panel's
interpretation of the term "restriction" within Article XI:1. The Panel first notes that the term
"quantitative restrictions" is not used in any paragraph of Article XI and only appears in the general
title to Article XI. Article XI:1 does not refer to restrictions of quantity. While certain provisions in
Article XI:2 refer to "quantities permitted", such as in subparagraphs 2(c)(i) and 2(c)(iii), as well as in
the concluding paragraph of Article XI:2, the Panel notes that other subparagraphs do not refer to
quantities at all. Indeed, the various subparagraphs of Article XI:2 are each specific and thus limited
in scope, for instance, regulating restrictions temporarily applied to prevent or relieve critical
shortages of food in the case of subparagraph 2(a), or restrictions on agricultural or fisheries products
in the case of subparagraph 2(c). Article XI:1 inherently reads more broadly, applying to
"prohibitions or restrictions other than duties, taxes or other charges". In consideration of the
selective use of the terms "quantities" and "quantitative", the Panel thus declines to attribute that
restriction refers to a limitation on quantity where that term does not appear in the text. By way of
example, although Article XI:2(c)(i) is concerned with restrictions on quantities of agricultural or
fisheries products, Article XI:1 should not be interpreted narrowly as applying exclusively to
agricultural or fisheries products as it is understood to apply more broadly to restrictions on all types
of imports or exports. Similarly, Article XI:1 should not be interpreted as concerning only restrictions
on quantity, as the word "quantity" does not appear in the text of Article XI:1, and in the Panel's view,
applies to a broader array of measures which restrict importation or exportation.
7.245 Colombia has also argued that that a narrow interpretation of the term "restriction" in
Article XI is further confirmed from the context provided by Articles XII and XIII of the GATT 1994.
In particular, Colombia has referred to the language "may restrict the quantity or value of merchandise
permitted to be imported" under Article XII:1 and to "Quantitative Restrictions" appearing in the title
of Article XIII. The Panel is not persuaded by Colombia's arguments. As the Panel earlier noted with
respect to the specific subparagraphs in Article XI:2473, Articles XII and XIII address specific
circumstances and do not apply in all instances in which some form of restriction arises as a result of
domestically imposed legislation. In particular, Article XII is entitled "Restrictions to Safeguard the
Balance of Payments" and its first paragraph expressly states:
472
Panel Report, India – Autos, para. 7.270.
473
See para. 7.243.
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"Notwithstanding the provisions of paragraph 1 of Article XI, any contracting party,

in order to safeguard its external financial position and its balance of payments, may
restrict the quantity or value of merchandise permitted to be imported, subject to the
provisions of the following paragraphs of this Article." [emphasis added]
7.246 As is evident from the text, although Article XII allows Members to restrict the quantity or
value of imports, in contravention of Article XI:1, this provision only permits doing so in
circumstances related to balance-of-payment problems. Due to the limited application of
Article XII:1, this provision does not offer much insight into the scope of Article XI:1.
7.247 Article XIII of the GATT 1994 is entitled "Non-discriminatory Administration of Quantitative
Restrictions". In identical fashion to Article XI:1, the title in Article XIII uses the phrasing
"Quantitative Restrictions"; however, as with Article XI:1 that phrase does not appear in any of the
specific paragraphs of Article XIII. Moreover, the same broad language appearing in Article XI:1
("No prohibition or restriction ...") also appears in Article XIII:1, without reference to "quantities" or
"quantitative". While various provisions in Article XIII refer to the terms "quantity" or "quota",
Article XIII:1 does not. Hence, the Panel declines to make conclusions on the scope of Article XI on
the basis of the language appearing in Article XIII or its title.
7.248 Colombia has lastly referred to Paragraph 2 of the Illustrative List of the Annex of the TRIMs
Agreement as informing the scope of Article XI:1. The TRIMs Agreement states in Article 2 that "no
Member shall apply any TRIM that is inconsistent with the provisions of ... Article XI of
GATT 1994". Paragraph 2 of the Illustrative List of the Annex of the TRIMs Agreement further
provides in part that "TRIMs that are inconsistent with the obligation of general elimination of
quantitative restrictions provided for in paragraph 1 of Article XI of GATT 1994 include those ...
which restrict: ... the importation ... generally or to an amount related to the volume or value of local
production that it exports".474 On a plain reading, the Annex expressly recognizes that Article XI:1
contains an obligation to generally eliminate quantitative restrictions. The Illustrative List then
identifies various type of TRIMs measures that should be considered prohibited import or export
restrictions, i.e. each subparagraph of the Illustrative List refers to restriction based on specified
amounts, such as the types of products used in or related to production; the volume or value of local
production; the volume or value of products, in terms of product type; or to an amount related to
foreign exchange flows. In the Panel's view, Article XI:1 is not restricted to such a finite list of
possible measures. On the contrary, Article XI:1 applies to "prohibitions or restrictions other than
duties, taxes or other charges" and does not include finite categories. Accordingly, the Panel declines
to consider the Illustrative List of the Annex of the TRIMs Agreement in interpreting the scope of
Article XI:1.
474
Paragraph 2 of the Illustrative List of the Annex of the TRIMs Agreement provides in full as follows:
"TRIMs that are inconsistent with the obligation of general elimination of quantitative
restrictions provided for in paragraph 1 of Article XI of GATT 1994 include those which are
mandatory or enforceable under domestic law or under administrative rulings, or compliance
with which is necessary to obtain an advantage, and which restrict:
(a) the importation by an enterprise of products used in or related to its local production,
generally or to an amount related to the volume or value of local production that it exports;
(b) the importation by an enterprise of products used in or related to its local production
by restricting its access to foreign exchange to an amount related to the foreign exchange
inflows attributable to the enterprise; or
(c) the exportation or sale for export by an enterprise of products, whether specified in terms of
particular products, in terms of volume or value of products, or in terms of a proportion of volume or value of its
local production."
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(iii) De jure versus de facto restrictions on importation
7.249 The Panel would also like to address Colombia's argument that Panama must establish the
existence of a de facto restriction within the meaning of Article XI:1, since the ports of entry measure
does not per se limit the volume or value of imports. Thus, Colombia considers that Panama must
establish the existence of a de facto restriction in order to prove a violation of Article XI:1. Colombia
argues that Panama carries the burden of proof to demonstrate a lower level of imports and prove the
existence of a causal link between this lower level and the ports of entry measure. Colombia contends
that the evidence before the Panel does not demonstrate a low level of imports nor any link between
the measure and an alleged decline in imports. Rather, Colombia claims that evidence presented by
Panama reflects an increase in the value of textile, apparel and footwear imports between 2006 and
2007 when the current ports of entry measure was in effect.475
7.250 As noted above, Panama submits that it is challenging the ports of entry measures on the basis
of its design, structure and underlying architecture. Panama thus asserts that is not claiming the
existence of a de facto restriction. Although Panama considers it is not making a de facto challenge,
in response to Colombia's allegation that Panama's challenge is necessarily a de facto one, Panama
cites to data provided by Colombia indicating a decline in the weight of textile imports shipped from
Panama during the time the ports of entry measure was in force.476
7.251 The Panel notes that Colombia's argument is primarily based on statements made in
Argentina – Hides and Leather. In that case, the panel had to determine, inter alia, whether the
presence of representatives of the domestic hide tanning industry in the Argentine customs inspection
procedures for hides destined for export was a de facto export restriction. In particular, the panel
discussed the evidentiary weight that should be attached to actual trade effect of the measure and the
need to establish a causal link between the measure and a limitation on exports:
"Finally, as to whether Resolution No. 2235 makes effective a restriction, it should be

recalled that Article XI:1, like Articles I, II and III of the GATT 1994, protects
competitive opportunities of imported products not trade flows. In order to establish
that Resolution No. 2235 infringes Article XI:1, the European Communities need not
prove actual trade effects. However, it must be borne in mind that
Resolution No. 2235 is alleged by the European Communities to make effective a de
facto rather than a de jure restriction. In such circumstances, it is inevitable, as an
evidentiary matter, that greater weight attaches to the actual trade impact of a
measure.
Even if it emerges from trade statistics that the level of exports is unusually low, this
does not prove, in and of itself, that that level is attributable, in whole or in part, to
the measure alleged to constitute an export restriction. Particularly in the context of
an alleged de facto restriction and where, as here, there are possibly multiple
restrictions, it is necessary for a complaining party to establish a causal link between
the contested measure and the low level of exports. In our view, whatever else it may
475
Colombia notes that the value of imports from the CFZ falling under Chapters 50-64 increased
between 2006 and 2007 from US$483,587,075,000 to US$503,461,216,000: see Exhibit PAN-56. Although
Panama presented imports figures in Exhibit PAN-56 in Panamanian balboas, since the balboa has been tied to
the United States dollar at an exchange rate of 1:1, the values are equivalent. The Panel notes further to the
information contained in this Exhibit, the weight declined during these years from 67,486 to 60,871 metric
tonnes.
476
Panama's second oral statement, para. 34. Panama has noted that between March 2007 and March
2008, the quantity of textiles imported into Colombia declined from 3,339,527 to 2,119,524 square meters.
Panama has also noted a decline in 2005, from 5,169,008 to 4,481,075 square meters when a previous measure
similar to the current ports of entry measure was in place. See Panama's second oral statement, para. 34, citing
to Exhibit COL-42.
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involve, a demonstration of causation must consist of a persuasive explanation of

precisely how the measure at issue causes or contributes to the low level of exports.
In our view, whatever else it may involve, a demonstration of causation must consist
of a persuasive explanation of precisely how the measure at issue contributes to the
low level of exports."477 (footnotes omitted)
7.252 With the respect to the issue discussed in Argentina – Hides and Leather, the Panel first notes
that the European Communities characterized its claim as a de facto one, unlike Panama in this
dispute. In the context of this characterization, the panel in Argentina – Hides and Leather explained
that the complainant would need to demonstrate the existence of a low level of imports and a link
between the measure and the low import level. In light of the unique circumstances surrounding the
European Communities' characterization of its claim, to the extent Panama were able to demonstrate a
violation of Article XI:1 based on the measure's design, structure, and architecture, the Panel is of the
view that it would not be necessary to consider trade volumes or a causal link between the measure
and its effects on trade volumes.
7.253 In support of its approach, the Panel recalls that a number of panels have previously
determined the existence of a restriction on importation based on the design of the measure and its
potential to adversely affect importation, as opposed to the actual resulting impact of the measure on
trade flows.478 The Panel notes further that more than one panel has declined to make a determination
based on the alleged trade effects of a measure. In Turkey – Textiles, the respondent sought to rebut
arguments of nullification and impairment under Article XI:1 based on the fact that imports of textiles
and clothing had increased under the measure at issue, resulting in no adverse trade impact. Recalling
an earlier view expressed by the Appellate Body, the panel in that dispute explained that reliance on
the level of imports was not sufficient to rebut a presumption of nullification and impairment due to
the impact of multiple factors on trade flows:
"We recall that in EC – Bananas III479, the Appellate Body confirms that the
principles established in US – Superfund:
'… a demonstration that a measure has no or insignificant effects

would not be a sufficient demonstration that the benefits accruing
under that provision had not been nullified or impaired even if such a
rebuttal were in principle permitted.480'
are still most relevant to violations of provisions of GATT 1994.
...
We are of the view that it is not possible to segregate the impact of the quantitative
restrictions from the impact of other factors. While recognizing Turkey's efforts to
liberalize its import regime on the occasion of the formation of its customs union with
the European Communities, it appears to us that even if Turkey were to demonstrate
that India's overall exports of clothing and textile products to Turkey have increased
from their levels of previous years, is would not be sufficient to rebut the presumption
of nullification and impairment caused by the existence of WTO incompatible import
restrictions. Rather, at minimum, the question is whether exports have been what
they would otherwise have been, were there no WTO incompatible quantitative
restrictions against imports from India. Consequently, we consider that even if the
477
478
See Section VII.E.2(d)(i).
479
(footnote original) Appellate Body Report, EC - Bananas III, para. 253.
480
(footnote original) Panel Report, US – Superfund, para. 5.1.9.
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presumption in Article 3.8 of the DSU were rebuttable, Turkey has not provided us
with sufficient information to set aside the presumption that the introduction of these
import restrictions on 19 categories of textile and clothing products has nullified and
impaired the benefits accruing to India under GATT/WTO."481
7.254 Furthermore, in EEC – Oilseeds I, a GATT panel held similar reservation about the ability to
isolate the trade effects of a particular measure from other factors, stating that "changes in trade
volumes result not only from governmental policies, but also from other factors, and that, in most
circumstances, it is not possible to determine whether a decline in imports following a change in
policies is attributable to that change or to other factors".482
7.255 In the present dispute, a number of variables complicate the picture, creating difficulties in
interpreting trade statistics. As Colombia itself has pointed out, a number of measures have been
implemented in the past decade in addition to the ports of entry measure to address problems with
under-invoicing, money laundering and smuggling.483 Colombia has also imposed a series of other
measures in addition to the ports of entry measure, including, but not limited to, the imposition of
indicative prices on textile, apparel and footwear imports, for which the effects are unclear.484 Even
considering the ports of entry measure in isolation, the Panel notes that Colombia has in the past
applied a measure similar to the ports of entry measure, and then removed it for a time before
imposing the current measure. Finally, the Panel notes that while the ports of entry measure applies to
subject goods arriving from Panama, it does not regulate identical goods that arrive from other
countries, further clouding the picture. The Panel would need to assess these realities, in addition to
considering the large number of economic factors at play, such as worldwide supply and demand
shocks and variations, the influence of worldwide events, and other factors. As such, it is extremely
difficult, if not impossible to attribute changes in the level of imports of textile, apparel and footwear
into Colombia specifically to the ports of entry measure.485 Wide-ranging fluctuations in the implicit
481
Panel Report, Turkey – Textiles, paras. 9.202-9.204.
482
GATT Panel Report, EEC – Oilseeds I, para. 151.
483
See, e.g. Colombia's response to Panel question No. 149. Colombia indicates that a number of
measures have been applied in addition to the restrictions on ports of entry, including but not limited to a
requirement to present an advance import/export declaration; restrictions on transit; cooperative agreements
with other countries' customs administrations and the private sector; indicative and reference prices; and
certain documentation and invoice requirements.
484
Colombia has asserted that increases in values of textile imports during the periods of imposition of
indicative prices to textile imports is based entirely on the increase in the declared values, and does not factor in
indicative price values: see Colombia's response to Panel question No. 127. Panama disputes this view, arguing
that no textual basis exists to support Colombia's assertion, and is sceptical as to why calculated implicit prices
increased due to auto-declared values during periods when indicative prices were applied: see Panama's
response to Panel question No. 127; Question No. 1(d)(iv) of Colombia to Panama; Panama's comment on
485
Colombia itself seems to have recognized that unknown factors affect import volumes and prices of
textiles, apparel and footwear. For instance, when commenting on the possibility of a "knock-on effect" arising
following an earlier measure restricting port access, Colombia stated the following: "[Panama] is unwilling to
accept the logical conclusions of the fact that the statistics equally show a decrease in volume in a period when
no ports measure was in effect. This strongly suggests that the ports measure does not affect the volume of
imports, but that such volumes are determined by other factors." See Colombia's comment on Panama's
response to question 4(b) from Colombia's second set of questions. Additionally, Colombia also appears to
acknowledge that clear-cut conclusions cannot be drawn from statistics on implicit prices for textiles. In
response to a question from the Panel, Colombia discussed the problem of mixed signals: "In respect of textiles,
the conclusions are not as clear cuts as the statistics show mixed signals. On the one hand, the average implicit
price in 2007 (0.82 USD) and 2008 (0.67 USD) is much higher than in 2004 -2006 (when this average implicit
price hovered around 0.17 – 0.24 USD). On the other hand, the comparison between the second half of 2007
and the first half of 2007 shows that the implicit price range stayed more or less the same (on average around
0.80 USA), and this trend continued n the first half of 2008. What is interesting, however, is that this stagnation
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price and volume of textile, apparel and footwear imports into Colombia over the past decade reflect
this difficulty.486 It is also difficult to accept Colombia's allegation that the "measure is working"487
due to the wide array of factors at play.488
7.256 The Panel believes a thorough examination of trade effects would be unnecessary and
unwarranted due to the inherent difficulty in interpreting trade statistics, in which a wide variety of
economic and other factors complicate the picture. Accordingly, the Panel will determine whether the
ports of entry measure is a restriction on importation within the meaning of Article X:1, based on
whether the measure has a limiting effect on importation by negatively affecting the competitive
opportunities available to textile, apparel and footwear products arriving from Panama. The Panel
will base its assessment on the terms of the measure as opposed to any previous or ongoing effect on
the level of imports, in terms of volume or value. In light of this approach, Colombia cannot rely on
evidence of an increase in imports to rebut arguments of a restriction on importation. Similarly,
Panama cannot point solely to evidence demonstrating a decline in the level of imports to establish the
existence of a restriction on importation or exportation.
(iv) Whether the ports of entry measure affects competitive opportunities
7.257 The Panel will therefore examine whether the ports of entry measure has a limiting effect on
importation by negatively affecting the competitive opportunities related to textile, apparel and
footwear products imported from Panama.
7.258 Panama has argued that the imposition of the ports of entry measure has limited competitive
opportunities by forcing importers to incur higher shipping costs to reach a number of important
markets in Colombia other than those near Bogota and Barranquilla. Panama contends that these
costs create disincentives to export subject goods to Colombia and create unnecessary uncertainty to
importation to numerous important markets in Colombia.489 Panama considers this restriction on
entry points, which leads to higher transportation costs, is an inherent aspect of the design,
architecture and structure of the measure. Due to increased overall delivery costs and uncertainty,
Panama considers that the ports of entry measure constitutes a restriction on importation in
contravention of Article XI:1.
7.259 Panama has submitted a set of quotations by DHL Global Forwarding490 as evidence that
transportation costs to certain markets in Colombia have increased under the ports of entry measure.
Specifically, Panama has provided two estimates of the transportation costs involved for exporters,
depending on whether the subject goods are exported through Buenaventura or Barranquilla. The first
of the implicit price is due to a large extent to the increase in quantities sold since the imposition of the ports
measure." See Colombia's response to Panel question No. 158.
486
For instance, Colombia has provided monthly data in Exhibit COL-61 and Exhibit COL-65 which
reveals high variability in implicit price, volumes and values for textiles, apparel and footwear products.
487
488
In relation to this discussion of whether the ports of entry measure has negatively affected import
volumes and/or values, Panama has referred to documentation from a Colombian anti-dumping investigation on
products from China (Exhibit PAN-75) in alleging that a link exists between the ports of entry measure and a
decline in imports from Panama. The Panel declines to address Panama's arguments derived from this
investigation for several reasons, primary among them is the fact that the anti-dumping investigation exclusively
concerned trade from China. In addition, as discussed above, at the time of the anti-dumping investigation, a
number of additional measures were imposed on imports from China, including but not limited to an indicative
prices regime. The Panel is unable to precisely determine, and does not wish to speculate on the effects any
particular measure has had based on consideration of imports from an altogether different trading partner.
489
490
Exhibit PAN-63. Panama has provided quotations by DHL Global Forwarding from CFZ to Cali
via a route through Balboa and Buenaventura in one document dated 9 June 2008, and a second quotation, also
by DHL Global Forwarding, from CFZ to Cali via MIT and Barranquilla dated 6 June 2008.
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quote is for the route from the CFZ to Cali via a route through Balboa and Buenaventura.491 The
second quote estimates the delivery cost for a route originating in the CFZ and arriving at Cali via
Manzanillo International Terminal (MIT) and Barranquilla. Both quotes are based on an identical
shipping weight, c.i.f. value and container size.492 Panama's quotations comparatively indicate that
transportation costs from the CFZ to Cali via Barranquilla seaport would be more expensive than
shipment through Buenaventura, which is a prohibited port under the ports of entry measure. A table
comparing shipping costs, originally presented by Panama, appears below:493
CFZ-Cali CFZ-Cali
Costs (US$) Costs (US$)
(via Balboa and Buenaventura) (via MIT and Barranquilla)
CFZ – Balboa (by truck): 380.00 CFZ – Manzanillo (MIT) (by 110.00
truck)
Handling (exportation) 35.00 Handling (exportation) 35.00
Documentation 75.00 Documentation 75.00
Courier 50.00 Courier 50.00
Port security 20.00 Port security 20.00
Carrier security 6.00 Carrier security 6.00
Balboa – Buenaventura 1250.00 MIT – Barranquilla 1490.00
(20' container) (20' container)
Handling (importation) 100.00 Handling (importation) 100.00
Filing 35.00 Filing 35.00
Collect fee (minimum) 35.00 Collect fee (minimum) 35.00
CAF (minimum) 35.00 CAF (minimum) 35.00
Shipping cost (container) 50.00 Shipping cost (container) 50.00
Shipping cost (BL documentation 50.00 Shipping cost (BL documentation 50.00
fee) fee)
491
Panama characterizes the shipping route it selected, in which goods are shipped by truck from the
CFZ to Balboa on the Pacific coast of Panama, before travelling to Buenaventura and ultimately Cali, as a "more
practical, business-oriented approach" than the route proposed by Colombia in Exhibit COL-50. Panama claims
that the distance from MIT to Balboa is 80 km and takes roughly one hour to cover by land transport, including
train or truck options, at a cost of US$380 (for a 20 feet or 40 feet container). According to Panama, it would be
more expensive and inconvenient to ship goods from CFZ to MIT and then pass through the Panama Canal
before embarking for Buenaventura, since the importer/exporter would have to pay canal toll fees, and would
incur long waiting periods due to the high volume of traffic through the canal: see Panama's response to Panel
question No. 123; see also Exhibit PAN-63. In response to an argument by Colombia that it does not make
sense for goods shipped from China to pass through the Canal to reach the CFZ, and then return through the
Canal a second time in route to Buenaventura, Panama has argued that the "sheer magnitude of the CFZ
operations" makes it worthwhile for Asian exporters to deliver products directly to the CFZ. Panama submits
that manufacturers/exporters prefer to sell to distributors, and not end customers, and thus do not know where
products will be sold when first entering into contracts. According to Panama, this practice is followed as
manufacturers do not want to be involved in dealing with the business practices and handle transactions in more
than 30 different countries, each with their own currencies. Panama also notes that CFZ entities pay in US
dollars via globally-recognized banks, and payments are guaranteed by competitively-priced letters of credit.
See Panama's response to Panel question No. 125.
492
The Panel notes that the delivery cost for each route is calculated based on the same shipment
weight, which is unknown ("desconocido"), and container size (20 feet). As a result, the Customs Agent's
Commission of $669.35 is the same for both routes.
493
Panama included this table in its response to Panel question No. 124. The Panel has reproduced the
table and verified the accuracy of the data included in this table in relation to the data that was originally
presented in Exhibit PAN-63. No discrepancies were identified; however the Panel inserted clarifications
(appearing in italics) where it considered them helpful.
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CFZ-Cali CFZ-Cali
Costs (US$) Costs (US$)
(via Balboa and Buenaventura) (via MIT and Barranquilla)
Customs Agent's Commission 669.38 Customs Agent's Commission 669.38
(0.35% of c.i.f. value) (0.35% of c.i.f. value)
Paperwork expenditures 30.00 Paperwork expenditures 30.00
Preparation and process of 30.00 Preparation and process of 30.00
obtaining VUCE registration +15.00 obtaining VUCE registration +15.00
Forms (approximate) 10.00 Forms (approximate) 10.00
Preparation (cost/unit) 5.00 Preparation (cost/unit) 5.00
Buenaventura – Cali (by truck up to 700.00 Barranquilla – Cali (by truck up 2100.00
30 tonnes for a 20' container) to 30 tonnes for a 20' container)
Total US$3580.38 US$4950.38
7.260 The DHL Global Forwarding Quotation submitted by Panama separately lists estimates of the
ocean freight delivery costs for 20 feet and 40 feet delivery from Balboa to Buenaventura:494
Origen POL Destino POD 20' BAF 40'ST BAF 40'HC BAF
Zona Libre
Balboa Cali Buenaventura $1,250 Incl. $1,350 Incl. $1,350 Incl.
de Colon
7.261 The DHL Global Forwarding Quotation also includes estimates of the ocean freight delivery
costs for 20 feet and 40 feet delivery from MIT to Barranquilla:495
Origen POL Destino POD 20' BAF 40'ST BAF 40'HC BAF
Zona Libre
MIT Cali Barranquilla $1,490 $165 $1,590 $310 $1,590 $310
de Colon
7.262 For reference, the DHL quotations also compare the local costs of delivery from
Buenaventura to Cali, by land; and from Barranquilla to Cali, also by land:496
Carga
suelta Hasta 7 Hasta 17 Hasta 24 Hasta 18 Hasta 30
Serv. de
Trayecto hasta 4 tons por tons por tons por tons por tons port
Escolta
tons 20 ft 20 ft 20 ft 20 ft 20 ft
(turbo)
Buenaventura/
$280 $350 $465 $680 $680 $700 Opcional
Cali
Barranquilla/
$725 $990 $1,350 $1,850 $1,930 $2,100 Opcional
Cali
7.263 Colombia disputes the accuracy of the shipper quotation due to the fact that Panama compares
the cost of a shipment from the CFZ to Cali via the port at Barranquilla, with the cost of shipment
from the CFZ to Cali via the port at Buenaventura, without including toll charges arising from use of
the Panama canal. Colombia has submitted two separate quotations from different shipping providers
for the Panel's consideration.497 Based on its quotations, Colombia argues that the cost of shipment
from the CFZ to Cali via Buenaventura seaport would be slightly more expensive when Panama canal
toll charges are included in the estimate.498 The Panel notes that Colombia has provided in its first
494
Exhibit PAN-63.
495
Exhibit PAN-63.
496
Exhibit PAN-63.
497
Exhibit COL-50. This exhibit includes one quotation provided by TransBorder, SA, dated 25 June
2008, and a second one by UPS Supply Chain Solutions, dated 28 May 2008.
498
Colombia's second written submission, paras. 126-127; Exhibit COL-50.
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quotation the "free on board" rate for delivery from MIT to Barranquilla for several container sizes,
delivered on a weekly basis, and the price for delivery from MIT to Buenaventura for several sizes,
also on a weekly basis. This data appears as follows:499
Linea
Origen Destino 20 std 40 std 40 hc T/T Salidas
naviera
Manzanillo B/quilla USD 900 USD 975 USD 975 1 dia Semanal Cosco
Manzanillo B/ventura USD 1300 USD 1400 USD 1400 1 dia Semanal Maersk
7.264 Colombia's also has provided a second quotation from UPS Supply Chain Solutions that
outlines the total shipping charges to deliver textiles, as stated, "port to door". The table appearing in
the submitted quotation compares the cost of delivery from Cristobal, Panama, to Cali, via Cartagena,
with the cost of delivery from Cristobal, Panama to Cali via Buenaventura. The costs are broken
down and summarized below:500
Application 40' std 40' std

via Cartagena via Buenaventura
Origin Service Fee $125.00 $125.00
Documentation $25.00 $25.00
Manifest Entry $35.00 $35.00
Courier Fee $65.00 $65.00
Security $25.00 $25.00
Origin Port Fees $299.00 $299.00
Ocean Freight Charges $2,100.00 $3,673.00
Customs Entry $150.00 $150.00
Destination Port Fees $210.00 $210.00
Delivery $2,324.00 $941.00
TOTAL CHARGES USD: $5,358.00 $5,548.00
7.265 Before proceeding in its analysis, the Panel would like to make several preliminary
observations concerning the evidence submitted by the parties. Foremost, the quotations submitted by
each party are from different transportation providers, i.e. DHL Global Forwarding in the case of
Panama, and TransBorder SA and UPS Supply Chain Solutions in the case of Colombia. Several
interpretative problems arise from these quotations.
7.266 In Panama's submitted quotation, DHL Global Forwarding estimates a cost of US$1,590 to
ship goods by sea from MIT to Barranquilla, in addition to a Bunker Adjustment Factor (BAF) of
between US$310 per 40 feet container, while estimating a cost of US$1,350 to ship the goods from
Balboa to Buenaventura, and listing BAF charges as included for the Buenaventura route. Panama
does not offer any explanation why this charge is included in the former route but not the latter. In
addition, the Panel notes that while Panama indicates in its summary table presented in paragraph
above that the quotation is for a shipment with a weight of 24000kg, c.i.f. value of US$191,250 and
container size of 20 feet, the actual copy of the quotation lists the weight as "unknown" and does not
refer to a c.i.f. value. Also, the Panel notes that the local transport costs from either Buenaventura or
Barranquilla ports to Cali list escort service as "optional", making a final precise estimate difficult.501
499
Exhibit COL-50. The Panel has reproduced this table for inclusion in the report.
500
Exhibit COL-50. The Panel has reproduced this table for inclusion in the report.
501
The Panel considers Panama's omission of an estimate of security/escort service especially troubling
in light of the fact that Panama in open discussions during the Second Substantive meeting expressed concern
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Finally, Panama has asserted that a proper estimate of the cost of delivery from the CFZ to
Buenaventura would include transport of the goods from the CFZ to Balboa, on the Pacific coast of
Panama, by train or truck, before shipping the goods to Buenaventura by ship. As argued by
Colombia, Panama has merely asserted this is the case without presenting any evidence to substantiate
this assertion.502
7.267 Regarding the quotations provided by Colombia, the Panel is also troubled as to why
Colombia has in one quotation provided separate estimates of ocean freight rates from MIT to
Barranquilla and MIT to Buenaventura, but in a second quotation from UPS Supply Chain Solutions,
compares costs of delivery from the CFZ to Cali via Cartagena, with the cost of delivery from CFZ to
Cali via Buenaventura. Cartagena is a prohibited port under the ports of entry measure, and Colombia
has provided no explanation for this selection. At a minimum, this selection calls into question the
choice to submit ocean freight charges from MIT to Barranquilla in the first place, if Colombia later
relies on a different route quotation for its cost comparison. It is also troubling that the ocean rate for
delivery from MIT to Buenaventura provided in the TransBorder SA quote (US$1,400) is vastly lower
than the ocean freight charge from Cristobal to Buenaventura referred to in its UPS quotation
(US$3,673).503 The Panel is concerned by the fact that the TransBorder SA estimates from MIT to
Barranquilla and from MIT to Buenaventura are listed as "all-in fees", but these estimates do not
appear to include land transportation costs from CFZ to MIT, nor land transportation charges from
Buenaventura to Cali, or Barranquilla to Cali.504 In addition, the UPS Supply Chain Solutions
quotation is labelled as a "port to door" estimate; however, it is unclear whether land transportation
charges from the CFZ to Cristobal have been assessed, as only port origin fees are included.505
Finally, Panama has raised the issue of how the charge to ship a 40 feet container from Cristobal to
Cartagena could be so high (US$2,100) relative to the cost to ship the same size container from MIT
to Barranquilla (US$975) when the distance between Cristobal and MIT is approximately 3 km, and
the distance between Cartagena and Barranquilla is 114 km.506 Panama has asked the Panel to factor
in the inconsistencies when evaluating the relevance of the quotations presented by Colombia.
7.268 Regardless of whether one estimate is more accurate than the other, the Panel notes that
quotations have been provided in both cases without reference to the weight or the c.i.f. for the
container, although Panama has alleged a specific weight and c.i.f. value.
about the fact that Colombia's estimated costs for delivery from the CFZ to either Cartagena or Buenaventura
both included identical security charges of US$25. Thus, while questioning the accuracy of delivery estimates
provided by Colombia, due to a low estimate for security fees, Panama has not included an appropriate estimate
for security charges apart from reference to a port security charge of US$20, both in the case of delivery via a
Barranquilla and Buenaventura route. The Panel is therefore unclear on the accuracy of Panama's estimates.
502
Colombia's comment on Question No. 1(d)(iii) to Panama from Colombia. Panama's assertion must
also be weighed against written testimony provided by Colombian transportation specialist, Fabian Garcia
Castañeda, who stated that he had never heard of goods being transported from the CFZ to the Pacific coast over
land: Exhibit COL-63.
503
In relation with the Panel's concerns, Panama has also expressed concern about the large
discrepancy between the UPS quotation from Cristobal to Buenaventura (US$3,673) and the TransBorder SA
quotation from MIT to Buenaventura (US$1,400), despite what Panama claims is a distances of a "few
kilometers" between Cristobal and MIT.
Panama has also commented that the TransBorder SA estimates from MIT to Barranquilla and from
MIT to Buenaventura are listed as "all-in fees", but these estimates do not appear to include land transportation
costs from CFZ to MIT, nor land transportation charges from Buenaventura to Cali, or Barranquilla to Cali. In
addition, Panama express doubt regarding the designation of the UPS Supply Chain Solutions quotation as a
"port to door" estimate, arguing that land transportation charges from the CFZ to Cristobal are not assessed (as
only port origin fees are included): see Panama's response to Panel question No. 123.
504
Panama raised a similar concern in its response to Panel question No. 123.
505
See also Panama's response to Panel question No. 123.
506
Panama's response to Panel question No. 123. The Panel notes, however, that Panama's DHL
Global Forwarding estimate from MIT to Barranquilla (US$1,900 including the indicated BAF surcharge) is
comparable with the estimate from Cristobal (in the CFZ) to Cartagena.
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7.269 Despite confusion that may arise from the wide variations in prices revealed in the quotations
submitted by the parties, the Panel does not consider it appropriate to base its findings exclusively on
a finite amount of shipping price quotations for several other important reasons. As Colombia has
generally suggested, it is complicated to compare quotations provided by different freight suppliers.507
Colombia has also recognized that it is also difficult to estimate other factors, such as logistical and
security needs, when trying to understand the effect on importers.508 In addition to these inherent
problems, prices charged to ship goods are dependant on many additional factors that are specific to
particular customers, such as prior commercial relationships, the size of a shipping order, economies
of scale, the frequency of business solicited, volume discounts, capacity availability and other
factors.509 Moreover, an initial quotation may only provide a basis for negotiating a lower price.
Finally, the Panel notes that while estimated costs to deliver goods to one Colombian city, Cali, have
been informative, the circumstances of many other important markets/destinations in Colombia could
vary widely. These factors do not even address the concern, identified on multiple occasions by both
parties, as corresponds with their respective arguments, that neither DHL Global Forwarding or UPS
Supply Chain Solutions are major players in ocean freight shipment between the CFZ and Colombian
seaports.510
7.270 The quotations provided by Panama and Colombia alike are based on one metric – the
container size (20 feet in the case of Panama's extensive example, and 40 feet standard in the case of
Colombia's). Colombia's example makes no reference to weight or c.i.f. value. While Panama refers
to weight and c.i.f. value in its response to a question from the Panel511, this information is not
acknowledged in Colombia's submitted quotation.512 It has also proven difficult to verify any of the
figures submitted by the parties. For instance, Panama has submitted in its price quotation that in
practice it is preferable to transport goods from the CFZ on the Atlantic coast of Panama to Balboa on
the Pacific coast, rather than to transport goods by boat through the Panama Canal (and pay canal
fees), and thus bases its estimation of delivery costs to Cali via Buenaventura on this practice.
Colombia contests this approach. On the other hand, Colombia has provided a comparison of costs to
ship via Buenaventura, presumably factoring in canal fees, and the Panel observes that the final cost
of delivery is similar to a rate to deliver goods shipped to Cali via a route that arrives at Cartagena (on
the Atlantic coast of Colombia). By Panama's estimates, the cost of shipping from the CFZ to Cali via
Balboa and Buenaventura (US$3,580.38) is nearly US$2,000 less than the number proposed by
Colombia in its UPS quotation (US$5,548). Hence, the Panel finds it difficult to draw any
conclusions.
7.271 We recall the view discussed above that increased transaction costs, market access restrictions
or uncertainties affecting investment plans have previously been considered relevant in determining
whether a measure resulted in a restriction which rose to a level to cause nullification or impairment
of a Member's rights under Article XI:1.
7.272 Although the quotation data available is difficult to compare, Panama has also argued that the
Panel should assess the existence of a restriction more broadly than in terms of increased shipping
507
Colombia acknowledged, based on a written testimony submitted by transportation specialist,
Fabian Garcia Castañeda at Colombia's request, that "great care" must be taken when comparing quotations
provided by different freight suppliers: see Exhibit COL-63; Colombia's comment on Panama's response to
Panel question No. 123.
508
Colombia acknowledges complications like these in comments responding to one of Panama's
responses to a question by the Panel: see Colombia's comment on Panama's response to Panel question No. 124.
509
The Panel notes that transportation specialist, Fabian Garcia Castañeda, identified many of these
factors as relevant in determining actual transportation costs: see Exhibit COL-63.
510
See, e.g. comments by specialist, Fabian Garcia Castañeda appearing in Exhibit COL-63.
511
512
Instead the quotation lists weight as "unknown" and does not refer to a c.i.f. value: see
Exhibit COL-63.
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costs.513 In this regard, Panama has submitted an ocean shipping delivery schedule which indicates a
limited schedule of fortnightly deliveries from the CFZ (specifically, Colon) to Barranquilla.514 This
same schedule reveals that deliveries occur between Colon and Cartagena on a weekly basis, for
instance, thereby increasing the frequency of opportunities available to ship to Colombia for exporters
of goods from Panama. Although schedules were not provided for additional ports in Colombia, it is
evident from the delivery schedules provided for Cartagena and Barranquilla that the ports of entry
measure, by limiting entry of goods, exclusively to Barranquilla seaport and no other seaport, restricts
the number of opportunities for importers to deliver goods into Colombia. The Panel does not have
information before it comparing the volume of imports into Colombia, in relation to the total capacity
available on ships travelling fortnightly between Colon and Barranquilla; however, it is clear that
deliveries can only by shipped on fewer occasions and to fewer destinations, to the detriment of
entities importing goods from Panama.
7.273 In the Panel's view, business and investment plans of entities importing goods from Panama
are negatively affected in another way. As Colombia has indicated, a measure nearly identical to the
ports of entry measure at issue in this dispute was imposed on 7 July 2005515 for approximately six
months until 31 December 2005, and was extended on two occasions516, such that the measure did not
expire until 31 December 2006, nearly one and a half years later. The current ports or entry measure
was instituted on 22 June 2007 for approximately six months until 31 December 2007, but this date
was extended twice517, and the ports of entry measure is currently set to expire on 31 December
2008518, one and a half years later. On every occasion the measure is in place, importers of goods
from Panama generally have one seaport option available to enter goods – Barranquilla seaport,
subject to certain exceptions for qualifying importers. When the measure is removed, all entities
importing goods from Panama are permitted to enter any other of 11 designated ports and may
rearrange their shipping schedules to do so. Data presented by Colombia indicates that import
patterns to particular Colombian ports have shifted whenever a measure restricting port access was
imposed, supporting the view that importers adjust their shipping patterns.519
7.274 The uncertainties that arise from the ports of entry measure are substantial since importers'
may only access one seaport and one airport whenever the measure is temporarily imposed, instead of
the 11 ports open to importers of goods from points of departure other than Panama.520 In addition to
the disadvantages that arise from restriction to two ports of entry, the Panel notes that both parties
have recognized the substantial additional expense of using air transport as a long-term solution to
high-volume importation of textiles, apparel and footwear.521 When also considering the fact that the
513
514
Exhibit PAN-64.
515
Resolution No. 05796 of 7 July 2005.
516
Resolution No. 12465 of 21 December 2005; Resolution No. 06691 of 22 June 2006.
517
Resolution No. 16100 of 27 December 2007, Resolution No. 5542 of 2008.
518
Colombia's response to Panel question No. 122; Resolution No. 5542 of 2008.
519
For instance, Buenaventura was the first port of entry in terms of value for textiles, apparel and
footwear during the period before the first measure was established (January 2004 – June 2005), but fell to third
place in the case of footwear, and forth place in the case of textiles and apparel, following the imposition of the
first measure betweent July 2005 and October 2006. Moreover, in terms of volume, 68 per cent of apparel
imports and 77 per cent of footwear imports that arrived in Colombia during the period before the imposition of
the first port of entry measure entered at Buenaventura. After the imposition of the first measure, only
7 per cent of apparel and 21 per cent of footwear were shipped to Buenaventura. See, e.g. Exhibit COL-61.
520
As noted in footnote 432, textile, apparel and footwear arriving from all points ofdeparture, except
Panama are required to enter at any of the following 11 ports: Barranquilla, Bucaramanga, Buenaventura, Cali,
Cartagena, Cúcuta, Ipiales, Leticia, Medellín, San Andrés and Bogota.
521
By way of an example, Panama has presented a table comparing the total cost to ship goods by air
from CFZ to Bogota and then by truck to Cali (US$26,261), with the total cost to ship goods by boat from CFZ
to Barranquilla and then by truck to Cali (US$6,366): see Panama's response to Panel question No. 125;
Exhibit PAN-63, Exhibit PAN-77. While not providing factual evidence, Colombia acknowledged that sea
transport would be cheaper than air transport which is "substantially more expensive": Colombia's response to
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restrictions on port access have been imposed, extended and removed, then subsequently reinstated,
importers' expectations and planning have undoubtedly been affected, which has led importers to
rearrange shipping schedules, in turn affecting scheduled importation of subject goods arriving from
Panama. In the Panel's view, all of these uncertainties, including access to one seaport for extended
periods of time and the likely increased costs that would arise for importers operating under the
constraints of the port restrictions, limit competitive opportunities for imports arriving from
Panama.522
(e) Conclusion
7.275 In light of the Panel's conclusion that restrictions on ports of entry limit competitive
opportunities for subject textiles, apparel and footwear arriving from Panama, the Panel concludes
that the ports of entry measure has a limiting effect on imports arriving from Panama. On this basis,
the Panel finds that the restriction to two ports of entry for subject goods arriving from Panama
imposed under the ports of entry measure constitutes a restriction on importation within the meaning
of Article XI:1 of the GATT 1994. Accordingly, the Panel finds that ports of entry measure is
inconsistent with Article XI:1 of the GATT 1994.
F. WHETHER THE RESTRICTION ON PORTS OF ENTRY APPLICABLE TO TEXTILE, APPAREL AND

