WORLD TRADE
ORGANIZATIONWT/DS60/9
4 August 1998
(98-3135)
Original:  Spanish
GUATEMALA – ANTI-DUMPING
INVESTIGATION REGARDING PORTLAND
CEMENT FROM MEXICO
Notification of an Appeal by Guatemala under
paragraph 4 of Article 16 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU)
The following notification, dated 4 August 1998, sent by Guatemala to the Dispute Settlement
Body (DSB), is circulated to Members.  This notification also constitutes the Notice of Appeal, filed
on the same day with the Appellate Body, pursuant to the Working Procedures for Appellate Review .
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Pursuant to Article 16.4 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes (DSU) and Rule 20 of the Working Procedures for Appellate Review, the
Government of Guatemala hereby notifies its decision to lodge an appeal with the Standing Appellate
Body in connection with certain issues of law in the Report of the Panel on "Guatemala – Anti-
Dumping Investigation Regarding Portland Cement from Mexico" (WT/DS60/R), as well as certain
legal interpretations developed by the Panel.
Guatemala requests the Standing Appellate Body to review the following errors of law and
erroneous legal interpretations developed by the Panel in relation to the DSU, the Agreement onImplementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the "Anti-
Dumping Agreement" or "ADP Agreement") and the General Agreement on Tariffs and Trade 1994
(GATT 1994).
A. In concluding that the dispute was properly before it and that it had jurisdiction to consider
Mexico's claims, the panel:
1. Erred in law in finding that, under Articles 4, 6, 7 and 19 of the DSU and Articles 1
and 17 of the ADP Agreement, it had jurisdiction to consider Mexico's claims that the
initiation of the investigation conducted by Guatemala violated Article 5.3 andArticle 5.5 of the ADP Agreement.
2. Erred in law in its finding that the requirements of Articles 4 and 6 of the DSU are
not applicable to consultation or dispute settlement as provided for in Article 17 of
the ADP Agreement.
3. Erred in law in finding that specific aspects of the initiation and/or conduct of the
anti-dumping investigation, in themselves, are a matter that can be examined under
Article 17 of the ADP Agreement, regardless of whether a specific anti-dumping
measure is in dispute, which is a violation of Articles 4, 6, 7 and 19 of the DSU andArticles 1 and 17 of the ADP Agreement.WT/DS60/9
Page 2
4. Erred in law because it considered claims in which it is argued that the initiation of
the investigation violates Article 5.3 and Article 5.5 of the ADP Agreement, yet the
initiation cannot be considered in the context of the final measure, which lies outside
its terms of reference, nor in the context of the provisional measure, which the Panelitself declined to consider, just as it declin ed to consider our preliminary objections to
the provisional measure.
B. In making recommendations and suggesting how to apply them without identifying the
relevant anti-dumping measure, and denying Guatemala its right to determine the appropriate
means to do so, the panel:
1. Erred in law, violating Article 19.1 of the DSU by recommending - in the English
version of the Report (the Panel's working language) - that Guatemala should bring its
"action", and not a specific "measure", into conformity with its obligations under
Article 5.3 and Article 5.5 of the ADP Agreement.
2. Erred in law and gave an erroneous interpretation of Article 19.1 of the DSU by
making a recommendation concerning an "action".
3. Erred in law and in its interpretation of Article 19.1 of the DSU by suggesting that,
for the purposes of implementing its reco mmendations, Guatemala should revoke the
anti-dumping measure, when the final measure lies outside the Panel's terms of
reference and its Report contains only a recommendation regarding an "action".
C. In concluding that Guatemala did not rebut the presumption that the alleged delay in the
notification to Mexico required under Article 5.5 of the Anti-Dumping Agreement nullified orimpaired the benefits accruing to Mexico and in concluding that the alleged delay did not
constitute a "harmless error", the panel:
1. Erred in law and in its interpretation of Article 3.8 of the DSU by concluding that
Guatemala did not rebut the presumption that the alleged delay in the notification
required under Article 5.5 of the Anti-Dumping Agreement nullified or impaired the
benefits accruing to Mexico.  The Panel's interpretation of DSU Article 3.8 of theDSU is erroneous, since it converts the presumption mentioned in the said Article
into something irrefutable .
2. Erred in law and in its interpretation of Article 3.2 of the DSU and Article 17.6 of the
Anti-Dumping Agreement by failing to applying the "harmless error" principle – inaccordance with the customary rules of public international law – and to conclude
that the alleged delay in notifying Mexico was harmless.
3. Erred in law by concluding that Guatemala violated the Anti-Dumping Agreement
and by recommending that Guatemala should bring its "action" into conformity withArticle 5.5, without taking into account that any alleged delay in notification did not
cause any injury whatsoever to Mexico.
4. Erred in law by not applying the standard of review established in Article 17.6(ii) of
the Anti-Dumping Agreement in respect of Guatemala's permissible interpretation ofthat Article.WT/DS60/9
Page 3
D. In concluding that Guatemala violated Article 5.3 of the Anti-Dumping Agreement by
initiating the investigation without sufficient evidence, the panel:
1. Erred in law and in its interpretation of Article 5 of the Anti-Dumping Agreement by
concluding that Guatemala failed to comply with the requirements of Article 5.3 ofthe Anti-Dumping Agreement in initiating the investigation.
2. Erred in law by not applying the standard of review established in Article 17.6(ii) of
the Anti-Dumping Agreement in its interpretation of Articles 2, 3, 5 and 12 of the
Anti-Dumping Agreement and by rejecting Guatemala's permissible interpretation of
those Articles.
3. Erred in law by not applying the standard of review established in Article 17.6(i) of
the Anti-Dumping Agreement in its assessment of the facts as to whether Guatemala
complied with Article 5.3 of the Anti-Dumping Agreement.  The Panel invalidated
Guatemala's assessment that it had sufficient evidence, and replaced it with its own
assessment of that evidence.
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