FOOTWEAR ARRIVING FROM PANAMA IS INCONSISTENT WITH ARTICLE XIII:1 OF THE
GATT 1994
7.276 Panama argues that the ports of entry measure violates Article XIII:1 of the GATT 1994 as it
constitutes a restriction on importation prohibited by Article XI of the GATT 1994523 that is not
administered on a non-discriminatory basis. Since the ports of entry measure on its face only applies
to textile, apparel and footwear goods arriving from Panama, and does not similarly restrict entry of
textile, apparel and footwear goods arriving from third countries or other WTO Members, Panama
contends that the measure is administered discriminatorily in violation of Article XIII:1.524
7.277 Panama rejects the view that the text of Article XIII:1 only applies to permitted restrictions,
i.e. those import restrictions which are not prohibited pursuant to Article XI; but applies to any
Panel question No. 125. In light of Panama's assertion that air shipment of subject goods is cost-prohibitive, the
Panel also sought to clarify why textile imports totaling US$3.19 million entered Bogota during the second
semester of 2007 (Exhibit COL-28). In response to this question, Panama commented that the apparent high
value may be explained by the fact that the ports of entry measure exempts several categories of textiles, apparel
and footwear from the measure, thus permitting goods falling under any of the exceptions to be entered at any of
11 ports and then shipped to Bogota by land to clear customs. As an example, Panama refers to
Exhibit COL-29: see Panama's response to Panel question No. 126. While Colombia acknowledged that the
data demonstrates subject goods are imported into Bogota, Colombia did not clarify whether this occurs as a
result of the numerous exceptions or any other factors: see Colombia's response to Panel question No. 126.
522
The Panel is of the view that a finding whereby Colombia were allowed to restrict access to two
ports of entry for goods arriving from a particular Member or Members, would open the door for other WTO
Members to do the same. For example, one GATT Contracting Party required all VCRs to enter its territory at a
small inland customs office in the town of Poitiers. See Wilson B. Brown, Jan S. Hogendorn, International
Economics in the Age of Globalisation, Broadview Press, 2000, pp. 197-198, Patrick A. Messerlin, Measuring
the costs of protection in Europe, Peterson Institute for International Economics, 2001, pp. 270-271; Miroslav
N. Javanovic, The Economics of International Integration, Edward Elgar Publishing, 2006, pp. 187.
523
524
Panama's second written submission, paras. 136 and 139.
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prohibition or restriction which is administered discriminatorily.525 Panama also notes that earlier
panels have determined violations of both Article XI:1 and Article XIII.526
7.278 Colombia argues that Article XIII is not applicable to the ports of entry measure as it
considers that Article XIII only applies to certain quantitative restrictions that are in principle
prohibited by Article XI:1, but which are covered by the exceptions to this prohibition under
Article XI:2, Article XII or Article XVIII.527 Colombia submits that Article XI:2 allows for a number
of situations in which Members are allowed to maintain what would otherwise be prohibited
quantitative restrictions.528 Additionally, Colombia considers that Article XII provides a specific
exception for balance-of-payment purposes, and Article XVIII:2 provides an exception for developing
countries to impose quantitative restrictions.529 In Colombia's view, the text of Article XIII clarifies
that only measures which are permitted quantitative restrictions are subject to the additional
requirement that such a measure be administered and applied non-discriminatorily.530 In this sense,
Colombia refers to references in the second and third paragraphs of Article XIII which discuss the use
of import licences, and the use of quotas which are properly notified to Members.531
7.279 In addition to the text of Article XIII, Colombia considers the fact that Article XIV provides
for a limited exception to the non-discrimination requirement in Article XIII, with respect to measures
covered by Article XII and Article XVIII, further confirms that the scope of Article XIII is limited to
measures allowed under Articles XI.2, XII and XVIII.532 Finally, since Article XIII follows two other
provisions dealing with quantitative restrictions – Article XI and Article XII – Colombia considers
that Article XI:1 and Article XIII:1 are meant to address the same type of "prohibition or
restriction".533 Colombia notes the similarity in terms and structure between Article XI.1 and
Article XIII:1 as well as in the title to Article XIII, as confirmation that Article XI:1 and
Article XIII:1 address the same restrictions.534
7.280 Colombia argues that Panama has failed to demonstrate that the port of entry measure is a
prohibited quantitative restriction in the sense of Article XI:1.535 To the extent that the measure is not
a prohibited restriction, Colombia submits that Article XIII would not apply.536 Even if the Panel
were to find that the port of entry measure constitutes a quantitative restriction within the meaning of
Article XI:1, as explained above, Colombia argues that Article XIII:1 does not apply to what are
deemed prohibited restrictions.537
7.281 The measure at issue for this claim, referred to as the ports of entry measure, is discussed in
detail in relation to Panama's claim under Article XI:1 of the GATT 1994 in Section VII.E.2(a) above.
525
526
527
528
529
530
531
532
533
534
535
536
537
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(b) The text of Article XIII:1 of the GATT 1994
7.282 The Panel is called upon to examine whether the ports of entry measure as above described is
inconsistent with Article XIII:1 of the GATT 1994. Article XIII:1 of the GATT 1994 provides:
"No prohibition or restriction shall be applied by any contracting party on the

importation of any product of the territory of any other contracting party or on the
exportation of any product destined for the territory of any other contracting party,
unless the importation of the like product of all third countries or the exportation of
the like product to all third countries is similarly prohibited or restricted."
(c) The Panel's approach to examining Panama's claim under Article XIII:1 of the GATT 1994
7.283 The Panel recalls its finding in Section VII.E.2(e) above that the ports of entry measure is a
restriction on importation which is prohibited under Article XI:1 of the GATT 1994. In light of this
finding, the Panel is faced with the issue of determining whether a measure deemed to be a
WTO-inconsistent import restriction under Article XI:1 may also violate Article XIII:1 of the
GATT 1994.
7.284 Panama submits that the ports of entry measure plainly violates Article XIII:1 since the
measure on its face applies only to textile, apparel and footwear goods arriving from Panama, and
does not similarly restrict entry of textile, apparel and footwear goods arriving from other Members.
Colombia, however, has argued that Article XIII:1 only applies to quantitative restrictions that are
permitted under the GATT 1994. In this sense, Colombia has stated that it simply does not "make
sense" to apply Article XIII to measures which are determined to be prohibited import restrictions
under Article XI:1.538 Panama rejects Colombia's interpretation, noting that the text does not indicate
that Article XIII:1 only applies to permitted restrictions. Thus, Panama submits that Article XIII:1
covers any prohibition or restriction which is administered discriminatorily.
7.285 In relevant part, Article XIII:1 prohibits Members from imposing any "restriction ... on
importation of any product of the territory of any other contracting party ... unless the importation of
the like product of all third countries ... is similarly prohibited or restricted."
7.286 WTO panels have previously recognized that the protections under Article XIII:1 extend to
restrictions authorized as exceptions to the general ban on non-tariff restrictions within Article XI:1 of
the GATT 1994. The panel in EC – Bananas III stated:
"In interpreting the terms of Article XIII, it is important to keep their context in mind.
Article XIII is basically a provision relating to the administration of restrictions
authorized as exceptions to one of the most basic GATT provisions – the general ban
on quotas and other non-tariff restrictions contained in Article XI."539
7.287 The panel in Turkey – Textiles, which both parties referenced in their submissions, also
discussed the relationship between Article XI:1 and Article XIII:1 of the GATT 1994:
538
See, e.g. Colombia's first written submission, para. 268. In this regard, Colombia has also referred
to the views of two noted scholars in GATT/WTO law, John H. Jackson and Petros Mavroidis. As Colombia
notes, John H. Jackson commented that "[i]n case exceptions are utilized and quotas applied, they must be
applied 'non discriminatorily,' i.e., similar to a Most-Favoured-Nation basis, and in accordance with certain
other rules" (see Jackson, J., World Trade And the Law of GATT (1969) at 308). Additionally, Petros
Mavroidis wrote that "the ambit of Article XIII of the GATT should not be extended so as to cover issues of
substantive consistency of a [quantitative restriction] with the GATT; it should be narrowed down to issues
consistency in the administration of an otherwise GATT-consistent [quantitative restriction]" (see Mavroidis,
Trade in Goods, Oxford University Press, 2007, p. 64).
539
Panel Report, EC – Bananas III, para. 7.68.
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"The wording of Articles XI and XIII is clear. Article XI provides that as a general
rule (we note the wording of the title of Article XI: "General Elimination of
Quantitative Restrictions"), WTO Members shall not use quantitative restrictions
against imports or exports.
...
Article XIII provides that if and when quantitative restrictions are allowed by the
GATT/WTO, they must, in addition, be imposed on a non-discriminatory basis."540
7.288 This particular statement by the panel in Turkey – Textiles must be taken into consideration in
the face of its findings of violation both of Article XI:1 and Article XIII.541 The panel in that dispute
concluded that the measures at issue, on their face, imposed quantitative restrictions on imports that
were only applicable to the complainant.542
7.289 Colombia submits that the panel's ultimate finding in Turkey – Textiles is not reflective of the
proper interpretation of the relationship between Articles XI:1 and XIII:1. Colombia notes that the
panel issued a finding at a time when the Agreement on Textiles and Clothing was still effective and
allowed for certain quantitative restrictions.543 Colombia notes as well that the defendant, Turkey, did
not present any arguments rebutting a violation of either Article XI:1 and Article XIII.544 Finally,
Colombia submits the panel's rationale as opposed to its findings are the proper guideline, as the panel
itself clarified that Article XIII should only be applied to permitted quantitative restrictions due to its
statement that restrictions "must, in addition, be imposed on a non-discriminatory basis".545
7.290 Without prejudice to the views of earlier panels, in this dispute, the Panel, after careful
consideration, refrains from ruling on Panama's claim under Article XIII:1 of the GATT 1994 on the
basis of judicial economy. The Panel recalls that the principle of judicial economy is recognized in
WTO law. The Appellate Body has ruled that a panel has discretion to determine which claims it
must address in order to resolve the dispute between the parties, provided that those claims are within
its terms of reference.546 The Appellate Body has emphasized that the basic aim of dispute settlement
in the WTO is to secure a positive solution to a disputes and not to "make law" by clarifying existing
provisions of the WTO Agreement that fall outside the context of resolving a particular dispute:
"[G]iven the explicit aim of dispute settlement that permeates the DSU, we do not
consider that Article 3.2 of the DSU is meant to encourage either panels or the
Appellate Body to 'make law' by clarifying existing provisions of the WTO
Agreement outside the context of resolving a particular dispute. A panel need only
address those claims which must be addressed in order to resolve the matter in issue
in the dispute.547"548
540
Panel Report, Turkey – Textiles, paras. 9.61-9.62.
541
Panel Report, Turkey – Textiles, para. 9.66.
542
Panel Report, Turkey – Textiles, para. 9.66.
543
Colombia's first written submission , para. 270.
544
Colombia's first written submission , para. 270. In Turkey – Textiles, the Panel concluded that India
had made a prima facie case of violation of Articles XI and XIII of the GATT 1994. after first noting the absence
of a defence by Turkey (other than its defence based on Article XXIV of the GATT 1994) to India's claims that
discriminatory import restrictions had been imposed: see Panel Report, Turkey – Textiles, para. 9.66.
545
Colombia's first written submission , para. 270.
546
Appellate Body Report, India – Patents (US), para. 87.
547
(footnote original) The "matter in issue" is the "matter referred to the DSB" pursuant to Article 7 of
the DSU.
548
Appellate Body Report, US – Wool Shirts and Blouses, DSR 1997:I, 323 at 340. See also Panel
Report, US – Steel Safeguards, para. 10.701. The Panel bears in mind that, in Australia – Salmon, the Appellate
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7.291 In making findings under Article XI:1 of the GATT 1994, the Panel considers it unnecessary
to make findings in relation to Panama's Article XIII:1 claim in order to secure a positive solution to
this dispute. In the Panel's view, the determination of a violation under Article XIII:1 would not assist
the DSB in making the recommendations or in giving the rulings provided for in the covered
agreements. The Panel observes that, in addition to being a prohibited restriction within the meaning
of Article XI:1, the ports of entry measure is imposed only on certain textile, apparel or footwear
goods arriving from Panama, independent of the products' origin, and not like-product imports
originating in, and shipped from, any other Member or third country. Whether or not it is
discriminatory in its design, the restrictions on ports of entry are prohibited under Article XI:1.549
7.292 For the above reasons, the Panel concludes that it is not necessary to proceed and rule on
Panama's claim under Article XIII:1, and declines to do so.
G. WHETHER THE RESTRICTION ON PORTS OF ENTRY APPLICABLE TO TEXTILE, APPAREL AND

FOOTWEAR ARRIVING FROM PANAMA IS INCONSISTENT WITH ARTICLE I:1 OF THE GATT 1994
7.293 In addition to its claims under Article XI:1 and Article XIII:1 of the GATT 1994, Panama
requested the Panel to find that the ports of entry measure violates Article I:1 of the GATT 1994, in
the event the Panel were to find Article XI:1 inapplicable.550 In Panama's view, if the discriminatory
aspects of the measure could not be found to be inconsistent with Article XIII, there would need to be
recourse to Article I:1 of the GATT 1994.551 Panama justifies this late claim on the grounds that "[i]n
its first written submission, [it] did not elaborate on its Article I:1 claim because it seemed
indisputable that the port of entry restrictions fall under Articles XI and XIII."552 Panama notes,
however, in its request for establishment, that it claimed the ports of entry measure to be inconsistent
with Article I:1 in addition to Article XI:1 and Article XIII:1.553
7.294 Panama considers the ports of entry measure is discriminatory and thus, inconsistent with
Article I:1, as textiles, apparel and footwear of non-Panamanian origin may enter at any of 11 ports,
as long as the goods do not transit through Panama, while identical goods arriving from Panama may
only enter at two ports.554 Panama considers the right to enter products at Colombian ports is a rule in
Body cautioned panels against exercising judicial economy where only a partial resolution of a dispute would
result:
"The principle of judicial economy has to be applied keeping in mind the aim of the dispute
settlement system. This aim is to resolve the matter at issue and 'to secure a positive solution
to a dispute'. To provide only a partial resolution of the matter at issue would be false judicial
economy. A panel has to address those claims on which a finding is necessary in order to
enable the DSB to make sufficiently precise recommendations and rulings so as to allow for
prompt compliance by a Member with those recommendations and rulings 'in order to ensure
effective resolution of disputes to the benefit of all Members.'"
See Appellate Body Report, Australia – Salmon, para. 223. See also Panel Report, EC – Sardines,
paras. 7.148-7.152; Panel Report, US – Steel Safeguards, para. 10.703.
549
In light of its decision to exercise judicial economy in relation to Panama's Article XIII:1 claim, the
Panel does not comment as to whether the fact that the ports of entry measure applies with respect to goods
arriving from Panama, regardless of origin, but not to goods arriving into Colombia without previously
transiting through Panama, qualifies as the type of discrimination discussed within the text of Article XIII:1.
550
Panama's first oral statement, para. 52 et seq; Panama's second written submission, paras. 141
et seq.
551
552
Panama's first oral statement, para. 52; Panama's second written submission, para. 141.
553
554
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connection with importation.555 Moreover, Panama argues that access to additional ports is an
advantage that is not immediately and unconditionally extended to imports from Panama.556
7.295 Colombia objects to the inclusion of what it considers a new claim and argues that the failure
to develop any legal and factual arguments in respect of such claim implies that Panama failed to
make a prima facie case of violation under GATT Article I:1.557 While Colombia acknowledges that
Article I:1 of the GATT 1994 is mentioned in Panama's request for establishment, Colombia submits
that this claim was not part of Panama's request for establishment and is therefore not part of the
Panel's terms of reference.558 As such, Colombia has not presented any substantive rebuttal arguments
at this stage as it considers there simply is no case to answer at the moment in the absence of any
development of the claim by Panama.559 Nevertheless, Colombia notes that the ports of entry measure
is not origin-based and does not fail to extend "immediately" and "unconditionally" an "advantage" to
products originating from Panama.560
7.296 Despite its protest at the inclusion of a second claim under Article I:1, Colombia submits,
assuming arguendo that this new claim was part of the Panel's terms of reference, that Panama was
required by paragraph 4 of the Panel's Working Procedures561 to have presented its claims and
arguments in its first written submission.562 However, in the event the Panel were to consider
Panama's Article I:1 claim, Colombia has argued that it has a right to present rebuttal arguments at a
later stage in the proceedings.563
7.297 The measure at issue for this claim, referred to as the ports of entry measure, is discussed in
detail in relation to Panama's claims under Article XI:1 of the GATT 1994 in Section VII.E.2(a) above
(b) Panel's approach to examining Panama's second claim under Article I:1 of the GATT 1994
7.298 The Panel notes that Panama has argued in the alternative that the ports of entry measure
violates Article I:1 of the GATT 1994. Furthermore, the Panel acknowledges Colombia's extensive
arguments in relation to whether this claim should be considered within the Panel's terms of reference
and thus, within the Panel's mandate.564
7.299 As indicated in Section VII.A.2(b) above, setting aside any doubts about its admissibility due
to its late formulation, the Panel has decided not to examine this claim in light of the Panel's findings
that the ports of entry measure is a prohibited import restriction within the meaning of Article XI:1 of
the GATT 1994, and in consideration of fact that this is an alternative claim. In the Panel's view, the
determination of a violation under Article I:1 in respect of the ports of entry measure at issue would
555
556
557
558
559
560
561
Paragraph 4 provides that: "Before the first substantive meeting of the Panel with the parties, the
parties to the dispute shall transmit to the Panel written submissions in which they present the facts of the case
and their arguments".
562
563
564
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not assist the DSB in making the recommendations or in giving the rulings provided for in the covered
agreements.565
H. WHETHER THE ADVANCE DECLARATION AND LEGALIZATION DECLARATION REQUIREMENTS

APPLICABLE TO TEXTILES, APPAREL AND FOOTWEAR IMPORTS ARRIVING FROM PANAMA ARE
INCONSISTENT WITH ARTICLE I:1 OF THE GATT 1994
7.300 In addition to a separate claim under Article I:1, discussed in Section VII.G above, Panama
argues that a requirement to present an advance import declaration applicable to imports of textiles,
apparel and footwear arriving from Panama, pay customs duties and sales tax on the basis of the
advance declaration and the obligation to pay a fee to correct the import declaration whenever weight
per square meter or width exceed 7 and 10 per cent, respectively, is inconsistent with Article I:1 of the
GATT 1994.
7.301 Panama argues that importers of textiles, apparel and footwear arriving from Panama or the
CFZ are subject to several additional requirements under the ports of entry measure, each of which is
a rule in connection with importation that results in an advantage being conferred on imports
originating in countries other then Panama.
7.302 Panama further argues that textile, apparel and footwear importers arriving from Panama or
the CFZ are required to present an advance import declaration for imports of textiles, apparel and
footwear, and to pay customs duties and sales tax on the basis of the advance declaration.566 Panama
contends that importers of textiles, apparel and footwear originating in countries other than Panama
are permitted to import into Colombia without submitting an advance declaration and without paying
customs duties and sales tax on that basis.567
7.303 Panama additionally argues that importers of textiles arriving from Panama and the CFZ are
required to pay a fee for the legalization of goods and to correct import declarations in cases where
discrepancies in the declared weight per square meter and width exceed 7 per cent or 10 per cent,
respectively.568 Panama claims that imported like products from other countries are not subject to the
legalization declaration and fee requirement.569
7.304 In light of the requirement to present an advance importation declaration, pay customs duties
and sales tax on the basis of the advance declaration, and the obligation to pay a fee to correct the
import declaration whenever differences in weight per square meter, or width exceed 7 and
10 per cent, respectively, Panama argues that products originating in the CFZ or Panama are not
accorded immediately and unconditionally the advantages accorded to like products originating in
other countries.570 By granting advantages to like products originating in other countries, and not
extending them immediately and unconditionally to products originating in Panama or the CFZ,
Panama considers the relevant Colombian customs laws to be in violation of Article I:1 of the
GATT 1994.
565
In light of its decision to exercise judicial economy in relation to Panama's Article XIII:1 claim, the
Panel does not comment as to whether the fact that the ports of entry measure applies with respect to goods
arriving from Panama, regardless of origin, but not to goods arriving into Colombia without previously
transiting through Panama, qualifies as the type of discrimination discussed within the text of Article XIII:1.
566
567
568
569
570
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7.305 Colombia does not challenge Panamas characterization of the advance import declaration
requirement under the port of entry measure, or customs duty, tax and legalization declaration
requirements as rules and formality connected with importation. However, Colombia argues that the
concept of "advantage" in Article I:1 of the GATT 1994 only extends to those advantages that affects
commercial opportunities in a way that creates more favourable competitive opportunities for
products of a certain origin.571 In Colombia's view, Panama has not presented any information to
support its claim that an advanced import declaration, the requirement to pay customs duties572 and
taxes in advance, or the limitation of legalization without a fee, confers an advantage that affects a
product's competitive opportunities.573 Colombia considers that the fact that many importers elect to
use this advanced legalization option, and pay fees in advance attests to the fact that no competitive
disadvantage arises from such use.574
7.306 To the extent an advantage were deemed to exist, Colombia argues that Panama has failed to
demonstrate that such advantage is not extended "immediately and unconditionally" to all
Members.575 Colombia argues that Members are entitled to condition access to its market on
compliance with, and respect for, the Member's laws and regulations, including customs laws.576
Colombia argues that importers of goods arriving from Panama were originally extended the same
rights related to presentation of an import declaration, payment of duties and taxes, and legalization
fee requirements. However, since these importers did not comply with customs control and
verification processes, these advantages were amended.577
7.307 Finally, Colombia argues that Article I:1 protection does not apply to goods arriving into
Colombia from Panama since Article I:1 is based on the origin of the product, not on its place of
exportation.578 Since Panama does not produce the textile, apparel, and footwear goods for export,
Colombia considers that Panama does not confer origin of the goods.579
571
Colombia's first written submission, para. 299; Colombia's second written submission,
paras. 193-195.
572
Colombia cautions the Panel against the incorrect use of the term "paid". In response to a question
from the Panel, Colombia submitted that provisional payment occurs on the basis of the auto-declared value of
the good at the time of submission of an import declaration. Regardless of whether the declaration is presented
in advance or at the border upon entry, Colombia argues that the customs valuation for goods subject to
indicative prices, does not occur upon entry of the goods. See Colombia's Answers to First Set of Panel
Questions, question 74. For purposes of addressing Panama's Claim under Article I:1 of the GATT 1994, the
Panel will not assess the characterization of the term "payment", but will only address the issue of whether
importers are granted an advantage of the type contemplated under Article I:1 based on the application of
advance import declaration, duty, tax and legalization requirements to importers from Panama. The nature of
the term "payment" forms part of the Panel's analysis of Panama's claim in relation to indicative prices,
discussed above.
573
Colombia's first written submission, para. 300, Colombia's second written submission, para. 196,
574
575
576
Colombia's first written submission, para. 306, Colombia's second written submission, para. 197.
577
578
579
In response to a question from the Panel, the Panel notes that Panama submitted evidence
demonstrating that one Panamanian Company exports at least one type of apparel, known as Panamanian
guayaberas. Panama further explained that it does not currently produce footwear for export, and does not
produce textiles. See Panama's response to Panel question No. 141.
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(a) Legislation related to the advance declaration and legalization requirements
7.308 As discussed in Section II.D above, importers of textile, apparel and footwear imports
classifiable under Chapter 50–64 of Colombia's Tariff Schedule and arriving from Panama are subject
to special advance importation declaration and legalization requirements. The parties have referred to
the advance declaration and legalization requirements as forming part of the ports of entry measure.
Specifically, Article 1 of Resolution No. 7373 of 22 June 2007, as modified by Resolution No. 7637
of 28 June 2007, requires importers of subject goods arriving from Panama to present an advanced
import declaration not more than 15 days prior to the goods' arrival in Colombia580 and accordingly
pay customs duties and taxes in advance.581
"Artículo 1o. Declaración de importación de mercancías. En aplicación de lo

previsto en el inciso 3o del artículo 199 del Decreto 2685 de 1999, adicionado por el
artículo 2o del Decreto 2373 de 2004, la declaración de importación de las
mercancías clasificables por los capítulos 50 a 64 del Arancel de Aduanas
procedentes de la Zona Libre de Colon – República de Panamá, deberá presentarse
en forma anticipada a su llegada al territorio aduanero nacional con una antelación
no superior a quince (15) días."582
7.309 Article 1 of Resolution No. 9859 of 23 August 2007 additionally requires importers of all
goods from Panama or the CFZ that are subject to the 15-day advance import declaration requirement
to declare the goods not less than five days prior to the arrival of the goods in Colombia:
"Artículo 1º .Oportunidad para declarar, Las mercancías que en desarrollo del inciso
tercero del artículo 119 del Decreto 2685 de 1999, estén obligadas a presentar
declaración de importación en forma anticipada a la llegada de la mercancía,
deberán hacerlo con una antelación no superior a quince (15) días calendario y no
inferior a cinco (5) días calendario.
Para las demás mercancías, la declaración de importación deberá presentarse

dentro del término previsto en el artículo 115 del Decreto 2685 de 1999, o en forma
anticipada a la llegada de la mercancía, con una antelación no superior a quince
(15) días calendario."583
7.310 In combination with the requirement to present an import declaration, all importers are
generally required to pay customs duties and sales tax at the time an import declaration is presented.
580
Exhibit PAN–34. Article 1 of Resolution No. 7637 of 28 June 2007 (Exhibit PAN–36) extends the
scope of this obligation to all listed textile, apparel and footwear goods from Panama, and not only to those from
the CFZ.
581
In its response to Panel questions Nos. 73, 74 and 154, Colombia has confirmed that the requirement
to present an import advance declaration only applies to textile, apparel and footwear goods classifiable under
Chapters 50-64 of Colombia's Tariff Schedule and arriving from Panama.
582
Resolution No. 7673 of 28 June 2007 (See Exhibit PAN-36) modifies paragraph 1 of
Resolution No. 7373 to extend to goods arriving from any location in Panama, not strictly the CFZ as follows:
"Articulo 1°. Declaración de importación de mercancías. En aplicación de lo previsto en el inciso 3° del
artículo 119 del Decreto 2685 de 1999, adicionado por el artículo 2° del Decreto 2373 de 2004, la declaración
de importación de las mercancías clasificables por los capítulos 50 al 64 del Arancel de Aduanas, procedentes
de la República de Panamá, deberá presentarse en forma anticipada a su llegada al territorio aduanero nacional
con una antelación no superior a quince (15) días."
583
Exhibit PAN–46.
WT/DS366/R
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"Artículo 119. Oportunidad para declarar. La declaración de importación deberá

presentarse dentro del término previsto en el artículo 115 del presente decreto, o en
forma anticipada a la llegada de la mercancía, con una antelación no superior a
quince (15) días.
Dentro del mismo plazo señalado en dicho artículo, deberán cancelarse los tributos
aduaneros, cuando hubiere lugar a ello."584
7.311 Thus, under this regime, advance payment of customs duties and sales tax is obligatory for
imports of subject goods from Panama and the CFZ.
7.312 Under Article 6 of Resolution No. 7373, an importer of subject goods arriving from Panama
and the CFZ that fails to present an advance import declaration upon entry at Bogota or Barranquilla
will only be able to proceed with importation if he or she submits a legalization declaration and pays a
fee for the "rescate" of the goods in addition to all customs duties and any accrued warehouse storage
charges; otherwise the importer may re-ship the goods from Colombian territory:
"Artículo 6º. Cuando no se presente declaración anticipada en los términos del

artículo 1º de la presente resolución y siempre que la mercancía arribe por los
lugares habilitados y se cumplan los requisitos legales establecidos, se podrá
presentar declaración de legalización de conformidad con lo previsto en el
artículo 231 del Decreto 2685 de 1999, pagando el rescate correspondiente, o se
podrá reembarcar mercancía"585
7.313 If the importer does not submit a legalization declaration to obtain release of the goods or the
goods are not re-shipped, the goods will be considered as legally abandoned and subject to seizure
within a one month period.586 A "rescate" fee of 15 per cent of the value of the goods will be required
to recover goods within this one-month period.587
7.314 Unlike subject imports arriving from Panama, imports arriving from points of departure other
than Panama or the CFZ are not subject to an advance import declaration requirement (as long as the
goods do not arrive from Panama or the CFZ). Under Article 119 of Decree No. 2685 of 1999,
applicable to imported goods generally, an importer may present an import declaration as early as 15
days prior to arrival of the goods, but may delay presentation of the import declaration until one
month after the goods' arrival into Colombia or up to two months following arrival, subject to
authorization by Colombia's customs authority.588 In light of this flexibility, the advance payment of
customs duties and sales tax is not mandatory, but is instead optional for imports of subject goods
arriving from the territory of WTO Members other than Panama.589
7.315 In addition to the advance import declaration requirement imposed on imports arriving from
Panama and the CFZ, and the concurrent advance customs duties and sales tax obligation, textile
imports classifiable under Chapters 50-60 of Colombia's Tariff Schedule that arrive from Panama, are
subject to special legalization requirements. In particular, Article 3 of Resolution No. 7373 exempts
imports arriving from Panama and the CFZ that have been declared in advance from the requirement
to pay a fee for "rescate" of goods in situations where differences in the weight per square metre or
width of the textile exceed 7 and 10 per cent, respectively:
584
Exhibit COL-1.
585
Exhibit PAN-34; see also Article 231 of Decree No. 2685 (Exhibit PAN-32).
586
587
588
(Exhibit COL-1).
589
In its response to Panel question No. 154, Colombia confirmed that this advanced declaration
requirement is an option for all goods arriving from all other points of departure except Panama (and the CFZ).
WT/DS366/R
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"Artículo 3º. Adicionase el artículo 153 de la Resolución 4240 de 2000, modificado

por el artículo 49 de la Resolución 7002 de 2001, con los siguientes incisos:
'Podrán ser objeto de legalización sin el pago de rescate, las importaciones de telas y
tejidos de materias textiles de los capítulos 50 al 60 del Arancel de Aduanas, respecto
de los cuales se hubiere presentado Declaración Anticipada, cuando se presenten
diferencias en el peso por metro cuadrado o el ancho de la tela y las mismas no
superen el 7% y el 10%, respectivamente.
Para acogerse a lo señalado en el inciso anterior, la Declaración de Legalización

deberá presentarse dentro de los cinco (5) días hábiles siguientes a la llegada de la
mercancía al territorio aduanero nacional."590
7.316 In relation to this requirement, Article 128.7 of Decree No. 2685 of 1999, as modified by
Decree No. 1232 of 2001, generally imposes a fee of 3 per cent of the value of the goods to correct
errors in the description of the goods that exceed 7 per cent, in terms of weight per square metre, or
10 per cent in terms of width, within a period of five days after a declaration is presented:
"La autorización de levante procede cuando ocurra uno de los siguientes eventos:
Cuando practicada inspección aduanera física se detecten errores u

omisiones en la descripción, diferentes de los señalados en el
numeral 4 del presente artículo, o por descripción incompleta de la
mercancía que impida su individualización y el declarante, dentro de
los cinco (5) días siguientes a la práctica de dicha diligencia,
presenta Declaración de Legalización que los subsane, cancelando
una sanción del tres por ciento (3%) del valor en aduana de la
mercancía por concepto de rescate."591
7.317 As noted in paragraph 7.308 above, all textile imports arriving from Panama and the CFZ are
subject to an advance import declaration requirement. Hence the special legalization requirement
applies to all textile imports arriving from Panama and the CFZ.
7.318 Under Article 153 of Resolution No. 4240 of 2000, as modified by Article 1 of
Resolution No. 8038 of 2005, imports classifiable under Chapters 50–60 of Colombia's Tariff
Schedule arriving from all points of departure that are declared in advance are generally required to
pay a fee to correct an import declaration in situations where differences in the weight per square
metre or width of the textile exceed 7 and 10 per cent, respectively, and are similarly exempt when
difference do not exceed these amounts.592 However, importers of goods arriving from points of
departure other than Panama and the CFZ are not required to, but may instead optionally present an
advance import declaration. Thus, importers of goods from origins other than Panama or the CFZ are
not mandatorily subject to the requirement to pay a fee of three per cent of the value of the goods to
correct errors in the description of goods in excess of the 7 and 10 per cent margins explained above.
590
Exhibit PAN–34.
591
Exhibit COL-1.
592
Article 153 of Resolution No. 4240 of 2000 (Exhibit COL-2) provides:
"[P]odrán ser objeto de legalización sin el pago de rescate, las importaciones de telas y tejidos de
materias textiles clasificables por los capítulos 50 al 60 del Arancel de Aduanas, para. los cuales se hubiere
presentado Declaración Anticipada, de conformidad con lo establecido en la Resolución 1513 de 2005,
modificada por la Resolución 5482 del mismo año, cuando se presenten diferencias en el peso por metro
cuadrado o el ancho de la tela, siempre que tales diferencias no superen el 7% y el 10%, respectivamente. Para
acogerse a lo señalado en el inciso anterior, la Declaración de Legalización deberá presentarse dentro de los
cinco (5) días hábiles siguientes a la llegada de la mercancía al territorio aduanero nacional."
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7.319 The Panel will hereafter discuss the advance declaration and legalization fee requirements in
connection with the obligation set forth in the ports of entry measure.
(b) The text of Article I of the GATT 1994
7.320 In this instance, the Panel is called upon to examine whether simultaneous imposition of the
advance import declaration and legalization requirements under the ports of entry measure is
inconsistent with Article I:1 of the GATT 1994. Article I:1 of the GATT 1994 contains the Most-
Favoured Nation (MFN) principle, considered as "a cornerstone of the GATT and ... one of the
pillars of the WTO trading system".593 Article I:1 provides as follows:
"With respect to customs duties and charges of any kind imposed on or in connection
with importation or exportation or imposed on the international transfer of payments
for imports or exports, and with respect to the method of levying such duties and
charges, and with respect to all rules and formalities in connection with importation
and exportation, and with respect to all matters referred to in paragraphs 2 and 4 of
Article III, any advantage, favour, privilege or immunity granted by any contracting
party to any product originating in or destined for any other country shall be accorded
immediately and unconditionally to the like product originating in or destined for the
territories of all other contracting parties."
7.321 The Appellate Body in Canada – Autos discussed the object and purpose of Article I:1:
"Th[e] object and purpose [of Article I] is to prohibit discrimination among like
products originating in or destined for different countries. The prohibition of
discrimination in Article I:1 also serves as an incentive for concessions, negotiated
reciprocally, to be extended to all other Members on an MFN basis."594
7.322 As recognized by other panels, the Appellate Body's ruling in EC – Bananas III confirmed
how to examine a measure under Article I:1:
"The Appellate Body in Bananas III, confirmed that to establish a violation of

Article I, there must be an advantage, of the type covered by Article I and which is
not accorded unconditionally to all 'like products' of all WTO Members."595
7.323 In accordance with the approach set out in EC – Bananas III (Article 21.5 – US), and upheld
by the Appellate Body, the Panel will conduct its analysis by first considering whether Colombia, by
imposing the advanced import and legalization requirements within the ports of entry measure,
confers an advantage of the type covered by Article I, and then determine whether the advantages are
extended to all like products unconditionally. However, prior to doing so, the Panel must
preliminarily establish whether Panama is eligible to bring a claim under Article I even though it does
not currently export textiles, apparel and footwear of Panamanian origin to Colombia.
(c) Panama's right to bring a claim under Article I of the GATT 1994
7.324 Before proceeding to assess whether Colombia confers an advantage that is not extended
unconditionally to all like products, the Panel will first address whether Panama may properly raise its
claim under Article I:1 of the GATT 1994. Colombia has argued that it cannot be considered as
having failed to meet its obligations under Article I:1 of the GATT 1994 since Panama does not
593
Appellate Body Report, Canada – Autos, para. 69.
594
595
Panel Report, EC – Bananas III (Article 21.5 – US), para. 7.555, Panel Report, Indonesia – Autos,
para. 14.138, citing to Appellate Body Report, EC – Bananas III, para. 206.
WT/DS366/R
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actually produce the textile, apparel and footwear at issue in this dispute. Colombia argues that
Article I:1 only applies to products originating in one Member's territory as the provision is based on
the origin of the product, and not on the place of exportation.596 In light of Panama's failure to
demonstrate that it produces textile, apparel or footwear products for export, Colombia considers it
has not failed to meet its obligations under Article I.597
7.325 In considering whether a measure violates Article I:1 based on its design, structure and
architecture, Panama considers it legally irrelevant whether or not Panama produces the good in
question.598 Panama considers that Article I:1 protects potential future trade, and the conditions of
competition between suppliers of different origin, irrespective of trade volumes.599 Panama
additionally notes that it currently produces at least one apparel product for export600, and has a
potential export interest for other apparel as well as textiles and footwear.601
7.326 The Appellate Body in EC – Bananas III has previously considered the issue of whether the
United States had "standing" to bring a claim under the GATT. In that particular dispute, the United
States filed a claim under the GATT against the European Communities, even though it did not, at
that time, export bananas. The Appellate Body found the United States was sufficiently justified in
raising its claim, stating:
"We are satisfied that the United States was justified in bringing its claims under the
GATT 1994 in this case. The United States is a producer of bananas, and a potential
export interest by the United States cannot be excluded ... We also agree with the
Panel's statement that:
... with the increased interdependence of the global economy, ...

Members have a greater stake in enforcing WTO rules than in the
past since any deviation from the negotiated balance of rights and
obligations is more likely than ever to affect them, directly or
indirectly.602"603
7.327 In reaching its conclusion, the Appellate Body noted that Members have broad discretion to
bring a claim before the WTO:
"[W]e believe that a Member has broad discretion in deciding whether to bring a case
against another Member under the DSU. The language of Article XXIII:1 of the
GATT 1994 and of Article 3.7 of the DSU suggests, furthermore, that a Member is
expected to be largely self-regulating in deciding whether any such action would be
'fruitful'."604
596
597
598
599
Panama's second written submission, para. 162. Panama has stated it has a manufacturing industry
with a potential interest in exporting to Colombia: see Panama's first oral statement, para. 74. In response to a
question from the Panel, Panama also indicated that no Panamanian companies presently produce textiles, and
does not export domestically produced footwear.
600
As mentioned in footnote 579, Panama submitted in response to Panel question No. 141 that one
Panamanian Company exports a particular type of apparel, which it referrs to as Panamanian guayaberas.
601
Panama's first oral statement, para. 74; Panama's response to Panel question No. 141; Exhibits
PAN 78(a) and (b).
602
(footnote original) Panel Reports, para. 7.50.
603
604
Appellate Body Report, EC – Bananas III, para. 135. The Appellate Body considered the language
in the chapeau of Article XIII ("If any Member should consider that any benefit accruing to it directly or
WT/DS366/R
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7.328 The Panel further notes the notion of protecting benefits that accrue to Members directly or
indirectly within Article 3.3 of the DSU, which has Article XXIII of the GATT 1994 as its basis:
"The prompt settlement of situations in which a Member considers that any benefits
accruing to it directly or indirectly under the covered agreements are being impaired
by measures taken by another Member is essential to the effective functioning of the
WTO and the maintenance of a proper balance between the rights and obligations of
Members."
7.329 In line with the Appellate Body's decision in EC – Bananas III, the Panel is satisfied that a
sufficient basis exists for Panama to bring its claim under Article I:1 of the GATT 1994, with respect
to subject textiles, apparel and footwear classifiable under Chapters 50–64 of Colombia's Tariff
Schedule. As noted, Panama currently produces apparel for export, has stated its interest in exporting
domestically produced footwear and other apparel in the future, and stated its potential to manufacture
textiles in the future. In the Panel's view, Panama has sufficiently demonstrated its interest in a
determination of rights and obligations under the WTO Agreement.
7.330 Accordingly, the Panel concludes that Panama is entitled to bring, and had sufficient interest
to initiate and proceed, with an Article I:1 claim against Colombia in relation to its advance
declaration and legalization measure concerning imports of textile, apparel and footwear products.
(d) Whether Colombia confers an advantage of the type covered by Article I:1 of the GATT 1994
7.331 The Panel will first consider whether Colombia, by imposing the requirement to present an
advance import declaration, the requirement to pay customs duties and taxes on the basis of this
declaration, and the legalization declaration fees under the ports of entry measure, confers an
advantage of the type covered by Article I:1 of the GATT 1994.
7.332 The Panel recalls that under Article 119 of Decree No. 2685 of 1999, applicable to imported
goods of all origins, an importer is generally permitted (but not required) to present an import
declaration as early as 15 days prior to arrival of the goods, or may delay presentation of the import
declaration until one month after the goods' arrival into Colombia or up to two months following
arrival, subject to authorization by Colombia's customs authority.605 In combination with the
requirement to present an import declaration, importers of goods are also required to pay customs
duties and sales tax at the time an import declaration is presented.606
7.333 As explained in Section II:D, under the advance import declaration and legalization
requirements within the ports of entry measure, importers of textiles, apparel and footwear arriving
from Panama or the CFZ are required to present an advance import declaration not more than 15
days607, but not less than five days prior to the arrival of the goods in Colombia.608 Those importers of
subject goods from Panama or the CFZ are also required to pay customs duties and taxes in
advance.609 Any importer that fails to present an advanced import declaration upon entry will only be
indirectly under this Agreement is being nullified or impaired or that the attainment of any objective of the
Agreement is being impeded ...") alongside that in Article 3.7 of the DSU ("Before bringing a case, a Member
shall exercise its judgement as to whether action under these procedures would be fruitful.")
605
(Exhibit COL-1).
606
Article 119 of Decree No. 2685 (Exhibit COL-1).
607
Article 1 of Resolution No. 7373 of 2007 (Exhibit PAN–34); Article 1 of Resolution No. 7637 of
28 June 2007 (Exhibit PAN–36).
608
Article 1 of Resolution No. 9859 of 23 August 2007 (Exhibit PAN–46).
609
Since all importers are generally required to pay customs duties and sales tax at the time an import
declaration is presented, importers of textiles and apparel from Panama and the CFZ, which are required to
present an import declaration in advance, therefore, must pay customs duties and sales tax in advance.
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able to proceed with importation if the importer submits a legalization declaration and pays a fee for
the "rescate", or recovery, of the goods (equal to 15 per cent of the value of the goods) in addition to
all customs duties and any accrued warehouse storage charges.610 Otherwise, the importer must
remove the goods from Colombian territory611 or the goods will be subject to seizure.612
7.334 In addition to the requirement to present an advance declaration and pay customs duties and
sales tax on the basis of that declaration, importers of textiles from Panama or the CFZ are subject to a
requirement to pay a fee equal to 3 per cent of the value of the goods to correct errors in the import
declaration, whenever discrepancies exceed 7 and 10 per cent of the value in terms of weight per
square metre and width, respectively.613 This means that under the advance import declaration and
legalization requirements, importers of textiles from Panama or the CFZ are exempt from the fee only
in cases where errors do not exceed the 7 and 10 per cent discrepancies.614
7.335 On the basis of the text of Article I:1 and in light of Appellate Body's jurisprudence, Panama
considers that the term "advantage" in Article I:1 should be interpreted broadly to include any
advantage and not only those economic in nature, as the GATT is intended to protect competitive
opportunities and not trade flows.615 Panama considers the requirement to present an advance
declaration and pay customs duties at that time creates a disadvantage for importers of textile from
Panama, as importers are not able to inspect goods in advance. 616 If there are discrepancies between
the information provided in the import declaration and the goods actually entered, then an importer
will be required to file a legalization declaration under the ports of entry measure.617 Second, if the
discrepancies or errors in the description of goods exceed 7 per cent in terms of weight per square
metre, or 10 per cent in terms of the width of the textile, the importer will be required to pay a fee for
the "rescate", or recovery, of the goods.618 Thus, the advantage granted to importers of textiles from
other countries of being able to inspect the goods before submitting an import declaration is not an
advantage extended to textile importers from Panama.619
7.336 Colombia has argued that the concept of advantage in Article I only extends to any advantage
that affects commercial opportunities in a way that creates more favourable competitive opportunities
for products of a certain origin.620 In this sense, Article I:1 would not prohibit differences in
conditions that apply to Members' imports as long as those differences do not extend a competitive
advantage to other Members' imports.621
7.337 Colombia argues that Panama has failed to demonstrate that the advance declaration
requirement, which is optional for all importers and which is regularly used by importers to accelerate
610
611
Article 6 of Resolution No. 7373 (Exhibit PAN-34); Article 231 of Decree No. 2685
(Exhibit PAN-32).
612
613
Article 128.7 of Decree No. 2685 of 1999 (Exhibit COL-1), as modified by Decree No. 1232 of
2001. The Panel notes under Article 153 of Resolution No. 4240 of 2000 (Exhibit COL-2), as modified by
Article 1 of Resolution No. 8038 of 2005 all importers submitting an advance import declaration are required to
pay a fee to correct an import declaration, where differences between the actual goods and what is stated in the
import declaration exceed 7 per cent, in terms of weight per square metre, or 10 per cent in terms of width.
614
Article 3 of Resolution No. 7373 of 22 June 2007 (Exhibit PAN–34).
615
616
617
Resolution No. 7373, Article 6.
618
Article 231 of Decree No. 2685.
619
Panama's second oral statement, para. 62; Panama's response to Panel question No. 75.
620
Colombia's first written submission, para. 299, citing to EC – Bananas III, para. 7.239. Colombia
considers that in the context of an economic agreement such as the GATT, the term "advantage" must have an
economic meaning which implies that it refers to an advantage in economic and competitive terms (see
Colombia's second written submission, para. 193).
621
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the importation process, imposes a competitive disadvantage.622 Colombia considers the fact that
many importers elect to use this advanced legalization option signifies that it must be seen as an
advantage rather than a disadvantage.623 Colombia also submits that the 7 and 10 per cent discrepancy
rule is favourable to importers and is intended to offset the fact that an importer is not able to inspect
goods before importation. In what Colombia deems an "ordinary" situation, an importer is not
allowed to legalize any discrepancies without having a fee assessed, whereas importers are able to do
so whenever submitting an advance import declaration.624
7.338 Panama rejects Colombia's argument that importers' use of an advance import declaration
signifies that it must be seen as an advantage.625 Panama notes primarily that the majority of
importers have the option to file an advance declaration when the importer is certain about the
contents of a particular shipment, whereas importers of textile from Panama must file an advance
declaration for all shipments regardless of whether the importer is certain about the content and
specifications of the shipment.626 Panama further rejects the notion that other importers' use of an
optional advance declaration mitigates against considering an advance declaration requirement as
disadvantageous. In this respect, Panama argues that it is not a requirement under Article I:1 to
submit evidence in the form of adverse trade effects that these customs requirements create more
favourable opportunities for other Members' imports.627 According to Panama, whether a measure
violates Article I:1 does not depend on whether adverse trade effects result from the measure's
imposition, but whether the measure is applicable based exclusively on the product's origin.628
7.339 The first issue before the Panel is thus whether Colombia, by imposing the advance import
declaration and legalization requirements under the ports of entry measure, confers an advantage
within the meaning of Article I:1 of the GATT 1994 on textile, apparel and footwear imported from
other WTO Members, as compared with like products imported from Panama or the CFZ.
7.340 The term "advantage" within Article I:1 of the GATT 1994 has been interpreted broadly by
the Appellate Body as well as GATT and WTO panels.629 In Canada – Autos, the Appellate Body
discussed the significance of "any advantage … granted by any Member to any product":
"We note next that Article I:1 requires that 'any advantage, favour, privilege or
immunity granted by any Member to any product originating in or destined for any
other country shall be accorded immediately and unconditionally to the like product
originating in or destined for the territories of all other Members.' (emphasis added)
The words of Article I:1 refer not to some advantages granted 'with respect to' the
subjects that fall within the defined scope of the Article, but to 'any advantage'; not
to some products, but to 'any product '; and not to like products from some other
Members, but to like products originating in or destined for 'all other ' Members."630
622
Colombia's first written submission, para. 302; Colombia's second written submission, para. 191;
623
624
625
Panama notes that Colombia has not provided any evidence to substantiate this argument: Panama's
second written submission, para. 153.
626
Panama's response to Panel question No. 75; Panama's second written submission, para. 154;
627
Panama's first oral statement, para. 69; Panama's second written submission, para. 158.
628
629
The Appellate Body in EC – Bananas III commented that "a broad definition has been given to the
term 'advantage' in Article I:1 of the GATT 1994 by the Panel in United States – Non-Rubber Footwear." See
Appellate Body Report, EC – Bananas III¸ para. 206, citing to GATT Panel Report, US – Non-Rubber
Footwear, para. 6.9.
630
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7.341 The panel in EC – Bananas III considered that "advantages" within the meaning of Article I:1
are those that create "more favourable competitive opportunities" or affect the commercial
relationship between products of different origins.631
7.342 The parties consider that these measures constitute "rules and formalities in connection with
importation".632 As the Panel notes, Colombia has confirmed that importers of certain textiles,
apparel and footwear originating in and/or arriving from Panama or the CFZ must present an import
declaration no earlier than 15 days but no later than five days prior to the goods entry into Colombia,
and pay customs duties and sales tax on the basis of this advance declaration.633 This requirement to
present a declaration in advance applies only to importers of subject goods from Panama or the CFZ,
as such an advance declaration remains an option for other importers whose goods do not transit
through Panama before arriving to Colombia.634 Colombia has additionally confirmed that all
importers of textiles must pay a fee to rectify import declarations, whenever the differences between
the actual goods and what is stated in the import declaration with respect to the weight per square
metre or the width exceed 7 and 10 per cent, respectively.635 While this latter requirement applies to
all textile importers that elect to present an advance declaration, as Colombia has acknowledged that
only importers of textiles arriving from Panama or the CFZ are obliged to present an advance
declaration, the Panel concludes that only importers from Panama or the CFZ are necessarily subject
to this 7 and 10 per cent discrepancy rule.636
7.343 As noted above, these requirements apply to subject goods originating in, or arriving from,
Panama or the CFZ. In other words, these measures apply to goods originating in Panama or the CFZ
as well as subject like-product goods originating in other countries which transit through Panama or
the CFZ before arriving to Colombia. Like-product goods originating in other countries which do not
transit through Panama or the CFZ are not subject to any of the above requirements outright, as long
as the importer does not elect as an option to present an advance import declaration.
7.344 In light of Colombia's factual confirmations, the Panel concludes that the flexibility to present
an import declaration simultaneous with (or after) the arrival of the goods provides an advantage to
imports eligible for advance declarations as compared to imports that are not. As to whether this
advantage is the type of "advantage" within the meaning of Article I:1 of the GATT 1994, the Panel
notes the statement by the Appellate Body in Canada – Autos, discussed above:
"The words of Article I:1 refer not to some advantages granted 'with respect to' the
subjects that fall within the defined scope of the Article, but to 'any advantage'; not to
some products, but to 'any product '; and not to like products from some other
Members, but to like products originating in or destined for 'all other' Members."637
7.345 As demonstrated by this statement, the Appellate Body attributed a broad interpretation to the
notion of "advantage".
7.346 In light of this broad view, the Panel disagrees with Colombia's contention that importers are
not granted an advantage that affect commercial opportunities in a way that creates more favourable
competitive opportunities for products of a certain origin. On the contrary, in the Panel's view, the
measure has precisely that effect. Colombia argues that Panama has not presented any information to
support its claim that an advanced import declaration, or the requirement to pay customs duties and
631
Panel Report, EC – Bananas III (Guatemala and Honduras), para. 7.239; Colombia's first written
submission, para. 299; Panama's first written submission, para. 185
632
Panama's first written submission, para. 184, Colombia's first written submission, para. 297.
633
634
635
636
637
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taxes in advance, or the limitation of legalization without a fee, affects a product's competitive
opportunities or confers an advantage.638 However, the Panel disagrees.
7.347 As Panama has noted, importers of goods arriving from Panama are required to submit import
declarations in advance, and accordingly, pay customs duties and taxes in advance. Importers of
goods from other destinations, however, are not required to file import declarations in advance.
Accordingly, those importers are granted flexibility to make customs duty and tax payments when
they see fit. In addition to this aspect, and possibly more importantly, since importers of goods from
Panama and the CFZ are required to present an advance declaration prior to the goods' arrival in
Colombia, the importers are prevented from inspecting goods prior to presenting the related import
declaration.639 As is the case with all textiles importers, a fee is assessed to correct an import
declaration in cases where discrepancies in the reported weight per square metre or width are
determined to exceed 7 and 10 per cent, respectively. In cases where differences are less than 7 and
10 per cent, an importer who has filed an advance declaration will be able to correct his declaration
without being assessed a fee, just as an importer who has not presented an advance import declaration
would. However, in cases where the difference is greater than 7 and 10 per cent, respectively, an
importer who has filed an advance declaration would be assessed a fee. An importer who has not
filed an advance import declaration would retain the option to inspect his goods on site upon arrival,
verifying their dimension and weight, prior to submitting a declaration, thereby assuring himself of
the accuracy of the declaration and avoiding the fees required to file a legalization declaration. In this
sense, such an importer not filing an import declaration in advance, although able to do so, may avoid
the assessment of fees, whereas an importer of goods arriving from Panama will not.
7.348 The Panel notes Colombia's assertion that the requirement to present an advance import
declaration should not be considered a disadvantage to importers from Panama and the CFZ as many
importers that are not required to do so nevertheless "regularly use" advance import declarations.640
Panama disputes this argument on a number of grounds. From a factual standpoint, Panama notes that
Colombia has not presented any evidence to support this statement. In reference to the US – Certain
EC Products dispute, Panama also argues that it is not a requirement under Article I:1 to submit
evidence that these customs requirements create more favourable opportunities for other Members'
imports.641 Instead, a violation of Article I:1 can arise because a measure extends an advantage only
to one Member's imports, but not to all Members' imports, and depends exclusively on the product's
origin.642 Colombia argues that Panama's reference to the case of US – Certain EC Products is
erroneous, as the panel in that dispute found that a negligible effect arising from an increased bonding
requirement did not detract from the basic conclusion that a continuous bond requirement
significantly increased the burden on certain European Community products in 93 per cent of cases.643
638
Colombia's first written submission, para. 300, Colombia's second written submission, para. 196;
639
Colombia has confirmed in its response to Panel question No. 155 that importers may inspect goods
before presenting an import declaration in ordinary situations, although Colombia asserted that inspection is not
very common in practice. Colombia considers that certain importers are willing to file advance declarations in
the interest of expediency, thereby taking on the risk that, in case of discrepancies, the importer will need to pay
for the legalization of the goods.
640
Colombia's first written submission, para. 300. Colombia also notes that, by imposing this advanced
import declaration, the two relevant customs administrations will have received prior information of the
products that are being shipped to Colombia. This allows DIAN to have special customs officials in these
administrations to examine particular shipments and it enables the use of "observadores" (experts in the
smuggling of goods) to perform their tasks adequately, thus allowing DIAN to be more effective in combating
smuggling.
641
642
643
Colombia's second written submission, para. 196, citing to Panel Report, US – Certain EC Products,
para. 6.48.
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7.349 The Panel considers this argument unpersuasive for several reasons. In the Panel's view, the
conclusions in US – Certain EC Products, support the view taken by Panama. In discussing the effect
of a continuous bond requirement, the Panel noted:
"We recall that approximately 93 per cent of the EC imports (and assuming therefore
approximately 93 per cent of the EC listed imports) were subject to continuous entry
bonds. From the evidence before us, we believe that in most cases of EC listed
imports the 3 March Measure led to increased bonding requirements. There may,
however, be situations where the 3 March additional bonding requirements were
negligible or did not increase. We consider, however, that the object of our
examination is the mechanism put in place through the 3 March Measure as a
whole."644 (footnote omitted)
7.350 Thus, the panel in US – Certain EC Products recognized that although a measure may not
have application in every situation, the relevant consideration remains the mechanism put in place by
the measure, not its effect in a certain number of occasions or to a certain volume of imported
products.
7.351 In examining the measure in terms of its design, the fact remains that for all imports arriving
in Colombia without previously transiting through Panama or the CFZ, importers are given a number
of options: to present an import declaration in advance, at the time of arrival or up to two months after
arrival in certain cases. Despite the frequency with which importers opt to inspect goods, Colombia
agrees that importers may choose to inspect goods before presenting an import declaration if
permitted to do so.645 Colombia has noted that importers would conduct an inspection in cases where
they have doubts about the reliability of the exporter or the specific shipment. Colombia has
additionally pointed out that certain importers are willing to file advance declarations in the interest of
expediency, thereby taking on the "risk" that, in case of discrepancies, the importer will need to pay
for the legalization of the goods. In the Panel's view, these statements alone demonstrate the
existence of an advantage of the type contemplated under Article I:1 of the GATT 1994. As Colombia
notes, on certain occasions an importer may be willing to declare in advance for the sake of
expediency, at the risk of paying a fee in case of discrepancies uncovered at the time of inspection.
However, an importer in other occasions may perceive a high risk and choose to withhold presenting a
declaration until he has determined the contents and specifications of the goods, in order to avoid
discrepancies. Inherently, an advantage arises for an importer that can choose how to operate his
business in order to enhance his profitability and competitiveness, among other concerns.
7.352 In light of the foregoing conclusions, the Panel determines that Colombia, by imposing the
advance import declaration and legalization requirements within the ports of entry measure confers an
advantage within the meaning of Article I:1 of the GATT 1994. In particular, one advantage arises
from the fact that importers of subject goods from territories other than Panama or the CFZ are
granted flexibility to make customs duty and tax payments when they see fit. Additionally, an
importer that has not filed an advance import declaration would retain the option to inspect his goods
on site upon arrival, verifying its dimension and weight, prior to submitting a declaration, thereby
assuring himself of the accuracy of the declaration and avoiding fees required to file a legalization
declaration.
(e) Whether like products from other Members are granted an advantage within the meaning of
7.353 The Panel will next consider whether like products from other Members are granted an
advantage which is not extended unconditionally to subject goods from Panama. The Panel notes that
644
Panel Report, US – Certain EC Products, para. 6.51.
645
Colombia has confirmed this in its response to Panel question No. 155.
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the advance import declaration and legalization requirements do not apply strictly on the basis of
origin, but also depend on the path of transit taken by particular textile, apparel and footwear
products. Thus, for instance, a textile product shipped from China with passage through Panama or
the CFZ will be subject to the advance import declaration and legalization requirements. However, if
the same good is shipped from China directly to Colombia that good will not be subject to these
additional requirements, including the obligation to declare goods in advance and pay customs duties
and taxes on the basis of that advance declaration.
7.354 The Panel further notes that the parties have not disputed whether textiles, apparel and
footwear from other Members are like products to those arriving from Panama or the CFZ. However,
as mentioned above, Colombia has challenged whether Panama has standing to bring a claim under
Article I:1 on the basis of the fact that Panama does not export textiles, apparel or footwear
products.646 We recall our finding that Panama is entitled to bring, and had sufficient interest to
initiate and proceed with, an Article I:1 claim against Colombia in relation to its advance import
declaration and legalization requirements within the ports of entry measure.
7.355 In the Panel's view, it is not necessary to determine through lengthy analysis whether textiles,
apparel or footwear arriving from other countries are in fact like products to those goods originating
in and arriving from Panama. Based on the design of the ports of entry measure, any textiles, apparel
or footwear imported from territories other than Panama or the CFZ, are like products, and would
necessarily be allowed entry at 11 ports of entry in Colombia without presenting an advance import
declaration, as long as the product did not circulate through Panama or the CFZ prior to arrival in
Colombia.647 The distinction between products, which determines whether or not an advance
declaration is required (and hence whether customs duties and sales tax are assessed, and what rights
are available to inspect merchandise and verify accuracy of the import declaration), is not based on
the products per se, but rather on the territory from which the product arrives. In this sense, a product
originating in, or arriving from Panama, or the CFZ identical in all respects to a product arriving into
Colombia from any other territory (that did not circulate through Panama or the CFZ prior to arrival in
Colombia), would be subject to the advance import declaration and other requirements at issue.
7.356 The Appellate Body has previously recognized the possibility of using hypothetical imports to
determine whether a measure violates Article III:2 of the GATT 1994.648 Under the advance import
declaration and legalization requirements, the distinction between products is based on the circulation
and points of departure of textile, apparel and footwear products prior to the products' arrival in
Colombia. In particular, since Panama does not currently produce any of these products for export to
Colombia, but in light of the fact that the Panel views it as proper to consider Panama's claim,
hypothetical imports from Panama or the CFZ are appropriate for consideration. An advance import
declaration, advance payment of customs duties and taxes, and special rules concerning legalization
would be required simply because of the products' origin. In the Panel's view, the hypothetical origin-
based distinction that would arise if Panama were to produce the subject goods and export those
goods to Colombia is sufficient for the Panel to proceed in considering Panama's claim under
Article I:1 of the GATT 1994.
7.357 Therefore, the Panel considers it appropriate to proceed in comparing hypothetical textile,
apparel and footwear products originating in Panama or the CFZ with those "like products" arriving
from other Members (which have not previously circulated through Panama or the CFZ prior to
646
See Section VII.H.2(c).
647
Colombia has confirmed that while 26 ports of entry exist in its territory (see Colombia's first
written submission, para. 185), textiles, apparel and footwear from all Members may only enter at 11 designated
ports of entry (see Article 39 of Resolution No. 4240 of 2000 (Exhibit PAN–38)).
648
Appellate Body Report, Canada – Periodicals, pp. 20-21; see also Panel Report, Indonesia – Autos,
para. 14.113.
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arrival in Colombia). Accordingly, the Panel concludes that textile, apparel and footwear originating
in Panama are like products to textiles, apparel and footwear originating in other countries.
(f) Whether Colombia confers an advantage that is not extended "immediately and
unconditionally" to imports from Panama
7.358 The Panel will next determine whether the advantage discussed above has not been accorded
"immediately and unconditionally" to goods from Panama. The Panel recalls its finding that the
imposition of the advance import declaration and legalization requirements, in combination with
restrictions on ports of entry649, grants an advantage to imports of textiles, apparel and footwear from
countries other than Panama or the CFZ, as importers of those goods are not required to present an
advance import declaration, pay customs duties and sales tax on the basis of the advance declaration,
or conform with particular legalization requirements associated with the presentation of an advance
declaration. The Panel recalls that importers of textiles, apparel and footwear from Panama are
required to make an advance declaration, while importers of products from other territories maintain
the option to do so, as long as those goods do not circulate through Panama or the CFZ prior to arrival
in Colombia. As the Panel explained, the advantage arises from the fact that importers from countries
other than Panama or the CFZ are granted flexibility to make customs duty and tax payments when
they see fit. Additionally, an importer that has not filed an advance import declaration would retain
the option to inspect his goods on site upon arrival, verifying its dimension and weight, prior to
submitting a declaration, thereby assuring himself of the accuracy of the declaration and avoiding fees
required to file a legalization declaration.
7.359 In light of these findings, the Panel must also establish that the discussed advantages have not
been accorded "immediately and unconditionally" to goods from Panama. Panama considers it self-
evident that the advantage has not been conferred immediately and unconditionally on imports from
Panama and the CFZ as only importers of products arriving from Panama are required to present an
advance declaration and comply with other customs requirements.650
7.360 Colombia argues that Panama has failed to demonstrate that such advantage is not extended
"immediately and unconditionally" to imports from Panama. As noted above, Colombia considers
that Members are permitted to attach conditions when granting an advantage in the first place, as long
as additional conditions are not placed on certain Members while not on others.651 In this sense,
Colombia argues that Members are entitled to condition access to its market on compliance with and
respect for the Member's laws and regulations, including customs laws.652 Failure to respect the
conditions may permit a Member to deny an advantage to an importer, as the privilege is conditioned
on requirements, which, if not respected or met, may be revoked.653 In Colombia's view, its customs
procedures are conditioned on the need for customs authorities to be able to control and verify
imported merchandise from Panama and to avoid circumvention of such laws and regulation through
under-invoicing, fraud and smuggling – general policy conditions that apply to all goods irrespective
of their origin.654
7.361 We recall that the panel in Canada – Autos considered that the issue of whether an advantage
within the meaning of Article I:1 is accorded "unconditionally" cannot be determined independently
of an examination of whether it involves discrimination between like products of different
649
As discussed above in Section VII.H.2(a), these measures include Article 119 of Decree No. 2685 of
1999, Resolution No. 9859 of 23 August 2007, Article 231 of Decree No. 2685, Article 128.7 of
Decree No. 2685 of 1999, and Article 153 of Resolution No. 4240 of 2000.
650
651
Colombia's first written submission, para. 304; Colombia's second written submission, para. 197.
652
653
654
Colombia's first written submission, para. 307. Colombia noted in the preceding paragraph of its
first written submission that the test of Article I is about discrimination not deregulation.
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countries.655 The panel found that "[w]hether conditions attached to an advantage granted in
connection the importation of a product offend Article I:1 depends upon whether or not such
conditions discriminate with respect to the origin of products."656 The panel explained its view in
light of the term "unconditionally" as it appears in Article I:1 in its context and in light of the object
and purpose of Article I:1. The panel commented as follows:
"The word 'unconditionally' in Article I:1 does not pertain to the granting of an
advantage per se, but to the obligation to accord to the like products of all Members
an advantage which has been granted to any product originating in any country. The
purpose of Article I:1 is to ensure unconditional MFN treatment. In this context, we
consider that the obligation to accord 'unconditionally' to third countries which are
WTO Members an advantage which has been granted to any other country means that
the extension of that advantage may not be made subject to conditions with respect to
the situation or conduct of those countries. This means that an advantage granted to
the product of any country must be accorded to the like product of all WTO Members
without discrimination as to origin.
In this respect, it appears to us that there is an important distinction to be made

between, on the one hand, the issue of whether an advantage within the meaning of
Article I:1 is subject to conditions, and, on the other, whether an advantage, once it
has been granted to the product of any country, is accorded "unconditionally" to the
like product of all other Members. An advantage can be granted subject to conditions
without necessarily implying that it is not accorded "unconditionally" to the like
product of other Members. More specifically, the fact that conditions attached to
such an advantage are not related to the imported product itself does not necessarily
imply that such conditions are discriminatory with respect to the origin of imported
products."657
7.362 In line with the approach elaborated in the Canada – Autos dispute, the Panel considers that it
may thus assess whether the advantage is conferred "immediately and unconditionally" based on
whether an advantage granted to textiles, apparel or footwear of any Member is not similarly accorded
to those products originating in Panama for reasons related to its origin or the conduct of Panama.
7.363 Colombia has confirmed that the requirement to present an advance import declaration and
pay customs duties and taxes on the basis of this advance declaration apply to subject textile, apparel
and footwear goods arriving from Panama.658 This is also clear on the face of the legislative
instruments, discussed above, which specify goods arriving from Panama and the CFZ as applicable
merchandise. Colombia has also clarified that the products other than those under the ports of entry
measure are not subject to the requirement to present an advance declaration.659 Other products may
optionally submit an advance import declaration, but are not required to do so.
7.364 The Panel notes Colombia's argument that the requirement to pay a fee to rectify import
declarations outside the 7 and 10 per cent discrepancy rule, applies not just to Panamanian imports but
to all textile imports. However, as noted above660, the Panel has determined that this requirement is
disadvantageous in combination with the requirement to present an advance declaration, which
prevents an importer from inspecting goods and determining its weight and width before submitting a
customs declaration.
655
Panel Report, Canada – Autos, para. 10.22.
656
657
Panel Report, Canada – Autos, paras. 10.23-10.24.
658
Colombia's response to Panel question No. 73. Colombia's response to Panel question No. 154.
659
660
See para. 7.347.
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7.365 Based on Colombia's clarifications, since the option to present an import declaration in
advance is denied to any textile, apparel or footwear goods originating in Panama or the CFZ based
on the goods' origin, the Panel concludes that the advantages arising from the ability to present an
import declaration in advance or withhold doing so until after the goods enter Colombia have not been
extended unconditionally to imports from Panama.
7.366 With respect to Colombia's view that it may condition its customs procedures on the need to
control and verify imported merchandise from Panama and to avoid circumvention of such laws and
regulation through under-invoicing, fraud and smuggling, without violating Article I:1, the Panel
reiterates the view expressed in Canada – Autos661 that conditions attached to an advantage granted in
connection with the importation of a product will violate Article I:1 when such conditions
discriminate with respect to the origin of products. As such, in the Panel's view, Article I:1 prohibits
Members from addressing such concerns through the use of customs rules that are applied on the basis
of origin.
(g) Conclusion
7.367 Accordingly, the Panel concludes that, by subjecting textile, apparel and footwear imports
arriving from Panama and the CFZ to an advance import declaration requirement, which thereby
requires payment of customs duties and sales tax in advance, and by preventing inspection of goods
on site upon arrival in order to verify the accuracy of the declaration and avoid payment fees prior to
submitting a declaration, where applicable, Colombia confers advantages to like products from all
other WTO Members and third countries that are not extended immediately and unconditionally to
textile, apparel and footwear imports from Panama. Therefore, the Panel finds that Colombia's
imposition of advance import declaration and legalization requirements within the ports of entry
measure on imports of textiles, apparel and footwear arriving from Panama or the CFZ is inconsistent
with Article I:1 of the GATT 1994.
I. WHETHER THE PORTS OF ENTRY MEASURE DENIES FREEDOM OF TRANSIT TO TEXTILES,

APPAREL AND FOOTWEAR ARRIVING FROM PANAMA IN INTERNATIONAL TRANSIT IN
CONTRAVENTION OF ARTICLE V:2 OF THE GATT 1994
7.368 Panama argues that Colombia's failure to permit "freedom of transit" to all textiles, apparel
and footwear in international transit, and not only those that are trans-shipped, is inconsistent with its
obligations under the first sentence of Article V:2 of the GATT 1994. Panama submits that
Colombian law requires that goods must be trans-shipped from the same customs office662, and not
merely have their final destination outside of Colombia in order to be exempt from the port of entry
restrictions.663 Thus, Colombian law only exempts textiles, apparel and footwear from port of entry
and transit restrictions if the goods are trans-shipped.664 Panama argues that Article V:2, first
sentence, as informed by Article V:1, obliges WTO Members to grant freedom of transit to traffic in
transit to a territory of a third country regardless of whether the goods are trans-shipped or
warehoused, or whether the importer breaks bulk or whether changes are made in the mode of
transport.665
7.369 Panama additionally argues that the ports of entry measure violates Article V:2, second
sentence. While textiles, apparel and footwear originating in, or transiting through Panama must enter
661
662
663
664
665
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and clear customs at Bogotá or Barranquilla, Panama submits that goods arriving directly from other
Member countries may enter at any of 11 eligible ports in Colombia (on the condition the goods did
not first transit through Panama), and proceed in international transit without clearing customs. Under
Article V:2, second sentence, Panama submits that Members may not make distinction between
products arriving from another Member based on the place of origin or departure of goods.
7.370 Colombia argues that Panama's claim under Article V is invalid as the ports of entry measure
does not apply to goods in international transit, but only goods, irrespective of their origin or point of
shipment, which are shipped from Panama and have Colombia as a final destination. For this reason,
Colombia submits that the ports of entry measure or any of its laws and regulations are consistent with
Article V:2 of the GATT 1994.
7.371 Colombia submits that Article V:2 applies to goods as traffic in transit when the goods'
passage across the territory of another Member is only a portion of a complete journey beginning and
terminating beyond the frontier of the contracting party across whose territory the goods pass.666
Under the ports of entry measure, Colombia argues that textiles, apparel and footwear in international
transit with a final destination outside Colombia are expressly exempt from restrictions on ports of
entry, and can thus enter at any of 11 eligible ports.667
7.372 Colombia further disputes that the reference to trans-shipment within the port of entry
measure's exemption clause allows for violations of Article V, first or second sentence.668 In practical
terms, Colombia submits that it is only possible for goods to enter Colombia from Panama by sea or
air, as no road connects the countries, thereby necessitating that the goods undergo trans-shipment in
order to enter Colombia and proceed in international transit.669 As such, a requirement to undergo
trans-shipment does not inhibit freedom of transit, as trans-shipment will always be necessary for
goods arriving from Panama.
7.373 Despite its view that Panama has failed to meet its burden of proof to demonstrate that goods
are not extended freedom of transit670, Colombia argues it is clear under its international obligations
that freedom of transit is guaranteed for all merchandise from all countries.671 Colombia has also
stated that it is willing to make a public commitment that goods in international transit are not covered
by the measure in question.672
(a) Legislation related to Colombia's international transit regime
7.374 As explained in Section VII.E.2(a) above, under the ports of entry measure, Colombia has
imposed temporary restrictions on the importation of certain textiles, apparel and footwear classifiable
under Chapters 50-64 of the Colombian Tariff Schedule arriving from Panama into Colombia.
Specifically, under Article 2 of Resolution No. 7373673, as modified by Resolution No. 7637674,
subject textiles, apparel and footwear may only be entered at Bogota airport or Barranquilla seaport:675
666
667
paras. 174-175.
668
Colombia's second written submission, para. 177; Colombia's second oral statement, para. 46.
669
670
Colombia's first written submission, para. 285; Colombia's second oral statement, para. 47.
671
672
673
See Exhibit PAN-34
674
See Exhibit PAN-36.
675
Exhibit PAN-34.
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aduanero."676
7.375 In addition to other exemptions, Article 4, paragraph 3 of Resolution No. 7373 provides that
the general restriction imposed under Article 2 will not apply to goods which are submitted for trans-
shipment, in consideration that goods that undergo trans-shipment do not have Colombia as a final
destination:
"Lo señalado en el articulo 2o, de la presente resolución no se aplicará sobre

aquellos bienes que se pretendan someter a las modalidad de transbordo,
considerando que en este caso la mercancía no tiene como destino final
Colombia."677
7.376 The restriction to two ports of entry, including the exemption applicable to goods in
international transit, supersedes the regular transit regime under Colombian law. Article 1 of
Colombia's Customs Statute permits transit of goods of foreign origin from one customs office to
another located in the national territory. Pursuant to this provision, transport by transit, cabotage or
trans-shipment is permitted:
"TRANSITO ADUANERO
Es el régimen aduanero que permite el transporte de mercancías nacionales o de

procedencia extranjera, bajo control aduanero, de una Aduana a otra situadas en el
territorio aduanero nacional."
En este régimen se pueden dar las modalidades de transito, cabotaje y transbordo."
7.377 Article 370 of Colombia's Customs Statute further defines the term "international transit" by
reference to the relevant Andean Community provisions:
"ARTICULO 370. TRÁNSITO ADUANERO INTERNACIONAL.
Para la realización del tránsito aduanero internacional se aplicará lo previsto en las

Decisiones 327 y 399 de la Comisión del Acuerdo de Cartagena o las normas que las
sustituyan, modifiquen o adicionen y en lo pertinente, lo dispuesto en el presente
Capítulo.
7.378 Andean Community Decision 327 defines international transit as the regime under which
goods are transported from one port to another in a single operation, wherein goods cross one or more
borders:
676
Exhibit PAN-36.
677
Exhibit PAN-36. Additionally, Article 4 exempts goods consigned or endorsed to the State; goods
imported for specific state or emergency uses: goods arriving by travellers or postal traffic, or in route to Leticia,
San Andrés or Santa Catalina; goods consigned to industrial users of free trade zones; and goods under
subheadings 64.01 to 64.05 of Colombia's Tariff Schedule that arrive at any of the 11 ports designated in
Article 39, paragraph 1 of Resolution No. 4240. Resolution No. 7637 further exempts goods consigned to
"Highly Exporting Users" and "Permanent Customs Users": see Article 3 of Resolution No. 7637.
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Tránsito Aduanero Internacional: El régimen aduanero bajo el cual las mercancías

sujetas a control aduanero son transportadas desde una aduana de partida hasta una
aduana de destino en una misma operación de transporte internacional, en el curso
de la cual se cruzan una o varias fronteras."
7.379 Andean Community Decision 327 applies to goods in international transit between two ports
in different Andean Member Countries as well as between two ports within the same Member country
provided that the goods transit through another Member Country:
"AMBITO DE APLICACION
Artículo 2.- Las disposiciones de la presente Decisión regirán para las operaciones
de transporte internacional de mercancías que circulen bajo el régimen de Tránsito
Aduanero Internacional:
- Desde una aduana de partida de un País Miembro hasta una aduana de destino de
otro País Miembro;
- Desde una aduana de partida de un País Miembro con destino a un tercer país, en
tránsito por uno o más Países Miembros distintos del de la aduana de partida; y
- Desde una aduana de partida hasta una aduana de destino ubicadas en el mismo
País Miembro, siempre que se transite por el territorio de otro País Miembro."
7.380 Andean Community Decision 399 provides that goods transported by road to and from third
countries, with passage through two or more Member Countries, will be subject to the national
legislation of each of the Member Countries through which they pass or to the relevant provisions of
international agreements in force:
"Artículo 7.- Para el transporte internacional de mercancías por carretera, se

establecen los siguientes tráficos:
a) Entre dos Países Miembros limítrofes;
b) Entre dos Países Miembros, con tránsito por uno o más Países Miembros;
c) Desde un País Miembro hacia un tercer país, con tránsito por uno o más Países
Miembros distintos del país donde se inicia el transporte;
d) Desde un tercer país hacia un País Miembro, con tránsito por uno o más Países
Miembros distintos del país donde termina el transporte; y,
e) En tránsito a través de dos o más Países Miembros desde y hacia terceros países.
En los tráficos señalados en los literales c), d) y e) son aplicables las disposiciones
de la presente Decisión y sus normas complementarias, sólo durante el recorrido por
los Países Miembros.
Artículo 8.- El transporte internacional que efectúen transportistas de terceros

países por el territorio de uno o más Países Miembros, se regirá por las normas
nacionales de cada uno de los Países Miembros por los cuales se transite o por lo
establecido en los convenios internacionales vigentes." (emphasis added)
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7.381 In addition, Andean Community Decision 617 sets rules for free circulation of goods between
Andean Community Member Countries from their place of origin to their destination without
undergoing certain customs clearance procedures. In particular, freedom of transit is guaranteed for
non-community goods that begin or conclude transit in a Member Country. Andean Community
Decision 617 provides in relevant part:
"Artículo 7.- Los Países Miembros, con arreglo a los procedimientos establecidos en
la presente Decisión, permitirán la circulación al amparo del régimen de tránsito
aduanero comunitario de:
1. Mercancías Comunitarias
1.1 Desde una aduana de partida de un País Miembro hasta una aduana de destino
del mismo País Miembro u otro País Miembro, en tránsito por uno o más Países
Miembros.
1.2 Desde una aduana de partida de un País Miembro con destino a un tercer país,
en tránsito por uno o más Países Miembros distintos del de la aduana de partida.
2. Mercancías No Comunitarias
2.1 Desde una aduana de partida de un País Miembro hasta una aduana de destino
de otro País Miembro, en tránsito por uno o más Países Miembros distintos del País
Miembro de partida.
2.2 Desde una aduana de partida de un País Miembro con destino a un tercer país,
en tránsito por uno o más Países Miembros distintos del País Miembro de partida.
2.3 Desde un tercer país hasta una aduana de destino de un País Miembro, en
tránsito por uno o más Países Miembros.
Artículo 8.- Las Aduanas de los Países Miembros permitirán la libre circulación de
los medios de transporte y unidades de carga, con arreglo a las disposiciones
establecidas en el ordenamiento jurídico comunitario y los Convenios
Internacionales y Convenios Bilaterales de transporte suscritos por los Países
Miembros que sean compatibles con el primero." (emphasis added)
7.382 Article 385 of Colombia's Customs Statute defines trans-shipment as follows:
"Es la modalidad del régimen de tránsito que regula el traslado de mercancías del
medio de transporte utilizado para la llegada al territorio aduanero nacional, a otro
que efectúa la salida a país extranjero, dentro de una misma aduana y bajo su
control sin que se causen tributos aduaneros."
7.383 Article 387 specifies that trans-shipment may be direct (i.e. without deposit in a warehouse)
or indirect (when goods are deposited in a warehouse during a period of storage):
"El transbordo puede ser directo si se efectúa sin introducir las mercancías a un
depósito habilitado, o indirecto cuando se realiza a través de éste."
7.384 Andean Community Decision 327 similarly defines trans-shipment under international transit
as involving the transfer of goods from one container or vehicle to another, in which goods are then
transported from one customs port to another in a single operation, and where one or more borders are
crossed.
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"Transbordo: El régimen aduanero con arreglo al cual se realiza, bajo control de

una aduana, el traslado de las mercancías de una unidad de carga o de un medio de
transporte a otro.
Tránsito Aduanero Internacional: El régimen aduanero bajo el cual las mercancías

sujetas a control aduanero son transportadas desde una aduana de partida hasta una
aduana de destino en una misma operación de transporte internacional, en el curso
de la cual se cruzan una o varias fronteras."
7.385 Andean Community Decision 617 additionally defines trans-shipment as the transfer of
goods, within the same customs office, from a means of transport to another, or to the same means of
of transport in a separate trip, with or without unloading, with the objective of proceeding to the
customs of destination:
"Operación de Transbordo: Traslado de mercancías, efectuado bajo control

aduanero de una misma aduana, desde un medio de transporte o unidad de carga a
otro, o al mismo en distinto viaje, incluida o no su descarga a tierra, con el objeto de
que continúe hasta la aduana de destino."
(b) Article V of the GATT 1994
7.386 Article V is entitled "Freedom of Transit" and provides as follows:
"1. Goods (including baggage), and also vessels and other means of transport,
shall be deemed to be in transit across the territory of a contracting party when the
passage across such territory, with or without trans-shipment, warehousing, breaking
bulk, or change in the mode of transport, is only a portion of a complete journey
beginning and terminating beyond the frontier of the contracting party across whose
territory the traffic passes. Traffic of this nature is termed in this article 'traffic in
transit'.
2. There shall be freedom of transit through the territory of each contracting

party, via the routes most convenient for international transit, for traffic in transit to
or from the territory of other contracting parties. No distinction shall be made which
is based on the flag of vessels, the place of origin, departure, entry, exit or
destination, or on any circumstances relating to the ownership of goods, of vessels or
of other means of transport.
3. Any contracting party may require that traffic in transit through its territory
be entered at the proper custom house, but, except in cases of failure to comply with
applicable customs laws and regulations, such traffic coming from or going to the
territory of other contracting parties shall not be subject to any unnecessary delays or
restrictions and shall be exempt from customs duties and from all transit duties or
other charges imposed in respect of transit, except charges for transportation or those
commensurate with administrative expenses entailed by transit or with the cost of
services rendered.
4. All charges and regulations imposed by contracting parties on traffic in

transit to or from the territories of other contracting parties shall be reasonable,
having regard to the conditions of the traffic.
5. With respect to all charges, regulations and formalities in connection with

transit, each contracting party shall accord to traffic in transit to or from the territory
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of any other contracting party treatment no less favourable than the treatment
accorded to traffic in transit to or from any third country.678
6. Each contracting party shall accord to products which have been in transit
through the territory of any other contracting party treatment no less favourable than
that which would have been accorded to such products had they been transported
from their place of origin to their destination without going through the territory of
such other contracting party. Any contracting party shall, however, be free to
maintain its requirements of direct consignment existing on the date of this
Agreement, in respect of any goods in regard to which such direct consignment is a
requisite condition of eligibility for entry of the goods at preferential rates of duty or
has relation to the contracting party's prescribed method of valuation for duty
purposes.
7. The provisions of this Article shall not apply to the operation of aircraft in
transit, but shall apply to air transit of goods (including baggage)."
7.387 As its title indicates, Article V of the GATT 1994 thus generally addresses matters related to
"freedom of transit" of goods. This includes protection from unnecessary restrictions, such as
limitations on freedom of transit, or unreasonable charges or delays (via paragraphs 2-4), and the
extension of Most-Favoured-Nation (MFN) treatment to Members' goods which are "traffic in transit"
(via paragraphs 2 and 5) or "have been in transit" (via paragraph 6).679
(c) Interpretation of Article V:2 of the GATT 1994
7.388 The Panel is called upon to determine whether the ports of entry measure is inconsistent with
the first and second sentences of Article V:2 of the GATT 1994. As was the case with the Customs
Valuation Agreement, Article V has never before been interpreted by the Appellate Body or a
GATT/WTO panel. The Panel's task is therefore arduous since it will be necessary to interpret
Article V of the GATT 1994 without any meaningful guidance.
7.389 Accordingly, the Panel will proceed to analyse Panama's claim under Article V:2 in
accordance with the principles of treaty interpretation set for the in the VCLT. In particular, the Panel
will consider Article V:2 in accordance with its ordinary meaning in its context and in light of its
object and purpose where necessary. To the extent the meaning of any terms in Article V:2 are
unclear, the Panel may also resort to supplementary means of interpretation, including the travaux
preparatoires to inform its interpretation.
(i) The scope of the concept of traffic in transit in Article V:2
7.390 The Panel will proceed to examine the scope of the term "traffic in transit" in Article V:2 by
considering the text of this provision on its face and in light of the context provided by Article V:1.
7.391 The Panel notes that the text of Article V:2, first sentence refers to "traffic in transit". In
particular, this provision reads: "There shall be freedom of transit through the territory of each
contracting party, via the routes most convenient for international transit, for traffic in transit to or
from the territory of other contracting parties." (emphasis added) The second sentence of Article V:2
provides that "[n]o distinction shall be made which is based on the flag of vessels, the place of origin,
678
The Ad Note to Article V:5 provides as follows: "With regard to transportation charges, the
principle laid down in paragraph 5 refers to like products being transported on the same route under like
conditions."
679
Paragraph 7 clarifies that the provisions of Article V of the GATT 1994 apply equally to transit of
goods by aircraft.
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departure, entry, exit or destination, or on any circumstances relating to the ownership of goods, of
vessels or of other means of transport."
7.392 The Panel recalls that both parties have referred to Article V:1 to inform the scope of the
obligations under Article V:2. In particular, Article V:1 defines goods as "traffic in transit" when
their passage across the territory of a Member "with or without trans-shipment, warehousing, breaking
bulk, or change in the mode of transport, is only a portion of a complete journey beginning and
terminating beyond the frontier of the Member across whose territory the traffic passes".680
7.393 In light of this definition, and in reference to the obligations in Article V:2, first sentence,
Panama argues that WTO Members are obliged to grant freedom of transit to traffic in transit to a
territory of a third country, via the route most convenient for international transit, regardless of
whether the goods are trans-shipped or warehoused, or whether the importer breaks bulk or whether
changes are made in the mode of transport.681 Colombia has argued in favour of a similar view,
submitting that the obligations in Article V apply only to goods destined for sale outside of the
country through which the goods pass. 682
7.394 The Panel notes that the protections in Article V:1 and the second sentence of Article V:2 are
based on corresponding provisions of the 1921 Barcelona Convention.683 A draft text for all of
Article V provisions was discussed at a 28 November 1946 meeting of the Preparatory Committee of
the International Conference on Trade and Employment, after which the Technical Sub-Committee
published a report commenting on the United States Suggested Charter for an International Trade
Organization of the United Nations, including Article 10 of this report, entitled "Freedom of
Transit".684 While this report offers perhaps the most extensive discussion on the development of
provisions at issue in Article V, commentary by participants to the meeting related to Article V:1 and
Article V:2 is limited.
7.395 Subsequent to the entry into force of the original GATT in 1947, the provisions in Article V
were also considered by the Interim Commission for the International Trade Organization at a 1948
United Nations Conference on Trade and Employment.685 The draft Havana Charter for an
International Trade Organization, which was reviewed and partly modified at the Conference,
includes as its Article 33 a nearly verbatim copy of Article V. Several differences exist between the
GATT and Havana Charter texts. For instance, the Havana Charter does not include the interpretative
note contained in the GATT, instead containing three different interpretative notes to its Article 33,
680
Taken as a whole and read objectively, Article V:1 appears plainly definitional in purpose. In its
entirety, this provision defines when goods qualify as being "in transit across the territory of a contracting
party".
681
682
683
See Articles 1 and 2 of the Convention and Statute on Freedom of Transit, Barcelona, April 29,
1921. See also UN doc. E/PC/T/C.II/54/Rev.1.
684
UN doc. #/PC/T/C.II/54/Rev.1, pp. 7-12. The report of the Technical Subcommittee was entitled
Preparatory Committee of the International Conference on Trade and Employment" and is dated 28 November
1946. The report notes that the meeting served as "the occasion for a thorough examination and exchange of
views upon the provisions of the United States Suggested Charter for an International Trade Organization of the
United Nations in regard to the General Commercial Provisions, namely Articles 9-17 inclusive, and the General
Exceptions, Article 32." (see p. 3). Only slight differences exist between Article 10 of the United States
Suggested Charter, discussed above, and Article V of the GATT 1947/1994. For instance, paragraph 1 of
Article 10 refers to "Baggage and goods, and also vessels, coaching and goods stock, and other means of
transport", and specifies that "[t]he provisions of this Article shall not apply to air traffic in transit". Paragraph 1
of Article V, on the other hand, refers to "Goods (including baggage), and also vessels and other means of
transport", and does not exclude treatment of air traffic in transit (although Article V:7 now provides for this
exclusion).
685
United Nations Conference on Trade and Employment, Final Act and Related Documents, dated
April 1948.
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concerning transit.686 Hence, while several differences exist between the GATT and Havana Charter
texts, none inform interpretation of the provisions at issue. Accordingly, the preparatory work related
to the first and second paragraphs of Article V is not of assistance.
7.396 In the Panel's view, the definition of "traffic in transit" provided in Article V:1 seems
sufficiently clear on its face. When applied to Article V:2, "freedom of transit" must thus be extended
to all traffic in transit when the goods' passage across the territory of a Member is a only a portion of a
complete journey beginning and terminating beyond the frontier of the Member across whose territory
the traffic passes. Freedom of transit must additionally be guaranteed with or without trans-shipment,
warehousing, breaking bulk, or change in the mode of transport.
7.397 The Panel notes that the term "traffic in transit" does not appear in Article V:2, second
sentence. This provision reads: "No distinction shall be made which is based on the flag of vessels,
the place of origin, departure, entry, exit or destination, or on any circumstances relating to the
ownership of goods, of vessels or of other means of transport." In spite of the absence of an explicit
reference to traffic in transit in this second sentence of Article V:2, the Panel believes that it is
sufficiently clear from its text that the MFN obligation in the second sentence is closely related to the
obligation to extend freedom of transit, in the first sentence. In the Panel's view, the second sentence
complements and expands upon the obligation to extend freedom of transit, stating additionally that
distinctions must not be made based on the nationality, or place of origin, departure, entry, exit or
destination of the vessel transporting goods. Moreover, both obligations form part of the same textual
provision.
7.398 Accordingly, the Panel will now examine in detail the substantive obligations in the first and
second sentences of Article V:2.
(ii) The substantive obligations in Article V:2, first and second sentences
Article V:2, first sentence
7.399 The Panel recalls that, while noting that Article V or any other provision of the GATT 1994
do not provide a definition of the term "freedom of transit", Panama submits that the definition of
"freedom" means the "the unrestricted use of something".687 Therefore, Panama argues that traffic in
transit must be allowed unrestricted through the territory of a Member.688 The Panel also recalls that
Colombia has not commented on the significance of this obligation, but has asserted that the ports of
entry measure falls outside the scope of Article V, as it exempts all goods in international transit.689
686
Article V of the GATT includes a single interpretative note while Article 33 contains three separate
interpretative notes. Consequently, Article V lacks the interpretative note providing that "[i]f, as a result of
negotiations in accordance with paragraph 6, a Member grants to a country which has no direct access to the sea
more ample facilities than those already provided for in other paragraphs to Article 33, such special facilities
may be limited to the land-locked country concerned unless the Organization finds, on the complaint of any
other Member, that the withholding of the special facilities from the complaining Member contravenes the most-
favoured-nation provisions of this Charter." Also noteworthy, Article V of the GATT 1947/1994 lacks a
provision appearing in Article 33(6) of the Havana Charter, which allows the organisation to "… undertake
studies, make recommendations and promote international agreement relating to the simplification of customs
regulations concerning traffic in transit, the equitable use of facilities required for such transit and other
measures designed to promote the objectives of this Article. Members shall co-operate with each other directly
and through the Organization to this end." This provision was incorporated into the Havana Charter at the
Havana Conference. See Havana Reports, UN Doc. ICITO/1/8, p. 3, para. 16.
687
Panama's first written submission, para. 171, citing The New Oxford Dictionary of English,
(Clarendon Press, 2nd Ed. 2001), p. 730.
688
689
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7.400 In addition to the definition of "freedom", the Panel notes the significance of the rest of the
text in Article V:2. The opening text in Article V:2, first sentence ("There shall be freedom of transit
through the territory of each contracting party ...") introduces the obligation – the provision of
"freedom of transit" by Members within their territory. The intermediate clause in Article V:2, first
sentence ("... via the routes most convenient for international transit ...") imposes a limiting condition
on the obligation – that freedom of transit should be provided on the most convenient routes. The
remainder of Article V:2, first sentence ("... for traffic in transit to or from the territory of other
contracting parties") explains that "freedom of transit" must be provided for 'traffic in transit"
entering and then subsequently departing from the Member's territory. The Panel notes that the term
of art "traffic in transit" has been defined in the preceding section to include goods when those goods'
passage across the territory of a Member with or without trans-shipment, warehousing, breaking bulk,
or change in the mode of transport, is only a portion of a complete journey beginning and terminating
beyond the frontier of the Member across whose territory the traffic passes.690
7.401 In light of the ordinary meaning of freedom and the text of Article V:2, the Panel concludes
that the provision of "freedom of transit" pursuant to Article V:2, first sentence requires extending
unrestricted access via the most convenient routes for the passage of goods in international transit
whether or not the goods have been trans-shipped, warehoused, break-bulked, or have changed modes
of transport. Accordingly, goods in international transit from any Member must be allowed entry
whenever destined for the territory of a third country. Reasonably, in the Panel's view, a Member is
not required to guarantee transport on necessarily any or all routes in its territory, but only on the ones
"most convenient" for transport through its territory.
Article V:2, second sentence
7.402 The Panel shall now turn to examine the scope of the obligation in Article V:2, second
sentence. In this regard, the Panel considers that the obligation in Article V:2, second sentence is
clear on its face: Members shall not make distinctions between goods which are "traffic in transit"
based on the flag of vessels; the place of origin, departure, entry, exit or destination of the vessel; or
on any circumstances relating to the ownership of goods, of vessels or of other means of transport. As
noted, the first sentence in Article V:2 addresses freedom of transit for goods in international transit.
As a complement to this protection, the Panel considers that Article V:2, second sentence further
prohibits Members from making distinctions in the treatment of goods, based on their origin or
trajectory prior to arriving in their territory, based on their ownership, or based on the transport or
vessel of the goods. Accordingly, the Panel concludes that Article V:2, second sentence requires that
goods from all Members must be ensured an identical level of access and equal conditions when
proceeding in international transit.
(iii) Whether the ports of entry measure violates Article V:2 of the GATT 1994
7.403 In light of the above conclusions on the interpretation of the obligations in Article V:2, the
Panel will examine whether the ports of entry measure restricts the freedom of transit of goods
arriving from Panama as "traffic in transit" in violation of the first sentence of Article V:2,. In
addition, the Panel will determine whether Colombia violates Article V:2 by making distinctions in
goods arriving from Panama based on any of the conditions listed in the second sentence of
Article V:2.
Whether the ports of entry measure is inconsistent with Article V:2, first sentence
7.404 The Panel recalls Panama's argument that ports of entry measure denies freedom of transit to
textile, apparel and footwear goods arriving from Panama by requiring that all goods undergo trans-
shipment as a pre-requisite to proceeding in international transit. Panama has recognized, pursuant to
690
See para. 7.396.
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Article 4, paragraph 3 of Resolution No. 7373, that textiles, apparel and footwear from Panama in
international transit which undergo trans-shipment are exempt from the ports of entry restrictions.
Panama nevertheless disputes that those goods arriving from Panama are granted the requisite
freedom of transit. Panama considers it a logical consequence that goods subject to trans-shipment
procedures will not have Colombia as their final destination. However, Panama argues that the
relevant factor at issue is that the goods are subject to trans-shipment procedures, not that the goods
have a country other than Colombia as their final destination.691
7.405 Panama notes that Article 4 of Resolution No. 7373 does not allow trans-shipment, but
instead provides that transit restrictions will not apply to goods that are trans-shipped.692 Therefore,
Panama concludes that goods must be trans-shipped in order to qualify for the Article 4 exemption.
Principally, Panama argues that Article V:2, as informed by Article V:1, obliges WTO Members to
grant freedom of transit to traffic in international transit regardless of whether the goods are trans-
shipped or warehoused, or whether the importer breaks bulk or whether changes are made in the mode
of transport.693 In addition, Panama notes that under Colombian law, trans-shipment refers to the
transfer of goods from the means of transportation used for the arrival of the goods in Colombia to
another means of transportation that will be used to take the goods out of Colombia.694 Under this
definition, Panama considers that textiles, apparel and footwear arriving from Panama must be
transferred from one mode of transport to another at the same customs office, and then goods must be
transferred via a mode of transport that has its immediate destination outside of Colombia.695 As
such, Panama argues that goods arriving by sea would not be allowed to transit by land through
Colombia to another country as the goods would not be trans-shipped from ship to a vehicle that has
an immediate destination beyond Colombian territory.696 Moreover, Panama considers it is irrelevant
that both direct or indirect trans-shipment is permitted, the latter of which allows for goods to be
warehoused prior to trans-shipment, as those goods must be warehoused at the same customs office.697
7.406 Panama dismisses Colombia's view that because transit involving trans-shipment is allowed,
without condition, then a fortiori transit without trans-shipment is allowed. Panama notes, if this
proposition were correct, and trans-shipment were not intended as a limitation, then Article 4 would
have read that the ports of entry restrictions would not apply to goods that do not have Colombia as
their final destination, which is not how it reads.698
7.407 Thus, in Panama's view, not all subject goods with a destination outside Colombia are exempt
from the restrictions. Only those goods in international transit that undergo trans-shipment and depart
by a mode of transport that has an immediate destination beyond Colombian territory will be exempt
from the ports of entry measure. Otherwise, the ports of entry measure requires that those goods
arriving in Colombia are restricted to entry at Barranquilla or Bogota. For these reasons, Panama
submits that restrictions on ports of entry and the requirement to trans-ship goods violate the
obligation under Article V:2, first sentence, to guarantee freedom of transit via the most convenient
routes for all goods that are traffic in international transit.699
691
692
693
694
Panama's first oral statement, para. 56, citing to Article 385 of Colombia's Customs Statute; see
also Section VII.I.2(a).
695
Panama's first oral statement, para. 57; Panama's second written submission, para. 144; Panama's
second oral statement, para. 49.
696
697
698
699
Due to the fact that the terms of the ports of entry measure apply only to goods arriving from
Panama and the CFZ, Panama asserts that the ports of entry measure is also inconsistent with the obligations
under Article V:2, second sentence, which prohibits Members from making distinctions on freedom of transit
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7.408 As noted above700, Colombia has argued that the obligations in Article V apply only to goods
in international transit that are destined for sale outside of the country through which the goods transit.
Colombia argues that the ports of entry measure only applies to textile, apparel and footwear goods
which have Colombia as their final destination, and clearly exempts those goods that enter Colombia
from Panama but have a final destination outside of Colombia.701 In light of the port of entry
measure's Article 4 exemption, Colombia thus submits that all textile, apparel and footwear goods in
international transit that arrive from Panama may enter unrestricted at any of Colombia's 11 eligible
ports.702 Since all textile, apparel and footwear products are not restricted, Colombia considers there
cannot be any violation of Article V.703
7.409 Colombia disputes that the reference to trans-shipment in the Article 4 exemption violates its
obligations to extend freedom of transit to goods in international transit. In support of this view,
Colombia insists that the whole rationale of the Article 4 exemption and the ports of entry measure
relating to customs enforcement argues against such a reading of the term "trans-shipment" as
exempting only goods in international transit that are trans-shipped.704 Moreover, Colombia submits
that its international obligations make clear that freedom of international transit is guaranteed for all
merchandise regardless of whether the goods are trans-shipped, warehoused, the importer breaks bulk,
or changes are made in the mode of transport.705 In particular, Colombia submits that Article 370 of
its Customs Statute, by reference to Article 327, 399 and 617 of Andean Community legislation706,
establishes that freedom of international transit is guaranteed irrespective of the mode of transport.707
Finally, Colombia argues that any requirement to trans-ship goods does not limit freedom of transit
for goods arriving from Panama, since the absence of a road connecting Panama with Colombia
necessitates that all deliveries from Panama must undergo trans-shipment to enter Colombian
markets.708 Thus, Colombia submits that all goods entering Colombia from Panama in international
transit would necessarily meet the conditions of the Article 4 exemption.
7.410 To the extent any further doubts exist that Colombia does not guarantee freedom of transit to
goods arriving from Panama in international transit, Colombia submits that past practice reveals that
textiles, apparel and footwear arriving from Panama have indeed been permitted to proceed in
international transit without limitation whenever the importer complied with the requirements in
Resolution No. 7373 and demonstrated goods would be consumed elsewhere.709 Colombia has also
offered to make a public commitment that goods in international transit are not covered by the
measure in question.710
7.411 While rejecting that it is necessary to demonstrate in practice that goods arriving from
Panama have been allowed to proceed in international transit, Panama disputes the argument that the
ports of entry measure is consistent with Article V:2, despite its trans-shipment requirement, based on
the notion that any good in transit from Panama must necessarily undergo trans-shipment due to the
unavailability of a road connecting Panama and Colombia. Contrary to this claim, Panama has argued
based on place of origin or departure, or on any circumstances relating to ownership of the goods (see Panama's
First oral statement, para. 62). The Panel will consider this claim in Section VII.J
700
See Section VII.I.1.
701
702
paras. 174-175.
703
704
See Colombia's response to Panel question No. 71.
705
Colombia's first written submission, para. 284; Colombia's response to Panel question No. 69.
706
The full text of these provisions appear in Section VII.I.2(a).
707
See Colombia's response to Panel question No. 69.
708
Panama's response to Panel question No. 66; Colombia's second written submission, para. 179.
709
Exhibit COL-29.
710
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that goods may be shipped from Panama, arrive in Ecuador, then transit through Colombia by truck
with Venezuela as a final destination.711 In this respect, Panama also notes that Andean Community
law cited by Colombia, in particular Article 7 of Andean Decision 617, does not govern the transit of
goods from a non-Andean Community country (e.g. Panama) through an Andean Community
Member (e.g. Colombia), that has a non-Andean Community country as the final destination (e.g.
Venezuela). Regardless, Panama argues that the circumstances prevailing in most cases cannot justify
a failure to accord freedom of transit in all cases.712
7.412 Panama also disputes that the examples provided by Colombia in Exhibit COL-29
demonstrate that freedom of transit is guaranteed. Panama argues that the goods in these examples
were allowed transit based on other special exemptions under Article 4 of Resolution No. 7373, thus
failing to show that all goods arriving from Panama are assured freedom of international transit.
Under Article 4 of Resolution No. 7373, Panama notes that textile, apparel and footwear goods
consigned or endorsed to the State, or to imports effected for processing, travellers or postal traffic, or
to goods consigned to industrial users of free trade zones or to "Permanent Customs Users" are
exempt from the port of entry restrictions.713
7.413 The issue before the Panel is therefore whether freedom of transit is extended to subject
textiles, apparel and footwear arriving from Panama in international transit, via the exemption in
Article 4, paragraph 3, of Resolution No. 7373.
7.414 The Panel concluded above714 that the provision of "freedom of transit" requires extending
unrestricted access via the most convenient routes for the passage of goods in international transit
whether or not the goods have been trans-shipped, warehoused, break-bulked, or have changed modes
of transport. While a Member is not required to guarantee transport on necessarily any or all routes in
its territory, transit must be provided on those routes "most convenient" for transport through its
territory.
7.415 Article 4 of Resolution No. 7373 indicates that exemption from the measure imposing the
ports of entry restriction arises where goods are "subjected to trans-shipment".715 Article 385 of
Colombia's Customs Statute, which Colombia has described as applicable to the ports of entry
measure716, defines trans-shipment as the transfer of goods from the means of transportation used for
the arrival of the goods in Colombia to another means of transportation that will be used to take the
goods out of Colombia (as translated).717
7.416 Based on the Panel's earlier interpretation that freedom of transit under Article V:2 must be
extended to goods in international transit regardless of whether the goods have been trans-shipped or
have changed modes of transport, the Panel preliminarily finds that the language in Article 4,
paragraph 3, when considered in light of the definition of "trans-shipment" as it appears in applicable
Colombian legislation, denies freedom of transit to all textiles, apparel and footwear that are traffic in
transit arriving from Panama or the CFZ.
711
712
713
See Panama's first oral statement, para. 58.
714
See Section VII.I.2(c)(ii).
715
In this sense, Article 4 provides "la presente resolución no se aplicará sobre aquellos bienes que se
pretendan someter a las modalidad de transbordo."
716
717
Article 385 defines "transbordo", or trans-shipment, in its original text as follows: "Es la modalidad
del régimen de tránsito que regula el traslado de mercancías del medio de transporte utilizado para. la llegada al
territorio aduanero nacional, a otro que efectúa la salida a país extranjero, dentro de una misma aduana y bajo su
control sin que se causen tributos aduaneros".
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7.417 The Panel is of the view that, on its face, the violation is clear. As Panama noted, the right to
proceed in international transit under the Article 4 exemption of the ports of entry measure is
conditioned on whether goods arriving from Panama or the CFZ are trans-shipped, and not on
whether the goods have a country other than Colombia as their final destination. The applicable
definition of "trans-shipment" in Colombian law indicates that goods must be transferred between
means of transportation that will be used to remove the goods from Colombia. As such, goods must
be trans-shipped in order to proceed as traffic in transit, in plain contravention of the definition given
to the term of art "traffic in transit" in Article V:1.
7.418 The Panel thus agrees with Panama's concern that Colombia's definition of trans-shipment
fails to guarantee that goods arriving from Panama or the CFZ will be permitted to transit through
Colombia by land after arriving by sea or air in Colombia. Article 385 of Colombia's Customs Statute
indicates that arriving goods must be transferred from the means of transportation used for their
arrival to another means of transportation that will be used to take the goods out of Colombia. Under
this definition, it is thus not clear whether goods arriving in Colombia by boat from Panama may be
transferred to a truck to proceed in international transit, when that truck does not have a immediate
direct route to a final destination outside Colombia. Although the Panel shares this concern, the Panel
reiterates that its finding is based on the express requirement that goods be trans-shipped in order to
proceed in international transit.
7.419 The Panel further considers Colombia's additional arguments insufficient to rebut the
presumption of violation arising from the trans-shipment requirement in the Article 4 exemption in
Resolution No. 7373. In particular, the Panel will address Colombia's arguments that its international
commitments, geographic considerations and past practice reveal that Colombia ensures freedom of
international transit for all textile, apparel and footwear goods arriving from Panama or the CFZ.
7.420 The Panel will first address Colombia's argument that by virtue of its participation in the
Andean Community, Colombia is obliged to guarantee freedom of international transit to all covered
goods arriving from non-Community members when in international transit through its territory. The
Panel notes under Decision 399, as indicated in its Article 8, international transportation provided by
carriers from third countries through the territory of one or more member countries, shall be regulated
by the national legislation of each of the member countries through which they pass or by the
provisions of international agreements in force. Andean Community Decision 617, in turn sets rules
for free circulation of goods among Andean Community member countries. However, Article 7 of
this Decision notably does not recognize transit of goods from a third country, such as Panama,
through one or more members' territories (e.g. Colombia), to a final destination in another third
country (e.g. Venezuela). As such, the Andean Community Decisions cited by Colombia do not
regulate all conceivable transit trajectories for international transit by non-Community member
countries. Accordingly, the Panel disagrees that Colombia's Andean Community commitments
demonstrate that international transit is in all cases guaranteed for covered merchandise from Panama.
Instead, Andean Community Decision 399 explains that transportation by third countries through
member countries, such as Colombia, will be subject to national legislation, which, as the Panel noted
above, has been deemed inconsistent with Article V:2 on its face. Moreover, due to the
inapplicability of Andean Community legislation to non-member to non-member transit matters,
definitions of trans-shipment in Andean Community Decisions 327 and 617 provided by Colombia
are not relevant to the Panel's consideration.
7.421 The Panel also finds unpersuasive Colombia's arguments that past practice reveals that
textiles, apparel and footwear arriving from Panama have indeed been permitted to proceed in
international transit without limitation whenever the importer complied with the requirements in
Resolution No. 7373 and demonstrated goods would be consumed elsewhere.718 Panama has argued
718
Exhibit COL-29.
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that examples presented by Colombia do not demonstrate that international transit is guaranteed on
the basis that goods in these examples were allowed transit based on other special exemptions under
Article 4 of Resolution No. 7373.719 Setting aside Panama's argument, the Panel finds it difficult to
conclude anything on the basis of examples presented in Exhibit COL-29, referred to by Colombia.
At most, each example indicates that the goods departed from China (Shanghai in the first example
and Chiwan in the second example), arrived in Buenaventura, and have Bogota as a destination. The
Panel cannot identify any indication that the goods will proceed to a destination beyond Colombia,
thus calling into question how the exhibits demonstrate that freedom of transit is ensured for "traffic
in transit". Based on the absence of adequate information, the Panel rejects the argument that
Exhibit COL-29 sufficiently demonstrates that freedom of international transit is ensured for all
covered merchandise.
7.422 Colombia has also argued that the requirement in Article 4 of the ports of entry measure to
trans-ship goods does not limit freedom of transit for goods arriving from Panama, since the absence
of a road connecting Panama with Colombia necessitates that all deliveries from Panama must
undergo trans-shipment to enter Colombian markets.720 Essentially, Colombia is arguing that any
goods arriving from Panama would never have the occasion to transit through Colombia without
undergoing trans-shipment (e.g. from boat or aircraft to another vehicle, such as a truck or second
airplane), thus necessarily meeting the conditions of the Article 4 exemption. The Panel recalls that to
rebut Colombia's claim, Panama has presented an example of a good first shipped to Ecuador, and
then proceeding to Venezuela via a route that enters Colombia.,. In response to Panama's example,
Colombia has stated that such a route would be highly unrealistic due to business impracticalities, but
submits that such entry would be permitted subject to the condition that the importer posted a
guarantee and ensured that the goods were destined for consumption outside of Colombia.721 In the
Panel's view, Panama has not sufficiently demonstrated to the Panel the possibility let alone the
practicality of goods arriving in Colombia via a route through Ecuador. Nor has Colombia provided
any evidence to demonstrate that such a route is impossible, even if it is impractical. However, in the
Panel's view, whether or not Panama has done so cannot in itself resolve the matter of whether
Colombia ensures freedom of transit, within the meaning of Article V:2 to all goods arriving from
Panama and proceeding in international transit. As noted above, the text of the Article 4 exception
within Resolution No. 7373 on its face is inconsistent with the requirement set forth in Article V:2.
Thus, the Panel is not persuaded that Colombia's argument that all goods from Panama must
necessarily undergo trans-shipment is adequate to rebut our preliminary finding that the ports of entry
measure fails to accord freedom of transit to goods arriving from Panama or the CFZ within the
meaning of Article V:2.
7.423 Accordingly, the Panel concludes that by requiring that goods undergo trans-shipment in
order to proceed in international transit, Colombia has failed to extend freedom of transit via the most
convenient routes to goods arriving from Panama in international transit within the meaning of
Article V:2 as informed by Article V:1 of the GATT 1994. The Panel therefore finds Colombia's port
of entry measure is inconsistent with Article V:2 of the GATT 1994.
7.424 Having reached its finding, the Panel however recognizes that as indicated by Colombia,
most, if not all of the subject goods shipped from Panama, arrive in Colombia via sea or air transport,
and thus undergo trans-shipment before proceeding in international transit or importation.
719
In particular, Panama emphasized that Article 4 of Resolution No. 7373 exempts textile, apparel and
footwear goods consigned or endorsed to the State, or to imports effected for processing, travellers or postal
traffic, or to goods consigned to industrial users of free trade zones or to "Permanent Customs Users" are
exempt from the port of entry restrictions.
720
Colombia's response to Panel question No. 67; Colombia's second written submission, para. 179.
721
Colombia's response to question No. 7 from Panama.
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7.425 Colombia has expressed its willingness to make a public commitment regarding the guarantee
of freedom of transit to goods arriving from Panama.722 The Panel understands that this "public
commitment" while commendable would not involve an amendment of the wording of Article 4 of
Resolution No. 7373 to allow for an exemption from the measure imposing the ports of entry
restriction to all goods in international transit.
7.426 The Panel notes that in previous GATT/WTO disputes, where a measure included in the terms
of reference was otherwise amended or removed following the initiation of panel proceedings, panels
have nevertheless made findings in respect of such a measure.723 Article 3.7 of the DSU provides that
the aim of the dispute settlement mechanism is to secure a positive solution to a dispute. Article 3.4
of the DSU provides that recommendations or rulings made by the DSB shall be aimed at achieving a
satisfactory settlement of the matter. The Panel believes that declining to rule on this issue on the basis
of Colombia's promise to publicly commit to allow all international transit, would not allow it to
secure a positive solution to this dispute and to make sufficiently precise recommendations and
rulings so as to allow for prompt compliance.724 The Panel's view may have been different if
Colombia had amended the text of Article 4 to allow all international transit. In the current
circumstances, though, the Panel believes that a public commitment is not sufficient for the Panel to
find otherwise.
Whether the ports of entry measure is inconsistent with Article V:2, second sentence
7.427 Panama has additionally claimed that the ports of entry measure and Colombian legislation is
inconsistent with the obligations in the second sentence of Article V:2 by making distinctions on
freedom of transit based on place of origin or departure, or on any circumstances relating to
ownership of the goods.
7.428 The Panel recalls its conclusion that Article V:2 extends MFN obligations to goods based on
the circumstances of their transit, and prohibits Members from making distinctions in the treatment of
goods, based on their origin or trajectory prior to arriving in their territory, based on their ownership,
or based on the transport or vessel of the goods.
7.429 The Panel notes that the ports of entry measure applies exclusively to textile, apparel and
footwear goods originating in or arriving from Panama or the CFZ. As such, only those goods
arriving from Panama or the CFZ are subject to the requirement within the Article 4 exemption in
Resolution No. 7373 to trans-ship goods in order to proceed in international transit. The Panel recalls
its finding that Colombia has failed to extend freedom of transit to goods arriving from Panama due to
this requirement. Since this requirement is imposed on goods arriving from Panama, the requirement
is based on the goods' origin (i.e. the goods originated in Panama or the CFZ), and based on its
trajectory prior to arriving in Colombia (i.e. the goods originated in a third country but transited
through Panama or the CFZ prior to arriving in Colombia).
7.430 Accordingly, in light of the fact that only goods arriving from Panama or the CFZ are subject
to the requirements under the Article 4 exemption, while goods originating in or departing from a
Member other than Panama are permitted to proceed in international transit, the Panel finds that
Colombia makes distinctions based on the place of origin or departure of textiles, apparel and
footwear arriving from Panama or the CFZ in violation of the second sentence of Article V:2.
722
723
Panel Report, Indonesia – Autos, para. 14.9, Appellate Body Report, Argentina – Footwear,
para. 64, Panel Report, US – Wool Shirts and Blouses, para. 6.2, where the US measure was withdrawn shortly
before the issuance of the Panel Report, GATT Panel Report, EEC – Dessert Apples, GATT Panel Report,
EEC – Apples (US), GATT Panel Report, US – Canadian Tuna, GATT Panel Report, EEC – Apples I (Chile),
GATT Panel Report, EEC – Animal Feed Proteins.
724
Appellate Body Report, Australia – Salmon, para. 223, Appellate Body Report, Chile – Price Band
System, paras. 140-143.
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(iv) Conclusion
7.431 Accordingly, the Panel finds that the ports of entry measure is inconsistent with both the first
and second sentences of Article V:2 of the GATT 1994.
J. WHETHER THE RESTRICTION ON PORTS OF ENTRY APPLICABLE TO TEXTILES, APPAREL AND

FOOTWEAR ARRIVING FROM PANAMA IS INCONSISTENT WITH ARTICLE V:6 OF THE
GATT 1994
7.432 Panama argues that Colombia's ports of entry measure accords treatment less favourable to
goods in transit through Panama than that which would have been accorded had those same goods
been shipped directly from their place of origin without transiting through Panama and therefore is
inconsistent with Article V:6 of the GATT 1994.
7.433 Panama argues that Article V:6 requires WTO Members in whose territory importation occurs
to accord treatment not less favourable to goods that have been in transit through another WTO
Member than they would have accorded to those products had they not transited through that
Member.725 In Panama's view, an examination of the ordinary meaning of the terms in Article V:6
confirms that it applies to goods which "have been" in transit to a Member's territory in the sense that
the journey of goods which were previously in transit has terminated.726 Panama considers the
immediate context of the other terms in Article V:6, second sentence, notably the references to the
terms "direct consignment', the "entry of goods" at "preferential rates of duty" and the Member's
"prescribed method of valuation for duty purposes", confirm that the obligation applies to the Member
in whose territory the journey terminates.727 Panama further submits that the placement of this
obligation in Article V:6 among the other provisions in Article V in its entirety is reasonable as the
obligation present in Article V:6 establishes a most-favoured-nation-requirement to sanction practices
by importing Members that may restrict or undermine the freedom of transit through other WTO
Members.728
7.434 In light of its interpretation, and in consideration of the fact that the ports of entry measure is
exclusively applicable to goods which have arrived in Colombia after transiting through Panama or
the CFZ, Panama considers the violation of Article V:6 is clear.
7.435 Colombia argues that Panama's claim under Article V:6 is invalid since the ports of entry
measure does not apply to merchandise in transit through Colombia with a final destination elsewhere.
As Colombia argued in relation to its claim under Article V:2, Colombia contends that the title and
first paragraph of Article V provide context and clearly delineate the obligations in Article V:6.
According to Colombia, Article V only contains obligations related to "freedom of transit" and as
such, all provisions under Article V are limited in scope to goods in transit when the passage across a
Members territory is a portion of a journey "beginning and terminating beyond the frontier of the
contracting party across whose territory the traffic passes".729
7.436 Colombia reiterates its argument presented in relation to its claim under Article V:2 that all
textiles, apparel and footwear arriving from Panama in international transit through Colombia are
exempted from restrictions.730 Due to the exemption, Colombia submits that textile, apparel and
725
Panama's second oral statement, para. 54, Panama's second written submission, para. 151.
726
Panama's first oral statement, para. 63, Panama's second written submission, para. 150, Panama's
727
Panama's second oral statement, para. 55, Panama's second written submission, para. 150.
728
729
Colombia's second written submission, para. 182, Colombia's second oral statement, para. 48.
730
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footwear goods of any origin that have transited through Panama may enter any of the 11 designated
ports, when in transit to a final destination elsewhere, just as if those goods had arrived directly from
their place of origin.
(a) Legislation related to Colombia's international transit regime
7.437 In the preceding Sections VII.C.1-VII.I, the Panel discussed Colombian legislation applicable
to textile, apparel and footwear goods arriving from Panama, including the regulation of subject goods
arriving for final consumption in Colombia as well as those subject goods proceeding through
Colombia in international transit to destinations beyond Colombia.
7.438 Panama considers that the port of entry measure is inconsistent with Article V:6 based on the
requirement under Article 2 of Resolution No. 7373731, as modified by Resolution No. 7637732
(explained in detail in Section VII.E.2(a) above), that textiles, apparel and footwear classifiable under
Chapters 50-64 of the Colombian Tariff Schedule arriving from Panama into Colombia may only be
entered at Bogota airport or Barranquilla seaport:

aduanero."733
7.439 Colombia, on the other hand, argues that the port of entry measure is fully consistent with
Article V:6, in light of the exemption in Article 4 of Resolution No. 7373 (explained in
Section VII.I.2(a) above), which provides that the general restriction imposed under Article 2 of
Resolution No. 7373 does not apply to goods which are submitted for trans-shipment, in consideration
that goods that undergo trans-shipment do not have Colombia as a final destination:
"Lo señalado en el articulo 2o, de la presente resolución no se aplicará sobre

aquellos bienes que se pretendan someter a las modalidad de transbordo,
considerando que en este caso la mercancía no tiene como destino final
Colombia ..."734
7.440 The Panel will consider both parties' arguments in relation to Article V:6 in the context of this
legislation.
731
Exhibit PAN-34.
732
Exhibit PAN-36.
733
Exhibit PAN-34.
734
Exhibit PAN-34. Additionally, Article 4 exempts goods consigned or endorsed to the State; goods
imported for specific state or emergency uses: goods arriving by travellers or postal traffic, or in route to Leticia,
San Andrés or Santa Catalina, goods consigned to industrial users of free trade zones; and goods under
subheadings 64.01 to 64.05 of Colombia's Tariff Schedule that arrive at any of the 11 ports designated in
Article 39, paragraph 1 of Resolution No. 4240. Resolution No. 7637 further exempts goods consigned to
"Highly Exporting Users" and "Permanent Customs Users": see Article 3 of Resolution No. 7637.
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(b) Article V of the GATT 1994
7.441 Article V:6 of the GATT 1994 provides as follows:
"Each contracting party shall accord to products which have been in transit through
the territory of any other contracting party treatment no less favourable than that
which would have been accorded to such products had they been transported from
their place of origin to their destination without going through the territory of such
other contracting party. Any contracting party shall, however, be free to maintain its
requirements of direct consignment existing on the date of this Agreement, in respect
of any goods in regard to which such direct consignment is a requisite condition of
eligibility for entry of the goods at preferential rates of duty or has relation to the
contracting party's prescribed method of valuation for duty purposes."
7.442 The full text of Article V appears above in Section VII.I.2(b) above.
(c) Interpretation of Article V:6 of the GATT 1994
7.443 The Panel is therefore called upon to determine whether the ports of entry measure is
inconsistent with Article V:6 of the GATT 1994. As the Panel noted in relation to Panama's claims
under Article V:2735, Article V addresses matters related to "freedom of transit" of goods. This is
reflected in the title of the provision. Moreover, the Panel noted that Article V:6 generally extends
MFN protection to Members' goods which "have been in transit".
7.444 The parties dispute the proper interpretation of this text as it informs the scope of coverage of
Article V:6. As was the case with Article V:2, neither the Appellate Body nor a GATT/WTO panel
has ever interpreted Article V:6. Accordingly, the Panel will again analyse Panama's claim under
Article V:6 in accordance with the principles of treaty interpretation set forth in the VCLT. The Panel
will thus consider Article V:6 in accordance with its ordinary meaning in its context and in light of its
object and purpose, where necessary. The Panel may also resort to supplementary means of
interpretation, including the travaux preparatoire to inform its interpretation, whenever the meaning
of its term is ambiguous.
(d) The scope of application of the MFN obligation in Article V:6 of the GATT 1994
7.445 The Panel will first consider the ordinary meaning of the terms in Article V:6 on its face and
in its context. As the parties' arguments indicate, the central issue is whether Article V:6 extends
MFN obligations to Members whose territory is the ultimate destination of the good in transit, or
whether the obligation only extends to Members whose territory a good passes through intermediately
in route to a final destination elsewhere.
7.446 Article V:6 provides in its first sentence that:
"Each contracting party shall accord to products which have been in transit through
the territory of any other contracting party treatment no less favourable than that
which would have been accorded to such products had they been transported from
other contracting party." (emphasis added).
7.447 The Panel recalls Panama's argument that the application of the principles of treaty
interpretation to Article V:6 makes clear that Article V:6 imposes obligations on the country in which
735
See Section VII.I.
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the goods terminate their journey, in this case, Colombia.736 Panama notes that Article V:6, first
sentence imposes an obligation on WTO Members to respect products that "have been" in transit
through another Member.737 The reference to "have been" means that the transit across the territory of
another WTO Member has already taken place and the goods are not longer in transit, but are in the
country in which they terminate their journey.738 Panama notes that Article V:1 makes no
qualification that goods in transit have to be sold outside the country through which the goods
transit.739 In Panama's view, while paragraphs 2-5 of Article V refer to the obligation to provide
freedom of transit though its territory, Article V:6 refers to the obligation imposed on the Member
whose territory is the final destination not to discriminate against goods.740 Thus, Panama argues the
obligation in Article V:6, first sentence is that the WTO Member in whose territory the journey
terminates must accord treatment no less favourable to goods that have been in transit through another
WTO Member than they would have accorded to those products had they not been in transit through
that Member.741 In effect, Article V:6, first sentence, established an MFN requirement that must be
observed by the country of destination.742
7.448 Panama considers the immediate context of the other terms in Article V:6, second sentence,
confirm that the obligation applies to the Member in whose territory the journey terminates. In
particular, Panama notes the second sentence includes the terms "direct consignment", the "entry of
goods" at "preferential rates of duty" and the Members "prescribed method of valuation for duty
purposes."743 Panama submits that all these terms relate to the final importation of goods in a
Member's territory and make clear that the Member upon which the obligations are imposed is the
importing country and not the country of transit.744
7.449 As a matter of proper treaty interpretation, Panama considers the placement of paragraph 6 of
Article V reasonable as it sanctions practices by importing Members that may restrict or undermine
the freedom of transit through other WTO Members.745 Moreover, Panama argues its interpretation of
Article V:6 would not result in duplication of the protections provided in Article I:1. In Panama's
view, Article I:1 provides protection from discrimination on the basis of the origin of goods, while
Article V:6 requires that Members do no discriminate on the basis of the country through which the
goods have been in transit.746
7.450 Colombia has argued that all the provisions in Article V contain obligations related to
"freedom of transit" for goods in transit when the passage across a Member's territory is a portion of a
journey beginning and ending beyond the frontier of the Member across whose territory the traffic
passes.
7.451 Colombia argues that the context of Article V, including its title and the definition of goods in
transit in Article V:1 guide interpretation of Article V:6. In the context of Article V:1, Colombia
submits that Article V:6 does not impose on Members any obligations to goods that do not have
another Member's territory as their final destination.747 The phrase in Article V:1 that goods
"beginning and terminating beyond the frontier of the contracting party across whose territory the
736
737
738
739
740
741
742
743
Panama's question No. 8 to Colombia, Panama's second written submission, para. 150, Panama's
744
745
746
747
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traffic passes" informs that all subsequent obligations in Article V do not apply to goods which
terminate in a Member's territory.748 Colombia argues that this is the context in which Articles V:2 –
6 must be read.749 The definition of goods "in transit" establishes the scope of Article V.750 While
noting that Article V:6 has never been ruled upon previously, Colombia argues that views expressed
by the WTO Secretariat and academic scholars support its view.751 Moreover, Colombia argues that
Panama's interpretation of MFN obligations in Article V:6 would essentially undo the explicit
limitation of MFN protections as provided to goods based on their origin, set forth in Article I:1 of the
GATT 1994.752
7.452 Colombia also disputes Panama's argument that the exemption for direct consignment in
Article V:6, second sentence would be rendered inutile by interpreting the scope of the first sentence
as limited to goods in transit through a Member's territory.753 Colombia argues that the direct
consignment exemption merely indicates that Members were not prevented from maintaining
historical consignment rules and has nothing to do with whether a Member is allowed to discriminate
between goods in transit directly from their place of origin as compared to goods which transit
through other Member territories before arriving at their final destination.754 Instead, Colombia
considers the second sentence to be out of place, as it is unexpected that anything dealing with direct
consignment, preferential duty rates and customs valuation should appear in Article V. According to
Colombia, this is readily apparent since Article V deals with goods in transit that would not be subject
to customs duties.755
7.453 The Panel notes that Article V:6, first sentence includes the phrase "products which have been
in transit through the territory of any other contracting party" (emphasis added) when discussing the
applicable goods regulated by the provision. The Panel notes that the phrase incorporates the present
perfect tense of the verb "to be". No other provisions in Article V employ the present perfect verb
tense, instead relying on the term of art "traffic in transit", which is defined in Article V:1, when
discussing the applicable goods regulated by the provision.756 In particular, Article V:5 addresses
MFN protection requiring parties to accord "treatment no less favourable" to "traffic in transit through
the territory of any other contracting party" "[w]ith respect to all charges, regulations and formalities
in connection with transit". The text of Article V:6 does not provide that each contracting party shall
accord treatment no less favourable to traffic in transit through the territory of any other contracting
party. Moreover, Members are not obliged to accord MFN protection to products which are in transit,
or to products which were in transit. Instead, Article V:6 requires Members to extend MFN
protection to "products which have been in transit through the territory of any other contracting
party".
748
749
Question No. 8 from Panama to Colombia.
750
751
752
753
754
755
756
The Panel notes that Article V:1 defines the term "traffic in transit". Subsequently, paragraphs 2-5
employ this term. Paragraph 2 reads in part: "There shall be freedom of transit ... for traffic in transit ..."
(emphasis added). Paragraph 3 reads in part: "Any contracting party may require that traffic in transit through
its territory be entered at the proper custom house ..." (emphasis added). Paragraph 4 reads in part: "All charges
and regulations imposed by contracting parties on traffic in transit ..." (emphasis added). Paragraph 5 reads:
"With respect to all charges, regulations and formalities in connection with transit, each contracting party shall
accord to traffic in transit to or from the territory of any other contracting party treatment no less favourable
than the treatment accorded to traffic in transit to or from any third country" (emphasis added). Paragraph 6
does not refer to "traffic in transit" in its text.
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7.454 The Panel thus considers it necessary to examine the meaning of the phrase "products which
have been in transit through the territory of any other contracting party" in order to determine the
scope of Article V:6, i.e. what goods are regulated by the provision. The Panel recalls that the
Appellate Body in Chile – Price Band System observed generally that requirements expressed in the
present perfect tense impose obligations that came into being in the past, but may continue to apply at
present.757 Implicitly, the present perfect verb tense refers to an action that happened at an
unspecified time in the past before the present moment. In addition, the perfect aspect refers to a past
happening that is considered in relation to a later event or time, although it is unclear whether the
event referred to is understood to continue at present, or has recently concluded.758 As such, the
ordinary meaning of products which "have been in transit" remains unclear. On the one hand, the
goods may have begun transit in the past, but are still continuing in transit until an unspecified time in
the future. On the other hand, the goods may have recently been in transit, but are no longer in transit.
Due to these opposing possibilities for interpretation, the Panel considers it is not possible to clearly
determine the meaning of the phrase "to products which have been in transit" simply by reference to
the text. Accordingly, the Panel will consider Article V:6 in light of context provided elsewhere in
Article V.
7.455 As discussed above and in relation to Panama's Article V:2 claim, Article V is generally
entitled "Freedom of Transit". Moreover, the Panel notes that a definition of the term "traffic in
transit" appears in Article V:1. Colombia argues that the scope of Article V is informed by its title
("Freedom of Transit") and the definition of "traffic in transit" provided in Article V:1 that goods are
"deemed to be in transit across the territory of a contracting party when the passage across such
territory ... is only a portion of a complete journey beginning and terminating beyond the frontier of
the contracting party across whose territory the traffic passes."759 Colombia argues that this definition
of "traffic in transit" informs the definition of "transit" for the entire Article, including Article V:6.760
Thus, Colombia argues that the scope of Article V is limited to goods destined for sale outside of the
country through which it is passing.761
7.456 While Colombia considers that "freedom of transit" is one and the same for all provisions, the
Panel does not agree. The Panel notes that neither "freedom" nor "transit" are defined anywhere in
Article V or the WTO Agreement. The Panel recalls that the dictionary definition of "freedom" as
referred to in relation to Panama's Article V:2 claim is "the unrestricted use of something".762
Moreover, the Panel notes that the dictionary definition of "transit" is "the action of passing across or
through; passage or journey from one place or point to another"763, or "[t]he passage or carriage of
people or goods from one place to another."764 Taken in combination, consideration of the dictionary
or ordinary meaning of these terms does not shed light on the issue of whether Article V:6 only
concerns goods which are in passage through a territory with a destination outside/beyond that
757
Appellate Body Report, Chile – Price Band System, para. 206, citing G. Leech and J. Svartvik, A
Communicative Grammar of English, (Longman, 1979), paras. 112-119. R. Quirk and S. Greenbaum, A
University Grammar of English, (Longman, 1979), paras. 328-330.
758
G. Leech and J. Svartvik, A Communicative Grammar of English, (Longman, 3rd edition, 2002),
paras. 122 and 125. The authors comment that the present perfect tense has four related possible uses: (i) a past
event with results in the present time; (ii) an indefinite event in a period leading up to the present time; (iii) a
habit in a period leading up to the present time; and (iv) a state leading up to the present time. In uses (i), (iii),
and (iv) the authors note that events may be understood to continue at the present time. However in use (ii), the
authors note that the present perfect tense often refers to the recent indefinite past, i.e. the event has recently
concluded.
759
Colombia's comment on Panama's response to Panel question No. 116.
760
Colombia's comment on Panama's response to Panel question No. 116.
761
762
See Panama's first written submission, para. 171, citing The New Oxford Dictionary of English,
(Clarendon Press, 2nd Ed. 2001), p. 730.
763
The New Shorter Oxford English Dictionary (Clarendon Press, 4th Ed. 1993), p. 3327.
764
The New Shorter Oxford English Dictionary (Clarendon Press, 4th Ed. 1993), p. 3327.
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territory, whether it concerns goods which have arrived at their final destination, or both.765 Thus, the
title and the ordinary meaning of the term "transit" do not inform the scope of all the provisions of
Article V.
7.457 Additionally, the Panel rejects the view that the definition of "traffic in transit" provided in
Article V:1 necessarily informs the definition of transit for the entire article, in particular, the
reference to "products which have been in transit" in Article V:6. As the Panel has noted, while the
term of art "traffic in transit" appears in paragraphs 1-5 of Article V, the term is not used in paragraph
6. Contrary to Colombia's argument, Article V:1 clearly indicates that "[t]raffic of this nature is
termed in this Article 'traffic in transit'" (emphasis added) when referring to goods in which "passage
across such territory ... is only a portion of a complete journey beginning and terminating beyond the
frontier of the contracting party across whose territory the traffic passes". Moreover, Article V:1 does
not expressly state that the concept of "traffic in transit" is applicable to all provisions in Article V.
Therefore, the Panel declines to conclude based either on the definition of traffic in transit appearing
in Article V:1 that the scope of Article V:6 only concerns goods which pass through a territory of a
Member as a portion of a larger trajectory that begins and ends in beyond the frontier of the Member
across whose territory the goods pass.
7.458 In the Panel's view, the immediate context provided by Article V:6, second sentence helps to
inform the intended scope and application of Article V:6. The Panel recalls that the second sentence
in Article V:6 provides as follows:
"Any contracting party shall, however be free to maintain its requirements of direct
consignment existing on the date of this Agreement, in respect of any goods in regard
to which such direct consignment is a requisite condition of eligibility for entry of the
goods at preferential rates of duty or has relation to the contracting party's prescribed
method of valuation for duty purposes".
7.459 The Panel notes the inclusion of the terms "direct consignment" as "a requisite condition of
eligibility for entry of the goods at preferential rates of duty" and "method of valuation for duty
purposes". As argued by Panama, these terms are irrelevant for countries that are intermediary
destinations for goods in transit, since "eligibility for entry", "valuation" and "duty" collection are not
undertaken for goods in transit through a Member's territory that will not be subject to importation
and customs valuation requirements. In light of the focus on activities in the second sentence
commonly associated with importation of goods, Panama argues that the requirements of the second
sentence of Article V:6 would be unnecessary if the first sentence of Article V:6 were limited in
application to goods that are in transit through a Member's territory. Panama submits that such an
interpretation is impermissible as it cannot be reconciled with the principle that interpreters may not
reduce whole clauses to inutility.766
7.460 Colombia has argued that the second sentence is of historical relevance only, as the
requirement is linked to historical preferential schemes that are no longer relevant today.767 Colombia
additionally argues that the reference to direct consignment requirements in paragraph 6 simply
clarifies that direct consignment requirements are not affected by the obligation to extend MFN
treatment to goods in international transit through a Member's territory.768 Finally, Colombia
765
For instance, in the Panel's view, these terms may be construed to mean "the unrestricted passage or
journey of goods through a territory", but also "the unrestricted passage or journey from one location to another
location".
766
767
768
Question No. 8 from Panama to Colombia. The Panel notes that Colombia has argued as follows:
"[T]he second part of Article V:6 remains entirely valid and useful as a clarification that
nothing in this provision limits the right of Members to maintain their pre-existing direct
consignment requirements. In other words, what this says I that it is not because a Member is
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characterizes the second sentence as misplaced769 since issues related to direct consignment,
preferential duty rates and customs valuation are not relevant with goods in transit, which are not
subject to customs duties.770 In light of this misplacement, Colombia argues that the second sentence
should not read as context to interpret Article V:1. Otherwise, interpretation would render the first
sentence equally out of place, despite that fact that the first sentence makes complete sense in the
context of provisions dealing with goods in international transit. Colombia argues this form of
interpretation would "impos[e] consistency on the basis of an oddity" and would lead to an "absurd
result", an approach which is not permitted under the principles of treaty interpretation within the
VCLT.771
7.461 The Panel does not agree with Colombia's approach to interpretation of the second sentence
of Article V:6. The Appellate Body in US – Gasoline explained as fundamental to the principle of
effective treaty interpretation (ut res magis valeat quam pereat) that meaning and effect should be
given to all terms in a treaty:
"One of the corollaries of the 'general rule of interpretation' in the VCLT is that
interpretation must give meaning and effect to all the terms of a treaty. An interpreter
is not free to adopt a reading that would result in reducing whole clauses or
paragraphs of a treaty to redundancy or inutility."772
7.462 In the Panel's view, treatment of language appearing in the second sentence as "out of place"
or historically outdated seems inconsistent with the intent of the drafters of the Agreement, as it
suggests reading an entire clause out of the Agreement. In accordance with the rules of interpretation
as set forth in the VCLT, the Panel considers itself obliged to consider the text of Article V:6 as it
exists in its entirety.
7.463 The Panel will therefore consider the second sentence both in terms of its placement and in
terms of substance. Panama has submitted that discussion of a requirement related to direct
consignment as a condition for entry of goods at preferential duty rates would be illogical if the
second as well as the first sentence were not addressed to Members whose territory served as the final
destination for importation of a good. As a structural matter, aside from the fact that both sentences
appear in the same paragraph, the use of the conjunction "however" in the opening clause of the
second sentence serves to grammatically and logically link the first and second sentences. Thus, to
the extent the second sentence may only address concerns related to a Member whose territory serves
as a final destination for goods in transit, the placement of the second sentence and its grammatical
link to the first sentences defies interpreting the first sentence as extending obligations to intermediary
destinations for goods in international transit.
7.464 In terms of substance, the Panel notes that the second sentence permits a Member to maintain
any direct consignment requirements that existed in 1947, whenever those direct consignment
requirements were a mandatory condition for entry of the goods at preferential rates of duty or related
to the Member's prescribed method of customs duty valuation. Requirements related to the direct
not allowed to discriminate between transiting goods that are shipped directly from their
country of origin and transiting goods with the same origin that arrive at the border after
having been in transit through another Member, that Members cannot maintain direct
consignments [sic] requirements that pre-dated the entry into force of the GATT for that
Member."
769
Colombia refers to the second sentence of Article V:6 as the "odd one out": see Question No. 8 from
Panama to Colombia.
770
771
772
See Appellate Body Report, US – Gasoline, p. 23.
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consignment of goods have previously been discussed in a 1981 Note by the WTO Secretariat.773 In
that Note, the Secretariat indicated that direct consignment rules for goods require that a product must
be transported directly from the place of production to its preferential destination in order to be
eligible for origin treatment. Moreover, the Note explains (as relevant at that point in time) that a
good under direct consignment could only be transported through territory other than that of its origin
or final destination, if justified for geographical reasons, and if the goods in question have remained
under customs surveillance and have not entered into the commerce of the transit country.
7.465 Though not binding on Members' rights and obligations, the Panel considers the Secretariat's
commentary consistent with the view that the second sentence of Article V:6 is intended to clarify
that, in complying with requirements of the first sentence of Article V:6, a Member is nevertheless
permitted to maintain any direct consignment requirements that existed in 1947 (when commitments
among Members were negotiated) without violating the obligation in the first sentence. In other
words, Article V:6, first sentence requires Members to extend MFN treatment to all goods that have
been in international transit, except with respect to specific, pre-existing direct consignment
commitments.
7.466 In light of the fact that direct consignment requirements are discussed in the context of being
a prerequisite for the eligibility for entry of goods at preferential rates of duty or that relate to that
Member's method of valuation for duty purposes, the Panel thus considers that both the first and
second sentences of Article V:6 apply to a Member's territory which serve as the final destination of
the goods.774
7.467 In reaching its conclusion, the Panel considers that its interpretation conforms with the
principles of treaty interpretation set forth by the Appellate Body in US – Gasoline to avoid
interpretations that reduce certain other provisions to inutility. The Panel recalls its findings above775,
that Article V:2, second sentence imposes an MFN obligation by prohibiting Members from making
distinction based on the flag of vessels, the place of origin, departure, entry, exit or destination, or on
any circumstances relating to the ownership of goods, of vessels or of other means of transport of
"traffic in transit". The definition of "traffic in transit" from Article V:1 include those goods "when
the passage across such territory, ... is only a portion of a complete journey beginning and terminating
beyond the frontier of the contracting party across whose territory the traffic passes". Thus,
Article V:2 extends MFN protection to goods in transit through Member countries, while Article V:6
extends MFN protection from discrimination based on the geographic course of goods in transit upon
reaching their final destination.
7.468 The Panel additionally notes that Article V:5 extends MFN protection to "traffic in transit"
"[w]ith respect to all charges, regulations and formalities in connection with transit" (emphasis
added). In accordance with the Ad Note to this provision, MFN protection extends to "like products
being transported on the same route under like conditions" in relation to transportation charges.
Setting aside transportation charges, the protection under Article V:5 broadly extends to all
regulations and formalities for all "traffic in transit". As Article V:6 extends MFN protection broadly
to "treatment" (i.e. "Each contracting party shall accord to products which have been in transit through
the territory of any other contracting party treatment no less favourable..."), an interpretation that
773
See Rules of Origin, Note by the Secretariat, Consultative Group of Eighteen, Fourteenth Meeting,
25-27 March 1981, CG.18/W.48, 6 March 1981, Special Distribution, p. 5.
774
In resorting to the second sentence of Article V:6 as context to interpret the first sentence of the
same provision, the Panel does not reach any finding in regard to the provisions in the second sentence. The
Panel recognizes that the second sentence provides a limited and time-bound exception to the requirements set
forth in the first sentence. Furthermore, the Panel is not aware of the existence of any direct consignment rules
that comply with the second sentence.
775
See Section VII.I.2(c)(iv).
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Article V:6 governs treatment extended to "traffic in transit" would overlap with the broad protection
already ensured by Article V:5.
7.469 Finally, while the Panel is satisfied that its interpretation conforms with well-established rules
governing treaty interpretation, the Panel nevertheless notes that preparatory work to Article V does
not offer any conclusive guidance regarding interpretation. In Section VII.I.2(c)(i), the Panel
summarized the travaux preparatoires involved in the development of Article V of the GATT 1947.
The Panel noted that the first and second paragraphs of Article V were derived from parallel
provisions in the 1921 Barcelona Convention. These provisions do not shed light on the significance
of Article V:6. In addition, during a 1946 meeting of the Preparatory Committee of the International
Conference on Trade and Employment, the Technical Subcommittee published a report commenting
on the United States Suggested Charter for an International Trade Organization of the United Nations,
which included proposed text and comments regarding Article 10 of the suggested Charter, entitled
"Freedom of Transit".
7.470 Comments in the report of the Technical Sub-Committee reveal disagreement on the correct
interpretation of the provisions in paragraph 6 of Article 10, which reads nearly identically to
Article V:6 of the GATT 1947 (and consequently GATT 1994).776 As both Panama and Colombia
have acknowledged777, in discussing paragraphs 2-6 of the report of the Technical Sub-Committee
commented that:
"It is understood that paragraphs 2 – 5 of this Article cover the treatment to be given
by a member country to products in transit through its territory between any other
member country and any third country, and paragraph 6 covers the treatment to be
given by a member country to products cleared from customs within its territory after
transit through any other member country".778 (emphasis added)
7.471 However, in light of the distinction made between coverage in paragraphs 2-5 and that in
paragraph 6, the report also notes that "several delegates believed that paragraph 6 should be excluded
from Article 10 and set forth elsewhere in the Charter because it does not deal with products in
transit."779
7.472 The 12 January 2005 WTO Secretariat Negotiating Group on Trade Facilitation
acknowledged the earlier disagreement surrounding the various possibilities for interpretation of
Article V:6 of the GATT 1994:
"Paragraph 6 requires each party to treat products, which have been in transit through
the territory of another Member, no less favourably than products transported from
other Member. The text might be read to imply that a country V would have to treat
goods transported through its territory from country X with a destination in
country Z, after having already been carried through country Y, in the same manner
that would treat goods passing through its territory from X directly to Z, without
having passed through Y. It may be open to discussion, however, whether
paragraph 6's equal treatment requirement only covers products passing through a
party's territory after having already passed through another country, or whether it
776
Paragraph 6 of Article 10 differs only slightly from Article V:6, substituting the phrases "member
country" and "other member country" with the phrases "territory of any other contracting party" and "territory of
such other contracting party", respectively; and substituting the word "origin" with "place of origin".
777
Panama's second oral statement, paras. 56-57; Colombia's second written submission, para. 187.
778
Report of the Technical Sub-committee of the Preparatory Committee of the International
Conference on Trade and Employment, Committee II, UN doc. # E/PC/T/C.II/54/Rev.1, p. 11.
779
Report of the Technical Sub-committee of the Preparatory Committee of the International
Conference on Trade and Employment, Committee II, UN doc. # E/PC/T/C.II/54/Rev.1, p. 11.
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extends to products, which, having passed through a country, enter another party's
territory to remain there as their final destination. In other words, it may be debatable
whether paragraph 6 applies only to cases where the goods are shipped from X
through Y and V to Z, or whether it also covers goods coming from X through Y to V
(without continuing to Z)".780
7.473 Although the Panel understands that commentary by the WTO Secretariat does not have an
impact upon rights and obligations under the covered agreements781, the quotation reflects the lack of
consensus regarding the proper interpretation of Article V:6.
7.474 Colombia has raised the question of whether, since the provisions in Article V:6 were
ultimately not moved elsewhere, the delegates intended that Article V:6 should indeed be read in its
context of goods in transit and to apply therefore only to goods proceeding in transit.782 The Panel
declines to speculate in such a manner.
7.475 For all of the foregoing reasons, the Panel concludes that the obligations in Article V:6, first
and second sentences apply to Members whose territory is the final destination for goods in
international transit.
(e) The substantive obligations in Article V:6 of the GATT 1994
7.476 In light of its determination that Article V:6 extends obligations with respect to goods that
have been in transit, but have reached their final destination, the Panel will consider the obligation to
provide "treatment no less favourable" to those goods in comparison to the same goods "had they
been transported from their place of origin to their destination without going through the territory of
such other contracting party".
7.477 The Panel considers the obligation in Article V:6 first sentence is straightforward: all
treatment extended to goods that were transported from their place of origin to their destination
without going through the territory of other contracting party, must be extended to goods that have
been transported from their place of origin, and passed through the territories of such other
contracting countries as "traffic in transit" prior to reaching their final destination. Such "treatment"
must strictly be "no less favourable". As the comparison is made based on a hypothetical, identical
set of goods, i.e. the passage a good that was shipped from its origin via its actual route through one or
more Member countries prior to arrival at its final destination is compared to the hypothetical passage
of that good directly from its place of origin to its final destination, no like product analysis is
required.783
780
Doc. TN/TF/W/2, "Article V of the GATT 1994 – Scope and Application, Note by the Secretariat",
12 January 2005, para. 25.
781
The Panel notes that the 2005 Note by the Secretariat expressly provides that it is "without prejudice
to the positions of Members and to their rights and obligations under the World Trade Organization". See
TN/TF/W/2, "Article V of the GATT 1994 – Scope and Application, Note by the Secretariat", 12 January 2005,
p. 1.
782
783
In this respect, the Panel would like to address Colombia's argument that adherence to Panama's
interpretation of MFN obligations in Article V:6 would essentially undo the explicit limitation of MFN
protections set forth in Article I:1 of the GATT 1994. As explained above, Article V:6 requires a Member to
treat a good shipped from its origin via its actual route through one or more Member countries prior to arrival at
its final destination, identically had that same good hypothetically passed from its place of origin to its final
destination without traversing a particular territory in question. In contrast, Article I:1 of the GATT 1994
broadly ensures that any advantage extended to a product of a particular origin must be extended immediately
and unconditionally to the like product originating in or destined for the territories of all other Members. Thus,
Article I:1 ensures MFN treatment to like products of all origins, whereas Article V:6 ensures MFN treatment
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7.478 Thus, products that are transported from their place of origin which pass through any other
Member country on the route to their final destination must be treated no less favourably than had
those same products been transported from their place of origin to their final destination without ever
passing through that other Member's territory.
(f) Whether the ports of entry measure complies with the obligations in Article V:6 of the
GATT 1994
7.479 In accordance with its findings in relation to the scope and substantive obligations in
Article V:6, first sentence, the Panel's mandate requires it to determine whether, by imposing the ports
of entry measure, Colombia provides treatment no less favourable to goods of a particular origin that
arrive in Colombia after passage through Panama, than it would have provided those goods had those
goods arrived directly from their place of origin.
7.480 The Panel recalls that Article 2 of Resolution No. 7373 mandates simultaneous entry and
customs clearance exclusively at Bogota airport or Barranquilla seaport of all subject textiles, apparel
and footwear that have arrived from Panama and the CFZ. The Panel notes that the restriction applies
exclusively to textile, apparel and footwear goods originating in or arriving from Panama or the CFZ.
Goods which do not arrive from Panama or the CFZ are not required to simultaneously enter and
customs clear goods at two ports, but may do so at 11 eligible ports. Since the restriction is imposed
on goods of all origins that have passed through Panama or the CFZ prior to their arrival in Colombia
as their final destination, while the restriction would not apply to those same goods, had they not
entered Panama, Colombia does not extend "treatment no less favourable" to goods arriving from
Panama and the CFZ in comparison to the same goods had they been transported from their place of
origin to Colombia without circulating through Panama and the CFZ. Accordingly, the Panel finds
that the ports of entry measure is inconsistent with the obligation in the first sentence of Article V:6.
(i) Conclusion
7.481 Accordingly, the Panel finds that, by failing to extend "treatment no less favourable" to goods
arriving from Panama and the CFZ in comparison to the same goods had they been transported from
their place of origin to Colombia without circulating through Panama and the CFZ, the ports of entry
measure is inconsistent with the first sentence of Article V:6 of the GATT 1994.
K. COLOMBIA'S DEFENCE UNDER ARTICLE XX(D) OF THE GATT 1994 TO PANAMA'S CLAIMS
AGAINST THE PORTS OF ENTRY MEASURE
7.482 The Panel recalls its findings that the requirement within the ports of entry measure to enter
subject textiles, apparel and footwear arriving from Panama exclusively at Bogota and Barranquilla is
inconsistent with Articles XI:1 and V:6 of the GATT 1994; the requirement to submit an advance
import declaration, pay taxes on the basis of that advance declaration, and comply with legalization
rules is inconsistent with Article I:1 of the GATT 1994; and the requirement to trans-ship goods in
order to proceed in international transit is inconsistent with Article V:2 of the GATT 1994. In light of
these findings, the Panel will proceed to examine Colombia's defence under Article XX(d) of the
GATT 1994 in relation to these violations. As the Panel has not made findings with respect to
Panama's additional claims against the ports of entry measure under Article XIII:1 and Article I:1 of
the GATT 1994784, Colombia's defence will not be considered in relation to these claims.
based on its transit trajectory regardless of the existence of a like product of a different origin. In the Panel's
view, the obligations in these two provisions are not the same and should not be treated as redundant.
784
''The Panel exercised judicial economy with respect to both claims, albeit for separate reasons. See
Sections VII.F.2(c)and VII.G.2(b).
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7.483 Colombia submits that in the event that the Panel were to uphold some or all of Panama's
claims under Articles I:1, V:2, V:6, XI:1 or XIII:1 concerning the ports of entry measure, then the
Panel should find the ports of entry measure is justified under Article XX(d). Colombia argues that
the ports of entry measure is a temporary measure necessary to secure compliance with Colombia's
customs laws and regulations, and is not applied in a manner which constitutes arbitrary or
unjustifiable discrimination.785 Colombia submits that it faces problems of smuggling and under-
invoicing, which are particularly problematic with respect to imports from Panama.786 Colombia
argues that a clear link exists between the problems of customs fraud and smuggling and criminal
activities such as money-laundering and drug trafficking.787
7.484 Colombia submits that two conditions must be met for the ports of entry measure to be
justified under Article XX: the measure at issue must come under one of the exceptions in paragraphs
(a) to (j), and the measure must satisfy the requirements imposed by the chapeau of Article XX.788 In
relation to paragraph (d), the measure must be one to "secure compliance" with laws or regulations
that are themselves not inconsistent with the GATT 1994, and the measure must be "necessary" to
secure such compliance.789
7.485 Colombia submits that the ports of entry measure meets the conditions to be provisionally
justified under paragraph (d) of Article XX. First, Colombia asserts that its customs laws and
regulations are not inconsistent with the GATT 1994. Second, the ports of entry measure is designed
to secure compliance with those laws and regulations. Third, the ports of entry measure is necessary
to secure such compliance.790
7.486 Colombia deems its customs laws and regulations to be GATT -consistent as none of its
customs laws and regulations have been found to be GATT-inconsistent.791 Moreover, Colombia
considers that the administration of the ports of entry measure by the DIAN and the preamble of the
Customs Statute, demonstrate that the measure is designed to secure compliance with Colombia's
customs enforcement, a fact Colombia argues has been acknowledged by Panama.792
7.487 In assessing whether the measure is "necessary" to secure compliance with those laws,
Colombia argues that the Panel should weigh and balance a series of factors, including the
contribution made by the compliance measure to the enforcement of those laws and regulations.793
7.488 Colombia argues that the ports of entry measure concerns a very important set of interests or
values. In this regard, Colombia argues that the fight against illegal and criminal activities, such as
tax evasion and smuggling which contribute to the loss of public revenue has been accepted to be a
"most important interest for any country and particularly a developing country".794 Second, the ports
of entry measure makes a material contribution to customs control through limiting the entry of goods
from Panama to two ports and by allowing for the specialization of customs officials.795 Colombia
785
786
para. 219.
787
paras. 220-223.
788
789
790
791
792
793
794
795
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submits this is evidenced by the significant increase in contraband related seizures, the increase in the
"implicit" declared prices of subject goods and the decrease in the level of trade distortions.796 Third,
Colombia argues that the ports of entry measure does not have a significant negative impact on
trade.797 Colombia emphasizes that it is not imposing a ban or limiting trade but merely regulating the
entry of goods through a certain number of ports. This measure is narrow relative to those imposed by
other countries such as import bans which have been considered justified under Article XX.798
7.489 In addition to satisfying the requirements that the ports of entry measure is provisionally
justified as necessary to secure compliance with Colombian customs laws and regulations related to
customs enforcement matters, Colombia argues that there are no reasonably available alternative
measures to achieve compliance. Colombia notes that previous attempts at closer customs
cooperation were unsuccessful.799 Furthermore, Colombia considers it is not feasible to conclude
agreements with the private sector for textiles, apparel and footwear products because the "casas
matrices" or producers of these products are numerous and difficult to identify.800
7.490 Colombia argues that the ports of entry measure also satisfies the requirements imposed by
the chapeau of Article XX as the measure is not applied in a manner which constitutes arbitrary or
unjustifiable discrimination, or a disguised restriction on trade.801
7.491 Colombia considers the meaning of the word "arbitrary" to be "capricious, unpredictable,
inconsistent".802 Additionally, the measure must have a "rational connection" to the objective of the
relevant paragraph of Article XX.803 In Colombia's view, the test is whether such discrimination is
"justifiable" in the sense that it is "defensible" or "able to be shown to be just, reasonable."804
Colombia argues that evidence illustrates the problem of contraband coming from Panama, which is
linked to money-laundering and drug trafficking. This shows that the situation in respect of Panama
is unique from that of other countries, and therefore Colombia's ports of entry measure, which is
applied only to Panama, bears a "rational connection" to the objective of paragraph (d) of Article XX.
Thus, Colombia argues that the measure therefore is not arbitrary and unjustifiable.805
7.492 Colombia argues that the question before the Panel of whether the ports of entry measure
constitutes a disguised restriction on trade excludes the question of whether the measure has a
restrictive effect on trade.806 Colombia submits that the term "disguised restriction" may be read
together with "arbitrary discrimination" and "unjustifiable discrimination", which also means
concealed or unannounced restriction or discrimination.807 Colombia also submits that the term
"disguised restriction" is really about "avoiding abuse or illegitimate use of the exceptions", and that a
study of the intent of the measure is important in analysing the measure.808 Colombia reiterates that
796
Colombia's first written submission, paras. 344-346; Colombia's second oral statement,
paras. 60-62; Colombia's second written submission, para. 232.
797
798
799
800
801
802
Colombia's first written submission, para. 390; Colombia's second written submission, paras. 296.
803
804
805
paras. 299-310.
806
807
808
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the measure was applied in good faith with the intent of customs enforcement, and does not restrict
trade for a protectionist purpose.809
7.493 Panama considers that Colombia has not discharged the necessary burden to invoke the
Article XX defence by failing to present a separate defence for each and every measure and respective
violation which it seeks to justify under Article XX(d).810 Panama further argues that Colombia
cannot demonstrate that the measure is one designed to secure compliance with specific laws and
regulations as it has not properly identified those laws and regulations.811 In addition to Colombia's
failure to identify the relevant laws and regulations, Panama argues that a mere claim of a
presumption of WTO-consistency is insufficient to demonstrate that all of Colombia's customs laws
and regulations are themselves consistent with the GATT 1994.812
7.494 Panama argues that Colombia has not demonstrated how the ports of entry measure secures
compliance with its customs laws and regulations as the restrictions only apply to a limited range of
products, despite the fact Colombia has customs enforcement problems with respect to a wide range
of other products.813 Panama also notes that Colombia only applies these restrictions to Panama, even
though it experiences problems with contrabando técnico, subfacturación and sobrefacturación with
the United States, Europe, Asia and Asociación Latinoamericana de Integración (ALADI)
countries.814 As such, Panama asserts that the ports of entry measure has been imposed to protect
certain domestic industries from competition.815
7.495 Panama considers that in order for a measure to be considered "necessary", it must be close to
"indispensable".816 Panama argues that Colombia cannot demonstrate that its ports of entry measure
is close to "indispensable" because previous similar measures have been ineffective in combating
contraband.817 Panama also considers that Colombia's ports of entry measure has not contributed in a
material way in securing compliance with its customs laws and regulations. Panama submits that the
requirement to contribute to securing compliance with the law or regulation at issue referred to by the
Appellate Body in Korea – Various Measures on Beef was not aimed at the policy objective of the
law or regulation, but at securing compliance with the law or regulation at issue itself.818 Panama
submits that Colombia's argument that its measure contributes to the policy objective of its customs
laws and regulations has been rejected by the GATT panel in EEC – Parts and Components.819
Additionally, Panama considers Colombia's reliance on Brazil – Retreaded Tyres is flawed as the
Appellate Body in that case considered Article XX(b), which is a purpose-oriented exception, and not
Article XX(d), which is a functional exception.820 In Panama's view, the fact that contraband has
continued at high levels after Colombia first imposed restrictions on the ports of entry clearly
demonstrates that the measure does not make a material contribution to the policy objectives of
customs enforcement and combating contraband trade.821 Instead, Panama submits that Colombia's
ports of entry measure has an adverse impact on trade from Panama. In Panama's view, it is irrelevant
809
Colombia's first written submission, para. 404; Colombia's second written submission,
paras. 318-323.
810
Panama's second oral statement, para. 66, citing Colombia's second written submission, para. 199.
811
812
Panama's second written submission, para. 176; Panama's second oral statement, para. 67.
813
814
815
816
Panama's second oral statement, paras. 68-69.
817
818
Panama's second written submission, para. 186; Panama's second oral statement, paras. 70-71.
819
820
821
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that the trade effects of the measure are insignificant or even non-existent. Panama submits that the
"restrictive effects" must refer to the effects on the trade flows of imported products.822
7.496 In regards to the requirements set out in the chapeau to Article XX, Panama submits that
Colombia's ports of entry measure constitutes a "disguised restriction" on international trade as the
design, structure and architecture of the measure reveals that its true purpose is to protect fragile
domestic industries and not to enforce customs laws.823 According to Panama, statements made by
Colombia's Ministry of Commerce, Industry and Tourism and Colombia's introduction of quotas on
the importation of garments from China, illustrate a relation between protection for Colombia's
domestic industry and its ports of entry restrictions.824
7.497 Panama further submits that Colombia's ports of entry measure is applied in a manner that is
"arbitrary" and "unjustifiable". The application of the measure is "arbitrary" because it is only applied
to Panama despite the fact that Colombia has experienced various similar customs problems from
many other countries.825 Panama notes that all imports of the covered items from Panama are subject
to restrictions while all imports of like products from all other countries are exempted.826 In Panama's
view, such discrimination can only be justifiable if it is based on differences in conditions prevailing
in those countries. Panama submits that Colombia's argument that its application of the measure to
Panama only is justifiable because customs irregularities occur less frequently in respect of goods
from other countries is flawed as this approach was rejected by the Appellate Body in Brazil –
Retreaded Tyres.827 Panama therefore submits that Colombia's measure is also "unjustifiable".828
7.498 At the outset, the Panel wishes to recall its view stressed earlier that WTO Members are
entitled to enforce policies aimed at combating under-invoicing, smuggling and money laundering,
and any related problems, provided however, that measures implemented for these purposes are
themselves WTO-consistent. In any cases where a measure may violate a particular provision of the
WTO Agreements, a number of exceptions – notably those included in Article XX of the GATT 1994
– allow WTO Members to justify a WTO-inconsistent measure. In this light, the Panel will consider
Colombia's affirmative defence raised under Article XX(d) of the GATT 1994.
(a) Legislation applicable to Colombia's Article XX(d) defence
7.499 The principal aspects of the ports of entry measure, which form the basis for Panama's claims
under Articles I:1, V:2, V:6, XI:1 or XIII:1 include: (i) the requirement to enter and customs clear
goods exclusively at Bogota (for air shipments) and Barranquilla (for sea shipments); (ii) the
exception for goods that undergo trans-shipment to enter at any of 11 eligible ports when proceeding
in international transit; and (iii) the requirement to submit an advance import declaration, pay taxes on
the basis of that advance declaration, and comply with special legalization requirements (in the case
of textiles only). These requirements are discussed in detail in Sections VII.H, VII.I, VII.J, VII.E and
VII.F above, respectively.
7.500 The Panel notes that Colombia has presented a general defence to all of these claims,
referring to them collectively as the ports of entry measure. Panama has also structured its arguments
in response to Colombia's Article XX(d) defence by referring to the ports of entry measure broadly
and generally. However, Panama has argued that Colombia has not met its burden of proof by failing
822
823
824
825
Panama's second written submission, para. 217; Panama's second oral statement, para. 76.
826
827
828
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to present evidence to demonstrate that each of the aspects in the ports of entry measures are
necessary and in compliance with the requirements of the chapeau to Article XX.
7.501 The Panel will next consider the implications of Colombia's general defence approach.
(b) The measure relevant for purpose of analysis of Colombia's Article XX(d) defence
7.502 As noted above829, Colombia has presented a general defence under Article XX(d) to
Panama's claims of violation of Articles I:1, V:2, V:6, XI:1 and XIII:1. Accordingly, the Panel
understands that Colombia is arguing that the various requirements in the ports of entry measure in
unison (and not independently of each other) are necessary to secure compliance with laws or
regulations which are not themselves WTO-inconsistent, and thus are justified collectively.
7.503 As a consequence of structuring its arguments in this manner, Colombia has not presented
evidence to demonstrate how each requirement (i.e. the requirement to enter and customs clear goods
exclusively at Bogota and Barranquilla airport, the exception for goods that undergo trans-shipment to
enter at any of 11 eligible ports when proceeding in international transit, and the requirement to
submit an advance import declaration, pay taxes on the basis of that advance declaration, and comply
with special legalization requirements), as the object of a separate claim, is individually necessary to
secure compliance. In response to a question from the Panel, Colombia has submitted that the
requirements within the ports of entry measure, alongside a number of other measures, are "part of a
comprehensive set of measures to combat this persistent problem of fraudulent under-invoicing and
contraband."830
7.504 Panama has questioned whether, by taking such a global approach, Colombia has met its
burden to present its Article XX(d) defence in a manner clear enough for Panama to respond to
Colombia's arguments. In this regard, Panama refers to recent findings in the Panel Report on China
– Auto Parts, where the panel in that case questioned the validity of China's defence under
Article XX(d) due to the fact that China failed to distinguish its justification of the measures with
regards to possible violations of different provisions of the GATT 1994.831 Panama considers
Colombia's failure to present a separate defence for each and every measure and respective violation
which it seeks to justify under Article XX(d) is analogous.832
7.505 In China – Auto Parts, the respondent, China, had not initially distinguished its justification
of the relevant measures under Article XX(d) in respect of the separate claims of violation under
Articles II and III of the GATT 1994. Later in the proceedings, however, China changed in its
position and clarified that the Article XX(d) analysis would depend on whether a violation were found
under either Article II or Article III of the GATT 1994. From the information provided in that Report,
it appears that China offered limited argumentation. Recalling that China held the burden to prove its
defence under Article XX(d), the Panel questioned the overall validity of China's defence. Nevertheless,
the Panel considered that "[i]t is not for the Panel to advance or presume specific arguments or analysis for
a claim made by a party to the dispute833", and thus proceeded to examine China's global defence under
Article XX(d).834
829
See para. 7.499.
830
831
Panama's second oral statement, para. 66, referring to the Panel Report on China – Auto Parts,
paras. 7.283 and 7.287.
832
Panama's second oral statement, para. 66, citing Colombia's second written submission, para. 199.
833
(footnote original) The Appellate Body states in US – Gambling: "In the context of affirmative
defences, then, a responding party must invoke a defence and put forward evidence and arguments in support of
its assertion that the challenged measure satisfies the requirements of the defence. When a responding party
fulfils this obligation, a panel may rule on whether the challenged measure is justified under the relevant
defence, relying on arguments advanced by the parties or developing its own reasoning. The same applies to
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7.506 The present case is similar to China – Auto Parts in the sense that Colombia has not presented
an individual defence per claim of violation. Noteworthy differences exist, however. Primarily,
Colombia has not modified its position during the proceedings as China appears to have done in
China – Auto Parts. Additionally, Colombia has provided substantial argumentation in support of its
defence.
7.507 In the Panel's view, Colombia has not met its burden (nor has it attempted) to demonstrate
that each of the requirements within the ports of entry measure contributes to enforcement of its
customs laws. As the arguments and evidence provided by Colombia are of a general nature, it is not
possible to evaluate, for instance, the extent to which the restriction on entry to Bogota and
Barranquilla contributes to enforcement, as separate from the contribution of the advance import
declaration requirement, and so forth. Hence, the Panel will not examine whether each of the
requirements in the ports of entry measure which have been separately found inconsistent with
different provisions of the GATT 1994, are nevertheless justified by Article XX(d).
7.508 Notwithstanding the difficulty in assessing the requirements within the ports of entry measure
individually, in light of Colombia's approach and in line with the panel's approach in China – Auto
Parts, the Panel will address Colombia's global defence that the ports of entry measure is justified as
necessary to secure compliance with the relevant laws or regulations by considering the requirements
under the ports of entry measure collectively, without attempting to evaluate the individual
contributions of each requirement in the ports of entry measure.
(c) Article XX of the GATT 1994
7.509 The text of Article XX(d) and the chapeau of Article XX provide as follows:
"Subject to the requirement that such measures are not applied in a manner which
would constitute a means of arbitrary or unjustifiable discrimination between
countries where the same conditions prevail, or a disguised restriction on
international trade, nothing in this Agreement shall be construed to prevent the
adoption or enforcement by any contracting party of measures:
...
(d) necessary to secure compliance with laws or regulations which

are not inconsistent with the provisions of this Agreement, including
those relating to customs enforcement, the enforcement of
monopolies operated under paragraph 4 of Article II and
Article XVII, the protection of patents, trade marks and copyrights,
and the prevention of deceptive practices."
(d) Order of analysis under Article XX(d)
7.510 In US – Gasoline, the Appellate Body concluded that the analysis of a measure under one of
the paragraphs of Article XX is a "two-tiered" approach:
"In order that the justifying protection of Article XX may be extended to it, the
measure at issue must not only come under one or another of the particular exceptions
-- paragraphs (a) to (j) – listed under Article XX; it must also satisfy the requirements
rebuttals. A panel may not take upon itself to rebut the claim (or defence) where the responding party (or
complaining party) itself has not done so" (emphasis added) (Appellate Body Report, US – Gambling,
para. 282).
834
Panel Report, China – Auto Parts, paras. 7.283 and 7.287.
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imposed by the opening clauses of Article XX. The analysis is, in other words, two-
tiered: first, provisional justification by reason of characterisation of the measure
under [in that case] XX(g); second, further appraisal of the same measure under the
introductory clauses of Article XX ..."835
7.511 The Appellate Body has explained that two elements must be satisfied in order for a measure
to be provisionally justified under paragraph (d) of Article XX:
"For a measure ... to be justified provisionally under paragraph (d) of Article XX, two
elements must be shown. First, the measure must be one designed to 'secure
compliance' with laws or regulations that are not themselves inconsistent with some
provision of the GATT 1994. Second, the measure must be 'necessary' to secure such
compliance. A Member who invokes Article XX(d) as a justification has the burden
of demonstrating that these two requirements are met."836
7.512 The Panel agrees with the approach taken by the Appellate Body and will follow it in
addressing Colombia's defence under Article XX(d) of the GATT 1994. Therefore, the Panel will first
look at whether the requirements in the ports of entry measures are necessary to secure compliance
with the relevant Colombian laws and regulations that are not themselves WTO-inconsistent; if the
response to this question is positive, the Panel will next consider whether the ports of entry measure is
necessary to secure such compliance. The Panel will only proceed to analyse whether the ports of
entry measure meets the requirements of the chapeau to Article XX, i.e. whether the measure allows
for "arbitrary or unjustifiable discrimination between countries where the same conditions prevail", or
constitute a "disguised restriction on international trade", if the Panel has first determined that the
measure has met the requirements under paragraph (d) of Article XX.
(e) Whether the ports of entry measure is necessary to secure compliance with Colombian laws
and regulations as provided in Article XX(d) of the GATT 1994
7.513 The Panel will first examine whether the ports of entry measure is designed to secure
compliance with Colombian laws and regulations that are not themselves WTO-inconsistent.
Thereafter, the Panel will consider whether the ports of entry measure is necessary to secure such
compliance.
(i) First element: Whether the ports of entry measure has been "designed" to secure compliance
with Colombian laws and regulations that are not themselves WTO-inconsistent
7.514 In determining whether a measure is designed to secure compliance with laws and regulations
as provided in Article XX, the panel in US – Shrimp (Thailand) explained that a WTO Member
raising a defence should identify the laws or regulations for which it seeks to secure compliance,
establish that those laws or regulations are not themselves WTO-inconsistent, and demonstrate that
the particular measure at issue is itself designed to secure compliance with the relevant laws or
regulations.837
Identification of Colombian laws and regulations
7.515 The Panel will therefore examine whether Colombia has properly identified the laws and
regulations relevant to its Article XX(d) defence. In Mexico – Taxes on Soft Drinks, the Appellate
Body confirmed that the terms "laws or regulations" refer to rules that form part of the domestic legal
835
Appellate Body Report, US – Gasoline, p. 22.
836
837
Panel Report, US – Shrimp (Thailand), para. 7.174. See also Panel Report, US – Customs Bond
Directive, para. 7.295.
WT/DS366/R
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system of a WTO Member and thus encompass the rules adopted by a WTO Member's legislative or
executive branches of government, further noting that "matters 'relating to customs enforcement' will
generally involve rights and obligations that apply to importers or exporters".838
7.516 Throughout its main written submissions, Colombia referred generally to its "laws and
regulations relating to customs enforcement"839 and indicated that the "port of entry measure on
certain products from Panama were implemented ... in order to ensure compliance with Colombian
customs law and combat contraband and money-laundering."840 When questioned by the Panel,
Colombia referred more specifically to laws and regulations for which it seeks to secure compliance
though the ports of entry measure:
"In the case of the ports measure, the measure itself, through its preamble,
demonstrates that it is designed to strengthen customs controls and customs
enforcement. The express reference to Decree No. 2685 and the fact that the
challenged Resolution No. 7373 is issued by the customs authority, the DIAN, in
exercise of its authority under Article 41 of Decree No. 2685 clearly show that
Decree No. 2685 and the implementing regulation Resolution No. 4240 are the laws
and regulations relating to customs enforcement the compliance with which is being
sought by the ports measure. Colombia does not consider it necessary to identify
specific provisions in such laws and regulations for the purposes of its Article XX d)
defence but it is clear that a number of provisions such as for example Article 87 of
Decree No. 2685 expressly set forth the customs obligations that exists in respect of
any goods that is being introduced into Colombia, including the requirement to make
a declaration supported by documentary evidence and to comply with all obligations
set forth in Colombia's laws and regulations."841
7.517 As reflected through its response, Colombia contends that the ports of entry measure is
intended to secure compliance with Article 41 of Decree No. 2685 and Resolution No. 4240. More
specifically, Colombia also referred to Article 87 of Decree No. 2685.
7.518 The Panel has considered each of these legislative provisions and instruments in turn.
Article 41 of Decree No. 2685 sets forth rules on the designation of ports for importation and
clearance of goods.842 Among other aspects, this provision allows the DIAN to prohibit or restrict the
838
Appellate Body Report, Mexico – Taxes on Soft Drinks, paras. 69-70.
839
For example, Colombia's first written submission, paras. 321, 323, 325, 326, 330, 343, 348 etc.
Colombia's first oral statement, paras. 90-91. Colombia's second written submission, paras. 203, 205-207, 213
etc.
840
841
Colombia's response to Panel question No. 145. The Panel would like to stress that Colombia
provided this identification of the laws and regulations in response to a question from the Panel relating to
Article 319 of Colombia's Código Penal. In footnote 142 of its second written submission, Colombia had
referred to Article 319 of its Código Penal when discussing evidence to demonstrate that the ports of entry
measure is effective in addressing contraband-related seizures. The Panel thus asked the parties whether they
consider this Article a specific law or regulation related to combating contraband, for which the ports of entry
measure is designed to secure compliance. Colombia indicated that "[I]t is by enforcing respect and compliance
with such customs laws that in an indirect manner action is taken against criminal activities - whether the
criminal act of smuggling as such, or the use of smuggled or under-invoiced goods in order to launder money.
DIAN is not a criminal enforcement agency and a DIAN Resolution is therefore not a measure that secures
compliance with Colombia's criminal laws such as the one referred to by the Panel. However, Colombia
considers that this does not imply that customs enforcement does not protect interests that go beyond mere
revenue protection for the government. Colombia has explained its position in this respect in previous
submission and has pointed to the specific situation of Colombia and its problems of drug trafficking and public
order."
842
The text of Article 41 of Decree No. 2685 provides as follows:
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entry of certain goods into designated ports for customs control purposes. Within
Resolution No. 4240, referred to broadly by Colombia, Article 39 serves as the corresponding
implementing provision and thus regulates (i) the administration of the restriction of textiles, apparel
and footwear to 11 ports of entry imposed pursuant to Article 41 of Decree No. 2685, and (ii) the
administration of the restriction to two ports applicable to textile, apparel and footwear arriving from
Panama.843 Article 87 of Decree No. 2685 does not deal directly with ports restrictions or prohibitions
but sets forth the general customs obligations linked to the importation of goods, including the
"ARTICULO 41. LUGARES HABILITADOS PARA EL INGRESO Y SALIDA DE

MERCANCÍAS BAJO CONTROL ADUANERO.
Son aquellos lugares por los cuales la Dirección de Impuestos y Aduanas Nacionales permite
el ingreso y salida de mercancías bajo control aduanero del territorio aduanero nacional.
En el acto administrativo de habilitación deberán delimitarse claramente los sitios que
constituyen Zona Primaria Aduanera, disponiendo si fuere del caso, su demarcación física y
señalización.
Para la habilitación de puertos y aeropuertos, la Dirección de Impuestos y Aduanas
Nacionales exigirá que las instalaciones destinadas a las operaciones de cargue, descargue,
custodia, almacenamiento y traslado de las mercancías bajo control aduanero y aquellas
áreas destinadas a la realización de las operaciones aduaneras, cuenten con la debida
infraestructura física y con los sistemas y dispositivos de seguridad que garanticen, a
satisfacción de dicha entidad, la seguridad de las mercancías y el pleno ejercicio del control
aduanero.
La autoridad aduanera, en coordinación con las autoridades portuarias y aeroportuarias y
con los administradores de los puertos y aeropuertos habilitados, dispondrá de las medidas y
procedimientos tendientes a asegurar en la Zona Primaria Aduanera, el ejercicio sin
restricciones de la potestad aduanera, donde además de lo previsto en el inciso anterior,
deberá reglamentar conjuntamente con las autoridades competentes, la circulación de
vehículos y personas y disponer de sistemas de identificación de los mismos.
El incumplimiento de lo previsto en este artículo por parte de los titulares de la habilitación
podrá ocasionar la pérdida de la habilitación para. la entrada y salida de mercancías del
territorio aduanero nacional.
PARAGRAFO. La Dirección de Impuestos y Aduanas Nacionales podrá por razones de
control, prohibir o restringir el ingreso o salida de determinadas mercancías por los lugares
habilitados."
843
The text of Article 39 of Resolution No. 4240 provides in relevant part as follows:
"ARTICULO 39. PROHIBICIONES Y RESTRICCIONES PARA EL INGRESO DE
MERCANCIAS.
En desarrollo de lo dispuesto en el parágrafo del artículo 41 del Decreto 2685 de 1999, la
importación de materias textiles y sus manufacturas, clasificables en la Sección XI (Capítulos
50 a 63, ambos inclusive) del Arancel de Aduanas, únicamente podrá realizarse por los
puertos, aeropuertos y lugares de arribo, de servicio público, ubicados en la jurisdicción de
las siguientes administraciones aduaneras de: Barranquilla, Bucaramanga, Buenaventura,
Cali, Cartagena, Cúcuta, Ipiales, Leticia, Medellín, San Andrés, Santa Marta y Bogotá. Lo
dispuesto en este inciso, se aplica igualmente a las importaciones de mercancías procedentes
de las Zonas Francas Industriales de Bienes y de Servicios.
…
PARÁGRAFO 2o. <Parágrafo adicionado por el artículo 1 de la Resolución 5796 de 2005.
Rige hasta el 30 de junio de 2006. El nuevo texto es el siguiente:> Las mercancías
clasificables por los Capítulos 50 al 64 del Arancel de Aduanas, correspondientes a materias
textiles y sus manufacturas, y calzado y sus partes, originarias y/o provenientes de la
República de Panamá y de la República Popular China, deberán ingresar e importarse
exclusivamente por las jurisdicciones de la Administración Especial de Servicios Aduaneros
Aeropuerto El Dorado y la Administración Especial de Aduanas de Bogotá, si se transportan
vía aérea; y por la Administración Especial de Aduanas de Barranquilla, si es por vía
marítima…"
WT/DS366/R
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requirement to present an import declaration and pay duties and fees, as required, and generally
comply with all relevant obligations set forth in Colombia's laws and regulations.844
7.519 Panama argues that Colombia has not met its burden to adequately identify which are the laws
and regulations that are not themselves inconsistent with the GATT 1994.845 In its view, Colombia's
assertion that its general customs laws and regulations are presumed to be GATT-consistent is
inadequate to discharge its burden of identifying the specific laws and regulations, and demonstrating
that those provisions are "not inconsistent" with the GATT 1994.846 Panama argues that the practice in
previous panels establishes that the respondent in a dispute is required to identify the specific
domestic laws or regulations that are not themselves inconsistent with the GATT 1994. To emphasize
the necessary specificity that is required, Panama refers to China – Auto Parts, where the panel
expressed concern that China "interchangeably referred to various items as the law or regulation the
measures are securing compliance with" such as "China's customs laws or regulation, China's customs
laws, including its tariff provisions, its tariff schedule" and other general laws and regulations.847
7.520 The Panel agrees with Panama that Colombia bears the burden to identify the domestic laws
or regulations relevant to its Article XX(d) defence. However, the Panel does not consider the
reference to China – Auto Parts is pertinent in this instance. During the course of proceedings, China
had indicated that the law or regulation for the purpose of its Article XX(d) defence was China's
alleged valid interpretation of its tariff provisions for motor vehicles. The panel in that dispute
indicated that China's interpretation of its concessions on motor vehicles could not form part of
China's tariff schedule itself, and found that such an interpretation was not a law or regulation relevant
to its Article XX(d) defence.848
7.521 In this Panel's view, although it would have been desirable for Colombia to have clarified this
issue much earlier in the proceedings, it has nevertheless referred to legal provisions of Colombian
law as opposed to an interpretation by national customs authorities of how the national schedule must
be interpreted.849
844
Article 87 of Decree No. 2685 provides as follows:
"ARTICULO 87. OBLIGACIÓN ADUANERA EN LA IMPORTACIÓN
La obligación aduanera nace por la introducción de la mercancía de procedencia extranjera
al territorio aduanero nacional
La obligación aduanera comprende la presentación de la Declaración de Importación, el
pago de los tributos aduaneros y de las sanciones a que haya lugar, así como la obligación de
obtener y conservar los documentos que soportan la operación, presentarlos cuando los
requieran las autoridades aduaneras, atender las solicitudes de información y pruebas y en
general, cumplir con las exigencias, requisitos y condiciones establecidos en las normas
correspondientes."
845
846
847
Panama's second oral statement, para. 67, referring to the Panel Report on China – Auto Parts,
para. 7.290.
848
Panel Report, China – Auto Parts, paras. 7.293-7.296.
849
The Panel recalls that it may consider a wide array of provisions cited by either of the parties in
determining the relevant laws and regulations relevant to Colombia's Article XX(d) defence. The Appellate
Body explained in US – Shrimp (Thailand) that a panel is free to use the various arguments made and provisions
cited by the parties in order to assess objectively which laws and regulations were relevant to the defendant's
defence:
"In our view, the Panel was free to use the arguments made and provisions cited by all the
parties—including Thailand and India—in order to assess objectively which laws and
regulations were relevant to the United States' defence. We do not believe that, in doing so,
the Panel exceeded its jurisdiction."
Appellate Body Report, US – Shrimp (Thailand), para. 302.
WT/DS366/R
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7.522 The pertinent question is thus whether the legal instruments and particular provisions
identified by Colombia can be considered by the Panel as laws or regulations relevant for
Article XX(d). As explained above, when questioned by the Panel, Colombia referred to
Decree No. 2685, and in particular Articles 41 and 87, and to Resolution No. 4240, as the relevant
laws or regulations for the Panel to consider. In reference to Decree No. 2685, Panama at the outset
argued that Article 41 is the enabling legislation pursuant to which Colombia enacted the ports of
entry restrictions and thus the ports of entry restrictions cannot be said to secure compliance with
Article 41 as that would be tantamount to concluding that the ports of entry restrictions are designed
to secure compliance with a provision allowing port of entry restrictions.850
7.523 While the Panel agrees with Panama that Article 41 of Decree No. 2685 is the provision
authorizing Colombia to impose restrictions on ports of entry, whenever it considers further regulation
necessary, the Panel does not consider Colombia's reference to this provision, or Resolution No. 4240,
as problematic to its identification of the relevant laws and regulations. Although Article 41 provides
authority to impose restrictions, it also refers more broadly to the objective of ensuring the security of
goods and ability of customs authority to exercise control. Additionally, Article 41 is one of the
various provisions in Decree No. 2685 addressing matters related to ensuring customs control and
enforcement. For instance, Colombia has identified Article 87 of Decree No. 2685 as well, which sets
forth several obligations, including the requirement to present an import declaration and pay duties
and fees, as required, and generally comply with all relevant obligations set forth in Colombia's laws
and regulations. Resolution No. 4240 similarly addresses matters of customs control broadly.
7.524 As noted, the concept of laws and regulations in Article XX refers to rules that form part of
the domestic legal system of a WTO Member and thus encompass the rules adopted by a WTO
Member's legislative or executive branches of government, including those relating to the rights and
obligations applicable to imports.851 In the Panel's view, Colombia has identified to the satisfaction of
the Panel the array laws and regulations for which the ports of entry measure seeks to ensure
compliance. These broadly include the provisions in Decree No. 2685, including its Article 41 and
87, and Resolution No. 4240.
7.525 The Panel will therefore consider whether Decree No. 2685, and Resolution No. 4240 are
laws and regulations not themselves WTO-inconsistent.
Whether the laws or regulations are not themselves WTO-inconsistent
7.526 The Panel will thus next consider whether the laws and regulations identified by Colombia in
Decree No. 2685, and Resolution No. 4240 are in themselves consistent with the provisions of the
WTO Agreements.
7.527 Colombia argues that the laws and regulations for which the ports of entry measure seeks to
ensure compliance are not inconsistent with the GATT 1994. In Colombia's view, a WTO Member's
laws and regulations are presumed to be GATT/WTO-consistent.852 Colombia argues that Panama
has not challenged Colombia's customs laws and regulations in a general manner, having only made
claims in respect of certain specific aspects of Colombia's customs laws and regulations.853 As such,
Colombia deems its laws and regulations relating to customs enforcement to be consistent with the
provisions of the GATT 1994.854
850
851
See para. 7.515.
852
Colombia's second written submission, para. 202, citing to Appellate Body Report, US – Carbon
Steel, para. 157.
853
854
WT/DS366/R
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7.528 Panama has contested Colombia's assertion that its customs enforcement laws and regulation
are deemed WTO-consistent. In Panama's view, a mere claim of a presumption of WTO-consistency
is not sufficient. As Colombia's customs laws and regulations total thousands of pages, Panama
submits that it would not be possible for the Panel to satisfy itself that all the relevant customs law and
regulations are GATT-consistent.855
7.529 The Panel again agrees with Panama that Colombia has the burden of proof to demonstrate
that all conditions of the defence are met, including the condition that the laws and regulations for
which the ports of entry measure is designed to secure compliance are not in themselves
GATT-inconsistent.856 The Panel does not, however, consider that Colombia must demonstrate that
each and all of the provisions of Decree No. 2685 and the implementing regulation
Resolution No. 4240 are WTO-consistent, in order to meet its burden of proof.
7.530 In the present dispute, the Panel has found in Sections VII.B and VII.C above that
Article 128.5 e) of Decree No. 2685 and Article 172.7 of Resolution No. 4240 are inconsistent with
several provisions of the Customs Valuation Agreement and, arguendo, Article III:2 of the
GATT 1994. Notwithstanding these findings, the Panel does not consider the fact that one provision
in a country's customs regulations is WTO-inconsistent, means that necessarily any or all other
individual provisions are incompatible as well. For instance, Colombia has identified Article 87 of
Decree No. 2685 which, as explained above, comprises the importers' general customs obligations.
As far as the Panel understands, Panama's claim that the ports of entry measure is not justified under
Article XX(d) does not mean that Panama is challenging Colombia's right to enforce its customs laws
and, in particular, the importers' general customs obligations of the type provided for in Article 87 of
Decree No. 2685.
7.531 As Panama points out, Colombia's customs laws and regulations total thousands of pages and
therefore, it is not possible for the Panel to examine every provision of Colombia's customs laws and
regulations in order to determine whether they are GATT-consistent. However, the Panel does not
consider it necessary to complete a comprehensive review. As pointed out by Colombia, the
Appellate Body has stressed that a responding Member's law will be treated as WTO-consistent until
proven otherwise.857
7.532 Accordingly, the Panel concludes that, for the purpose of its analysis of Colombia's defence
under Article XX(d) of the GATT 1994, Decree No. 2685 and Resolution No. 4240, with the
exception of Article 128.5 e) of Decree No. 2685 and Article 172.7 of Resolution No. 4240 (which
have been determined WTO-inconsistent in Section VII.B.2(e) above) are not themselves inconsistent
with any provision of the GATT 1994.
Whether the ports of entry measure is designed to secure compliance with Colombian laws or
regulations which are not themselves WTO-inconsistent
7.533 Having established that generally Decree No. 2685 and, in particular Article 87, and
Resolution No. 4240, are the laws and regulations with which the ports of entry measure aims at
securing compliance are not on the whole WTO-inconsistent, the Panel will therefore determine
whether the ports of entry measure is designed to secure compliance with those laws and regulations.
7.534 Colombia argues that the preamble in Resolution No. 7373 makes clear that the ports of entry
measure has been implemented to strengthen and make more effective customs controls, thus
855
856
857
Appellate Body Report, US – Carbon Steel, para. 157. See also Appellate Body Report, Dominican
Republic – Import and Sale of Cigarettes, para. 111 and Appellate Body Report, US – Gambling, para. 138.
WT/DS366/R
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demonstrating that the measure is designed to secure compliance with Colombia's laws relating to
customs enforcement. The Preamble of Resolution No. 7373 provides as follows:
"Que el artículo 41 del Decreto 2685 de 1999 establece en la Dirección de Impuestos

y Aduanas Nacionales la facultad de restringir, por razones de control, el ingreso de
determinadas mercancías por algunos lugares de arribo;
Que el inciso 3º del artículo 119 del Decreto 2685 de 1999, adicionado por el
artículo 2° del Decreto 2373 de 2004, prevé que la Dirección de Impuestos y
Aduanas Nacionales puede establecer la obligación de presentar la declaración de
importación en forma anticipada para determinadas mercancías;
Que para el fortalecimiento y agilización de los controles aduaneros y para la

prestación de un mejor servicio, es preciso tener información previa sobre algunos
bienes que se pretenden ingresar al país;
Que para lograr controles más eficientes es importante que las administraciones
aduaneras se especialicen en el manejo técnico de determinadas mercancías, que
hacen parte de importantes sectores productivos nacionales;
Que el conocimiento previo de la información relativa a las mercancías que se

pretenden ingresar al país, así como la especialización técnica de las aduanas,
permitirán contar con elementos para el fortalecimiento del control aduanero sobre
las mismas".
7.535 Colombia notes that the preamble expressly refers to Article 41 of Decree No. 2685, which, it
argues, allows the DIAN to impose limitations on the ports of entry whenever necessary for purposes
of customs control. In addition, as discussed in the preamble, Colombia submits that prior knowledge
of the information of merchandise to be imported and the technical specialization of customs
authorities are linked to the objective of enhancing customs controls with respect to subject
merchandise.858
7.536 In addition to its preamble, Colombia argues that the design and purpose of the ports of entry
measure is clear from circumstances surrounding its implementation. Colombia considers that the
fact that it had agreed to remove an earlier, similar ports restriction measure following the entry into
force of a Customs Cooperation Protocol demonstrates problems exist with customs control and that
Colombia is not simply addressing protectionist ends.859 Colombia argues that the ports of entry
measure's entry into force at a time of widespread contraband problems that have been acknowledged
by Panama through its participation in cooperation efforts, supports the rationale that the measure was
designed and implemented to secure compliance with customs regulations.860
858
Colombia's second written submission, para. 204. Colombia argues that further confirmation of this
policy objective can be found in a letter from the DIAN, submitted by Panama as Exhibit PAN-43, which
provides:
"En este orden de ideas y a efecto de lograr controles más eficientes, es importante que las
administracionesaduaneras se especialicen en el manejo técnico de determininadas
mercancías, que hacen parte de importantes sectores productivos nacionales y para. lo cual,
conociendo la infraestructura operative, ténica y humana que tiene disponible la DIAN en las
administracinoes de Bogotá y Barranquilla, se determine que fueran las administraciones de
Bogotá y Barranquilla ... por donde ingresen las mercancías clasficables por los capítulos 50
al 64 del Arancel de Aduanas...".
859
860
WT/DS366/R
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7.537 Panama has argued that Colombia has not demonstrated how the ports of entry measure is
designed to secure compliance with all the provisions of its customs laws. Panama notes that
Colombia experiences similar, serious infringements of its customs laws by other trading partners,
including the United States and Europe. However, Colombia only applies the ports of entry measure
to certain products from Panama. Additionally, Panama notes, in 2004, when none of the restrictions
at issue in this dispute were in place, other regions accounted for a much larger share of contrabando
técnico and sobrefacturación problems than Panama.861 Panama also submits that Colombia has
customs enforcement problems with respect to a wide range of products, such as "máquinas y
aparatos eléctricos" and vehicles and vehicle parts, apart from subject textiles, apparel and
footwear.862 Panama considers that if Colombia's intention were to secure compliance with its
customs laws and regulations, then it should apply the requirements in the ports of entry measure to
imports from all trading partners that have had customs irregularities, not simply on a country-specific
and narrow product-specific basis.863 In light of the ports of entry measure's application solely to
textiles, apparel and footwear products arriving from Panama and the CFZ, Panama argues that the
"obvious function [of the measure] is to protect certain domestic industries from import
competition".864
7.538 The Appellate Body in Mexico – Taxes on Soft Drinks explained that the burden to
demonstrate that a measure is designed to "secure compliance" must focus on the "design of the
measure sought to be justified".865 This has been described to mean "to enforce obligations" rather
than "to ensure the attainment of the objectives of laws and regulations."866 Moreover, the Appellate
Body clarified that a measure may be considered as securing compliance regardless of whether it is
certain to achieve results: "In our view, a measure can be said to be designed 'to secure compliance'
even if the measure cannot be guaranteed to achieve its result with absolute certainty".867
7.539 As pointed out by Colombia, the preamble of Resolution No. 7373 refers to Article 41 of
Decree No. 2685, which generally authorizes Colombian customs authorities to restrict access to ports
of entry whenever authorities are not satisfied that they will be able to fully exercise their powers of
control and verification. On this basis, Colombia has generally restricted access for all textiles,
apparel and footwear classifiable under Chapters 50-64 of the Colombian Tariff Schedule from all
countries to 11 ports of entry.868 On this same basis, Colombia additionally restricts entry of subject
goods arriving from Panama to ports at Bogota and Barranquilla.
861
Panama's second oral statement, para. 67; According to Chart 3 of Exhibit COL-38, the United
States accounted for US$959,228 of contrabando técnico, while ALADI countries (including Panama)
accounted for US$625,115. As concerns subfacturación, Panama notes that Europe accounted for US$455,981,
while ALADI accounted for US$372,359. With respect to sobrefacturación, the United States accounted for
US$776,136, while Panama (separate from other ALADI countries) accounted for US$137,657.
862
Panama's second written submission, para. 179. Panama notes that "máquinas y aparatos
eléctricos" accounted for $189,907 of under-invoicing, whereas under-invoiced textiles and footwear amounted
to $82,254 and $98,666, respectively. (Panama's first oral statement, para. 7).
863
864
Panama's first oral statement, para. 77. In support of this view, Panama notes a DIAN letter
describing the goods at issue as "goods that form part of an important domestic industry" (Panama's first oral
statement, para. 78).
865
Appellate Body Report, Mexico – Taxes on Soft Drinks. para. 72, Appellate Body Report, Korea –
Various Measures on Beef, para. 157.
866
Panel Report, Canada – Periodicals, para. 5.9. Panel Report, Mexico – Taxes on Soft Drinks,
para. 8.175; GATT Panel Report, EEC – Parts and Components, para. 5.17.
867
Appellate Body Report, Mexico – Taxes on Soft Drinks, para. 74.
868
In accordance with Article 39 of Resolution No. 4240 of 2000 (Exhibit PAN–38), textiles, apparel
and footwear classifiable under Chapters 50-64 of Colombia's Tariff Schedule must enter exclusively at
Barranquilla, Bucaramanga, Buenaventura, Cali, Cartagena, Cúcuta, Ipiales, Leticia, Medellín, San Andrés and
Bogota.
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7.540 Resolution No. 7373 further refers to Article 119 of Decree No. 2685 in its preamble, which
generally allows Colombian Customs authorities to impose an advance customs declaration
requirement to imports.
7.541 We note that both Article 41 and Article 119 authorize Colombian customs officials to
impose the various requirements that comprise the ports of entry measure. Apart from the above
provisions, the preamble to Resolution No. 7373 also refers generally to the need to strengthen and
improve customs controls related to the importation of subject textiles, apparel and footwear arriving
from Panama, which are described as constituting an important national industry in Colombia.869
7.542 The Panel notes that the circumstances surrounding the imposition of the ports of entry
measure support the view that that the measure was imposed at a time when customs fraud-related
problems existed.870 As Colombia notes, Panama previously agreed to launch a programme of
cooperation and mutual assistance for the purpose of investigating and preventing customs law
infringements in both countries, which led to the removal of earlier restrictions on ports of entry.871
The panel agrees that this coordinated effort is suggestive of the existence of a problem with customs
fraud that may have formed the basis for imposing restriction on importation in the first place.872
Colombia has submitted quantitative assessment of the existence of significant ongoing problems with
under-invoicing and smuggling in relation to textiles, apparel and footwear, with particular emphasis
placed on those arriving from the CFZ and Panama.873
7.543 On the basis of the foregoing evidence and circumstances surrounding the implementation of
the ports of entry measure, and in light of the fact that the measure was imposed with a view to
addressing the need to strengthen and improve customs controls related to the importation of subject
textiles, apparel and footwear arriving from Panama, the Panel considers that Colombia has
869
As noted above, the preamble provides in relevant part as follows:
"Que para. lograr controles más eficientes es importante que las administraciones aduaneras
se especialicen en el manejo técnico de determinadas mercancías, que hacen parte de
importantes sectores productivos nacionales."
870
As noted by Colombia in paragraph 210 of its second written submission, the Appellate Body in
Korea – Various Measures on Beef has considered the prevailing circumstances surrounding implementation, in
assessing whether a measure is designed to secure compliance with applicable laws and regulations':
"[T]he dual retail system was put in place, at least in part, in order to secure compliance with
the Korean legislation against deceptive practices to the extent that is serves to prevent acts
inconsistent with the Unfair Competition Act. First, the system was established at the time
when, as stated by Korea and not refuted by the Complaining parties, acts of
misrepresentation were widespread in the beef sector. Second, it must be conceded that the
dual retail system does appear to reduce the opportunities and thus the temptations for
butchers to misrepresent foreign beef for domestic beef, when compared with the situation
where all domestic and imported beef could officially be supplied to the same shop."
Panel Report, Korea – Various Measures on Beef, para. 658.
871
As explained in Section II.A, on 20 July 2006, Panama requested consultations under the DSU with
Colombia concerning, inter alia, the imposition of restrictions on ports of entry similar to those at issue in this
dispute. Colombia had imposed these earlier restrictions between July 2005 and October 2006, on the basis of
Resolution No. 05796 of 7 July 2005, Resolution No. 12465 of 21 December 2005 and Resolution No. 06691 of
22 June 2006. On 1 December 2006, Panama notified the DSB that it had reached a Mutually Agreed Solution
with Colombia in accordance with Article 3.6 of the DSU, under which Colombia repealed the earlier
restrictions and .the parties concluded a customs cooperation agreement, entitled the "Protocol of Procedure for
Cooperation and Exchange of Customs Information between Customs Authorities of the Republic of Panama
and the Republic of Colombia".
872
873
Colombia's first written submission, para. 203; Exhibit COL-21. For instance, a UIAF study claims
that 89 firms incorporated in the Colon Free Zone were identified by Colombian intelligence as regularly
participants in the purchase of goods with contraband US dollars.
WT/DS366/R
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demonstrated to its satisfaction that the ports of entry measure is designed to secure compliance with
Decree No. 2685 and Resolution No. 4240.874
7.544 Accordingly, the Panel will proceed to determine whether the ports of entry measure is
necessary to secure compliance with the aforementioned laws and regulations.
(ii) Second element: Whether the ports of entry measure is "necessary" to secure compliance
with Colombian customs enforcement laws and regulations
7.545 Having established that the ports of entry measure has been designed to secure compliance
with Decree No. 2685 and the implementing regulation Resolution No. 4240, the Panel will next
examine whether the ports of entry measure is "necessary" to ensure compliance with these domestic
provisions.
7.546 The Appellate Body when examining the concept of "necessary" in the context of
Article XX(d) of the GATT 1994 in Korea – Various Measures on Beef, concluded that, in order to be
considered "necessary" to secure compliance, a measure does not need to be "indispensable", but
should constitute something more than strictly "making a contribution to":
"We believe that, as used in the context of Article XX(d), the reach of the word
'necessary' is not limited to that which is 'indispensable' or 'of absolute necessity' or
'inevitable'. Measures which are indispensable or of absolute necessity to secure
compliance certainly fulfil the requirements of Article XX(d). But other measures,
too, may fall within the ambit of this exception. As used in Article XX(d), the term
'necessary' refers, in our view to a range of degrees of necessity. At one end of this
continuum lies 'necessary' understood as 'indispensable'; at the other end, is
'necessary' taken to mean as 'making a contribution to'. We consider that a 'necessary'
measure is, in this continuum, located significantly closer to the pole of
'indispensable' than to the opposite pole of simply 'making a contribution to'."875
7.547 In assessing the "necessity" of a measure within the meaning of Article XX(d), in particular,
whether the measure is "necessary to ensure compliance with laws and regulations … , including
those relating to customs enforcement", the Appellate Body explained that several criteria should be
taken into consideration, including a weighing and balancing of these aspects:
"It seems to us that a treaty interpreter assessing a measure claimed to be necessary to

secure compliance of a WTO-consistent law or regulation may, in appropriate cases,
take into account the relative importance of the common interests or values that the
law or regulation to be enforced is intended to protect. The more vital or important
those common interests or values are, the easier it would be to accept as 'necessary' a
measure designed as an enforcement instrument. There are other aspects of the
enforcement measure to be considered in evaluating that measure as 'necessary'. One
is the extent to which the measure contributes to the realization of the end pursued,
the securing of compliance with the law or regulation at issue. The greater the
contribution, the more easily a measure might be considered to be 'necessary'.
Another aspect is the extent to which the compliance measure produces restrictive
effects on international commerce, that is, in respect of a measure inconsistent with
Article III:4, restrictive effects on imported goods. A measure with a relatively slight
874
The Panel notes that it is not yet making an assessment of whether the port of entry measure has
been effective in securing compliance of Colombian customs enforcement laws. The Panel is strictly evaluating
whether Colombia designed the ports of entry measure in order to secure compliance with such laws and
regulations.
875
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impact upon imported products might more easily be considered as 'necessary' than a
measure with intense or broader restrictive effects. In sum, determination of whether
a measure, which is not 'indispensable', may nevertheless be 'necessary' within the
contemplation of Article XX(d), involves in every case a process of weighing and
balancing a series of factors which prominently include the contribution made by the
compliance measure to the enforcement of the law or regulation at issue, the
importance of the common interests or values protected by that law or regulation, and
the accompanying impact of the law or regulation on imports or exports."876
7.548 The weighing and balancing of factors should be conducted through consideration of the
factors individually and in relation to each other:
"The weighing and balancing is a holistic operation that involves putting all the
variables of the equation together and evaluating them in relation to each other after
having examined them individually, in order to reach an overall judgement."877
7.549 Finally, the Appellate Body has clarified that a measure will not be considered "necessary"
within the meaning of Article XX(d) of the GATT 1994 "if an alternative measure which [a Member]
could reasonably be expected to employ and which is not inconsistent with other GATT provisions is
available to it".878 The complaining Member has the burden to identify possible alternatives to the
measure at issue that the respondent could have taken.879
7.550 Thus, in evaluating whether the ports of entry measure is necessary within the meaning of
Article XX(d), the Panel will consider: (i) the relative importance of the common interests or values
that the law or regulation to be enforced is intended to protect; (ii) the extent to which the measures
contribute to the realization of the end pursued; and, (iii) the restrictive impact of the measure on
imported goods.
The relative importance of the common interests or values that the laws or regulations to be
enforced are intended to protect
7.551 Colombia has requested the Panel to examine the measures in light of the important interests
involved in securing compliance with its customs laws, both in terms of revenue lost, and in terms of
876
Appellate Body Report, Korea – Various Measures on Beef, paras. 162-164. In a more recent
assessment of the meaning of the term "necessary" in connection with a defence raised under Article XX(b), the
Appellate Body indicated that a panel may evaluate whether a measure is "necessary" based on the extent to
which the measure is "apt to produce a material contribution to the achievement of its objective":
"Thus, a panel might conclude that an import ban is necessary on the basis of a demonstration
that the import ban at issue is apt to produce a material contribution to the achievement of its
objective."
Appellate Body Report, Brazil – Retreaded Tyres, para. 151. The Panel considers the well-established
approach set forth in Korea – Various Measures on Beef relevant to its analysis of Colombia's Article XX(d)
defence.
877
878
Appellate Body Report, Korea – Various Measures on Beef, para. 165, citing to GATT Panel
Report, US – Section 337, footnote 69, para. 5.26:
"It was clear to the Panel that a contracting party cannot justify a measure inconsistent with
another GATT provision as "necessary" in terms of Article XX(d) if an alternative measure
which it could reasonably be expected to employ and which is not inconsistent with other
GATT provisions is available to it. By the same token, in cases where a measure consistent
with other GATT provisions is not reasonably available, a contracting party is bound to use,
among the measures reasonably available to it, that which entails the least degree of
inconsistency with other GATT provisions."
879
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illegal and criminal activities linked to contraband and smuggling in general.880 Colombia further
argues that the problem of contraband is significant, as contraband trade plays a proven role in certain
types of money-laundering, wherein money-laundering is linked to other illegal activities.881 Due to
its status as a developing country, Colombia emphasizes that a loss of revenue and threats to political
and economic stability are of even greater importance.882 Colombia characterizes itself as unlike any
other country as it is faced with an important domestic problem of drug trafficking and public order.
7.552 In relation to revenue collection, Colombia has provided estimates of the loss of revenue
arising from the entry of contraband from Panama at US$300 million annually.883
7.553 Colombia views the link between customs fraud and smuggling and other criminal activities,
including money laundering and drug trafficking, has been clearly established, and, in particular, in
relation to the CFZ. As Colombia notes, a Memorandum of Understanding between the World
Customs Organization and the International Criminal Police Organization linked customs fraud with
other criminal activities, including money-laundering and terrorism.884 Colombia additionally notes
publications by the United Nations885 and the International Monetary Fund886, which also refer to
problems with smuggling in the CFZ.887 Colombia's own UIAF888 has referred to a close relationship
between contraband and money-laundering.889
7.554 In response to a question from the Panel, Colombia described the problem of money
laundering in the specific context of the Black Market Peso Exchange (BMPE), which utilizes a
recognized money-laundering technique to convert illicit funds outside of Colombia into Colombian
pesos via the importation of goods into Colombia.890 The United Nations describes the CFZ as a
"integral part" of the BMPE.891 Colombia submits that the BMPE typically employs consumer
merchandise such as those arriving from Panama to facilitate the exchange.892
880
881
882
Colombia's response to Panel question No. 151, Colombia's second written submission, para. 218.
883
884
885
United Nations, Office on Drugs and Crime, Crime and Development in Central America, at 69
(May 2007), available at http://www.unodc.org/documents/data-and-analysis/Central-america/study/en.pdf-
2007-11-02.
886
International Monetary Fund, Panama: Detailed Assessments of Observance of Standards and Codes
for Banking Supervision, Insurance Supervision, and Securities Regulation, IMF Country Report No. 07/67, at
198-199 (Feb. 2007), available at http://www.imf.org/external/pubs/cat/longres.cfm?sk=20450.0.
887
888
The Unidad de Información y Análisis Financiero (UIAF) is an entity of the Colombian government
created by Ley 526 of 1999 for the purpose of preventing detecting and fighting money laundering and financial
terrorism.
889
Colombia's second written submission, para. 221; Exhibit COL-30.
890
891
United Nations, Office on Drugs and Crime, Crime and Development in Central America, at 69
(May 2007), available at http://www.unodc.org/documents/data-and-analysis/Central-america/study/en.pdf-
2007-11-02
892
Exhibit COL-43, Exhibit COL-30. Colombia cites to the International Narcotics Control Strategy
Report – 2008, released by the Bureau of International Narcotics and Law Enforcement Affairs, in order to
explain the operations of the Black Market Peso Exchange (BMPE):
"Panama's sophisticated international banking sector, Colon Free Zone (CFZ), US dollar-
based economy, and legalized gambling sector are utilized to facilitate potential money
laundering. The CFZ is the world's second largest free zone after Hong Kong, and serves as an
originating or transshipment point for some goods purchased with narcotics proceeds (mainly
dollars obtained in the United States) through the Colombian Black Market Peso Exchange.
The CFZ has over 2,600 business, 25 bank branches, and employs approximately 25,000
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7.555 Apart from that discussion of problems generally among international organizations,
Colombia argues that problems with customs fraud and under-invoicing are clearly demonstrated
through trade statistics. Citing to both Colombian and Panamanian export statistics for the period
2000-2006, Colombia notes that its reported import figures from Panama are lower amounts than
export figures reported by Panama. In particular, Colombia notes a difference of US$629.642 million
and US$848.317 million in 2005 and 2006, respectively.893 As a result of these discrepancies in
reported figures, which Colombia terms distortions, Colombia has concluded by its own estimates,
that Panama contributes 10 per cent in distortions while only representing approximately 2.1 per cent
of total imports into Colombia, representing US$877.3 million of "contrabando abierto" in 2006.894
7.556 In relative terms, as a component of total annual distortions, Colombia estimates that in 2006,
contraband from Panama was responsible for 83.8 per cent of all contrabando abierto and 62 per cent
of all contrabando técnico entering Colombia.895 Additionally, Colombia submits that more
irregularities have been found in respect of declarations of goods from Panama (6.8 per cent) than the
average from other countries (4.8 per cent).896
7.557 Colombia considers these figures depict a serious overall problem with under-invoicing and
smuggling. As pertains to subject goods to this dispute, Colombia argues that 84.27 per cent of
products imported from Panama were contraband trade, increasing to 89 per cent in the case of
textiles.897 Colombia submits that textiles accounted for 27.9 per cent of all seizures, and footwear,
9.2 per cent.898 Between 2001 and 2007, Colombia alleges that 121 million pairs of shoes were
imported from Panama of which 82.5 million (or 68 per cent) were imported at a price below US$1,
which, in Colombia's view, strongly suggests that this trade is affected by under-invoicing and
personnel. The CFZ is estimated to have imported and re-exported over US $15 billion in
goods during 2007. The ports of Panama handle over 4 million twenty-foot equivalent units
(TEUs) of container traffic per year. The CFZ has limited resources to conduct supervisory
programs and monitor for illegal activities, with a legal staff of approximately five people
who, among other things, oversee efforts to detect money laundering, trans-shipment, goods
smuggling, counterfeit products and intellectual property rights violations."
See http://www.thepanamanews.com/pn/v_14/issue_05/news_07.html. See also Colombia's second
written submission, para. 222; Exhibit COL-38; Exhibit COL-51.
893
Colombia's first written submission, para. 193. Figures for all years are as follows:
2000 2001 2002 2003 2004 2005 2006

Importations from Panama
Colombian Registry 291,090 391,201 431,285 290,476 383,331 381,050 412,091
Panamanian Registry 873,656 783,741 744,889 691,459 903,302 1,010,692 1,260,408
Difference 582,566 392,540 313,604 400,983 519,971 629,642 848,317

Source: Contraloria de Panama; DIAN.
Note: In its original presentations, Colombia's calculation of the difference contained an arithmetic
error, which has been corrected here.
894
Exhibit COL-38.
895
Colombia's first written submission, para. 194. The Panel notes that these figures seem to be
contradicted by ones presented in Exhibit COL-38. This exhibit, which contains a report by the DIAN on the
measurement of import value distortions in 2006, shows that almost all trade distortion with Panama in 2006
correspond to the modality of "contrabando abierto" (96.8 per cent of the total) and, to a much lesser extent,
"sobrefaturación" (3.2 per cent of the total). See Table 4, p. 10; Table 1, p. 11 and Table 8, p. 16. In fact,
Table 4 reports problems of "contrabando técnico" with United States (49 per cent); Europe (24.2 per cent);
ALADI (16.9 per cent) and Asia (11.2 per cent). Moreover, the Section of the report dedicated to the analysis of
the "Panama case" refers exclusively to the problem of "contrabando abierto", and does not even mention
problems of "contrabando técnico". See Exhibit COL-38, pp. 17-19.
896
Exhibit COL-17.
897
Exhibit COL-16.
898
Exhibit COL-18; Exhibit COL-31.
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contraband.899 In 2007, Colombia claims that, of nine million pairs imported below US$1,
seven million (77.7%) were imported from Panama.900
7.558 Based on internal studies901, Colombia asserts that Panamanian exporters were involved in
40 per cent of the cases in which money-laundering was linked to international trade. Colombia
argues the number rises to nearly two-thirds in cases in which Panamanian exporters that are
indirectly involved are factored.902
7.559 Colombia has presented a series of data showing criminal investigations into companies
located in Panama and the CFZ that have allegedly participated in contraband trade operations in
Colombia.903 In Exhibit COL-21, Colombia lists 89 companies registered in the CFZ, which it alleges
to be involved in these activities.904 In Exhibit COL-66, Colombia has submitted a list of 106 cases
involving textiles, apparel and footwear imports from Panama that were criminally prosecuted
between 2005 and 2007, based on information submitted by each of the country's customs
administration. In Exhibit COL-67, Colombia lists 150 cases that concern false invoices by two shoe
major importers of footwear imports from Panama into Colombia.905
7.560 Colombia argues that the scope of its efforts to date demonstrate the existence of a severe
problem with under-invoicing and customs fraud with respect to Panama.906 Measures identified by
Colombia include a requirement to present an advance import declaration or export declaration,
restrictions on domestic transit, the establishment of a "Customs Observer" post, the incorporation of
Fiscal and Customs police in the structure of the DIAN, modifications to the structure of customs
administrations, the adoption of an indicative and reference prices regime, special document
requirements, and agreement with other countries' customs authorities and the private sector.
Colombia further notes that Panama's willingness to participate in the Customs Cooperation Protocol
provides further evidence that Panama has also recognized the problem.
7.561 Panama has not called into question the incidence of money laundering or contraband in
relation to goods arriving to Colombia. Panama, however, calls into question Colombia's attribution
899
900
901
Exhibit COL-19.
902
The UIAF report in Exhibit COL-19 provides as follows:
"Es así como, entre el 1 de julio de 2005 hasta el 20 de febrero de 2008 el G.I.T. de Control y
Prevención de Lavado de Activos a remitido a la UIAF doscientos setenta y siete (277) casos,
de los cuales ciento cuarenta y nueve (149) corresponden a actividades económicas que
incluyen importaciones, correspondiendo a PANAMA cincuenta y nueve (59) casos como
principal país de procedencia, lo que representa un 40% del total casos; sin embargo
PANAMA aparece en un menor porcentaje como país de procedencia en más de 30 casos
adicionales.
El valor f.o.b. total de los 149 casos es de USD$499.287.988 y a PANAMA le corresponde el
19% de este valor, es decir USD$95.758.038, comparado como el principal país de
procedencia."
In Panama's first oral statement, footnote 15, Panama disputes the arithmetic, noting that 89 of
149 cases totals 59.73 percent, which is less than 66.66 per cent or two thirds. Colombia notes
further that the report refers to five specific cases in which a typical situation of money
laundering involving Panamanian exporters involves warning signals that include contraband,
under-invoicing, fraud, and the use of falsified documents, among other indicators.
(Exhibit COL-19)
903
Exhibit COL-52.
904
In Exhibit COL-22, Colombia provides results of an investigation, which concluded that buyers of
merchandise in the CFZ can choose whether they want goods with or without invoices, and whether they want
the goods to go into a "normal" or "special" container.
905
906
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of the severity of the problem in light of the fact that the anti-fraud and anti-money laundering steps
have not been imposed at all ports of entry.907 Moreover, Panama refers to the general nature of
information included in reports by the United Nations908, the International Monetary Fund909, the US
Drug Enforcement Administration910, and the US State Department.911 Panama notes that several of
these reports designate the BMPE as the root cause of the problem.912 Panama additionally
characterizes Colombia's assessment of a GIT-UIAF report, in which Colombia argues that
transactions involving Panama amounted to 19 per cent of total in terms of value of contraband goods
as flawed. Panama argues that value is the relevant consideration, and not the number of investigated
cases: 59 out of 149.913 In this light, if value is the focus, Panama argues that the vast majority of
problems are connected with other countries. For these reasons, Panama considers that the CFZ is
only tangentially related to the problem of smuggling, money laundering and drug trafficking.
7.562 In addressing a Member's right to raise an affirmative defence under Article XX(d), no
previous panel has directly addressed measures designed to address problems of under-invoicing in
relation to the payment of customs duties. However, in Dominican Republic – Import and Sale of
Cigarettes, the panel recognized the important interest for the Dominican Republic in its efforts to
curb tax evasion and smuggling:
"The Panel finds no reason to question the Dominican Republic's assertions in the
sense that the collection of tax revenue (and, conversely, the prevention of tax
evasion) is a most important interest for any country and particularly for a developing
country such as the Dominican Republic."914
7.563 While the relative importance of the common interests or values that may be addressed within
the gamut of Article XX of the GATT 1994 (including all its subparagraphs) do not adhere to any
hierarchical ranking or prioritization of interests therein, an assessment of the importance of interest
or values must take into account the evidence presented as well as the prevailing circumstances faced
by the respondent. This proposition holds true in relation to measures necessary to secure compliance
with laws or regulations relating to customs enforcement.
7.564 With respect to the defence raised by Colombia, the Panel is of the view that the fight against
under-invoicing and smuggling must be assessed in the proper context in consideration of the
particular realities faced by Colombia. In the Panel's view, evidence submitted by Colombia
demonstrates that problems exist with contraband, smuggling and under-invoicing in Colombia, in
particular, in connection with the CFZ as well as the BMPE. Colombia has presented additional
evidence in an effort to demonstrate the effects of these problems in relation to goods arriving from
Panama, and has referred to these problems in relation to what it considers the affiliated problem of
drug trafficking.
7.565 Despite reservations by Panama concerning the general nature of evidence to demonstrate
problems with money laundering and contraband goods in the region and the link between these
phenomenon and drug-trafficking, it has nevertheless acknowledged the problem through its own
907
908
Colombia's first written submission, footnote 162.
909
910
911
Colombia's first written submission, footnote 179. Panama argues that State Department report cites
to 2005-2006 period when former ports of entry measure was in place. Yet, Panama argues that problems with
money laundering still existed. Thus, Panama considers the argument that the ports of entry measure combats
money-laundering is unsubstantiated when statistics do not indicate a decline in money laundering.
912
913
914
Panel Report, Dominican Republic – Import and Sale of Cigarettes, para. 7.215, as upheld by the
Appellate Body, Appellate Body Report, Dominican Republic – Import and Sale of Cigarettes, para. 71.
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participation in a Customs Cooperation Protocol with Colombia in an attempt to address these exact
problems. Moreover, evidence of ongoing and completed investigations submitted by Colombia shed
light on Colombia's broad efforts to address these problems.
7.566 In the Panel's view, combating under-invoicing and money laundering associated with drug
trafficking is a relatively more important reality for Colombia than for many other countries.
The extent to which the measure contributes to the realization of the end pursued, the securing
of compliance with the laws or regulations at issue
7.567 Through presentation of quantitative and qualitative evidence, Colombia submits that the
ports of entry measure is apt to make a material contribution to the objective of combating
contraband.915 Colombia argues that a genuine relationship of ends and means exists between the
objective pursued and the measure at issue.916
7.568 Colombia draws the Panel's attention to a series of quantitative indicators to demonstrate that
the ports of entry measure is contributing to reducing smuggling. First, Colombia argues that the
evolution of the implicit price of textiles, apparel and footwear, i.e. price per unit, demonstrates that
the measure has materially contributed to combating contraband.917 Second, Colombia points to the
notable increase in the number of contraband-related seizures with respect to textiles products coming
from Panama in 2007, as compared to 2006.918 Finally, Colombia argues that the fact that the "level
of distortion" has decreased since the introduction of the measure, provides further evidence of the
measure's effectiveness.919
7.569 Colombia acknowledges that not all the data in these indicators point in the same direction,
and that there are many intervening factors that must be taking into account. However, Colombia
considers it inevitable that certain measure might take some time before become effective. In support
of this statement, Colombia notes in Brazil – Retreaded Tyres that the Appellate Body found effective
contribution of certain measures can only be made clear with the benefit of time, especially in the case
of complex and multi-layered problems.920
7.570 Apart from price and trade flow data, Colombia submits that "it is difficult to deny" that
requiring products be imported through a limited number of ports equipped to control imports in a
most effective manner is apt to make a material contribution to combat smuggling.921 Colombia
submits that it is easier to control importation and verify the accuracy of the import declaration when
imports are entering at two points of entry only. Moreover, Colombia argues that the increased
exposure of customs officials to potential contraband products provides them with important
experience in respect of the techniques applied by the smugglers.922
7.571 Panama argues that Colombia erroneously submits that the ports of entry measure is "apt to
make a material contribution" to the policy objective of combating smuggling. Panama submits that
915
Colombia explained in its response to Panel's question No. 118 that "contraband" is a "general term that refers to
products that are not declared or are improperly declared and are thus entering the country in an illegal manner".
The Panel thus understands that "contraband" is a term that encompasses all customs irregularities, inter alia,
open smuggling, technical smuggling and under-invoicing. See also Colombia's first written submission,
para. 196, in which Colombia suggests that the term "contraband" includes under-invoicing and smuggling.
916
Colombia's second oral statement, para. 63, citing to Brazil – Retreaded Tyres, para. 7.119.
917
Colombia's second written submission, paras. 235 and 240.
918
Exhibit COL-18; Colombia's second written submission, para. 232.
919
920
921
922
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Article XX(d) does not require an assessment of whether the measure at issue secures the attainment
of the objectives of those laws and regulations, but an examination of whether the measure secures
compliance with the laws or regulations themselves.923 Moreover, Panama considers the finding in
Brazil – Retreaded Tyres that a measure may be considered as "necessary" if it brings about "a
material contribution to the achievement of its objective ... of the protection of human health or
environmental objectives pursued"924 is inapplicable to defences raised under Article XX(d). Panama
notes that the protection of "human, animal or plant life or health" in Article XX(b) is a
purpose-oriented exception. In contrast, Panama considers that Article XX(d) provides that a measure
is necessary to secure compliance with specific laws and regulations, which is a functional exception.
In Panama's view, Colombia has confused its approach with the test under Article XX(b) which
requires an assessment of whether a measure brings about a material contribution to the achievement
of its objective.925
7.572 While Panama concedes that the fight against tax evasion and smuggling is an important
interest for a developing country, it considers that Colombia has not established how the restrictions
contribute in a material way to secure compliance with the applicable laws.926 Panama notes that, as
stated by Colombia, the ports of entry measure is part of a "comprehensive strategy", which includes
the use of customs observers, the requirement to make an advance declaration, automatic licensing,
pre-shipment inspection, contraband agreement with the private sector, customs cooperation,
modernization of ports and various measures to fight internal corruption.927 Due to such a
comprehensive approach, Panama argues that Colombia cannot establish a direct cause and effect
relationship to determine that the ports of entry measure has materially contributed to the policy
objective of combating contraband, at least in respect of under-invoicing.928
7.573 Apart from what Panama considers Colombia's erroneous interpretative approach to
Article XX(d) and its failure to demonstrate a causal link between the measure and its contribution,
Panama considers the ports of entry measure has not been effective in combating contraband. Panama
notes between July 2005 and October 2006, Colombia imposed restrictions on ports of entry similar to
those at issue in this dispute. During 10 months in 2006, when the restrictions were in force, Panama
notes Colombia's estimation that the percentage of contraband trade exceeded 84 per cent generally,
and 89 per cent in the case of textiles.929 In Panama's view, these statistics demonstrate that the ports
of entry restrictions are completely ineffective at combating contraband.930 In addition, Panama notes
that, according to the data submitted by Colombia, Cartagena was responsible for seizing 17 billon
pesos of contraband in 2007, whereas Barranquilla was responsible for seizing only 10 billon pesos.931
In Panama's view, this raises the question as to the relative effectiveness of one of the primary ports
923
Panama's second written submission, paras. 186-191; Panama's second oral statement, para. 69.
Panama notes the following statement in GATT Panel Report, EEC – Parts and Components:
"If the qualification 'to secure compliance with laws and regulations' is interpreted to mean 'to
ensure the attainment of the objectives of the laws and regulations', the function of
Article XX(d) would be substantially broader. Whenever the objective of a law consistent
with the General Agreement cannot be attained by enforcing the obligations under the law, the
imposition of further obligations inconsistent with the General Agreement could then be
justified under Article XX(d) on the grounds that this secures compliance with the objectives
of that law. This cannot, in the view of the Panel, be the purpose of Article XX(d) …" (GATT
Panel Report, EEC – Parts and Components, para. 5.17).
924
925
926
927
Colombia' second written submission, para. 226.
928
929
Panama's first oral statement, paras. 5, 12 and 81, Panama's second written submission, para. 194.
930
Panama's first oral statement, para. 5. Panama notes as well that indicative prices were in place in
2006 when some of the highest levels of customs irregularities were reported (para. 6).
931
Panama's first oral statement, para. 82, Panama's second written submission, para. 198.
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under the measure in carrying out seizures of contraband textiles.932 In reaching its conclusion,
Panama disputes the argument put forth by Colombia that measures normally take time to have effect.
Considering the nature of the measure, Panama submits it should be possible to detect the immediate
impact of the measure and to assess its effectiveness. 933 Panama considers that the ports of entry
measure by its design is ineffective at combating contraband. First, Panama notes that the measure
only applies to a subject textiles, apparel and footwear despite the fact that Colombia has customs
enforcement problems with respect to a wide range of products, including"máquinas y aparatos
eléctricos" and vehicles and vehicle parts, which are not subject to the ports of entry restrictions.934
As discussed in paragraph 7.537 above, for instance, Panama notes that "máquinas y aparatos
eléctricos" accounted for US$189,907 of under-invoicing, whereas subject textiles and footwear
accounted for US$82,254 and US$98,666, respectively.935 Furthermore, Panama notes that the ports
of entry measures are applied only to textiles, apparel and footwear arriving from Panama, even
though Colombia experiences significant problems with contrabando técnico, subfacturación and
sobrefacturación with other regions. As noted in paragraph 7.494 above, Colombian evidence
indicates the United States accounted for US$959,228 of contrabando técnico, while ALADI
countries (including Panama) accounted for US$625,115.936 With respect to subfacturación, Europe
accounted for US$455,981, while ALADI accounted for US$372,359, and with respect to
sobrefacturación, the United States accounted for US$776,136, while Panama (separate from other
ALADI countries) accounted for US$137,657.937 Panama considers that a measure designed to secure
compliance with customs enforcement would apply to all products known to be problematic, and
would address the most significant contraband problems stemming from trade with all trading
partners.938
7.574 Panama disputes that any basis exists to justify targeting textiles, apparel and footwear
arriving from Panama. Panama notes Colombia's claim that the frequency of irregularities found in
declaration of goods from Panama (6.8 per cent) exceeded the average from other countries
(4.8 per cent).939 Panama considers the fact that irregularities were 2 per cent higher does not justify
imposing measures exclusively against goods arriving from Panama.940
7.575 Panama argues that it is inappropriate to focus on the relative proportion of contraband from a
particular country as opposed to the absolute amount of contraband from a particular country.941 In
Panama's view, if Colombia seeks to combat contraband to ensure that revenues are not foregone, in
addition to addressing problems with under-invoicing and securing compliance with its customs laws
and regulations broadly, Colombia should apply the measures to all imports giving rise to customs
irregularities. If this is not possible, Panama argues it would only be logical for Colombia to combat
contraband in trade from its larger trading partners, including the United States and Europe, because
932
Panama's second written submission, para. 198. Panama notes that Colombian data is not broken
down on a monthly basis, so it is not possible to determine whether the seizures in Cartagena were conducted
before or after the re-introduction of the ports of entry measure.
933
934
935
Panama's first oral statement, para. 7. Furthermore, Panama notes that, although not subject to the
port of entry measure, vehicles and vehicle parts accounts for 16.2 per cent of seizures. In contrast, footwear
accounted for only 9.2 per cent of seizures between 2005 and 2007. See Panama's first oral statement, para. 9,
936
Chart 3 of Exhibit COL-38.
937
Chart 3 of Exhibit COL-38.
938
939
Exhibit COL-17; Colombia's first written submission, paras. 197 and 199.
940
941
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the amount of contraband (and therefore revenue forgone) in absolute terms is higher than that of
Panama.942
7.576 The Panel will thus assess the extent to which the ports of entry measure contributes to the
realization of the end pursued in light of the quantitative and qualitative assessment advanced by
Colombia. Preliminarily, the Panel notes that Colombia has not presented any evidence whether the
measure contributes to combating problems allegedly related to contraband, such as money-
laundering and drug trafficking. The Panel analysis will thus be limited to corroborating whether
Colombia has succeeded in establishing that the measure is apt to contribute to tackling under-
invoicing and smuggling, which Colombia considers to be linked to illicit activities, including
problems with money-laundering and drug trafficking. The Panel will not address the broader
question of whether the measure is also apt to combat money-laundering and drug trafficking.
7.577 Colombia has presented a series of quantitative indicators to confirm the effectiveness of the
ports of entry measure. Colombia argues that an appropriate way of monitoring the effectiveness of
the measure is to analyse the "implicit price", or the declared price per unit. According to Colombia,
an increase in the implicit price demonstrates that the ports of entry measure is effective in addressing
under-invoicing, since under-valuation is being curtailed due to increased controls.943 Based on data
submitted as Exhibit COL-42, Colombia contends that implicit prices for textiles, apparel and
footwear have increased during the periods of application of the measure.944 For Colombia, this
demonstrates that the measure is effective in combating under-invoicing.945
7.578 The Panel will evaluate whether implicit prices for textiles, apparel and footwear have
increased during the imposition of the ports of entry measure. Before addressing Colombia's analysis
of the data, the Panel would like to comment on several observations concerning the accuracy of the
data. The Panel notes that Colombia's analysis of the evolution of the implicit price draws almost
exclusively from data submitted in Exhibit COL-42 and, in particular, from the Boletín 12
Seguimiento Resolución 7373 / 2007 (hereinafter "Bulletin 12").946 However, a critical portion of the
imports arriving to Colombia from Panama, i.e. textile, apparel and footwear imports originating in
942
Panama's comment of Colombia's response to Panel question No. 138.
943
Colombia's second written submission, para. 235; Colombia's second oral statement, paras. 60-62.
944
945
See Colombia's second written submission, paras. 235-242. The Panel wishes to note that it does
not agree with Colombia's account of the evolution of the implicit price. Thus, Colombia's proposition that
implicit prices of textiles imports arriving from Panama ranged from US$1.01 to US$0.84 during the period of
application of the port of entry measure is not reflected by the numbers provided by Colombia in
Exhibit COL-42 and Exhibit COL-61. In fact, during the periods of application of the measure, the implicit
price of textiles coming from Panama reached such low levels as 0.12 in December 2005, during application of
the restrictions on ports of entry, and 0.61 in May 2008, during the application of the ports of entry measure.
Colombia's assertion that implicit prices of textiles goods "just prior to the imposition of the first ports measure
were at a range of 0.19 to 0.30" is not supported by the data. According to Exhibits COL-42 and COL-61 the
implicit prices during the months preceding the first measure were: US$0.26 (May-2005); US$0.35
(April-2005); US$0.36 (March-2005); US$0.39 (Feb-2005); US$0.25 (Jan-2005). There are also some minor
discrepancies between the numbers presented by Colombia and the figures appearing in the databases with
respect to apparel. Thus, during the application of the challenged measure, implicit prices ranged from US$1.98
(July-2007) to US$4.15 (Sept-2007), and not a range of US$1.95 and US$3.89 as stated by Colombia.
946
See Colombia's second written submission, paras. 234-241. Bulletin 12 contains monthly data for
the period 2004-2008 on the value, volume and implicit price of imports of textiles, apparel and footwear
arriving from Panama and other points of departure (Statistical Annex No. 4). Bulletin 12 charts the evolution
of these variables over time (Charts 1-12). In addition, data is included on the value, volume and implicit price
of imports by port of entry (Table 2 and Statistical Annexes Nos. 5, 6 and 14) and by type of importer (Table 3
and Statistical Annex Nos. 7, 8, 11 and 12). At the Panel's request, Colombia additionally submitted
Exhibit COL-61, which provides the value, volume and implicit price for each of the subject goods, on a
monthly basis, in total and per port of entry.
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China, seem to have been excluded from Bulletin 12.947 In response to an inquiry from the Panel,
several months after submitting Bulletin 12, Colombia informed the Panel that imports arriving from
Panama of Chinese origin were reflected in the data, contrary to labels and column headings
indicating otherwise.948 The Panel is troubled by Colombia's explanation in two respects. As a
procedural matter, Colombia informed the Panel of this significant purported mislabelling of data at a
very late point in the proceedings, and only then in comments in response to a letter submitted by
Panama.949 Substantively, this late correction seems to contradict the data presented in earlier
submissions. In this respect, the Panel notes that the alleged mistakes in column headings in
Bulletin 12 are reproduced in a section of the Report specifically aimed at explaining the methodology
adopted for the whole Report.950
7.579 Notwithstanding the aforementioned concerns with the accuracy of evidence submitted by
Colombia, the Panel will nevertheless proceed to assess Colombia's interpretation of the data. As
Colombia itself acknowledged, examining and interpreting the statistics in Exhibit COL-42 is a
complex task due to the "many intervening factors that must be taken into account".951 Indeed,
947
Indeed, Section 3 of Boletín 12. Seguimiento. Resolución 7373/2007, p. 5, states that, following the
methodology established in 2005, the Report presents a series of charts for imports of textiles, apparel and
footwear that: (a) arrived from Panama but did not originate in China; (b) originated in China but did not arrive
from Panama; and (c) originated in countries other than China and arrived from countries other than Panama
(Bulletin 12 reads in relevant part as follows: "A continuación se describe el comportamiento de las
importaciones de los tres productos sensibles (textiles, confecciones y calzado) con la metodología que se
introdujo en julio de 2005... En tal sentido se han construido cuadros y gráficos de seguimiento en donde se
muestran las importaciones mensuales desde el 2005 para. estos tres productos sensibles de la siguiente
manera: importaciones con origen China, con todas las procedencias menos Panamá; Importaciones
procedentes de Panamá, sin origen China; y las demás importaciones procedentes del resto del mundo, sin
origen China ni procedencia Panamá. De esta manera se logra captar el comportamiento de las importaciones
con criterios que aíslan y clarifican las tendencias del comercio con China (según origen), Panamá (según
procedencia) y el resto del mundo (según procedencia) para. estos tres tipos de producción.")
(Exhibit COL-42). The column headings read as follows: "China (origin)", "Panama (arriving from, not
originating in China)", "Rest of the World". In Spanish, the columns read as follows: "China (origen)";
"Panamá (Procedencia, sin origen China)" and "Resto del Mundo") (See Statistical Annex No. 4,
Exhibit COL-42).
948
According to Colombia, certain columns in the provided table were mislabelled, but in fact included
imports arriving from Panama of Chinese origin. Colombia explained that subsequent versions of Bulletin 12
had been amended to clearly indicate the inclusion of Chinese-origin goods. (Comments by Colombia in respect
of Panama's letter of 15 October 2008, p. 3).
949
See Communication to Colombia requesting its comments on an unsolicited letter submitted by
Panama. Through an unsolicited letter submitted to the Panel, Panama commented on Colombia's interpretation
of certain arguments made by Panama in relation to the indicative prices measure. In response to a request for
comments from the Panel, Colombia addressed Panama's comments; however, in addition, Colombia provided
additional comments regarding monthly data on import volumes and value for subject textiles, apparel and
footwear, which had been submitted earlier.
950
See footnote 947. In addition, the Panel disagrees with the arguments set forth in Exhibit COL-68,
attached to the note. The DIAN's Director proposes in that exhibit to analyse the implicit price in four periods:
January 2004 – June 2005 (when no ports of entry restrictions were in place); July 2005 – November 2005
(during imposition of the first set of restriction on port of entry); December 2006 (following removal of the first
set of restrictions) and July 2007 until present (see Exhibit COL-68, p. 3). The Panel notes that the first measure
was repealed in 1 November 2006, and not in December 2006, as suggested by the time periods put forward by
the DIAN's Director. In fact, the original measure imposing restrictions on ports of entry was repealed by
Resolution No. 13034 of 31 October 2006. Article 2 of this Resolution states that the Resolution "shall take
effect from the date of its publication for goods dispatched to Colombia subsequent to its entry into force" (See
WT/DS348/10, p. 4). The Resolution was published on 1 November 2006 (see "nota de vigencia" No. 70 of
Resolution No. 4240). Accordingly, in the Panel's view, the relevant periods for comparison should be: January
2004 – June 2005; July 2005 – October 2006; November 2006 – June 2007; and July 2007 – present.
951
Colombia's second written submission, para. 242; Colombia's second oral statement, para. 62. See
also Panama's second oral statement, paras. 70-71.
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Colombia argues that the ports of entry measure is "part of a comprehensive set of measures to
combat this persistent problem of fraudulent under-invoicing and contraband". According to
Colombia, this "set" of measure includes, the requirement to present an advance import declaration;
the requirement to present an export declaration or similar documents in support of the import
declaration; restriction on domestic transit; creation of the position of Customs Observer;
incorporation of the Fiscal and Customs Policy in the organizational structure of DIAN; strengthening
of cooperation between various customs administrations; adoption of indicative and references prices
as a control mechanism; additional documentary requirements that accompany the invoice; and the
conclusion of agreements with other countries' customs administrations and with the private sector.952
Preliminarily, the Panel is concerned as to what individual effect this wide array of policies
implemented in addition to the requirements within the ports of entry measure may have on the
evolution of implicit prices calculated for subject textiles, apparel and footwear imported into
Colombia. Additionally, the Panel notes that many market factors influence implicit prices, beyond
the effects of the various measures imposed by Colombia.953
7.580 In the Panel's view, Colombia has failed to set forth a methodology capable of controlling all
the factors that influence implicit prices. In the absence of an adequate methodology, the Panel is
unable to rely on provided data on the implicit value of subject goods imports in order to determine
the contribution of the ports of entry measure to reduce the incidence of under-invoicing and/or
smuggling.
7.581 In any case, the Panel is of the opinion that the data submitted by Colombia does not show a
strict correlation between the implementation of the ports of entry measure and the implicit price, but
is inconclusive. As Colombia itself recognized, not all the data in Exhibit COL-42 points in the same
direction.954 Indeed, an analysis of the data in Exhibit COL-42 and of the more detailed and updated
data in Exhibit COL-61 reveal many "anomalies" in the evolution of the implicit price, in clear depart
from Colombia's general conclusion that the implicit prices of subject products have increased during
the periods of application of the port of entry measures.955 Colombia has not provided any
952
953
To illustrate the problems inherent in interpreting implicit price data provided by Colombia in
isolation of other market factors, such as changes in consumer tastes or demand, the Panel, for example, notes
the possible effect on implicit price that may arise from a change in the composition of the products imported
within the category of footwear. The Panel notes for instance, that the product category "footwear" as
designated broadly by Colombia, includes a wide array of specific products, falling within a wide range of
prices. According to the estimated values assigned by the DIAN, the category "footwear" comprises goods with
prices ranging from US$1.40 to US$63.40 (See Exhibit PAN-14). Thus, an increase in the volume of the
imported products at the latter price would have an upward influence on the "implicit price" for the average
price per unit for the whole footwear category. However, this increase would not necessarily result from any
improvement in customs enforcement.
954
955
For instance, the Panel notes that the implicit price of textiles arriving from Panama did not surpass
the implicit price of textiles arriving from rest of the world until a period when restrictions were not applied:
December 2007 – July 2007, except for one month during the imposition of Colombia's first set of restrictions
(September 2006), in which the implicit price of goods arriving from Panama briefly exceeded the one of
textiles arriving from the rest of the world . While implicit prices of apparel arriving from Panama increased
dramatically during the two ports of entry measures, there was an spectacular collapse of the implicit price
during the period of application of the first measure restricting port of entry (August 2006). In that one-month
period, the implicit price plunged from US$2.77 in July 2006 to US$0.39. Subsequently, the implicit price
surged during the period following Colombia's original restriction and prior to imposition of the ports of entry
measure, from US$0.21 in January 2007 to US$2.06 in April 2007. This significant fluctuations cannot be
explained as a result of a general trend, as evidenced by the fact that the implicit price for apparel arriving from
the rest of the world stayed relatively constant during this period (During the period August 2006 – April 2007,
the implicit price for apparel imports oscillated between US$0.49 and US$0.88). Finally, the Panel also notes a
sharp increase in the implicit price of footwear imports arriving from Panama during both periods where
restrictions were imposed (July 2005–October 2006 and July 2007–present). As in the case of apparel, a sharp
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explanation for the possible causes of these anomalies. In the absence of explanation, the Panel lacks
the necessary elements to assess whether these irregularities arise from the ineffectiveness of the ports
of entry measure, or to the fact that other intervening variables may have influenced these prices. The
Panel therefore finds that there is no correlation, much less causal link, demonstrated between implicit
prices and the ports of entry measure. For the reasons discussed in the preceding paragraphs, the
Panel considers that Colombia has failed to substantiate its statement that an analysis of the implicit
price of subject goods arriving from Panama demonstrates that the measure is effective in combating
under-invoicing. Even setting aside concerns on whether or not the data submitted by Colombia
includes imports of Chinese origin arriving from Panama, the Panel does not consider Colombia had
provided evidence sufficient to conclude that under-invoicing has diminished during the periods of
implementation of the port of entry measure.
7.582 The Panel will also address Colombia's argument that the effectiveness of the measure is
demonstrated through the "significant increase in contraband related seizures … with respect to
textiles products from Panama in 2007 compared to 2006".956 In order to substantiate this claim,
Colombia submitted Exhibit COL-31, which contains the total value of seizures of textiles products
for the years 2006 and 2007, and Exhibit COL-18, which details the total value of seizures per
category of product for the same years. Colombia submits that the total number of seizures of textiles
nearly doubled from 2006 to 2007.957 In Colombia's view, this substantial increase demonstrates that
the port of entry measure is "clearly having a positive effect in terms of combating contraband".958
7.583 The Panel observes, as pointed out by Panama, that the information contained in Exhibit
COL-31 and Exhibit COL-18 is not provided on a monthly basis. Hence, it is not possible to
determine whether the seizures were conducted before or after the reintroduction of the measure in
July 2007. Moreover, the Panel observes that the value of textiles imports arriving from Panama
increased by 50 per cent between 2006 and 2007.959 An important portion of the increase in seizures
could therefore be attributable to the increase in trade, rather to the strengthening of customs controls.
In any case, the Panel observes that the increase in seizures of footwear goods (around 12 per cent)
was smaller than the increase in textile seizures. More importantly, the Panel notes that textiles
accounted for only 13 per cent and 18 per cent of the total value of subject goods imports arriving
from Panama in 2006 and 2007, respectively, while apparel imports represented 38 per cent and
42 per cent of the total value of subject imports.960 However, Colombia has not provided any data
regarding seizures of apparel. In light of these discrepancies, the Panel considers that Colombia has
increase in the implicit price of footwear arriving from Panama occurred during the period in-between the two
measures, from US$1.41 in Jan-2007 to US$8.12 in May-2007. Again, the implicit price for footwear arriving
from the rest of the world shows a much softer increase: it grew from US$3.85 in January 2007 to US$5.18 in
March 2007 and then fell to US$4.66 in May 2007.
956
957
958
959
See Exhibit COL-61. Based on data presented in that exhibit, the Panel calculates that the total
value of imported textiles arriving from Panama was US$18,811,236 in 2006 and US$28,099,040 in 2007.
960
Exhibit COL-61. Based on data in that exhibit, the Panel has determined the following distribution
by category of product:
Total value of subject goods arriving from Panama - distribution by
category of product (2006 and 2007)
2006 2007
Product Value US$ % Value US$ %
Textiles 18,811,237.00 13 28,285,929.00 18
Apparel 56,525,328.00 38 66,951,932.00 42
Footwear 71,984,506.00 49 63,366,809.00 40
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failed to demonstrate that the value of seizures of subject goods (which includes textiles, but also
footwear and apparel) has increased since the imposition of the measure at issue.
7.584 Finally, Colombia submits that the "level of distortion", i.e. the difference between the value
of exports reported by Panama and the value of imports reported by Colombia, for textiles, apparel
and footwear has decreased since the introduction of the measure, thus demonstrating the measure has
been effective at reducing under-invoicing and smuggling.961 The Panel considers that its approach
used when assessing the pertinence of Colombia's implicit prices analysis and the number of seizures,
is also applicable to the examine Colombia's arguments concerning trade distortions. First, the Panel
notes that Colombia calculates trade distortions on an annual basis.962 Thus, it is not possible to
determine the extent to which the alleged decrease in this indicator correlates with the introduction of
measures imposed on goods arriving from Panama (both in the periods July 2005-October 2006 and
July 2007-present). Second, as noted many variables beyond the ports of entry measure may affect
the evolution of trade distortions, the application of indicative prices being the most obvious.963 The
Panel therefore concludes that Colombia has not demonstrated that the alleged diminution on the level
of distortions was caused by the imposition of the ports of entry measure.964
961
Colombia's second oral statement, para. 63. Colombia calculates trade distortions as the difference
between the data on Panamanian exports presented in Exhibits PAN-56 (Re-exports from the Colon Free Zone
to Colombia, for the goods under HS Chapters 50-64, between 2000-2007) and the figures on Colombian
imports in Exhibit COL-45 (Official Statistics, Imports of Textiles, Apparel and Footwear from Panama,
between 2000-2008). Based on these two exhibits, the Panel has determined trade distortions as follows:
Difference between subject goods exports to Colombia reported by Panama
and subject goods imports from Panama reported by Colombia – thousands of US$
2000 2001 2002 2003 2004 2005 2006 2007
Values reported by Panama 241,400 231,255 229,526 199,458 324,114 413,290 483,587 503,461
Values reported by Colombia 46,172 69,847 57,869 53,625 75,312 104,926 132,854 158,300
Trade distortions 195,228 161,408 171,657 145,833 248,802 308,364 350,733 345,161
962
See Exhibit COL-57.
963
The Panel acknowledges that, as Colombia explained in its responses to Panel questions Nos. 127,
128 and 129, Colombian official statistics reflect the value declared by the importer and not the value based on
the indicative price. Regardless, the Panel is of the opinion that there is a strong incentive for importers to
declare a value above the indicative price as a result of the imposition of the indicative prices measure. The
Panel therefore recognizes that the imposition of the indicative prices measure may have affected the prices
declared by the importers. Furthermore, the Panel notes that the amount of "trade distortion" is inherently
affected by two factors: (a) the value declared by Panamanian exporters; and (b) the value declared by
Colombian importers. It is possible that only the latter figure may be affected by the ports of entry measure. In
this respect, Colombia has not demonstrated the extent to which the alleged decrease in trade distortions is
attributable to the value declared to customs officials upon arrival to Colombia, and not to a relative decline in
the prices declared by Panamanian exporters.
964
According to Exhibit COL–16, the distortion that corresponds to textiles, apparel and footwear
represents US$350,996,000 out of a total distortion for all products of US$844,858,000. The Panel is concerned
about the accuracy of the data provided by Colombia in this exhibit. First, Colombia has not provided a source
of the data presented therein. Second, that data contained in this exhibit seems to be inconsistent with data
presented in Table 9 of Exhibit COL-48. For instance, Exhibit COL-48 shows that "contrabando abierto" of
Máquinas y aparatos eléctricos for the year 2006 was US$192,337,000, while, Exhibit COL-16 states an
amount of US$2,430,000. Third, Exhibit COL-16 also seems to be inconsistent with Exhibit COL-51. There
are discrepancies among the figures of contrabando and under-invoicing of goods classifiable under HS chapter
64 in 2006 presented in Exhibit COL-51 (US$5,175,000 and 119,734,000, respectively), and data included in
Exhibit COL-16 (US$5,204,000 and US$98,666,000, respectively). Fourth, the figure corresponding to
"sobrefacturación" for the same products and year in Exhibit COL-51, i.e. US$21,073,000, exactly matches
figures in Exhibit COL-16 as "contrabando técnico". Finally, as noted by Panama in its second written
submission, para. 111, a discrepancy exists between the figure cited in Exhibit COL-16 as the value of imports
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7.585 For the reasons set forth above, the Panel considers that Colombia has failed to meet its
burden to substantiate that the measure at issue has contributed to the fight against smuggling and
under-invoicing. In fact, as Panama noted, Colombia reported during these proceedings that between
July 2005 and October 2006 the percentage of contraband trade arriving from Panama exceeded
84 per cent in general and 89 per cent in the case of textiles, at a time when a restriction highly similar
to the ports of entry measure at issue was in force.965 This appears to suggest that the ports of entry
measure does not contribute to reducing contraband and smuggling.966
7.586 In addition to its consideration of implicit price data, contraband seizures and trade
distortions, Colombia has advanced arguments of a qualitative nature to demonstrate that the measure
is effective in combating contraband. Colombia contends that, due to its "thrust and architecture", the
ports of entry measure is apt to contribute to securing better compliance with Colombia's customs
laws.967 Colombia recalls that the Appellate Body has stated in Brazil – Retreaded Tyres that a
demonstration of such contribution could consist of "qualitative reasoning based on a set of
hypotheses that are tested and supported by sufficient evidence".968 The Panel notes, however, that
Colombia has not provided evidence to demonstrate increased compliance arising from the measure,
but instead speculates that this must be the case. As noted above, evidence on price data, seizures and
trade distortions has not demonstrated the measure is effective.
7.587 Furthermore, the Panel considers that the scope of application of the port of entry measure,
both in terms of the categories and origin of subject goods, entails structural shortcomings that limit
its potential to contribute to tackling problems with smuggling and under-invoicing. Exhibit COL-38
shows that Colombia had greater trade distortions in 2006 with other trading partners, such as the
United States (US$2,902 million), ALADI (US$2,500 million) and Europe (US$1,837 million), than
with Panama (US$906 million).969 In fact, Exhibit COL-38 shows that distortions with Panama in
2006 were almost exclusively related to "contrabando abierto", and not to other trade-related
problems that the measure also aims to tackle, such as "contrabando técnico", "subfacturación",
"sobrefacturación" and "cambio de procedencia".970
7.588 Without further evidence that the measure has enhanced enforcement related to problems of
under-invoicing and contraband, the Panel is not able to conclude that the ports of entry measure has
contributed in the past or currently contributes to combating customs fraud and contraband in
Colombia.
in 2006 (US$415,550,000) and the figure cited in the table included in Colombia's first written submission,
para. 193 (US$412,091,000).
965
Colombia's first written submission, para. 196. Exhibit COL-18.
966
Despite its reference to the reports that the percentage of contraband trade arriving from Panama
exceeded 84 per cent in general and 89 per cent in the case of textiles between July 2005 and October 2006, the
Panel declines to place too much emphasis on the figures. The Panel notes that these figures concern only one
of the three product categories and concern only the period between July 2005 and October 2006. In addition,
the Panel was not able to determine the basis for calculating these figures.
967
968
969
Table 7 of Exhibit COL-38, p. 15
970
Table 4 of Exhibit COL-38, p. 10. The Panel additionally notes Panama's argument that evidence
submitted by Colombia in Exhibit COL-16 demonstrates, for instance that "máquinas y aparatos eléctricos" are
more frequently connected with under-invoicing practices than are textiles, apparel and footwear. Despite this
fact, Panama notes that the ports of entry measures does not apply to "máquinas y aparatos eléctricos".
Colombia responded in its response to Panel question No. 48 that it has imposed a series of measures, including
most notably, the conclusion of "contraband agreements" with the private sector, in order to closely monitor
under-invoicing problems with "máquinas y aparatos eléctricos". According to Colombia, this type of
agreeement provides an effective way to address contraband occuring in this section, due to the limited number
of importers and distributors of such products (only six), and their clear willigness to cooperate and fight
contraband. While declining to decide on this issue, the Panel notes that Colombia did not submit any evidence
to support its reasoning.
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The restrictive impact of the measure
7.589 The Panel will next consider the restrictive impact of the measure on imported goods in its
evaluation of whether the ports of entry measure may be considered "necessary" within the meaning
of Article XX(d). In the context of this assessment, the Panel would first like to recall its finding that
the ports of entry measure constitutes a prohibited restriction on importation under Article XI:1 of the
GATT 1994.971 More specifically, the Panel established that the ports of entry measure has a limiting
effect on imports arriving from Panama, and thus constitutes a restriction on importation. While the
Panel's analysis under Article XI:1 considers the design, structure and architecture of the measure and
its potential to restrict importation, the Panel will here examine the extent of the restrictive impact on
trade resulting from the measure's application.
7.590 Colombia argues that the various requirements in the ports of entry measure have not had a
significant negative impact on legitimate trade, while the measure overall has been effective in
combating smuggling and under-invoicing.972 In support of that view, Colombia notes that the value
of subject imports arriving from Panama and the CFZ increased during the implementation of the
measure.973 In this respect, Colombia observes that the panel in Dominican Republic – Import and
Sale of Cigarettes considered relevant the fact that the tax stamp requirement did not prevent
Honduras from exporting cigarettes to the Dominican Republic and that its exports had increased
significantly over recent years. Accordingly, Colombia mentions, the Panel assumed "that the
measure has not had any intense restrictive effects on trade."974
7.591 Furthermore, Colombia contends that prior to the imposition of the measure in 2007, trade
flow data supports the conclusion that Barranquilla and Bogota were important ports for Panamanian
traders. As no negative effects have arisen from the measure, due to the fact that the value of imports
increased during the measure's implementation975, Colombia argues that the ports of entry measure
should not be considered as having an intensive restrictive effect on trade.976
7.592 Colombia offers additional qualitative explanations on why the ports of entry measure has not
adversely affected textile, apparel and footwear imports from Panama. Colombia offers a series of
reasons why the two available ports, Barranquilla and Bogota, are to be considered as the most
convenient ports of entry for subject goods arriving from Panama. According to Colombia, these
ports are "among the most modern and important ports of Colombia"977 and the closest in proximity to
the CFZ and main markets of Colombia.978 Moreover, they are staffed with customs officials
specialized at handling contraband concerns and they have a more substantial industrial and transit
971
See Section VII.E.
972
973
974
Panel Report, Dominican Republic – Import and Sale of Cigarettes, para. 7.215.
975
976
Colombia's first written submission, para. 357. According to Colombia, the closure of other ports
logically has not had a significant trade impact on exports from Panama. Colombia notes in 2004, for instance,
that Buenaventura, Barranquilla and Bogota were three principal ports for imports from Panama, constituting
63 per cent of net weight of imports of subject goods, and 87 per cent of value (Colombia's second oral
statement, para. 67). According to Colombia, Bogota and Barranquilla rank as the number one and two ports for
footwear, the number one and three ports for apparel, and the number two and three ports for textiles
(Colombia's second written submission, para. 138; Exhibit COL-28).
977
Colombia's second written submission, para. 137. In particular, Colombia submits that Barranquilla
has a more substantial industrial and transit network including high capacity cargo processing, an airport,
financial, commercial and telecommunication services, in comparison to Buenaventura seaport. Colombia
points out that Barranquilla seaport operates 24 hours per day as well.
978
Colombia's second written submission, paras. 135 and 137. According to Colombia, more than
80 per cent of goods imported from Panama to Colombia arrive from the CFZ, which is situated along the
Atlantic ocean.
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capacity.979 Foremost, Colombia submits that the ports of entry measure has not restricted trade as the
measure by design allows entry of textile, apparel and footwear at the two ports that are closest in
proximity to the CFZ and main markets of Colombia – Bogota and Medellin.980
7.593 In addition to these factors, Colombia argues that the impact of the ports of entry measure
must be assessed in light of a series of exemptions existing in the measure, which are linked to the
objective pursued by the measure. Under the ports of entry measure, exception from the requirement
to enter at Bogota or Barranquilla is provided for goods consigned to the State or territorial entities;
imports effected for processing or assembly, travellers, postal traffic or urgent consignments; goods
that are trans-shipped; goods that are consigned to industrial users of free trade zones whose economic
activity involves the industrial processing of those goods; goods that enter Leticia, or imports in San
Andrés, Providencia or Santa Catalina; and goods imported by "Permanent Customs Users" or
"Highly Exporting Users".981 In regard to this last category, Colombia points out that the "Permanent
Customs Users" represented 62 per cent of the value of Panamanian trade in textiles in 2006,
50 per cent of Panamanian trade in footwear and 48 per cent of Panamanian trade in apparel.982
7.594 Panama disputes Colombia's interpretation that the ports of entry measure does not have a
significant negative impact on legitimate trade.983 With respect to the alleged increase in the volume
of imports during the period of imposition of the measure, Panama disagrees with Colombia's view of
what constitutes "restrictive effects on trade". Panama cites to findings by the Appellate Body in
Japan – Alcoholic Beverages II that "it is irrelevant that the 'trade effects' of the [measure at issue], as
reflected in the volumes of imports, are insignificant or even non-existent".984 Accordingly, for
Panama, the "restrictive effects" referred to by the Appellate Body in Korea – Various Measures on
Beef must be viewed as meaning the effects on the conditions of competition of the imported products
rather than the restrictive effects on the trade flows of imported goods.985 Notwithstanding this view,
Panama disagrees with Colombia's statement that imports of textile, apparel and footwear goods from
Panama have increased under the ports of entry measure. According to Panama, the volume of
imports of such goods declined from 67,486 metric tonnes in 2006 to 60,871 metric tonnes in 2007.986
7.595 Panama further argues that data relied on by Colombia in Exhibit COL-28, which
incorporates data from 2006 and 2007 is unreliable, as restrictions on ports of entry were in place for a
portion of the time under review. Thus, trade volumes and values today cannot be compared with
figures that were affected by the previous ports of entry measure. Moreover, Panama notes that the
measure restricts trade by limiting access to ports which have been important points of access for
traders of goods from Panama. Based on data from 2003–2004, before any restrictions were imposed
on ports of entry, Panama argues that Cartagena accounted for 41.3 and 40.5 per cent, whereas
Buenaventura accounted for 22.1 and 22.4 per cent, respectively.987 Furthermore, even though trade
979
980
Colombia's second written submission, para. 137. Colombia has also offered various justifications
as to why Buenaventura was not a logical selection to include as an available port under the ports of entry
measure. Broadly, Colombia argues that the efficiency of Bogota and Barranquilla exceed that of Buenaventura
with respect to customs control. In addition, Colombia reiterates that more than 80 per cent of goods imported
from Panama to Colombia arrive from the CFZ, situated along the Atlantic Ocean, as opposed to the Pacific
Ocean, to which Buenaventura is nearest. Finally, Colombia cites to a number of documented structural
problems with Buenaventura, including an inadequate roadway connecting Buenaventura with the national
highway system and a concentration of guerrilla activities and security problems (Colombia's response to Panel
question No. 58; Exhibit COL-58).
981
Resolution No. 7373 (Exhibit PAN-36); Resolution No. 7637 (Exhibit PAN-36).
982
983
984
Panama's first oral statement, para. 43, Panama's second written submission, para. 131.
985
986
Panama's response to Panel's question No. 136; Exhibit PAN-56 (Revised).
987
Exhibit PAN-71.
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may have continued between Panama and Colombia since restrictions were first imposed, Panama
stresses that trade may well have increased by even greater quantities had the measure not been
enacted at all.988
7.596 The Panel will therefore look at to what extent the ports of entry measure affects trade
between Panama and Colombia.
7.597 The Panel agrees with the panel in Dominican Republic – Import and Sale of Cigarettes989
that the fact that exports of the subject products increased during the application of the measure at
issue is one appropriate parameter to establish whether the measure at issue has a restrictive impact on
relevant trade, provided it is put in its proper context. In this respect, as argued by Panama, a
comparison of the import data of subject goods before and after the imposition of the ports of entry
measures may not by itself prove helpful if that data mostly reflects the import volumes pertaining to
the time where the prior ports of entry restrictions were in force. Indeed, the data presented by
Colombia in Exhibit COL-28 incorporates data from 2006 and 2007, during which time restrictions
were in place. Moreover, the Panel considers that the relevant question is not whether Panamanian
imports increased in absolute terms, but whether or not importation was suppressed, in other words,
whether the imports would have increased to an even greater extent had the measure not been in
place. The Panel notes that Colombia has not provided any analysis to address the question of
whether the measure had a suppressing effect or not.
7.598 The Panel considers the growth (in terms of value) of imports arriving in Colombia from the
points of departure from the rest of the world (which are thus not subject to the ports of entry
measure) provides a useful point of comparison in assessing what might have been a reasonable
growth rate for imports arriving from Panama.990 Chart 1 below depicts graphically the growth in
aggregate value of textiles, apparel and footwear arriving from Panama in comparison to growth in
aggregate value from the rest of the world, between January 2004 and July 2008.991 As evident from
Chart 1, abrupt fluctuations in the value of imports arriving from Panama are present both during
periods of application of restriction on entry, and during periods without restriction, and they are of a
similar nature than in the case of imports from the rest of the world making it difficult to discern any
general pattern. Accordingly, the Panel is unable to establish on the basis of the evidence submitted
by the parties whether the increase in the value of textiles, apparel and footwear imports arriving from
Panama to Colombia would have been greater in the absence of the ports of entry measure.
988
Panama's comments on Colombia's response to Panel question No. 158.
989
Panel Report, Dominican Republic –Import and Sale of Cigarettes, para. 7.215.
990
The Panel has opted to consider rates of import growth in terms of value for all subject textiles,
apparel and footwear arriving from the rest of the world, in comparison to imports arriving from Panama. Thus
the Panel considered the aggregated value of textile, apparel and footwear imports. The Panel considers it
impractical to make an overall comparison of growth rates in terms of import volumes however, due to the fact
that units of import volumes are different among textile, apparel and footwear imports.
991
Chart 1 is based on data provided in Exhibit COL-61.
WT/DS366/R
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Chart 1 - Value of goods classifiable under HS 50-64 (Panama and Rest of World)
(Source: Exhibit COL-61)
90,000,000.00
80,000,000.00
70,000,000.00
60,000,000.00
50,000,000.00
40,000,000.00
30,000,000.00
20,000,000.00
10,000,000.00
0.00
M 4
4
04
4
05
5
05
5
06
6
06
6
07
7
07
7
08
8
M 4
M 5
M 6
M 7
M 8
-0
l-0
-0
l-0
-0
l-0
-0
l-0
-0
l-0
0
-0
-0
-0
-0
-0
-0
-0
-0
-0
n-
p-
n-
p-
n-
p-
n-
p-
n-
ay
ay
ay
ay
ay
ar
ar
ar
ar
ar
ov
ov
ov
ov
Ju
Ju
Ju
Ju
Ju
Ja
Ja
Ja
Ja
Ja
Se
Se
Se
Se
M
M
N
N
Panama (Value FOB US($)) Rest of World (Value FOB US($))
7.599 The Panel recalls that importation of subject goods from Panama is not absolutely prohibited,
but entry is restricted to two out of 11 eligible ports available for imports of textile, footwear and
apparel from points of departure other than Panama. Panama argues that the measure restricts trade
by restricting access to those ports which have previously been used heavily by traders arriving from
Panama. Based on data from 2003–2004, for instance, before any restrictions were imposed on ports
of entry, Panama submits that Cartagena accounted for 41.3 and 40.5 per cent, whereas Buenaventura
accounted for 22.1 and 22.4 per cent, respectively.992 Colombia asserts that the ports of Bogotá and
Barranquilla were very important in the importation of the subject goods from Panama prior to the
implementation of the ports of entry measure.993 Based on the data submitted in Exhibit COL-28994,
Colombia advances a series of propositions to support this statement. The Panel will analyse each of
these propositions below. In doing so, the Panel will also consider the more detailed and updated data
contained in Exhibit COL-61, submitted upon the Panel's request.995
7.600 First, Colombia argues that "Barranquilla was the most important port for goods under
HS 50–64 from Panama in the year 2006, even during the second semester of 2006 when, for an
important period of the time (November–December), no measures were in place".996 During 10 out of
12 months of the period referred to by Colombia ("year 2006"), the Panel notes that Colombia had in
place restrictions and importation requirements on imports arriving from Panama, similar to those
imposed under the ports of entry measure. In light of these restrictions, the Panel considers that it is
only appropriate to consider those two months where no restrictions were imposed (November and
December, 2006) to evaluate whether the measure in fact restricted trade. Otherwise, the Panel notes
992
Exhibit PAN-71.
993
Colombia's first written submission, para. 353; Colombia's second oral statement, para. 68.
994
As a result of a clerical error, Colombia referred in its first written submission, para. 353, to
Exhibit COL-32. This was amended in subsequent submissions. See, e.g. Colombia's second written
submission, para. 259, footnote 154.
995
Exhibit COL-61 provides import data in terms of value and volume, per port of entry on a monthly
basis for the period 2004-2008. Exhibit COL-28, referred to by Colombia, relies on the same data, but is
aggregated on a semester basis).
996
WT/DS366/R
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that there are two relevant periods where unrestricted import flows can be observed: (i) between the
two impositions of restrictions on the ports of entry, which extends from November 2006 to
June 2007; and (ii) prior to imposition of any of the aforementioned restrictions, from January 2004 to
June 2005. A comparative analysis (Table 1 below) of the value and volume of subject goods imports
arriving from Panama per port of entry during these two periods, as well as during the two periods
when port of entry measures were imposed, (thus totalling four separate periods) reveals a very
different picture to the one depicted by Colombia:
Table 1 - Volume and value of imports per port of entry and period of application of the ports of entry measure
Textiles, Apparel and Footwear
Volume Value
Jan 04-Jun 05 Jul 05-Oct 06 Nov 06-Jun 07 Jul 07-today Jan 04-Jun 05 Jul 05-Oct 06 Nov 06-Jun 07 Jul 07-today
1. Textiles
Barranquilla 31,631,139.90 70,560,929.42 5,882,622.82 31,814,779.54 2,196,747.75 12,042,947.46 4,822,988.11 22,695,060.12
Bogota 19,203,267.02 6,334,135.03 2,820,178.39 6,925,141.48 4,615,003.16 5,851,357.37 2,274,261.23 7,016,691.29
Buenaventura 28,539,767.11 2,240,066.73 8,890,089.11 371,531.83 5,941,926.38 946,169.64 6,462,773.18 319,137.38
Cali 755,761.76 0.00 15,464.29 4,714.58 269,401.92 0.00 17,624.55 4,092.31
Cartagena 7,860,830.04 4,577,662.35 4,359,292.98 3,146,538.98 5,926,338.61 2,336,703.67 2,088,853.90 2,350,455.25
Medellin 605,630.89 39,698.17 175,743.60 141,318.25 607,160.30 32,689.18 242,004.74 167,135.32
2. Apparel
Barranquilla 29,923,249.22 100,643,699.62 31,775,841.00 10,173,577.00 12,052,608.76 31,402,525.89 14,977,406.14 25,823,446.35
Bogota 5,464,798.26 3,201,055.68 11,126,448.00 2,235,682.56 7,768,629.16 11,280,262.50 8,685,484.98 14,373,745.15
Buenaventura 109,975,872.73 9,719,650.12 11,018,975.00 614,433.00 14,187,577.75 2,505,263.65 3,585,391.03 1,324,823.06
Cali 4,469,860.00 237,186.00 235,535.00 14,044.00 2,762,735.01 27,913.91 191,788.97 125,332.04
Cartagena 9,859,514.20 17,901,626.00 33,851,356.00 6,149,312.00 5,344,856.26 6,508,784.98 10,837,691.66 15,788,042.25
Medellin 1,001,570.09 543,936.00 1,294,810.00 1,510,889.00 4,174,041.09 2,078,413.83 3,691,275.50 6,538,005.94
3. Footwear
Barranquilla 830,844.00 7,831,074.00 3,919,866.00 4,419,293.28 1,587,131.20 38,117,939.28 11,683,228.12 28,815,544.77
Bogota 1,155,351.50 2,133,302.50 1,317,781.00 1,953,763.50 9,665,395.24 30,342,190.73 15,012,637.68 33,353,741.11
Buenaventura 16,304,768.41 3,184,278.00 2,378,213.00 102,255.00 9,836,275.37 5,148,052.90 4,585,310.63 1,427,203.13
Cali 964,438.00 6,121.00 207,531.00 54,768.00 2,628,376.47 73,981.98 604,839.66 1,063,637.03
Cartagena 1,487,621.00 1,929,124.00 4,769,067.00 515,517.00 1,443,375.23 2,232,255.99 4,737,942.85 2,530,092.26
Medellin 403,282.58 116,207.00 300,988.00 217,215.00 5,895,371.25 1,333,231.32 4,726,158.37 2,472,726.05
WT/DS366/R
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7.601 As can be observed in Table 1, Buenaventura was the preferred port of entry for textiles,
apparel and footwear in terms of value during the period before the first measure was imposed
(January 2004–June 2005), and it was the preferred port of entry for textiles during the period in-
between the two measures (November 2006–June 2007). Moreover, Cartagena was the second most-
used port of entry for textiles during January 2004–June 2005 and the second most-used port of entry
for apparel during the period in-between the two measures (November 2006–June 2007).
7.602 Colombia's proposition that the ports of entry measure has not had a significant negative
impact on legitimate trade is even more bluntly contradicted in terms of the volume of subject imports
arriving from Panama. In terms of volume, 68 per cent of apparel imports and 77 per cent of footwear
imports that arrived in Colombia during the period before the imposition of the first measure arrived
at the port of Buenaventura. Moreover, Cartagena was the preferred port of entry for apparel and
footwear during the period falling between Colombia's imposition of restrictions on ports of entry. In
the case of textiles, Buenaventura was the preferred port of entry in terms volume during the period
prior to imposition of the ports of entry measure at issue, and the second most-used port during the
period before the first measure was imposed (January 2004–June 2005).
7.603 Second, Colombia states that "[f]or apparel, Barranquilla remained the number one port for
shipments from Panama during the first semester of 2007 – the period of time that no measures were
in place", and that "[w]ith respect to footwear, Barranquilla was a close second, in the same period of
2007, second only to Bogotá". The Panel disagrees with Colombia's arbitrary determination of the
period of time during which the impact of the measure is to be examined. The Panel observes that the
duration of the last period when no restrictions were in place (the one to which Colombia appears to
refer to) was much longer than suggested by Colombia (it extended from November 2006–June 2007,
and not only from January 2007–June 2007, as Colombia suggests). Moreover, the Panel recalls that
there was another period of time when "no measures were in place", i.e. prior to the enactment of the
first ports of entry measure (see paragraph 7.600 above). Even if the Panel assumes that restrictions
were not in place from January 2007 to June 2007, as Colombia suggests, Colombia's assertions only
holds true with respect to the value of apparel imports (and not textiles or footwear). In terms of
volume, Cartagena was the preferred port of entry for both apparel and footwear during the first
semester of 2007 (see Table 2 below). Additionally, Colombia affirms that "... Barranquilla and
Bogota ... were the number two and three ports of choice with respect to textiles during this period".
As Colombia acknowledges, the Panel notes that the preferred port of entry in terms of value for
textiles is neither Barranquilla nor Bogotá, but Buenaventura. Furthermore, Cartagena is in a close
fourth place. In terms of value, the two most-used ports of entry are Buenaventura and Cartagena
(See Table 2 below).
Table 2 - Volume and value of imports per port of entry - First Semester 2007
Textiles, Apparel and Footwear
Textiles Apparel Footwear
Value Volume Value Volume Value Volume
Barranquilla 2,635,512.28 2,897,265.26 10,331,461.51 19,418,973.00 6,743,254.70 2,708,016.00
Bogota 2,191,839.53 2,763,622.81 5,083,377.95 4,789,745.00 8,091,935.52 663,388.00
Buenaventura 4,621,946.03 5,527,218.32 1,691,139.30 3,302,263.00 2,540,680.79 998,404.00
Cali 17,624.55 15,464.29 119,165.74 223,821.00 449,622.04 197,243.00
Cartagena 1,857,844.95 3,166,273.80 8,146,024.42 23,748,771.00 3,377,889.21 3,374,954.00
Medellin 210,871.57 157,385.60 2,659,576.26 922,606.00 3,037,042.87 203,833.00
7.604 In the Panel's view, a careful analysis of the volume and value of textile, apparel and footwear
imports, per port of entry, presents a more accurate picture to inform Colombia's statement that the
ports of Bogota and Barranquilla were "very important" in the importation of the subject goods from
Panama prior to the implementation of the ports of entry measure. The Panel is of the view that such
WT/DS366/R
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a careful analysis shows that the Panamanian exporters' choice of port was substantially affected by
the imposition of the ports of entry measure.
7.605 Finally, Colombia has argued that the ports of entry measure provides for a number of
exemptions that should be taken into account when assessing the restrictive impact of the ports of
entry measure. The various exceptions are listed in paragraph 7.592 above.
7.606 In this respect, Colombia states that "the 'Permanent Customs Users' (UAPs) represented 62
[per cent] of the value of Panamanian trade in textiles in 2006, 50 [per cent] of Panamanian trade in
footwear and 48 [per cent] of Panamanian trade in apparel."997 In support of this contention,
Colombia refers to Exhibit COL–46, which breaks down volumes of textile, apparel and footwear
imports by exempted importers of goods arriving from Panama in comparison to non-exempt
importers, for the years 2006 and 2007; and to Bulletin 12, which presents similar data for the period
January–March 2006, as well as an analysis of these data by the DIAN.998
7.607 With respect to Colombia's comments on Permanent Customs Users' involvement in

importations arriving from Panama (62 per cent of the value for textiles, 50 per cent for footwear and
48 per percent for apparel), the Panel notes that these percentages correspond exclusively to one
month, March 2006, and not the entire year 2006, as Colombia seems to suggest.999 In fact, according
to the annual data presented in Exhibit COL-46, the UAPs represented 41 per cent of the total value of
Panamanian trade in textiles, 62 per cent of trade in apparel and only 26 per cent of trade in
footwear.1000 During 2007, UAPs comprised 54 per cent of the value of apparel, 26 per cent of
textiles and 24 per cent of footwear.1001
7.608 In any case, the Panel finds it difficult to gauge the restrictive impact on trade of the ports of
entry measure. As noted above, the Panel is unable to conclude whether the imposition of the
measure has had a suppressing effect on trade volumes, in terms of value or volume. In addition, the
Panel noted that the measure has caused shifts in trade from prohibited ports to eligible ports. The
Panel questions why such shifts would have occurred if such substantial percentages of trade were to
benefit from the exemptions. As such, while the existence of exemptions have perhaps lessened the
restrictive impact of the measure, the significance of this lessening is difficult to measure overall.
7.609 Despite uncertainty, the Panel nevertheless recalls, as the Appellate Body set forth in Korea –
Various Measures on Beef, it is necessary to weigh and balance these factors, and not solely consider
a particular factor, such as the contribution made by the measure, or its restrictive impact in isolation.
Accordingly the Panel will consider whether Colombia has met its burden to establish provisionally
that the ports of entry measure is "necessary" to secure compliance with Colombian customs
enforcement laws and regulations.
Preliminary conclusions on whether the ports of entry measure is provisionally justified as

necessary under Article XX(d)
7.610 In addition to weighing and balancing the importance of the common interests or values
protected by that law or regulation, the contribution made by the compliance measure to the
enforcement of the law or regulation at issue, and the accompanying impact of the law or regulation
on imports or exports, the Appellate Body has stated that a measure may only be considered necessary
if no alternative measure is available that could reasonably be employed and which is not inconsistent
997
998
See Exhibit COL-46 and Bulletin 12, pp. 15-16 (Exhibit COL-42).
999
See Table 3 of Bulletin 12, p. 16 (Exhibit COL-42).
1000
Exhibit COL-46.
1001
Exhibit COL-46.
WT/DS366/R
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with other GATT provisions.1002 While Panama initially proposed that a reasonably available less-
trade restrictive alternative would be for Colombia and Panama to enter into a formal agreement to
cooperate in the fight against contraband-related problems, similar to an approach taken under an
earlier Customs Cooperation Protocol1003, Panama subsequently retracted its proposal.1004
7.611 The Panel recalls that the complaining member has the burden to identify possible
alternatives.1005 However, since Panama has solely proposed the application of Colombia's general
customs laws to subject imports arriving from Panama, which is essentially the same result as would
be obtained if the Panel were to uphold some or all of Panama's various claims under Articles I:1,
V:2, V:6, XI:1, and or XIII:1, the Panel concludes that Panama has not identified any reasonably
available specific measure for the Panel to consider in relation to Colombia's Article XX(d) defence.
Thus, the Panel is left to consider whether Colombia has sufficiently established that the ports of entry
measure is provisionally justified as necessary to ensure compliance with the applicable laws and
regulations. Were Colombia to succeed in this respect, the Panel would proceed to examine whether
the measure meets the requirements of the chapeau to Article XX.
7.612 The Panel recalls its earlier conclusions that the fight against under-invoicing and smuggling
is an important interest in consideration of the particular conditions faced by Colombia. The Panel is
satisfied that problems with under-invoicing and contraband occur in connection with the CFZ, which
falls within Panama's jurisdiction. The Panel is also aware that smuggling and contraband are
practices commonly affiliated with money laundering and drug trafficking.
7.613 Colombia has submitted evidence in an attempt to demonstrate that the ports of entry measure
is effective in reducing under-invoicing and contraband, and that it has been narrowly designed to
limit its trade restrictiveness, due to its focus on goods arriving from Panama and the multitude of
exceptions for approved users and goods in international transit. As discussed above, the Panel finds
it difficult to gauge the restrictive impact on trade of the ports of entry measure. Primarily, Colombia
has not demonstrated and thus, the Panel is unable to conclude whether the imposition of the measure
has had a suppressing effect on trade, in terms of value or volume. What is clear, however, is that the
ports of entry measure has forced significant shifts in trade from prohibited ports to eligible ports.
Even taking into consideration textiles, apparel and footwear that may enter Colombia unaffected due
to express exemptions contained in the measure, the full extent of the measure's restrictiveness is
unclear.
7.614 Aside from the measure's restrictiveness, the Panel considers more relevant the fact that, in its
view, Colombia has not provided sufficient evidence to demonstrate that the ports of entry measure,
which sets forth various requirements imposed exclusively on imports arriving from Panama, has
contributed to reducing under-invoicing and the entry of smuggling. As discussed at length,
Colombia failed to demonstrate a strict correlation between the implementation of the ports of entry
measure and shifts in the implicit price (the average price per unit per month) of subject textiles,
apparel and footwear. Due to many anomalies in the evolution of the implicit price, and the fact that
Colombia did not attempt to control for other market factors which may influence prices, the Panel is
unable to conclude whether these irregularities arise from the ineffectiveness of the ports of entry
measure, or due to other intervening variables that may have influenced these prices.
1002
Appellate Body Report, Korea – Various Measures on Beef, para. 165, citing to GATT Panel
Report, US – Section 337, footnote 69, para. 5.26.
1003
See Exhibit PAN-1.
1004
In light of its view that Colombia has a "far worse" customs problems with many trading partners
other than Panama, to which Colombia applies its general customs laws and regulations, Panama explained to
the Panel its view that the only reasonable course of action would be for Colombia to apply its general customs
laws and regulations to Panama. Panama considers that Colombia could apply these same conditions to Panama
as they are a reasonably available and less-trade restrictive alternative. Panama's second written submission,
para. 211; Panama's second oral statement, paras. 72-73.
1005
WT/DS366/R
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7.615 Colombia further argued that a higher incidence of seizures of contraband goods has occurred
since the ports of entry measure's imposition, thus demonstrating its effectiveness. The Panel noted
that it is not possible to determine whether the seizures were conducted before or after the
reintroduction of the measure, or whether the increased incidence of seizures arose due to an overall
increase in trade, rather than simply due to a strengthening of customs controls. Moreover, Colombia
did not provide any data on seizures of apparel imports, which is the most significant of the three
categories of products in terms of volume. Hence, the Panel considers that Colombia has failed to
demonstrate that the value of seizures of subject goods has increased since the imposition of the
measure at issue.
7.616 The Panel further concluded that Colombia did not demonstrate that the alleged diminution on
the level of distortions caused by contraband and under-invoicing of goods arriving from Panama
resulted from the imposition of the ports of entry measure. Broadly, the Panel is concerned about the
possibility that other variables may also have affected the prices declared by Colombian importers,
such as the application of indicative prices. In addition, the Panel considers data provided by
Colombia is in part inconclusive, as Colombia presented data on an annual basis, during periods when
restrictions on importation and related measures were at times in place, and other times not. Thus, the
Panel is unable to ascertain the extent to which the alleged decrease in this levels of distortion
correlates with the introduction and removal of measures imposed on goods arriving from Panama.
7.617 When considering the ports of entry measure's effectiveness, the Panel lastly addressed
aspects of the measure's design, notably that the ports of entry measure applies exclusively to goods
of various origins arriving from Panama. As such, the measure is narrowly targeted. However,
evidence reveals that Colombia has experienced greater distortions in relation to smuggling and
contraband involving the United States (US$2,902 million), ALADI countries (US$2,500 million) and
Europe (US$1,837 million), than with Panama (US$906 million).1006
7.618 For these reasons, the Panel considers that Colombia has failed to substantiate its statement
that under-invoicing has diminished during the periods of implementation of the port of entry
measure, possibly due to the influence of a wide array of market factors, which Colombia did not
account for in its argumentation presented to the Panel, or due to the fact that Colombia has under-
invoicing and smuggling problems with respect to textiles, apparel and footwear arriving from many
trading partners. Without further evidence that the measure has enhanced enforcement related to
problems of under-invoicing and contraband, the Panel is not able to conclude that the ports of entry
measure has contributed in the past or currently contributes to combating of customs fraud and
contraband in Colombia.
7.619 Accordingly, the Panel finds that Colombia has failed to establish that the ports of entry
measure is necessary to ensure compliance with Colombian customs laws and regulations.
(iii) Conclusion
7.620 In light of the Panel's findings that Colombia has failed to establish that the ports of entry
measure is necessary to ensure compliance with Colombian customs laws and regulations, the Panel
therefore finds that the ports of entry measure is not justified under Article XX(d) of the GATT 1994.
As such, the Panel will not proceed to examine whether the measure meets the requirements of the
chapeau to Article XX.
1006
Table 7 of Exhibit COL-38, p. 15.
WT/DS366/R
Page 234
VIII. CONCLUSIONS AND RECOMMENDATIONS
8.1 In light of the above findings, the Panel upholds Panama's claims that that Articles 128.5 e) of
Decree No. 2685 and 172.7 of Resolution No. 4240, as well as the various resolutions establishing
indicative prices, are inconsistent "as such" with the obligation established in the Customs Valuation
Agreement to apply, in a sequential manner, the methods of valuation provided in Articles 1, 2, 3, 5
and 6 of the Customs Valuation Agreement.
8.2 The Panel further upholds Panama's claims that Article 128.5 e) of Decree No. 2685 and
Article 172.7 of Resolution No. 4240 as well as the various resolutions establishing indicative prices,
are inconsistent "as such" with Article 7.2(b) and (f) of the Customs Valuation Agreement.
8.3 In light of the above findings, the Panel declines to rule separately on Panama's claims that
Article 128.5 e) of Decree No. 2685 and Article 172.7 of Resolution No. 4240, as well as the various
resolutions establishing indicative prices, are "as such" inconsistent with Article 7.2(g) of the Customs
Valuation Agreement and Article III:2, first sentence, and III:4 of the GATT 1994.
8.4 The Panel also declines to rule separately on Panama's "as applied" claims pertaining to the
consistency of Colombia's indicative prices regime with the Customs Valuation Agreement, as well as
Article III:2, first sentence, and III:4 of the GATT 1994.
8.5 The Panel upholds Panama's claims that the ports of entry measure is inconsistent with
Article I:1, the first and second sentences of Article V:2, the first sentence of Article V:6, and
Article XI:1 of the GATT 1994.
8.6 The Panel declines to rule separately on Panama's claims that the port of entry measure is
inconsistent with Articles I:1 and XIII:1 of the GATT 1994.
8.7 The Panel further rejects Colombia's defence that the ports of entry measure is justified under
Article XX(d) of the GATT 1994.
8.8 Under Article 3.8 of the DSU, in cases where there is infringement of the obligations assumed
under a covered agreement, the action is considered prima facie to constitute a case of nullification or
impairment of benefits under that agreement. Accordingly, we conclude that to the extent that
Colombia has acted inconsistently with the provisions of the Customs Valuation Agreement and the
GATT 1994, it has nullified or impaired benefits accruing to Panama thereunder.
8.9 Article 19.1 of the DSU is explicit concerning the recommendation a panel is to make in the
event it determines that a measure is inconsistent with a covered agreement:
"[I]t shall recommend that the Member concerned bring the measure into conformity
with that agreement." (footnotes omitted)
8.10 The Panel therefore recommends that Colombia bring its measures into conformity with its
obligations under the Customs Valuation Agreement and the GATT 1994.
__________

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WORLD TRADE WT/DS366/R

COLOMBIA – INDICATIVE PRICES AND RESTRICTIONS

Report of the Panel

D. THE REQUIREMENT TO PRESENT AN ADVANCE IMPORT DECLARATION AND PAY

III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS......................... 9

(iv) There were no reasonably available alternative measures....................................................... 25

(c) Consideration by the Panel ....................................................................................................... 71

1. Arguments of the parties ...................................................................................................... 121

1. Main arguments of the parties............................................................................................. 122

1. Main arguments of the parties............................................................................................. 144

1. Main arguments of the parties............................................................................................. 148

1. Main arguments of the parties............................................................................................. 150

1. Main arguments of the parties............................................................................................. 166

(b) Article V of the GATT 1994.................................................................................................... 171

1. Main arguments of the parties............................................................................................. 182

1. Main arguments of the parties............................................................................................. 194

TABLE OF WTO CASES CITED IN THIS REPORT

Short Title Full Case Title and Citation

Short Title Full Case Title and Citation

Short Title Full Case Title and Citation

Short Title Full Case Title and Citation

Short Title Full Case Title and Citation

Short Title Full Case Title and Citation

Short Title Full Case Title and Citation

TABLE OF GATT CASES CITED IN THIS REPORT

Short Title Full Case Title and Citation

1.2 On 14 September 2007, Panama requested the establishment of a panel pursuant to

1.4 The Panel's terms of reference are the following:

Chairman: Mr Gary Horlick

Members: Mr Gonzalo Biggs

II. FACTUAL ASPECTS

B. THE USE OF INDICATIVE PRICES IN RELATION TO TEXTILE, APPAREL AND FOOTWEAR

2.7 Colombian legislation defines an indicative price as a reference price18 established by

C. RESTRICTION ON PORTS OF ENTRY AND INTERNATIONAL TRANSIT RULES APPLICABLE TO

D. THE REQUIREMENT TO PRESENT AN ADVANCE IMPORT DECLARATION AND PAY CUSTOMS

E. THE REQUIREMENT TO PAY A FEE TO RECTIFY AN IMPORT DECLARATION APPLICABLE TO

III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

3.1 Panama requests the Panel to find that:

IV. ARGUMENTS OF THE PARTIES

A. EXECUTIVE SUMMARY OF THE FIRST WRITTEN SUBMISSION OF PANAMA

Specific measure at Applicable WTO

2. The measures at issue

4. Panama's request for findings and recommendations

• Colombia's determination of the customs value of textiles, footwear and other

• Colombia's use of indicative prices to determine the value of imported textiles,

• The requirements that importers of textiles originating in Panama submit an advance

B. EXECUTIVE SUMMARY OF THE FIRST WRITTEN SUBMISSION OF COLOMBIA

1. Request for preliminary ruling

3. Panama's claims in respect of the port of entry measure are to be rejected

(iv) There were no reasonably available alternative measures

5. Request for findings

C. EXECUTIVE SUMMARY OF THE REBUTTAL SUBMISSION OF PANAMA

For example, Article X is entitled "Publication and Administration of Trade Regulations".

D. EXECUTIVE SUMMARY OF THE REBUTTAL SUBMISSION OF COLOMBIA

1. Claims relating to Colombia's indicative pricing mechanism as a customs valuation

(a) Panama fails to meet its burden of proof

2. Panama's claims on indicative prices under GATT Article III

(a) Panama's claim under GATT Article III:2 is flawed

3. Panama's claims in respect of the ports of entry measure